Media Law in Hungary | CMCS




This report presents expert analyses of the 56 media regulations from 20 European and EU-member states that were cited by the Hungarian Government as precedents for its new media laws. The study finds that Hungary's media laws are largely inconsistent with cited European practices and norms, based on an examination of the legal precedents provided, and on expert analyses of how these precedents are implemented in these European and EU-member countries. In a majority of examples, experts report that the Hungarian Government's references omit or inaccurately characterise relevant factors of the other countries' regulatory systems, and as a result, the examples do not provide sufficient and/or equivalent comparisons to Hungary's media regulation system. In many examples, the Hungarian Government accurately presents a portion of a legal provision or regulation, however in these cases the reference either omits elements of how the regulation is implemented or the regulation cited does not correspond with the scope and powers of Hungary's media laws or Media Authority. Overall, this study finds that the European media regulations cited by the Hungarian Government do not serve as adequate precedents for Hungary's new media laws.

The expert assessments indicate that Hungary's media laws appear to be inconsistent with the cited European media regulation systems and/or practices in a majority of examples provided by the Hungarian Government in the following areas:

• the Hungarian Media Authority's centralised structure and scope of authority over all media sectors and all areas of media regulation, from tendering, licensing and spectrum management to monitoring and sanctioning;

• the Hungarian media laws' scope over all media sectors, inclusive of traditional print and online press, and under the supervision of a single media authority;

• the Hungarian Media Council's role in appointing directors to public media outlets, and its management over the funding body for public media; • the Hungarian Media Authority's sanctioning powers over all media;

• the process of judicial review of the Hungarian Media Authority's decisions.

The expert assessments indicate that a majority of the Government's examples do not appear to provide proportionate comparisons to Hungary's Media Authority or to Hungary's media regulation framework. This trend is evident in the assessments throughout this study, as demonstrated by the expert analyses of the Government's examples in the following seven areas:4

1. Media Authority independence. In response to international concerns regarding the independence of Hungary's new Media Authority, the Government cites examples from nine European and EU-member states in which it states that media authorities have less independence from the government than in Hungary (Austria, Belgium, Denmark, Ireland, Italy, Netherlands, Sweden, Switzerland and the UK). Although in all it is accurate that some or all members of these bodies are appointed by the government, the expert assessments indicate that in all nine cases the Hungarian Government's examples inaccurately cite or omit key formal and informal elements of the appointment and/or regulatory systems which would provide a more complete assessment of the level of regulatory independence with which these bodies operate in practice. Experts also find that the media regulatory bodies cited do not have the equivalent regulatory scope of Hungary's Media Authority. For instance, unlike in Hungary, in all nine examples given, the media authority referenced is responsible for regulating broadcasting and audiovisual media but has no content-related authority over both the print and online press; and in all nine cases, the media regulatory body cited is not the sole—or in some cases even the most powerful—media authority in that country. In six of the nine examples, the Hungarian Government cites an incorrect or former regulatory body and/or an inaccurate or outdated appointment procedure or law.

The analyses also reveal problems with independence in a majority of these cited cases, even with formal safeguards in place. The research therefore indicates that the risk of "government capture" of media regulatory bodies is not unique to any specific appointment system. However, experts find that the Hungarian Government's claim that media regulatory boards with less independence from the government than Hungary's Media Authority is not supported by the examples provided.

2. Media Authority's centralised structure and regulatory scope. In response to the criticism of the Media Authority's centralised structure and scope of authority over all media sectors and regulatory activities—from tendering and licensing to monitoring and sanctioning media—the Hungarian Government cites examples of three convergent regulatory bodies as sharing similar powers: Finland's FICORA, Italy's AGCOM and the United Kingdom's Ofcom.According to the expert evaluations, the single common point between these bodies and Hungary's Media Authority is that each is a formally "convergent" regulator, with varying levels of competencies over the media, telecommunications and postal sectors. However, in none of the three examples cited does the body referenced regulate all media sectors, as with Hungary's Media Authority: in all three cases, the regulatory body cited has no authority over the content of traditional print or online press; in Finland, public media are regulated by a separate body, and the UK, Ofcom has limited regulatory authority over the BBC. Both Finland's FICORA and the UK's Ofcom are responsible for both tendering and licensing as well as for monitoring and sanctioning media under its authority. However Finland's FICORA only has the power to grant (and revoke) short-term licenses only; the power to grant (and revoke) broadcasting licenses is the responsibility of the Ministry of Transport and Communications. For Ofcom, tendering/licensing and monitoring/ sanctioning are handled by two separate units and personnel within that body. Italy's AGCOM is not responsible for tendering and licensing. Hence, the specific structure of Hungary's Media Authority, in which these functions are carried out by the same body, appears to be unique among the three convergent regulatory bodies cited. In addition, in all three cases cited by the Hungarian Government, the regulatory bodies referenced are not the sole media regulator in that country. The expert assessments therefore indicate that the scope of powers afforded to Hungary's convergent Media Authority appears to exceed those in the three examples of convergent regulatory bodies cited.

