S.C. Services tanulmány 2015 by Tamas Bodoky

2019. 05. 03. atlatszo.hu 1 Legal analysis on the international context of the Hungarian Media Law and on the Hungarian implementation of certain pieces of the EU Law

2019. 05. 03. atlatszo.hu 2

Media Law

Concerns and amendments regarding the new Hungarian media legislation and media supervisory bodies

1. Summary of the relevant criticism

The structure of the new Hungarian media regulatory framework - most notably Act CIV of 2010 on "The Freedom of the Press and the Fundamental Rules on Media Content" (hereinafter: Smtv.) and the Act CLXXXV of 2010 on "Media Services and the Mass Media" (hereinafter: Mttv.) - has been criticised by the European Commission, the Council of Europe and in parts of the Tavares-report. The previous Act 1 of 1996 on the Media being an outdated regulation of 14-years, the Parliament decided to set up a new legal framework, taking the recent technical requirements into consideration. At the time when the previous Act on the Media was adopted, internet, online and on-demand media services were barely known to the public. Not to mention Act II on the Press, which dates back to 1986 and was adopted by a communist Parliament. The new laws attempt to catch up with international tendencies in order to establish a state-of-the-art legal environment for the Hungarian audio-visual media and the printed and online press, as well as to reshape the outdated media supervisory scheme. In order to fulfil the latter, the new taws established the socalled convergent media authority system. The former Hungarian broadcasting regulatory authority functioned separately from that of the telecom sector. However, taking into account the recent European tendencies (e.g. Ofcom in the United Kingdom), the Hungarian legislator decided to integrate these organs into a single body, bearing in mind the ever increasing convergence of broadcasting and telecommunication services.

The above mentioned new laws of Hungary have met widespread criticism across Europe, but most

of the

disapproving

comments

are based

misunderstandings

and

misinterpretations and may well be the result of ignorance of the actual text of the relevant Hungarian laws.

2019. 05. 03. atlatszo.hu For instance, in its request for the opening of a monitoring procedure of Hungary - which, 3 eventually, was not launched - , the Council of Europe requested the Hungarian authorities to: 1. abolish registration requirements for print and online media; 2. separate functionally and legally the Media Council from the Media Authority; 3. ensure that, by law, all decisions of the Media Council or Media Authority can be appealed before a court of law, both on substance and procedure

2. Detailed Legal background

Below, opinions and reports of the relevant international- and EU-bodies can be found, as well as reports and a background paper provided by the Hungarian Government, which was conducted before the submission of the Fifth Amendment to the Fundamental Law.

â&#x20AC;˘

Request of the Monitoring Committee of the European Council for the opening of a monitoring procedure in respect of Hungary (25 April 2013)

"135. European Commissioner Kroes expressed her strong reservations with regard to the media Acts and indicated that several provisions in this law seemed to be non-compliant with EU law, in particular the Audiovisual Media Directive, the Treaty on the Functioning of the European Union on the freedom of establishment and the freedom to provide services, as well as Article 11 of the EU Charter of Fundamental Rights. The European Parliament, on 10 March 2011, expressed its concerns with regard to the media legislation and called upon the Hungarian authorities to fundamentally reconsider and amend the media legislation package. On 9 February 2012 the Commission indicated that it would consider starting Article 7 procedures if Hungary continued to flout EU law."

Comments: as mentioned above, the Hungarian Government agreed to amend the media legislation upon the requests of the European Commission.

http://wvny.a55emhlv.coe. int/Communicati^

"136. The then Council of Europe Human Rights Commissioner, Thomas

2019. 05. 03. atlatszo.hu 4 Hammarberg, also

expressed his concerns about what he termed the "corrosive cumulative impact" of the new media legislation on the freedom of the media and freedom of expression in Hungary. His report highlights his concerns with regard to, inter alia, the, "politically unbalanced regulatory machinery with disproportionate powers and lack of full judicial supervision", threats to the independence of the public broadcasters, infringements of the rights of journalists to protect sources, as well as attempts of a priori content regulation."

Comments: members of the Media Council are elected by the Parliament, similarly to the members of the previously existed National Radio and Television Commission (ORTT). Moreover, to be elected, members shall obtain a two-thirds majority of the votes of the Members of Parliament present, as opposed to the previous regulation that allowed members of ORTT to be elected by receiving a simple majority of the votes. The former according to the adopted international standards - guarantee a broader legitimacy. Although critics say that the new Media Council is partial, the following has to be underlined:

Members of the previously existed media authority, the ORTT, were also nominated

by the

parliamentary groups and

were elected by the

parliamentary majority. Although every faction had the right to nominate (at least) one member according to a complicated calculating method, in tight situations the deciding vote was with the Chairman of ORTT who had been nominated by the Prime Minister and the President of the Republic and elected by the actual parliamentary majority. At the end of the day, the decision-making procedure and the voting ability of ORTT reflected the political proportion of the Parliament. o

