Is Freedom of Speech Threatened in Hungary? (event archive)

January 12, 2011 by  

At a panel discussion on January 12, 2011, we explored the realities of free speech and freedom of the press in Hungary.  The panel featuring dr. Mihály Gálik (Corvinus University), dr. György Ocskó (National Media and Broadcasting Commission), Andris Mellakauls (Steering Committee on the Media and New Communication Services – Council of Europe), András Stumpf (Heti Válasz), dr. Levente Nyakas (Károli University) and moderated by dr. Sándor Udvary (Supreme Court advisor and professor of law). The main questions included: Does the new media law guarantee freedom of the press? What are the prospects of free speech protection under the new media law? (Scroll down for streaming audio and transcript of the event.)

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Event transcript:

Panelists:
dr. Mihály Gálik, Corvinus University;
Mr. Andris Mellakauls, Steering Committee on the Media and New Communication Services – Council of Europe;
dr. Levente Nyakas, Károli University;
dr. György Ocskó, National Media and Broadcasting Commission;
András Stumpf, Heti Válasz.
.
Moderator:
dr. Sándor Udvary, chief advisor to the Constitutional Court and professor of law
.
January 12, 2011
Common Sense Society (CSS), Ybl Palace, Budapest
.
SÁNDOR UDVARY: Ladies and Gentlemen, I am honored to open this debate about the situation of the Hungarian media system, although Anna mentioned, I also have to emphasize that I do not represent the constitutional court’s official opinion here, all my views are only my personal opinion.

I hope this discussion will contribute to the ongoing debate about the Hungarian media system. To introduce our topic, I don’t think I have to emphasize the crucial vital nature of the freedom of the press and the freedom of the media system in any democratic country.

I pointed out in an earlier panel that the separation of branches also necessitates that the free media system will have to scrutinize the information that is disseminated, circulated amongst the branches of the state.

The democratic rationale of the freedom of speech and freedom of the press also emphasizes that any speech and any activity of the press that contributes to the democratic values must not be restricted in order to establish democratic society. May I quote John F. Kennedy who said ’the press is the only business in America specifically protected by the Constitution – not primarily to amuse and entertain, not to emphasize the trivial and the sentimental, not to simply “give the public what it wants” – but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold, educate and sometimes even anger public opinion’.

I couldn’t agree more with his words even after 50 years.

Well, Hungary has only 20 years of democratic experience. At the transition, the foundation, the cornerstone of our media system was set on firm foundation: it was the freedom of opinion. Although the foundation was firm, the detailed regulations were very much criticizable. The act from the printed press comes from 1986 and although it was thoroughly amended in 1989, it was still the product of the communist parliament and after the amendment it was very laconic. The act on the electronic media comes from 1996 and although it closed a chapter of a bitter media war in Hungary, it also opened new chapters of wars over the regulations of the media system. So I think we can agree on the fact that after 14 years of struggle in the media system, the situation was right for reconstruction of our media system.

As we all know, in 2010, Fidesz and KDNP won a two-third majority on the general elections. With having two-third majority in the parliament, they started a four-step measure to reconstruct, to rebuild the media system in Hungary. May I introduce these four-step measures.

The first step was to amend the Constitution itself. The 61st Article of the Constitution was amended, freedom of speech was introduced and at the same time, freedom of opinion was abolished.  We can say that it is a very American type of move, but we will see. Freedom of the press was naturally upheld and also, regulations related to public service broadcasting were detailed. Second step in these measures was the 104th Act of 2010 on freedom of the press and fundamental regulations on media content, sometimes referred as ’Media Constitution’. Basically, it is a declarative act, declares again freedom of press and has fundamental provisions on the protection of children, on the right to reply, on fundamental issues of advertisement. It didn’t receive too much criticism, but the third step of the measures, namely the amendment of then effective Media Act received sharp criticism from Hungary. It was the abolishment of the ORTT (National Radio and Television Council) and the Media Council was established instead of the ORTT. It received mainly inner critiques. And the 4th, last brick in the newly reconstructed wall of the Hungarian media system was the 185th Act of 2010 on the media services and mass communication or ’Mass Media Act’. This was the closing brick in these measures and it received sharp criticism as we all know even from Hungary and from the international community and of course it is related to the Presidency of the European Union: we have higher international interest therefore.

