Media Authority: centralised structure and regulatory scope

Hungary's Media Authority is responsible for overseeing all media sectors and all areas of media regulation—from tendering, licensing and spectrum management to monitoring compliance with and issuing sanctions for breaches to the new media laws. Opponents say the Media Authority's "dual-headed" structure, with the president of the Media Authority also serving as chairperson of the Media Council, centralises media governance in the hands of a single regulator with an unprecedented scope of authority over Hungary's media landscape. Critics claim the Media Authority's far-reaching regulatory scope vastly exceeds that of other media authorities in Europe. According to the Hungarian Government, the new system streamlines regulatory activities in response to digital convergence and the Media Authority is similar to other "convergent" regulatory bodies in Europe.

The Media Authority was established by Hungarian lawmakers in July 2010 as the country's new "super regulator" responsible for overseeing all sectors of the media, telecommunications and postal services.1 It replaced Hungary's two former regulatory agencies—the National Radio and Television Commission (ORTT), the media regulator, and the National Communications Authority (NHH), the telecommunications regulator—with a single, convergent body to manage all media sectors and areas of media regulation.2 The Media Authority's regulatory powers and scope are specified in the Act on the Freedom of the Press and the Fundamental Rules on Media Content (the "Press Freedom Act") and the Media Services and Mass Media Act (the "Media Act"), as well as in a number of amended laws in the media law "package."3

These laws introduced new regulations for all "media services" and press products—which includes public and commercial broadcasting, Internet TV and radio, on-demand media, print and online press, and foreign media "aimed at" Hungary—to be overseen by the Media Authority. The Media Authority is composed of three main entities: the President of the National Media and Infocommunications Authority; the Office of the National Media and Infocommunications Authority; and the Media Council—each with a range of competencies over media, electronic communications and telecommunications regulations.4 The president oversees the Media Authority's broader monitoring, regulatory and enforcement activities in the media and telecommunications sectors.5 The president's general supervisory tasks include monitoring and inspecting compliance with content- and competition-related provisions of the media laws, as well as with provisions in all public contracts in the media register. The Media Authority president also manages tendering and licensing for digital broadcasters, in accordance with the amended Act on the Rules of Broadcasting and Digital Switchover.6 Under an amendment to the Hungarian Constitution, the president is vested with ministerial-level powers to issue decrees regarding license and spectrum fees (see Chapter 5 of this report on the Media Authority's powers).7 The president oversees the Office of the Media Authority, as well as a number of administrative units,8 including the Media and Communications Commissioner, a new official within the Media Authority responsible for "ensuring rights of media consumers."9 The president can appoint, recall, and dismiss the Office's top management—two vice presidents, director general, and deputy director10—as well as the Media and Communications Commissioner and the Director of the Public Administration Frequency Management Authority (KFGH).11 The president can recall without justification the vice presidents and director general of the Media Authority.12 The president also convenes and chairs meetings of the Media Council, with full voting rights once appointed as chairperson.13

The Office of the Media Authority is responsible for overseeing the media and electronic communications sectors, with respect to the Electronic Communications Act, the Press Freedom Act and Media Act. The Office oversees media registration and manages frequencies and spectrum allocation. It also handles content-related complaints from the public,14 and monitors compliance with a range of content- and competition-related provisions of the media laws.15

The Media Council is a formally autonomous body within the Media Authority, composed of four members and a chairperson, who is also the acting Media Authority president.16 The Media Council is the primary body responsible for overseeing compliance with the Press Freedom Act, or so-called "media constitution," which introduced a range of content regulations for all media sectors.17 The Media Council is also responsible for tendering, renewing and awarding licenses for all linear media service providers (analogue radio and TV broadcasters).18

the new fund for Hungary's public service media, the MTVA, and the Media Council chairperson appoints, sets the salary for and can terminate its director general.19 The chairperson of the Media Council also selects the nominees for directors of Hungary's public media outlets (see Chapter 4 of this report on Public Service Media).

The Media Authority and the Media Council are empowered, by public request or ex officio, to initiate infringement proceedings against media outlets for violations to the media laws as well as the "rules on media administration."20 This includes provisions in the Media Act, the Press Freedom Act, and all public contracts and licensing/registration agreements.21 Each body is vested with a range of sanctioning powers, which include fines, suspensions and license revocations (see Chapter 7 of this report on Sanctions).