Members of the current Media Council were also nominated by factions and elected by the parliamentary majority. All of the parliamentary parties were invited to join the ad-hoc committee nominating 4 candidates for the Media Council - 2 representing the 'governmental side' and 2 the 'opposition'. As the 3 opposition parties at the time (socialist MS2P, greenish-leftish LMP and far-right Jobbik) could not agree on whom to nominate, they refused to join

the ad-hoc committee, thus failing to practice their right

2019. 05. 03. atlatszo.hu by law at their own5

discretion. o

On the other hand, the new media laws also established the 'Board of Trustees of the Public Service Foundation', which is the owner of the public media service providers (e.g. Hungarian Television, Hungarian News Agency etc.) The Parliament shall elect six members to the Board of Trustees, which therefore consists of delegates of the parties. Half of the members who may be elected by the Parliament to the Board of Trustees shall be nominated by the governing factions, and the remaining half by the opposition. This body and its authority is important for two reasons:

â&#x20AC;˘

While the 3 above mentioned opposition parties refused to nominate 2 members (out of 4) to the Media Council - due to disagreement about who should get a seat -

they willingly participated in the

nominating and election procedure of the members of the Board of Trustees of the Public Service Foundation, as there was one seat available for each opposition party (altogether 3 seats). â&#x20AC;˘

As outlined above, the Hungarian public media is owned by this bipartisan Board of Trustees: thus the statements and argumentations about the Hungarian public media's dependence on and subordination to the government obviously lack legal foundation.

"137. Responding to domestic and international criticism, a number of amendments were introduced. These amendments limited the requirements for balanced coverage to broadcast media only; specified that foreign broadcasters could not be fined under the Hungarian media law for incitement to hatred; clarified that on demand media providers only have to register after they began offering media services; and clarified the provision that media content may not "cause offence" in such a manner that this is limited to discrimination or incitement to hatred. While these amendments were welcomed as a positive step in the right direction, they were seen as insufficient to address all the substantial shortcomings and concerns with regard the media laws. On 19 December 2011, the Constitutional Court of Hungary issued a ruling in which it declared unconstitutional the 5

provisions which extended the scope of the media law to the online and

2019. 05. 03. atlatszo.hu 6 printed press as

well as the provisions that obliged broadcasters to provide the Media Authority with any and all information it requested. In addition it ruled that the powers of the newly established Commissioner for Media and Communications were unconstitutional as being an unjustified restriction of the freedom of the press and annulled the provisions that would have obliged journalists to reveal their sources in legal proceedings. The court gave the legislator until 31 May 2012 to introduce amendments to the media legislation in line with the ruling of the court."

Comments: As already referred to in point 2 of this chapter {Concerns and amendments regarding the new Hungarian media legislation and media supervisory bodies - Measures already taken to mitigate criticism) and what the report of the Monitoring Committee of the European Council fails to mention, the Hungarian Parliament adopted the Act No. LXVI of 2012 on 4 June 2013 as a reflection to the ruling of the Constitutional Court: the Act implemented the required amendments.

"138, On 11 May 2012, the Council of Europe Directorate General for Human Rights and the Rule of Law published an expert assessment of the Hungarian media legislation, including on the proposed amendments to the media laws following the decision of the Constitutional Court. EU Commissioner Kroes welcomed this expertise which confirmed the concerns of the European Commission with regard to the media legislation in Hungary.

139. The expertise emphasised that in order to be brought into line with European democratic standards any regulatory system for the media should be capable of guaranteeing and, equally important, be seen to guarantee, the independence of this regulatory system from political influence and control. The key to this independence of the regulatory body is the manner in which it is appointed. However, in the case of Hungary, the Council of Europe assessment established that the process for appointments to the media regulatory bodies "do not ensure political independence or neutrality". In addition, it noted that existing safeguards in the act were seriously undermined by the fact that the ruling coalition holds a two-third constitutional majority in parliament. It therefore recommended a thorough reformulation of the appointment process to the media regulatory bodies." 6

2019. 05. 03. atlatszo.hu 7 Comments on point 138-139.: The Hungarian Parliament amended the media laws also upon the recommendation of the Council of Europe on 25 March 2013 (Act No. XXXIII of 2013). According to the amendment, the Chairman of the Authority shall be appointed by the President of Hungary upon the proposal of the Prime Minister, and the Chairman and the members of the Media council shall not be re-elected after their mandates expire.

"140. The new media laws extend to the printed and online media the obligation for media providers to register with the Media Council, in addition to the usual linear broadcasting media. This obligation caused considerable disquiet among inter alia, national and international media outlets as well as international organisations. While licensing audiovisual media that use scarce broadcasting frequencies is accepted under the ECHR, the mandatory registration of print and online media - beyond simple tax or business registration- is contrary to the principles of proportionality established by the case law of the ECtHR. This mandatory registration of online and printed media was not annulled by the Hungarian Constitutional Court decisions, and the amendments introduced by the Hungarian authorities do not address the concerns expressed in this respect. We therefore recommend that the requirement for printed and online media to register with the Media Authority be abolished."

