Hungary's Parliament passed the new Media Law on December 21, 2010, despite international criticism that the legislation is tantamount to state censorship. Opponents complain the legislation renders journalists vulnerable to intimidation from Prime Minister Viktor Orbán's administration, primarily because it empowers authorities to impose heavy fines on news outlets for vague infractions such as "infringing on human dignity." Critics include Hungarian and foreign journalists, political groups, civil organizations, the governments of EU member states and the Organization for Security and Cooperation in Europe.
Hungarian President Pál Schmitt signed the Media Law in late December and it went into force on January 1. Yet international condemnation has been so forceful that members of the governing Fidesz party have begun vigorously defending the legislation -- a stark departure from their usual practice of refusing to explain or justify their policies. They say the law is entirely within European standards and critics misunderstand its true nature.
No single passage of the Media Law is particularly odious on its own; indeed, other countries have similar media regulations. The problem arises when all the passages are taken together as a whole. The law authorizes a single authority (composed solely of Fidesz's hand-picked associates) to regulate, investigate and take disciplinary action against media outlets. The wording of the rules is vague and the regulations apply to all media outlets with little regard for the idiosyncrasies inherent in each type of media. The net impact is that the government has broad discretion to supervise the Hungarian media as it sees fit.
The following analysis examines the Media Law (which is actually two separate, but mutually reinforcing laws), explores the arguments for and against the legislation, and summarizes the legislation's most important points.
- The passage of the Media Law has touched off the biggest and most impassioned political controversy that the Orbán government has faced since taking power last May. This represents the first real issue that the left-wing opposition can use to bolster its position against Fidesz; however, its domestic ramifications go far beyond simple of party politics.
- Western criticism of the Media Law has fired up the deepest ideological and cultural debate in Hungarian public life: The rural-urban conflict. This argument, more than 100 years old, plays out between western-oriented, cosmopolitan intellectuals on one side and nationalist, traditionalist, pastoral intellectuals on the other. The conflict was largely dormant during the state socialist era, but came back to life after 1990; it has been a cornerstone of Hungarian political debate ever since. The urbanist mentality currently finds its strongest adherents in Hungary's liberal-left opposition; Fidesz's members tend to espouse the ruralist worldview.
- Members of Fidesz are now accusing their opponents of giving too much credence to Western criticism of the Media Law. Orbán initially couched his defense of the law in terms that appeal directly to the traditionalist mentality: "We are not frightened by a bit of criticism, or even a lot of criticism, from western Europe or even beyond," he said in a December 23 interview with Hungary's HírTV. Amending the law "would be characteristic of a country that suffers from a lack of self-confidence, and that's not us," he added.
- Such comments may galvanize Fidesz's "core” traditionalist voters, but less committed right-wing voters will be disillusioned by the government's handling of the issue internationally. Hungary's liberal left therefore stands to gain the most from controversy surrounding the Media Law (as well as other measures that have raised questions about Orbán's commitment to democracy).
- However, is unclear whether Hungary's parliamentary opposition parties will be able to turn the fracas into political capital. The Hungarian Socialist Party (MSZP), the greenish-leftish Politics Can Be Different (LMP) and the ultra-right Jobbik are presently fragmented by in-fighting; they have offered but a feeble response to the Fidesz's press laws.
- The most vocal and influential protests against the Media Law have come from representatives of Hungary's politically independent civil sector. The legislation may therefore open an opportunity for a new liberal-left political formation to challenge Fidesz from outside Parliament.
- The government is sticking to its position that the Media Law is good, necessary, and in line with European values and regulations.
- The Media Law has galvanized a large part of Hungary's press corps against the government -- that is, journalists who do not work at press outlets that are indirectly controlled by Fidesz.
- The media law is not responsible for the current situation in Hungarian media, where press outlets serve as party mouthpieces and journalists succumb to political pressure. This situation is rather the result of Hungary's political culture over the past 20 years (the effects are especially visible in the public-service media).
