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AnOx 2013
‘Dead or alive: New media laws in Hungary’
Krisz&na Rozgonyi
Hungary
Basic facts Capital Budapest and largest city Official languages Hungarian Ethnic groups (2011) 83.7% Hungarians
3.1% Roma 1.3% Germans 14.7% Not stated
Government Parliamentary republic Legislature NaSonal Assembly FoundaSon 895 ChrisSan kingdom 1000 Current republic 23 October 1989 PopulaSon June 2012 esSmate 9,942,000 (84th) Area Total 93,030 km2 (109th) GDP (PPP) 2012 esSmate Total $195.630 billion
2010 – a new era has begun
“In the last naSonal elecSons in 2010, it (the ruling party) won more than 50 percent of the vote. The government of Prime Minister Viktor Orban controls two-‐thirds of the Hungarian parliament. It can pass any legislaSon it wants. It can even change the Hungarian consStuSon.” John Feffer: Hungary: The Cancer in the Middle of Europe? hfp://www.huffingtonpost.com/john-‐feffer/hungary-‐the-‐cancer-‐in-‐the_b_3402128.html
The new system of ‘NaSonal CooperaSon’ has been set up
“… In fact, the Orban government introduced a new consStuSon shortly aker it took office. It has subsequently pushed through four sets of amendments to that consStuSon. … EssenSally, when the country's consStuSonal court has overturned key FIDESZ laws, the party has simply achieved its goal by changing the consStuSon.” John Feffer: Hungary: The Cancer in the Middle of Europe? hfp://www.huffingtonpost.com/john-‐feffer/hungary-‐the-‐cancer-‐in-‐the_b_3402128.html
New media laws in Hungary Timeline of events
2010
25 Apr 2010 Fidesz wins elecSon with two-‐thirds majority 11 June 2010 Government MPs propose far-‐reaching media law reforms 23 June 2010 InternaSonal journalist organizaSons and media professionals criScize drak media law package 24 June 2010 OSCE demands "halt" to new media reforms 22 July 2010 Parliament passes overhaul of media regulaSon structure 6 Sept 2010 European Commission: "no reason to intervene” 15 Sept 2010 OSCE says media package puts "chilling effect" on press 2 Dec 2010 Papers protest with blank front pages 13-‐30 Dec 2010 Protests and criSsism over new media laws with no effect 3 Jan 2011 "Freedom of the press in Hungary comes to an end”
11 June 2010
Government MPs present a new media bill (HU), "On the Freedom of the Press and the Fundamental Rules on Media Contents," to the parliamentary Commifee on Culture and the Press. Controversial elements include a new "media consStuSon," outlining content regulaSon for all media; new registraSon requirements for media outlets, including print and online media; the creaSon of a powerful media regulatory board; and a new public broadcasSng structure. Hungarian opposiSon parSes, strongly criScizing the proposed media legislaSon, submit 44 amendments to the bill in Parliament. Only one of these amendments, which was submifed by the naSonalist Jobbik party, is passed. See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
23 June 2010 The European FederaSon of Journalists (EFJ) condemns the new media legislaSon, saying it "does not meet European standards of diversity and plurality and turns the clock back to a Sme when Hungary lived under . the shadow of state control of media." A day later, the InternaSonal Press InsStute (IPI) criScizes Fidesz for using its two-‐thirds parliamentary majority to "rush through a media package that would grant the government strong influence over key media outlets.” See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
24 June 2010 • Dunja Mijatovic, the OSCE RepresentaSve on Freedom of
the Media, calls on the Hungarian Government to stop draking media legislaSon that is to be voted on next week, and start public consultaSons involving professional stakeholders to modify the drak laws. "The proposed laws are highly worrisome regarding media freedom in your country," the RepresentaSve writes Foreign Minister Janos Martonyi. "Their adopSon could lead to all broadcasSng being subordinated to poliScal decisions.”