Comments: As mentioned above, registration is not a precondition for starting such a service or activity. On the other hand it shall be underlined that, prior to the new media laws of 2010, all printed press products were subject to mandatory registration. According to the Act No. II. of 1986 - another law implemented by a communist, non-democratically elected Parliament-the production and publication of press products were subject to the obligation of (prior) notification. Moreover, the details of the registration/notification were laid down in a decree of the communist Council of Ministers (the Government at that time) from 1986: a government agency, such as the National Office of Cultural Heritage, is a subordinated organ of the Ministry of Culture. Compared to the effective regulation, this type of registration of the printed press - which was in effect until 2010 - was much stricter.

"141. Of special concern for the Council of Europe experts are the provisions

2019. 05. 03. atlatszo.hu in the media8

law that aim at establishing government control over both content and dissemination of information provided by media outlets. The law establishes that a person has the right to receive "proper" information on public affairs. Moreover, media providers are obliged to provide "authentic", "comprehensive", "factual", "objective" and "balanced" information about public affairs. These criteria are subjective and open to interpretation, which leaves excessive discretion to the regulatory authority. This in turn raises serious questions about the compatibility of such provisions with the principle of freedom of expression as guaranteed by Article 10 of the ECHR. These provisions should be completely revised in order to remove any ambiguity or discretion on the part of the media authority in interpreting these clauses. Moreover, any interference with regard to the content of news coverage by broadcasters should be eliminated, with the exception of the obligations for an impartial and balanced news provision by the public broadcaster."

Comments: The criticized part of the Smtv. has been amended a number times in the past years. Firstly, the above mentioned Act No. XIX of 2011 narrowed the scope of the obligation of balanced coverage solely in the case of 'linear media services' (i.e. tv and radio). Secondly, the Act No. XXXIII of 2013 changed the wording of Smtv: instead of "proper, authentic, comprehensive, factual, objective, balanced" coverage, linear media service providers are obliged to give "balanced coverage".

"142. In the view of the Council of Europe experts the regulation of the public service media is another area of concern. Several provisions in the media law, especially with regard to the appointment and composition of the oversight bodies, undermine the independence of the public broadcaster and open it to undue political influence.

143. Independent and impartial media regulatory authorities are essential for the protection of the freedom of expression and the exercise of free speech, as guaranteed in Article 10 of the ECHR. In this context the criticism and concerns raised by the Council of Europe experts in relation to the regulatory framework for the media in Hungary are very worrisome."

2019. 05. 03. atlatszo.hu 9 Comments on points 142-143: See above the comments given for point 136 and the part '2. Measures already taken to mitigate criticism'.

"144. The National Media and Info-communications Authority consists of several interrelated bodies, the most important of which are the President of the Authority, the Media Council and the Office of the Authority. The President of the authority is directly appointed by the Prime Minister, who has full discretion in this choice, for a nine-year term. The vice-presidents of the authority are in turn directly appointed, for an indefinite term, by the President of the Authority. The Media Council is appointed by the parliament. However, according to the media law, the President of the Authority is the only candidate for the position of Chair of the Media Council. If the parliament fails to elect the President as Chair of the Media Council, he or she will still chair the Media Council, but in this case without voting rights. All other members are appointed by the parliament on the basis of nominations by a Nominations Committee that is comprised of members of all factions in the parliament. Each member on this committee has a weighted vote corresponding to the numerical size of his or her faction in the parliament. The Nominations Committee should strive to make its nominations on the basis of consensus, but if it fails to do so, it can decide with a two-thirds majority of the weighted votes. Under the current composition of the parliament, this de facto guarantees full control of the ruling majority over the Media Council. The appointment mechanism of the Media Council and President of the Authority is insufficient to guarantee the independence of the Media Authority from political interests and control. This problem is compounded by the integration of the licensing media oversight functions in one single media authority - unique in Europe - and the automatic designation of the President of the Authority as Chair of the Media Council. It is strongly recommended that the licensing and media oversight functions are split into two functionally separate and independent bodies and that the appointment procedure for these bodies is reviewed so as to ensure the de facto political independence of its members."

Comments: See above comments on point 136. As stated in the recent amendments, the Chairman of the Media Authority is appointed by the President of the Republic and his/her mandate shall not be extended. The Media Council and the Media Authority exist and work as separate bodies; the opposition 'voluntarily' refused to join the Nominations Committee.

It is highly apparent that the argumentation focuses on the 'current

2019. 05. 03. atlatszo.hu composition of the 10

parliament' rather than the legal background and facts.

