The Hungarian journalist Judit Bayer has written a blog post on the Hungarian Media Law, which I repost in English (thanks to the Greens in the Hungarian Parliament):

What’s the Problem with the Media Law?[i]
1. The biggest problem of all: print media and online media are both relegated under the supervision of the new Media Authority. Why is this a problem?
a. Freedom of press can only be restricted with a strong reason (any regulation is also a restriction). In the case of electronic media, this reason is the traditional scarcity of available frequencies, the pervasive effect of the media, as well as the fact that it can simultaneously reach a large audience. None of reasons prevail for print and online media. (Even for electronic media the reasons are on the wane, as declared by the European Union’s directive on audiovisual media – suggesting a path towards deregulation.)
b. Press (including online media) has been subject to some general pieces of legislation: protection of good reputation and personal data, prohibition of libel and defamation (which may be penalized by up to two years in prison), etc. It is not true that there would not have been any legal means to step up against any violation of law by the press.
c. Ever since censorship offices discontinued, there have been no press authorities in the civilized world. Only electronic media is supervised by an authority; print press is subject only to courts and general pieces of legislation.
2. It is a problem that the Government applies influence in the Authority, by appointing its Chairman. Members of the Media Council and other officers have been staffed by Fidesz by its own people for a period of nine years, effectively securing its overwhelming control over press according to partisan interest for over two full parliamentary cycles. It is a problem that all offices may be renewed any number of times: independence would be secured by a lack of re-eligibility.
3. The Media Authority has unrestricted powers for the following reasons:
a. It supervises the entire public sphere, which is objectionable due to the reasons listed above.
b. It has too wide powers of investigation (section 155 §). It can demand, view or copy any data, including “secrets protected by law”; it may oblige anyone, including persons who are in contact with the client or any other participant of the procedure (e.g. the witness), to provide data, and “to provide data in a format defined by the Authority, suitable for comparison, as well as provide other forms of information.” If this section was not enough, the following section ensures that in addition the Authority may oblige “any other person or organization to provide data.” The witness may also be questioned for any business secrets, even if he was not released from his non-disclosure obligation. Any such data acquired this way may also be used in other procedures – which is contradictory to the purpose limitation principle of the Data Protection Act. Even this did not make the legislator confident in seamlessly collecting data, therefore even a new chapter title was created: Data provision (section 175). This one repeats that the Media Authority may demand any data from anyone, furthermore it may oblige businesses “to provide data remotely from a supervision system installed on the business’s premises or built in the business’s procedures.” In the event the data provision set out in the Authority’s resolution fails to be performed or is performed non-satisfactorily, the Media Authority may impose a data provision fine, which may amount to HUF fifty million (cca. EUR 180,000) (section 175 (8)).
c. It may carry out procedures of legal dispute between any two media outlets, if any one of them requests such procedure – but the other one does not have any option in such a case. This creates a totally different situation than in the cases of arbitrary cases or self-regulation, while it also deprives the party cited into court of an independent court procedure.
d. All rights pertain to the Media Authority, and no rights pertain to the clients: The Media Authority may summon a public hearing (sections 157 to 158) whenever it sees fit, while participants have no right to initiate. The client is “obliged” to submit a request, whereas the Authority may “oblige” the client to be in contact electronically – even though this is usually made possible as a right. In the case of reconciliation (section 159), three paragraphs provide an itemized list of what the participants have no right to do.
e. The case of authority agreement (section 160): The Media Authority does not act as an authority in this case, unless the client violates the agreement, in which case it will become an authority. This contradicts the effective practice of the Constitutional Court, whereby the authority cannot be a signatory party and the supervisor of the agreement at the same time.
4. Broadcasting and Media Commissioner: (sections 139 to 143) This is contradictory to the Constitution and may have a chilling effect on the freedom of press, because:
a. He/she may investigate cases that are not illegal and do not fall in the Authority’s jurisdiction (section 140). This is contradictory to the principle of rule of law (i.e. whatever is not prohibited by law is allowed).[ii] In effect, he/she may expand the Authority’s jurisdiction to cases that are not governed by law, i.e. practically anything – this is contradictory to the Constitution, specifically Resolution 1/2007 of the Constitutional Court. The Commissioner may initiate a procedure ex officio, which makes any reference to consumers’ interests derisory.
