Media authority: Independence

Hungary's new Media Authority, the National Media and Infocommunications Authority (NMHH), has been widely criticised by European lawmakers, media analysts and free-press advocates since its formation under the country's new media laws in 2010. Opponents have raised particular concerns over the independence of the Media Council, a five-member body within the Media Authority appointed for renewable nine-year terms. Critics say the appointment system gives the government de facto control over the Media Council, and has enabled Hungary's ruling Fidesz party to use its majority in Parliament to appoint party loyalists to all five Media Council seats. The Hungarian Government claims the Media Council is a democratically elected body in keeping with European principles, and that media authorities with "a much smaller degree of independence from [the] government are not uncommon in Europe. 1"

The National Media and Infocommunications Authority (the "Media Authority") was established in July 2010 by Act 82/2010, the first major piece of legislation in the Hungarian government's larger media law "package." This law initiated a series of changes to Hungary's media regulation system and replaced Hungary's former regulatory bodies with a single entity, the Media Authority, to oversee both the media and telecommunications sectors. The law also established the Media Council, a body within the Media Authority, to monitor and enforce the set of new media laws passed by Parliament in November and December of 2010.

Under the new legislation, the president of the Media Authority is appointed by the prime minister for indefinitely renewable nine-year terms.4 The president of the Media Authority appoints the Media Authority's top management—two vice-presidents, the director general, and deputy director—also to serve renewable nine-year terms.5 The president of the Media Authority "from the moment of appointment" also becomes the ipso iure candidate for the chairperson of the Media Council, with final appointment subject to two-thirds parliamentary approval.6 In case the Parliament does not elect the president of the Authority as chairperson of the Media Council, the president of the Authority shall still convene and chair meetings of the Media Council (without voting rights) until elected as chairperson with full voting powers.7 The remaining four members of the Media Council are nominated by an ad-hoc committee composed of delegates of each parliamentary faction.8 Votes in the nominating committee are weighted according to the proportion of each faction's representation in Parliament.9 Candidates selected by the nominating committee are then elected by a two-thirds parliamentary majority, in a simultaneous vote, to serve indefinitely renewable nine-year terms.

The autonomy and independence of both the Media Authority and the Media Council are formally guaranteed in the law.11 According to the Media Act, the Media Authority and Media Council members must hold an advanced educational degree and have at least three years of "work experience in programme distribution, media services, regulatory supervision of the media services, electronic communications, or in economics, social science, law, technology or management with a focus on the regulatory supervision of communications (including membership of management bodies)."12

Members of the Media Council can be dismissed in cases of a member's resignation or death, and for breaches to conflict-of-interest rules as detailed in the Media Act.13 These rules, for instance, prohibit members from holding local, municipal, national or EU-level political office, from engaging in party politics or representing political parties, and from holding employment with a media service provider.14 These cases are decided by the chairperson of the Media Council (in cases of a member's death or resignation) and by a plenary session within the Media Council in cases of breaches to conflict-of-interest rules.

The mandates of the vice president and director general of the Media Authority can be terminated by the president of the Media Authority in cases of their resignation or death, or if a member fails to resolve a breach to the specified conflict-of-interest rules.16 The president also has the right to recall (without justification),17 and dismiss the Media Authority's vice president, director general, and deputy director.18 The mandate of the president of the Media Authority can be terminated in the case of the president's resignation or death.19 The president can also dismissed by the prime minister if the president fails to resolve a breach to conflict-of-interest rules, is found guilty of a criminal investigation, or fails to perform its duties, and on other grounds which are specified in the law.20 The durations of the mandate of the chairperson of the Media Council coincides with the mandate of the Media Authority president.21

According to an amended provision to the Media Act passed in July 2011, the mandate of the Media Authority president and members of the Media Council lasts until new members are elected by a two-thirds parliamentary majority.22 If Parliament fails to elect a new chairperson and members at the end of their nine-year terms, the current president and Media Council members retain their positions, indefinitely, until new members are elected.

When Hungarian Prime Minister Viktor Orbán appointed Annamária Szalai as president of the Media Authority in August 2010,23 she also became the automatic nominee for the chairperson of the Media Council. Szalai is a former Fidesz MP who had previously served as a member of the National Radio and Television Board (ORTT), the legal predecessor of the newly created Media Council. In October 2010, Parliament approved Szalai's nomination, and elected the remaining four members of the Media Council. All of these four members were selected by Fidesz MPs with a two-thirds majority in the nominating committee.

Opponents have raised a number of concerns over the Media Authority's and Media Council's independence. Critics say the system of "dual appointments" to the positions of Media Authority president and Media Council chairperson gives the Government de facto control over the Media Council.24 According to an analysis conducted for the Organization of Security and Cooperation in Europe (OSCE), although the practice of government-appointed directors to telecommunications agencies is not unusual, "the manner of appointment of the Media Council Chairperson amounts to nothing less than government capture" of Hungary's media governance authorities, because "Parliament is left no choice but to vote for the Prime Minister's candidate." 25 If it fails to do so, the position will remain vacant, and the prime minister's candidate is still authorised to chair the Media Council meetings until nominated by Parliament as chairperson, according to this analysis.26 Another legal review conducted by the Washington D.C.-based Center for Democracy and Technology concluded that because the law grants the prime minister de facto power to select its chairperson, the Media Council is susceptible to political influence.27 "As a result, the interpretation of the Acts, and thus the determination of the extent of the constitutional rights of free expression and public information, are subject to political control," this analysis found.28 Analysts in this study also conclude that the law provides inadequate mechanisms for Parliament to elect any other candidate for the Media Council chairperson other than the Prime Minister's appointee for the president of the Media Authority.

Critics also claim that the Government has misused its parliamentary majority to fill all five Media Council seats with party loyalists with limited expertise in media policy.29 The OSCE has urged the Government to amend the appointment procedures to ensure that "regardless of whether there is a majority or minority government ... political plurality is guaranteed in the appointment process of communication regulatory organs."30 According to a review by the Council of Europe's Commissioner for Human Rights, the appointment procedures for Hungary's Media Council fail to meet Council of Europe standards for safeguarding media independence and pluralism.31 "The provisions regarding appointment, composition and tenure of [Hungary's] existing media regulatory bodies demand amendment not least because they lack the appearance of independence and impartiality, quite apart from a de facto freedom from political pressure or control."32 The Commissioner urged the Hungarian Government to adopt the Council of Europe's recommendations for ensuring the independence of media regulatory bodies.33

The Hungarian Government states that the Media Council is an independent body elected in accordance with democratic European principles and standards.34 According to the Government's December 2010 statement: "The Media Council is a body . . . with independent scope of authority under the supervision of the National Assembly. The Media Council and its members are only subordinated to the law that is legislation created by the National Assembly, and cannot be controlled in their activities. The president and four members of the Media Council are elected by the National Assembly based on a two-thirds vote of the MPs present for a term of nine years with a simultaneous, list-based vote."35

The statement continues: "The above shows that only the National Assembly has some form of influence over the Media Council, which is the country's top body wielding state power and representing its people according to the Constitution . . . In line with the Constitution, the rules defined in legislation soundly guarantee that the Media Council is mainly determined by constitutional expectations. In other words, the fact that the president and four members of the Media Council are elected by the National Assembly based on a two-thirds vote of the MPs present ensures that the basic pillar of European rule of law, the representation and sovereignty of the people are achieved."36

The Government also emphasises that "in performing their duties, members of the Media Council do not take orders from anyone; they cannot be recalled and they are independent in every respect. The elected members of the Media Council have no ties, either formal or informal, with the ruling political parties."

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