On 7th March the Hungarian Parliament passed amendments to the new media law as agreed with the European Commission. The amendments affect four areas of the regulation: the obligation of balanced coverage; the prohibition to openly or covertly defaming any community; the possibility of imposing fine on media service providers that are settled outside of Hungary; and the obligation of registration that is imposed on all media, including printed and online press.
These amendments decrease the harmful effect of the listed provisions, but do not eliminate them completely. The obligation of balanced coverage remained, but is a little more blurred so that it cannot be applied against printed and online press. The prohibition to incite hatred or social exclusion against any community (including the majority) remained, only the most wide: “defaming” is deleted. It is still possible to impose fine on foreign media service providers, if they had settled abroad with the primary reason to evade the Hungarian law – and apply other sanctions against them in other cases (obligation to publish a statement, or suspend operation). Registration is still compulsory, but not in advance, only after starting publication – but, violating any rule on registration may entail a fine of HUF one million (appx. EUR 3700).
The changes affect important, but not key areas of the legislation that can be further criticized at several other points: treating the printed and online press under the same content rules as television or radio, a too wide investigative power of the authority, too high fines (up to EUR 730 000 in certain cases), a media commissioner that may investigate even if the media provider had not violated the law; the protection of any community, including majorities from inciting hatred or social exclusion; the lack of protection of journalistic sources; the governmental influence on public service television. (The much criticized composition of the Media Council is not the sole fault of the law – the governmental party Fidesz exploited its qualified majority.)
The President of the Authority and the Media Council oversee the operation of the whole media scene, have wide investigative and severe sanctioning powers including imposing high fines, manage and supervise public service media, and supervise the “media commissioner” who investigates in cases where the media acts lawfully (sic) – and reports to the Authority. It is not necessary for the Council to misuse its power to stifle press freedom, it is enough merely to “use” it. The Media Council is part of the Authority and its Chairperson is the same person as the President of the Authority. The many powers of the Authority are concentrated in the hands of one person: the President of the Authority, who is appointed by the Prime Minister for nine years. In case there is no violation of the law, the Commissioner – appointed by the President of the Authority – may lead an investigation, and report to the President of the Authority. While members of the Media Council should be delegated by all parliamentary parties, in fact they have been delegated exclusively by the ruling party FIDESZ. These mandates also last for nine years, which is longer than two parliamentary election cycles.
The biggest concern posed by these laws is not that they will be applied consequently and cause several media outlets to close down, but that it will be applied arbitrarily and inconsequently. On the one hand, it may exercise a chilling effect over the whole media, while on the other hand, when moral panic or political interests entail, serious punishments might be applied as happened to Radio Tilos. For citizens, this means unpredictability, and legal uncertainty. The effects are wider than just media law, the question may emerge in any other field of regulation: will the authority/court apply the law, or is it just symbolic?
While the media law is no longer topical issue in Hungary, in the international scene the waves had just reached their climax – up to now, at least. During the past two weeks several international organisations issued their disapproving statement regarding the law, even with the changes requested (and accepted) by the European Commission (OSCE, Council of Europe, European Parliament, RSF, IPI, IFJ). The real question is, will the European Union expand its competence on press freedom, and perhaps on other human rights as well? This would be indeed a step towards further integration. It is also difficult to imagine the European Commission to judge human rights affairs. But, there is already a commissioner for fundamental rights (only having competence in areas which are already Eureopan competence) – and the Court could certainly judge such claims. Further, the EU has been planning to join the European Convention on Human Rights (ECHR). Once it does, then ECHR would work as an umbrella, or as a guarantee for human rights decisions of the European Court of Justice. And after all, Article 2. of the Lisbon Treaty is not just an empty declaration. If the Union takes its Treaty seriously, then it should enforce it even if it contains only a reference to human rights and the rule of law, because the Treaty is not soft law but a compulsory document.
