On 29 January 2015 the Parliamentary Assembly of the Council of Europe adopted Resolution 2035(2015) where it invited the Venice Commission to “identify the provisions which pose a danger to the right to freedom of expression and information through the media, in the Hungarian Act CLXXXV of 2010 on Media Services and Mass Media, in the Hungarian Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media Content, and in the Hungarian tax laws on progressive tax on advertising revenue for media”.

In 2010 the Hungarian Parliament passed two laws regulating the media sphere: the Media Act (Act CLXXXV of 2010 on Media Services and Mass Media, hereinafter “the Media Act”), restructuring the media regulatory system, and the Press Act (Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules on Media Content, hereinafter the “Press Act”), concerning media content and press regulation. Those laws are often referred to as the “media package”.

The adoption of the “media package” prompted strong criticism within the country and abroad. In particular, in 2011 the Commissioner for Human Rights of the Council of Europe expressed concerns over its effects on media pluralism and free speech.^[1] In 2012 the Council of Europe issued an expert opinion^[2] where it suggested numerous substantial changes to the “media package”. Both the European Parliament and the European Commission raised concerns regarding the conformity of the Hungarian media laws with the Audiovisual Media Services Directive and the acquis communautaire.^[3] The OSCE Representative on Freedom of the Media repeatedly expressed the view that the “media package” violated OSCE media freedom standards, was open to misuse and endangered editorial independence and media pluralism.^[4] Certain criticism has been expressed in the opinions of the Venice Commission which, albeit not touching directly on the legislation at issue, disapproved constitutional amendments related to the media sphere.

Key problems outlined by the international bodies and NGOs included the alleged lack of political independence of the Media Council (the regulatory agency), concentration of powers in the hands of the Media Council, unjustifiably high fines for journalists and media outlets, unclear requirements for content regulation, inadequate protection of journalists’ sources, and the government’s control over the public service media.

II. Scope of the opinion

The 2015 PACE Resolution invited the Venice Commission to detect provisions of the media laws “which pose a danger to the right to freedom of expression and information through the media”. The three legal texts under examination are extremely lengthy, complex and regulate virtually every aspect of the media sphere, and the Commission is commenting only on key elements of the laws which, in its opinion, should be given priority for revision.

The absence of comments on other provisions of the laws should not be seen as a tacit approval of them. First, those other provisions may have been sufficiently covered in the previous documents prepared by other Council of Europe bodies. To the extent that the laws remained unchanged, the observations made by other Council of Europe bodies remain valid and the Venice Commission calls the Hungarian authorities to address them effectively.

Second, certain provisions of the “media package”, although in principle questionable, do not seem to raise particular issues in the Hungarian context, as currently applied. For example, almost total assimilation of electronic to print media, in particular in terms of registration requirements for the latter (Section 5 of the Press Act and Section 41 of the Media Act) may appear excessive and unnecessary, but during the country visit it became clear that those requirements are not considered by the media community as too burdensome. Similarly, provisions concerning exterritorial application of the media laws (Sections 2 and 3 of the Press Act, Sections 176-180 of the Media Act), it seems, have not given rise to any serious dispute. Consequently, such provisions were left outside the purview of the present opinion. Instead, the Commission focused on those elements of the law which have (or may have) important practical effect on the freedom of media in the country.

III. Conclusions

A preliminary general remark is called for. The essence of democratic governance does not stem only from the political will of the people as expressed in free and fair general elections providing a country with a legitimately elected government. It is also reflected in governance which provides democratic space for minorities and alternative points of view. There is no doubt that the government of Hungary is a democratically elected one and enjoys large popular support. Even more so, after the landslide victory of Fidesz in 2010 and until early 2015 the ruling Fidesz/KDNP coalition had a qualified majority of votes in the Parliament – a rare phenomenon for a modern democracy. Such dominant position gives the ruling coalition a broad mandate in various areas but not a carte blanche.[5]

Quite the opposite, where one particular political group has so much political influence, media pluralism and independence of the journalistic profession need special measures of protection. Indeed, as has been often emphasised by the Hungarian authorities, certain legal mechanisms and rules which exist in the Hungarian media law may also be found in the legislation of other European countries. While considering the importance of comparative law, it would be wrong to transpose them mechanically from those countries to Hungary. The specific political and economic context of the country must be taken into account (quasi-monopoly of the ruling coalition in the political sphere, powers and structure of the State regulatory bodies, size and the level of concentration of the media market etc.).[6] Recommendations formulated in this opinion should therefore be read in the specific Hungarian context.

The Venice Commission acknowledges the efforts of the Hungarian government, over the years, to improve on the original text of the two Acts, in line with comments from various observers including the Council of Europe, and positively notes the willingness of the Hungarian authorities to continue the dialogue. That being said, the following issues require revision as a priority, if the Hungarian authorities wish not only to improve the situation with the media freedom in the country, but also change the public perception of media freedom:

- provisions of the Press Act defining illegal media content should integrate the principle of proportionality; the Act should make it clear that not every expression which may be seen as prejudicial to the constitutional order, public morals, dignity etc. is illegal; in order to circumscribe vague concepts used by the law the Media Council should develop and publish clear policy guidelines on how it interprets the provisions in the Press Act on illegal content and applies its sanctioning powers under the Media Act, including the criteria the Council uses to determine whether a sanction should be applied, and, if so, the level of sanction, in order to reduce any chilling effect caused by uncertainty in the application of the two Acts;

- the Press Act should make it clear that disclosure of journalistic sources may be ordered by the court only where alternative reasonable means of obtaining the information have been exhausted or are unavailable, and that the disclosure may be refused even in more serious cases;

- the Media Act should specify that heavy sanctions seriously affecting normal functioning of a media outlet should be used as a measure of last resort (for example, for repeated calls for unlawful mass violence) and should not be immediately enforceable. Court proceedings in such cases should have a suspensive effect and the courts should have the power to review the substance of the decisions of the Media Council;

- the rules governing election of the members of the Media Council should be changed to ensure fair representation of socially significant political and other groups and of the media community in this body. The method of appointment and the position of the Chairperson of the Media Council/the President of the Media Authority should be revisited in order to reduce concentration of powers and secure political neutrality of that figure;

- The Board of Trustees should also be reformed along those lines. Decentralisation of the governance of the public service media providers is advisable; the National News Agency should not be the exclusive provider of news for the public service media providers;

- the State advertisement budgets should be allocated according to objective and transparent rules, and private media should be allowed to publish paid political advertisements. Act XXII should be reconsidered in order to ensure that the tax burden is distributed in non-discriminatory manner.

The Venice Commission remains at the disposal of the authorities of Hungary for any further assistance they may need.

 Text of the opinion CDL-AD(2015)020