3. Media laws' scope (regulating print and online press): In response to the criticism of the Hungarian media laws' regulatory scope over all media inclusive of the print and online press, the Hungarian Government cites examples from eight EU-member and European countries in which these media are also regulated (Austria, France, Italy, Lithuania, Portugal, Slovenia, Sweden and Switzerland). The expert evaluations of these examples show that traditional print and online press are regulated in other European and EU-member states, as the Hungarian Government accurately states. In all cases cited, the print and online press are bound by certain legal statues or standards—a separate press law, constitutional provisions, and/or professional codes of ethics—and in some cases, even by provisions in the penal codes. However, in five of these cases (Austria, France, Italy, Sweden, Switzerland), print media and online press are either by regulated by separate press law and/or self-regulated by professional codes of ethics, and under the supervision of a press council, the courts, or a separate regulatory body. In addition, for all seven of the EU-member states in this set of examples, the expert analyses show that the media laws generally extend to online content of broadcasters and audiovisual media in accordance with the EU Audiovisual Media Services Directive; however in a majority of these cases, these regulations do not extend to traditional print media or their websites.

In three cases, Italy, Lithuania and Slovenia, there is a unitary law covering all media, including the print and online press, but these media are regulated by different bodies (in Lithuania and Slovenia) or the courts (in Italy). In one case, Portugal, the media authority has supervision over all media, but these media are bound by separate obligations under sector-specific laws; print and online press are subject to the fewest restrictions of all media sectors. In addition, Portugal's media authority is responsible for monitoring content-related provisions of the various media laws, and has no authority over technical and competition-based regulations. Hence, among all eight cases in this set of examples, Hungary's is the only system in which all media are regulated under a comprehensive media and by a single authority responsible for regulating all media sectors.

4. Public Service Media: In response to criticisms of the Media Council's role in appointing directors of Hungary's public service media outlets, the Hungarian Government cites examples from six European countries (Austria, Czech Republic, Finland, France, Switzerland, and the UK) in which the CEOs of public media outlets are appointed without tendering. The expert assessments show the Hungarian Government's examples are generally accurate—although in a majority of these cases the experts also report that this practice is both prone to political influence and public criticism. As such, with these examples the Hungarian Government compares its system to a practice with notable deficiencies in relation to European norms, specifically with regard to the Council of Europe's recommendations for the independence of public media. In addition, the expert analyses show that none of the examples cited correspond with the bodies responsible for and/or systems of appointing public media directors in Hungary. Although experts report that these appointments are often politicised, the analyses indicate that in a majority of the examples cited there are one or more tiers of "checks" that work to mitigate the government's direct influence over these appointments. In five of the six cases cited, Hungary's system appears to have fewest of these safeguards in place. However in France, the appointment procedures appear to provide the least safeguards of all examples cited, including Hungary's. As a result of amendments passed by the Sarkozy Government in 2009, the director of France Télévision is appointed by the French president, after approval by the country's media regulator and relevant parliamentary committees. This new system has raised serious concerns from free-press advocates as a threat to France Télévision's political independence, and would also appear to not conform to the above-mentioned Council of Europe's standards.

In response to the criticism of the centralisation of news production of Hungary's public media xii • Hungarian Media Laws in Europe system, the Hungarian Government cites similar examples from Austria, Italy, and the UK. According to the expert evaluations, these examples are partially accurate: in the Austrian and Italian public media systems, some or much of the content is produced regionally, with full or partial editorial independence. The Government's description of the British BBC is more accurate, as news production within the BBC has been increasingly centralised across platforms and channels over the past decade. With the BBC, the expert reports that the centralisation of news production has sparked much public controversy, as opponents say this process has compromised the BBC's programming diversity and pluralism.