Main line of the critique was again the media council, the role of the media council. The critiques said that the election with two-third majority of the members of the media council proved that the government and the governing parties tried to gain even bigger majority in the media supervision system than their two-third majority in the parliament. Critics said that it has been proved with the actual election of the media council, some critics say at least. Other line of the criticism is the possibility of the media council to impose serious fines on the participants of the media market even the printed press and on the internet content providers as well. Some analysts also say that the legal basis of these fines are vague, therefore the media council has wide discretion to impose these fines. The apologists say, mainly the government defense is that most regulations of the Media Act can be found in one or more media acts of the European countries, therefore it cannot be against the common European values. So highlighting the situation, may I give the floor to our learned speakers with one quote again, this time from Bob Woodward, famous investigative journalist of the Watergate affair. He said ‘all needs to be looked at fairly and at the same time with relentless aggressiveness’.

It is not an easy task I think, especially in such a heated debate as this is, but I am quite sure that my learned colleagues will be able to criticize the Media Act and also stand on the firm ground of fairness. With this, I give the word to Professor Mihály Gálik, our first speaker tonight.

MIHÁLY GÁLIK: Thank you, Professor Udvary. Ladies and Gentlemen! It is a great honor for me to speak at this event and in the beginning, let me remind that Prime Minister of Hungary, Viktor Orbán said in an international press conference last Friday that ’one should rely on common sense and reasonable arguments while expressing criticism about the new Hungarian media legislation’. Well, I can assure you that I am trying to do my best to meet the expectations of the Prime Minister. Nevertheless these criteria are my own criteria followed by me, by myself in any public debate.

Well, is freedom of speech threatened in Hungary? Relying on my own interpretation of common sense, I say, yes it is, due to the shortcomings in the new Hungarian media legislation. I want to talk about three topics.

Firstly, I want to deal with the scope and the institutional structure of the new media legislation. Looking at it from above, there is nothing wrong in applying content regulation in the media, providing that it does really serve the public interest and the good of society. Nevertheless, one has to be aware that content regulation is an extremely delicate regulatory exercise. I think that under the banner of protecting human dignity, safeguarding public morals, fostering diversity in broadcasting and other respectable goals, the new media legislation gives excessive power to one state regulatory agency, namely the National Media and Communications Authority, or shortly the Authority. This is contrary to the checks and balances principle inherent in the rule of law. Most critics emphasize this obscure feature of the new media legislation and one of them that made an ironic remark that in democracies, the media tend to check the government and not the government checks the media. I am afraid the latter seems to be a rather frightening possibility evolving in Hungary.

The scope of the act on fundamental use of the freedom of the press and media content covers not only audiovisual media services as defined in the AVMS (Audiovisual Media Services) directive, but it applies to radio broadcasting services, to the output of the print, and to online media as well. The media council and the bureau of the Authority combined have the power to scrutinize the output of each professional prior inter media, according to the provision of the Act on media services and mass media. So the Authority as a state agency has the right to fine publishers and online media content providers on its own judgment. Before, only the court had the power to do so while administering the orders of civil law, data protection law and criminal law. I am convinced that this extending the scope of content regulation is doing harm, hurts the public interest and defers from the practice of the vast majority of democratic societies. ’Each relevant rule of the new Hungarian media legislation can be found somewhere in the media laws of other member states’, Prime Minister Orbán said this several times during recent weeks.

My second point is that this argument is erroneous. Let me subscribe to the claim in good faith that each relevant rule of the Acts mentioned before is modeled after the media legislation of one or another member state. To prove or deny this would require a PhD thesis. Nevertheless, the Prime Minister does not take into account the basic fact that each member state is trying to follow country-specific paths in media legislations. I am sorry to say, but cherry-picking from different European media laws does not necessary make a national legislation European or democratic. Let me quote here a world famous academic, namely Professor Eli Noam, professor at Columbia University in New York City. By the invitation of the British National Regulatory Agency Ofcom, he wrote a study on the contemporary issues of television regulation three years ago and stated as follows: ’But if scarcity was not in the heart of regulation, what was? Each society has its concerns, problems, issues, traditions and priorities. Americans worry about sex more than the French, who, in turn, are worried about their linguistic purity, Swedes fret about violence, Germans, burdened by their past, are sensitive about racist speech, Iceland, given its size, worries about ownership concentration.’ And let me interrupt quoting professor Noam here, and ask you to think about what he is teaching us.

