HUN-2007-1-001

a) Hungary / b) Constitutional Court / c)  / d) 18-01-2007 / e) 1/2007 / f)  / g) Magyar Közlöny (Official Gazette), 2007/5 / h) .

Keywords of the Systematic Thesaurus:

05.01.04

Fundamental Rights - General questions - Limits and restrictions.

05.03.21

Fundamental Rights - Civil and political rights - Freedom of expression.

05.03.23

Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.

Keywords of the alphabetical index:

Media, broadcasting, freedom / Media, Audiovisual Council, National / Media, self-censure / Information, pluralism.

Headnotes:

The Hungarian Constitution requires the Complaints Committee to carry out an assessment as to whether balanced information is being provided in the programmes being broadcasted.

Summary:

I. The petitioners argued that the Complaints Committee were singling out certain programmes for criticism, that is to say, they were only checking certain programmes for compliance with the requirement to provide balanced information. The petitioners suggested that this was because the Act on Radio and Television (Act on Media) did not directly exclude the possibility of such assessments. They also contended that the paragraph within the Act dealing with other types of complaints was incompatible with Article 61 of the Constitution.

II. The Constitutional Court observed that, from the broadcaster's point of view, the existence of the Complaints Committee was a serious restriction of the freedom of press. It accordingly went on to determine whether there was any legislative purpose behind the restriction on freedom of broadcast arising from the Committee's activities.

The rationale behind Article 61.4 of the Constitution is the prevention of monopolies on information. The rapid development of broadcasting technology has given rise to the threat of monopolies of opinion. The Constitutional Court therefore accepted the maintenance of diversity of opinion as a legitimate objective. This can only be achieved by restricting the freedom of broadcast.

Parliament has set up a unique procedure, operating over a number of levels, with a view to the dissemination of balanced information. Article 49.1 of the Act on Media states that if the broadcaster provides information on social issues which is presented in a one-sided way, or if the programme only affords the opportunity of presenting one side of the debate on a controversial issue, or if the broadcaster has committed any other breach of the requirement to provide balanced information, the person whose opinion was not presented or the prejudiced party can take their grievances up with the broadcaster. The broadcaster then has forty eight hours to decide whether to accept or reject this complaint. The aggrieved party would then need to lodge a written complaint to the Complaints Committee, which assesses complaints suggesting infringements of the requirement to provide balanced information.

The Constitutional Court pointed out that, under Article 49 of the Act on Media, there is no reason why broadcasters should not be able to convey relevant views on a particular topic on programmes which are broadcasted regularly. If it was only possible to satisfy the requirement to provide balanced information on one specific programme, this would constitute a very serious violation, not only of the freedom of press but also of the freedom of broadcast, which could not be justified by the legislative purpose, that is, the achievement of the pluralism of opinion. It would force broadcasters to make fewer informative programmes and it would not be possible to raise questions on more controversial social issues. This would result in self-censure by broadcasters, which would seriously impede the goal of achieving an interesting and varied information service. Programme schedules would become very monotonous and it would not be possible to debate public issues.

It was held that the Complaints Committee should examine the requirement to provide balanced information, whether this was in regard to one particular programme, to a series of programmes or to programmes which appear regularly.

The Constitutional Court then proceeded to examine the constitutionality of Article 48.3 of the Act on Media. This deals with the power to make by-laws about other types of complaint. By-laws are determined by the National Radio and Television Board. The Act on Media does not specify the type of breach which would trigger a referral to the Complaints Committee, the procedure is not set out, neither are legal remedies identified. Consequently, there is no legal framework for the National Radio and Television Board's role in regulating the complaints procedure.

The Constitutional Court held that the so-called "other complaints procedure", which governs cases which do not fall into a precise category, over the freedom to broadcast, has no constitutional purpose. It therefore directed the repeal of Article 48.3 of the Act on Media.

Supplementary information:

In his concurring opinion, Constitutional Judge Péter Kovács emphasised that the so-called "other complaints procedure" constituted an obstacle to the freedom of opinion which is important in terms of Hungary's international legal duties.

Languages:

Hungarian.