"146. In his letter to the Minister of Justice of Hungary of 29 November 2012, the Secretary General of the Council of Europe indicated that further amendments to the Hungarian Media Acts were necessary in order to guarantee the independence of the media. To that end, he suggested separating the functions of President of the Media Authority and Chair of the Media Council, to have these persons elected by parliament and not appointed by the Prime Minister and to limit the term in office to one mandate. In his response of 19 December 2012, the Minister of Justice informed the Secretary General that the authorities accepted his suggestion to limit the term in office of the President of the Media Authority to one mandate, but rejected the proposal to separate the function of the chairmanship of the Media Council from the President of the Media Authority or to review the appointment procedure for this post. The integral implementation of the proposals of the Secretary General of the Council of Europe would have been an important step towards ensuring the independence of the media regulatory bodies. We therefore regret that his proposal was not fully implemented by the authorities."

Comments: See comments above on points 136. and 146. Media Council and Media Authority work separately, the Chairman is appointed by the President of the Republic (instead of the Prime Minister) and the term of the Chairman and the Media Council members is limited to one mandate etc.

3. Measures already taken to mitigate criticism

Following the European Commission and the Council of Europe's initiatives, the above 2

mentioned laws on the media and the press were modified on numerous occasions. Important parts of the laws were annulled by the Constitutional Court in December 2012.

ivHnVnol.hu/medii^file/atta(^61/I0AK)/000001061-185S.prtf

•

Following the administrative letters of the European Commission and

2019. 05. 03. atlatszo.hu negotiations11

with Commissioner Neelie Kroes , the Parliament adopted Act No. XIX of 2011, which 3

amended the provisions in regard to balanced communication and requirements of registration for the printed and online press, as wel as annulled potential fines for foreign media service-providers (promulgated on 22 March 2011) •

In its Resolution 165/2011. (XII. 20.), the Constitutional Court annulled several provisions of the media laws including provisions containing the same regulations and requirements for both the media services and the press (promulgated on 19 December 2011)

•

Due to the Constitutional Court requiring the Parliament to amend some of the media laws, following communication with the Council of Europe and in order to avoid an unconstitutional situation, the Parliament adopted Act LXVI of 2012, in which it modified the points of the laws that had been declared unconstitutional by the Court. This amendment put among other things the situation of journalists straight, especially with regard to the security of information sources: according to the new regulations, journalists shall not be obliged to reveal their sources of information during legal procedures (promulgated n 18 June 2012)

•

Following negotiations with the Council of Europe, in order to secure the independence of the President of the National Media and Infocommunications Authority, the Hungarian Government agreed to amend the media laws once more. According to the amendment, the President of Hungary shall appoint the Chairman of the Authority upon the proposal of the Prime Minister, whereas previously the Prime Minister itself appointed the Chairman. (Act No. XXXIII of 2013, Promulgated 4 April 2013)

Since the opinion of the European Council was published on 25 April 2013, the above mentioned points - having already been answered by the amendments at the time - appear to be somewhat unjustified. A few examples:

• 3

"Separate functionally and legally the Media Council from the Media Authority":

hltp7/etiropii.euA-apid/press-release MEMO-) 1-89 cn.him httD://www.parlameiit.hu/irom3O/07022/Q7022-0066,edf http://www.parlamefH.hu/irom3Wl005 I/I005l"-0017.pdf

2019. 05. 03. atlatszo.hu 12 As noted before, the technological developments of the 2 1

century required the

establishment of a convergent authority-system. On the other hand, the National Media and Infocommunications Authority ('Media Authority') and the 'Media Council' work separately and independently from each other. Nevertheless, from a purely technical point of view, the Media Council is an organ within the Media Authority. However, in order to comprehend the legal situation and hierarchy, provisions of the Mttv. shall be quoted and read carefully. Subsection (1) of par. 109 of Mttv. says that "the National Media and Infocommunications Authority is an independent regulatory body solely subject to the law". It is important to underline that the new Media Authority is an independent regulatory body and is not subordinated to the Government unlike the previous Hungarian authority, the National Infocommunication Authority (NHH, pre 2010), which was a government agency and thus dependent on the government.

While the Media Authority is an independent regulatory body, "The Media Council shall be a body of the Authority with independent powers under the supervision of the Parliament and having legal personality. The Media Council shall be the legal successor of the National Radio and Television Commission. The Media Council and its members shall be solely subject to laws and may not be instructed with respect to their activities.". (Subs. 1-2 of par. 123 of Mttv.) Therefore, the Media Council and its members are elected by the Parliament - similarly to the members of its predecessor, the National Radio and Television Commission (ORTT) - and "the Media Council shall set its own rules of procedure". (Subs. 1 of par. 131. of Mttv). The above quoted legal provisions ensure the independent structure of the Media Authority and the Media Council.

â&#x20AC;˘

"Abolish registration requirements for print and online media":

Since 22 March 2011, the subsection (2) of par. 42. of Mttv. contains the following statement related to the registration requirements for printed and online press: "Ondemand and ancillary media services provided by media service providers established in Hungary, as well as press products published by a publisher established in Hungary under the scope of this Act shall be notified to the Office for registration within sixty days from 12

2019. 05. 03. atlatszo.hu commencement of the service or activity. The registration is not a precondition for starting 13 such a service or activity." According to the amended regulations, online and printed press products and websites do not have to register in order to be able to publish their contents, the registration is merely an administrative guidance for the Authority to help identify and have an up-to-date record of the publishers.

