Report on the content regulation in the practice of the Media Council (Part 2)

The following study is based on the examination of official resolutions passed by the media authority during the period of May to October, 2012, and is compatible in its structure and themes with the first report prepared by Mertek.

General findings

As in the previous period, the media authority’s application of the law is characterized by moderate intervention. During the period under review, the Media Council passed about one hundred condemning resolutions in the field of content supervision, continuing the tendency of leniency that we noted last time.

There is not much change in terms of sanctions, either. The simple warning continues to be the Media Council’s preferred tool, applied in nearly half of the violation cases. About one of the three violations were sanctioned with a fine of a few dozen thousand forints. In only 13% of the cases did the authority impose a fine on the order of a hundred thousand forints or more, the largest fine amount being HUF 700,000 during the period under review. Overall, the fine amounts were much smaller than those imposed by the predecessor media authority.

Compared to our first Report, there has been in a change in the entities targeted by the intervention, with the media authority obviously shifting the focus from mainstream media to the marginal providers and minor details of regulation. Formerly, the majority of the condemning resolutions had been issued for violations of the protection of minors and of the rules of advertising. This time, the authority paid more attention to whether local and community media fulfilled their undertaken commitments; every other condemning resolution was issued in this field. Only one fifth of the procedures concerned violations of minors protection, and nearly all of these sanctioned the omission of the age rating from the listings — a minor violation, to be sure. Not once did the authority determined a vase of incitement to hatred, and found that dignity was violated on a single occasion. Once again, there was an absence of any comprehensive investigation specifically targeting violations of dignity and the prohibition of hate speech. The areas of intervention preferred by the media authority suggest that the really neuralgic point of the media palette in Hungary is the programming practices of small local providers. At the same time, the resolutions are hardly helpful in identifying any symptomatic problems across the board.

The disclosure policy followed by the Media Council is far from being standardized. In fact, many of the final and non-appealable resolutions concluding the public administrative process and complete with an explanation never reach the public. This shortfall makes it difficult to precisely keep track of how the authority applies the law. There are even more disturbing gaps in the disclosure and accessibility of resolutions in the first instance.

In what follows, we will address the practice of the media authority in each of the three fields of balanced coverage, human dignity, and incitement to hatred. Due to the number and nature of cases involving the protection of minors, we will not discuss this area separately. Also, we will forego analyzing cases of supervising compliance with advertising regulations, as we did in our last Report.

Balanced coverage

Since we filed our last Report, balanced coverage processes have been increasingly initiated and used as a complaint forum by the Jobbik, the extreme right wing party in Parliament. Nearly four out of five cases investigated by the Media Council started as complaints filed by the Jobbik, and those cases where the authority determined a violation had been invariably petitioned by that party.

The low total number of cases and the even fewer condemning resolutions limit the possibility of reaching generalizations about the legal practice in this regard. Of the 22 cases investigated, the Media Council found that the requirement of balanced coverage in reporting had been violated in four cases only. All four of these condemning resolutions were issued against the two large commercial television stations and Hír Television, and none against public service media.

The media authority seems to persist in considering balanced coverage as being nothing more than the formally commensurable representation of opposing points of view. As we explained in some depth of detail in our last Report, this basically means that the authority does not address issues of objectivity and truth to facts in investigating reporting practices. During the period reviewed here, this ill-advised approach manifested itself — mainly because of the nature of the complaints — as the authority’s neglect to scrutinize whether the omitted information had any social relevance. Instead, the investigations focused on deciding to what extent that sidelined information could be regarded as being markedly dissimilar to the opinions that did get presented in the media. In the interpretation of the Media Council, what matters is the essential substance of the communication; the identity of the source is just about irrelevant. Accordingly, the overwhelming majority of the cases hinged on the degree to which the position of the Jobbik was found to be in agreement with the position of other parties. If the investigation determined an absence of material difference, the omission was ultimately not found to be in violation of the requirement of balanced coverage. It goes without saying that this interpretation encourages distorting editorial practices.

Consigning the subject of a point of view to irrelevance amounts to depriving media audiences of the freedom to judge the authenticity, grounds, and weight of that view for themselves. It is a mistake to divorce a point of view from the individual behind it. In and of itself, an opinion cannot be properly interpreted without knowing who articulated it. The way we assess the value and credibility of an utterance and relate it to other opinions on the same subject matter has a lot to do with the person of its announcer. Considering that politics and opinions endorsed by political parties occupy a central position in public affairs, it is vitally important to be familiar with the proponent of an opinion in assessing and situating that opinion in its proper context, particularly in terms of value, significance, and authenticity. Of course, this is not to say that any political party has the inherent right to have its position represented in the media if that position is not relevant to the case at hand. It follows that the investigation should focus on deciding whether the omitted utterance or communication possesses social relevance. This interpretation has the twofold benefit of retaining the ability to counteract political marketing while enabling the legal institution of balanced coverage to fulfill its proper intended function.

