In a ruling announced on December 19th 2011 the Hungarian Constitutional Court (CC) published the results of a review regarding the constitutionality or otherwise of certain elements of the new media regulation, which entered into force as of January 1st this year. The resolutions of the CC cover only some of the motions submitted. Issues which are not examined in the ruling will, in accordance with the new law on the Constitutional Court, expire, and there will be no decision on them in the future. Thus, among other matters, the CC did not review the institutional system of the supervision of the media, the relevant system of sanctioning or the regulation of public service media. These questions were important targets of criticism from both Hungary and abroad, and they are also the most politically sensitive points. Based on the new mandates of the CC there is little likelihood that these issues will once more be placed on the Court’s agenda in future.
The new ruling is quite an ambivalent document as it does not cover the most crucial elements of the prevailing media regulation, and foregoes the constitutional review of the questions which form the basis of the entire regulation. At the same time, it is a considerable achievement that in the eleventh hour the Constitutional Court did speak out and at least partially made a stance regarding the constitutionality or otherwise of the regulation of the media.
The ruling first makes its position clear regarding some formal issues and takes a stance concerning motions regarding the preparation, entering into force and acceptance of the Acts.
1. As regards the shortness of time which elapsed between the passing and entering into force of these Acts, which would cause them to be void under public law, the CC has declared that the Constitution is not being thereby offended. According to their Reasoning, the law in question did indeed enter into force very briefly after its acceptance, however, the Media Act left a reasonable amount of time for the application of the new obligations it introduced and thus service providers had sufficient time to adapt to the new legal environment.
2. According to the Ruling it is also not in conflict with the Constitution that in the process of accepting the Acts in question the legislator omitted sufficient preparation, negotiations, the exploration of the opinions of the relevant agents and social debate.
The reason is that the rules of preparation which apply to draft proposals by the government do not extend to legislative proposals submitted by individual MPs. ‘Preparation of legislative proposals is not a part of the legislation procedure, therefore omitting the mandatory negotiations or social debate does incur a political responsibility for the legislator but does not render the Act void in the public law sense.’
3. According to the Ruling it is also not constitutionally offensive that in its final voting Parliament took a vote about several hundred motions in one batch, practically without discussing any of the proposed amendments. At this point the Ruling is flawed, as it bases its reasoning merely on the evaluation of one proposed amendment, and says nothing about the rest of the proposed amendments.
Criticisms of legislative content by the CC
1. The objective scope of media regulation (Smtv. 2. §)
Appeals submitted to the CC voiced the criticism that the new regulation stipulates uniform standards of content for all mass media, thus, beyond the traditional electronic media, also for the printed press and the internet.
In response to appeals, the CC annulled, as of May 31st 2012, the passage of the Act which extended rules of content in the new regulation to printed and on-line publications. The CC did not declare in general that regulating the printed and internet-based press is constitutionally offensive, it merely pronounced a few specific limitations on content to be incompatible with the Constitution. The Ruling examines each contentrelated rule one by one, to see whether the given restriction may be considered a necessary and proportionate limitation on the freedom of the press.
According to the investigation, in the case of printed and internet-based press products, actions of the authorities regarding human dignity, human rights or other rights of the interviewees constitute unnecessary or disproportionate curtailments of the freedom of the press. The reason is that in these cases the interests of the individual are sufficiently protected by the relevant frames of public and penal law and there is no need for an enforcement of rights by a different authority. In its investigation the CC found the media law regulations on commercial publications, the protection of children, hate speech and respect of the constitutional order to be in harmony with the Constitution both in case of printed and on-line press products.
The CC justified its ruling that demanding respect for the constitutional order and banning hate speech were compatible with the Constitution by claiming that ’the fundamental right of the freedom of the press rests on two pillars: the basic rights of the press to serve as the channel for expressing the opinion of the individual on the one hand and of informing the democratic publicity about matters of general interest and shaping people’s opinion regarding these issues on the other. Any content which goes against such fundamental, institutional values of democracy related to basic human rights can be ruled out on conceptual grounds as a means of creating democratic publicity.
The curtailment of the freedom of the press with the aim of protecting the interests of children was declared constitutional on the basis of international documents, particularly international agreements on the rights of children. As regards restrictions to do with commercial contents, the CC declared that since these mostly concern the rights of commercial speech of the advertisers and not the press, there is no reason to distinguish between the audio-visual and the written press and thus extending the rules of advertising to the written press does not offend against the Constitution.
2. Registration of printed and on-line press products (Mttv. 41. § (1), 46. §)
The CC reviewed whether the system of registration of press organisations was constitutional and pointed out that the regulation does not offend against the freedom of the press. The system of regulation they reviewed had been shaped in line with the guidelines recommended by the European Commission. According to the Reasoning, registration only extends to data which serve to identify the press product and render it possible to enforce the criterion of ruling out legal incompatibility. On the other hand, it requires investigation in retrospect for the authority to conclude if legal conditions for registration were not provided. This way the regulation does not posit unconstitutional obstacles to producing press products. Furthermore, the authority cannot cancel a press product with reference to offending against rules regarding content.
3. Source protection (Smtv. 6. §)
The CC subjected the regulation of journalist source protection to detailed examination. Based on the practise of the European Court of Human Rights they declared, ‘it is a special priority that the press should operate independently of central power, and its operation must serve the interests of the community instead of the central power in fulfilling its tasks.’
