Prohibition of discribing a political party as “far-right” on television violates the freedom of expression
JUDGMENT
ATV Zrt v. Hungary 28.04.2020 (no. 61178/14)
SUMMARY
Freedom of expression and journalism. The National Media and Information Authority has banned a television company from describing a political party as “far-right” as part of a news program, as national media law has barred any “opinion” from the news presenter.
The TV company exercised all the legal means it was entitled to but without success to lift the ban. According to the ECtHR, the national courts were unable to prove, in the light of the purpose of the prohibition, that the impugned characterization was capable of disturbing the balanced and impartial presentation of a matter of public interest, taking into account the real circumstances of the case and the arguments. the real meaning of the term in question. The domestic courts are obliged to ensure that the legal prohibition does not become a means of suppressing freedom of speech.
The Court ruled that political parties were often characterized by adjectives (including the term “far-right”), which simply referred to their political goals and programs and therefore did not constitute an opinion or judgment on them, capable of causing prejudice to the public.
The ECtHR unanimously found that there had been a violation of the right to freedom of expression (Article 10 of the ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
Article 12 of the Hungarian media law prohibits the “opinion” of any newscaster.
The applicant company owned a television channel that was found to have violated the law, describing the Jobbik political party as “far-right” in a news program. The company was barred by the National Media and Information Authority from repeating the statement.
The plaintiffs sued, claiming that the term “far-right” was widely used in connection with the Jobbik party, that it had a scientific basis in political and social science, and that it reflected Jobbik’s position in Parliament. The domestic courts acquitted the National Media and Information Authority.
The company appealed to the ECtHR for a violation of freedom of expression.
THE DECISION OF THE COURT…
Article 10
The dominant issue was not, in this case, whether Article 12 of the law on the media was in principle sufficiently predictable, especially when using the term “opinion”, but whether, in the utterance of the statement containing the term “extreme right” , the applicant company knew or should have known that this expression would be “opinion” under the circumstances.
The question of whether the approach of the domestic courts was reasonably expected is closely related to the question of whether in a democratic society it was necessary to ban the term “far-right” in a news program under the circumstances and within the legal purpose of the restriction. .
The concept of “opinion” in Article 12 of the Law on the Media seems to have been very broad, covering all kinds of “adjectives”. Due to the lack of precision in the legislation, the national courts had to ensure, on the one hand, that the impugned provision concerned only expressions that were likely to disturb the balanced and impartial news in matters of public interest and therefore implied that they could not be restricted. in a tool for the suppression of freedom of speech, which includes activities and ideas protected by Article 10 of the ECHR.
Throughout the proceedings, the national courts had taken into account different factors to decide on the nature of the dispute in question. The government had not proven the existence of a common practice. This situation raises doubts as to whether the interpretation given by the national courts of first instance in the applicant’s case – namely, that a statement containing the term “far-right” was “opinion” – could reasonably be expected.
Moreover, there was no indication that the national courts had tried to establish, in the light of the nature of the dispute in question, that the legislation should promote balanced journalism. Although the Constitutional Court had referred to the public’s right to true and impartial information, in essence it simply found that public opinion could be affected by the use of an adjective, without proving whether, in the circumstances of the case, that condition was sufficient. to disturb the balanced presentation of a matter of public interest.
The Court relied on the applicant’s general argument before the domestic courts that political parties were often characterized by adjectives (green party, conservative party, etc.) that simply referred to their political goals and programs and were not an opinion or judgment. for them, capable of causing prejudice in the public.
The applicant company had also relied on the facts of the case, that is, that the characterization in question had been expressed in relation to a statement by a member of the Jobbik party that contained an anti-Semitic comment. Under these circumstances, the Court found that such factual evidence was appropriate to determine that the term “far-right” did not refer to an assessment of one’s moral conduct or personal sentiment, but to a party’s position in the political spectrum in general and in the Parliament in particular. However, the national courts did not take into account the circumstances that contained the information that was the subject of the report. On the contrary, the Constitutional Court ruled that the provisions of the Law on the Media did not require “opinion” to have a real basis. In other words, he tacitly considered that any defense claim made by the applicant company on the basis of the accuracy and true accuracy of the term used was invalid.
Taking into account the divergent approaches of the national courts to distinguish “facts” from “opinions”, for the purpose of the relevant provisions of the Law on Media and on the circumstances of the case, it is considered that the applicant company could not provide that the term “far right” would be termed “opinion”. Nor could it have predicted that banning its use in a news program would be necessary to protect impartial news. Therefore, the restriction imposed on the applicant company during the use of the term in question was disproportionate to the right to free expression.
The Court unanimously ruled that there had been a violation of freedom of expression (Article 10 of the ECHR).
Just satisfaction
The finding of a violation is sufficient just satisfaction.
