The freedom of the press and its legal limitations in Hungary

The juridical parctice, developed previously and based on law has many different tools and can cause much more sophisticated impact, then the direct application of the new regulation. László Bodolai, attorney, member of the board of atlatszo.hu summarizes the legal framework limiting the freedom of the press in Hungary.

1.Legislative background

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The written and printed press were recently regulated in Hungary by the Constitution (Act XX. of 1949), the civil code (Act IV. of 1959) and the act of press (Act II. of 1986) and the Decree No. 12/1986 (IV.22.) MT of the Council of Ministers on its implementation. To the so called electronic media field – except internet – was the Act I. of 1996 on Radio and Television Broadcasting (so called Act of media) to apply. The internet content was regulated on one hand by civil code, and on the other by the E-Commerce Act (Act CVIII. of 2001 on certain issues of electronic commerce services and information society services )

The Constitution is going to be relocated from the 1 of January by the new constitiution called „The Fundamental Law of Hungary” which doesn’t modify the regulation on freedom of press and of expression in principle.

The Act of press and the Act of media were replaced by the Act CIV. of 2010 on Freedom of press and the basic rules of media content. Even the Act CLXXXV. of 2010 on Media Services and Mass Media contains strict rules concerned printed press and internet media.

2. The practical application of new legislation

According to the practical application of the two new Acts mentioned above, it seems not to be realized the concerns and awerenesses published previously. The redactions heven’t been harried by authorities, and the National Media and Infocommunications Authority has limited his practice and fined just reality shows allready. The Media Authority made so called „contracts in public law” with different professional organisations for probing of claims against his fining practice both in the field of electronic and printed press.

The juridical parctice, developed previously and based on law has many different tools and can cause much more sofisticated impact, then the direct application of the new regulation.

Press rectification and moral law litigation

The press rectification is one of the tools of moral law protection. The concerning paragraph of the civil code, declined in 1959, – which was literally taken over into the new Act IV. of 2010 says, that „If a daily newspaper, a magazine (periodical), the radio, the television, or a news service publishes or disseminates false facts or distorts true facts about person, the person affected shall be entitled or demand, in addition to other actions provided by law, the publication of an announcement to identify the false or distorted facts and indicate the true facts (rectification)”. Since then, there haven’t been any significant modification of the texture of this act, some decisions of the Civil Devision of the Hungarian Supreme Court, and the Constitutional Court of Hungary can be seen as an effort to modify this strictly formed paragraph. As a result, there have been developed the practice, that in a trial for press rectification the mentioned press announcements have to be covered in total, and the non-relevant parts in the view of the claimant, some incorrections, and non relevant mistakes can’t be enough base for a press rectification. An opinion, or a debate also can’t be enogh cause for a press rectification. The court has to measure the circumstance, to which of the abovementioned categories the claimed part of the text falls. The judges don’t have any practice in journalism, they aren’t linguists, although it would be needed to judge some facts. Because of this, they use analogically the sooner passed judgements, which means that they base their judgements on the sooner developed juridical practice.

For that question, why there can’t be seconded an expert in those cases, can be given an easy answer: the respective provisions of the civil Code Procedure make it impossible. The hungarian procedure law forces the claimants into an unequal and unfair position: it has to be submitted all of the evidencies for the first session in the trial, more evidencies can’t be submitted later, in most cases the court passes the first decision at the end of first session. It happens frequently, that the press buys news from a news-agency, or publishes articles reffering to another by a press review. After the publishing of them, the newsparer is responsible for this announcement as its own, it can’t been referred in a press rectification trial, that it is an article taken over, or a news from a news agency, the reality content has to be proved by the newspaper. Some news-agencies clauses in their terms of contracts, that they don’t take any responsibilty for the content of broadcasted news. In this situation, it’s easy to imagine, what kind of tools do a newspaper have to defend itself, in case of a fact-finding report for example. It is not enough to refer to an informant, because it is only a rumour in itself, and the informants of newspapers don’t use to take any personal testimony. The newspaper can’t ask for documents from an official authority during the whole process, despite the fact, that for example he has a knowledge about the exist of it, if their aren’t submitted in the first session of the trial, according to the presently rules, the other actor can refere to that, that there aren’t any evidencies at all.