See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
22 July 2010 – the new super-‐regulator NMHH was establihed
Parliament passes Law 82/210, a major piece of the proposed new media law package, which overhauls the country's media regulaSon structure and establishes a new, centralized media supervisory authority. Under the new law, the NaSonal TelecommunicaSons Authority (NHH) and the Radio and Television Authority (ORTT) will be merged into a new NaSonal Media and TelecommunicaSons Authority (NMHH). The head of NMHH, appointed by the prime minister for renewable 9-‐year terms, will become the automaSc nominee for the chairpersonship of the Media Council, a new five-‐member board nominated by a Parliamentary commifee, with members also to serve indefinitely renewable 9-‐year terms. See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
6 Sept 2010
"The European Commission is fully dedicated to protecSng basic freedoms," says European Commissioner for Digital Agenda Neelie Kroes, but currently "sees no reason to intervene" in the Hungarian situaSon. See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
15 Sept 2010 OSCE RepresentaSve on Freedom of the Media Dunja Mijatovic urges Hungarian Minister of Foreign Affairs Janos Martonyi to reconsider the media law package, warning that it would "seriously restrict media freedom, curb the independence of the press, abolish the autonomy of public service media and impose a chilling effect on freedom of expression." She releases an expert legal review of the media law package by Karol Jakubowicz, and urges Hungary to "take into consideraSon the detailed recommendaSons of the analysis when rewriSng the legislaSon.” See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
Nov 2012-‐ the new ‘Media ConsStuSon’
• 25 content regulaSons • Applied to ALL media (print, on-‐line, audiovisual – public and commercial -‐)
• Vague and overreaching provisions (e.g. ArScle 13 states that linear media services which supply informaSon shall provide “comprehensive, factual, up-‐to-‐date, objec-ve and balanced coverage” on public issues)
• New registraSon requirements for print and on-‐line media as well
2 Dec 2010 Several Hungarian publicaSons – the daily Népszava newspaper and the weeklies Magyar Narancs and Élet és Irodalom – run blank front pages in protest of the new media laws. "The bill would provide total supervision of electronic, Internet and print media to the Media Council and through them to the government" Magyar Narancs reports. "With that, press freedom would come to an end in Hungary as of Jan. 1, 2011." The editor-‐in-‐chief of Élet és Irodalom claims the bill is clearly aimed "against journalists, against transparency," and that "from now on the press will be under constant pressure.” See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
21 Dec 2010 – the new Media Act was passed
• The role and he power of the Media Council (within NMHH) is secured
• New rules on tendering and licensing providing the Media Council with an almost unlimited discreSonal right to withdraw or stop any procedure
• Cross-‐ownership restricSons are defined by the Media Council with an almost unlimited discreSonal decision power (see AxelSpringer-‐Ringier fusion denial in 2011)
• SancSons and not proporSonate fines set by the Media Council seriously lacking legal certainty (and even challenging them doesn’t have suspensory effect)
13-‐30 Dec 2010 • InternaSonal organizaSons (Freedom House, European Newspaper Publishers'
AssociaSon) condemn new media bill; • Hundreds afend protest organized by Facebook; • DJ suspended for on-‐air protest; • EP groups publish statements against law; • OSCE condemns new media law, says it "endangers media freedom”; • InternaSonal press condemns new media law; • Foreign governments express concern, criScism of new media law; • InternaSonal groups (Amnesty InternaSonal, IPI, EFJ) say new media laws violate
free press standards; • European Commissioner Kroes writes to the Hungarian government. PM Orbán on changing laws: "we don't even dream of such a thing” See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
3 Jan 2011
New Hungarian media laws are effecSve of 1 Jan 2011. Two Hungarian newspapers, Népszabadság and Népszava, publish front-‐page protests to the media law. Népszabadság runs the sentence "Freedom of the press in Hungary comes to an end" on the front page, in all 27 official EU languages. The German newspaper taz reprints the front page in solidarity. See interacSve Smeline at hfp://cmcs.ceu.hu/resources-‐new-‐media-‐laws-‐in-‐hungary-‐0
New media laws in Hungary
Timeline of events 2011-‐2013
• Public service media turned to State media (MTVA) (‘The government replaced the heads of Hungarian public radio, television, and news agency with its own yes men.’)
• Literally no news reporSng in main commercial TV channels • A new media law allows anyone, even anonymously, to file
complaints against a newspaper, website, or TV staSon, with potenSally large fines assessed by a Media Council whose members all come from FIDESZ.
• Klub Radio-‐case • Second biggest commercial radio channel went bankrupt beacuse
of lack of any direct or indirect state adverSsing and as a consequence of economic crisis on the media market
• On-‐line media has remained relaSvely free however its poliScal impact factor on the society is sSll very low (because of low internet literacy)
State capture By now almost criScal assets of the Hungarian media market belong to the business background of the ruling party (FIDESZ). Highlights: -‐ the only naSonal commercial radio, -‐ Various talk and music radio channels, -‐ news TV channel, -‐ daily and weekly print media including the biggest free daily,
-‐ Outdoor media, -‐ PR and adverSsing agencies, -‐ Etc.
