Special Reports / Should we throw Hungary out of the EU?

Attempt on democracy

Dominika Bychawska-Siniarska · 7 January 2012
The Hungarian Presidency in the EU Council in the first half of 2011 began with a discussion on the new media act.

The regulation, which came into effect on 1 January, provides comprehensive stipulations applicable to all kinds of media: the printed press, broadcast programming and the Internet. It was criticised by some of the Member States [1], the European Commission [2] and the European Parliament [3], given its non-compliance with the international standards of freedom of speech and guaranteed independence of the media. Concerns were also raised by the NGOs and international media. Freedom of speech is the fundamental element of democratic society. The post-communist states are particularly obliged to respect and fully implement that freedom. Enactment of a media act which raises severe objections as to the international standards of freedom of speech should be perceived as a regression in the democratic transformation in Hungary.

The media act was imputed as granting extremely extensive competencies to the National Media and Infocommunications Authority (NMHH), which supervises all the electronic media. The act provides that the Authority is headed by a president appointed by the Hungarian President for a term of nine years. Under other provisions of the Act, the Hungarian PM or President may recall the NMHH president. Premises for such a recall are quite laconic. The method of appointment and recalling the president of such an important authority raises doubts as to the political independence of the authority. There are also concerns that the Director-General of the authority is appointed and recalled by the Hungarian President. As a result, two decision-makers in the authority depend upon the President, and their activities may be controlled by the President who may recall them from their offices.

Another criticised solution is the establishment of a five-man Media Council, appointed by the Hungarian Parliament for a term of nine years. The president of the Council is appointed by the Prime Minister. Under the Act, the broadcasters can be fined if they breach provisions of the Act, in particular if they present content of “drastic and violent nature, humiliating or inciting hatred among the nations or religions”. These concepts are vague and leave a great margin for unrestricted operation to the Council. There are also concerns about the provision under which broadcasters can be fined for publications which stand in conflict with the generally adopted and correct political line of the government. The Council may impose fines of up to 200m forints (€700,000) on the e-media, and up to 25m forints (€89,000) on online publications or dailies. Such a high fine may result in bankruptcy of smaller publishers or editors. Entrusting competencies which are so severe in consequences to an authority whose independence is dubious infringes upon the guaranteed freedom of speech and freedom of media activities [4].

The power to search the editorial office, inspect the documents and oblige a journalist to reveal the source of information to the Council Media in matters of national security and public order has been found to be in stark contrast with standards of freedom of speech.

The Hungarian media Act has also introduced the option to sponsor TV and radio programming without an obligation to disclose the sponsor of such programming. This regulation may result in abuse of position by the elites in power and mislead the audience as to the nature of the programming. The Act has also imposed a wide obligation to register all the media, also the online media and blogs.

Faced with international criticism, the Act underwent minor changes. The principle of the “country of origin” was introduced. Based on this principle, the new provisions will not apply to broadcasters from other Media States. The general ban on the speech of hate and discrimination in the media was abolished as well. On 16 February 2011 the European Commission accepted the amendments. The approval should be assessed solely in political criteria as it was aimed at calm completion of the leadership in the EU Council. The doubts as to the regulations imposed by the Act were sustained by the European Parliament [5], the Commissioner for Human Rights of the Council of Europe [6] and the OSCE [7].

On 19 December last year, the Hungarian Constitutional Court found multiple provisions of the Act to be in conflict with the constitution [8]. The fact that under the Act the NMHH was able to take action against printed mass media if they infringe upon human rights, dignity or personal affairs “is a restriction of the freedom of press in breach of the constitution” (art. 61 of the Hungarian Constitution). Such abuse can be prevented by taking the usual legal steps. Thus, the Court made the NMHH unable to control the contents of the printed press and the Internet. The Court also repealed the obligation imposed on all the media to provide the NMHH, upon its request, with all of their business details. The Court found the power to interfere with the journalist sources of information by searching the editorial office to be affecting the freedom of speech. Such actions should undergo court supervision first. The unconstitutional provisions will expire on 31 May 2012. However, it is not known whether the judgment will be respected by the legislator and whether the Act will be re-enacted in its current form. Such precedences have already occurred in Hungary [9].

In case of the Hungarian Media Act, the Constitutional Court effectively intervened and imposed the obligation to introduce legislative changes. Europe, despite numerous voices of criticism, has failed to force Hungary to make considerable changes. The interest of presidency and the intention to complete it without major disturbances overshadowed the obligation for mutual support of the Member States in driving towards stable democracy, as provided for the homogeneity clause of article 6 of the Treaty establishing the European Union [10].

Footnotes:

[1] Great Britain, Germany (an appeal of the German Foreign Minister, Guido Westerwelle) or France (statement by the French Government’s Spokesman, François Baroin).
[2] Statement of 11 January 2011 available at: europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/11/6.
[3] Statement of 18 January 2011 available at::www.europarl.europa.eu/news/pl/pressroom/content/20110117IPR11813/html/Hungarian-media-law-sparks-controversy-at-the-European-Parliament.
[4] According to Hungarian press, the Media Council instituted first proceedings against the Tilos Radio which played songs by a US rapper during the day. Under the new Act, such songs should be played at night, from 9 p.m. to 5 a.m. Such an “offence” could result in a high fine according to the new Act.
[5] Resolution of 10 March 2011 available at: www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-0094+0+DOC+XML+V0//EN.
[6] Statement of 25 February 2011 available at::www.coe.int/t/commissioner/News/2011/110225MediaHungary_en.asp.
[7] Statement of 8 March 2011 available at: www.osce.org/fom/75990.
[8] Judgment in Hungarian available at:www.mkab.hu/admin/data/file/1146_1746_10.pdf.
[9] Enactment of the Act on 16 November 2010 which imposed a 98% tax on leave paid upon redundancy, despite the fact that the provision was found to be unconstitutional on 5 November 2010. The Constitutional Court will not be able to re-review the provision since tax and customs matters have been withdrawn from the scope of its competencies.
[10] Official Journal of the European Union of 30 March 2010, C 83/3.