Opponents claim the "dual leadership" of the Media Authority and the Media Council diminishes the operational and de facto autonomy of these agencies.22 According to one legal analysis, the new system has created an "extensive, complex, and overlapping bureaucratic web of administrative authorities, ultimately answerable to the Prime Minister, with far-reaching powers to control the media."23 Critics warn the system's centralised structure gives Hungary's "media czar," Annamária Szalai, as head of both the Media Authority and the Media Council, an excessive level of regulatory control over the media and communications landscape in Hungary. "There is not an area in the telecommunications and media/content provision field where the President does not have decisive say or cannot exert very strong influence, either single-handedly, or through voting and decision-making procedures," according to media expert Karol Jakubowicz, who conducted an analysis of the draft legislation of the media laws for the OSCE in September 2010.24 "This simply cannot be described as being compatible with the basic principles of democracy," according to Jakubowicz.

According to Miklós Haraszti, former OSCE Representative on Freedom of the Media, the Media Authority's "pyramid" structure "would be unprecedented even if it were not operated by the ruling party alone."25 However according to Haraszti the system of a "dual monarchy" of the Media Authority and Media Council under the leadership of the single person appointed by the prime minister is found no where else in democratic Europe: "Only Russia's Roskomnadzor and the Belarus Ministerstvo Informatsii has the same dual-head feature (and the 'pyramid')," Haraszti states.26

The Hungarian Government states that the Media Authority's centralised structure streamlines regulatory activities in response to digital convergence.27 "Almost full convergence has been attained in news broadcasting and media market and economic relations, as well as between various news broadcasting and media services and networks, thanks to digital technical development, the impact of which has globally reached regulatory levels, as well as the level of public administration institutions and systems of authority," according to the Government's December 2010 statement. "The Media Act translated convergence resulting from the digital evolution of the media and telecommunications sectors not only in terms of responsibilities and authorities but also at the level of organisational structure."28

The Government also points to a number of similar convergent regulatory authorities, including the Federal Communications Commission (FCC) in the United States, whose "powers of authority cannot be challenged on constitutional grounds, as the rules governing public administration procedures are (sic) fully conform with the requirements of legal certainty and predictable law enforcement."29 The Government emphasises that the Media Act creates a "clear, transparent and predictably operating system of law enforcement, capable of implementing and enforcing the European and constitutional requirement of the subordination of public administration to Public Law."30

The Hungarian Government states that Hungary's Media Authority shares similarities with other convergent regulatory bodies in Europe, citing specifically those in Finland (FICORA), Italy (AGCOM) and United Kingdom (Ofcom)

