The one-dollar case

On 21 November 2013 Hungary’s high court, the Curia, heard the case of József Spirk, a journalist working at the newsportal index.hu. The case dealt with an allegedly libellous statement by Spirk in an article entitled “Investigation of EMFESZ’ [formerly one of the major Hungarian gas suppliers] sale for a dollar”, of which Spirk was the co-author. The Curia’s hearing became necessary after the Metropolitan Prosecutor’s Office asked the high court to review the ruling of an appeals court. By Zsófia Lehóczki

It has been four years since the responsible person at index.hu clicked on “publish” and made the article publicly available. Ferenc J. Horváth has long ceased to be the president of the Hungarian Energy and Public Utility Regulatory Authority (Magyar Energetikai Hivatal, MEH) and EMFESZ, too, has long since disappeared from the Hungarian natural gas market. Today, the sale of the gas provider for a single dollar and the underlying racket are the stuff of legend rather than current affairs. Yet the only criminal proceeding initiated in the case is still ongoing, and today a court of third instance is called on to decide whether a single sentence culled from the investigative report constitutes such a danger to society that it would justify holding the journalist who wrote it criminally accountable.

Investigative journalists do not have it easy when the rule of law is interpreted in a way that leads judicial bodies to construe the freedom of expression as narrowly as possible, and investigative journalism is regarded as something negative, despite the fact that it obviously serves the public interest. Every journalist ought to have second thoughts about joining newspapers’ politics or economics desks, for if Hungary’s high court rules against Spirk, then each and everyone can find themselves dragged before a criminal court because of their work – no matter how much they act in good faith and adhere to professional ethics standards.

The “incriminating” line in the Spirk case, which aroused Ferenc J. Horváth’s attention and in response to which he has been pursuing restitution all this time – currently through a criminal proceeding since the civil suit has been concluded and index.hu published a correction –, reads as follows: “The president of the MEH was involved in secretly planning the deal that failed to include or inform the Ukrainian owner at the time.” Let anyone who believes that – read in combination with the title – this sentence suggests that there is a criminal proceeding pending against the MEH president in connection with the peculiar circumstances surrounding the sale of EMFESZ bring criminal charges against the journalist who authored this line. We would suggest that such an interpretation is untenable. Yet that is exactly what the prosecutor’s office did: it indicted the journalist.

In the interpretation of Ferenc J. Horváth, the public prosecutor and the court of first instance the two impugned sentences constitute public defamation. Their view is that one does not even need not to know or consider the rest of the article, it is unnecessary to construe the impugned passages in their context. Nor does the fact that Ferenc J. Horváth is a public figure count for anything, and freedom of speech is evidently irrelevant anyway. The title of the article and the phrase cited constitute potentially defamatory statements and lack any foundation in fact. The court of first instance assessed that Spirk is in fact a danger to society – though only a slight one – which is why he deserves to be prosecuted with the harshest legal measures that can be used in a system based on the rule of law. Incidentally, the ruling of the court of first instance convicted Spirk of the minor offence of libel and correspondingly censured him.

This resulted in an appeal, which is how the case ended up with an appeals court that soberly assessed all the details, considered the Constitutional Court’s decision No. 36/1994. (VI. 26.), and also looked beyond Hungarian realities by consulting Strasbourg case-law.

The appeals court concluded that the article’s lines can only be examined in their context, for depriving them thereof and considering them out of context “create the risk of a misleading interpretation” that departs from the intended meaning. Moreover, in accordance with the Constitutional Court’s abovementioned decision, as a public figure Ferenc J. Horváth is subject to a greater degree of forbearance when it comes to statements in the press or other public pronouncements. The court further argued that the article had been written with a view towards the interests of the public; given that EMFESZ controlled a fourth of the domestic gas supply, the change in its ownership and the surrounding circumstances were certainly a legitimate subject of public inquiry. Nor is it insignificant that the article did have a basis in facts, which was incidentally demonstrated by the submissions of the injured party who acted as a private prosecutor in the case. It emerged from the documents that Horváth had indeed been informed about the sale upfront by those involved in the deal, and that the impugned statement was thus rather close to reality – that it disclosed facts, in other words. Furthermore, at no point did the court cast doubt on Spirk’s good faith or his compliance with ethical norms.

The court of second instance established that Spirk had merely exercised his right of expression in commenting about a public figure. Arguing that no criminal offence had been committed, it acquitted the journalist since there was no public interest that would justify the application of criminal law sanctions.

The Metropolitan Prosecutor’s Office did not leave it at that, however. As the “guardian of legality” it asked the Curia to review the decision, arguing that a violation of the law had occurred. This led to today’s hearing.

So here is another case in which the administration of justice has the opportunity to make clear that the press plays a key role in a democracy – by virtue of its obligation to inform –, and that freely operating journalism serves the public interest.

Moreover, the criminal offence of libel is not the appropriate instrument for redressing individual injuries suffered as a result of investigative articles. Applying criminal law sanctions achieves little apart from sending the press the message that it ought not meddle with public affairs or with the affairs of public figures. In other words it should not seek to live up to its role as the “guardian” of democracy, for the state whose citizens it strives to inform may even send it to jail for doing so. This subtle message is proffered by the very state whose obligation should be to safeguard the freedom of expression, and the freedoms of speech and press as part of the latter.

“An establishment of criminal liability would curtail the freedom of speech and stifle investigative journalism, which would in effect lead to the end of journalism.” This was written in a ruling concluding another case against Spirk – also initiated on the grounds of suspected public defamation.

At the hearing held on 21 November 2013, however, the Curia granted the prosecutor’s motion and vacated the ruling of the court of second instance, obliging it to hear the case again. It argued that the lower court’s decision had not been sufficiently grounded and circumspect. Like several other civil rights organisations, Mertek Media Monitor published a press release on the case.