Foreign Policy Impact
- Neither the Hungarian government nor the European Commission wants a major conflict during Hungary's tenure as EU president. After a bad start, both sides have a vested interest in the Hungarian presidency's success. For this reason, the EU is unlikely to issue any kind of reprimand or sanction against Hungary in relation to the Media Law for the next six months.
- Hungary's international prestige has been significantly tarnished.
- Foreign governments' views on the Media Law appear to be linked to their feelings about Fidesz's "crisis taxes" -- surtaxes on the financial sector, energy companies, chain stores and telecoms. The Media Law's strongest foreign critics can be found in countries whose companies were hit hardest by the crisis taxes.
- The media regulations are highly "value-laden," a fact that its authors acknowledge.
- The law's objective is partly to strengthen the government's conservative-Christian views in the media. The legislation also seeks to strengthen the state's ability to regulate the press, a goal that Orbán has held dear since his first government in 1998-2002.
- The law is a good example of Fidesz's law-and-order ideology: Individual liberty and private interests take a back seat to public order and public interests.
- The law is underpinned by the conviction that the state is responsible for ensuring that the press performs a democratic and cultural duty in society (keeping people informed, promoting culture, education and development).
- Parliament passed the law without consulting social and professional groups or other political parties. This partly explains the "incendiary" reaction to the law.
- The nebulous wording of the legislation has created a sense of insecurity among journalists, making them wary of publishing "risky" content. The inexactitude also opens the opportunity for numerous abuses by authorities.
- The new law applies to all types of media without regard for the idiosyncrasies inherent in each particular medium (print, television, radio, blogosphere, etc.).
- The law also creates a centralized mechanism for newsgathering at Hungary's public-service media outlets. This may foster a "unitary" approach at state-owned broadcasters, endangering the diversity of opinions and information that is available.
Components of the Media Legislation
The Media Law consists of two pieces of legislation -- the Act on Freedom of the Press and Fundamental Rules on Media Content1 and the Act on Media Services and Mass Media.2 These have numerous features in common:
- Both laws were sponsored by individual Fidesz MPs, not the government. This legislative manoeuvre made it possible for Fidesz to pass the bills on an expedited basis, without consulting stakeholders or debating the law's provisions with journalists.
- The law uses the term ‘Media Product,’ which is an unusually broad legal definition. It refers not only to the printed press and broadcast, but to online content as well. Legal analysts say the terminology is not clear enough.
- The legislation applies to all media services and products that can be “consumed” in Hungary, regardless of where the media provider is located. Some analysts say EU law prohibits any member state from extending its domestic laws over other countries' media.
Act on Freedom of the Press and Fundamental Rules on Media Content
The first part of the law, passed on November 2, 2010, is sometimes called the "Media Constitution." It contains the following provisions:
- Media content must not damage public morality (Article 4)
- No one may publish media content in Hungary without registering at the National Media and Info-Communications Authority (NMHH), the new state media regulator (Article 5).
- This obligation applies not only to television and radio stations, but also to the online and printed press, according to the Act on Media Services and Mass Media.
- The act guarantees journalists' right to protect their sources, but this right is heavily qualified. Hungarian courts or authorities can force journalists to reveal their sources "in exceptionally justified cases" relating to crime prevention, public order or national security. Authorities enjoy broad discretion to determine what qualifies as "extraordinary." (Article 6)
- The act guarantees "professional independence from the owner of the media content provider" for journalists and editors, and also prohibits commercial sponsors from pressuring media workers. (Article 7)
- Journalists cannot be prosecuted for violating the law in the process of obtaining information of "public interest," so long as the information could not have been obtained through legal methods. The passage contains a clawback provision: There is no protection for journalists who reveal "qualified data." (Article 8)
- The act contains the following provisions on media conduct:
- All media content providers are obliged to inform the public in an honest, speedy and accurate manner about local, national and European issues, as well as events of interest to Hungarian citizens and "members of the Hungarian nation" (ethnic Hungarians in other countries). (Article 13 (1))
- News outlets that are either "linear" (scheduled programming) or "on-demand" (users choose what to watch and when) are required to report on local and national events of high interest to the public. This includes events from around Europe, public debates, and events that may concern Hungarians, both in Hungary and beyond its borders. (Article 13 (2))
- Broadcast news reports must be factual, timely, objective and balanced. (Article 13 (2)) Authorities may determine what qualifies as objective and balanced.
