Hungary's Media Authority: The Issue of Sanctions

(This is an excerpt from the report "Hungarian Media Laws in Europe: An Assessment of the Consistency of Hungary’s Media Laws with European Practices and Norms")

Under Hungary’s new media laws, the Media Authority can impose a range of sanctions on media outlets, including on individual editors and top officers, for breaches to numerous regulations in the media laws. Penalties include fines, suspensions, revocation of broadcasting licenses, deletion from the media register and banning outlets from participating in future tender offers. Critics say that the fines and sanctions are excessive, and that breaches are vaguely defined in the law, which could lead to “self-censorship” and have a chilling effect on the press. Opponents also claim that the law does not provide effective mechanisms to appeal the Media Authority’s sanctioning decisions. Free-press advocates and media experts warn that the Authority’s sanctioning powers violate international laws and protocols, including a number of articles in the European Convention on Human Rights. The Hungarian Government says the Media Authority’s sanctioning powers are consistent with media-regulation norms and are consistent with common practices in Europe.

The new sanctions were introduced in the Media Act, the last piece of legislation in the media law “package” passed by Hungarian lawmakers in December 2010.1 This law grants the Media Authority and the Media Council the power to monitor by public request or ex officio compliance with provisions in the Media Act, the Press Freedom Act, and various amended laws in the media “package.”2 These bodies can apply sanctions for violations to content- and competition-related obligations, as well as for breaches to licensing and registration agreements, the Media Authority’s regulatory decisions, and to terms of any public contracts with the Media Authority.3

All media, including the press and online press, can be sanctioned for breaches to content regulations specified in Articles 14 to 20 of the Press Freedom Act, compliance with which is overseen primarily by the Media Council.4 These provisions include requirements to respect “human dignity,”5 and the “constitutional order” of Hungary,6 and restrictions on content that offends or excludes “nations, communities, national, ethnic, linguistic and other minorities or any majority as well as any church or religious groups nations.”7 In addition, linear media services (traditional TV and radio) can be sanctioned for violating Article 13 of the Press Freedom Act, which requires these media to provide “comprehensive, factual, up-to-date, objective and balanced coverage on local, national and European issues that may be of interest for the general public and on any event bearing relevance to the citizens of the Republic of Hungary and the members of the Hungarian nation.”8 Compliance with this provision for media with “substantial influence”9 and public service media is supervised by the Media Council; the Media Authority oversees this provision for all other media.10 The Media Authority and Media Council cannot pursue breaches to “balanced information” requirements ex officio but only at the request of viewers or listeners. Fines or stronger sanctions cannot be levied for breaches to this provision, but the Media Authority or Council can require the outlet to broadcast the decision of the infringement.11

Maximum fines
Article 187 of the Media Act provides maximum fines for:
• media service provider of “significant influence”: HUF 200 million (EUR 722,000)
• media service provider: HUF 50 million (EUR 180,000)
• daily national newspaper: HUF 25 million (EUR 90,252)
• online press product: HUF 25 million (EUR 90,252)
• weekly national newspaper or periodical: HUF 10 million (EUR 36,100)
• other daily or weekly newspapers or periodicals: HUF 5 million (EUR 18,050)
• media service distributor: HUF 5 million (EUR 18,050)
• intermediary service provider: HUF 3 million (EUR 10,830)
• senior officers of media outlets: HUF 2 million (EUR 7,220)

Media can also be sanctioned for violations to content regulations, programming quotas,12 and restrictions on commercial advertising and product placement established in the Media Act.13 These include specific requirements regarding the protection of minors, restrictions on teleshopping and surreptitious advertising, and product placement for linear audiovisual, on-demand, and media service providers with a “significant influence.” In addition, the Media Authority has the right to inspect compliance with licensing and registration agreements and public contracts; if breaches are determined, it can apply sanctions outlined in Article 187 of the Media Act.14

Articles 186 to 187 of the Media Act specify a system of “graduated” sanctions, which include warnings, fines, suspensions, license revocations and/or deletion from the registry.15 Minor offenses are treated with a warning, with 30 days to rectify the infringement.16 For repeated offenses, the Media Authority and Media Council can issue fines, which are delineated by media sector.17 The law also specifies separate maximum penalties of HUF 2 million (EUR 7,220) for top officers and senior editors of media outlets, according to the gravity, nature of the infringement and the circumstances of the particular case.18

Media outlets may also be ordered to publish the decision of an infringement “in the manner and for the period of time specified in the decision.”19 If a media service, on-demand media or online press product refuses to comply with the order to publish the infringement, the Media Council may order the suspension of these services.20

