The Media Act – One Year Later

It was exactly one year ago that the Hungarian Parliament accepted the country’s new Media Act which raised so much controversy. Around and after this time, legal and professional organizations and NGOs from Hungary and other countries, including the European Parliament, the OSCE Commissioner for the Freedom of the Press (Organization for Security and Co-operation in Europe), the relevant office of the UN, journalists’ organizations, human rights agencies as well as the international and the Hungarian press warned that the Act presented a serious hazard to the freedom of the press and to the Hungarian public sphere in general. One year later we find that several of these fears have proved justified and this is the case even if the media authority, with its exceptionally broad mandate, is not the only factor threatening the freedom of the media. Decisions of similarly heavy consequence for media policy are being made in an attempt to restructure the media market and these create conditions which will distort the public sphere for a long time to come. It has also become clear by now that transforming the regulation of the media was but the first step in dismantling the institutional system of a legal state.

Editorial work

Threat: the very existence of this act, which offends against the Constitution at several points, as well as the fact that content criteria which limit freedoms and ignore the unique traits of particular media have been encoded as law, now hang as the sword of Damocles over the heads of all media owners, editors and journalists. This is a threat to the freedom of the press even if, partly as a result of the scandals late last year and the pressure of the Hungarian and international press, at present the authority refrains from using, or dare not use, certain of the regulations which provide it with a degree of power uncommon even in an international comparison. The only reassuring feature is something those in favour of the media act often refer to, and this is that the paralysing potential of the Media Act is unnoticeable at present in the greater part of the Hungarian media. This, however, is the outcome of the history of the Act, rather than its inherent merit. Quite the contrary, this state of affairs merely proves that thus far they have not managed to break the whole of the Hungarian press. Today, it is due to the sheer courage of certain journalists and editorial offices, and the cowardice of the applier of the law, that some of the press has been able to retain is fragile autonomy. Similarly, it was the courage of journalists that highlighted just how hollow, easily reversible and counterproductive are the rules which supposedly grant the protection of sources. (Bodoky-atlatszo.hu affair)

Uncertainty and self-censorship: the law has caused uncertainty in editorial work, particularly in the internet media which had never before been subject to similar requirements, as well as in the written press. Because of elastic law-making and vague wording, journalists, editors and the lawyers in their hinterland are all unable to tell what is the legal definition of, say, ‘sound journalism’ and how they are supposed to work if they wish to keep to the letter of the law. This kind of uncertainty has engendered a heightened sense of caution in day-to-day editorial work, and it is hard to trace the fine line between caution and fear, exaggerated caution and self-censorship. There is a noticeable tendency in several editorial offices to ‘outsource’ provocative contents, opinions, pictures and other visual contents to the grey zone of blogs. What is worse, self censorship is strongest in editorial offices with the feeblest financial backing and market position. Also, owing to chaotic relations in financing in the media market, it is highest in organisations which are closely tied in with party and political financing, which show less professionalism, or are owned by proprietors of an oligarchic hue who seek the favours of those in power and are dependent in the business sense of their advertising potential.

Single party rule in public service: the regulation and supervision system of the public service media has enabled politics even after the end of communism to interfere intensely with editorial work, and exception was made only in a few cases (e.g. one or two editorial offices or a few of the most autonomous personalities of the press). However, the new Media Act has transformed the multi-party, and at least in this distorted sense pluralistic, rule of the media into single-party control and by now has come to guarantee the total and unlimited control of the ruling party. Merging different institutions and centralising the manufacturing of media contents has created the institutional conditions for this, while the appointment of leaders who emerged from the right wing media with an unclear professional background but very clear loyalties to the governing party has provided the background. Multiple waves of dismissals aimed at generating an air of unconditional loyalty. Today the public service media operates in service of government propaganda, and this state of affairs was reached through open censorship (Daniel Cohn-Bendit affair, Lomnici affair), self-censorship and the conscious and institutional dismantling of the last vestiges of professionalism and independence.

Public service media without institutional control: the exact features of the institutional control required for attaining the objectives of public service codified extensively in the Act are far from clear. Should there be any serious offence against these objectives of public service, the Board can seek the help of the Media Council or dismiss top executives, but has practically no other means to fight serious offence against these objectives. Besides, the rules that regulate the competencies of the Media Council also fail to give clear directions regarding the cases in which the Media Council is to intervene. The present operation of the public service media may be criticised from more than just the perspective of media law. Their institutional and financing structure also probably offends against EU law on business competition, as well as the EU guidelines on the support of public service media. The ruling issued by the European Committee in 2009 speaks quite clearly when it declares that for the state financing of public service media not to offend against the rules on open competition it is necessary for the public service mission to be sufficiently clearly defined, for the sources allocated for the task to be in proportion to the task and for the quality of content and the costs to be monitored by an independent organisation. By contrast, the Hungarian regulation does not stipulate on the content of the public service mission, it is not revealed how much MTVA is to spend and where the money goes (this is the financial fund which holds the assets of former public service media and the task of which is to finance the operation of public service media services), it does not clarify the relation of MTVA to the public service media and guarantees for the transparency of asset management and financing are also absent.