Rent seeking In 2013 one can find a really lucraSve business por{olio of the FIDESZ background even in the media market (and despite of the economic crisis). The profitability of the assets of the por{olio are provided either by regulatory tools (e.g. regulaSon of the out-‐door media market) or by direct financial means (e.g. adverSsement by state agency’s in the given media outlets). We can conclude to the establishment of a classical ‘rent-‐seeking’ system in Hungary by the Government. “In public choice theory, rent-‐seeking is an afempt to obtain economic rent by manipulaSng the social or poliScal environment in which economic acSviSes occur, rather than by creaSng new wealth. One example is spending money on poliScal lobbying in order to be given a share of wealth that has already been created. Many current studies of rent-‐seeking focus on efforts to capture various monopoly privileges stemming from government regulaSon of a market.”
How could this all happen in an EU MS?
Although there were several afempts by the European Commission, by the Council of Europe, by OSCE, etc. they’ve proved to be either insufficient or vague or the Government was smart enough to meet in ternaSona l recquirements without any real change or amendment to the unacceptable legal framework.
Copenhagen dilemma Accession criteria (Copenhagen criteria) Any country seeking membership of the European Union (EU) must conform to the condiSons set out by ArScle 49 and the principles laid down in ArScle 6(1) of the Treaty on European Union. Relevant criteria were established by the Copenhagen European Council in 1993 and strengthened by the Madrid European Council in 1995. To join the EU, a new Member State must meet three criteria: • poliScal: stability of insStuSons guaranteeing democracy, the rule of law, human rights and respect for and
protecSon of minoriSes; • economic: existence of a funcSoning market economy and the capacity to cope with compeSSve pressure and
market forces within the Union; • acceptance of the Community acquis: ability to take on the obligaSons of membership, including adherence to the
aims of poliScal, economic and monetary union. For the European Council to decide to open negoSaSons, the poliScal criterion must be saSsfied. Any country that wishes to join the Union must meet the accession criteria. The pre-‐accession strategy and accession negoSaSons provide the necessary framework and instruments. However a7er accession to the EU there are no legal means to reinforce the implementa&on of and alignment with the Copenhagen criteria (only in some cases of economic nature)
OSCE-‐report by Karol Jakubowicz Sept 2010
… “GENERAL ASSESSMENT The package represents an afempt to modernize Hungarian media law by responding to the • challenges posed by technological change leading to the emergence of new communicaSon
• services. This, however, is done mainly by extending the tradiSonal regulatory framework to the
• new media, an approach widely recognized as inappropriate. … The results can be assessed as (i) on the one had insStuSng a system for media content regulaSon (including Internet-‐ and ICT-‐delivered media content) going in its sweep and reach beyond almost anything afempted in democraSc countries and beyond the limits of what is accepted in the internaSonal debate as an appropriate and jusSfied approach to regulaSng new communicaSon services, and (ii) on the other, as introducing – oken in disregard or violaSon of the needs of a democraSc system of social communicaSon and of the lefer and spirit of internaSonal standards -‐ stricter regulaSon, more pervasive controls and limitaSons on freedom of expression. Few of the new measures and changes of the exisSng framework can be described without reservaSon as serving the cause freedom of expression and media freedom. They will introduce a highly centralized governance and regulatory system, with many new and unnecessary bodies of oversight and supervision and with many decision-‐making processes involving a succession of inputs by disparate bodies – probably breeding conflicts and inefficiencies, but also mulSplying opportuniSes for poliScal control. The whole system may have a serious chilling effect on media freedom and independence ((by encouraging selfcensorship) and on the exercise of freedom of expression. Traps are created that content providers cannot avoid falling into, giving the authoriSes an opportunity to penalize them for it. Some provisions are transferred from the Civil Code to media legislaSon, presumably to make it easier to apply them in an administraSve procedure, rather than a judicial one. The new insStuSonal framework may, if deliberately (mis)used for this purpose, create condiSons for the realizaSon of the “winner-‐takes-‐most” or indeed “winner-‐takes-‐all” scenario in the current term of Parliament, in defiance of the principle of the division of powers and of the checks and balances typical of liberal democracy. As such, the design of this framework runs directly counter to democraSc standards in the field of media system organizaSon and governance. Accordingly, this package, which exceeds what is jusSfied and necessary in a democraSc society, is cause for very serious concern. It needs urgently to be reconsidered and amended, so the legislaSon can serve its proper funcSon of enhancing Hungarian democracy. Parliament might serve this cause by iniSaSng a revision of the adopted parts of the package and not considering Bill T/363 unSl it has been comprehensively rethought and re-‐wrifen.” See at hfp://www.osce.org/fom/71218
