Hungary’s amendments to its media law in March represent a pyrrhic victory for the European Union. Last month the Hungarian government bowed to pressure emanating from the European Commission and enacted changes to harmonise its repressive media law introduced in 2010 in line with EU laws. However these lacklustre measures failed to tackle the structure of Hungary’s politically homogenous Media Council as well as its broad powers of censorship, ability to levy excessive fines, and inadequate mechanisms for judicial review of its decisions.
The 2010 legislation has been reprimanded for instituting disproportionate fines for poorly defined offences. Indeed, it has imposed the rather ambiguous obligation of ‘balanced reporting’ on the media. The socially conservative right-wing government, led by Fidesz’s Victor Orbán, intends to regulate public morality by monitoring the coverage of sex, violence and alcohol. If found to be in violation of the rather imprecise notions of ‘balanced reporting’ and ‘public morality’ by the politicised Media Council, the media now faces stringent penalties. It is feared these fines - which may range up to €90,000 on print and internet media, and more than €700,000 on radio and television broadcasters - may render it impossible for smaller publications to remain in business and the ensuing chilling effect on the press will invariably suppress minority voices and views.
Equally disconcerting is that these heavy fines can only be contested in court after they have been paid, thereby creating a reversal of the burden of proof and establishing a presumption of guilt. Accordingly, the 2010 Mass Media Bill not only impinges on freedom of expression, it also unjustly interferes with the right to access to justice, the right to a fair trial and the right to an effective remedy before national authorities enshrined in Articles 6 and 13 European Convention on Human Rights. The lack of procedural guarantees is scandalous as no recourse to judicial review by an independent and impartial tribunal exists. The Council of Europe’s Commissioner for Human Rights Thomas Hammaberg, in his Opinion on Hungary’s media legislation issued in late February has gone so far as to proclaim that “[t]he absence of an effective domestic remedy against decisions taken by the Media Council is irreconcilable with Articles 6 and 13 ECHR.”
Constituted in 2010, Hungary’s appalling new Media Council is comprised exclusively of government appointees. It serves as a telecommunications authority and watchdog - responsible for both licensing broadcast media and reviewing its content. In a direct attack on investigative journalism, the Media Council can compel the press to reveal its sources, thus contravening established practices relating to the protection of journalistic integrity. Furthermore, the Media Council can impose fines on publishers and suspend the licences of ‘repeat offenders’ and instances of ‘gross’ violations may lead to the refusal of registration.
This snuck-in media law smacks of human rights violations. Free speech is vital to the evolution of the individual and the society as a whole. Freedom of expression is a necessary precondition for the promotion and protection of the freedom of assembly and association as well as the right to political participation. The Human Rights Committee (HRC) proclaims that states must not purport to exercise monopolistic control over the ideas and information disseminated by the media. The HRC outlines that Article 19(2) International Covenant on Civil and Political Rights (ICCPR) in conjunction with Article 25, the right to political participation, establishes a solid foundation for the right of the public to be informed of the policies and practices of the government through the media without any undue censorship.
The Hungarian government claims that the new laws will create a more balanced media. In a populist bid to support indigenous forms of culture, the regulations require that at least fifty percent of the programming must be European and radio stations must have a quarter of their airtime allocated to Hungary music, a position which reflects the current revival of nationalism in Hungary fuelled by right-wing rhetoric. Prime Minister Orbán asserts also that the 2010 Bill will help to combat the wave of racist and anti-Semitic propaganda regularly featured in the news media. As laudable as these intentions may be, the Hungarian government’s approach is ill-conceived and ill-advised.
The new restrictions on the media threaten to undermine freedom of expression, which serves as the lifeblood of democracy. Fears abound that the legislative clampdown on the media is evidence of a greater trend of Orbán’s slide towards authoritarianism. At present, Orbán’s Fidesz enjoys immense support in Hungary, winning 52.73% of the votes and two thirds of the parliamentary majority in the 2010 election. Of late, Fidesz has repealed the constitutional powers of oversight of the Constitutional Court on state spending and developed an unprecedented system of extended 9 year terms for state-appointed officials, including the President of the Media Council.
The controversy has engulfed the EU over the past few months as Hungary presides over the Council of the European Union under its rotational presidency system. Undoubtedly, it has been a great source of embarrassment for the EU, whose members have sworn to promote and protect freedom of expression and information in Article 11 Charter of Fundamental Rights and in Article 10 European Convention on Human Rights (ECHR). Hungary’s draconian media law has elicited much condemnation from many international organisations including the OSCE, the Council of Europe, national and international bodies dedicated to press freedom and a wide cross section of other civil society actors, the European Commission intervened to deliver recommendations.
In its March reforms, undertaken at the behest of the European Union, the Hungarian Parliament substituted the vague prohibition of content that would ‘cause offence’ for the international standard contained in Article 20 ICCPR which bans content that incites racial hatred or discrimination. Unfortunately, this duty of the media not to violate the inordinately broad concept of ‘human dignity’ and ‘public morality’ has gone unchallenged. Perplexingly, the other three of the four amendments adopted were largely cosmetic changes. Instead of removing the onerous fines, their territorial scope was limited to preventing Hungarian authorities from fining broadcasters established in other EU countries. Additionally, the Hungarian Parliament did not abandon the controversial and contentious obligation to provide ‘balanced information’: rather it was restricted to audiovisual media and Internet linear content providers, as opposed to on-demand media such as blogs. Furthermore, the requirement of prior registration was altered as it was deemed to interfere with the internal market rules of EU law. These impotent measures are a far cry from the radical overhaul that is needed to bring Hungarian media law in line with accepted European and international standards.
The world stood in awe in 1956 and later in 1989 as the Hungarian people united to stand up to autocratic rule under successive Communist regimes during which their civil and political rights were stifled. The hard-earned right to freedom of expression, freedom of assembly and freedom of association that has been so crucial to the shaping of modern Hungary must not be discarded now.