Findings: Sanctions
According to the expert assessments, the scope of the Hungarian Media Authority’s sanctioning powers does not appear to be consistent with the examples provided. The Government cites 17 examples from 15 European countries in which the media can be sanctioned with (some combination of) fines, suspensions and/or license revocations. However, as the expert analyses show, the Media Authority’s sanctioning scope over all media sectors appears to exceed those granted to the media authorities in all examples cited. Although the Government accurately cites examples in which various media can be sanctioned for breaches to media regulations, these sanctions are often imposed by different regulatory bodies and/or the courts; in Hungary, a single authority has sanctioning power over all media. The cited examples therefore do not provide symmetrical comparisons to Hungary’s Media Authority, nor do these examples adequately respond to a key criticism of the Hungarian media laws: the Media Authority’s supervisory and sanctioning powers over all media, inclusive of the print and online press.
Based on the expert assessments of the examples provided by the Hungarian Government, the Hungarian Media Authority’s scope of sanctioning powers over all media sectors—private and commercial broadcasting, print and online press—appears to be the broadest among all country cases cited in these examples. In 14 of 17 examples cited, the media body referenced has sanctioning powers over broadcast and audiovisual media (commercial and/or public media, and their online content) only but not traditional print and/or online press. Although in many of these systems traditional print and/or online press can be penalised for violating various legal statutes or laws—including in some cases provisions in the criminal codes—sanctions in a majority of these examples are managed by separate regulatory bodies, independent press councils and/or the courts. In three of the 17 examples cited, the media authority also has some sanctioning powers over traditional print and/or online press.
In Germany, the state media authorities in extreme cases and after warnings have been issued, 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, and therefore cannot be sanctioned by the state media authorities.
In Portugal, the media authority (ERC) has sanctioning powers over all media sectors, inclusive of the print and online press, according to sector-specific legal statutes and standards; the press and online press are regulated by separate laws and under less restrictive obligations than broadcasters. The ERC cannot order the suspension of print media outlets, which can only be ordered by a court. In addition, the ERC monitors compliance with content-related regulations in the media laws. Competition and other technical regulations are supervised and can be sanctioned by other regulatory bodies.
In Slovenia, the Media Inspectorate has a wide scope of authority over the media in general, including print and broadcasting, and can impose fines and sanctions not only on broadcast and print media outlets but also on their responsible officers. However the Inspectorate is not the sole media authority in Slovenia, as there are a number of bodies with regulatory and sanctioning powers over different media, including the Agency for Post and Electronic Communications (APEK), the Broadcasting Council, and the Ministry of Culture.
The expert analyses also reveal that in a majority of cited cases the Hungarian Government’s examples omit or inaccurately characterise key factors which influence or serve as “checks” on 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 either only applies to specific media sectors, to specific breaches, or the particular sanction cited has rarely or ever been imposed in practice. For instance, in seven of the 17 cases cited, the sanctioning power referenced has never been applied:
• Finland (2 examples)
• Germany
• Ireland
• Poland
• Portugal
• Slovenia
In another set of 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 statutes into a single claim:
• Estonia
• Ireland
• Italy
• Lithuania
• Slovenia
In reference to specific criticisms of the Media Authority’s sanctioning powers, the expert assessments indicate the following:
Sanctioning of leading officers: The Hungarian Government cites no specific examples in which individual editors and leading officers of media outlets can be sanctioned by media authorities; however based on the information provided by experts in these assessments, the Government’s claim that sanctioning leading officers is not a novelty in Europe is accurate. Experts report that “responsible editors” and leading officers can be fined for breaches to specific regulations in: Estonia, Latvia, Poland, and Slovenia. In addition, there are a number of systems in this set of examples in which journalists can be held criminally liable for prohibited content, such as for incitement to hatred or for libel and defamation, including in Italy, France, Finland, Germany, and Slovenia; however these criminal cases are typically handled by the courts. In countries in which administrative sanctions can be brought against responsible editors and leading officers, this level of sanction appears to be limited (in varying degrees) to specific violations. In Hungary, responsible editors and senior officers may be fined for a range of violations, including for refusing to provide data requested by the Media Authority as well as for “repeated infringements” to the media laws. Although the range of violations for which editors and leading officers may be fined by Hungary’s Media Authority appears to be more extensive than in those specified in the media laws of the countries cited above, it is evident that there is an established precedent of sanctioning individual editors and top officers in the EU-member countries in this set of examples. Hence, in this case Hungary’s media laws appear to be consistent with what is generally regarded as a press-restrictive policy that could impose a preemptive restraint on the media.
Content regulations: Critics of Hungary’s new media laws have described a number of content regulations in Hungary’s new media laws as being overly broad, leaving what constitutes breaches to these regulations to the discretion of the Media Authority. The Hungarian Government cites one example, from the UK, in which it states breaches to regulations are also not defined in that country’s media law, allowing violations to be determined by the UK’s media authority, Ofcom. According to the expert assessment, while it is true that the Communications Act 2003 does not specify what breaches may justify the prescription of which types of sanctions, Ofcom by law has produced an extensive set of (legally binding) broadcasting codes, with detailed regulations on protection of minors, commercial communications and other restrictions. What constitutes breaches to these rules, as well as what level of sanction breaches to these rules might carry, are specified clearly in these codes. Hence, the Government’s Ofcom example is not entirely accurate, according to the expert, as it omits this key factor.
