The eyes of the world are on us – international assessments of the state of press freedom in Hungary

Author: Gábor Polyák

In the past weeks, several important international analyses have dealt with Hungary, including, among other things, the media situation here. Apart from a superficial press statement or two, the media and the public paid them no mind. By Gábor Polyák 

The Venice Commission, which operates alongside the Council of Europe and is made up of internationally recognised constitutional scholars, has drawn up a detailed and rather critical analysis of the Hungarian media laws. Freedom House has assessed that by 2015 Hungary had ceased to be a consolidated democracy. The German Council on Foreign Relations (DGAP), by contrast, analysed articles about Hungary in the German press and concluded that in their criticisms of the Fidesz government, German media tend to exaggerate and are typically wrong. The DGAP argues that on the whole, things in Hungary are going well.

In normal times, any and all of these analyses would be striking and immediately draw the public’s attention. These days, however, the portion of domestic public opinion that has taken any note of the analyses can’t even be bothered to dismiss them as trite; reactions are limited to assigning the respective analyses to the usual friend-enemy matrix. In the meanwhile, Europe is preoccupied with the Greeks and itself. Thus we are left with nothing but a deep silence.

Welcome to 2010

In my assessment, the Venice Commission’s report on the Hungarian media laws is the most important of the three documents. Yet even the media that are critical of the government failed to take away more from the document than the mistaken notion that the Venice Commission recognises the government’s efforts to promote press freedom. Though it is true that the Commission makes sure to include the usual caveats required by diplomatic norms of civility, ultimately the analysis is anything but complimentary of the government’s activities in the realm of press freedom. To wit, let us take a look at the Commission’s recommendations:

– The provisions concerning media content are vague and the media law fails to ensure that the state may only intervene in the creation of media contents in situations when it is absolutely necessary for it to do so. Certain provisions need to be removed from the law, therefore, while in other situations the Media Council must provide guidelines to facilitate the interpretation of the law.

– Journalists should only be required to reveal their sources when there is no other instrument available to solve a crime.

– The law must limit the applicability of severe media law sanctions to the most severe cases of abuse, and if a content provider turns to the judicial route to appeal, then the execution of the sanctions must be suspended until the proceedings have been concluded.

– Rules concerning the selection of the members of the Media Council need to be changed to ensure that there is a proper solution for the representation of various political and social groups in the media body. The excessive powers of the Media Council and its president need to be curbed, and the political neutrality of its members must be ensured.

– In line with the previously enunciated principles, the rules governing membership on the Public Service Board must be amended as well, and it is “recommended” that the provision of centralised news services be terminated.

– State-sponsored advertisements need to be distributed based on objective and transparent rules.

– The possibility of purchasing advertising airtime in commercial media to disseminate election advertisements must be restored in place of the current system, which only allows free advertising airtime under highly restrictive conditions.

So that is how the Venice Commission “compliments” the government’s efforts to facilitate press freedom. If these criticisms seem familiar for some reason, then that is no coincidence. Mérték Media Monitor and many others have been saying the same things, and for the most part we have been doing so since as early as 2010. Though Fidesz has refined some aspects of the law, overall these critiques have lost none of their validity. If the democratic opposition had at least some idea of what its job is, then it would triumphantly wave the Venice Commission’s analysis around in Parliament and score a major symbolic victory. The Commission’s recommendations make unequivocally clear that the media laws ought to be replaced. Today, the governing parties could no longer adopt a new media law without involving the opposition – though at this point Jobbik’s consent would be sufficient, even such a situation would have plenty of symbolic significance – and if then the new regulation were to actually follow the Venice Commission’s recommendations, then that would reduce Fidesz’s monopoly of power at the very least in the area of media governance. Nevertheless, I can’t recall any instance of a democratic party taking the initiative on this issue.

There are some elements in the analysis that display a clear understanding of the situation. The authors state, for example, that the appointment of the president of the Media Council by the President of the Republic is but an empty formality in the current system. If the President of the Republic has no alternative but to appoint the candidate nominated by the Prime Minister, then the involvement of the former in the process constitutes no guarantee of any kind. The Commission also proposes that NGOs and specialised organisations play a substantial role in nominating members of the Media Council − the analysis suggests that the possibility of submitting a non-binding opinion is not sufficient − and it argues that the NGOs involved should be selected in a transparent and fair proceeding. Any major financial, organisational or other links to the government or the Media Council ought to constitute a conflict of interest that is grounds for exclusion. This is relevant not only with respect to the Civil Alliance Forum (CÖF), a civil group aligned with the government, but also in the context of any organisation that is involved in co-regulation, and those that accept funding from the Media Council as part of latter.

Even if the report is plagued by some annoying mistakes, the Venice Commission’s analysis remains an important affirmation for all the critics of the media law. As for some of the mistakes: In reality, the protection of journalists’ sources is already regulated as the Commission proposes, only it appears that no one provided the Commission with a copy of the Code of Criminal Procedure. It is obvious that the Commission lacks a firm grasp of the finer details of the Hungarian public media system; it fails to understand the place that the Media Service Support and Asset Management Fund (Médiaszolgáltatás-támogató és Vagyonkezelő Alap, MTVA) occupies in this system, it does not understand that apart from the Media Council there is no institution whatsoever that exercises control over the MTVA. Though the analysis does contain the very important recommendation that the person in charge of MTVA be nominated by an independent body, and that the Media Council have no say in the election process, it fails to even raise what would seem like the most relevant question: To what end do we need the MTVA at all?