First, I dwell a bit on the economic environment of the media. It is a commonplace that media legislation cannot be independent of the realities of media economics that had been rather harsh nowadays. For example, the economic crisis led to a sharp decline of revenues and questioned again the viability of newspaper publishing. The unavoidable cost cutting at publishers is gradually squeezing out valuable news and information content as they are much more expensive to produce compared to other ones. In these circumstances, a fine imposed by the Authority for any violations of public morals made drive publishers into bankruptcy and this threat seems to be a rather real one. The fear of being fined by the Authority is the hotbed for self-censorship. Other media companies, radio and television broadcasters, news portals etc. face the same threat. It is true that they can sue the Authority at the court and the court may order that they do not have to pay the fine until the litigation process is finished, but this is not enough guarantee for them. The Act gives too much room to the media council to interfere with the day-to-day business of media companies claiming that the media diversity cannot prevail otherwise. The media council’s micromanagement extends to some relevant business contracts between market players, for example the so-called ‘must offer rules’ in the Act serve as frightening chances for the media council would be micromanagement, and I think that they are doing more harm than good.

Finally, Ladies and Gentlemen, let me finish my presentation with paraphrasing the Prime Minister’s advice I quoted at the beginning. Common sense and reasonable argument are really needed in media legislation and lawmakers have to take this advice into account. The price is high, namely the freedom of speech in Hungary. Thank you.

UDVARY: Thank you Professor Gálik and I give the floor to Andris Mellakauls.

ANDRIS MELLAKAULS: Thank you, Chair. Like the previous speakers, I am here in my own personal capacity, I have no mandate to speak on behalf of either my committee, CDMC or the Council of Europe. A slight correction to the introduction, the committee I serve does not oversee media regulation, we are a standard setting body. I had the idea or rather the very flipping idea of perhapst reading out to you the list of all the declarations and recommendations that we have come up with in Strasbourg but then it would take about six hours to actually read these. My presentation is not like Professor Gálik’s, which is a very structured presentation but I rather just want to point out some key issues or some key thoughts that I have had over the last three or four weeks since this furor over the Hungarian media law took center stage, if you like.

From the outset, we have to understand that any regulations on the media are in fact interference in the right of the freedom of expression. Any restrictions on the media have to follow three cardinal principles that we have adopted in the Council of Europe in general is: they have to be prescribed by law, they have to be necessary in a democratic society and they have to be proportionate. These who know anyone that studied the case law of the [European] Court of Human Rights will see that these are the three divvies.

The question initially was, is freedom of speech under threat in Hungary? I would pull it to you that the freedom of expression is on the threat all over Europe, every day, every minute. We only have to think of the few of the most notable examples, for example the UK: highly questionable libel laws and supreme junctions, libel tourism in the UK, the government of course has now said and even the previous labor government said that they would reform these laws, let’s hope this will happen. In France, they recently had the Minister for Industry calling for French Internet service providers to prohibit French service from hosting WikiLeaks. In Germany we have the wiretapping and surveillance of journalists. In Latvia, we have a new media law, we have language quotas on TV broadcasting, at least forty per cent of the time devoted to European work should be in the language of the state. This perhaps is not too questionable a quota, Latvia is a very small country, there are only about 1.4-1.5 [million] Latvian speakers in the world so there are cultural objectives here.

Several states in Europe have a ban on political advertising or, as in the case of Italy, unworkable provisions. Before the last election on public service TV in Italy the new law said that if you are going to have political discussions on public service TV, every single political party represented in the election must have equal airtime. As there were 18 parties participating, this was obviously a ridiculous and unworkable proposition, designed to help Mr. Berlusconi – if he needed help.

