Notes on Hungary's media law package

The aim of these notes is to provide a brief, 12-point list of the main deficiencies of the new Hungarian media laws, at least with regard to the safeguards of media freedom and pluralism, laid down in Article 11 of the EU Charter of Basic Rights. The notes are based on my intervention at the Open Hearing “Freedom of Press in Hungary”, organised by ALDE in Brussels, 11 January 2011. I have added further dimensions that I believe are necessary to look at when making recommendations on Hungary’s media laws. Originally written on 10 February 2011, the notes have been updated on the basis of the agreement between the European Commission and Hungary on 17 February. As will be seen, the alterations made on the basis of this agreement do not go nearly far enough.

What laws is the debate about?

It is misleading to talk only about the last one or two acts of the “media law package” (this was its official name) introduced first by two individual Fidesz MPs on 11 June 2010, and later by three Fidesz MPs on 22 November 2010.

The Hungarian media laws consist of at least five crucial legislative acts since June 2010. All were passed in a hurry before the end of the year without any consultation with other parties and professional bodies, despite loud requests and protests by these.

These laws are built upon each other and are deeply interconnected. Each of them has its own stake in the restrictive character of the new system, while none of them would make sense in and of itself. This is why Dunja Mijatovic, the OSCE’s media freedom representative, has asked the government, already after the Package was presented in June, to stop passing its parts and revert to a consultative way.

Here are the main pieces of law setting up the new system:

1. Changes to Article 61 of the Hungarian Constitution, passed 6 July 2010. The amendment removed the tenet obliging Parliament to pass a law aimed to “preclude information monopolies”, that is, the obligation of the state to uphold pluralism; it ominously added the anti-pluralistic tenet of a “citizen’s right to be provided with ‘proper’ or ‘adequate” (megfelelö) information about public life”. (Amendment of the Constitution, 6 July 2010)

2. The law setting up the new National Media and Infocommunications Authority (Telecom Authority) and the Media Council (MC), passed 22 July 2010. Already at this point, it was envisaged that, from the autumn, the scope of MC’s power would be extended from the audiovisual to the print and the Internet-based media. (Act LXXXII of 2010 on the amendment of certain acts on media and telecommunications)

3. Prime Minister’s and parliamentary appointments of the functionaries of the new system, August to October 2010. (Resolution No. 95/2010 [X. 15] and 96/2010 [X.15] of the Hungarian National Assembly)

4. The law on the rights and “duties” of the press – “Act CIV of 2010 on the freedom of the press and the fundamental rules governing media content”. The official English shorthand is the “Press and Media Act”; in Hungary it is sometimes called “the Media Constitution” – passed 9 November 2010.

5. The detailed sanctions, “Act CLXXXV of 2010 on media services and mass media” in official English shorthand “the Media Law”, passed 21 December 2010.

Unprecedented violations of European standards

The Hungarian Government claims that no part of the new laws/system is unprecedented in Europe. In fact, the main features that restrict freedom and pluralism of the media are all unprecedented.

1. Unprecedented since the communist period, the Package, “based” on the text of the amended Constitution, obliges all media (including print and Internet) to provide ‘proper’ or ‘adequate’ (megfelelö) news coverage:

a) “Media content providers shall provide authentic, rapid and accurate information on local, national and EU affairs and on any event that bears relevance to the citizens of the Republic of Hungary and members of the Hungarian nation.” (Article 13 [1], Press and Media Act)

Following Hungary’s agreement with the European Commission on 17 February 2011http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/89, the above “tasks” remain intact for all media, only will be moved to Art 10. The agreed formula is: “It is a task for the entirety of the media system to provide authentic, rapid and accurate information on such affairs and events.”

b) “Linear and on-demand media content providers engaged in news coverage operations shall provide comprehensive, factual, up-to-date, objective and balanced coverage on local, national and European issues that may be of interest for the general public and on any event bearing relevance to the citizens of the Republic of Hungary and members of the Hungarian nation.” (Article 13 [2], Press and Media Act)

Agreement with the Commission: On-demand audiovisual media is exempted from the “tasks” under b), while they still have to partake in duties under a). The MC’s powers for content control over all media, including the print and the online press, have been left untouched.
In exchange for exempting on-demand media from the duty of “balanced coverage”, the Commission has consented to the potentially oppressive notion of “proportionality”, to be applied to linear media. It is not clear what “proportionality” has to do with the Audiovisual Directive – and even much less with media freedom standards. This notion is hardly justifiable even as a task for public-service media.
Hopefully, it does not mean a prescribed balance of “face and voice times” when covering politics. (Government thinkers have often referred to the two-thirds majority of the ruling party as justification for the existing heavy imbalance in public-service outlets.) “Proportionality” may simply mean enforcing the “balance” principle at TV channels with a different reach. Even so, it can be defined and applied arbitrarily by the – politically entirely imbalanced – MC.