The Media Council can also sanction foreign broadcasters “aimed at” Hungary for repeated violations to specific articles in both the Press Freedom Act and the Media Act, which includes several provisions on protection of minors.21 The law also requires the Media Council to notify the European Commission of such a decision concurrently with its announcement and to withdraw the decision if the European Commission obliges the Council to do so.22

For repeated breaches and after levying a fine, the Media Authority and Media Council may also suspend broadcasts of media services from 15 minutes to a week, based on the frequency and severity of the violation.23 Suspensions apply also to media service distributors and to intermediary media services (Internet service providers), which can be ordered suspend the service of an online press outlet.24 In cases of serious and repeated breaches, the authorities may terminate a contract of a media service with immediate effect, delete the media service from the registry and remove the media service from public accessibility.25

The Media Act specifies that legal consequences should be applied in line with principles of “progressivity and proportionality,” and that any sanction must be levied “in line with the gravity and rate of re-occurrence of the infringement, taking into account all circumstances of the case and the purpose of the legal consequence.”26

No internal appeals can be made to the Media Authority or Media Council regarding its sanctioning decisions. Decisions can be appealed in administrative court on grounds that the Media Authority’s penalty decision infringed the media law.27 The Court is permitted to assess the compatibility of the Media Council’s decision with the media legislation and cannot rule on the Media Council’s general regulatory or sanctioning powers based on any other laws or legal precedents.28 It must issue a decision within 30 days29 and can alter the Media Council’s ruling.30 The filing of petitions does not automatically suspend the decision, although the Court may be asked to do so while considering the petition.31 No appeal may be lodged against the decisions of the Metropolitan Court of Justice.

It should be noted that Hungarian lawmakers passed numerous amendments to the media laws after the close of Hungary’s EU presidency in July 2011. According to the amended articles, fines imposed by the Media Authority are now deemed “public debt” and collectible by the tax authorities, regardless of whether the sanction has been challenged in court.32

INTERNATIONAL CRITICISM

Media experts have raised serious concerns over the Media Authority’s sanctioning powers, claiming the measures threaten press freedom and violate a number of international protocols. The Council of Europe’s Human Rights Commissioner has found that Article 187 of the Media Act would require “substantial revision” in order to bring it into compliance Article 10 of the European Convention on Human Rights and the related case law of the European Court of Human Rights.33 According to the Commissioner’s review, these articles fail to meet the “test of proportionality” applied by the Court in assessing whether sanctions imposed on media constitute a proportionate level of interference with freedom of expression:34

“The Court has indicated that a mandatory penalty should not have the effect of discouraging the press from expressing criticism. Any form of sanction based on subjective criteria is likely to deter journalists from contributing to public discussion of issues affecting the life of the society, and is liable to hamper the press in performing its roles as purveyor of information and public watchdog. In this regard, the mere fact that a journalist has been tried and convicted may in certain cases be more important than the minor nature of the penalty ultimately imposed.”35

The report cites in particular the measures on suspensions in Article 187(3)(d) of the Media Act as being incompatible with the above mentioned proportionality test and the Council of Europe’s standards. The Commissioner also found that the law provides inadequate domestic remedies to appeal the Media Authority’s sanctioning decisions, in violation of Articles 6 and 13 of the European Convention on Human Rights.36 Article 6 requires states to provide “the possibility of judicial review by an independent and impartial tribunal in instances where administrative decisions have affected a person’s civil rights and obligations.”37 Article 13 requires states to “guarantee the availability of an effective remedy at the national level to enforce a person’s substantive rights and freedoms under the Convention, regardless of the form in which they appear in the domestic legal order.”38 According to the Commissioner’s review, the mechanisms for appealing the Hungarian Media Authority’s decisions fail to meet these standards, as appeals can only be made to an administrative court “whose review is limited to an assessment of its compatibility with the media legislation itself. The administrative court appears to have no competence to review such a decision in light of other standards, including the provisions of the ECHR.”39

Human rights advocates have also claimed that breaches are not clearly defined in the law, which could lead to self-censorship and have a “chilling effect” on the press. According to a joint review by Article 19 and the Hungarian Civil Liberties Union (TASZ), the media laws impose numerous restrictions on the freedom of expression on the media, which aside from being unclear also conflict with international law: “These bans are not recognised by international law as legitimate restrictions on freedom of expression. Moreover, these restrictions are not necessary in a democratic society,” according to this report. “Although protection against speech that constitutes incitement to hatred or violence is permitted under international law, the scope of the bans set out in the Press and Media Act is overbroad, as the bans restrict speech in a wide way and go beyond the scope of incitement.”40

