March 16, 2020
On January 20, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered a final decision in the case of Magyar Kétfarkú Kutya Párt (MKKP) v Hungary. The case concerned freedom of expression as guaranteed by Article 10 ECHR in an election context – in particular the use of a mobile application made available by a political party (MKKP) where voters could share an anonymous photo of their invalid paper ballots alongside political messages as a sign of protest against a national referendum. The National Election Committee imposed a fine on MKKP, giving rise to the question of whether there has been a violation of the political party’s freedom of expression. The Grand Chamber held that the legal rules that constituted the basis for imposing a fine on MKKP were insufficiently foreseeable for the purposes of Article 10(2), did not rule out arbitrariness in its application and did not enable MKKP to regulate its conduct. As such, the Court held that there has been a violation of Article 10 of the Convention.
The case originated in the 2016 referendum organized by the Hungarian Government concerning the European Union’s mandatory quotas for relocating migrants. The MKKP – a registered political party that did not attain the statutory threshold for parliamentary representation and mainly conveying its political opinion through satire and humorous content – found the referendum initiative manipulative and abusive of direct democracy mechanisms. In order to express its political opinion, MKKP developed a mobile application called “Cast an invalid ballot” through which voters could share an anonymous photo of their invalid ballot paper. Along with the photograph, MKKP encouraged voters to share a message on the mobile application. Users could select a pre-set political message or write their own message. Because of the hashing technique used for the application, neither MKKP nor the developer could have access to the personal data of the users. On the day of the referendum altogether 3,894 photos were shared.
Following the referendum, the National Election Committee (NEC) imposed a fine on MKKP. The NEC considered that the use of the mobile application infringed the principles of fairness of elections, voting secrecy and the exercise of rights in accordance with their purpose, in breach of the Fundamental Law of Hungary and the National Election Procedure Act. The Kúria (The Supreme Court of Hungary) dismissed the points concerning the infringement of the secrecy of votes and fairness of elections but upheld the NEC decision regarding the infringement of the principle of exercise of rights in accordance with their purpose. Central to the Kúria’s argumentation for finding a violation of this principle was the traditional approach to the role and use of paper ballots in a voting system (i.e. only for the purposes of casting a secret vote). According to the Kúria, sharing the outcome of the vote orally, by writing or on social media was in line with this envisioned purpose of paper ballots. However, expressing a political opinion by means of taking and sharing a photo of the paper ballot through a mobile application was incompatible with this traditional role. At the same time, the Kúria considered that the degree of infringement of this principle was not of such gravity to violate the fairness of elections. In light of these considerations, the Kúria reduced the fine imposed on MKKP. MKKP lodged a complaint with the Constitutional Court of Hungary concerning the infringement of their constitutional right to freedom of expression. However, the Constitutional Court of Hungary rendered the complaint inadmissible on account of MKKP not suffering directly from this potential breach of freedom of expression. Following these domestic procedures, MKKP filed a complaint with the ECtHR.
The case was originally allocated to the Fourth Section of the ECtHR. The Chamber held that penalizing MKKP for providing a means of transmission through which others can impart and receive information constituted an interference with MKKP’s right to freedom of expression under Article 10 ECHR. Moreover, the Chamber considered that the Government of Hungary breached the invoked right by failing to indicate which interest under Article 10(2) the ban served. As such, the Chamber unanimously held that the interference could not be considered to pursue a legitimate aim in accordance with Article 10(2) of the Convention and there was, therefore, a violation of Article 10 ECHR.
Grand Chamber judgment
The Grand Chamber judgment considered in detail both whether there was an interference with MKKP’s right to freedom of expression and whether the interference was prescribed by law. First, regarding the existence of an interference with the freedom of expression of MKKP, the Court indicated that this point was not contested among the parties and the Court also accepted this position (para. 85). However, the Grand Chamber took this opportunity to explicitly accommodate in the case-law of the Court two novel elements presented by this case: the posting of ballot photographs and the operation of a mobile application encouraging voters to share a photo of their invalid ballot papers. Indeed, the Court confirmed that a photograph taken of a ballot paper falls within the freedom of expression concerning the publication of photographs (referring to Von Hannover v. Germany (no. 2); Ashby Donald and Others v. France) (para. 86). Moreover, providing a mobile application for the purposes of publishing photographs constitutes a means of dissemination also protected by Article 10 (Ahmet Yıldırım v. Turkey) (para. 87). In this sense, the Court extended the same treatment to mobile applications in the electoral context as Google services facilitating the creation and sharing of websites (Ahmet Yıldırım v Turkey, § 49) and video-hosting services (Cengiz and Others v. Turkey) in its previous case law (para. 87). In reaching this conclusion, the Court also held that the freedom of expression concerning the content of the photograph and the freedom of expression of the content provider were closely intertwined in the circumstances of this case (para. 91).