A very serious issue that is under discussion at the moment in the Council of Europe and was the focus of the Ministerial Conference in Reykjavik in 2009 is the problem of anti-terrorism legislation, which as we all know has a chilling effect on journalism, freedom of expression and there is also misuse of anti-terrorism legislation. We only have to think of the UK’s resort to this legislation to bring Iceland to its knees.

The CDMC, the committee I serve is very much concerned with the observance of Article 10, which contains the freedom of expression in the Convention. We have spent something like two and a half to three years trying to come up with a resolution or a recommendation for the Committee ofMinisters, which would establish some sort of monitoring mechanism. It may surprise you to know that in the Council of Europe there is not a single body specifically in charged with monitoring the freedom of expression in Europe. It might be a good idea when the Secretary General comes to Hungary next week as I understand if you were to raise this issue because my Committee finds it very disturbing that we just don’t seem to be getting ahead.

The financial crisis is an example of something that is very dangerous as it has happened in Latvia: the Latvian criminal code was changed or amended to make it a criminal offence to disseminate false information on the state of the economy. As you know in Latvia we are  obliged to sooner or later (I hope sooner) to join the Euro and the problem was during this financial crisis, that there were numerous speculations about the devaluation of our national currency, which would set back our joining the Euro for several years.

I will draw my presentation to a close by saying that Hungary is embarked on a very ambitious set of steps that is included in the new media law: print media, online media. On one hand we could argue that the boundaries between traditional media and new media (which is not that new now) are becoming so blurred that perhaps a conversion of the authorities is a rational development. I can’t say. But I will have questions for the other panelists and the audience about when drafting these laws, does Hungary have a system of public consultation? Were the major stakeholders involved in the drafting process?

Thank you.

UDVARY: Thank you Mr. Mellakauls, and now I will give the floor to Professor Levente Nyakas.

LEVENTE NYAKAS: Thank you, Mr. Chairman.  Reading the texts of the two Media Acts and also reading your opinions in the press about the new media laws I decided that I would speak generally instead of picking one or two regulations from the mentioned laws. This means that I approached the two Media Acts from two directions, from a theoretical and European point of view.

Theoretically, regulating or simply dealing with audiovisual media supposes that we have some premises in our minds about the function of media in society which are connected to some kind of media theories. Very broadly speaking, there are two well known theories which determined the development of the two big media systems: the American and European one, and served as a pattern of regulating media in the world.

One of them is a libertarian theory which focuses on the individual interests. It emphasises individuals’ and press self expression and interests. This model formed in the United States and based on the First Amendment which contains prohibition of limitation of free speech. The starting point of media regulation in the US is based on manly this prohibition. Its consequence is a minimum regulation and state intervention in the media field. It believes in marketplace of ideas where dissenting opinions form the democratic system.

The other theory which shaped the European audio-visual system is the social responsibility theory. This theory states that to be in a position of a media outlet not only means a right to express freely opinions and follow private economic interests but also means a great responsibility for society as media concentrates society’s attention and forms opinions in public discussions. According to this theory, media is in a position of public trustee therefore democratic norms, duties can be expected from media in the name of public interest. This theory supposes more state intervention than libertarian one but only in a democratic way. I must note that the social responsibility theory fully respects the libertarian belief.

Reading the Media Acts through these theories in my mind, I could discover that both of the two theories are present in the Act. But may be the legislator gave little bit more emphasis to the latter, I mean the social responsibility than to the libertarian theory. This can be shown already in the preamble of the two Acts. The preamble is first talking about the ‘recognition of the interests of the community and (then) the individual’ The preamble also emphasises in this sense: ‘the promotion of the integrity of society’, the ‘appropriate functioning of democracy’, the ‘national and cultural identity’.

This way of thinking can also be shown in other institutions of the Act such as the protection of minors, the diversity rules (must carry and offer), the commissioner for media and communications and also in procedures such as Public Hearings, Consultations with Stakeholders in Significant Issues.

Speaking in European context about the Hungarian media laws, I have to talk about the relation of member state and European regulation in the audiovisual field. European competence in the audiovisual field looks back to 1989. Till that time, the EU hadn’t had any competence in the mentioned field. What is the situation today?