These tasks are incorporated in four legal acts: the amended Constitution; the mandate of the Media Council; the Press and Media Act; and the new Media Law.

A universal, homogenising task for the media regarding news coverage content is in direct opposition to Article 11 of the EU Charter of Basic Rights, which prescribes respect for pluralism and bans interference in the information flow from public authority. In fact, any “tasking” (except for the public-service media) restricts the watchdog function of the media in a democracy. That is why, twenty years ago, abolishing all such tasking provisions from the constitutions and the laws in formerly communist Europe was a symbolic act of democratisation.

2) Unprecedented is the single administrative media governance pyramid set up by the new system. Even if it were not operated by the ruling party alone, it would be unprecedented. Whether filled by appointment or parliamentary “election”, all boards and posts are either fully occupied or dominated by the ruling party, and made into rubber-stamping machinery protected by strict secrecy rules. The boards are becoming “departments” of the authority, which is in effect a media ministry.

All the chief functionaries of the new media system (the Dual President of the Telecom Authority and the Media Council; the four other members of MC; the eight members of the Public-Service Board) have been appointed for 9 (nine) years, after which time they may be re-appointed.

Inside this pyramid, there is a “dual monarchy” between the Telecom Authority and the Media Council. Annamaria Szalai has been appointed by the Prime Minister to head both. She has the right, in one of her two capacities, to put forward candidates or directly appoint all other decisive officials in the system. (Amended Act C. of 2003 on Electronic Communication, Article 14 [2]; Media Law, Article 102 [2]a, Article 136 [11-12]).

In Europe, only the Russian Roskomnadzor and the Belarusian Ministerstvo Informatsii has the same dual-headed feature (and the “pyramid”).

The excuse that her second job, heading the Media Council, is an independent decision by parliament does not correspond with the facts. The Parliament had not choice, because the dual-headed setup was explicitly prescribed in the 22 July law setting up these institutions, and is also included as Article 125 (1) in the new Media Law:

The President of the Authority, who is appointed by the Prime Minister, shall become the candidate for the presidency of the Media Council from the moment of appointment.

There is no other candidate envisaged in the law, neither is provided any other mechanism to candidate.

3) The five members of the MC are all delegated by the ruling Fidesz party (made possible by Media Law, Article 124 [1], [4] and [6]; decided: Resolution No. 95/2010 [X. 15] of the Hungarian National Assembly). No explanation needed why this is contrary to everything that European media governance is about.

4) It is unprecedented that the media regulator’s power is extended to all media, including privately owned and public-service audiovisual media, the print and the Internet-based media, as well as on-demand media services (Media Law Article 1 [1]; Article 203, point 43). This happens at the historic moment of digital convergence, which, with the abundance of channels coming with it, eliminates many existing constitutional excuses for content control, even in classic broadcasting.

5) In an unprecedented way, and contrary to all European standards, all guarantees of the PSB’s independence are systematically removed, amounting to a re-nationalisation of public-service broadcasting.

a) The head of the MC is the only person in the system who has the power to appoint the CEOs of the four PSB outlets: MTV, Hungarian Radio, Danube TV, Hungarian News Agency (Media Law, Article 102 (2)a);

b) in doing so, she is not obliged by any criteria or public procedure;

c) all PSB newsmakers have been made employees of a fund set up by the MC; in other words, the head of the MC is indirectly the employer of all PSB journalists (Organizational and operational rules of the Fund, Chapter V. Divisions).

6) Registration of all news providers (including the print and Internet-based ones) is made mandatory and a pre-requisite for starting the outlets’ operations; this is not only unprecedented inside the EU but specifically forbidden in Council of Europe guidelines (Media Law Article 46 [1]).

Agreement with the Commission: Registration must be completed not prior to but in the first 60 days of operation of the outlets. This is a net gain, since it effectively transforms the hitherto “permissive” type registration into a “notifying” type. However the inherently illegitimate registration of all media, including print and online, remains.