b. The Commissioner and all his/her colleagues are appointed and dismissed by the Chairman, who also approves of the Commissioner’s agenda. His/her budget operates within the Authority (section 139). He/she reports quarterly to the Chairman and the Media Council (section 143). He/she notifies the Chairman of the outcome of issues, “with a special focus on the media provider’s behavior and willingness to cooperate” (section 142 (9)). Therefore the Commissioner is not an independent legal institution; in fact, he/she is dependent on the Chairman, practically the Chairman’s extension, who may harass and pester the participants of the media market even if no violation of the law happened.
c. Although the commissioner has no jurisdiction, at least in theory, yet he/she will possess a wide scope of authority to conduct investigations, the same as those of the Authority (section 142)[iii]. He/she may even request classified information and, if the provider fails to provide the requested information within fifteen days or provides insufficient or false information, the Authority, when prompted by the Commissioner, may impose fines up to HUF fifty million (cca. EUR 180,000) (sections 142 (2) to 175 (8)). (As a reminder: the Commissioner is investigating a matter that is not illegal!)
5. Due to the “reform” of the public service media, the new organizational system will contradict the Constitution and the legal practices of the European Commission because:
a. The media production and budgeting are not monitored by an independent authority, since these are carried out by the Foundation. The Advisory Board, the Public Service Body and the Supervisory Committees of the “Zrt’s” (private companies limited by shares) are no longer justified. Therefore, the principles of the Public Service Announcement of the European Commission (2001 and 2009) are not fulfilled; according to which the government funding of the public service broadcasters is permitted only if the tasks are clearly defined, to which the funding is customized, and an independent body monitors whether the task is completed and the budget is kept within the limits necessary for the completion of such task.
b. The fact that MTI (Hungarian News Agency) provides news free of charge puts other news agencies at a serious disadvantage in the competition, and it does so by using government funding, which is in violation of the European Union’s rules on competition and should only be possible under the rigorous terms outlined above.
c. According to Resolution 37/1992 and 22/1999 of the Constitutional Court, significant and material influence of the government and the parties in the radio and television is unconstitutional. (Just like that of the Parliament, therefore the fact that the Advisory Board consists of only Parliamentary delegates is also unconstitutional.) Regarding the media regulation, this Resolution stated that it was “unconstitutional due to the lack of guarantees against government influence.” The same can be said about the recently passed law as well.
d. Since the Foundation is managed by the Media Council (section 136 (6)) and its CEO and supervisory board are appointed and dismissed by the Chairman, the influence by the government and by Fidesz is evident.
6. A balance within each program is to be ensured (Section 12 (2)) which is, as we all know, impossible, unnecessary and so far unknown to media theory. Media theory recognizes internal and external pluralism, where internal means that each channel must be balanced. But even this cannot be ensured, for there are those well-known biased media providers; which, in the age of information society, is not objectionable until the external pluralism is achieved; that is, until all media are to serve a single political scenario. Currently, due to the effects of this very act, this danger is imminent.
7. The protection of the resources has, in fact, become more limited than before; since so far the Act on Criminal Procedures allowed for the refusal of witness testimony by those who are otherwise obliged to confidentiality by their rules of employment. Pursuant to Section 6 of Act 104 of 2010 (Smtv by its Hungarian acronym), dubbed “Media Constitution,” however, the “court or the authority” – the Media Authority included – may require journalists to reveal their sources, “in the interest of protecting national security and public order, or in the interest of investigating or preventing crimes.” All of these interests, primarily the one “to prevent crimes,” are the most ambiguous legal categories ever, therefore they do not represent any guarantees whatsoever in the protection of sources!
8. Procedural fine (Section 156): The very concept itself is objectionable, so is its extent and the terms of imposing it. It can be imposed not only against the client subject to the procedure but also against any other participant in the procedure and other persons who are obliged to cooperate; in cases that are not clearly defined; when exhibiting conduct that is aimed at the prolongation of the procedure, the prevention of uncovering the true facts, or even if their conduct can potentially have such result. This wording is far too loose for imposing a fine of HUF fifty million (or HUF one million in the case of a private individual).
9. In the case of an extraordinary event or state of emergency, etc. “disclosure of certain announcements or programs may be prohibited” (by the Parliament, the Council of National Defense, the President of the Republic and the Government, section 15). In other words, not only can they require the disclosure of certain public announcements, free of charge, on a particular existing condition in a format and at a time as they seem fit, but they can also prohibit programs; why is this necessary? A state of emergency can be in place at the time of a flood – which is very frequent in Hungary.
