We explain the illiberal public sphere

Everything that could possibly be said about the media law was said over and over again in this chamber since their birth. All that was said then remains true to date. Neither the letters nor the spirit of these laws are suitable for serving as the basis of a democratic public discourse, an open and diverse society. The institutions they establish are extremely centralised and monolithic, the procedures they lay out are unpredictable and their expectations inscrutable.

Despite some stopgap measures that were applied, the media laws of 2010 have not really changed. They still offer a reliable foundation for the efforts to destroy the public sphere.

Without the media laws there would be no Media Council with threatening control powers over all kinds of media. The Media Council is a parody of media bodies that represent societal and political diversity. While everyone anticipated vast fines totalling millions of forints and the open harassment of editorial offices in 2010, the Media Council’s powers concerning frequency tenders or its authority over public media institutions received considerably less attention. But it was precisely the abusive use of these authorities that have enabled the governing party to fully occupy the media market. The most recent evidence of this is the attack launched against the longest-operating (since 1991) community radio station, Tilos Rádió: since the station failed to scan in the empty back cover pages of the radio frequency application form, the Media Council has invalidated its application.

Without the media laws the unprecedented centralisation of the public media could not have been carried out. Now, its activities are primarily marked by servilism, dilettantism and wastefulness, and advancement opportunities are awarded based on the levels of spinelessness that employees are willing to exhibit.

Nevertheless, the media laws are not the most important instruments of Fidesz’s media policies. The main objective of the media policies is to comprehensively transform the structure of the media market in order to attain a dominant position in shaping public opinion. Fidesz is using several effective methods to further the realisation of this objective, including acquisitions extending to all segments of the media market, the manipulation of the advertising market through state advertisements and special taxes, as well as ad hoc regulatory measures that impede business planning.

Hungarian media policy became the centre of European attention once again this year, on account of the advertising tax. Back in 2013, the first version of the advertising tax served the purpose of warning off potentially interested buyers of Hungary’s second largest commercial television channel, TV2. As a result, the channel ended up in politically “reliable” hands. But even though TV2 is the greatest beneficiary of government advertising, it can only hope to escape its position of enduring unprofitability if its competitor RTL Klub is actively prevented by various governmental interventions from operating successfully. And that is precisely the goal of the advertising tax adopted in 2014. The tax is a serious financial and administrative burden on several media enterprises, and it is an openly discriminatory intervention in the media market; this year 80% of the revenue from this tax is paid by RTL. And to ensure that RTL would not have recourse to making up for the losses from other sources, the government has intervened in market relations once again by adopting a law which provides that national commercial channels be authorised to charge licence fees to platform operators, just as other providers do.

When I talk to European colleagues, NGOs and decision-makers, I often hear that the problems in Hungary are not massive enough yet. True enough, journalists are not shot or imprisoned in Hungary, nor are voices critical of the government filtered from the internet. Were such things done, then that would obviously lead to European funds being withheld, and the prime minister could no longer bask in his role as a “European” politician. Orbán is smarter than that. He has used the past few years to carefully sketch out the boundaries that he must respect if he wants to build a sustainable authoritarian regime within the European Union, retaining the benefits of membership. His regime has no need of occupying all segments of the public sphere, it is enough to lay his hands on the media outlets with the greatest audience reach. There is no need to jail journalists when vague media law provisions and the financial insecurity wrought by the weakness of the media market are in and of themselves sufficient to arrest any displays of courage that journalists might be prone to. The unpredictable political interventions that paralyse the media market make media companies vulnerable and ready to submit. The audiences in turn are fully disillusioned with politics and make ever less efforts to find out what the truth is. All these jointly work to bring about an illiberal and directed public sphere, which is monochromatic, incapable of dialogue and encourages an indifferent and obtuse attitude towards public matters. So when exactly are problems in Hungary going to be massive enough? What are we waiting for?

Part of the responsibility for this situation must be borne by European media investors, who, in the interest of their short-term pursuit of profits, decided that quiet cooperation with the government was preferable to assuming any corporate social responsibility. But everyone should learn in an illiberal democracy that the prime minister can at will raise up media empires and smash other conglomerates deemed out of favour.

When the European investors realised that the concessions they had received were not enough to ensure a stable business environment, a significant portion of these investors abandoned the sinking ship. In many cases they were also fully aware that the TV channel or newspaper they had left behind was going to be bought by Fidesz oligarchs. Those that chose to stay probably realised too late what the watchdog role actually entails.

Did the European Union fully deploy the instruments at its disposal to address this situation? Does it offer a way out today?

By formulating some cautious technocratic criticisms in 2011, the European Commission managed to wrest some minor concessions from the Hungarian government, which resulted in amendments of the media law. The EU did not avail itself of the option of interpreting the Audio-Visual Media Services Directive in conjunction with the Fundamental Rights Charter. Such an interpretation of the law would have made it possible to examine, for example, whether the regulation of non-audio-visual online contents was proportional, and it would have also provided the possibility of analysing the independence of the Media Council. It would have been an extraordinary attempt to address an extraordinary situation, which could have had a far-reaching impact on the future of European media policies.

Undertaking a European review of the state subsidies paid to public service media in Hungary, by contrast, would be nothing extraordinary. Billions of forints are being shovelled into the Hungarian public media, which essentially function as a government propaganda machine. This money is spent without any transparency or the independent external control that the European Commission theoretically requires. A consistent review of the use of state subsidies would be an efficient instrument not only against market distortions, but also against distortions of the public sphere.

The market-distorting distribution of government advertising and discriminative tax practices can also be adequately addressed with the traditional instrument of community law.

At least as important as regulatory measures are projects aiming at developing democracy skills, civic education extending to all of society, and programmes aimed at bolstering civil society and journalism free of political and economic constraints. There is only a chance for starting over again when democracy and Europe are regarded as real and truly precious values worthy of protection. Let us not waste another ten years.

It’s been almost two years since the publication of the Freiberga Report, which – despite some controversial conclusions – highlights the way forward for the European Union on these issues. “The link between media freedom and pluralism and EU democracy, in particular, justifies a more extensive competence of the EU with respect to these fundamental rights than to others enshrined in the Charter of Fundamental Rights” – says the report, backed up by detailed analyses and recommendations. Yet it appears increasingly likely that as ever so often in the history of European media policies, the expert recommendations will not yet again fail to result in political decisions.

These days Viktor Orbán is more afraid of Hungarian NGOs and domestic oligarchs than of the European Union. He does not regard the European Union as a check on his power. And why would he? With its weak compromises, the European Union ends up giving its own imprimatur to the government’s destructive policies. Indeed, as the Orbán’s regime main external source of funding, it even foots large portions of the bill.

Naturally, none of the European Union’s institutions bears responsibility for the decisions of Hungarian voters. But Europe needs to draw the line on what is compatible with European values and what is not, on where democracy ends and where authoritarianism begins. And it needs to do this in a way that all European citizens can hear that.  There needs to be a point where the European institutions make clear: one cannot opt simultaneously for the Community’s funds and the rejection of European democracy. No one is entitled to stop any single country’s population from believing in populist nightmares if they so choose. To protect its credibility, however, the Union needs to make clear that it will not contribute to the realisation of these nightmares through the community’s intellectual and financial resources.