- Media content providers must respect human dignity, the constitutional order of Hungary and must not breach human rights. (Articles 14 and 16)
- Prohibition of hate speech: Media content must not "incite hatred" against any minorities, majority populations or religious groups (Article 17)
- Article 17 is an example of a vague definition: It prohibits potentially offensive news. Anyone who feels humiliated by a news report can thus file a complaint.
- Media content cannot constitute an invasion of privacy. (Article 18)
- Media content must respect the healthy development of minors. (Article 19)
Act on Media Services and Mass Media
This act, passed December 21, 2010, garnered sharp criticism from civil liberties advocates (Amnesty International, Hungarian Civil Liberties Union), journalists in Hungary and abroad, international organizations (OSCE, Council of Europe) and governments of EU member states such as Germany, France, Luxembourg and the Czech Republic. Some charge that the Media Law violates EU principles and OSCE standards for press freedom.
The following lists the items in the Media Services and Mass Media law that have fueled the accusations of state censorship:
- The law allows the government to control the state media regulator (NMHH). Fidesz used its two-thirds parliamentary majority to appoint all five members of the Media Council (Médiatanács), the NMHH's executive board. These officials were named without consulting stakeholders and without parliamentary scrutiny; the opposition is not represented on the council.
- The NMHH's president is a political partisan, not an objective and dispassionate public servant. Naming the media authority's president is the prerogative of the prime minister. Orbán played directly into his critics' hands by naming Fidesz stalwart Annamária Szalai to the post. Moreover, critics charge that the NMHH's president's nine-year term is far too long.
- The regulations apply to all types of media across the board. The same rules apply to newspapers, Internet sites, blogs and foreign media available in Hungary. Such one-size-fits-all regulations may be out of synch with EU law, critics say.
- The law's language is vague, which gives regulators a wide scope for interpretation and action.
- Too much power in too few hands. The Media Council is the supervisor, regulator and disciplinarian of the Hungarian media all at once. Such a concentration of regulatory power is unprecedented in European democracies.
- Journalists fear for their livelihoods. The NMHH has the power to sanction private media outlets deemed to have violated the Media Law. Fines range from a maximum of HUF 10 million (€36,700) for weekly publications to HUF 200 million (€734,100) for broadcasters; media company executives are subject to a personal fine of up to HUF 2 million.
- The fines are severe enough to put a media outlet out of business. The government can thus exert pressure on Hungarian media by encouraging self-censorship for self-preservation.
- The vague wording of the regulations allows the NMHH to assess sanctions in an arbitrary and capricious manner.
- In extreme cases, NMHH can de-register a media service, effectively banning it from the country.
- Threat of harassment. Media outlets may be subject to constant badgering by the Media and Telecommunications Commissioner, the Media Council’s authority for investigating public complaints that do not constitute a bona-fide breach of the law. (The current commissioner is Péter Takács).
- The threshold for the commissioner to launch proceedings against a media outlet is "harm to interests." Media-law experts say this is not a legally valid term: Any action that is not prohibited by law is permissible, whether or not it hurts somebody's interests.
- Public-service media becomes government-service media. Free press advocates worry that journalists will be under Fidesz's thumb at all four branches of Hungary's public-service media (state television, state radio, Duna television and state news agency MTI).
- The law has created the Public Service Foundation (Közszolgálati Közalapítvány), which will be responsible for managing all public-service media outlets. The foundation's executive council, dominated by delegates from the "governing coalition" (Fidesz and the Christian Democratic People's Party (KDNP), a subgroup of Fidesz that has formed its own caucus in Parliament), picked new directors for each public-service media outlet without asking for applications. This has invited accusations of political cronyism.
