By Harrison Gill
Statement of Issue
Freedom of expression is of critical importance to the European Union and ought to be of the same importance to its member states. It is enshrined within and guaranteed by Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, and, most importantly for the European Union Agency for Fundamental Rights (FRA), Article 11 of the Charter of Fundamental Rights. Over the last two years, however, potential violations of this right have emerged in Hungary, which is a party to all of these agreements, either by having signed and ratified the ICCPR (United Nations) or by virtue of being a member of the European Union.
The problem of freedom of expression within the media is of particular importance in post-communist countries, such as Hungary. This is because media controls have the potential to gradually become stricter in post-communist countries if media pluralism is not actively promoted. According to Mungiu-Pippidi (91), post-communist media systems can end up falling to various special interest groups or imposing a high degree of censorship, similar to the former communist regimes that Central European countries decidedly try to move away from to emulate established EU norms. Hungary is beginning to slip into policies more in line with the media regulation of the nations of the Warsaw Pact than of the European Union.
As it is the job of the FRA to ensure that EU member states are living up to the guarantees of the fundamental rights and freedoms provided by the Charter of Fundamental Rights, it is crucial to this body that Hungary promote media plurality to avoid disciplinary action by the European Court of Human Rights, and thus maintain Hungarian sovereignty. If Hungary acts now, it can rectify the situation before potentially costly restrictions are imposed upon the nation by the institutions of the European community.
Should Hungary seek to improve its record regarding freedom of expression, there are three steps that the nation can take. First, Hungary can seek the technical assistance of the international community to strengthen this fundamental right. Second, Hungary can work to develop separate media regulatory institutions, each with limited mandates over a specific area of the media industry. Finally, Hungary can reconsider previous legislation that the nation still supports, which offers greater protections for the media.
Origin of the Problem and Problem and its Current Context
Since the 2010 election of Prime Minister Viktor Orban and his Fidesz coalition government in the Hungarian Parliament, significant democratic processes fundamental to ensuring the protection of Hungarian human rights, including the freedom of expression, have been weakened. In response to this, Freedom House has downgraded its rating of the freedom of the press within Hungary. It no longer recognizes Hungary’s press as free, but rather partially free (Walker).
The policies established by the Fidesz government have not only questioned the right to freedom of expression, but also many other basic liberties granted under both European and international law. These policies allow the super-majority parliament to appoint pro-government supporters to a number of influential—and in other countries often independent—agencies, such as the Hungarian National Media and Infocommunications Authority (NMHH). This has generally resulted in what Lengyel and Illonszki term “simulated democracy… [to mean] a situation in which the institutions of democracy are working, but with a low level of efficiency, because the elites and important social groups systematically violate the democratic norms” (108). Democracy, while still existing in some form, is at risk because these norms are not being followed.
This development is of great concern to the European Union. In fact, when one looks at Terestyeni’s analysis of media in communist Hungary, some parallels can be drawn. In the communist era, the licenses required to establish newspapers were doled out by a governmental body under party control (Terestyeni); similarly, media is currently regulated by a new institution that is operating under de facto government control because of high barriers to entry and a government super-majority.
One of the key actions of the Fidesz government was the passage of the Act on Media Services and Mass Media, more commonly referred to as the Hungarian media law. The act calls for sweeping government oversight of all forms of media – print, broadcast, or electronic. The same law also allowed the creation of NMHH that, by law, requires a parliamentary super-majority—which Fidesz currently holds—to appoint additional members to (Hungary 2010).
The Hungarian government has most recently challenged the fundamental freedom of expression through the Klubradio radio frequency licensing debacle. According to the National Media and Infocommunications Authority, Klubradio lost its broadcasting frequency in a public bid because, despite broadcasting the most relevant news programming, it did not play enough music (Hungary 2012). By itself, this decision may appear justified, for the government was simply following its established policies and procedures. However, one must take into account the fact that this is not an isolated incident in the context of additional constitutional and legal changes instituted by the Fidesz government.
Critique of Policy Options
The European Union has already called upon Hungary to remove the restrictions imposed by the media law. European Parliament resolution P7_TA(2011)0094 “[c]alls on the Hungarian authorities to restore the independence of media governance” and requests the “involve[ment of] all stakeholders” in the process (European Parliament). Unfortunately, the Hungarian government has not acted upon these requests and the media law currently remains in place. This lack of action on the part of the Hungarian government is unacceptable if the nation wishes to comply with European norms. Beyond this resolution, however, the European Union has yet to take any further action, though it still possesses the ability to investigate the matter further.
Instead of ensuring compliance with European law, the NMHH has taken to the Internet and has created various websites, including hunmedialaw.org and a Hungarian language counterpart, to justify its actions. Asking for the modification of the media law, as the European Parliament has already done, has proved ineffective because it does not result in a substantive and positive response on the part of the Hungarian government. Furthermore, it has become clear that should the Hungarian government fail to voluntarily act at the request of the European Union, more forceful alternatives may be required to ensure the freedom of expression within Hungary.
The Hungarian government has taken some steps to improve upon the situation posed by the media law, but these actions do not fully address some critical issues posed by the original media law. These changes were not made to improve the situation but rather because the Constitutional Court challenged key provisions of the media law, specifically having print content regulated by the NMHH and requiring journalists to report anonymous sources to the government (Deutsche Welle). These can be seen as improvements, yet much of the bill remains unaltered. The structure and composition of the NMHH has hardly been affected.