Commissioner for Human Rights 25 Feb 2011
… “Conclusion 55. Freedom, independence and pluralism among media are indispensable characterisScs of a healthy democracy. The State is enjoined, not least by Council of Europe standards deriving from ArScle 10 ECHR, to protect, nurture and promote media freedom in a manner that encourages, not dissuades, media actors to fulfil their roles as purveyors of a diverse range of informaSon and watchdogs of state acSon. 56. The wide range of problemaSc provisions in Hungary’s media legislaSon, as idenSfied in this Opinion, is sufficient to warrant a wholesale review of the “media package” passed by Parliament in the second half of 2010. It is recommended that the goals of such a review include the reinstatement of precise legislaSon promoSng pluralisSc and independent media, and the strengthening of guarantees of immunity from poliScal influence on the part of the media regulatory mechanisms. 57. More generally, there should be a serious, concerted and urgent effort to free the media, parScularly the printed press, from content prescripSons, the imposiSon of sancSons, pre-‐empSve restraints via registraSon procedures, and threats to the integrity and anonymity of sources. 58. The Commissioner reiterates that the best guide for the Hungarian authoriSes as they undertake their wholesale review is the body of Council of Europe standards that have been developed in Court judgments, recommendaSons and resoluSons over the past six decades. In parScular, express legislaSve incorporaSon of standards contained in ArScle 10 ECHR and the jurisprudence of the ECtHR would go a long way in alleviaSng the Commissioner’s concerns with Hungary’s media legislaSon.”…. See at hfps://wcd.coe.int/ViewDoc.jsp?id=1751289
CoE report by Joan Barata Mir and Eve Solomon
11 May 2012 In the case of the Media Acts, the processes for appointments to the media regulatory bodies (the Media Council, the Board of Trustees of the Public Service FoundaSon, and the Public Service Board) do not ensure poliScal neutrality or independence. ExisSng safeguards in Act CLXXXV are greatly undermined by the fact that the current government of Hungary has a two-‐thirds parliamentary majority. This overwhelming majority unbalances the checks that were intended to ensure poliScal independence. To comply with Council of Europe standards – and to allay criScism – the appointments process should therefore be revised. Another major criScism levelled in respect of the Media Acts is the inclusion of all media (including online) services within its purview. There is no democraSc European precedent regulaSng print and comparable online media content (i.e. excluding on-‐demand audiovisual media services) beyond the scope of general legislaSon.” … See at hfp://www.mediajogfigyelo.hu/uploads/files/0_Council_of_Europe_Hungary_Media_Acts_Analysis_-‐_Final_14-‐05-‐2012.pdf
Amicus Brief to the Venice Commission of the Council of Europe-‐
Feb 2012 What is the Venice Commission? The European Commission for Democracy through Law -‐ befer known as the Venice Commission as it meets in Venice -‐ is the Council of Europe's advisory body on consStuSonal mafers. The role of the Venice Commission is to provide legal advice to its member states and, in parScular, to help states wishing to bring their legal and insStuSonal structures into line with European standards and internaSonal experience in the fields of democracy, human rights and the rule of law. Hungarian experts and academics have briefed the Venice Commission about their concerns on several cardinal Hungarian laws “By the Sme the new consStuSon went into effect on 1 January 2012, the Hungarian Parliament had enacted many but not all of the so-‐called cardinal – or super-‐majority – laws that the consStuSon required in order to specify elements of the consStuSonal order. These laws substanSally altered many consStuSonal insStuSons in Hungary and have made the guarantee of consStuSonal rights less Secure.” hfp://halmaigabor.hu/dok/426_Amicus_Cardinal_Laws_final.pdf
Agreement of the Hungarian Goevrnment and of the Council of Europe on the amendments to the Hungarian media laws
Jan 2013
... „Lefer of Hungarian NGOs and civil experts to Mr. Thorbjotrn Jagland Secretary General Council of Europe 4 February 2013, Budapest … “The agreement between the Council of Europe and the Hungarian government concerns a limited area only of the structural problems of the media regulaSon, and what is more, these changes will not result in substanSve changes, which can prevent immediately any further distorSons in the public sphere. Moreover, the agreement is not in full accordance with the former recommendaSons of the Council of Europe.” See at hfp://mertek.eu/sites/default/files/files/lefer_hungarian_ngos_media_ce_1.pdf
Freiberga-‐report Jan 2013