To sum up: The Media Council’s interpretation of what constitutes balanced coverage fails to promote democratic public discourse, and is hardly conducive to creating the right environment for the factual and objective information of the public.

Human dignity and hate speech

If the authority confined its activity to mild interventions in respect of balanced coverage, it refrained from intervention almost completely in the area of dignity and hate speech. The Media Council determined a violation of human dignity in a single instance which, once again, involved tabloid-style coverage. The culprit was Hír Television’s crime magazine Riasztás, in which the reporter in a child abuse case interviewed a mother and her partner in the presence of the child, then went on to ask questions of the girl herself. In its Resolution No. 907/2012 (V. 16.), the Media Council found that the program violated the child’s right to dignity and imposed a fine of HUF 700,000 on the station.

In considering submissions alleging a violation of dignity on an individual basis, the Media Council declared no competence on the grounds that no public interest had been infringed upon, ultimately closing the process or not even starting one. In these cases, the intervention threshold remains vague. The authority simply states that no public interest has been violated, without going into details or offering an explanation to support this assessment.

In cases where the charges concerned the segregation or violation of the dignity of a community, or incitement to hatred against a community, the Media Council looked at the incriminated programs but did not bring an investigation against the media providers. Alleged incidents of hate speech and violations of fundamental rights were only investigated based upon complaints and petitions. The authority did not bring an ex officio investigation into these matters despite the increasing coverage of discriminatory views in the media that cause mounting tension in society.

One program that elicited heated controversy during the period under review was a documentary installment of the Pesty Fekete Doboz aired by the public service television station M1, which dealt with the coexistence of the Roma minority with the Hungarian majority. In the wake of the program, several NGOs filed a complaint with the media authority, objecting to what they claimed was a violation of human dignity and the prohibition of incitement to hatred. The detractors’ contention was that the film drastically oversimplified the problematic of integrating the Roma minority, suggesting a black-and-white dichotomy whereby the “good gypsies” passed judgment on the “bad gypsies,” who are bad because they follow patterns of conduct contrary to the expectations of society at large.

The Media Council did not find the documentary to be in violation, arguing that “the program does not provide a blanket portrayal of the Roma community as uniformly comprising anti-social, uncooperative individuals prone to crime. Instead, it merely relays to the audience the opinions of certain members of the Roma community who have had first-hand experiences with these problems. One could only talk about an infringement of human dignity if the program itself carried content implying the inferiority, deprivation or absence of equal human dignity of an entire group of society — in the case of hand, the entire Roma minority — which it did not.” The resolution goes on to say that “the program was not capable of inciting segregation or hatred against the Roma community any more than of violating its dignity, because only a part of that community, rather than its entirety, was presented in a negative light, and the reprehensible phenomena were not deemed as such on a racial basis or attributed to the cultural-specific orientation of the community. (This will be all the more apparent in view of the numerous positive examples depicted in the film.)

Investigating the issues surrounding the same documentary, the Commissioner for Fundamental Rights reached an opposing conclusion in his Report:[1]One of the most troublesome aspects of the film is that it features Roma individuals passing negative value judgments on the Roma community on the whole. For most viewers, this has the effect of reinforcing credibility and, as a result, also of reinforcing negative stereotypes. […] Although the Media Council did bring a formal investigation into the matter, in doing so it ignored the considerations and circumstances of sociology, social psychology, and media science that supply the context for the program in question […] it failed to watch over the enforcement of equal dignity.

In his Report, the ombudsman called on the President of the Media Council to remedy the discrepancy over constitutional rights by “…taking the necessary measures to ensure that the Media Council will in the future exercise special professional circumspection in protecting the equal dignity of vulnerable social groups, taking into consideration the applicable findings of professional literature and relevant human rights standards, particularly as regards social issues where the sensitive nature of the problem calls for an approach substantially different from prevailing public discourse but nevertheless appropriate by any constitutional norm.

Summary

All in all, the Media Council’s content-related practices have been characterized by even fewer meaningful interventions than in the previous period. On the one hand, this is a welcome trend from the perspective of freedom of the press. On the other hand, it highlights the widening gap between the regulatory environment, which confers broad powers of intervention upon the authority, and the Media Council’s restrictive interpretation, as evidenced by its restrained application of those provisions. This begs the question: What is the point of these controversial regulations, which vest the supervisory agency with such excessive but legally vague powers of discretion? In cases involving fundamental rights, the Media Council is apparently reluctant to speak up even where other institutions point out indisputable violations. In the cases examined for purposes of this report, the Media Council’s legal practice is not any more helpful than in the past in filling the shell of law with predictable content. As for balanced coverage, some of its decisions are positively detrimental to the proper functioning of democratic public opinion.

[1] Case No. AJB-3395/2012