With respect to the expression of ‘prescribed by law’ in the second paragraph of Article 10, the Court recalled that this not only requires the existence of a legal basis in domestic law but also sets requirements as to the ‘quality of law’ (Delfi AS v. Estonia ) (para. 93) – referring here to an essential rule of law requirement. With regard to this latter aspect, the Court offered a detailed analysis. The starting point for the Grand Chamber’s assessment was that ‘[t]he notion of “quality of the law” requires, as a corollary of the foreseeability test, that the law be compatible with the rule of law; it thus implies that there must be adequate safeguards in domestic law against arbitrary interferences by public authorities (see Malone v. the United Kingdom, and Olsson v. Sweden (no. 1)’ (para 93).
As such, central to this assessment was the notion of foreseeability, which requires a formulation with ‘sufficient precision to enable a person to regulate his or her conduct’ (Delfi AS, cited above, § 121, and Centro Europa 7 S.r.l. and Di Stefano v. Italy (para. 94). Of relevance for the digital context, the Court held that laws ‘must be able to keep in pace with changing circumstances’. In this regard, the Court emphasized that it does not require all detailed conditions to be laid out in the text of the legislation. Nonetheless, the requirements of ‘lawfulness’ can be met if further clarifications are contained in enactments of lower rank statutes (Association Ekin v. France, ) (para. 94).
Another central point for the Court was the fact that the question occurred in an electoral context and concerned the freedom of expression of a political party. According to the Grand Chamber this circumstance gave particular weight to the assessment of foreseeability (para. 99-101). In this sense, the Court emphasized the essential role of political parties in ensuring pluralism and the proper functioning of democracy requiring a rigorous supervision of restrictions concerning the freedom of expression of political parties. This supervision extends to the foreseeability of the legal basis of the restriction and to the assessment of whether the legal basis rules out any arbitrariness in its application. At the same time, the Court reiterated that the assessment remains a national competence. The Court is only competent to review the legislation in light of the Convention (Magyar Helsinki Bizottság v. Hungary) (para. 95).
In the application of the general principles to the case, the Court relied on the domestic case law by the Kúria and the Hungarian Constitutional Court, pointing to the vagueness of the legal principle of exercise of rights in accordance with their purpose (para. 110). The Court held that this principle did not meet the requirements of foreseeability because of its vagueness (para. 116). Ultimately, due to the particular importance of foreseeability when it comes to the freedom of expression of a political party in the context of an election or referendum, the Court considered that the legal provision exceeded what is permissible according to paragraph two of Article 10 ECHR.
In MKKP v Hungary, the European Court of Human Rights delivered an important decision at the intersection of freedom of expression in an electoral context and technology. Indeed, a novel element of this case concerned the question arising from the use of a mobile application by a political party through which voters can share a photograph of their invalid ballots and messages that express their opinion of a national referendum.
In its assessment of the use of a mobile application in an electoral context, the Court adopted a permissive approach, extending the protections conferred under Article 10 to the discussed mobile application and the political party operating it. Here, the ECtHR included mobile applications as a means of dissemination for expressing a political opinion which falls under the protection of Article 10. Indeed, the Court made an explicit connection between the closely intertwined nature of the freedom of expression of the political party and that of the users posting photos on a mobile application operated by a political party. Moreover, the Court offered a commendably detailed analysis of the foreseeability of the legal basis restricting the freedom of expression of a political party communicating via a mobile application. The Court made clear that the fact that this case occurred in an electoral context and concerned a political party had particular importance for the judgment. While these clarifications seem useful, it is regrettable that the Court omitted to point out that political parties operating a mobile application are not only protected by freedom of expression but also have a responsibility to ensure that the communication via the mobile application is respectful towards referendums, as key democratic mechanisms. Considering that this was the first time when the Court had to rule on this type of question, it would have made for an overall more balanced general approach.
As such, the judgment also remains prone to criticism due to its treatment of the electoral context. Indeed, as the dissenting opinion points out, the case also raises questions concerning political campaigning on ballot day, actively aiming to influence voter’s opinion as well as the potential disrespect towards the democratic institution of a referendum by posting humorous messages attached to the photos of ballots. The use of a mobile application in the context of elections also contributes to these questions. In particular, the point concerning respect towards democratic institutions deserves further critical reflection. While these points remain important, the more fundamental question of the possibility of a political party to express an opinion in the context of a referendum was rightly prioritized in the majority opinion. Following this judgment, a question that remains open is whether the Grand Chamber could have come to a different reasoning if the foreseeability of the legal basis restricting a political party’s freedom of expression was not a primary concern. Indeed, it is possible that the responsibilities of the mobile application operator would be more emphasized in the argumentation without the electoral context or in a context with more precise applicable legal rules. However, these considerations remain to be elaborated upon in future cases.