Keep in mind, only 53 percent of people who went to the polls voted for Fidesz, but it ends up that the government has a two-thirds majority according to the Hungarian electoral system. And changing the media system was not mentioned by Fidesz during their campaign—this was introduced by the party right after they won in April. So the government’s claim of having a popular mandate to make these kinds of laws is questionable.
And the “peoples’ will” argument is typical populist rhetoric and can be quite dangerous. When a government is elected they have a certain mandate to govern within the existing constitutional framework—unless there is a revolution, which there was not. Certain fundamental rights should not be determined by the “will of the people” but rather ensured and safeguarded by governments and the courts. Authorities must offer very strong arguments when regulating the press—in the case of hate speech, for instance. But the “peoples’ will” is not an argument for creating the kind of media system that went into effect this January. Even though polls now show support for Fidesz is slipping, it’s unlikely the government will change its “will of the people” rhetoric.
Fidesz also maintains its media legislation is in line with democratic media standards and other European states. Is this true?
No. The new Hungarian media law is a patchwork of the worst practices in the EU, with some extra limits on freedom of the press. It clashes with the fundamental principles of press independence in democratic societies and is based on how media worked fifty years ago in Hungary, when there were few media sources and people did not have the opportunity to get information. The public no longer relies on a single media source, where if the news were not “balanced” then they would be misinformed or misled.
There are some serious problems with free press issues within the EU and other Western democracies. Lots of governments regulate media in different ways and, for instance, filter Internet content. Think about the Decency Act in the US or the French model, which is totally opposed to net neutrality. There is libel tourism in Britain and ownership issues in Italy. Still, there is no precedent within the EU for a single, government-appointed authority to have powers to regulate content of all types of media, or to impose fines to Internet, broadcast, and print outlets, and to suspend or shut them down for not paying. What we’re facing at this stage is a single government exerting their influence on the media in a way we’ve not seen since 1989.
Isn’t Hungary bound to comply with EU media standards?
The European Commission can examine whether the law is in line with the EU’s Audiovisual Media Services Directive, which regulates television and on-demand services, and the Electronic Commerce Directive, which regulates ISPs and liability issues, and some competition directives. If the law clashes with an EU directive, they can examine and oblige the member state to modify the law. Basic rights are also protected by Article 11 of the EU Charter of Fundamental Rights, which guarantees from of expression and the press.
The EU has come under pressure to act. But what power does it have?
When an EU member state puts limits on freedom of expression in ways that clash with EU minimum standard regulations this can be brought to the European Commission. The EU can also put political pressure on a member state, which is what’s going on now. You can turn to the European Court of Human Rights if there is a case—for instance, if a blogger is fined under the new media law for violating the content regulations, and the case goes through all levels of the Hungarian courts. They can rule that the decision violates Article 10 of the European Convention on Human Rights, which guarantees freedom of expression. The Court might state that a certain piece of legislation is not in line with the Convention and can impose heavy fines on the Hungarian government.
Fidesz recently passed a law limiting the Constitutional Court’s powers after the Court ruled against the government over a controversial new pension tax. Given Parliament’s efforts to eliminate the court’s balance-of-power role, why bring your challenge to this particular court?
At the moment, the Constitutional Court in Hungary is the only court with the power to nullify this kind of law. Freedom of expression in Hungary in the last twenty years has been a very important issue, taken very seriously by the court, for obvious historical reasons. Every government since 1990 has submitted laws limiting freedom of expression and the court usually has decided on behalf of freedom of expression.