On the preparation of the media-overhaul: Two MPs sponsored the draft bills, unprecedented for such an important overhaul. The HCLU disapproves of the process by which the parliamentary majority has gone about building a completely new regulatory scheme without any previous consultation or open debate with stakeholders, experts or journalists.
The HCLU rejects the very idea of putting all media providers in the same regulatory basket. A complex approach should be adopted for different media outlets in order to let the principle of freedom of press prevail. In our assessment the Act flies in the face of this crucial requirement and has resulted in a highly restrictive press and media law.
Overall, the Act is unfounded and conceptually misguided. Furthermore, the Act is unconstitutional on several points because it heavily restricts the freedom of the press. Hereafter, the HCLU sums up in several points the most critical parts of the Act, which raise heavy questions about constitutionality. The HCLU is to file a petition with the Constitutional Court in order to strike down unconstitutional provisions of the Act.
1. The scope of the press regulation
The Act gives an unusually broad legal definition for ‘Press Product’. By this definition the Act expands the scope of the regulation well beyond the printed press (newspapers or periodicals) to on-line contents such as news portals or professional blogs. The wording of the legal definition of ‘Press Product’ is very broad. It requires three criteria to make the Act applicable: the press products’ principal purpose should be the provision of content in order to inform, entertain or educate the general public; someone should bear editorial responsibility for the content; and a minimal business interest is required.
All press products should meet the Act’s strict content requirements, such as refraining from offending public morality or offending directly or indirectly the majority or churches. In practice, it means that even a blog with an advertisement banner on the top of the screen must make sure not to hurt public morals. This restriction, which converges completely different media under the same regulations, puts an undue burden on free speech and press. This restriction is unreasonable, fails to serve any compelling government interest, and hence it is unconstitutional.
2. Defense of public morality
The requirement not to hurt the public morality in the press is not unprecedented in the history of the Hungarian press. Such a general provision is still in force in Hungary for printed media (Act II of 1986 on Freedom of the Press). This Act was adopted by the last Parliament of the Communist regime and it is largely outdated by now. Fortunately its application was restricted. However, the new Act expands radically the scope of this speech restriction instead of eradicating it. In the HCLU ‘s opinion a modern press law should not contain overbroad content obligations. No one can predict what this provision will mean in practice. In reality the only certain point is that it creates room for discretionary, arbitrary decisions by the media authority, and consequently it increases its authority to restrict free speech. This is an outright curtailment of the freedom of speech.
3. Heavy burden on criticism
The Act’s Section 19 forbids for any media to openly or surreptitiously insulting inter alia nations, national, ethnic, linguistic and other minorities and any majority (sic!) or churches. This unclear compulsory provision for each and every media, including blogs, will produce a chilling effect on journalists’ words, given that the essence of journalism is at stake here: criticism.
4. Outright Registration
Ever since the publication of the draft bill, the HCLU have been maintaining the position that there is simply no compelling government interest in setting up a compulsory registration system for all media. The HCLU deems the mere registration obligation unconstitutional and contrary to the freedom of press if it does not serve any legitimate aim.
The Act creates a legal ground for striking down on critical voices: if the registration with the media authority becomes a condition for functioning, then the end of registration equals the silencing of a speaker. The preregistration as a condition for publishing can only be legitimate provided there is a legitimate purpose for it. Provided the media outfit uses frequencies that are scarce, such as in radio or television, or public funds are used for the media, then the registration can be deemed legitimate. In the case of on-line or printed press, where scarcity of technical means is not an issue, a preregistration rule is unreasonable and raises serious questions of constitutionality.
Since the adoption of the Act, further media laws have been adopted (‘Act CLXXXV of media services and telecommunication’). By now it is recognizable that the scope of the registration obligation goes well beyond the reasonable level: it includes not only televisions, radios, but also on-line and printed press.
5. Source Protection
It is simply right to state: the Act eliminates the source protection of journalists from 1st January 2011. Despite the wide range of alternatives that other nations’ laws offer, Hungarian decision makers opted to follow neither the path of American shield laws nor the example of the European Court of Human Rights (Sanoma Uitgevers B.V. v. The Netherlands, 2010). According to the provisions of the Act, journalists are allowed to protect their sources only when the information to be published is ‘in the public interest’. This kind of protection, where an authority decides on whether the publication is ‘in the public interest’, rests on no legal right. It is an occasional, condition-ridden protection, where the conditions are set by an authority, and not by journalists.
Furthermore, journalists shall reveal their sources to authorities or courts for vague purposes such as crime prevention or public order. This means that any source should be communicated to police or prosecutors under very vaguely defined circumstances, and not even a court order is required.
Overall, this provision deprives the press of a very important tool and threatens investigative journalism. The HCLU believes this part of the Act fails to meet European standards and exposes Hungary to devastating judgments from the European Court of Human Rights. For these reasons the section dealing with source protection fails to meet the minimum European standard.
6. Mandatory Content Requirements
Hungarian Constitutional Court practice makes it clear that freedom of press embraces the freedom of editors to decide upon the content of the press product they run. In the modern media world it is at the very least strange and archaic to set content requirements for editors. Outright content-based regulation is only possible for the public media and only in order to ensure pluralism in its programs. The Act sets highly unclear requirements: a wide range of content providers (linear and on-demand media services) ‘are required to ensure the diversity of their newscasts and news programs on local and national events of high interest to the public, including events from around Europe and events which may be of concern to the people of Hungary and that of the Hungarian nation in general, as well as on public debates, and to ensure that the information they provide is factual, timely, objective and balanced.’ This provision restricts heavily the freedom of editors to decide upon the content of the press they run. If editors are not free to decide on their own what content they deem important to publish, the freedom of press takes a powerful blow.
The HCLU assess that this provision amounts to an unconstitutional curtailment of the freedom of the press.