It can also happen, that the actor advocate denies the fact the process, who is – generally known- a legal counsel in the process. Referring to this facts it seems, that the newspaper doesn’t have any choice to win in such a trial, if he doesn’t prepare with experts, linguists, the whole documentation of the evidencies – with a precision of a prosecution, for the first session of a press rectification trial. In such cases he can only hope, that the other actor makes mistake in the procedure, or passes deadlines, submits incorrect petitions, or he has to rectify, even if it was true, what he published, but he only has indirect evidencies.

This unfair position in trial of press makes the press-freedom most vulnerable. In many cases can be asked for rectifition because of false term conditions, incorrect used legal terminologies, misunderstandable attributes, or opinions, which can be thought as a fact. It isn’t needed to pay duty before the trial. It is positive, that the whole trial is only about of publishing of a rectificion announcement, in case of loosing, any other sanctions can’t been applied at all. The cost of procedure has to take loosing party of the procedure.

The moral law trials – which can be initiated with the press-rectificion processes at the same time – differs from the press-rectification in their procedure, which means, that they leave more opportunities for the defendant newspaper for proving, it isn’t needed to submit all of the evidencies at the first session. But the moral law cases most can be sanctioned by so called „indemnity for non – pecuniary damages”, thererfore publishing houses can be fined for billions of Forints as well. State – owned companies, or authorities frequently use this opportunities.

Legal practice for internet contents

The legal practice applied for electronic contents is the same with the juridical practice applied for printed press.

The main problem of the legal practice is the tackleing of violations in connection with the so called „user contents”, and the legal responsibility concerning of this.

The Act CLXXXV. of 2010 on Media Services and Mass Media, and its sanctions – declined to apply from 1 July 2011 – left the problem of comments attached by readers, users to edited articles, and blog notices uncovered. Because of this unclear legal situation, many internet sites stopped the reader comments attaching to the articles or bouned them to prelimenarly moderation, which lead to an outcry in this sphere. Many opinions louded, that it is a restriction of the government in the sphere of press freedom, and the internet providers followed it on his own willingness. The leader legal counsel of the Media Authority published an anouncement, according to this, that new media regulation doesn’t have any effect to the comment attached to the articles, blogs, forum-topics, which count as user content and for the comment – even if they can violate the law – is the internet provider not responsible.

During this – the Media and Communications Supervisor ( who is functioning independently from the Média Authority) initiated a process against an internet-provided daily newspaper, because of a comment to a forum-topic. The fact, that even the practicing lawyers can be confused, when they have to decide, which regulation they should apply, makes the situation much more difficult. Even in the earliest age of internet arised the question, if the forums generating so called users content (without any influence of editors) could assure such wide ranged freedom, that many imagine.

The forums in Hungary had been developed as „vitual Hyde-parks” at the beginning of the 2000’s, provided a free speech for everybody in every topics, and it is enough, if the user registeres himself at this surface. Because the datas given in at the registration couldn’t been checked, it povides anonymity for the users, with the help of the nick name – given in during the registration.

The surfaces of this forums are usually generated by a provider, as a secondary, public service.

To avoid misuses, the internet society developed its self-regulating system relatively fast. Every hungarian provider created its own guide of regulation. The forums provide basically non-edited contents, the disturbing and not-wanted posts are measured by a board, which members are usually elected from the users. It is clear, that forums have became a wide popularity in a sort term, because everybody could publish his opinion about every actual topic, could start new forum topics, and they could have have been closed everybody to.

The contents and number of users of the widely popular forums have raised unstoppably, one of the biggest of them have received a number of 500.000 users, and the users commented more than 30.000.000 times every 100.000 topics. Many times, perhaps in countryside, where the local press is stricter controled, only the forums provide the possibility for speech to whom, who don’t have the opportunity to make their opininon in press public. It is clear, that such a big amount of comments is impossible to check, control and moderate, but i t seemed, that forums can self-regulate himself, and it didn’t cause any legal problem to provide them.

