a)  Hungary / b)  Constitutional Court / c)  Plenary Session / d)  18-07-2019 / e)  23/2019 (VII. 18) AB / f)  The annulment of Judgment 2.Pf.20.009/2018/4/II of the Budapest Court of Appeals / g)  Magyar Közlöny (Official Gazette) 2019/126 / h) .
Keywords of the systematic thesaurus:
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Public hearings.
Fundamental Rights - Civil and political rights - Freedom of expression.
Fundamental Rights - Civil and political rights - Rights in respect of the audiovisual media and other means of mass communication.
Keywords of the alphabetical index:
Public official, photographs, video footage / Courtroom, officials, photography.
Individuals vested with public powers must endure the broadcasting, without their consent, of pictures of them taken not only in the public arena but also in the courtroom.
I. The applicant, a media content provider (TV channel), lodged a constitutional complaint with the Constitutional Court in accordance with Section 27 of the Act no. CLI of 2011 on the Constitutional Court against Judgment 2.Pf.20.009/2018/4/II of the Budapest Court of Appeal. The applicant had broadcast from a trial of public interest and in video dispatches, pictures of the face of a warden were shown. The warden, the plaintiff in the appeal, claimed that the applicant had breached his personality rights as he had not consented to the publication of pictures taken of him and had now become recognisable against his will. The court ruled in his favour, stating that the applicant could have exercised its rights without disclosing pictures of him. In this case, the focus of the dispatch was not on the warden himself and so the broadcasting was self-serving.
The applicant claimed that its right to freedom of expression and the freedom of the press (Articles IX.1 and IX.2 of the Constitution) had been breached, as the court had not taken into consideration the case-law of the Constitutional Court which made it clear that pictures of officials could be broadcast without their consent provided the dispatch was not self-serving, it was about contemporary events or delivered information on the exercise of the executive power that was of public interest.
II. In the view of the Constitutional Court, the constitutional problem at the root of the case was the collision between personality rights stemming from the right to human dignity (Article II of the Constitution), the right to privacy (Article VI of the Constitution) and the freedom of the press (Article IX of the Constitution). It had to determine whether the exercise of the right to freedom of the press justified broadcasting pictures of a member of the executive power without their consent.
The Constitutional Court noted that media content providers are exercising their fundamental rights when they broadcast from an event of public interest. When this collides with another fundamental right, the Constitutional Court must strike a fair balance between the conflicting interests. The Constitutional Court summarised its case-law concerning dispatches of pictures taken in public places of individuals vested with public powers. In these cases, the freedom of the press may only be limited if such a broadcast would violate another fundamental right, typically personality rights within the ambit of the right to human dignity. Members of the executive power must, as a general rule, endure disclosure, provided it does not violate their fundamental rights. However, the unusual feature of this case was that the pictures were taken in the courtroom.
Openness of a trial is to be considered as a safeguard of the right to fair trial. It should not serve as a forum for public debate. The right to fair trial (Article XXVIII.1 of the Constitution) cannot be understood as allowing full media coverage of the trials without restriction. Judicial impartiality and due process could be a legitimate basis for restricting the rights of the media content provider, namely in relation to disseminating pictures of individuals who were present in the courtroom. If, however, the presiding judge has not ordered a closed door trial, the principle of openness must be applied. In this case, the trial was in public which meant that the media content provider was entitled to exercise its fundamental rights. The Constitutional Court came to the conclusion that restrictions on showing the picture of the warden, as a member of the executive power, would only be possible if there was another constitutional interest at stake. Being recognisable did not, per se, constitute such a legitimate objective. Members of the executive power must therefore endure the broadcasting of pictures of them taken in public places and in courtrooms too.
In view of the interpretation above, the Constitutional Court found that the court had not taken this constitutional reasoning into account and had accordingly breached the applicant’s right to freedom of the press.
III. Justices Ágnes Czine and Imre Juhász attached a concurring reasoning and Justices Egon Dienes-Oehm, Béla Pokol, László Salamon and István Stumpf attached a dissenting opinion to the decision.
Cross references:
- no. 28/2014, 29.09.2014, Bulletin 2014/3 [HUN-2014-3-008].