May 15, 2020
Guest Blogger: Nina de Puy Kamp, Paralegal at Leigh Day Solicitors, London UK*
Hungary’s Media Act 2010 (the Act) garnered much criticism for its chilling effects on free speech (UN, OSCE, EU, HRW). The Act establishes a media regulator (appointed by the ruling party) to inter alia prohibit and impose fines for ‘imbalanced coverage’ and restrict non-disclosure rights of journalistic sources. ATV ZRT v Hungary concerned sections 12(3) and (4) of the Act which prohibits media service providers from adding ‘any opinion or evaluative explanation to the political news’ without ‘distinguishing it from the news [itself]’. In its judgement, the Court expresses concern about the legal certainty of these provisions. Nevertheless, it veers away from ruling on the Convention-compatibility of sections 12(3) and (4) of the Act. Instead, the Court opts for a narrow ruling, finding a violation of Article 10 on the facts without triggering much needed legislative change.
On 26 November 2012, speaking before parliament, Mr. M. Gy., a member of the political party ‘Jobbik’ stated: ‘it is time…that we made an assessment how many persons of Jewish origin, especially members of Parliament and government, there are who pose a risk to national security…’ (para 4). This statement triggered a public outcry and the organisation of a ‘Mass demonstration against Nazism’. Three days after Mr. M. Gy.’s speech, the television company ATV ZRT (ATV) presented on the proposed demonstrations, stating that ‘an unprecedented alliance is about to materialise on Sunday based on the biased remarks of the parliamentary far-right’ (para 5).
Jobbik complained to the National Media and Info-communications Authority that the phrase ‘parliamentary far-right’ amounted to an opinion and was therefore prohibited under sections 12(3) and (4) of the Media Act. Agreeing with Jobbik, the Authority imposed an injunction on ATV. It held that the phrase ‘far-right’ went beyond a statement of fact and noted that it was irrelevant whether the statement was based on fact or that it was widely held. On appeal, the Media Council of the National and Info-communications Authority agreed, upholding the reasoning that a widely held belief was nevertheless prohibited.
The reasoning deployed by the domestic courts was highly inconsistent. First the Budapest Administrative and Labour Court found that the phrase ‘far-right’ was not prohibited under the Media Act because it “lost its meaning as referring exclusively to ‘extremists,’” and that it was, therefore, a factual description (para 10). On appeal, the Kúria overturned the Admin Court’s decision, relying on evidence that Jobbik did not consider itself a ‘far-right’ party and that describing it as such therefore amounted to an opinion. The Constitutional Court dismissed ATV’s final appeal deploying yet another approach. Disagreeing with the Kúria, the Court found that the “self-definition” of Jobbik was irrelevant to distinguishing fact from opinion. Instead, the Court argued that a phrase or adjective would only meet the factual requirements where it “reflects a social consensus to such an extent that there is no doubt that the adjective represents a fact” (at para 14).
ATV made an application to the ECtHR alleging infringement of its right to freedom of expression under Article 10. ATV argued that this infringement had no basis in clear and foreseeable practice and that the term ‘far-right’ was not a reflection of its subjective opinion but a widely accepted description of Jobbik. In response, the Hungarian government recognised that the injunction interfered with Article 10, but that this was necessary in a democratic society to protect the rights of others to receive unbiased information. It argued that it was irrelevant whether the opinion had a negative connotation, or indeed that it had a factual basis.
The parties agreed that Article 10 was engaged. Under Article 10(2) an interference is justified where it is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society.
To determine whether the interference was prescribed by law, the Court considers whether ‘opinions’ and ‘evaluative explanations’ in sections 12(3) and (4) are sufficiently defined to render their prohibition foreseeable. The Court considers the 2015 Opinion of the Venice Commission, which cautioned that ‘the vagueness of the terms employed…may turn those provisions into a tool of suppression’ and recommended that the Media Council ‘issue clear policy guidelines on the application of those provisions’ (para 16). The Media Council never issued such guidance, leaving concerns about vagueness unaddressed.
In its analysis, the Court recognises concerns about the foreseeability and accessibility of the provisions. It notes that ‘no standards as to the distinction between facts and opinions…can be discerned’ (para 36). Nevertheless, the Court decides it is not necessary to determine whether the underlying legislation meets the ‘prescribed by law’ criteria (para 34). Rather, it shifts its focus from the legislation to the domestic courts’ approach, asking ‘whether [their] approach could reasonably have been expected’ (para 37). To determine the foreseeability of the domestic courts’ approach, the Court moves on to consider whether the interference pursued a legitimate aim and was necessary in a democratic society, leaving the question of whether the interference was ‘prescribed by law’ unanswered (para 37).
In its assessment of foreseeability of the domestic courts’ (inconsistent) approach, the Court returns to the vagueness of sections 12(3) and (4) in the Act. It recognises the inescapable conclusion that it is ‘in view of the lack of precision in the legislation, that domestic courts were required to ensure that the contested provision concerned…did not turn into a tool for the suppression of free speech’. (para 46). The Court considers the domestic courts’ divergent approaches as evidence that ATV ‘could not have foreseen that the term ‘far-right’ would qualify as an opinion’, holding that the injunction was a disproportionate interference with the right, and therefore not necessary in a democratic society (para 52).
