How not to commit “scaremongering”?

Sharing true facts or your opinion is not a crime. In this factsheet we've gathered what to keep in mind when discussing Covid-19 issues.

The Hungarian Parliament has recently changed the rules of the Criminal Code on scaremongering when it passed a bill on protection against the coronavirus. Now, we will explain what the recent amendment is about, how it affects the sharing of articles and experiences on social media and to what individuals and journalists need to pay attention.

What has changed?

Prior to the amendment “scaremongering” meant any conduct of stating or disseminating before the public at large at the scene of a public danger an untrue fact or a fact distorted in such a way that may cause confusion or unrest in a larger group of people.

Under the new rule it is now also considered scaremongering if someone

  • during a special legal order,
  • before the public at large,
  • states or disseminates an untrue fact or a fact distorted in any way
  • which may hinder or foil the effectiveness of the state defense against the danger that caused the special legal order.

First, not only are false statements which may disturb public order now a criminal offense, but also those which are capable of hindering or foiling the effectiveness of the defense (against the coronavirus in the present case).

Second, it is no longer necessary to commit the crime at the scene of a public danger, but it is enough for it to take place during a special legal order, regardless of the location. There is currently a state of danger in Hungary and the government is able to maintain this state for an unlimited time period.

The penalty has also been tightened, as the act is now punishable by imprisonment for up to five years instead of the previous three.

What exactly does hindering the effectiveness of the defense mean?

This is not specified in the law, but the protection includes basically all government measures that affect the defense against the coronavirus pandemic and its consequences, from healthcare and educational issues to restrictions on border traffic and economic measures.

As the scope of the defense is extremely wide, it is not possible to predict exactly what statements may be suitable in practice to hinder its effectiveness. Exactly what falls into this category will be decided by future judgments at the end of any court proceedings that may be initiated, but these proceedings can take months or even years.

Do I commit a crime if I share a news story I’ve read?

Generally, no, since scaremongering can only be committed intentionally, which means knowing that your information is false and, moreover, that it may hinder the effectiveness of the defense.

In practice, this means that by sharing a piece of news, you only commit a crime if the following conditions are met at the same time:

  • the article claims distorted or untrue facts,
  • it does so in a way that may hinder or foil the effectiveness of protection against the virus,
  • you are aware of these yourself: you know that the statement is untrue or distorts reality, and you want to, or at least are convinced that, your communication may have such consequences, and
  • nevertheless, you choose to share the news.

Examples:

1. You share a post stating that the coronavirus doesn’t even exist, so it’s unnecessary to stay home, everyone should feel free to go out on the streets. It is obvious that your conduct may hinder the defense because if people believe you, you can contribute to the spread of the virus. So by sharing this writing, you may have committed a crime but only if you yourself knew about the falsity of the news.

  • If you were aware that you were spreading a lie, you committed scaremongering.
  • If, on the other hand, you yourself believed the author of the article and were convinced of the truth, you did not commit a crime.

2. You are worried that there aren’t enough protective equipment in health care facilities so you decide to post a photo on social media with a nurse not wearing a mask. Under the picture, you write “this is the situation in healthcare: there are no masks in the hospitals”. The above statement would undoubtedly be able to cause unrest in people and we can assume that you had to anticipate this as well. In such a case, again, it would matter if you were aware that what you wrote was untrue.

  • If you knew it was an individual case, but nevertheless suggested that it was the general situation in the country, you committed the crime.
  • If, on the other hand, you thought this was really the general situation in the hospitals and you didn’t think that it would destroy anyone’s trust in health care facilities, then you didn’t commit the crime.

Based on the examples, we believe that there are cases where everyone can be expected to be aware that the (false) information they are spreading is capable of causing unrest or hindering the effective defense. However, in the absence of a judicial practice, there is no way to know with certainty how the proving of the above would work out in a possible criminal proceeding.

It is therefore not a criminal offense to share in good faith news one believes to be true, even if it is later found to be false. Regardless, it’s always important to fact-check news before sharing them. You can read our guide on how to protect yourself from fake news here.

What about sharing my own experiences?

Of course, you won’t commit a crime by sharing your own experiences, even if they are uncomfortable or disturbing. Spreading objective and real information is never a crime, even if it disturbs public order! Indeed, the sharing of disturbing but true information can be particularly useful, as it is often due to public pressure that the government improves an existing situation. As, for example, the Hungarian Medical Chamber's critical announcements have probably helped the government to take the right steps in addressing the epidemic.