â&#x20AC;˘

"Ensure that, by law, all decisions of the Media Council or Media Authority can be appealed before a court of law, both on substance and procedure":

All the relevant decisions (e.g., according to the Par. 163-165 of Mttv, contractual and authority of the Media Authority and the Media Council can be appealed in court - although, it has to be taken into account that the court differentiates between the legal terms 'appeal' and 'review'. The law says that "no appeal may be lodged against the regulatory decision of the Media Council passed in its capacity as authority of the first instance. Review of the regulatory decision of the Media Council may be requested only by the client, and as regards the provisions expressly applicable to him/her, the witness, the official witness, the expert, the interpreter, the holder of the object under inspection, the representative of the client and the liaison officer, by claiming infringement of law, at the court proceeding in administrative cases, within thirty days upon announcement of the regulatory decision, by bringing an action against the Media Council (...) The court proceedings instituted on the basis of the statement of claim for review of the Media Council's decision shall be subject to the provisions of the Act on the Code of Civil Procedure on public administration lawsuits, subject to the provisions of this Act". The court shall even have the power to alter the decision of the Media Council.

There is also legal remedy against the decisions of the Media Authority: The client shall have the right to appeal against the regulatory decision of the Office (of the Media Authority) passed according to this Act at the Media Council, with the exception of decisions against which no appeal may be lodged under the Act on the General Rules of Administrative Proceedings and Services or under this Act (...) Review of the second instance decision of the Media Council may be requested only by the client, and as regards 13

the provisions expressly applicable to him/her, the witness, the official

2019. 05. 03. atlatszo.hu witness, the 14

expert, the interpreter, the holder of the object under inspection, the representative of the client and the liaison officer, by claiming infringement of law, at the court proceeding in administrative cases, within thirty days upon announcement of the regulatory decision, by lodging a statement of claim".

It is clear from the above mentioned provisions of Mttv. that all of the affected parties have the right to seek legal remedy against potentially wrong decisions. It also clearly shows from the quoted paragraphs that a detailed and multi-levelled system of legal remedies is offered by the law.

2019. 05. 03. atlatszo.hu Restrictions and amendments regarding political campaigning in the media during 15 elections

1. Summary of the relevant criticism

The Fourth Amendment to the Hungarian Fundamental Law made the following changes to the constitution: "political advertisements (...) shall exclusively be published by way of public media services and under equal conditions", where the term 'media service' refers exclusively to audio-visual (tv, radio) media services. Although the Hungarian Government provided detailed background papers on the reasoning for the new regulation (see below), the Venice Commission, the Council of Europe, the Tavares-report and the European Commission criticized the adopted amendments in their administrative letters (see also below), stating that the respective provisions restrict political parties' equal access to the media, thus violating people's right to balanced information.

2. Measures already taken to mitigate criticism

Following the aforementioned criticism and discussions with the European Commission, the Hungarian Government agreed to amend the relevant terms of the Fundamental Law. As a first step, the Ministry for Public Administration drafted and introduced the Fifth Amendment to the Fundamental Law, which contained new rules for political advertising during an election campaign. The first draft of the Fifth Amendment to the Fundamental Law was submitted to the Parliament on 14 June 2013. Due to continuous negotiations with the th

relevant international- and EU-bodies, the Ministry reintroduced the bill to the Parliament on 30 August 2013, which was adopted on 16 of September. th

The heavily criticised Article 5 of the Fourth Amendment to the Fundamental Law previously determined: "(3) For the dissemination of appropriate information required for the formation of democratic public

opinion

and to

ensure the

equality

of opportunity,

political

advertisements shall be published in media services, exclusively free of charge. In the campaign period prior to the election of Members of Parliament and of Members of the 15

European Parliament, political advertisements published by and in the

2019. 05. 03. atlatszo.hu interest 16 of

nominating organisations setting up country - wide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament shall exclusively be published by way of public media services and under equal conditions, as determined by cardinal Act."

The Hungarian Government agreed to amend the above mentioned part of the Fundamental Law. However, it is apparent that many international experts and professionals based their reviews on misunderstandings and misinterpretations of the respective Hungarian legal framework. For instance, in their review on the Fourth Amendment, authors Messrs. Francis Delperee, Pierre Delvolve and Eivind Smith include, in addition to tv- and media-services, printed and online press in the definition of the legal term 'media services' . However, printed and online press are clearly not included in the definition of 'media services' as set out in the law.

According to Article 2 of the Fifth Amendment to the Fundamental Law:

"During election campaigns, for the dissemination of appropriate information required for the formation of democratic public opinion, political advertisements shall be published in media services, exclusively free of charge and upon requirements laid down in cardinal law ensuring the equality of opportunity".

