Hungarian Government statement
As of 1 October 2010, Austria's KommAustria is responsible for the legal monitoring of the ORF and the supervision of online media content by commercial outlets.42
It is true that the Austrian Communications Authority (KommAustria) is currently responsible for supervising Austria's public broadcaster as well as audiovisual media services and audiovisual commercial communications on the Internet.43 However, KommAustria does not regulate the print or online press: its remit over online media extends to audiovisual on-demand (Internet TV and radio), advertising, and online content supplied by ORF. The print and online press are regulated under a separate Press Law, as well as by provisions in the civil, constitutional and penal laws, and monitored by various federal ministries, the courts, and more recently, the self-regulatory Austrian Press Council. 44 For instance, all media and websites are bound by provisions in the civil and penal codes, which prohibits certain content—for instance, the dissemination of Nazi materials and symbols—although these areas are governed by the criminal authorities, the Interior Minister, and the courts, and not specifically by KommAustria.45 Hence, the use of the Austrian example does not adequately address the criticism to which the Hungarian Government is responding, as in Austria, print and online press (other than that supplied by ORF) are regulated separately from audiovisual services.
KommAustria is responsible for monitoring compliance with general content regulations applicable to all audiovisual media service providers as detailed in the Audiovisual Media Services Act,46 and with sector-specific laws and regulations dealing with private radio, public broadcasting, and commercial communications.47 The implementation of the EU Audiovisual Media Services Directive in 2010 triggered the array of amendments to Austria's media regulation framework, including a number of changes to the 2001 Audiovisual Media Services Act (formerly the Private Television Act) which expanded KommAustria's authority over broadcasting to include audiovisual media services (including their online content) and advertising on the Internet.48 The legislative restructuring was also result of legal action taken by the European Commission over ORF's broadcasting monopoly and state financing.49 Hence, the ORF Act, amended in February 2010, brought Austria's public service broadcaster (ORF) and its subsidiaries under KommAustria's supervision.50
As noted, the Audiovisual Media Services Act details general content regulations for all audiovisual media service providers,51 which include provisions on the protection of human dignity, incitement to hatred, programming for the hearing and visually impaired, and the protection of minors, in addition to a range of general provisions regarding advertising, teleshopping, and programming quotas for independent and European works.52 There are also general requirements for commercial communications (including for online media), such as prohibitions against surreptitious advertising and advertising that discriminates by gender, race or ethnic origin, nationality, religion or belief, disability, age or sexual orientation, or that violates human dignity or provisions on protection of minors.53 The law also contains a set of special programming principles for TV broadcasters, including to the obligation to ensure "objectivity and pluralism," to provide programming that represents the public, cultural and economic life within the broadcasters' circulation region, and programming that complies with accepted journalistic principles.54
The Audiovisual Services Act also details which of these general content regulations are applicable for "teletext and online services."55 These include obligations to provide comprehensive coverage of important political, social and economic issues, that promote the understanding of democratic society, as well as prohibitions against content that incite hatred, impair the development of minors, or contain pornography or gratuitous violence. All online content produced by ORF must not violate provisions concerning human dignity and fundamental rights of others.56
As noted, KommAustria currently has no remit to monitor content in the print press or electronic press (except that produced by ORF), which are governed by the Press Law and also by provisions in civil, constitutional and penal laws. The Press Law contains a range of content regulations, including on defamation and libel, the right to privacy, right of reply, and the protection of individuals involved in criminal proceedings. These regulations are overseen and federal ministries—including the Minister of Justice and the Federal Minister for Economy and Labour, the Minister of Interior and the Federal Chancellor—local administrative authorities, and in the case of criminal/illegal content, the police. For instance, the provisions concerning defamation, libel, and slander, which are criminal offenses, are overseen by Federal Minister of Justice.
42 This example was cited by the Hungarian Government under both "Criticism 7" and "Criticism 19" 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/news/criticisms-and-answers-formulated-on-the-subject-of-the-proposed-media-act-examined-in-a-european-context 43 Austrian Communications Authority (KommAustria), available at: http://www.rtr.at/en/m/InstitKommAustria. 44 The Press and other Publication Media (the "Media Act") (1981), as amended in 2005, available at: http://www.internet4jurists.at/gesetze/bg_medien1a.htm. 45 The Prohibition Act of 1947 is a constitutional law that prohibits public denial, belittlement, approval, or justification of the Nazi genocide or other Nazi crimes against humanity in a print publication, a broadcast, or other media. It also prohibits incitement, insult, or contempt against a group because of its members' race, nationality, or ethnicity if the statement violates human dignity. The Government strictly enforced these laws. 46 Federal Law on Audiovisual Media Services ("Audiovisual Media Services Act" AMD-G) Federal Law Gazette No. 84/2001, as amended, available at: http://www.rtr.at/en/m/AMDG. 47 For a list of laws relating to KommAustria's activities, see: http://www.rtr.at/en/m/Gesetze. 48 Audiovisual Media Services Act (AMD-G) Federal Law Gazette No. 84/2001, as amended, available at: http://www.rtr.at/en/m/AMDG. 49 "State aid: Commission closes investigation into financing regime of Austria's public service broadcaster ORF," Europa.eu, IP/09/1603, October 2009, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1603