This has not changed with the amendment of the Criminal Code, the law continues to penalize only false or intentionally distorted information. However, always beware of deliberately generalizing statements, and instead try to write about your own personal experiences as specifically as possible. For example, if you were not satisfied with hospital conditions because the staff didn’t wear masks, of course feel free to share this with the public. However, if you write about the general lack of protective equipment in Hungarian hospitals, while you are aware that what you have experienced happened only in one specific case and in one particular institution, then it’s possible that you have committed the crime.

Is it also a crime to share my opinion?

No, of course, it is not a crime to share your opinion. Scaremongering can only be committed by claiming false or distorted information, not by expressing opinions! So you are only exercising your right to freedom of speech whenever you share your views on a particular public topic, such as when you criticize a government measure. If you have legal proceedings instituted against you due to your political opinion, please contact our legal aid service at jogsegely@tasz.hu.

Be careful, though, starting a sentence with “I think” does not automatically make it an opinion! You can distinguish a fact from an opinion by checking whether it contains any provable statement. Facts always contain provable statements, while an opinion only reflects your own judgment. For example, it is a fact if you say that “I don’t think every patient has access to a ventilator” as this statement can be proven or refuted. However, it is more likely an opinion to say that “I don’t think there is enough protective equipment in hospitals” because what counts as a sufficient amount cannot be easily proven.

So, when sharing facts, always consider whether they are true.

Is disclosing that someone is infected also considered scaremongering?

Not if you’re sure about the information. However, just because you know someone is quarantined it doesn’t mean they are infected. It’s also important to know that by sharing that someone is infected with the coronavirus, you violate their right to protection of personal data. Therefore, we advise you to respect the rights of others and only disclose such sensitive information if it helps protection and prevention!

Is it scaremongering if I scare my family members by joking with them?

If you do this only in a small circle, in the presence of a few family members, then it is not a crime as it can only be committed before the public at-large. However, we definitely recommend that you don’t joke about this now, be aware that others may be seriously worried about their loved ones!

Nevertheless, doing the same on Facebook or any other social media platform can be a crime since the internet is considered “public at-large”!

As a journalist, what is my responsibility if I share a piece of news from another news outlet?

Since scaremongering can only be committed with intent and not with negligence, you only commit it if you are aware that your information is false or intentionally distorts the facts.

However, the responsibility of journalists is usually greater than that of someone sharing a news story as an individual. It could hardly be expected from the latter to check the source of the news in all cases, whereas it is a general expectation for a journalist.

In practice, this means that as a journalist, you might have a harder time defending yourself by not having known about the falsity of the information, even if you’ve just taken the news from another website. This is because you generally have more tools to check your resources than an average reader. Adhere to the rules of ethics of journalism: try to confirm the information from as many sources as possible, and think about what documents, recordings and testimonies you can use to prove you’re right in a later, possible legal proceeding!

Of course, this doesn’t mean that from now on you shouldn’t write at all about anything you can’t prove right away, or that you shouldn’t take information from other media outlets, but during a state of danger, it’s definitely worth paying close attention to the source and reality of the news.

Can the editor in chief and the copy editor of the paper be held responsible for what I write?

According to the law, scaremongering is committed by anyone who engages in any way in the spreading of false information, for example by those who provide devices to the journalist. This means that anyone who participated in some form in the publication of the article, whether the editor in chief or the copy editor, could be held liable in a criminal proceeding, not just the journalist himself. However, as we have said before, this crime can only be committed with intent: meaning that every individual needs to be aware that the information they are disseminating is false and is capable of hindering the defense or causing unrest in people.

As a journalist, what dangers may I face if a criminal proceeding is initiated against me?

It is important to note that scaremongering has very limited judicial case-law in Hungary, so it is hard to tell for sure on what criteria a court would make their judgment in a proceeding. This is further complicated by the fact that the amendment is worded so generally that its content is not entirely clear either to citizens or to lawyers. Regardless of its outcome, however, initiating criminal proceedings can cause serious disadvantages in and of itself.

The police, for example, can take a number of measures during the investigation that could cause serious harm to journalists and news outlets. The rules of criminal procedure provide that the means of proof in the proceedings must be seized. This can easily lead to the result that the IT equipment of the entire editorial office, including the servers, is immediately seized by the police, making it impossible for the given media outlet to operate. According to the rules of procedure, this does not require judicial approval before the indictment, it’s enough to have the decision of the prosecutor. Given that a criminal proceeding can take many months, or even years, such a proceeding would undoubtedly cause enormous detriment to the party concerned, even if the court ultimately ruled that no crime had occurred.

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