Forced Maneuver: Proposals and Expectations toward the Amendment of the Media Act

The bill amending the Media Act is expected to be submitted in the weeks ahead. The Constitutional Court gave legislators until May 31st to remedy the omissions it had ruled unconstitutional. The legislative liabilities ensuing from the Constitutional Court Resolution — a ruling that the Constitutional Court ultimately declined to interpret despite repeated requests by the government — will affect the supervision of the printed and online press, the protection of sources, and the reporting obligations of media providers. Although it is also until May 31st that the Media and Communications Commissioner has been allowed to act in his powers, certain questions posed to the Constitutional Court (which do not follow from the Resolution in any way) make it seem as if the government contemplated a last-ditch attempt to save this institution.

 Objections by the Constitutional Court

The single most critical legislative issue is whether the supervision of the printed and online press by the media authority will be allowed to stand. Although instating control over the media by a media authority must be seen as the most regressive step in the cause of the free press, the Constitutional Court did not rule out the possibility of such control but merely placed restrictions upon it. Pursuant to the ruling, the media authority retains its power — theoretically at least — to take action against hate and discriminative speech posted on online journals or news portals, violations of constitutional law and order, the self-serving, offensive representation of helpless and vulnerable individuals, content deemed severely harmful for children, and unlawful commercial messages (advertising). No media authority supervision is allowed regarding posts and publications violating human dignity, privacy, and human rights in general, nor regarding violations of the obligation to withdraw such statements. I hasten to add that the authority’s options to step in against messages of hate and discrimination have been scaled back by the Constitutional Court far enough as to virtually prevent such intervention in the future.

The legal tool elected by the Constitutional Court has been to entirely remove the print and online media from under the supervision of the media authority by May 31st. This allows the legislation to indulge in the generous gesture of transcending its own limitations, as it were, by simply foregoing administrative control rather than revising the applicable provisions. In fact, one of the questions the government asked the Constitutional Court was whether the situation emerging in this way would itself be constitutional. While we must regard this newly found ardent respect for constitutional solutions quite odd, we would urge legislators — as we have done before, and now with renewed force in possession of the Constitutional Court’s opinion — to go ahead and assume this constitutional risk, such as it may be. By so doing, it would perform great service to the cause of restoring the normal conditions of freedom of the press.

In revising the provisions regulating the protection of information sources, it will be indispensable to incorporate substantive and procedural safeguards, for instance by prohibiting investigative agencies to order a journalist to reveal his source unless the information sought cannot be obtained in any other manner. Furthermore, the amendment should enshrine the journalist’s right to seek remedy against such an investigative resolution prior to revealing his source. It will be impossible to maintain the precedence of classified information, such as state secrets, over the interests in keeping sources anonymous. For this reason, legislators should incorporate the option of deliberating between the respective benefits of revealing sources and of keeping them unidentified, even when the information in question is classified, and must again uphold the right to seek remedy in court. Additionally, an amendment of penal and civil procedures is called for to make it unequivocally clear that journalists are entitled to protect their sources in all conceivable procedures.

In connection with the Media Council’s powers to access information and the attendant reporting obligations of program providers, the Constitutional Court ordered the legislation to enact safeguards that will ensure the confidentiality of sources even in relation to the media authority, as well as universal respect for attorney-client privilege.

Beyond the Constitutional Court’s Resolution

The Constitutional Court was not only unreasonably lenient toward the government and the two-third majority in Parliament because it undertook the risk that the unconstitutional omissions will permanently remain part of the law without any further consequence, but also because it simply failed to even dredge up the most sensitive regulatory issues. For instance, it failed to address the extent of sanction, the independence of the Media Council, and the constitutional viability of the entire system of public service institutions. It will be impossible to restore freedom of the press without solving these problems. Although the Constitutional Court refrained from forcing the legislation to make a move in these issues, there are places it could well turn to for inspiration to hammer through comprehensive amendments even more far-reaching than the considerations itemized above. Many studies and analyses of the Media Act have been published since its adoption, both in Hungary and abroad. These have been invariably swept aside or simply ignored by the government. The situation has changed somewhat in that the Council of Europe is now looking into the compatibility of the Act with the European Convention on Human Rights and various Council of Europe documents. Lending further weight to the investigation, Neelie Kroes, Vice-President of the European Commission responsible for the Digital Agenda, publicly forced Tibor Navracsics, Hungarian Minister of Public Administration and Justice, to promise that the findings will be respected. Well, we are talking about a minister who is refusing as we speak to implement the judgment of the European Court of Human Rights condemning Hungary over freedom of expression issues.

