June 20, 2012

Dr. Márton Nehéz-Posony

Dr. Márton Nehéz-Posony
Legal Representative of the Hungarian Association of Journalists;
Expert in media- and press law

After sparking heated debates and strong criticism throughout the European Union with its Orwellian media legislature, the Hungarian Government seemingly gave in to EU demands and did propose some amendments in April, which the ruling party eventually voted for, following not too much deliberation. Still, the Hungarian Media Law raises grave concerns in believers in freedom of speech, some of which have not received the public attention they deserve.

For the sake of clarity, let us distinguish between the two pieces of legislation in question. The so-called Media Act (Act CIV of 2010, often but baselessly referred to as the “Media Constitution”) outlines the basic and substantial rules of media content. The other act (Act CLXXXV of 2010) focuses on the institutional and procedural matters of mass media, including its supervision. This act will hereinafter be referred to as the Media Supervision Act. Both acts were revised in April 2011, following widespread criticism from EU capitals and civil rights groups.

One of the most controversial provisions in the Media Act was the one providing for balanced information, since, in the original version, it would have applied not only to linear but also to on-demand content providers. The amendment has excluded on-demand services from this obligation, they, therefore, are not required to provide balanced information any longer. However, the legislation in question, Article 13 of the Media Act, still contains a provision that should sound alarms in protectors of press freedom, yet it remained in effect virtually unnoticed. The article requires that information not only be balanced, but also “comprehensive”: content providers involved in informing the public are required to provide up-to-date information on events and matters in dispute relevant to the citizens of Hungary and to ethnic Hungarians. The practical question is: who will decide what is relevant? Is it going to be an editor or the media authority? Even under the modified regulation, this requirement will apply not only to TVs and radios operating on frequencies, but also to those providing live services over the internet.

The second issue raised by critics was the broadness of the requirement of content providers to register in advance with the media authority, outlined in Articles 41-44 and 185-189 of the Media Supervision Act. EU Commission Vice President Neelie Kroes specifically questioned whether such a requirement is justifiable in the case of internet sites and the printed press. The Hungarian Government’s proposal tried to address this issue as well. Under the amendment, registration of on-demand content providers and the printed press is no longer compulsory in advance, but they have 60 days upon commencing their services to register while this certainly is some progress, there are still several other provisions of the law, which remain untouched, that raise the same question of justifiable limitations. First of all, a failure to register will result in a fine up to approximately 4,000 EUR. This threat by the law may be viewed as an administrative obstacle to the provision of services and makes the registration a de facto permission process. The purpose of this regulation could be achieved by a requirement to constantly inform the public about the content provider’s basic data (its principal address, the editor-in-chief, etc.). The other problem the legislation raises, which also has not received much public attention, is the scope of data to be provided during the registration. Linear content providers, even those not airing on frequencies, are required to provide data on the planned number of subscribers, the planned structure of their programming, the planned amount of time to broadcast news, public service programmes and programmes to serve ethnic minorities. This information seems to be unnecessary to be submitted to the authority, especially if they do not have any legal relevance. Similar to the problem of registration is the problem of a fee to be paid by linear service providers. Under the current regulation, this applies not only to TVs and radios in the air, but also to linear services over the internet, although they do not use resources owned by the state (the frequencies). If you receive nothing in return for your payment, that looks awfully like a tax. Still, the amount of the fee is not stated in the law, but it will be determined by the media authority, which in the case of internet-based content providers, makes the fee incalculable, thereby infringing upon the rule of law.

Most of the controversy lay in the powers of the media authority, the president and board members, of which are solely appointed by the ruling party. The media authority is responsible to oversee compliance with the provisions of media-related legislation. Since Articles 14, 16 and 18 of the Media Act provide for the protection of individual rights such as human dignity (which in the interpretation of the Hungarian Constitutional Court is the mother of all individual rights like the protection of reputation) or privacy, and since Article 167 of the Media Supervision Act makes it the obligation of the media authority to enforce provisions of both acts, it is very easy to come to the conclusion that this legislation creates an administrative procedure to protect individual rights, whereas they should exclusively be ruled upon by courts.

Moreover, under Articles 155 and 156 of the Media Supervision Act, in enforcing these rights and supervising content providers, the authority is entitled to examine all kinds of documents and devices carrying data related to the content providers’ activities, including confidential information and business data. The obligation to provide the authority with information is imposed on a wide array of subjects, who also face fines up to approximately 100,000 EUR if they fail to comply. In the scope of the matters to be investigated by the media authority, however, these powers are disproportionately broad.

Article 187 of the Media Supervision Act outlines the system of sanctions the authority may impose on content providers. One of them is the erasure of the provider, which results in the obligation of stopping their transmission by technical providers. Another sanction is an obligation to publish a communiqué set out in the authority’s ruling. If the content provider fails to comply, technical providers are also required to suspend their transmission. There seems to be no need to comment on these ones, lest someone finds it harmful and submits a complaint to the media authority.

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