Mobile phone application for photographing and disseminating invalid ballots online and the freedom of expression

JUDGMENT

Magyar Kétfarkú Kutya Párt v. Hungary 20.01.2020 (no. 201/17) (GRAND CHAMBER)

see here

SUMMARY

The case concerned a political party’s mobile application which allowed voters to photograph,
anonymously upload and comment on invalid votes cast during a referendum on immigration in
2016.

The Court found in particular that the provision of domestic election law relied on by the authorities
(a breach of the principle of the exercise of rights in accordance with their purpose) had not allowed
the applicant party to foresee that it could be penalised for providing such an app, which had been
an exercise of its freedom of expression.

The considerable uncertainty about the potential effects of the provision had exceeded what was
acceptable under the Convention and the lack of sufficient precision in the law to rule out
arbitrariness and allow the applicant party to regulate its conduct had led to a violation of the
Convention.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Magyar Kétfarkú Kutya Párt (The Hungarian Two-tailed Dog Party), is a political party
registered in Budapest (Hungary).

In September 2016 the party, which satirises the political establishment and government, developed
a mobile application to allow voters to show and comment on invalid ballots cast during a
referendum on European Union migrant relocation plans.

The referendum, which was held in October 2016, had been called by the Government and had
asked the question, “Do you want the European Union to be entitled to order the mandatory
settlement of non-Hungarian citizens in Hungary without Parliament’s consent?”

In the course of the campaign several opposition parties called on voters to boycott the referendum
or to cast invalid ballots that would not count in the final tally but could still be interpreted as
rejecting the idea of the referendum. The party developed the app, called “Cast an invalid ballot”, in
the context of that opposition.

Voters could use the app to post anonymous photographs of ballot papers, invalid or valid, and
comments on reasons for how they had cast their ballots. Following a complaint by a private
individual, the National Election Commission (NEC) fined the party after finding that the app
constituted campaigning activity and had broken rules on fair elections, voting secrecy and the
exercise of rights in accordance with their purpose.

The Kúria (the supreme court) ultimately only upheld the decision on the exercise of rights in
accordance with their purpose and reduced the fine. A complaint to the Constitutional Court was
deemed inadmissible.

THE DECISION OF THE COURT…

The Court found that the applicant party had been exercising its right to freedom of expression by
launching the mobile application and encouraging voters to cast invalid ballots. The authorities’
actions had interfered with that right, which could only be justified under certain circumstances,
including being provided for by a law which was accessible and foreseeable as to its effect.

The authorities and courts had relied in particular on section 2(1)(e) of the Electoral Procedure Act
(EPA), on the exercise of rights in accordance with their purpose, as one of the principles of electoral
procedure, and on section 218 of the EPA on fines for breaches of campaigning rules.

Those legal instruments had been sufficiently accessible, but the key question for the Court was
whether the applicant party could have known that taking and uploading photographs of ballot
papers in an anonymous way would breach electoral law when there was no specific piece of
legislation regulating such acts.

According to a 2008 Constitutional Court ruling, the EPA did not define what would count as a
breach of the principle of the exercise of rights in accordance with their purpose, it falling to the
National Election Commission and the courts to determine such questions on a case-by-case basis.
The lack of clarity in the provision thus meant that domestic authorities had to exercise particular
caution when interpreting it given the possible risks for the enjoyment of voting-related rights,
including the free discussion of public affairs.

The Court noted that the Constitutional Court and the Kúria had found in certain cases that the
provision was breached if voting-related conduct had had “negative consequences” for others,
including a violation of their rights. In the applicant party’s case, the Kúria had rejected some of the
NEC’s allegations of alleged breaches of election law but had never explained how the party’s
actions had had a “negative consequence”.

While the National Election Commission had issued Guidelines which banned photographs of ballot
papers, the Guidelines were not legally binding. Moreover, the Kúria had only clarified the relevance
and legal effects of the Guidelines after the referendum.

The Court noted that the applicant party’s case was the first time the domestic authorities had
applied the principle of the exercise of rights in accordance with their purpose to the use of a mobile
application for posting photographs of ballot papers in an anonymous way.

While the first-time application of a provision did not by itself make the interpretation of the law in
question unforeseeable – every legal provision had at some point to be tested for the first time – in
the applicant party’s case foreseeability had been particularly important as it had concerned
restrictions on a political party’s freedom of expression in an election or referendum.

The Court found that the considerable uncertainty about the potential effects of the legal provisions
applied by the domestic authorities had exceeded what was acceptable under the Convention.
It also concluded that the law applied to restrict the applicant party’s freedom of expression had not
been formulated with sufficient precision to rule out any arbitrariness and allow the applicant party
to regulate its conduct accordingly. There had therefore been a violation of Article 10 § 2 of the
Convention and there was no need to examine the applicant party’s other arguments.

Just satisfaction (Article 41)

The Court held that Hungary was to pay the applicant party 330 euros (EUR) in respect of pecuniary
damage and EUR 7,615 for costs and expenses.

Separate opinions
Judge Dedov expressed a separate opinion which is annexed to the judgment.


ECHRCaseLaw

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