Critics also warn that the new sanctioning system could allow the Media Council, composed of all five members nominated pdfby Hungary’s ruling party, to target media critical of the Government’s policies. “The problem of an apparent lack of independence and impartiality is particularly acute when considering that the Media Council can apply legal consequences for breaches of the legislation,41 including suspension of a media service provider for up to one week in cases of repeated and grave infringements,42 as well as imposition of overly high fines,” according to Frank La Rue, the United Nations special rapporteur for freedom of expression.43

HUNGARIAN GOVERNMENT'S RESPONSE

In its December 2010 statement, the Hungarian Government rejects claims by critics that high fines allow the government to “exert pressure on Hungarian media,” and maintains its sanctioning policies follow similar practices in many European and EU-member states.44 The “use of legal consequences is primarily aimed at obtaining termination of the infringement and at ensuring and obtaining lawful behaviour, rather than punishment (repression),” according to this statement.45 The Government also points out that the Media Act requires authorities to use the principles of “proportionality, progressiveness and equal treatment, applicable to the legal consequences imposed on the violating outlets.”46 In addition, the Government states that the “new media law develops an objective system of modern sanctions adapted to a constitutional state and the principles of legal certainty and the peculiarities of media supervision … The system of legal consequences listed in the proposal places the emphasis on the prevention of violations of law and the encouragement of voluntary legal compliance.”47 The Government explains that the fines of up to HUF 200 million for major commercial broadcasters are not excessive given their revenue, and that “a few hundred thousand forint fine” would not prevent “a broadcaster with [an] annual revenue of several tens of millions or even hundreds of millions of forints … from repeating its infringing behaviour and will not set a dissuasive example for other broadcasters.”48

In addition, the Hungarian Government states that sanctioning leading officers and senior editors is not unique to the Hungarian system, and is based on “elaborate legal science fundamentals, and its basic principles are that the supervision of compliance with the breached obligation forms part of the responsibility of the leading officer and that the leading officer could have prevented the infringement or will, in future, have influence on the operation of the organisation and can ensure lawful behaviour.”49

The Government also emphasises that deletion from the registry is a final sanction that may only be used in the case of “repeated severe violation of the law, if other sanctions have proved unsuccessful and if it is necessary in order to achieve the protected social interest, the constitutional and the statutory objectives and is the only option for restoring the normal order.”50 The Government adds that just as “restaurant operating licenses may be revoked, deletion from the registry is also allowed in the communications sector.”51

The Hungarian Government cites examples of similar sanctioning practices from 15 European and EU-member states: Czech Republic, Denmark, Estonia, Finland, France, Germany, Ireland, Italy, Latvia, Lithuania, Poland, Portugal, Slovakia, Slovenia, and the UK.