- Enforced balance. All news must be reported in a "balanced" manner.
- "Balance" was also a requirement of the old Media Law; however, no state authority was entitled to investigate infractions and violators were not subject to sanctions. Under the new law, "unbalanced" media cannot be fined, but they must publicly declare their transgressions in a manner prescribed by the NMHH.
- Less time for crime. The law restricts the amount of time that broadcasters can devote to crime stories. The cumulative length of all crime reports in a given year may not exceed 20% of total broadcast news time. Critics point to this as a clear example of state interference in editorial decision-making.
- Invasive, and possibly abusive. The powers granted to the media authorities are exorbitant and their scope is worryingly broad, the critics say. For example, authorities have the right to probe into media outlets' private business matters, but there is no clear guidance as to what might justify such invasive actions. It is also information culled from one investigation can then be used as evidence in another case.
The Government’s Reply to the Criticism
The Orbán administration has published two documents explaining its intentions and its new regulations:
- "Criticisms and answers formulated on the subject of the proposed media act examined in a European context,"3 a newsletter published under the aegis of the Ministry of Public Administration and Justice, available on the website of the Hungarian Embassy in Berlin.
- "Reply to the criticism expressed by the international media against the media act,"4 published January 3 on the government spokeswoman's website.
Summary of the government's response:
- The new act does not create an across-the-board set of regulations covering print media, the online press, television and radio. The law requires print and online media to observe just a handful of regulations that are common to most European countries; moreover, the rules governing the broadcast media are fully in line with relevant European Union standards.
- The prohibition on offending human dignity is not a tool that overly sensitive politicians can use to press claims against the media; in such cases, general civil and criminal law procedures apply. If an offense against human dignity is established, the media authority will not make a decision on the infringement of individual rights; rather, it will assess whether the specific media content fundamentally violates the basic values constituting the right to dignity, as construed by general social consensus, to such an extent that the violation stretches beyond the mere offense of individual interests and affects public interest as well.
- The provision for taking action against foreign-based media outlets is nearly identical with provisions in the EU directive on audiovisual media services, as well as the rules of the Treaty on the Functioning of the European Union.
- The law prohibits the Media Council from taking action against individual journalists, and authorities cannot force reporters to reveal their sources.
- Contrary to previous regulation, the new legislation imposes sanctions on an individual media outlet, not the parent group. If a company has several broadcasters, and one gets shut down, its other broadcasters can remain in business.
- The law’s scope does not cover blogs, even if they serve as vehicles for mass media, because they are not considered business operations.
- Here, state officials are apparently not on the same page: Media Council member András Koltay told journalists that for the time being it is not clear which types of media must register with the NMHH. Moreover, the law does not require authorities to clarify the questions surrounding the regulation of print and online media until June 30. The NMHH still needs to decide when a blog qualifies as a business operation.
Summary of the Act on Media Services and Mass Media
The following is a summary of the most important regulations in the Media Act.
Scope of the Regulations
- The basic rules apply to all kinds of media, except for the stipulations on "balanced dissemination of news," which applies only to linear and on-demand media. (Article 12 (2); s. also Article 13 (2) of the Act on Freedom of the Press and Fundamental Rules on Media Content)
- The law uses the definition ‘Media Product’ (Article 203 (60)), which is an unusually broad and unclear legal definition. It refers to not only the printed press, but to online content as well. The wording suggests that scope of the law encompasses not only news sites, but private websites that are financed by advertisements (e.g. regularly edited blogs that operate in near-newspaper fashion).
The law lists three criteria for determining what qualifies as a "media product:"
- the medium's main purpose is to provide content that seeks to inform, entertain or educate the general public;
- someone bears editorial responsibility for the content;
- a minimal business interest is required.
Regulation and supervision of public-service media
Public Service Foundation
- The public-service media is supervised by the Public Service Foundation and its Board of Trustees. (Article 90, 85 and 84). The foundation is responsible for guaranteeing the public-service media's independence.