In response to criticism over the Media Council's role in managing the new fund for Hungary's public service media, the Hungarian Government cites an example from one EU country, Finland, in which it states the media authority has a similar role. According to the country expert, this example is not accurate. The Finnish Communication Regulatory Authority's (FICORA) role in managing public media financing is purely administrative: it collects the annual license fees from households and businesses for the State Television and Radio Fund. FICORA has no authority to set the level of overall funding for public media, to allocate funding to public media outlets, or to determine what activities for which the funding is to be utilised. FICORA has no other relationship with the Fund other than to license collect fees. By comparison, Hungary's Media Council manages Hungary's public service media fund, the MTVTVA. The chairperson of the Media Council appoints the Fund's director general, deputy directors, the chairperson and the four members of its supervisory board. The Media Council is responsible for approving the Fund's annual plan and subsidy policy, and for determining the rules governing how MTVTVA's assets can be used, managed, and accessed by the public media.

5. Media Authority powers: In response to critics who claim that Hungary's new media laws allow the Media Authority and Media Council to assert arbitrary control over tendering and licensing processes, as well as concerns over the Media Authority president's powers to issue decrees, the Hungarian Government cites similar precedents from two countries in which media authorities have powers to a) renew licenses without a tender (France), and b) issue decrees (Germany). However, according to the expert assessments, neither example corresponds to the Media Authority's specific powers in these areas.

In response to the concerns over the powers of Hungary's new Media Commissioner, the Government cites examples of similar ombudsman and/or press council systems in Finland, Ireland, and Lithuania. According to the expert evaluations, the comparisons between the bodies cited and Hungary's Media Commissioner are inaccurate: the ombudsman and/or press councils cited in these three systems operate as independent entities from the respective media authority in monitoring compliance with legal regulations, codes of ethics, or in handling disputes between the public and the press. The cited bodies can either only monitor and enforce compliance with legal regulations or can supervise compliance with journalistic practices. Hungary's Media Commissioner, by comparison, is an appointee of the Media Authority president, and operates within and as a representative of Hungary's media regulatory body. The Commissioner has the authority to initiate proceedings that do not involve violations of the law and its proceedings can be enforced by Media Authority-issued fines and sanctions. Although its tasks include handling complaints from the public, the Media Commissioner's additional monitoring and enforcement powers exceed those afforded to the three bodies cited by the Hungarian Government. The Government's examples therefore appear to erroneously equate the Media Commissioner's role and powers with those of a traditional ombudsman, and at the same time inaccurately or inadequately presents the respective powers and roles of the ombudsman and press council systems in the three cases cited.

6. Data Disclosure: In response to the criticism of the Media Authority's powers to demand data from media outlets beyond that which is required for mandatory registration, the Government cites examples of media regulatory bodies with similar powers in Denmark, Estonia, Italy and Lithuania. The expert assessments of these examples show that the Hungarian Media Authority's data-disclosure powers appear to exceed those in three of the four country cases cited. In each of the four examples cited, media authorities can require data from media outlets as a condition of registration and in the course of its regulatory oversight and investigatory activities. However, in only one example, Italy, does the cited media regulator's power in this area extend to all media sectors, including print and online press. In addition, the Hungarian Media Authority's powers to demand an unlimited range of data and information from all media, combined with the power to assess financial and other penalties on media outlets for incorrect provision of data and for refusal to comply with data disclosure requests, are similar to those in only one of the four examples cited: Italy's AGCOM. The expert assessment shows that AGCOM's investigatory and sanctioning powers regarding data disclosure are in fact greater than those granted to Hungary's Media Authority.

7. Sanctions: In response to criticisms of the Hungarian Media Authority's sanctioning powers, the Hungarian Government cites precedents of similar sanctioning policies from 15 EU-member states: Czech Republic, Denmark, Estonia, Finland (two examples), France, Germany (two examples), Ireland, Italy, Latvia, Lithuania, Poland, Portugal, Slovakia, Slovenia, and the UK. Expert assessments indicate that the scope of the Hungarian Media Authority's sanctioning powers over all media is not consistent with those in the examples it provided. The Government cites 17 examples from 15 European countries in which the media can be sanctioned with (some combination of) fines, suspensions, license revocations, and/or terminations. However, as the expert analyses show, the Media Authority's sanctioning scope over all media appears to exceed those afforded to other media authorities in all cited examples. The expert evaluations indicate that the sanctioning policies referenced are often imposed by various regulatory bodies and/or the courts, which have regulatory and sanctioning powers over different media sectors; in Hungary, a single authority has sanctioning power over all media.