… “Recommenda)on: The EU should be considered competent to act to protect media freedom and pluralism at State level in order to guarantee the substance of the rights granted by the TreaSes to EU ciSzens, in parScular the rights of free movement and to representaSve democracy. The link between media freedom and pluralism and EU democracy, in parScular, jusSfies a more extensive competence of the EU with respect to these fundamental rights than to others enshrined in the Charter of Fundamental Rights. … Recommenda)on: NaSonal compeSSon authoriSes need to make (or commission) pro-‐acSve regular assessments of individual countries’ media environments and markets, highlighSng potenSal threats to pluralism. At the EU level, there should be pro-‐acSve market assessment under compeSSon policy in the form of a sectoral inquiry. … Recommenda)on: Media freedom and pluralism should play a prominent role in the assessment of accession countries. A free and pluralist media environment must be a pre-‐condiSon for EU membership. … Recommenda)on: To reinforce European values of freedom and pluralism, the EU should designate, in the work programme and funding of the European fundamental rights agency, a monitoring role of naSonal-‐level freedom and pluralism of the media. The agency would then issue regular reports about any risks to the freedom and pluralism of the media in any part of the EU. The European Parliament could then discuss the contents of these reports and adopt resoluSons or make suggesSons for measures to be taken. … Recommenda)on: All EU countries should have independent media councils with a poliScally and culturally balanced and socially diverse membership. NominaSons to them should be transparent, with built-‐in checks and balances. Such bodies would have competences to invesSgate complaints, much like a media ombudsman, but would also check that media organisaSons have published a code of conduct and have revealed ownership details, declaraSons of conflicts of interest, etc. Media councils should have real enforcement powers, such as the imposiSon of fines, orders for printed or broadcast apologies, or removal of journalisSc status. The naSonal media councils should follow a set of European-‐wide standards and be monitored by the Commission to ensure that they comply with European values. … Recommenda)on: A network of naSonal audio-‐visual regulatory authoriSes should be created, on the model of the one created by the electronic communicaSons framework. It would help in sharing common good pracSces and set quality standards. All regulators should be independent, with appointments being made in a transparent manner, with all appropriate checks and balances. “ See at hfp://ec.europa.eu/digital-‐agenda/en/high-‐level-‐group-‐media-‐freedom-‐and-‐pluralism
The role of Hungarian major stakeholders
• Market players (commercial TV, radio, print, on-‐line) try to avoid any conflict with the Government and with the super-‐regulator (NMHH) in order maintain business profitability (e.g. the amount of potenSal fines can severly affect any business plan of an on-‐line operator) however
• Direct and/or indirect media buys of the Governmental organisaSons has a major share on the adverSsing market which is badly needed by businesses’ escpecially at Smes of the economic crisis and
• Special taxes in the media sector are foreseeable as in case of telecoms (e.g. New drak law on special taxes on adverSsing revenues) which would hardly hit any profitable media company
• ‘Chilling effect’ in the newsrooms • Professional associaSons, lobby groups, etc. are looking for favours of the Government • Even mulSnaSonal companies have agreed to comply with the rent-‐seeking system (e.g. adverSse
at media outlets which belong to the network of FIDESZ-‐media) as a result of systemic challenges (e.g. special taxes, strategic agreements with selected ‘friendly’ investors) in the past 3 years by the Government resulSng in a very direct ‘carrot or sSck’ governence system of the country
• As a result of the economic crisis even great journalists are dependent on their jobs and employers therefor they don’t take the risk to raise their voice
• Very few independent media and IJ are sSll fighSng on a daily basis to inform the public however the structure of the Hungarian public scene restrict the impact of their acSvity
Now (May 2013)
“Make no mistake: FIDESZ remains popular. It retains a large lead over a variety of opposiSon parSes (though, with the next elecSons sSll a year away, that lead seems to be narrowing somewhat). CriScs argue that the ruling party's control over the media helps maintain its posiSve image.” John Feffer: Hungary: The Cancer in the Middle of Europe? hfp://www.huffingtonpost.com/john-‐feffer/hungary-‐the-‐cancer-‐in-‐the_b_3402128.html
Conclusions • NGOs (atlatszo.hu, mertek.hvg.hu, etc.), awareness raising, public pressure are
present however with low level of impact • No more available means within the current European and internaSonal legal
framework, therefore poliScal acSon/intervenSon is needed (EC) however • Hungary has witnessed the lack and/or ineffecSveness of the currently available
poliScal and regulatory means of the EU and of ist organs in case of threats to media freedom
• The freedom of the internet has very limited impact on public opinion due to the structure of the Hungarian public sphere (TV, radio and print media are sSll the most influeanSal sources of informaSon for the waste majority of the populaSon)
• Trust in democraSc values and faith in freedom of speech, freedom of opinion, etc. are sSll (even aker 23 years of democraSc change) not deeply rooted therefor not able to raise meaningful poliScal awareness of the public
• ‘Catch22’: for changing the system poliScal change is needed with public pressure BUT no channels are actually available
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