The main competence remained at member state level in case of regulating media. But the EU also has competence which main aim to ensure freedom to provide services as audiovisual media qualifiesprimarily as an economic service in the common market. The EU’s approach is based on primarily economic rather than cultural aspects when regulating audio-visual media. Cultural (constitutional) questions are mainly the competence of member states. In this ground the member states are adhere protecting their competence (sovereignty) in the audio-visual field.

In this sense, the EU legislation (the relevant directive) respect this division of competence with standing up only minimum rules (de minimis rules) and letting the member states to regulate their media with stricter or more detailed rules. That’s not to say that these stricter rules are always in conformity with EU law.

Hungary just like as other member states had to harmonize its legislation to current European directive, the AVMS directive. Reading from this aspect the new media legislation, it reflects the regulation of the AVMS directive. Moreover, sometimes the Hungarian media law follows word by word the text of the directive.

From procedural point of view, the European Commission has an obligation ad not an option to deal with the Hungarian media laws. This means that the Commission has to analyze every member states’ media law whether they are harmonized well or not. This is going to happen with the Hungarian media laws and as a researcher I’m waiting for its result very much.

Thank you for your kind attention.

UDVARY: Thank you, Mr. Nyakas. I now give the floor to Mr. Ocskó.

GYÖRGY OCSKÓ: I might seem ill prepared for this task because I do not have the papers [notes] but I have been giving interview to the representatives of the international media, because as you know there is a media frenzy in Europe now about the Hungarian media regulation. And I always told my interviewers with this: Hungary has been a parliamentary democracy for twenty years and despite allegations to the contrary, Hungary is still a parliamentary democracy and we have all the checks that are necessary in a parliamentary democracy and this new regulation, our media law, should pass the litmus test of constitutionality and it will be scrutinized by Constitutional Court, the Hungarian Constitutional Court, which is an independent body, I think nobody put this to question. And further, as my esteemed colleague Levente Nyakas has said the piece of regulation has already been sent to Brussels for scrutiny. Further, the Council of Europe will scrutinize the Act, whether the provisions of our media regulations are in line with the European legal norms, with special regard to Article 10 of the European Convention of Human Rights. So this is the most important sentence of my intervention.

We have to admit that although we were prepared that any regulation in the printed press might be seen by journalists as an inhibition to the freedom of speech. Yet we were ill prepared, or the ferocity of these attacks caught us completely off guard. As the saying goes ‘The fecundity of the unexpected far exceeds the prudence of statesmen.’ And this means that there are certain consequences of regulations that we cannot envisage.

The problem is that these spirited attacks render the – let me put it this way – the chances of the respectful dialogue that we are all seeking impossible. So I am especially pleased that in this small workshop of democracy people from all walks of life can share the benefit of their knowledge on this subject and after these short interventions you will have the chance to ask us special questions or concrete issues with regards to our media regulation.

In the introduction it was said that I am in charge of the international relations of the Media Council or the Secretariat of the Media Council and this is the case, so I might say that I am not here in a personal capacity but as the international spokesperson for the media council.

What is very very interesting is that last year on the 15th of December we launched an international regulatory cooperation for the regulatory authorities of the Czech Republic, Hungary, Romania, Poland, Slovakia and Serbia. And these countries are casting a prying eye on our media regulation. As this media regulation is adopted, it has already been adopted, but once this regulation passed the litmus test of constitutionality and comes into force, it might serve as a template for other countries in the region. So this can also be a very interesting element of the debate and this concern was aired by the representatives of the International Press Institute that the Hungarian regulation is very unique in its approach but if it is adopted and accepted in Europe, it might be a template for other countries to follow.

All in all, I want to finish off my short intervention that we don’t have to fear Hungary, we don’t have to fear the media regulation. If any provision in our media regulation is found to be inconsistent with the current European legal norms, then they will be duly modified and the other thing that is very very important, for those who fear that the Media Council has too much power on its hand, then we can say that all our decisions can be contested at court and it is up to the court to interpret the provisions of our media law.

I think that is all I would like to say now. Thank you.

UDVARY: Please give the microphone directly to Mr. András Stumpf.