- The Board of Trustees consists of eight members, six of whom are elected by a two-thirds majority vote in Parliament. Governing-party caucuses nominate three members, opposition caucuses nominate three members, and the Media Council names two members (one of whom is the chairman of the Board of Trustees). All members serve for a term of nine years. (Article 86)
- The Public Service Foundation is owned by Hungary's public-service media companies (Article 84). These are:
- Magyar Televízió Zrt. (MTV)
- Duna Televízió Zrt.
- Magyar Rádió Zrt.
- Magyar Távirati Iroda Zrt. (MTI)
Media Service Promotion and Asset Management Fund
- All ownership rights and obligations associated with public-service media assets will be exercised by the Media Service Promotion and Asset Management Fund (Article 100 (1))
- The Fund is responsible for:
- promoting the structural transformation of public media services, the Public Foundation for Public Service Media, community media services and public media service providers
- production and production support for public service programs
- supporting contemporary music and motion pictures
- fostering the careful management and expansion of the properties
- promoting and implementing other activities related to the above. (Article 136 (1))
- The president of the Media Council exercises the full range of employer’s rights over the fund’s general director. (Article 136 (11))
National News Agency
- Tasks of the national news agency (MTI):
- to provide access to all news items and news reports of interest to the public
- to produce news programs within its exclusive right for other public service broadcasters. MTI operates an integrated news hub for public service broadcasters, as well as offering other online press products and downloadable media services. (Article 101 (1) and (4))
General Directors of Public Service broadcaster
- Hungary's public-service broadcasters (state television, state radio, Duna TV) will each be headed by a general director, not a board of directors. (Article 102 (1))
- The Public-Service Foundation's Board of Trustees will exercise employer’s rights over the general directors of public service broadcasters. (Article 102 (2))
- General directors are nominated by the chairman of the Media Council and are confirmed by the Board of Trustees by a two-thirds majority vote. (Article 102 (2))
Supervision of Media Services and Press Products
The National Media and Info-Communications Authority (NMHH)
- The NMHH is responsible for:
- ensuring the smooth and effective functioning and development of the telecommunications market
- safeguarding the interests of the telecommunication sector companies and users
- fostering the development and maintenance of fair and efficient competition within the electronic communications sector
- monitoring the behaviour of telecommunication entities as well as individuals. (Article 109 (5))
- The NMHH monitors service providers whether media-service providers are fulfilling their legal obligations. The authority takes action in connection with any breaches of telecommunications rules. (Article 110)
- The NMHH files an annual report on its activities to Parliament. (Article 109 (4))
- The NMHH president represents the authority, particularly when dealing with the European Commission or regulatory authorities from member states (Article 111 (2 h)).
- The NMHH president is appointed by the Prime Minister for a term of nine years. (Article 111 (3))
The Media Council
- The Media Council is an independent body of the NMHH that reports to Parliament. (Article 123 (1))
- The Media Council and its members are solely subject to Hungarian law and may not be instructed with respect to the fulfilment of their official duties. (Article 123 (2))
- Four members of the Media Council are elected by Parliament by a two-thirds majority vote. They serve a term of nine years. (Article 124)
- The NMHH president, who is appointed by the Prime Minister, automatically becomes the president of the Media Council. (Article 125)
- The Media Council:
- oversees and guarantees the freedom of press in accordance with the law.
- ensures the bidding process for broadcasting titles and evaluates tender bids
- performs supervisory tasks and controls prescribed by law. (Article 132)
National Media and Info-Communications Authority (NMHH): Structure
Source: Law LXXXII of 2010,5 HVG
Media and Telecommunications Commissioner
The law introduces the institution of the Media and Telecommunications Commissioner. This office is responsible for dealing with situations where a media provider has done something that "may be suitable for causing a damage to the equitable interests" of consumers, but does not constitute an actual violation of the Media Law. (Article 139)
- Individuals can submit a complaint to the commissioner in cases where media content "damages their interests," or threatens to do so. Consumer-advocacy groups can also submit complaints in cases where the offending media content affects a large number of people. (Article 140)
- The proceedings of the commissioner do not constitute an official procedure. The commissioner does not have the right to exercise the powers vested in the authorities and may not pass a resolution in an official matter. (Article 141)
- The commissioner is empowered to request data from particular media provider even if the data constitutes a "business secret." (Article 142 (1))
- In exercising his duties, the commissioner will seek to resolve complaints against a media outlet by fostering mutual understanding and reaching voluntary agreements. (Article 142 (7))
Procedures of the Media Council and the Office of the Authority
- Anyone can submit a complaint to the Media Council in connection with a violation of the Media Law's provisions.
