a) Hungary / b) Constitutional Court / c) / d) 05-12-2001 / e) 57/2001 / f) / g) Magyar Közlöny (Official Gazette), 2001/137 / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law.
General Principles - Certainty of the law.
General Principles - Prohibition of arbitrariness.
Institutions - Legislative bodies - Law-making procedure - Majority required.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Freedom of the written press.
Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.
Fundamental Rights - Civil and political rights - Right to respect for one's honour and reputation.
Keywords of the alphabetical index:
Media, false statement, retraction / Media, right to reply / Fine, duty to impose / Speech, commercial, limitation / Fine, upper limit, lack / Media, press, self-censorship.
The right of reply (a reply in the case of an opinion) and the right of correction (a reply in the case of a false fact) together aim to redress the harm caused by a false fact or an opinion deemed to violate someone's personal rights and reputation. Although the right of reply and correction do restricts the freedom of the press this is justifiable in the interest of the right to reputation and to human dignity, provided that the legislator determined the limits of exercising it.
The President of the Republic appealed to the Constitutional Court for evaluation of the law, which has not yet been promulgated, on amendment to the Civil Code requiring the press to publish a reaction to opinions deemed to violate personal rights. The President claimed that the amendments were contrary to the Constitution on several aspects: the law would oblige the media to publish a retraction if a person mentioned in an article felt their personal rights or reputation had been damaged. It would also insist that if a court ruled against the media, it would be under an obligation to impose a fine and could no longer opt for non-enforcement of this sanction. In the President's view, the proposed modification would hinder press freedom and by not defining the upper limit of fines, violated Article 2.1 of the Constitution.
The Constitutional Court held that the restriction of the freedom of expression and of the press must be narrowly tailored when dealing with political speeches and criticism of the state. On the other hand, when dealing with commercial speech, the restriction of this speech could be constitutional even if the limitation is wider.
It was also noted that the right of reply in the case of the written and the electronic press means the obligation to publish a reply. It may very well be that the press itself would not publish a reply without such a legal requirement. Imposing such a duty limits the freedom of the press and the autonomy of the editorial board. Having such an obligation may result in a situation when the press would not publish an opinion if there is a possibility that someone will require the publishing of a reaction to the opinion, claiming that the published opinion violates his/her personal rights. The Court examined whether such a limitation was in accord with the Constitution.
The Court considered that the right of reply (a reply in the case of an opinion) and the right of correction (a reply in the case of a false fact) aim to redress the harm caused by a false fact or an opinion deemed to violate people's personal rights and reputation. In addition, the right of the audience to be fully informed and to see and hear all sides on an issue requires sufficient regulation. Therefore, the right of reply and correction restricts the right to free press, but is justifiable in the interest of the right to reputation and to human dignity.
However, the Court observed that the not yet promulgated law restricted the freedom of the press in that it does not limit the right of reply: the reply can be unlawful, it can be longer then the opinion it is referring to, and can contain more than the original statement. When establishing an obligation of the press to publish retractions, the legislator should determine the limits of exercising the right of reply. The Constitutional Court, therefore declared the law unconstitutional in its current state.
As to the other questions, the Court did not find unconstitutional that provision of the amendment under which if someone's personal rights were infringed in the press, the judge should penalise the press by ordering it to pay a fine to be used for public purposes. The President claimed that it is contrary to the principle of the certainty of law that the amendment did not define the upper limit of such a fine.
The Court considered that when deciding about the fine, the judge must take into account the amount of the damages. The Hungarian legal system determines the upper limit neither in the case of damages nor in the case of fines. The amount of damages as well as fines depend upon the damage suffered.
Justice Bihari attached a concurring opinion to the decision. Justice Bihari differentiates between the right to reply, which ensures the plurality of opinion in the press, and the obligation of the press to publish a "reaction" to an opinion deemed to violate someone's personal rights. The latter violates the right to a free press and the autonomy of the press. According to Justice Czucz's separate opinion, the fine which should be ordered by the judge, violates the Constitution. When regulating such a repressive sanction, the legislator fails to determine the frames within which the court can exercise their power. Without such limits the application of the law can be arbitrary.
Under Justice Hollo's opinion, the Court should have held that the right of reply unnecessarily restricted the right to a free press. The right of correction ensured by the Civil Code repairs the damage caused by a false factual assertion. Subjective opinions and remarks do not make introducing the right of reply necessary. In addition, the Court should have examined whether the compulsory fine is in accordance with the Constitution without having an upper limit. These two new provisions threatens the right to a free press.
Justice Kiss in his separate opinion pointed out that the legislator failed to pass an act required by Article 61.3 of the Constitution, under which a majority of two-thirds of the votes of the members of parliament present is required to pass the statute on the freedom of the press. Consequently, there is a lack of "constitutional press law". In the absence of this, parliament regulates the press by amending laws which requires a simple majority.
The separate opinion of Justice Kukorelli emphasised that in the Hungarian legal system there were several possibilities for those whose personal rights were violated to redress the damage caused by a violating article. In addition when introducing the right to reply into the Hungarian legal system, the legislator does not take into account the fact that the criticism concerning a public figure is different from a violating article published in connection with a non-public figure. The separate opinion pointed out that the amendment tries to apply the "fairness doctrine" to the written press, which cannot be justifiable outside the sphere of the electronic press. Under the Constitution, no one has the right to express their opinion in a chosen newspaper, journal or on the chosen TV channel. Not only the right of reply itself but also the introduction of a compulsory fine is contrary to the Constitution. The fine might lead to the self-censorship of the press, which unacceptably restricts the right to a free press, besides having a censoring effect on speech.