ANDRÁS STUMPF: Thank you very much. I am not a jurist, I’m a journalist as you know, so from my perspective the question is not if press freedom is endangered or something like that, the question is ‘Am I scared or am I not scared?’

Well, as I read this media act I was wondering if I’m scared or not. I went to the mirror and I did not see a scared man there, because when you read it, you can…so this Media Council cannot do anything to me when I am writing my opinion. I can‘t say many new things about that, because when they do it, I can go to court, and the court will decide. And that is how it used to be before. I don’t think that in Hungary the freedom of speech is in danger.

The other thing that is is a real question though whether it was necessary to make such a law. I think it was not. What is new in this law? I say nothing, the articles heavily debated were for example Article 13, that says ‘linear and on demand providers shall provide comprehensive, factual, up to date, objective and balanced coverage’.  And everybody said, we thought this applies to us, to the printed media and the internet, but it doesn’t. It was also in the former law, it was the former media laws’ Article 4. So nothing happened, really.

Of course we can ask how to make the media balanced, but there was the former media council forteen years ago and they had these decisions in the former law. You could go to the court back then, but they had to work with the former text, the decisions were made with this text.

Another point, ‘all media content providers shall provide authentic, rapid, accurate information’. This is nothing new. We had it in the former media law and press law. Now what has happened is that press, media and internet are also applied, but I don’t see a problem with it, because I can still go to the court when something is wrong. But that doesn’t mean, it was neccesary to pass this act. When I think of the problems that couldn’t be solved with the old media act, I can say very few of the problems [are solved] in the new one. There are some, for example when the tabloid media shows people in blood, the media council can find them. They were not able to do that before. But these are very very little things and I don’t think it was neccesary to give [pass] such a new media act.

About the histeric reaction in public and the international reactions: what was the reason for it? Of course it’s partly politically, partly economically motivated, as I see. But it’s also understandable. The whole system together and the way the parliament made this new regulation, I think it leaves a bad taste in everybody’s mouth. When they adopt a law so rapidly, they don’t discuss the content with the actors of the market, of the media., when they don’t tell what the goal of this rapidness and secrecy is, plus they extend the scope of the law to printed press and internet, plus they elect the media council full of people connected to the ruling party, Fidesz, they can’t wonder, that these things together seem like they wanted to rule and control the whole press and the media. The question is not if they wanted or not, the question is, are they able to controll and rule the whole media with this new law. And my answer to this is no, they can’t. Maybe they can controll the whole media, but not because of this new law.

UDVARY: Now we have the moderated debate between the panelists and I think we have a couple of questions hanging over us. For example as András Stumpf and Mr Mellakauls also referred to, the way of accepting our media act. He was accepted by the two-third majority of the parliament, but not on government initiative, but on the initiative of three members of the parliament.  As you might be remembering of my former comment on the former panel, that we may face dangers when members of the parliament using their very existing power to initiate acts, the parliament will start legislation of very complex issues like the media act and media laws.

Please share your views on this.

GÁLIK: I’m quite sure, that all of you are aware that no public consultation has taken place, as far as the new media legislation is concerned.  Mr. Mellakauls asked this, that’s my answer. And maybe this is the worst approach to pass a media legislation. Legislating on the media can not be done secretely. That’s for sure. It’s contradictionary in itself.

MELLAKAULS: I expected this answer,  and you of course are right. In Latvia, about eight years we tried to reform and update our media law and each time it was political infighting and new general elections meant the law had to be abandoned, but finally we adopted a new media law in July last year of course missing the EU deadline. And I guess, if I’m honest with you, the only reason that we actually managed to adopt the law, albeit it’s not one hundred per cent perfect by any means, we only managed to do this because the head of the parliamentary commission on public affairs was steering this bill was warning the rest of the parliament, if we don’t get our house in order, than we’ll be subject to infringement procedures from the European Commission and you know as well as I do, that Latvia doesn’t exactly have a lot of money at the moment.

UDVARY: Professor Gálik and Mr. Ocskó also referred to international examples that have been followed by creating this new media act. Professor Gálik said that this could be a patchwork media act, if I may rephrase your words, if it was really following all European examples, Mr. Ocskó, if you had any special comments on which European examples?