The operation of the media authority

The lack of transparency: predictable decisions which serve plurality cannot emerge coming from a single-party media authority which totally lacks transparency and is uncontrollable from the outside. For months after the Act came into force, there was practically no visible sign of the activity of a Media Council which makes its decisions on a univocal basis and even in the best case documents its activity only in formalised minutes. The only form in which the Media Authority was present in the public space was through press releases, while the majority of their decisions were not accessible through their website. Most administrative rulings (mostly those supervising media contents) are now available but as regards non-administrative rulings, little actual detail is revealed besides their sheer existence. Thus, for instance, the activity of the Media Council on public service asset management is not transparent, and the same is true of the steps through which various contracts of the media organisations are modified or the monitoring and control of content support. Ill-prepared organisational integration also presents difficulties in transparent operation. Owing to the work of the organisation’s press department, certain bits of information do make it to the public regarding a superficial level of the operation of NMHH, but substantial information about their actual professional work is scarce and hard to come by, while many important decisions which directly affect the kind of content offered never reach the general public./p>

The media market

Long term transformation of market relations: in the past one year the Hungarian media market was characterised by uncertainty in the regulatory environment. The law and the authority applying it interfere with market processes without revealing the precise aim and justification of the intervention (e.g. a specialist authority’s ruling on fusions, elaborating methodology for increasing viewer numbers; listing events of special importance). It is surprising that in a media world which is currently over-regulated, active media political action is missing exactly at the point where it is most necessary: the digital transition of surface television broadcasting has seen many amendments to the relevant law in the recent years, but there is still no time schedule for the transition; while research surveys which could lay the foundations for a transition strategy have not been carried out or shared with the public. It is still a question what will happen after the licence of the two national commercial channels expires (July 2012). The radio market has also experienced a great deal of insecurity owing to the fact that instead of long term licences from the relevant authority many local radio channels operated on temporary licences of a 60 day term.

When we analyse processes of the media market, naturally we also need to look at phenomena which point beyond mere regulation. It is clearly discernible how certain business cliques gain ground in the media, indeed, as the Media Act contains no restrictions on cross-ownership, there is nothing to limit such expansion. The Hungarian Telegraph Office has been offering its services free of charge since April, which puts its former rival, the Independent News Agency in an impossible position. Based on the past year it is impossible to say that the range of services offered has grown wider or more pluralistic, at least not in the traditional branches of the media (newspapers and magazines, radio, television).

Arbitrary and unpredictable market regulation: the practice of allocation by the Media Council points in the direction of uniformity instead of plurality, and shows dissatisfactory professional operation. Allocation is not justified by any noteworthy considerations of media policy.  Each of the tender invitations published by the Media Council outside of Budapest follows a unified set of criteria just like the Budapest invitations published simultaneously. This has led to the emergence of local radio markets which almost entirely lack contents on public and political events which could thus serve local democracy. The subjective evaluation of programme plans by applicants plays heavily in the evaluation of applications, which is particularly risky in the case of a single-party media authority. The practice to date of acquiring the right to offer media services without competition also shows that several elements of this law may be used to put certain favoured media service providers in a more advantageous position.Relations in the media market are also significantly influenced by interference with the printed press: preventing the fusion of Axel-Springer and Ringier by the media authority in a retroactive ruling gives cause for concern not because of its outcome but because of the low standard of the professional work leading up to the decision. The intervention was an unpredicted act which neglected to use any methodology tried out by similar authorities in other countries and as such it left market agents in uncertainty over the long term.

Using the application system to build a right wing media empire

One of the most important guarantees of plurality is to offer a chance of decent access to the marketplace. The practice of handling applications by the Media Council has shown, to date, that in application procedures where one of the applicants has right wing affiliations, this applicant tends to come out the winner. This is not merely an important tool for building a right wing media empire, but also a means of manipulating local publicity. In most of the local media markets Kossuth Rádió is the only public radio channel, thus the result of the various applications can seriously influence the plurality of opinions.