The legislation could have follow only just very slowly this new phenomenon, while the operative acts were only just hard to apply in case related to the „internet-society”, but the legislation founded his tools to control it, destroy its barriers, and the mtih of the unlimited freedom of internet. It was shown int he first trials of slander and defamation, that it is not so easy to hide ont he internet: in case of a criminal process, the internet provider has to hand over the internet e-mail and IP-adresses for the authorities, at this time, a careless internet user can be identified easily.

It is clear, that many injurious comments can be confused among the great ammount of legal comments, but this fact could have been tackled right by everybody. It happened many times, that politicians also took part in discoussions about a topic in the internet, or parties, ministries developed their own monitoring systems whith their own staff to be able to take part at the right moment in topics related to them .If a topic was forced to be removed, it caused the controversal result. The nature of internet is, that many other topics have been developed in a sort term at another internet provider. Tough, it was just a matter of time, when this new tool for free speech have collided with the legal regulation. In addition to the civil and criminal codes  have appeared  new EU- directives related to internet – like the Act on e-commerce –that makes the responsibility for content for the internet-provider accountable.

The Act on e-commerce makes the internet – provider responsible for the content especialy in cases, if he gets to know about the legal injury. It means, that it is enough to send a warning mail to the providers public and e-mail adress, or to the moderators, and the internet provider can be handled as responsible as its own for this comment. Because the great ammount of comments and topics, it is impossible to handle every notices.

At the same time whith the appeareance of blogs, the forums –as a tool of public communication – started to became more and more old-fashion like, or out of time, but the system how it works is the same. The operator of the blog- system provides a Host for users for free – based generally on anonym registration, and the users can keep a diary in internet both thematically or spontaneously. Theoretically, only the owner of the blog, and the internet provider has the possibility to remove the injurious and defamatory comments. Because of the fact, that this service comes under the rules of the abovementioned Act on e-commerce, nobody is obliged to prelimenarly moderate or control the comments, except if the injurious contents subsist, despite the fact, than a removal request has been passed. Because of this, the providers create their terms of conditions for users in such way, that this requests can be received not only by the owner of the blog, but at same time by the internet provider as well, who also entitled to remove the comment or to do the whole blog site to inaccessable – despite of the protest of the owner of the blog. This protocol had been accepted to the near past by the juridical practice, and the judgements releive the provider of responsibility for the injurious content, if he – fulfilled the request in a term that can generally be expected – removes the content.

A several days long inquiry, led by the internet provider can also be counted into the generally expected time. It is generally used, if the provider would like to make sure about the legitimacy of the request: for example he doesn’t think, that the fact is validly proved, that the righ owner is requesting to remove the injuriuos content, and he is asking for more datas from the suitor to prove his right of acting.

It’s an evidence, that the blog sphere has an influence on the modern journalism, freelance juornalists, political analists, amateurs got used to blogs very quickly, and many times, the that way appeared journalists and publicists have more talents in this, reacts faster on an issue, then their colleagues, working in full-time. Greater internet websites have found out,  that it would be a mistake to let this contents uncovered, therefore it became a part of their standard practice, that they publish this user contents on their title-page, in addition to the edited, self created contents. And because of the fact, that the informatic application – to publish this user contents – was available, it has became common, that it is also possible to publish comments and notices to the self edited articles as well. in this process, the user and edited contents got to be confused, and making the legal distinctions became more difficult. The comments on forums, blogs, and edited articles don’t come under the Act on e-commerce, because they are classified as a private notice, but the role of the provider isn’t defined int ha Act properly, so the legal practice described them as host provider.