Article 2 of the Fifth Amendment also annuls the following from the wording of the Fundamental Law:

"In the campaign period prior to the election of Members of Parliament and of Members of the European Parliament, political advertisements published by and in the interest of nominating organisations setting up countrywide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European

p.34. Iittp^www.kornianyjiu/d^ Unofficial translation. The official version in Hungarian:

http-/Avww.parlament.lnt/imin39 12015Z12015.pdf

Parliament shall exclusively be published by way of public media services and

2019. 05. 03. atlatszo.hu under equal17

conditions, as determined by cardinal Act".

3. Potential further measures

The Hungarian legislator shall introduce and implement amendments to the cardinal law mentioned in the Fifth Amendment to the Fundamental Law. Sections 146-148 of Act No. XXXVI. of 2013 on Electoral Procedure contain regulations regarding restrictions on political advertising in media services during election campaigns. Since it is the Hungarian Government's intention to meet the requirements of the above mentioned organs as well as the requirements resulting from the Fifth Amendment to the Fundamental Law, it has to implement the new conditions to the cardinal act in question.

4. Detailed Legal background

Below are the opinions and reports of the relevant international- and EU-bodies, as well as the reports and background paper of the Hungarian Government, which, however was conducted before the submission of the Fifth Amendment to the Fundamental Law.

â&#x20AC;˘

Opinion of the European Commission for Democracy through Law (Venice Commission) on the Fourth Amendment to the Fundamental Law of Hungary (17 June2013):

"D. Media access for political parties (Article 5.1)

37. Article 5.1 of the Fourth Amendment replaces Article IX.3 of the Fundamental Law and provides (1) that "political advertisements shall be published in media services, exclusively free of charge" and (2) that "political advertisements published by and in the interest of nominating organisations setting up country-wide candidacy lists for the general election of Members of Parliament or candidacy lists for the election of Members of the European Parliament shall exclusively be published by way of public media services and under equal 8

http://wv w.venice coe.int/webforms/doci]menW?pdf=CDL- â&#x20AC;˘\D(2013)012-e

conditions". This second regulation forbids any, even unpaid, political

2019. 05. 03. atlatszo.hu advertising by these 18

organisations in commercial media services priorto elections. Sections 146-148 of the Act on Electoral Procedure of 2012 implement this provision (CDL-REF(2013)018).

38. This provision was adopted on the constitutional level as a reaction to decision 1/201333 of the Constitutional Court, annulling Section 151 of the Act on Electoral Procedures during the electoral campaign, which specified that all parties can advertise only within highly restricted time-limits and that they are allowed to use public TV and radio stations only during political campaign. The Court found that "the prohibition is a significant restriction of expressing political opinion in the course of the election campaign" and "with regard to the aim of allowing the free formation and the expression of the voters' will" and found it "gravely disproportionate"

39. In the Background Document, the Hungarian Government explains that the goal of this provision is to ensure the publication of political advertising for political parties with nationwide support on an equal basis and free of charge. Referring to the judgment of the European Court of Human Rights in the case of TV Vest AS & Rogaland Pensjonistparti v. Norway, the Government points out that paid political advertising is prohibited in a number of European countries.

(...)

44. The Commission underlines that limits on political advertising have to be seen against the legal background of the particular Member State. Where political advertising in electoral campaigns is concerned, limitations have to be justified in a convincing way as to their necessity in a democratic society. According to the Hungarian authorities the ban on political advertising on private television during the electoral campaign strives "for the dissemination of appropriate information required for the formation of democratic public opinion and to ensure the equality of opportunity". The Venice Commission cannot agree that this is a sufficient justification for the prohibition of any political advertising in commercial media services priorto elections.

45. The Venice Commission attaches great importance to the assessment

2019. 05. 03. atlatszo.hu by the Hungarian 19

Constitutional Court's decision 1/2013 where the Court pointed out that political advertising, besides influencing voters, also informs them and where it stressed that a prohibition of political advertising on commercial television targets exactly the type of media that reaches voters in the widest range. Indeed one has to take a particular look at the effects of the amended Article IX.3 of the Fundamental Law. Since the Government usually has a better chance of public appearances, the governing parties' positions will already be promoted indirectly through media coverage of governmental activities and statements. The prohibition of any political advertising in commercial media services, which are more widely used in Hungary than the public service media will deprive the opposition parties of an important chance to air their views effectively and thus to counterweigh the dominant position of the Government in the media coverage.