OCSKÓ: Thank you very much. I would just like to add a sentence to what Mr. Gálik has just said. I don!t want to refute what he said, but as far as I understand there has been public consultation. I remember for example that the Association of Hungarian Content Providers (Magyar Tartalom Szolgáltatók Egyesülete) was also consulted. This is the one I remember, that was in the text, and I saw the comments and opinions from this association. Regarding the question, indeed a number of elements of our new media regulation can be found elsewhere.  Now I first want to refer to the converged regulator which is very much like the Ofccom. Ofcom and AGCOM the Italian regulator, but let’s stay with Ofcom, it is also in charge of telecommunication and the media. Similarly to our media council they have the Content Board with very similar limits, except for the printed press, which is quite unique in Europe to have an independent regulator supervising the printed press, this is something new. We will see how it will be viewed by international organizations and I don’t want to preempt their judgment, I hope it will not be a rush to judgment. We have to see the pros and cons of this new regulation.

STUMPF: Thank you. I just want to say, that there was no public consultation.What took place,  maybe there were some events, but you can’t say that it’s public consultation, because the council started this consultation last week for the first time. To sit down with the whole media, the whole sector, to speak about the new media act. It was a failure, because I say that this new media act is not dangerous, but many of my colleges thought that it is, because it was not communicated. What it means, how the council fines and things like that. So it started last week, and I don’t know if it will go on, I hope so, but I just wanted to say that that was no real public consultation that took place before. Thank you.

UDVARY: I have another interesting issue, namely the fairness issue. Also Mr. Mellakauls and Levente Nyakas referred to several aspects of fairness. Which means that, as Bob Woodward said, ‘all needs to be looked at fairly’ from several angles. What about printed press and the internet content providers? Are they burdened with fairness? What is your opinion on that?

NYAKAS: Well in my reading of the media act, this fairness doctrine does not bind printed press. Which kinds of associates [does] it bind? The regulation, in my opinion binds broadcasters, ordinary audiovisual services, and video-on-demand services, as I read in the media act.

GÁLIK: To the best of my recollection, the fairness doctrine of the FCC [Federal Communication Commission], the American regulatory agency, practically is out of order; it was abolished some years ago.

Let’s try to look at this word ‘fairness’ or ‘fair’. Is it a moral word or a legal? If I look at it legally, I do not have any objection against partial journalis, I do not have any objection against partial printed press, or even I do not have any objection against partial broadcasting, but public service broadcasting is of course not included. Public service broadcasting has to be balanced, has to be impartial, and has to be diverse in many ways. But in a situation, like we had in Hungary, that so-called ultra pluralism is prevailing there are many many broadcasters and even the constitutional court three years ago in an order said, well ultra pluralism is prevailing in Hungary, and if this is the case, why are we demanding same balanced news coverage, like we have demanded in a situation we had two or three channels. This is my personal opinion, but as far as newspapers and online media content providers are concerned, no way. It’s a horror for me that the state regulatory agency is trying to impose evenhandedness or balanced approach to different to different types of social matters.

MELLAKAULS: The thing is, if you don’t know who you are talking to, you actually don’t know where the messages are coming from and this I find dangerous.

STUMPF: Thank you. As I have said before, these fairness and balanced things that are in this new media law, these were part of the old one too. So if that’s a problem, it was a problem before. Because as I said, in the former media law, the Article 4 four was that all TVs and radios, so to say, should be up to date, objective and balanced. And now, as many say, that now it applies also to press, printed media and internet, it’s not true. It applies, in this new media act, to linear and on-demand providers. So here is nothing new. That cannot be the problem.

But the problem is that we don’t really know who is talking to us. That is a problem. When we have a media council, and of course it’s absolutely okay, so to say, that a parliament with a two-third majority of  his own people -and the decision was not made by a party or by the government, although in many European countries this is the case, for example in Great Britain, that  the government says, who the media council, Ofcom is – but here the decision was made by the Hungarian parliament, so formally everything is okay, and I don’t think that the EU will find anything. In real life, where we live in Hungary, there can be problems with it. Of course now we have a council only with people elected by the two-third majority. So it would be nice to know what they think of all these rules now. Of course they say that the former jurisprudence is there, because these rules existed before and they were applied before and now it is really necessary to regulate it a bit more to know what they think of all these [concepts of fairness and balance].