Throughout its reasoning, the Court’s underlying concern with the quality of the legislation is evident. The Court notes that ‘no standards…can be discerned’ (para 36), that ‘the notion of opinion…appears to be very broad’ (para 46) and that it lacks ‘precision’ (para 46). Nevertheless, the Court is unwilling to render the legislation incompatible with the Convention. It thereby fails to hold the Media Act to a Convention-compatible standard and allows for the Act to continue to be used to suppress free speech.
Judge Albuquerque’s Concurring Opinion
In contrast to the majority, Judge Pinto de Albuquerque directs his concurring opinion at the deficiency of the Media Act. In one of his last contributions to the Court he provides a valuable overview of the criticism of Hungary’s Media Act and discusses an alternative Convention-compatible regulatory model.
Judge Albuquerque attributes significantly more weight to the opinions of international experts. Reviewing the concerns raised by the EU, the UN, the OSCE, and the Venice Commission, he concludes that ‘consistent criticism [of sections 12(3) and (4)] should be a primary consideration in assessing the compatibility of the law with Article 10’. Judge Albuquerque goes on to consider the divergent approaches of the domestic courts and argues that since ‘even the relevant authorities did not have a clear understanding of what the law called for, it is safe to conclude that the law was not formulated with sufficient precision’.
Judge Albuquerque is critical of the majority’s artificial distinction between the underlying legislation and the domestic courts’ interpretation of that legislation. He argues that ‘the fact that [ATV] could not foresee that the term ‘far-right’ would be construed as an opinion stems precisely from the lack of clarity in the law’. The law thus lacks the necessary foreseeability to be prescribed by law and the interference with Article 10 is therefore not justified.
Judge Albuquerque proceeds to argue against any form of state regulation of the media. He advises that the ‘Convention-compatible way for the State to fulfil its positive obligations regarding media freedom is either to opt for a self-regulatory model or to adopt a co-regulatory model’. Where the majority undertakes a disappointingly narrow analysis by refusing to rule on the Convention-compatibility of sections 12(3) and (4), Judge Albuquerque goes well beyond the facts before him, concluding that ‘heavy-handed State regulation is not suitable for regulating the media’.
This case provided the first opportunity for the Court to engage with the regulation of journalistic objectivity, and specifically the fact-opinion distinction. This distinction is not unprecedented and is indeed well recognized across the journalistic profession. For example, The Irish Times states that ‘[…] comment and opinion […] shall be identifiable from fact.’ The Parliamentary Assembly of the Council of Europe further underlined the distinction as one of the pillars of ethical journalism; its 1993 Resolution on the Ethics of Journalism states that ‘the basic principle of any ethical consideration of journalism is that a clear distinction must be drawn between news and opinion.’ The legislative enforcement of the distinction is also seen in the domestic law of other member states. For example, the UK Communications Act 2003 excludes ‘all expressions of […] opinions of the person providing the [television or radio] service’ where the programme concerns political or industrial controversy or current public policy. Similarly, Germany’s Inter-State Treaty on Broadcasting states that ‘commentary must be clearly separated from reporting and be identified as such by naming the author.’
Given the significance of the fact-opinion distinction for the journalistic profession and the inevitable ambiguity of upholding such a distinction, the Court could have taken the opportunity to consider whether any legislation aiming to enforce a fact-opinion distinction could pass the ‘prescribed by law’ hurdle of Article 10(2). In such an analysis, the Court’s decision would have had ramifications well beyond the Convention-compatibility of the Hungarian Media Law by embroiling legislative instruments from, inter alia, the UK and Germany. Considering the fragility of journalistic independence and the democratic function of the media, a finding that any legislation purporting to enforce the fact-opinion distinction is incompatible with Article 10 would have been welcome. Indeed, the Court could have offered guidance as to the need for a system of self-regulation, or at the very least, co-regulation, of the journalistic profession to guarantee the protection of Article 10.
Alternatively, rather than offering guidance on the compatibility of media legislation across l’espace juridique, the Court could have specifically considered the context of the Hungarian Media Act. The Venice Commission notes that the functionality of a media law depends on the specific political and economic context of each country. In its finding that Hungary’s media law was unsuitable, the Venice Commission considered the ‘quasi-monopoly of the ruling coalition in the political sphere, powers and structure of State regulatory bodies [and the] size and the level of concentration of the media market’ (see page 22 of the judgement). Considering the Venice Commission’s Opinion, the Court could have held that the circumstances of Hungary’s Media Act render the regulation of the fact-opinion distinction either too uncertain to be ‘prescribed by law,’ or too partisan to be ‘necessary in a democratic society.’
Instead, the Court adopted an incoherent approach to the ‘prescribed by law’ hurdle, and failed to take the opportunity to clarify Convention-compatible ways of regulating journalistic objectivity. In the era of ‘fake news’, the Court’s reluctance to offer guidance is troubling. Ultimately, the Court’s finding that an injunction on the use of ‘far-right’ violates Article 10 is welcome. However, the majority’s reluctance to rule on the Convention-compatibility of the Hungarian Media Act is at best puzzling and, at worst, evidence of a reluctance to hold the Hungarian government to account. Orbán’s erosion of the country’s democratic institutions raises serious concern about the protection of human rights. The majority’s unwillingness to send a clear message that Hungary’s legislation falls short and demands reform is disappointing.
*Opinions expressed in this post belong solely to the author.