In the latest news, the finalized report of the Council of Europe articulates objections against the rules of nominating and appointing members to the Media Council, the centralization of the manufacture of public service programming, and the regulation of the frequency tendering procedure. The Council of Europe expects Parliament to adopt a revised Media Act not in a two-third majority procedure but in the context of a multi-party legislative process. In part at least — with the single exception of expectations regarding the independence of the Media Council, to be precise — these objections and recommendations are new compared to the previous statements of the Council of Europe, although none of them have gone without mention in various critical accounts at home or abroad.

In March this year, the Council of Europe formulated four objections to promote the legislative process. These objections point the way far beyond the Resolution of the Constitutional Court, and both their wording and timing clearly suggest that their aim was to influence the amendment in meaningful ways. In its own civilized European manner — and perhaps erring on the side of political correctness — the CE voiced its expectations concerning the political independence of the Media Council, the reformation of the system of sanctions, the clarification of media-rights prohibitions and obligations, and the protection of sources. Even if the government chooses to consider the CE’s position a legislative liability, the issue of the Media Council’s independence is likely to be bogged down in endless debate. This is because the government and the ruling parties are convinced that the Media Council is independent as it is, and it will be very difficult to budge from such a stubborn position.

Objections by international organizations

In February last year, the Council of Europe and its Commissioner for Human Rights posted an even more comprehensive report on the Media Act and made proposals for its amendment. The Council of Europe, however, is not the only body that has compiled a detailed list of objections. In February 2011, the Organization for Security and Co-operation in Europe (OSCE) published a study of the Media Act. In April that year, Frank La Rue, the UN Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression, delivered a set of critical observations and recommendations in a statement. The overwhelming majority of these recommendations are yet to be fulfilled despite the fact that the National Assembly satisfied all expectations of the European Commission regarding harmonization with European media laws last March, and followed up by further amendments during the summer. These revisions, however, left the most serious doubts about the Act unaddressed.

Hands off media content!

The cause of abolishing the regulation of print and online media products has been most firmly embraced by the OSCE, which protests the hazy definitions used by legislators as something that permits further services to be subjected to the effect of the Media Act. The UN Rapporteur also considers the scope of the regulation “problematic,” and recommends limiting it to the audiovisual sector in relation to distribution of frequencies, while encouraging self-regulation of the print media and the Internet.

The February report of the Council of Europe voiced doubts over the ambiguity of stipulations, particularly as regards balanced coverage. Although the requirement of balance coverage has since been narrowed down to radio and television programming from the original version of the Media Act, this does not affect the validity of the Council of Europe’s previous finding that, “whether or not Article 13 is interpreted in a manner which restricts media freedom, the very fact that such a possibility exists is enough to have a profound chilling effect on media’s preparedness to challenge, dissent and assume unpopular positions.” The EC recommended, and continues to recommend in its own gentle manner, that the stipulation of balanced coverage be abolished altogether as is. The criticism of vaguely worded provisions, and the requirement of balanced coverage in particular, which permits a variety of subjective and unpredictable interpretations — and as such belongs in the preamble to the Act in the opinion of the OSCE — recurs in the reports delivered by both the OSCE and the UN. The UN Rapporteur recommends that the requirement of balanced coverage not be stipulated by law but regulated by media organizations as voluntary codes of conduct. The OSCE extends these doubts to the provisions requiring certain diversity of programming from “providers of significant powers of influence.”