1 "Reply to the criticisms expressed by the international media against the Media Act," Ministry Of Public Administration And Justice, January 3, 2011, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/news/reply-to-the-criticism-of-the-international-media.
2 The National Media and Infocommunications Authority (NMHH), the "Media Authority," was established by Act 82/2010, passed by Parliament on July 22, 2010, which amended several laws regulating the media and telecommunications sectors, including the Electronic Communications Act 2003 and 1996 Law on Radio and Television Broadcasting. Text of Act 82/2010, available in Hungarian at: http://www.kozlonyok.hu/nkonline/MKPDF/hiteles/mk10129.pdf.
3 Act CIV of 2010 on the freedom of the press and the fundamental rules on media content (the "Press Freedom Act") as amended (March 2011), available in English at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_of_2010_press_freedom_and_fr_of_media_content.pdf; Act CLXXXV of 2010 on media services and mass media, (the "Media Act"), as amended (March 2011), available in English at: http://nmhh.hu/dokumentum.php?cid=26536.
4 Media Act, Article 111(3) and Article 125(5) available at: http://nmhh.hu/dokumentum.php?cid=26536.
5 Media Act, Article 111(2)(c)(d)(e), 113(6), 115(7); The president appoints the deputy director on the proposal of the director general, see Article 117(1) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536.
6 Media Act, 125(1) and 125(3). Appointment procedures for the Media Council are generally defined in Articles 124 and 125 of the Media Act, available at http://nmhh.hu/dokumentum.php?cid=26536.
7 Media Act, Article 125(4), available at http://nmhh.hu/dokumentum.php?cid=26536.
8 Media Act, Article 124(3)(b), available at http://nmhh.hu/dokumentum.php?cid=26536.
9 Media Act, Article 124(4). Per Article Article 124(8), if no unanimity is reached, candidates can be nominated by a two-thirds majority of the votes. Available at: http://nmhh.hu/dokumentum.php?cid=26536.
10 Media Act, Article 124(1) and Article 125(5), available at: http://nmhh.hu/dokumentum.php?cid=26536.
11 Media Act, Article 109(1), 109(3), 109(6), and 123(1) and 123(2), available at: http://nmhh.hu/dokumentum.php?cid=26536.
12 Media Act, 111(4), 117(2), 124(2), available at: http://nmhh.hu/dokumentum.php?cid=26536.
13 Media Act, Article 129(1) and (2), available at: http://nmhh.hu/dokumentum.php?cid=26536.
14 Media Act, Article 118 and Article 127, available at: http://nmhh.hu/dokumentum.php?cid=26536.
15 Media Act, Article 129(3)and (4), available at: http://nmhh.hu/dokumentum.php?cid=26536.
16 Media Act, 113(4), 115(5), available at: http://nmhh.hu/dokumentum.php?cid=26536.
17 Media Act, Articles 113(6) and 115(7), available at: http://nmhh.hu/dokumentum.php?cid=26536.
18 Media Act, Article 111(2)(c)(d)and (e), 113(6), 115(7) available at: http://nmhh.hu/dokumentum.php?cid=26536.
19 Media Act, Article 113(1), available at: http://nmhh.hu/dokumentum.php?cid=26536.
20 Media Act, Article 113(2), available at: http://nmhh.hu/dokumentum.php?cid=26536.
21 Media Act, Article 125(7), available at: http://nmhh.hu/dokumentum.php?cid=26536.
22 Media Act, Article 216(8), available in the Hungarian-language law at: http://www.nmhh.hu/dokumentum.php?cid=27786; this provision is not included in the most recent version of the English-language text, available at: http://nmhh.hu/dokumentum.php?cid=26536.
23 "A new organisation to face new challenges," National Media and Infocommunications Authority (NMHH), 18 August 2010, press release available at: http://www.nmhh.hu/index.php?id=hir&cid=12052.
24 "Analysis and assessment of a package of Hungarian Legislation and draft legislation On media and telecommunications," Prepared by Dr Karol Jakubowicz, Commissioned by the Office of the OSCE Representative on Freedom of the Media. Warsaw, Poland, September 2010, available at: http://www.osce.org/fom/71218.
25 "Analysis and assessment of a package of Hungarian Legislation and draft legislation On media and telecommunications," Prepared by Dr Karol Jakubowicz, Commissioned by the Office of the OSCE Representative on Freedom of the Media. Warsaw, Poland, September 2010, available at: http://www.osce.org/fom/71218.
26 Analysis and assessment of a package of Hungarian Legislation and draft legislation On media and telecommunications," Prepared by Dr Karol Jakubowicz, Commissioned by the Office of the OSCE Representative on Freedom of the Media. Warsaw, Poland, September 2010, available at: http://www.osce.org/fom/71218.
27 "Legal Analysis of the 2010 Hungarian Media Laws," Center for Democracy and Technology, Washington D.C., February 9, 2011, p. 10-12, available at: http://www.cdt.org/files/CDT_Legal_analysis_of_the_Hungarian_Media_Laws_020911-1.pdf.
28 "Legal Analysis of the 2010 Hungarian Media Laws," Center for Democracy and Technology, Washington D.C., February 9, 2011, p. 10-12, http://www.cdt.org/files/CDT_Legal_analysis_of_the_Hungarian_Media_Laws_020911-1.pdf.
29 See "Protest Over the New Media Law," Hungarian Spectrum, 3 December 2010, http://esbalogh.typepad.com/hungarianspectrum/2010/12/protest-over-the-new-media-law.html.
30 "Analysis of the Hungarian Media Legislation," Prepared by Dr. Katrin Nyman-Metcalf, Professor and Chair of Law and Technology, Tallinn University for the Organization for Security and Co-operation in Europe (OSCE), Office of the Representative on Freedom of the Media. February 2011. See Section on "The Media Regulator," pp 10-13, http://www.osce.org/fom/75990
31 "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, https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701
32 "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, https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289#P245_30701 (emphasis in original).
33 "Rec(2000)23 of the Committee of Ministers to member states on the independence and functions of regulatory authorities for the broadcasting sector," Adopted by the Committee of Ministers on 20 December 2000, 735th meeting of the Ministers' Deputies, http://goo.gl/wgzPA
34 See "Criticism 3," in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," The 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
35 See "Criticism 3," in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," The 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
36 "Criticism 3," in "Criticisms and answers formulated on the subject of the proposed media act examined in a European context," The Ministry of Public Administration and Justice, December 20, 2010, 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