1 Act CLXXXV of 2010 On Media Services and Mass Media (the “Media Act”), entry into force 1 January 2011, as amended, translation provided by the Media Authority (NMHH) at: http://nmhh.hu/dokumentum.php?cid=26536. 2 Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536; Act CIV of 2010 on the freedom of the press and the fundamental rules on media content (the “Press Freedom Act”), translation of the original text of the law in English at: http://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_civ_me... as amended, https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_o.... 3 Under Article 185(1) of the Media Act: “The Media Council or the Office shall have the right to apply the legal consequence on parties infringing rules on media administration in accordance with the provisions of Articles 186-189.” Article 203(39) of the Media Act: “‘Rules on media administration’ shall mean [the Media Act] and the [Press Freedom Act], and any legislation issued in respect of the implementation of the aforementioned acts; any directly applicable legal instrument of the European Union concerning media administration; any public contract entered into by and between the Media Council and the Office, and the regulatory decision issued by the Media Council and the Office.” See also Article 167(1). Available at: http://nmhh.hu/dokumentum.php?cid=26536. 4 Media Act, Article 182(c), available at: http://nmhh.hu/dokumentum.php?cid=26536. 5 Press Freedom Act, Article 14(1), available at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_o.... 6 Press Freedom Act. Article 16, available at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_o.... 7 Press Freedom Act, Article 17(1) and 17(2), available at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_o.... Emphasis added. 8 Press Freedom Act, Article 13, available at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_o.... 9 Article 69 of the Media Act defines media with “substantial influence” as “linear audiovisual media service providers and linear radio media service providers with an average annual audience share of at least fifteen percent, with the proviso that the average annual audience share of at least one media service reaches three percent.” Available at: http://nmhh.hu/dokumentum.php?cid=26536. 10 Article 181 of the Media Act details rules for bringing legal proceedings against infringements to “balanced coverage” provisions, available at: http://nmhh.hu/dokumentum.php?cid=26536. 11 Media Act, Article 181(5), available at: http://nmhh.hu/dokumentum.php?cid=26536. 12 However, it should be noted, that provisions on programming quotas apply to linear audiovisual media and not to non-linear media services (print and online media). Media Act, Articles 20 to 22, available at: http://nmhh.hu/dokumentum.php?cid=26536. 13 Articles 9 through Articles 40 of the Media Act details the range of content and programming requirements for media content providers, including specific requirements regarding protection of minors, restrictions on teleshopping and surreptitious advertising, and product placement for linear audiovisual, on-demand, and media service providers with a “significant influence.” Available at: http://nmhh.hu/dokumentum.php?cid=26536. 14 Media Act, Article 161(4), available at: http://nmhh.hu/dokumentum.php?cid=26536. 15 Articles 186 to 189 of the Media Act specify the legal consequences for infringements. Available at: http://nmhh.hu/dokumentum.php?cid=26536. 16 Media Act, Article 186(1), available at: http://nmhh.hu/dokumentum.php?cid=26536. 17 Media Act, Article 187, vailable at: http://nmhh.hu/dokumentum.php?cid=26536. 25 Per Article 187(3)(e) of the Media Act: “the Media Authority may delete the media service from the registry as defined in Article 41(4) in which the infringement was committed and/or may terminate the public contract on the media service provision right with immediate effect on repeated grave infringement by the infringer. The media service deleted from the registry may not be made accessible for the public once it was deleted.” Per Article 189(1) “When the Media Council resorts to the legal consequence against the media service provider defined in Article 187 (3)(e), the media service distributor shall, on the basis of the request issued by the Media Council after the decision has become final, terminate the broadcasting of the media service constituting the subject of the decision as defined in the request.” Available at: http://nmhh.hu/dokumentum.php?cid=26536. 26 Media Act, Article 187(3)(d), available at: http://nmhh.hu/dokumentum.php?cid=26536. 27 According to Article 163(1) of the Media Act: “No appeal shall lie against the official decision of the Media Council passed in its capacity as Authority of the first instance. The official decision of the Media Council may be challenged at court by the client — and as regards the provisions expressly applicable to him/her —, the witness, the official witness, the expert, the interpreter, the owner of the object for inspection, the representative of the client and the official mediator by claiming infringement of the law, at the administrative court within thirty days upon announcement of the official decision, by lodging a petition against the Media Council.” Available at: available at: http://nmhh.hu/dokumentum.php?cid=26536. 28 Article 163(6) of the Media Act: “No supervisory proceedings may be instituted on the regulatory decisions of the Media Council,” available at: http://nmhh.hu/dokumentum.php?cid=26536. 29 Media Act, Article 164(1), available at: http://nmhh.hu/dokumentum.php?cid=26536. 30 Media Act, Article 164(3), available at: http://nmhh.hu/dokumentum.php?cid=26536. 31 Media Act, Article 163(3), available at: http://nmhh.hu/dokumentum.php?cid=26536. 32 Enacted by Subsection (48) of Section 64 of Act CVII of 2011, effective as of 3 August 2011. See Subsection (3) of Section 71 of Act CVII of 2011, available in Hungarian at: http://www.kozlonyok.hu/nkonline/MKPDF/hiteles/MK11085.pdf. 33 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701. 34 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701. 35 See, mutatis mutandis, Barthold v. Germany (Application no. 8734/79), judgment of 25 March 1985, as cited in the “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701. 36 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701. 37 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701 38 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701 39 “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media,” CommDH(2011)10, Council of Europe Commissioner for Human Rights, February 2011, available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701. 40 “How the New Media Laws Have Deteriorated the Media Situation in Hungary: Questions and Answers on the Infamous New Hungarian Media Laws,” Information Note Prepared by the Hungarian Civil Liberties Union and Article 19 Global Campaign For Free Expression, available at: http://tasz.hu/files/tasz/imce/information_note_hml.pdfby 41 Media Act, Article 185 to189, available at: http://nmhh.hu/dokumentum.php?cid=26536. 42 Media Act, Article 187(3), available at: http://nmhh.hu/dokumentum.php?cid=26536. 43 United Nations High Commissioner for Human Rights (OHCHR), “Hungary / Freedom of expression: UN expert still concerned despite moves on controversial media legislation,” United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion expression, Frank La Rue, 5 April 2011, available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10916&L... see “Full text of the press statement delivered by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,” at http://www2.ohchr.org/english/issues/opinion/docs/2011-04-05_Hungary_Fre.... 44 “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 45 “Criticism 5,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n.... 46 “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 47 “Criticism 17,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at:http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 48 “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 49 See response to “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 50 See response to “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 51 See response to “Criticism 1,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n....