OCSKÓ: Do you mind if I agree with you, with several of your remarks? Just a small addition. Of course the constitution and the places where we find these principles, which can be found in our media constitution, they sometimes contain provisions which are hard to define, and one of them is ‘fairness’. But we indeed have an interpretation of ‘balancedness’. And as Mr. Stumpf has just said there is nothing new in these principles. And as for balancedness we took over the model, the principles or the interpretation used by the French regulator, the CSA.

We say that in news programs and programs on topical issues, we can consider a program to be balanced, if one third of the airtime is given to the opposition, one third to the government parties and one third for the government itself. So this is a rather simplified version of our interpretation, because there are other actors (we call actors who are present in the news programs).  We measure how they are mentioned, did they have the chance to speak or were they referred to or mentioned in a positive or a negative context. If you consult our website www.nmhh.hu, you will find several analyses on the balancedness of certain news programs.

And why do we need definition or special requirement for the electronic media? Mr. Gálik referred to the fact that we had rather limited frequencies in the past, so frequencies were treated as part of the public treasure and we obviously require those who are in charge of these, who have the chance to formulate people’s opinion, to be balanced. So this is the most important reason.

And we have special regulations for the television. The three elements are written by Mr. Andreas Grünwald, who is also an international lawyer and he said that television has three main features. One is the ‘spread effect’, that so many people can watch it. The second is immediacy that they will see it at the same time. The third is the suggestive power, the audioivisual images brought to the people. This is something very very special. I don’t know wether you know this, but the audiovisual media services directive [AVMS] does not apply to radio programmes, because radio programs are not audiovisual programs, only audio. And they don’t have the suggestive power that the audiovisual content has. So I think this is the most important thing. All in all we have definitions for examples for balancedness and balanced information provision. Thank you.

UDVARY: Thank you very much. I think we have reached our time limit of our moderated discussion.

OCSKÓ: The issue is very very complex and we don’t have time to go into cases of the previous regulatory authority. To wrap it up, I would just like to calm everybody and say that this is a democratic state where the rule of law prevails. And we have all necessary checks, I am sure of this, which effects demovratic society. And further we have another check that the newly adopted media regulation has already been sent to Brussels for scrutiny, there are other international institutions that will scrutinize it. So I kindly ask everybody not to be afraid and try to be more objective and realistic about this regulation. Thank you.

NYAKAS: Answering to the last question, to the practice of the former council, or broadcasting commission. It was a big debate among the members of the ORTT, what can be done with constitutional values, how they can proceed. The decision went to court and some time the court said, that they hav to act in line with these constitutional values and sometimes when private interests werte concerned the board said that the ORTT does not have to act, but in another case the Hungarian court said that they have to act in line with this. But there was another important thing that the ombudsman was proceeding and was monitoring the procedure of ORTT and these kinds of values and the ombudsman said that ORTT had to act in line with these constitutional values.

MELLAKAULS: Thanks. All I can conclude or comment is that, thank you for now involving me or dragging me into Hungarian internal politics, which I was very much afraid of. But as György says, I think, perhaps this evening has managed to calm the temperature a little bit and I think you should wait for the analysis, the scrutiny by the European Commission and the Council of Europe, if this is the case. Of course it might take some time, but let’s hope it’s sooner rather than later. And then Hungary if necessary can amend the law, I mean this is going to happen to Latvia sooner or later as well.

GÁLIK: Well let me repeat my self and let me urge you to try to rely on common sense and try to provide reasonable argument when you discuss media topics.

UDVARY: Having the opportunity to close this session and this debate, I might say, that we had a question at the start of this evening wether ‘Is the freedom of press threathend in Hungary?’. I think everybody can answer to themselves wether it is, but I can say it has not been lost yet, for sure. And if we have couple of hundred of such people who are sitting here, it will never be lost, I am sure. And we are really glad that you were so interested to sit here until this very late moment and I hope we will meet in every occasion where freedom of press has to be protected. Thank you.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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