Additionally, the new changes are in many ways a setback for media organizations in Hungary. As a result of the amendment, at the end of the year, the NMHH will be permitted to renegotiate all contracts regarding frequency allocations for the areas of media content the agency still regulates (MTI). This means all radio frequencies will expire and those originally assigned by the NMHH’s predecessor will now be determined by the NMHH. This could effectively cost media organizations like Klubradio access to remaining frequencies, because they did not adequately meet the requirements for their last request to the NMHH. As key issues remain regarding the structure of the NMHH’s Media Council, this prospect is highly concerning.
Because the policies of the NMHH are extremely hostile toward the right to freedom of expression, which is ingrained in both European and international law that Hungary is a party to, the Hungarian government should take actions to rectify the situation. Otherwise, it risks being held accountable to decisions of the European Court of Human Rights regarding this matter. Due to the structure of the European Court of Human Rights, Klubradio and other media organizations have the opportunity to file a petition with the court against the Hungarian state in this matter if they possess the necessary standing and have exhausted the national legal processes. The court could dictate specific requirements in the judgment that could better be implemented under the direction of the Hungarian government now without further court proceedings rather than through the legal process. While data is not readily available for Hungary, countries generally sustain substantial costs in implementation of decisions addressed towards them. The United Kingdom, for example, has been greatly affected by European Court of Human Rights rulings. While Hungary’s costs, should it face litigation, will not be nearly as substantial as the United Kingdom’s costs, it is important to note that the United Kingdom has spent several billion British pounds in the implementation of European Court of Human Rights decisions beyond the actual costs of being a party to the European Convention of Human Rights (Saini). The United Kingdom example is particularly interesting to note because it demonstrates that the majority of cases that are brought to the European Court of Human Rights result in a decision in favor of the plaintiff, which often results in the complete or partial overturning of domestic laws and regulation (Saini). It is largely in Hungary’s economic interests to act sooner rather than later to promote the freedom of expression within the nation.
The Hungarian government can also seek to develop better solutions to address grievances from media organizations affected by this issue, such as Klubradio, by reaching out to an independent investigator. A further action towards developing sound freedom of expression protections would be to allow a visit by the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. The Special Rapporteur last visited Hungary during November 1998 and has yet to be invited back by the Hungarian government (OHCHR). In addition, the Hungarian government should reflect upon the recommendations of the 1998 report, substituting the NMHH for mentions of the National Radio and Television Commission, the predecessor to the NMHH. By following this recommendation, Hungary will be given the technical assistance to establish a system that will bring its media regulation in compliance with European norms and possibly prevent a costly legal procedure. As the reports authored by the Special Rapporteur are public record, compliance can be measured. By following through, Hungary can publicly demonstrate a credible commitment to bringing its media policies in line with norms.
Furthermore, media regulation should be limited as much as possible so that media pluralism can be preserved and only the most egregious misuses of media punished, particularly regarding public mass communication systems such as radio and television frequencies and not print media. The Hungarian government alludes to a number of countries in which print media comes under the scrutiny of a government watchdog similar to the NMHH; however, these cases differ because these governments do not put the same authority in charge of all forms of media like the Hungarian government has done with the NMHH (Center for Media and Communication Studies 45). Hungary has already taken action addressing this issue, but solely out of a necessity to deal with the recent Constitutional Court ruling previously referenced in this report. The implementation of the recent decision demonstrates just how fragile democracy is within Hungary. The government currently possesses the ability to amend the constitution if it seeks to address the issues brought forth by the Constitutional Court. Should Hungary seek to reinstate a system to regulate all forms of media, as some countries of the EU have chosen to do, perhaps a decentralized model more in congruence with EU norms is possible. With this alternative set-up, one board could not make sweeping decisions that affect the industry as a whole and media regulators could be held to greater scrutiny for their individual board decisions.
Another recommendation that can be implemented by the Hungarian government is to reconsider the removal of the clause regarding media monopolies in the constitution. The NMHH recently addressed criticisms from the recent Freedom House report on the state of media freedom in Hungary, noting that the removal of the clause prohibiting media monopolies is counteracted by new language mandating media pluralism (Hungarian National Media and Infocommunications Authority). If the Hungarian government truly supports media pluralism and seeks to prevent media monopolies as part of its media pluralism strategy, then perhaps the codification of regulations once again explicitly prohibiting media monopolies is not a stretch of the imagination. This would be a good policy to implement because, if the reallocation of frequencies goes forward, this law will require the NMHH to respect media pluralism during this reallocation, ensuring that no single media organization controls the airwaves.
Ultimately, it is up to the Office of the Prime Minister to take action now or else wait for others to step in later to ensure the fundamental right to freedom of expression. Meaningful corrections instituted by the Hungarian government now will save time and money for both the Hungarian government and the European community. The Hungarian Office of the Prime Minister should duly consider this approach because it respects the sovereignty of the Hungarian state while also taking positive steps towards the protection of free expression and free press. Failure to act may lead to more costly consequences for the Hungarian state further down the road. As such, the FRA, and most likely the other nations and institutions of Europe as well, would appreciate the implementation of the recommendations to seek technical assistance to protect the fundamental freedom of expression and to implement policies protecting media pluralism.
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