The OSCE report reserves approval of regulating the interdiction of hate speech by media law exclusively on condition that the scope of the regulation does not encompass each type of media. Unlike the Hungarian Constitutional Court, the OSCE does not consider regulations in excess of existing prohibitions by criminal law to be acceptable except when confined to television and radio broadcasting at best. Additionally, the report argues that the interdiction of exclusion is laid bare to abuse by permitting a broad range of interpretations.

In the opinion of the human rights Commissioner of the Council of Europe, the system of sanctions set forth by the Media Act needs substantial revision to be reconciled with the Convention of Human Rights and case law of the European Court of Human Rights in respect of freedom of expression. Already in February last year, the Commissioner argued that the system of sanctions should be repealed altogether and violations dealt with on the basis of general sanctions available under existing provisions of civil and criminal law. Essentially the same recommendation to abolish these sanctions as being frustrating for media providers and encouraging self-censorship — and therefore detrimental to diversity — can be found in the statement delivered by the UN Rapporteur.

The Media Act’s provisions regulating the protection of sources have come under criticism from international organizations roughly on the same counts as from the Constitutional Court of Hungary, which has also recognized the need to remedy the excessively broad authorization to force the identification of sources and the absence of proper procedural safeguards.

 

In terms of the requirement to register print and online media, the Commissioner went much further than the Constitutional Court and proposed that these media products should be simply excluded from the registration requirements altogether. The UN and the OSCE has taken the same view of this matter.

The independence of the Media Council and the public service media system

In their reports, all the international organizations level criticism against the composition and powers of the media authority. Regarding the body’s independence, the Council of Europe concludes that “The provisions regarding appointment, composition and tenure […] demand amendment not least because they lack the appearance of independence and impartiality, quite apart from a de facto freedom from political pressure or control. The Opinion refers to the Recommendation of the Council of Europe for guidance, which enumerates the following safeguards of independence: Furthermore, rules should guarantee that the members of these authorities: democratic and transparent manner of appointing the members; immunity to instructions; refraining from making any statement or undertake any action which may prejudice the independence of their functions; precise rules of dismissing members. The OSCE objects to the Media Council’s excessive powers encompassing both print and Internet-based media, and finds the body’s independence dubious. According to the report, it is imperative to guarantee the political pluralism of the media authority, regardless of the degree to which the ruling parties that be may predominate in Parliament. The study also takes issue with the excessive concentration of power that subsumes control over the operation of the public service institutions, as well as with the overly long terms of office to which members of the Media Council are appointed. The UN Rapporteur is hardly more optimistic about the independence and impartiality of the media authority, which he claims will pose a serious risk of arbitrary applications of the law — a jeopardy compounded by the vagueness of the stipulated requirements. In line with the other organizations, the Rapporteur recommends that the Government “consider alternative methods of nominating, reviewing, and appointing members of the Media Authority.”

In its Opinion delivered last February, the Council of Europe had voiced concerns over the alleged independence of public service media provision, but this issue did not crop up among the topics this year. At the time, the Opinion found that, under the Media Act, the procedure of nominating and appointing senior management official to public service media — a procedure crucially overseen by the President of the Media Council — ran counter to CE standards because it failed to ensure freedom from undue political influence. For much the same reason, the Opinion criticizes the move whereby the President of the Media Council became, indirectly through the Media Support and Asset Management Fund, the employer of practically every single journalist working in public service media. As for the regulation of the public service system, the OSCE report also concludes that the current scheme of control over the institutions fails to guarantee political independence, nor does the regulation of financing ensure the independence of day-to-day operations.

We will not get away with this

All of the foregoing shows the unavoidable necessity of adopting amendments so comprehensive that they will leave intact practically not so much as a fragment of the laws adopted in 2010. Despite the temporary truce achieved with the European Union, the government will likely face renewed and massive political pressure to finally meet European standards of media regulation. And when they are passed, the amendments will clearly not be based on well-considered admission or yield to the convincing force of professional arguments, but will be coerced by the exigencies of the economy alone. The ultimate question in the regulation of the media, as in economic policy, is whether the government is willing to give up its unorthodox approach and revert to the only viable vantage point: the freedom of expression and the press, and respect for public access and disclosure.