Based on these expert assessments, the Media Authority's scope of sanctioning powers over all media sectors—private and commercial broadcasting, print and online press—is the broadest of all cases cited. In 14 of 17 cases, the media body referenced has sanctioning powers over broadcast and audiovisual media (commercial and/or public media, and their online content) but not traditional print or online press. In the three cases, Germany, Portugal, and Slovenia, the respective state media authorities have certain monitoring and sanctioning powers over print and/or online press. Yet in each of these examples, there are factors that limit the scope of these powers as compared to those afforded to Hungary's Media Authority. In Germany, the state media authorities in extreme cases can order an Internet service provider to remove online content for breaches to regulations on protection of minors, however for websites with journalistic content, this order must be approved by a judge. Print media and public service media are self regulated in Germany. In Slovenia, the Media Inspectorate has sanctioning powers over all media, including the print and online press, but the Inspectorate is neither the sole media authority in Slovenia nor is it the primary media authority or sanctioning body for broadcast media. In Portugal, the media authority's general scope of sanctioning powers over all media appears closest to that of Hungary's Media Authority. However, that body regulates media according to sector-specific statutes; the press and online press are regulated by separate laws and under less restrictive obligations than broadcasters. In addition, Portugal's media authority monitors compliance with and can sanction media for breaches to content-related regulations in the media laws and has no sanctioning powers over competition and other technical regulations in the media laws. As such, the general scope of the Portuguese media authority's sanctioning powers appears more limited than Hungary's Media Authority.

Although in many of these systems, traditional print and/or online press can be penalised for violating various legal statues or laws—including in some cases for breaches to provisions in the criminal codes—sanctions in a majority of these examples are managed by separate regulatory bodies, self-regulatory press councils and/or the courts and not by the same media authority as for broadcasting.

The expert analyses also reveal that a majority of the Hungarian Government's examples omit or inaccurately characterise key factors which influence or serve as "checks" how sanctions are applied and enforced in practice. As such, in numerous examples the Hungarian Government correctly cites a specific sanction as provided for in a respective system, however that sanction in some cases applies to specific media sectors, in others to specific breaches, or the particular sanction cited has rarely or ever been imposed in practice. For instance, in seven cases cited, the sanctioning power referenced has never been applied: Finland (two examples), Germany, Ireland, Poland, Portugal, and Slovenia. In five examples, the Hungarian Government's comparisons contain one or more factual inaccuracies, in which the citation refers to the incorrect sanctioning body and/or procedure, or erroneously combines two separate statues into a single claim: Estonia, Ireland, Italy, Lithuania, and Slovenia.

According to these assessments, the Hungarian Government's claim that sanctioning leading officers of media outlets is not a novelty in Europe is accurate. Although the Government cites no specific examples of this type of sanction in other European countries, the expert reports reveal that in five cases (Estonia, France, Latvia, Poland, and Slovenia) responsible editors and top officers may be sanctioned for violations to the media laws. Although the range of violations for which editors and leading officers may be fined by Hungary's Media Authority appears exceed those in a majority of these cases, it is evident from these analyses that there is an an established precedent for this type of sanction within European media systems. In this case, Hungary's system appears consistent with what is generally regarded by free-press advocates as a press-restrictive policy that could impose a preemptive restraint on the media.

In addition, the expert assessments indicate that the process of judicial review of the Media Authority's decisions appears to be inconsistent with those in this set of countries. In Hungary, the Media Authority's sanctioning decisions can be appealed in an administrative court. Appeals do not automatically suspend the Authority's decisions. In addition, the administrative court may only review whether the Authority's decision complies with the provisions in the media laws but the court cannot consider the Media Authority's decisions on the basis of any other laws or legal precedents. Decisions of the administrative court cannot be further appealed. In all countries in this set of examples, the decisions of the media authorities are subject to judicial review; in some cases, appeals have an automatic suspensive effect on the decision; in all cases but one, France, the first court's decision can be further appealed.

In Hungary, the appeals process of the Media Authority's decisions has been significantly altered by additional amendments passed by Hungarian lawmakers after the close of Hungary's EU presidency in July 2011. According to the amended article, fines imposed by the Media Authority are now deemed "public debt" and collectible by the tax authorities, regardless of whether the Media Authority's sanction has been challenged in court. This change has significantly diminished the key checks-and-balances system of the judicial review process with regard to the Media Hungarian Media Laws in Europe • xv Authority's fining decisions. Hence, the current legal framework for appealing the Hungarian Media Authority's decisions appears to be inconsistent with judicial review process in all of these 15 country cases, and would also appear to be inconsistent with established European norms requiring states to provide an effective remedy for appeals at the national level.5

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