10. The planned extraterritorial effect will not achieve the aim to act against “kuruc.info” (extremist news portal) or similar portals. No matter if they claim jurisdiction if the other country does not recognize it and does not provide legal assistance. The Hungarian state, let alone one authority, cannot take legislative measures in a foreign country; the cooperation by the other country is necessary for this. In this regard, the act does not bring any improvement compared to the current situation.
11. Considerably limits the framework of co-regulation; if the Media Council believes that the self-regulatory organization’s procedure fails to comply with the law or the contract concluded between the Authority and the self-regulatory organization, or if it is unable to implement it, then it will initiate proceedings where it is not bound by the self-regulatory organization’s procedure and decision (section 198 (2)). The Media Council continuously monitors and supervises the self-regulatory organization (section 200) and may require data submission. It may evaluate its decisions separately or jointly. If it fails to act or acts in an inappropriate manner, they terminate the contract (section 195), initiates proceedings in the matters (sections 196, 198 (2)).
12. It is a legislative error that the relationship between Smtv and the Media Act (Mtv) is unclear; Smtv is only an amendment law, which is therefore not included in the public database of laws (www.magyarorszag.hu), but is regularly referred to by the Mtv since sections 13 to 20 of Smtv have not been incorporated anywhere.
13. There is contradiction in an important issue between Mtv and Smtv; the latter requires the printed press as well to impart (provide) information, while Mtv only covers media providers. However, pursuant to section 181 (c) of Mtv the Media Authority is to monitor compliance with the provisions of sections 13-20 of Smtv. Section 13 of Smtv requires “authentic, swift and accurate information” to be provided by all of media content providers.
14. Sections 13 to 20 of Smtv contain contextual rules that are objectionable in more than one respect.
a. Obligation to provide information: where there is freedom of press, the press has no such obligation. Perhaps the public television does. Expressions such as “in a multi-faceted, factual, objective, balanced manner” were already impossible to interpret even in the act currently in effect; they lead to arbitrary and unpredictable application of law.
b. The prohibition against stirring up hatred against “persons, nations, communities; national, ethnic, language and other minorities, or any majority, or church or religious group” leaves the scope of protected objects rather vague (section 17 (1)). It cannot be justified why any community, majority and the churches belong here, some of which are power structures and some are social structures just like any other. The situation only gets worse in the next paragraph, according to which even the implied offense of these is considered unlawful (section 17 (2)). Accordingly, any medium is at risk that publishes critical opinion on, for instance, the politics of a country, any type of community, the Catholic church or the church of Scientology, for that matter. By protecting any minority or any majority, the law in fact covers everything and everyone; therefore, no one and nothing can be implicitly offended – this makes it completely impossible to express one’s opinion.
15. It is in violation of the legislative rules of a legal state to pass a law of great significance, which regulates basic rights (freedom of speech and freedom of press) with the omission of public debate. It is clearly the deliberate avoidance of warranty rules of legislation that the bill was introduced as a MP’s proposal, rather than following the official route for draft legislation by the government.
16. Why is it evident that the goal is in fact the curtailment of the freedom of press, and that this law cannot be interpreted “in good faith”?
a. Because the act was passed while disregarding the legal rules for legislation and violating the principle of democracy;
b. Because the act at several points contradicts the Constitution of the Republic of Hungary and its constitutional practice, the laws of the European Union, and the international human rights principle and its documents;

[i] Paragraph 3c corrected. This opinion is non-exhaustive as it only examines the discrepancies in the act from the constitutional point of view. Further objections can be raised on the issues related to the significant market position, the ownership concentration and the program production in the public service medium.

[ii] “in the event of detecting conduct that is not considered a violation of a rule pertaining to media services or electronic telecommunication services or is outside of the jurisdiction of the Media Council, the President and the Authority, but results or may result in the injury to reasonable interests of […] users, subscribers, consumers, and viewers or listeners.”

[iii] “may request data, information and statement relevant to the injury to interests, and may apply the provisions of Act 140 of 2004 (“Ket”) for verification, as appropriate; as well other means to clarify the facts, in accordance with the provisions of this Act. The relevant media or telecommunication service provider must provide the Commissioner with the requested data, information or statement within fifteen days, even in the event that such data is classified as a trade secret.”

Der Artikel wurde am am 2. January 2011 um 13:13 Uhr geschrieben und unter Blog, Demokratie, Europa, Innen & Recht abgelegt. Kommentare lassen sich mit dem RSS 2.0 Feed verfolgen. Sie können ein Kommentar schreiben, oder einen Trackback von Ihrer eigenen Seite senden.