EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 07-03-2014 / e) 7/2014 / f) On the criticism of public figures / g) Magyar Közlöny (Official Gazette), 2013/3 / h) CODICES (English).
Keywords of the systematic thesaurus:
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Fundamental Rights - Civil and political rights - Right to dignity.
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Fundamental Rights - Civil and political rights - Freedom of expression.
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Fundamental Rights - Civil and political rights - Freedom of the written press.
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Headnotes:
The provision of the new Civil Code which allows wider criticism of public figures only if it is justified by "acknowledgeable public interest" violates the freedom of speech and press.
Summary:
I. In 2013 Parliament adopted a new Civil Code (Act V of 2013). Section 2.44 of the Civil Code only allowed for wider criticism of public figures if this was justified by acknowledgeable public interest (to the necessary and proportional extent). This provision would have entered into force on 15 March 2014.
The former Parliamentary Commissioner for Fundamental Rights had concerns over the constitutionality of this provision and submitted a petition for ex post facto norm control. Under the provision, public figures can only be made subject to heavy criticism if the criticism does not violate the human dignity of the person concerned, if its extent is necessary and proportionate, and if the existence of "acknowledgeable public interest" can be verified. The Commissioner contended that the requirement of having an "acknowledgeable public interest" would pose a disproportionate restriction on the free speech and press; it would not offer adequate protection for the debating of public affairs and criticism of the use of public power.
II. Although the Civil Code approaches the issue from the viewpoint of personality rights protection, the Court evaluated the contested provision from the aspect of enforcing free speech and press. The Court found that speaking about public figures is a central element of expressing political opinion. Making statements about the activities, views or credibility of those in the public eye is an essential element of discussing public affairs. In addition it is the mission of the press to control those who exercise public power, and to represent and to criticise (potentially in strong terms) the activities of the individuals and institutions that participate in the formation of public affairs. Therefore, in the field of protecting the personality of public figures, a narrower restriction of the free speech and press is considered to comply with ["const-eng-hun-a-ix"]Article IX of the Fundamental Law. Citizens and the press should be able to participate in public debate without uncertainty and fear. It would be against this interest if those who speak in public affairs had to fear the legal consequences resulting from the protection of the public figures’ personality rights. The wide range of potential indemnification payment (to be introduced by the new Civil Code) could be a significant factor deterring people from participation in public debate.
The Commissioner only challenged the condition of "acknowledgeable public interest", deeming the other two conditions constitutional. The constitutionality of one element of a regulation cannot be assessed independently from the others, and so the Constitutional Court examined the petition with regard to all three conditions.
According to the first, free public debate may only restrict the personality rights of a public figure "to the necessary and proportional extent". The Court held that this condition provides an adequate and necessary margin for the judiciary to elaborate the standards for setting the limits of expressing political opinions. The judiciary must, during this process, take into account that all speeches related to public affairs are under extra constitutional protection, thus, the restriction of the personality rights of public figures is considered "necessary and proportionate" to a wider extent than in the case of other persons.
According to the second condition, the boundaries of freedom of expressing political opinion should be drawn by the judiciary in a way that prevents the violation of human dignity in the case of public figures. The Court held this condition to be compatible with ["const-eng-hun-a-ix"]Article IX of the Fundamental Law, since this can be an absolute limit on free speech only in a very narrow scope of opinions expressed that negate the foundations of human status.
Under the third condition, free public debate can be restricted in the interest of an "acknowledgeable public interest". The Court held this condition to be unconstitutional, emphasising that free public debate is itself an "acknowledgeable public interest". There is therefore no need to justify any further indescribable "public interest" still less the "acknowledgeable" nature of it to open the possibility of criticising public figures. The contested condition of the Civil Code would narrow in an unjustified way the scope of free speech, as criticising public figures to a wide extent would only be allowed after verifying the existence of further public interest in addition to the constant social interest related to debating public affairs. The Court repealed the text "on the basis of acknowledgeable public interest" in Section 2.44. It did not therefore enter into force on 15 March 2014.
III. Justices István Balsai, Egon Dienes-Ohm, Imre Juhász, Barnabás Lenkovics, Béla Pokol, László Salamon and Mária Szívós attached dissenting opinions to the decision.
Hungarian.