46. The amended Article IX.3 provides that only "nominating organizations setting up countrywide candidacy lists for the general election of members of Parliament or candidacy lists for election of Members of the European Parliament" shall be published by way of public media services on equal conditions. According to Article 127.8 of the Act on Electoral Procedure of 2012 (CDL-REF(2013)018), parties which do not set up nationwide candidacy lists and independent candidates have 1/30 of the air time available to a national list per candidate. A constitutional guarantee also for non-nationwide

47. Finally, as concerns the level of regulation, Article IX.3 of the Fundamental Law is one of the provisions introduced by the Fourth Amendment containing rather detailed rules which 19

might require amending from time to time and are therefore usually regulated

2019. 05. 03. atlatszo.hu by ordinary 20

laws. Raising such provisions to the level of the Constitution withdraws them from constitutional review."

â&#x20AC;˘

Report on the situation of fundamental rights: standards and practices in Hungary (pursuant to

the

European Parliament resolution of

February

2012)

(2012/2130(INI)) (24 June 2013)

"According to the Tavares-report, the report itself "Expresses concern at the effects of the provision of the Fourth Amendment banning political advertising in the commercial media since, although the stated aim of this provision is to reduce political campaign costs and create equal opportunities for the parties, it jeopardises the provision of balanced information; takes note that the Hungarian Government is in consultation with the European Commission on the issue of the rules on political advertising; takes note that restrictions also exist in other European countries; takes note of the opinion of the Venice Commission on the Fourth amendment to the Hungarian Fundamental Law (Mo CDL-AD(2013) 012), which states that "limits on political advertising have to be seen against the legal background of the particular Member State" and that "the prohibition of any political advertising in commercial media services, which are more widely used in Hungary than the public service media, will deprive the opposition of an important chance to air their views effectively and thus to counterweigh the dominant position of the government in the media coverage"

â&#x20AC;˘

Comments of the Government of Hungary on the draft opinion on the Fourth Amendment to the Fundamental Law of Hungary (11 June 2011)

"III. D. Media access for political parties

(18) First, it must be pointed out that contrary to the assessment of the Draft Opinion the Fourth Amendment does not overrule decision 1/2013 of the Constitutional Court. As it is

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demonstrated below the restriction under the Fourth Amendment

2019. 05. 03. atlatszo.hu are much narrower than 21

those adjudicated by the Court in January 2013 (e.g. not covering print, internet media, etc.).

(19) In fact, the Fourth Amendment contains only the core of the legislative provisions governing of political campaign activity through the various media. To get the full the picture the applicable provisions of Act CLXXXV of 2010 on Media Services and Mass Media as well as Act XXXVI of 2013 on the Electoral Procedure must also be considered.

(20) This is all the more necessary as the Draft Opinion (paragraph 44) concludes that the limits on paid political advertisements in Hungary may result in the lack of information for the voters. This, coupled with the presumed "dominant position of the Government in the media coverage" (paragraph 45), deprives opposition parties to air their views effectively. In the opinion of the Hungarian Government the opposite is true.

(21) Political campaign in the various media is regulated as follows in Hungary. First of all, internet, print media and cinema political advertising is not constrained by law (during electoral campaigns however all media outlets must register with the National Audit Office their price lists and publish them). Political propaganda on posters, fliers, billboards remain 5 free. Even within commercial radio and television political talk-shows, news programmes, analyses, etc. come under no restriction. The only restriction that applies is with regard to commercial radio and TV advertising. This, as underlined in the Background Document, is driven by the legitimate demand that the differences in the financial power of parties should not distort the electoral campaign.

(22) Contrary to Paragraph 45 of the Draft Opinion, the allotted time (600 minutes) for political advertising in public media is unequivocally regulated in the Act on Electoral Procedure (Section 147). Therefore there is no risk that public media services would restrict political campaigning in times of elections. Moreover, the legislation favours smaller parties in so far as air time is allocated on an equal footing among all national parties. As political advertisements are aired free of charge this has a positive equalising effect, rather than an exclusive effect as the Draft Opinion suggests.

(23) Also, it must be pointed out that under the Act on Electoral

2019. 05. 03. atlatszo.hu Procedure individual 22

candidates as well as parties not able to present a nationwide candidacy list are allocated free air time on a proportionate basis. Therefore, violation of Article 14 and Article 10 ECHR is inconceivable.

(24) Hungary maintains that these restrictions do not go beyond what is already applied in one way or another in a number of Member States of the Council Europe, e.g. France, Italy, Poland, etc.

(25) Finally, with regard to the political advertisements during the elections to the European Parliament (Paragraph 47), the Hungarian Government will withdraw the draft amendment to the implementing law on electoral procedures. As a result, the same rules will continue to apply to both national and European Parliament elections, in full conformity with the Fundamental Law.

(...)

Findings

(72) Another pronounced example concerns the regulation of political advertisements, where the Draft Opinion suggests, that the relevant Hungarian regulation excludes nonnationwide parties from media coverage. This is again factually incorrect, as political parties which do not set up nationwide candidacy lists and even independent candidates will have access to public media as regulated in the Act on Electoral Procedure."