The CC has annulled the second sentence of Smtv 6. § (2) which made it the journalist’s duty to prove that disclosing the source of information served a public interest in cases when disclosure of such source information was denied. According to the reasoning of the annulment ‘it would be wrong to stipulate a basic right or constitutional principle which, if enforced, would justify tying in the protection of the information source with the duty to provide evidence.’ As a result of this ruling, the right of the press to withhold the source of information has been declared as a general and unconditional right of the press.
Besides, the CC has also declared that a case of constitutional failure obtained when the legislator failed to provide the inbuilt procedural legal guarantees which would enable the practise of the right to the protection of information in official procedures. ‘The institution of source protection becomes a genuine form of protection only if and when the journalist can refuse to disclose evidence or data in a process of investigation by the criminal authorities or by any other authority, at least as far as is necessary for the protection of their information sources, and if the procedural acts offer clear instruction as to the exceptional cases when, under court supervision, they are nevertheless compelled to co-operate with the authorities.’ At the same time, they call on Parliament to remedy this case of constitutional failure by performing appropriate legislation before May 31st 2012.
4. Regulations concerning access to data and data handling by the media authority (Mttv. 155.§,175.§)
The CC has pronounced it a constitutional failure due to negligence that the regulations in Mttv. which encode the obligation of media content providers to disclose data do not contain sufficient regulations concerning the duties of the service providers as regards information sources and secrecy of attorney-client privileged information. The CC has called on Parliament to comply with its duty to legislate before May 31st 2012. Besides, the Ruling also interprets the regulation in question and points out that it does not entitle the authority to enter the offices or other related venues of the client or other party concerned with the procedure and to examine papers or other documentation there as part of an investigation.
The CC has examined in detail the constitutionality or otherwise of the obligation to disclose different types of data. As regards the sphere of the protection of personal data, it has ascertained that, consistently with the Smtv. and the Mttv., the Authority is not entitled to handle potentially sensitive personal data about the private lives of representatives and employees of the service provider. It would offend against existing laws were the authority to extend its activity to personal data which are beyond the sphere of ‘data related to media service provision, producing press products and broadcasting’. Were this to take place, legal remedy by the law courts is available against such illegal action by the Authority, therefore the CC did not consider it justified to pronounce the passage constitutionally offensive. Similarly, they declared regulation within the frame of business secret also compatible with the Constitution.
By contrast, the Constitutional Court speaks of offence against the Constitution in the case of the regulation concerning secrecy of attorney-client privileged information because it does not provide control by the law courts, on the client side, concerning access by the Authority to confidential communication between client and legal representative. The Act provides for control by the law courts in retrospect only, which renders the basic guideline of protecting confidential communication between client and attorney an empty category.
The Constitutional Court has annulled § 175 of Mttv. on the procedure of data provision which stipulated a special procedure for the authority’s requests for data. According to the Reasoning, the objective named in the rule is general and vague and allows access to data which the authority can access through procedures otherwise regulated. At the same time, in procedures according to § 175, parties obligated to provide data cannot know for certain whether the request for data is taking place as part of a check-up by the authority or the preparation for a full scale supervisory procedure.
5. The Commissioner for Media and Telecommunications (Mttv. 139.-143. §)
The Constitutional Court has annulled, as of May 31st 2012, the regulations concerning the Commissioner for Media and Telecommunications. This Commissioner was a new actor within the supervision of the media, with the function to investigate complaints which did not constitute a breech of law but were nevertheless based on reasonable complaints of infringement on their interests by consumers, viewers, listeners.
The CC has pointed out that although the law declares that the Commissioner is conducting investigations not with the mandates of an authority, he or she does nevertheless have quasi-authority powers due to the possible measures and procedural mandates available to them (e. g. demanding data provision or exercising control). According to the CC there is no constitutional reason for the Commissioner to act against media service providers and the publishers of press products in the case of infringement upon otherwise undefined reasonable interests or the risk of such, therefore creating the legal institution of such a Commissioner, in the form here examined, would limit the freedom of the press unnecessarily, without a constitutional objective.
The gravest shortcoming of the Ruling of the CC is that as regards the regulations on content it made its decision regarding the constitutionality or otherwise of these rules without first examining the institutional order serving their supervision, the independence of the media authority or the chances of political and power factors influencing media contents. No opinion was formed regarding the regulations on guarantees of the independence of the supervision of the media. The Reasoning takes its point of departure from the multiple constitutional meaning of the freedom of the press. As the text puts it, the press is ‘at once the means of the free expression of opinions, of publishing and of accessing information.’ Shaping the public opinion of the democratic community appears in the Ruling as the right of the press as an institution. This way, in 2011 the Constitutional Court has partially transferred the ‘duty of creating the conditions for the emergence and operation of a democratic publicity’, previously ascribed to the state (37/1992 ABH), to the press. Earlier rulings of the Constitutional Court had already spoken about the active role of the state in the context partly of operating the public media and partly of creating the institutional frames to guarantee the operation of democratic publicity. Without the constitutional review of these elements it is not possible to conduct independent examination into the individual elements of the media system or to formulate a stance about the constitutionality of the restrictions on content within the activity of the media. Missing elements are the constitutional review of the organisation, operative frames and financing of the public service media.
An important part of the Ruling is the evaluation regarding data provision and source protection, but without touching on the organisational frames and system of supervision these cannot provide satisfactorily predictable legal frames for the activity of the press.