Because of the abovementioned difficulties of the legal distinctions juridical decisions passed recently, content astoundingly restrictions. While a forum, or a blog-service works indepently only in itself, the juridical practice acknowlegded the the exemption of the service provider from liability, in case he fulfills the prescriptions and conditions of the Act on e-commerce, which means that he isn’t obliged for a prelimenarly moderation even more. But in case, if there are any signs or suspects, that the edited and user contents could have been confused in any way, – it can happen, if it is about a forum attached to an article, or user blog-notices published on the title page of the internet site, and – at last but not least comments of users attached to the article published  by the editorial houses- either the provider either the publisher can be responsible for this „external content”, although their didn’t have any influences on the content of them.  The reasons of the juridical decisions, established the liability, have the similar consequences: any comments to the edited articles – and the blog published ont the title-page of the website can be handled so – in fact count to readers letter, for that content has the editor (according to the present rules the publishing house also) to take responsibiltiy. According to this decisions „the editor has enough technical tools, to control this contents even if before they will be published”. This practise was precised by a judgement recentlly, which says „the comments and notices can’t come under the rules of Act on e-commerce, because they havet to be considered as private messages”.

In consequence, the comments and readers contents aren’t risked by the new media regulation, then the restrictive juridical practice about the Act on e-commerce. This signs were to recognize much more earlier in the practice of trials of moral or press rectification, but this distress has been recognized only in the near past by the editorial houses, and by many providers. Moreover, this practice can be misused, because there is the opportunity to everybody to generate injurious contents related to itself, and can later do it as a matter of a trial.

The first public law judgements in this matter can show, how is to handle the liability for the contetnt of comments according to the new sanctions.

Protection of sources on field of journalism

Even the earlier and the present regulations assure the protection of sources, but the authorities can interpret this rules in a very creative way. The privacy options, which are available for attorneys, priests, doctors, aren’t the journalists legal due. Many atrociteis were led against the journalists, according for prosecution processes initiated earlier, and it was possible both based on the earlier both on the recent regulation.

The editor in chief of the website atlatszo.hu, started in july this year, in the first week of functioning the website was sued as a witness in a process, that was initiated because of a news about of a hacker attack. He didn’t handed over his source, so the authorities sequestered a data carrier in his flat. The claims of the journalist against this measures were refused even by the Police and by the Prosecuiton, according to the statement of the Prosecution, that the journalists isn’t due to protect their sources.

Criminal threat

Some expert suggested in the debate about the new conception of the hungarinal crimal code, that that defamation and libel both should be put out from the criminal law, because the liability for damages is enough, and a suitable compensation for those damages. But it is not probable, that the legislator does it. Now, if somebody thinks, that his honour was offended by a libelous statement, or was disseminated false facts about him, has the opportunity in 30 days to initiate a criminal process, based on a private accusation – with paying a small amounted duty. Practically there is no professional control in this process, because, there isn’t any prescriptions in the criminal process law in those cases. The private accusator overtakes the role of the prosecutor in this case – but it is possible to due the claim by the prosecutor. The private accusator can be represented by an attorney as well. If the private accusator doesn’t accept the offered apology from the other party on the first session, the court is obliged to due the process.this seems to be a correct process at the first wiev, buti n case of some falls it seems to be another in reality.

Perhaps the journalists are the suffering victims of those ciminal processes. for example the journalist, who wrote about a state owned winery, criticising its products belonging to the lower prise category with the statement, that theese are „undrinkable”. But even they contain added sugar, and smell like „musty barell”. The winery made its complaint,. At the first – personal session – of the trial the journalist acknowleged, that he has written the article (originally the article was signed with his signature). We were waiting the other sessions of  the trial, but instead of it we were given a judgement. The court sentenced the journalist to a reprehension without sessions – bsed on a proposal of the prosecution. The case hasn’t been closed jet, there heven’t been any reactions from the court to our propsals since half a year. The case was led through the hungarian remedies system, every levels sentenced him. On the end of the process, the Court of Human RIghts in Strassbourg releived him.

An other journalist, called „rascal” a suspect of a fraud related to a real estate company, who was cought while he was flying and brough back hancuffed from abroad. The court measured it to a serious defamation, that it didn”t approved the claim for the proving for reality. Accorded to the Acts, this is possible. The court said the journalist guilty, and sentenced to reprehension.

The abovementioned cases aren’t single examples. It is true, that in most cases are bought convictions, but with this tool is not difficult to criminalize somebody. The reprehensions are also registered, which can have a serious effect if somebody would like to aply for a job, or even on sentencing traffic offenses.

László Bodolai