As a member of the Mérték team, I was especially sorry to see that the Commission’s analysis does not at all address the serious deficiencies in the regulation and actual practice of frequency tenders. Frequency tenders offer the most blatant example of the Media Council’s political bias. They are much more potent than the points cited by the Venice Commission, which suggest that the members of the Media Council “are perceived by the media community as forming part of the same political texture”, or, that in light of the two-thirds majority, there was a significant risk that political sympathy would prove the dominant factor in the nomination process. And, finally, with regard to the advertising tax mentioned in the analysis, I also miss a discussion of the question whether the special tax burdening the media market, which has been struggling with a severe crisis for years, with the inescapable effect of further reducing the resources available for producing media content, and further increasing the media’s vulnerabilities and dependence on politically-motivated financing, is not in and of itself sufficient to threaten media freedom.

None of these concerns diminishes the vital importance of the Venice Commission’s analysis in any way; the fact is that this document has once again opened up the possibility for a significant improvement in the state of press freedom. It will not be the Commission’s responsibility if in the end there will not be enough political will to assert the proposals of the legal analysis.

Not only illiberal, but also unstable

Just a few days ago Freedom House published its report entitled Nations in Transit 2015. The analysis provides a comprehensive survey of the state of democracy in the world, and it no longer classifies Hungary as a consolidated democracy.

Let us focus once again only on the issues that pertain to the media: The analysis suggests that the political and economic pressures brought to bear on the media over the last few years have significantly impaired press freedom. Of the cases in the most recent period, it highlights the Origo affair, the discriminatory advertising tax and the plan to introduce an internet tax. But it also alludes to the idea of subjecting journalists to mandatory drug tests and to further increase the powers of the MTVA.

The decline of public affairs news, self-censorship, the distorted distribution of state advertising spending, Fidesz’s rampage in the media market – the detailed report discusses all those problems that Mérték’s analyses have also highlighted in recent years. Several times throughout the report Freedom House points out that already before 2010 there had been serious problems with the way the media system operated. But if we take the problematic situation in 2010 as our baseline, then the Fidesz government’s policies since that time constitute a serious retrogression and deterioration of a situation that was highly problematic to begin with.

From an analysis of the press to whitewashing the government

The third document, by contrast, begins its analysis of the state of press freedom by stating that “[t]he Fidesz administration sought to use its 2010 electoral victory to break with the past in this field and create new and more balanced conditions.” That pretty much sets the tone for the rest of the document. But what is this analysis? It is nothing less than the report of a respected German think tank, the German Council on Foreign Relations (DGAP), entitled Hungary in the Media 2010-2014 Critical observations about press reports. 

The analysis looked at German press reports and sought to juxtapose them to the authors’ own interpretation of objective reality. It addressed not only press freedom, but a wide range of issues that affect the very foundations of democracy, such as the separation of powers and voting rights, all the way to corruption and the situation of Roma in Hungary. Based on its assessment of all these, the report concludes that “Hungary is still a free and democratic state that respects the rule of law”, and that German journalists often err and get carried away when reporting about Hungary.

But when it comes to the Media Council, even this rather forgiving document notes that in selecting the Council’s members, Fidesz “sought to secure its people in this position through as many legislative periods as possible.” Then it proceeds to rationalise all this with the rather silly argument that the Media Council’s predecessor, the ORTT, also used to be politically one-sided. On the one hand, no matter one’s opinion of the ORTT, this is simply not true in the trivialised form that the DGAP report suggests. More importantly, however, I have never understood how pointing back to previous sins can legitimise the sins of today. The authors go on to argue that after all, the Media Council is not even harassing media that are critical of the government, not even Klubrádió, and in the end the latter was ultimately protected by the courts, so there is no problem there anyway.

The analysis describes the situation of Origo’s investigation of János Lázár’s foreign trips (an investigative report by Origo revealed that two of the official trips by the minister in charge of the Prime Minister’s Office had cost taxpayers exorbitant amounts of money) as a “prime example” of “critical journalism”, which suggests a twisted sense of humour given the consequences of the critical reporting in question: the editor-in-chief was fired, most likely as a result of political pressure, and roughly half the newsroom left in solidarity. Even the authors themselves feel that they must make this picture slightly more nuanced, which is why they add: “Whether there is a connection between this case and the subsequent firing of Origo’s editor-in-chief is another matter.” Yet the authors feel that this statement needs to be qualified, which is why the add: “In light of the fact that the Lázár case was never fully cleared up, it is striking that even though they are not aware of all the details, the Hungarian and the international press have immediately declared that the events constitute a threat to press freedom.” Gergő Sáling, András Pethő − editor-in-chief and his deputy − and all the others have no one but themselves to blame, apparently.

The analysis brackets the issue of the vastly expanding Fidesz media empires by invoking the overused platitude that “viewed objectively, rightwing media were very disadvantaged” as compared to the “social-liberal sphere of influence” in the media. The entire study, which bases all its conclusions on unnamed experts, strikes the reader as trying too hard to avoid giving offence, which may be the reason why it ends up whitewashing the government’s action based on Fidesz’s overused, specious arguments. Incidentally, this is very reflective of the EU’s − and Germany’s attitude towards the Hungarian situation: We are aware that there is a problem, but we can explain it.

And of course it possible to explain anything away. One could say it appears that the Venice Commission has failed to appreciate the subtleties of the Hungarian regulation; everyone knows what Freedom House is; and though we might not know what the DGAP stands for, but in any case, it has compiled such a lukewarm text that ultimately says little apart from affirming that everyone is right and on one is quite wrong. After all, we have seen so many instances of such criticisms that resulted in no consequences whatsoever.