The Government filed on 26 June a proposal that concerns the protection of private life according to its title. The proposal is odd, since it rarely has any new normative content. Therefore, it is questionable, what the legislator intends with it.
HCLU would prefer, if this proposal was not passed by Parliament for the following reasons:
1. it does not result in any significant progress in respect of the protection of the constitutionally enshrined right to privacy, , but
2. provides opportunity to further restrict the freedom of expression in a way that does not necessarily have constitutional reasons, and therefore
3. on the whole decreases the level of protection of fundamental rights.
The most important task is to abandon the proposal’s provision amending the Hungarian Civil Code in course of the parliamentary work according to HCLU’s opinion.
The government majority – which once again has the sufficient majority to alter the constitution – has been discussing the protection of private life to an increasing extent over the past weeks , and modified several related statutes, even the Fundamental Law. In this connection, they specified the protection of home, to which they mostly refer vis-á-vis protests, at constitutional level. We wrote here in detail about why this rule makes little sense, but poses a threat at the same time .
The new rule introduced to the Fundamental Law would not only restrict protests, but the freedom of expression, as well. This may be reinforced by the newly submitted proposal on the protection of private life.
The peculiarity of the proposal is that it barely includes any new provisions, meaning provisions not already included in the legal system. The proposal is therefore fundamentally nothing more than a collection of already existing legal provisions that may be related to the protection of private life. In addition, the proposal provides a long list of fundamental principles that are connected to the protection of private life, but do not include any novelty either.
Based on the above, the proposal seems to be nothing more than an introduction to a law, a preamble that defines the legislator’s intent. This is where the hidden danger of the proposal lies.
Currently, the Fundamental Law refers at several points to how the law should be interpreted. These aspects now include the preamble and the statement of reasons as well, according to the seventh amendment of the Fundamental Law. Therefore the fact that the proposal on the protection of private life seems nothing more than the declaration of the legislator’s intent could after all carry danger. Namely that the courts will take it into consideration while adjudicating claims.
We must again lay down what we have already expressed in our earlier opinion: that the freedom of expression and the right to assembly are almost impossible to be exercised in a way that does not interfere with, or does not affect other people’s privacy. The question is the degree, the proportionality of the interference, i.e. whether it is proportionate to restrict one fundamental right in order to exercise another one. This can only be decided case by case, based on the specific legal tests established by the Constitutional Court of Hungary.
The implementation of the Act on the Protection of Private Life may result in the distortion of this test and the shifting of the benchmark at the expense of the freedom of expression. Although we assert that the proposal has no real normative content, since it does not add any novelty to the provisions already existing and applied in the legal system, it puts several of the existing provisions into a peculiar context. Namely, the legislator’s intent that may be deducted from the proposal shows an enhanced protection of privacy that restricts the effective application of other fundamental rights. For example the proposal declares as a goal that “the state facilitates and supports the forming and maintaining of a perspective that prioritizes the respect of privacy within all social and economical areas.” Whether this will be the case, depends mainly on the courts. It is possible that the judges will agree with us that this act barely has any normative content and will therefore not apply it in the course of adjudication – meaning that everything stays the same.
Other judges, however, may accommodate to this law, and may therefore bring more restrictive judgments concerning the freedom of expression and the right to assembly. This is especially the case, since the seventh amendment of the Fundamental Law also stipulates that a separate Administrative Supreme Court shall be established, which may provide an opportunity to appoint judges, who are loyal to the government. If they will indeed seek to bring judgments that are in favour of the government, then the Act on the Protection of Private life will come in handy for them. Since this act collects certain provisions, disconnecting them from their place within the legal system, it provides an opportunity for the judges of the Administrative Court to use these in procedures, where they would have no such opportunity in the absence of this act. For example they may take into account a provision originally included in, but now being disconnected from the Civil Code in course of permitting a demonstration, which may provide good basis for the restriction of the right to assembly.
the proposal is nothing more than a list of principles lacking genuine legal content and of legal provisions set out in other laws. It will be decided in the courts, whether this will be able to narrow the possibility to exercise the right to the freedom of expression. The latter is nuanced by the danger of appointing judges loyal to the government.
However, the proposal would also modify S. 2:44 of the Act V of 2013 on the Civil Code (hereinafter: Ptk.) concerning the protection of the personality rights of public figures. According to the provision being in force:
“The exercise of fundamental rights ensuring a free discussion of public affairs may limit the personality rights of public figures to an extent that is necessary and proportionate and is without prejudice to human dignity.”
This would be supplemented with the following according to the proposal:
“[...] however, it shall not violate their private and family life and home.
(2) Public figures shall be entitled to the same protection as non-public figures with regard to communications or conduct falling outside the scope of free discussion of public affairs”
Introducing the second paragraph would again not substantially modify the already established legal practices, which complies with constitutional norms. Public figures and persons exercising administrative powers have been required to bear the restriction of their privacy in respect of statements and behaviours within the scope of free discussion of public affairs. However, this restriction may also be substantial, since whether a given statement qualifies as discussion of public affairs can only be adjudged by considering all circumstances of the case [see for example Resolution No. 13/2014 (IV. 18.) of the Constitutional Court of Hungary].
In the meantime, the amendment of the first paragraph raises serious concerns. On the one hand, the new text would enable civil courts to not interpret the personality rights of public figures as having a wider extent than presently at the expense of the fundamental right of freedom of expression in relation to public affairs – in accordance with constitutional norms and respecting the consistent practices of the Constitutional Court of Hungary and the European Court of Human Rights. Namely, exercising the freedom of expression is already prohibited from “violating” the privacy of public figures, only to restrict it. It does so within the framework set out in the normative text of the Civil Code already being in force: to the extent necessary and proportionate, without prejudice to human dignity. One of the bedrocks of our constitutional system is the distinction between the restriction and violation – meaning unjustified restriction – of fundamental rights. Therefore, as long as the legislator stays within the frames of this terminology, the amendment of the first paragraph is solely a declarative motto without creating any new norm or having substantial content.
On the other hand, it creates a source of concern that the amendment of the normative text may convey the legislator’s intent in the eyes of the courts that public figures are entitled to a wider protection of their personality rights than they presently are. Would the courts begin to interpret the clause emphasizing the protection of privacy in a way which would forbid any interference in the privacy of public figures in order to freely discuss public affairs, this would create an enormous obstacle to the fulfilment of the duties of the democratic press and media. The press interferes with the privacy of public figures and persons exercising administrative powers in every democracy, without this investigative journalism would be unimaginable, the comprehensive exposure of corruption would become impossible, and several characteristics of public figures or of persons seeking public powers would remain unknown, or rather, would not become subject of free debate. However, the latter would significantly influence voters’ opinion in respect of these persons’ abilities and merits to hold public office of. It creates a source of concern that the statement of reasons(?) in respect of S. 16 of the proposal explicitly declares the protection of private life as the goal of the amending provision. Moreover, as a result of the seventh amendment of the Fundamental Law, the legislator’s intent (especially its content manifesting in the preparatory reasoning of the proposal) obtains a prominent role in determining the goal of legal provisions; and determining this goal obtains a prominent role in interpreting legal provisions generally.