7) The MC can oblige Internet service providers to block any Internet-based news outlet as a final punishment for alleged non-compliance. Only Turkey has a similar law, but there this is a court-based rather than an authority-based measure. Turkey decided in December 2010 to reform this provision, which had resulted in the scandalous blockage of big international websites like YouTube. (Media Law Article 189)

8) In an unprecedented way, through the services of a “Media Commissioner” (a direct employee of the head of the MC), the two authorities (Telecom and MC) have the right to request any information at any time from any media outlet in the country, without any violation of law having been committed by the media outlet. The laws specifically state that no business secrets or otherwise protected data constitute an exception. Refusal to comply comes with very high fines and ultimately with the withdrawal of the outlet’s right to be distributed. (Media Law Article 111 [2] f, 140 [1], 142 [1])

9) The journalists and the outlets lose their right to retain the identity of their confidential sources if the information in question was classified data; the same goes for “exceptionally justified cases” (Article 6 [1] and [3], Press and Media Act). In fact, this covers all cases relevant for any investigative journalism. Although such restrictions are not unprecedented in some post-communist democracies, all European and OSCE recommendations are clearly against them, and it is unprecedented to introduce them in fresh legislative acts.

10) Much has been told about the high, practically annihilating fines that that the Media Council is able to levy when enforcing the law. (Media Law, Article 187). However equally unprecedented is the very fact that the media authority is entitled to punish the media for coverage issues. (Media Law, Article 181 [1], 182 c; Press and Media Act Article 13-20) Such intrusion by an authority is forbidden by the EU Charter of Basic Rights.

Agreement with the Commission: Foreign media are exempted from the fines for content issues (other sanctions, including suspension, remain in force). For Hungarian media, all sanctions remain in force, just as the very authority of MC to punish media for perceived content deficiencies.

Also unprecedented is that the MC constitutes, alongside the civil courts and the criminal courts, a third layer in the country that has punitive power over the media. In Europe, the expectation is to go in the opposite direction: to decriminalise journalistic errors and leave disputes solely to the civil courts.

11) Neglected in the debate so far is the unprecedented violation of the principle of rule of law that comes with the three-level sanctioning of the media.

a) The Media Council is empowered to punish (and, before that, to freely interpret) new, broadly defined transgressions, the sanctioning of which has hitherto been explicitly rejected by the Constitutional Court as going too far, being too vague, and therefore “violating freedom of expression”. Some examples: “insulting” any group, any minority and any majority; “violating” public order, family values, religion; etc. (Media Law, Article 182 c; Press and Media Act, Article 17)

Agreement with the Commission: “offending” the above subjects (“individuals, groups, minorities, and majorities”) has been removed from the list of sanctioned content, while incitement to hatred or discrimination remain in the text. Thus the vagueness of these notions also remains. In Hungary, there exist clearly defined and constitutionally regulated criminal sanctions to punish similar hate speech offences. The agreement does not affect the MC’s power to punish these offences. The relationship between the powers of MC and the Criminal Code are not touched on and the danger remains that they will be arbitrarily applied.

b) The news coverage requirements (“comprehensive, factual, up-to-date, objective, balanced, authentic, rapid and accurate information on local, national and EU affairs and on any event that bears relevance to the citizens of the Republic of Hungary and members of the Hungarian nation”) while they are illegitimate if applied beyond public-service broadcasting, are also vague, and therefore can only be interpreted and sanctioned in a selective, arbitrary and politicised manner. (Press and Media Act, Article 13) This issue is not entirely independent from the fact that setting equal requirements for on-demand and linear media also infringed the Audiovisual Directives of the EU.

Agreement with the Commission: on-demand audiovisual media is now exempted from the “comprehensive, factual, up-to-date, objective and balanced” coverage requirements but must still partake in the untouched general coverage tasking, valid “for the entirety of the media system” (“authentic, rapid and accurate information”). The vagueness of these notions remains and hence the danger that they are arbitrarily applied to specific media, or that they serve as the basis for arbitrary decisions regarding licensing, in order to shape “the entirety of the media system”.

c) Contrary to what has been claimed, no real judicial overview exists over these decisions (and any other decision of the MC). This is also unprecedented in the EU. Sanctioned media can only appeal to an “Administrative College”, a court that is unable to look into the merit of the issues. (Media Law Articles 70 [7]; 163 [1]; 165 [3]; and many others.) In this court, an appeal will be considered only if it claims that the MC has violated the Media Law itself, such as: non-compliance with deadlines; rules of procedure, etc. Not even the amount fined can be disputed, because the law grants the MC total liberty to define what constitutes a transgression and whether it was a “light” or a “grave” transgression.

d) The third, new, administrative instance of punishing the media for “speech offences” (Media Law, Article 182 c, Press and Media Act Article 13-20, incl. Article 17) can diverge from the judicial route; it can be utilised by the authorities even if they lose a civil and a criminal case; the MC can have a fully deviating opinion from the court and punish the media, however its decision only can be appealed at an “administrative court”.

12) The single greatest danger for the freedom and pluralism of the media in Hungary lies in the arbitrary licensing provisions, the parallels of which can only be found in a number of post-Soviet countries. An example is Article 55 (1) c) and (2) of the Media Law; another is Article 187 (3) e). Based on these and many similar provisions, the authorities can shape the media ownership landscape as it pleases them. Also, by keeping the owners dependent on the unaccountable will of a politically homogenous regulatory body, these arbitrary rules force the owners to block editors from content critical of the government.