- Complaints to the Media Council must pertain to a violation of a law that falls under the NMHH's jurisdiction. (Article 149)
- The complainant cannot appeal a Media Council decision. (Article 145)
- The Media Council may examine a media provider's data, including business secrets.
- "The authority shall have the right to inspect, examine and make duplicates and extracts on any and all data, media that contains data, documents and deeds related to the media-service provision, publication or broadcasting, even if these data contain secrets protected by law." (Article 155 (2))
- There is no mechanism to appeal a Media Council ruling at the NMHH level.
- Official Media Council decisions may be challenged in a court of law by a complainant or media outlet that is affected by the decision. (Article 163 (1))
- The Media Council's decision will be executed regardless of any appeal in a court of law, unless the court suspends the execution of the Media Council's decision. (Article 163 (3))
- The Media Council's rulings are not subject to judicial review. (Article 163 (6))
- Basis of sanctions: The rules that form the basis for the NMHH to impose sanctions against media services and providers are not defined in the Act on Media Services and Mass Media. They are listed in the Sections 4 and 13-20 of the Act on the Freedom of the Press and the General Rules on Media Content (the so-called Media Constitution).
- In applying the legal punishment, the Media Council and the NMHH — under the principle of equal treatment — must act in line with the principles of progressivity and proportionality. (Article 185 (2))
- When the infringement is of minor significance and there is no repeat offense, the Media Council or NMHH may simply request that the offender cease and desist its unlawful conduct. (Article 186 (1))
- In case of repeated infringements, the Media Council or NMHH may impose a fine not to exceed HUF 2 million (€7,340) on the senior officer of a media outlet. (Article 187 (1))
- The Media Council or NMHH may exclude an offending media outlet from participating in certain state tenders for a fixed period of time.
- The Media Council or NMHH may impose a fine on offending media outlets with the following limits:
- in a case of infringement by a media service provider with significant powers of influence (broadcast): maximum HUF 200 million (€734,100)
- in a case involving any other media service provider: maximum HUF 50 million (€183,400)
- for newspapers with nationwide distribution: maximum HUF 25 million (€91,700)
- for weekly periodicals with nationwide distribution: maximum HUF 10 million (€36,700)
- for other newspapers: maximum HUF 5 million (€18,120)
- in case of an online media product: maximum HUF 25 million (€91,700)
- in case of a broadcaster: maximum HUF 5 million (€18,340)
- in case of an intermediary service provider: maximum HUF 3 million (€11,000)
- The offender may be obliged to publish a notice about the infringement or the text of the resolution.
- The Media Council or NMHH may suspend a media provider's right to operate for a fixed period of time (from fifteen minutes to one week)
- The Media Council and the Agency may delete the media service from the registry and may terminate its official operating contract with immediate effect. (Article 187)
- In case of infringement of the obligation of balanced communication, no fines can be imposed; rather, the media service provider shall broadcast or publish the NMHH's decision, or the notice defined in the decision, with no right to comment thereon. (Article 181 (5))
1 Act CIV of 2010 on the Freedom of the Press and the General Rules on Media Content, http://www.kim.gov.hu/misc/letoltheto/act_civ_media_content.pdf; original Hungarian text available at http://www.parlament.hu/irom39/00363/00363.pdf
2 Act CLXXXV of 2010 on Media Services and Mass Media, http://www.nmhh.hu/dokumentum.php?cid=25694; original Hungarian text available at http://www.parlament.hu/irom39/01747/01747.pdf