Atlatszo.hu proposes decriminalization of libel and insult in Hungary

Time has arrived to change the practice that public discussions end in courts: media outlets should not be brought to court because of privacy violation except in cases where the statement in question was made with actual malice. This time the atlatszo.hu does not request for data, but rather suggests the implementation of statutory amendments.

Regarding the statements and opinions offensive to individuals, criminal law contains unjustified parallels which leads to anomalous situations and causes unnecessary work both to the victims, the media and to the state outlets as well. Nothing but tradition supports the existence of libel and insult in Hungarian criminal law. Despite the fact that we got used to them, we still ought to see that time has arrived to move on.

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The undeniable fact that freedom of expression is a basic liberty protected by special constitutional guarantees does not mean that it cannot be a subject of wise regulation, but the legislator must construct norms considering the compelling interest (herein the protection of the privacy and integrity of the individual) and the requirement of proportionality: the legislator must choose the less restrictive method of regulation possible to achieve this goal.

The spectrum of plausible solutions is more than wide: those, whose good reputation was damaged or those who were subjected to defamation by an assertion of incorrect facts, can sue the media outlet in three different but anyway parallel ways. After a refused request for publishing a rectification by the media outlet in question, the plaintiff can institute civil lawsuit which completes in tight time limits, because of the damage on his/her reputation s/he can hope for damages (and from March 2014, according to the new Civil Code which takes effect in March 2014 s/he will not have to proove actual damage to recive a payment for compensation as a ’damage fee’), and nevertheless can accuse the particular media outlet of libel or insult before criminal court. In case of libellous opinion public rectification does not exist but if the offence is committed by the media, civil and criminal law sanctions shall be applied at the same time.

The plaintiff often starts all the possible proceedings influenced by her justifiable or so-thought or so-shown indignation. However, the criminal action is not necessarily the most effective solution even from her point of view: beyond communicative considerations (namely that the procedure stigmatizes the accused party) not much supports this choice. Fines imposed by criminal courts end in the public budget as they are rather punitive in nature, while the damages awarded in a civil action go to the plaintiff’s pocket, moreover in this latter case also the publisher and the broadcaster can be bound which means a more certain fulfilment. The civil law procedures (media- and media-rectification actions) nonetheless provide all of those opportunities which could be achieved in a criminal law action started by private prosecution.

The only remarkable difference is, that in the former case the examination of the private responsibility for the infringement in question presumably will be ignored which – considering the strict norms of the media’s responsibility – does not mean actual disadvantage, while saves time both for the plaintiff and for the police by eliminating the necessity of the investigation after the editor of the particular media outlet. We do not think it is necessary to explore in detail what would be the advantages for the media and for the courts of getting rid of the libel and insult cases. As a matter of fact, a well-functioning – and in the above mentioned case expectably tightening – court practice would be able to replace the criminal law on this field. Thus, we suggest the abolition of the two involved criminal law provisions (and with them also the connecting impiety) on condition that the “insult with assault”, which otherwise rather can be considered as a younger brother of battery, naturally should be saved.

In comparison, our two other, theoretically significant suggestions may seem only as technical clarifications. The evident competition among media outlets after the hottest up-to-date information is undeniable, and due to its special features in many cases both the broadcast and print media share information that originates from different sources whose genuineness cannot be verified even by accurately following the professional regulations. This risk must not encumber the media as it is able to basically discourage and chill the vital/robust public debate. Because of these problems, on the one hand we recommend the implementation of the so-called New York Times-rule into the media law (New York Times Co. v. Sullivan, 376 U.S. 254). Due to the almost half a century old rule the media outlets would be responsible only for actual malice, which refers to the intentional or reckless lack of investigation, rather than the ordinary meaning of malicious intent.

On the other hand, in connection with this first suggestion but on a narrower ground, we recommend an exception to the rule of rectification: the content of reports about public events should not meet rectification requirements, although about a latter judgment – which establishes that the report was unlawful in nature and has the force of res judicata – the media outlet in question ought to be obligated to inform the public.

We are convinced that these suggestions are able to expand the freedom of media and disencumber both the parties and the courts at the same time, while the level of legal protection against infringements shall not decrease.

Author: Csaba Tordai, Tibor Sepsi, Tamás Bodoky

This article was published in Hungarian here. The text was translated by Emese Szilágyi.