For example, Article 55 (1) c) says that the MC can exclude any company from participating in tenders for licences if, in the last five years, a media outlet owned by the company has been reprimanded – by the same MC – for a “gross” or “grave” (súlyos) matter. Article 55 (2) adds that the same fate will befall any company that has a stake in the above-mentioned company, or to any company in which the above company has a stake.

Obviously any media company or investor group in Europe that does not want to lose profits or markets in Hungary will ask their editors to refrain from publishing investigative material regarding the ruling party or the government. They will fear that the outlet might be reprimanded over seemingly unrelated matters – say “child protection” or “advertisement rules” – and that the MC could, at any time, arbitrarily declare a “grave matter”, which could in turn be used to exclude the whole company from future licences. By the same token, any TV programme can be excluded from distribution in the country (Article 187 [3] e).

The vagueness of these provisions, combined with the unrestricted “freedom” and the utterly partisan composition of the body that applies them, would “chill” free speech in any country. But the gravity of these features is underscored by the crucial moment: the licenses of the only two nationwide commercial analogue TV channels, RTL Klub and TV2, will expire in 2012. In one of its last chapters (Article 220 [15]), the Media Law (without any prior notification to the European Commission) postponed Hungary’s digital switchover from 31 December 2011, the Europe-wide deadline, to 31 December 2014. This manoeuvre has barred Hungary from the multiplication of channels and the enhanced pluralism that are the goals of the Europe-wide switch to digital distribution of TV signals. RTL Klub and TV2 will thus be able retain their grip on the commercial TV markets; they will also be able to remain the main source of information for the majority of Hungary’s audiences. Thus, the very law that was officially justified as the country’s sole chance for innovation has pumped new life into a duopoly on the country’s most important media market, and into an outdated technology, effectively precluding the entry of new players.

More ominously still, in the coming years, the arbitrary regulatory and licensing powers in the hands of the Fidesz-appointed MC will provide strong incentives for self-censorship for RTL Klub and TV2. In fact, their programming has already been described by observers as an attempt to please the ruling party. In 2012, when RTL Klub and TV2 will apply for the renewal of their expiring analogue licenses, even their full compliance with the “new rules of the game” may not save them from a re-assignment of their frequencies to other, government-friendly companies, or from being forced to let these companies take over a large stakes in them.

Additionally, as with regulatory matters, there is no real judicial oversight over licensing decisions. The rulings of MC cannot be appealed regarding their merit; only “administrative” or “procedural” complaints are possible (Media Law Article 62 [4] and similar).

Such rules “outsource censorship” to the owners and create a “perfect chilling effect”, without any of the embarrassing public clashes typical for the punitive way. In their wake, content pluralism might fully disappear, at least from television, despite diversified ownership.

The quasi-total evaporation of independent political content combined with de-politicization is what has happened in Russia and in several other post-Soviet democracies. The causes are exactly what we are seeing in the new Hungarian laws: political control of regulatory and licensing bodies; vague rules that can be arbitrarily applied; absence of any meaningful judicial oversight that owners are able to rely on.

Conclusions and recommendations

Advocating isolated alterations, such as involving a few opposition figures in the Media Council or lowering the severity of punishments, could be misleading and fail to produce an improvement in the overall quality of the package. A mere listing of problem articles could be misused. A better message would be provided by a list of problem fields and related recommendations.

The Hungarian government should do the following:

1) give up the notion that the government’s two-thirds legislative majority also gives it a right to decide alone in matters of press freedom;
2) restart the legislation in parity-based drafting fora that include opposition and civil society;
3) remove the “dual monarchy” of the telecom and media regulator;
4) restore the media regulatory body’s independence from government by allowing for parity-based political composition and the participation of journalists’ associations;
5) make the upholding of pluralism the sole aim of media governance; return that aim to the constitution; do not reduce “diversity” to ownership de-monopolization;
6) restrict media governance to the audiovisual field; fully remove its control over the printed press and Internet;
7) remove the vagueness of any concept employed by law;
8) restore true judicial overview, with appeals adjudicated on merit of the arguments;
9) remove any news content prescriptions or “tasking” for the nation’s media;
10) let the courts do the punishing and remove criminalisation of journalists’ mistakes; leave every debate over content to civil courts;
11) restore independence of public-service broadcasting;
12) protect investigative journalism by protection of confidential sources.

These suggestions go far beyond the changes agreed with the European Commission, which were based merely on the Audiovisual Media Services Directive.