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Technical note by the Hungarian Government for the European Commission for Democracy through Law (Venice Commission) regarding its opinion on the Fourth Amendment to the Fundamental Law of Hungary (21 March 2013)

"7. Provisions of the Proposal concerning the electoral campaign advertisings

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In order to reduce the campaign cost and create equal opportunities for the

2019. 05. 03. atlatszo.hu parties, the 23

Proposal and a motion for its amendment set out new rules for political advertisings. The Proposal prohibits paid political advertising both in public and commercial media including television and radio channels. This general rule for political advertisements extends both for the electoral campaign period and the period outside the campaign. However, the Proposal does not intend to prevent political advertising from being published by broadcasters free of charge and on equal basis. Besides, the Proposal does not affect at all the publication and dissemination of posters, leaflets and other similar materials. As regards the electoral campaign period, the Proposal obliges the public (non-commercial) broadcasters to ensure free airtime on equal basis for political advertisings. This solution, excluding paid political advertisings and, as a positive obligation, ensuring free airtime on equal basis in campaign period is similar to the method followed by a number of European countries (e. g. France) as also presented by the European Court of Human Rights in its judgement 'TV Vest AS & Rogaland Pensjonistparti v. Norway' in 2008. In this case, where the facts were not identical to the rules laid down in the Proposal not prohibiting the political advertising in the media, the Court noted that there was no European consensus in this area and accepted that lack of consensus spoke in favour of granting States greater discretion than would normally be allowed in decisions with regard to restrictions on political debate."

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Background document on the Fourth Amendment to the Fundamental Law of Hungary (24 April 2013)

"7. The question of political advertisings

In order to reduce election campaign costs and create equal opportunities for the parties, the Amendment establishes new rules with respect to political advertisings. The Amendment prohibits the publication of paid political advertisings both in public service and commercial media (including radio and television channels). This general prohibition extends to both the electoral campaign period and the period outside the campaign. However, the Amendment ensures the possibility for the publication of political advertisings free of charge through broadcasting services on equal basis. Besides, the Amendment does not affect at all the 11

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political advertisings that are executed not through broadcasting services

2019. 05. 03. atlatszo.hu (e.g. posters, 24

flyers). It is to be remarked that, in relation to the review of the regulation of an earlier act on the electoral procedure, the Constitutional Court also stipulated that: "in the interest of the realisation of balanced information, the legislator may set up restrictions and conditions for the publication of political advertisings" [Decision No. 27/2008. (III. 12.) of the Constitutional Court, ABH 2008, 289, 295.].

As regards the electoral campaign period of national and European parliamentary elections, the aim of the Amendment is that public broadcasting services ensure the publication of political advertisings of political parties with nationwide support on equal basis and free of charge. This solution - which, on the one hand, excludes paid political advertisings in broadcasting services, and on the other hand, requires as a positive obligation broadcasting services to publish political advertisings free of charge during the campaign period - is similar to the method followed by several European countries, as can be derived from the 2008 judgement of the European Court of Human Rights in case "TV Vest AS & Rogaland Pensjonistparti v. Norway". The judgement also refers to the fact that paid political advertisings are prohibited in the media in the vast majority of Western European countries, namely, in Belgium, Denmark, France, Germany, Ireland, Malta, Norway, Portugal, Sweden, Switzerland and the United Kingdom. Moreover, in certain states (for instance, in Denmark and Ireland), the general rule is that political advertisings are completely prohibited in the media; in France, the publication of commercial advertisings with a political aim and that of paid political advertisings in public broadcasting services is prohibited. Nonetheless, several countries (Belgium, the Czech Republic, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta) also require that a certain amount of free air-time is provided in the media for political advertisings. In most cases (e.g. the Czech Republic, Estonia, France, Latvia, Luxembourg), this obligation is set only for the public broadcasting services.

Nevertheless, it is to be noted that the facts of the case serving as the basis of the above judgement of the European Court of Human Rights - condemning Norway - were not identical to the provisions of the Amendment, as this latter - contrary to the Norwegian case and the regulation of several other European states - does not prohibit the publication of political advertisings, only excludes paid advertisings and - in specific cases - allows 24

publication during the campaign period only in the public broadcasting

2019. 05. 03. atlatszo.hu services in order to 25

create equal conditions. Furthermore, it is to be emphasised that the European Court of Human Rights also noted in its judgement that there is no European consensus in this matter, and the lack of uniform solutions reinforces that in the area of the regulation of political advertisings, the member states are to be granted greater discretion than would normally be allowed in decisions with regard to restrictions on political debate.

The freedom of expression, and, in particular,-the freedom of the press and of information is thus recognized. The new provisions of article 3 replace the prior wording under which The detailed rules for the freedom of the press and the organ supervising media services press products and the infocommunication markets shall be regulated by cardinal Acts - which raised the issue about whether the freedom of the press and of information was subject to the adoption of an organic law. The ambiguity has now been lifted: the freedom of the press and of information is recognized by virtue of the subparagraphs 1 and 2; their efficiency does not depend on statutory rules."

Stef Goris S.C. Services SPRL