Regarding specific content regulations, the provisions on the protection of minors and incitement to hatred are standard in the media laws of all examples cited. The expert assessments also show that additional content regulations which can be sanctioned by Hungary’s Media Authority are also contained in various other media laws, including restrictions on content that violates “human dignity,” obligations to protect the “constitutional order,” and in some cases, prohibitions on content that violates “public morals.” The specific provision in Hungary prohibiting content that offends or excludes “nations, communities, national, ethnic, linguistic and other minorities or any majority as well as any church or religious groups nations,”52 appears to be unique among this set of examples. However, experts report a number of controversial, and in some cases overly broad, content regulations in a number of other countries, including in: Ireland, the prohibition on certain types of advertising relating to political ends, trade disputes, and religion,53 as well as obligations to present news in an “objective and impartial” manner, and restrictions on content which may cause “harm and offense, or as being likely to promote, or incite to, crime or as tending to undermine the authority of the State;” Poland, the regulation requiring broadcasters to respect Christian values; and Slovenia, the extensive regulations on the right of reply. However, the unique factor in Hungary’s system appears to be that there is a single media authority responsible for assessing compliance with and issuing sanctions for breaches to these content regulations for all media.
Immediate terminations: The Hungarian Government cites one example in which media authorities in Portugal may immediately suspend or revoke the license of a media service. As the country expert indicates, this provision was revoked when Portugal’s media law was amended in April 2011 to implement the EU Audiovisual Media Services Directive. Under the new system, Portuguese media authorities may terminate a broadcaster’s license only after an investigation has been opened and previous sanctions have failed to stop the breaching activity; no interim suspensions or immediate terminations are possible. However, the expert assessments reveal that media authorities may immediately revoke a broadcaster’s license in at least two other countries in this set of examples—France and Slovakia. Yet in both cases, this level of sanction can be only imposed under specified circumstances. In France, the High Council for Broadcasting (CSA) can withdraw a license without formal notice in cases in which the media outlet fails to report substantial changes in the data for which the license was granted, including changes to ownership, management and shareholder status. In Slovakia, the media authority may immediately revoke a license under two conditions specified in the law, in cases relating to content which propagates violence, incites hatred, or promotes war or inhumane behavior. However, this level of sanction can only be applied if the broadcaster has repeatedly and deliberately and seriously continued to breach these rules. By comparison, Hungary’s Media Authority may immediately terminate the public contract of a media service for repeated “grave infringement[s]” not only to the media laws but also for what appears to be violations to the “rules on media administration.” This is defined as “any legislation issued in respect of the implementation of the aforementioned acts; any directly applicable legal instrument of the European Union concerning media administration; any public contract entered into by and between the Media Council and the Office, and the regulatory decision issued by the Media Council and the Office.” Hence, the scope of regulations for which the Media Authority can immediately terminate a broadcaster’s license appears to exceed those in the two cases above.
Judicial review: The expert assessments indicate that the process of appeals regarding the Media Authority’s decisions appears to be inconsistent with the legal framework for appeals in the systems in this set of examples. In Hungary, media outlets may appeal the Media Authority’s sanctioning decisions 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 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 a 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 was significantly altered by additional amendments passed by Hungarian lawmakers after the close of Hungary’s EU presidency in July 2011. As a result of these amendments, fines imposed by the Media Authority are now deemed “public debt” and collectible by the tax authorities regardless of whether the sanction has been challenged in court. This change has significantly diminished the key checks-and-balances system the judicial review process is meant to provide with regard to the Media Authority’s fining decisions. Hence, the current legal framework for appealing the Hungarian Media Authority’s decisions appears to be inconsistent with judicial review processes in all of these cases.
These expert assessments also reveal a wide disparity in sanctioning practices and standards within Europe, as well as a number of key deficiencies. Experts report a range of problematic content regulations in a number of systems—including in Ireland, Poland, and Slovenia—for which media can be sanctioned. In numerous countries—including Finland, Germany, Italy, and Slovenia—journalists can be imprisoned for violating content regulations in the media laws and/or penal codes, such as on incitement to hatred, protection of minors, and defamation. In most of these states criminal sanctions are rarely if ever applied in practice—either because there are multiple checks in place preventing this level of sanction from being imposed or because authorities opt to not pursue these breaches as aggressively as the law allows. In Italy, however, journalists are regularly prosecuted for defamation. In September 2011, two Italian print journalists were sentenced to a year in prison after being found guilty of defaming a local mayor. By comparison, Hungary’s sanctioning policies are less press-restrictive than those European countries in which criminal sanctions are applied in practice.
52 Press Freedom Act, Article 17(1) and 17(2), available at: https://cmcs.ceu.hu/sites/default/files/domain-69/cmcs-archive/act_CIV_of_2010_press_freedom_and_fr_of_media_content.pdf. Emphasis added. 53 Broadcasting Act 2009, Section 41, available at: http://www.irishstatutebook.ie/2009/en/act/pub/0018/sec0041.html.