Case of European Court of Human Rights, April 28, 2020 (case ATV ZRT v. HUNGARY)

Defense:HUNGARY
Resolution Date:April 28, 2020
SUMMARY

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

 
FREE EXCERPT

FOURTH SECTION

CASE OF ATV ZRT v. HUNGARY

(Application no. 61178/14)

JUDGMENT

Article 10 • Freedom of expression • Television company prohibited from describing political party as “far-right” on the basis of unforeseeable application of statutory ban on the communication of any “opinion” by a newsreader • Domestic legislation lacking precision and absence of domestic courts’ common practice • Courts’ failure to demonstrate, in light of the aim of the ban, whether the impugned term was capable of upsetting balanced and unbiased presentation of a matter of public interest • Courts’ failure to consider factual circumstances of the case and arguments based on the veracity and factual accuracy of the impugned term • Courts required to ensure that the statutory ban did not turn into means of suppressing free speech

STRASBOURG

28 April 2020

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of ATV Zrt v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ganna Yudkivska, President,Paulo Pinto de Albuquerque,Egidijus Kūris,Carlo Ranzoni,Georges Ravarani,Marko Bošnjak,Péter Paczolay, judges,and Andrea Tamietti, Section Registrar,

Having regard to:

the application against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian company, ATV Zrt (“the applicant company”), on 3 September 2014;

the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 10 of the Convention;

the parties’ observations;

Having deliberated in private on 3 July 2018, 8 January 2019, 11 February 2020 and 17 March 2020;

Delivers the following judgment, which was adopted on that last date:

INTRODUCTION

The applicant company in the present case, the owner of a television channel, complained that the domestic courts’ decision finding that it had infringed the Media Act, in particular its provision prohibiting the expression of opinions in news programmes, had violated its right to freedom of expression. The applicant company relied on Article 10 of the Convention.

THE FACTS

  1. The applicant company is the owner of the TV channel ATV, with its registered place of business in Budapest. The applicant company was represented by Mr D. Karsai, a lawyer practicing in Budapest.

  2. The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi.

  3. ATV is an independent broadcaster, providing television and online services. Every evening it broadcasts televised news programmes that last for about 30 minutes. During the news programmes, a series of news items is introduced by a newsreader in a studio, and each news item is then presented by a different news reporter.

  4. On 26 November 2012, in a speech delivered during a plenary session, a member of parliament from the political party Jobbik, Mr M.Gy., stated that “it is time ... that we made an assessment how many persons of Jewish origin, especially members of Parliament and government, there are who pose a risk to national security...”.

  5. On 29 November 2012 the applicant television company broadcast a news item on preparations for a demonstration organised by a number of political parties with the title “Mass demonstration against Nazism” to be held as a protest against the political party Jobbik. It was explained that the background to the event was Mr M.Gy.’s speech during the plenary session and the party’s name was also mentioned. The newsreader introduced the news item by stating that “an unprecedented alliance is about to materialise on Sunday against the biased remarks of the parliamentary far right”.

  6. Following a complaint from the press officer of Jobbik, the National Media and Infocommunications Authority initiated proceedings against the applicant company, found that the latter had infringed section 12(3) and (4) of Act no CLXXXV of 2010 on Media Services and Mass Communication (hereinafter the “Media Act”), and prohibited it from repeating the statement. It declared that the expression “parliamentary far right” went beyond a factual statement and amounted to a value judgment. The Authority noted in its reasoning that it was irrelevant whether the statement had negative connotations or was based on fact or was shared by a number of people or was the opinion of the newsreader or the broadcasting company. The communication of any opinion by a newsreader was prohibited by the Media Act, to ensure that the public received unbiased news and political information.

  7. The applicant company appealed, arguing that the term “far-right” was widely used in relation to Jobbik, that it had a scientific basis in political and social science, and that it reflected Jobbik’s position in Parliament.

  8. By its decision of 17 April 2013 the Media Council of the National Media and Infocommunications Authority, acting as a second-instance authority, upheld the first-instance decision, endorsing its reasoning that the fact that a certain opinion was shared by the wider public did not change the nature of that opinion.

  9. The applicant company sought judicial review of this decision. It maintained that the impugned statement constituted an integral part of a news item describing a certain parliamentary group. The term was widely used and thus unlikely to influence the audience. It pointed out that the international media referred to Jobbik as a far-right party and some of the information published on the party’s own website also contained this term.

  10. By a judgment of 30 September 2013 the Budapest Administrative and Labour Court overturned the decision of 17 April 2013 (see paragraph 8 above) and remitted the case to the Media Council of the National Media and Infocommunications Authority. The judgment contained the following reasoning:

    “It is significant that nowadays the term ‘right-wing’ is not used solely in relation to extreme, chauvinistic movements in daily political life (for instance sympathisers of fascist or national socialist ideologies) but also in relation to right-wing political parties with a milder stance. It is a sociological fact that the term has lost its meaning as referring exclusively to ‘extremists’. The same adjective could describe both truly radical, aggressive standpoints and also more moderate ideologies. It is a matter for political and sociological debate which category is to be referred to, but it is a fact that in current national and European public life [the term] is used to cover both. As a consequence, if a party whose founding document acknowledges its radical right-wing ideology is referred to in a news programme as ‘far-right’ – an adjective widely accepted in public and scientific life – this does not mean that an opinion is being expressed about the party, and especially not that it is associated with extreme chauvinistic ideas. It simply means that the political entity in question is being described, factually, using one of the various meanings of the adjective – not based on the plaintiff’s subjective assessment – corresponding to its nature as accepted by current social and political public understanding. The fact that the term ‘far-right’ is used in conjunction with the adjective ‘parliamentary’ further diminishes the impression that it refers to extreme ideology.”

  11. The respondent requested a review of the judgment before the Kúria.

  12. By a judgment of 16 April 2014 the Kúria overturned the first‑instance judgment and upheld the Media Council’s decision. It also ordered the applicant company to pay 91,000 Hungarian forints (HUF) (approximately 300 euros (EUR)) in court fees and HUF 80,000 (approximately EUR 260) for the respondent’s legal costs before the domestic courts. According to the Kúria:

    “The term ‘far-right’ in the news programme is an opinion, not a statement of fact. According to the first-instance court, the term ‘far-right’ is the subject of political and social debate and if terminology is debated, it cannot be the subject of a factual statement. The debate was not about the meaning of the term ‘far-right’, but whether the term ‘far-right’ constitutes an opinion on a news item or a statement of fact. In the Kúria’s view the mentioning of the ‘parliamentary far right’ constitutes an expression of opinion. Jobbik does not consider itself a far-right party, and describing it using such an adjective constitutes an expression of opinion, creating an association with an extreme radical stance in the public’s mind, and thus having a negative influence.”

  13. The applicant company lodged a constitutional complaint. It submitted, amongst other things, that political parties are regularly described using adjectives, such as the “Green” party or the “Christian” democrats, which do not reflect an opinion. Similarly, in the present case the use of the adjective reflected additional information about Jobbik that is accepted by the general public. It argued that the term should be analysed in its broader context, namely that it was expressed in connection to a demonstration triggered by an anti-Semitic comment of a Jobbik member. It also emphasised that the term was to describe the position of Jobbik in Parliament, which was factually on the far-right.

  14. On 6 December 2016 the Constitutional Court dismissed the applicant company’s complaint. The judgment contained the following reasoning:

    “Section 12 of the Media Act regulates the relationship between the media and the news, opinions and evaluative explanations they broadcast as a sub-rule of the obligation to provide balanced and factual coverage. Pursuant to this provision, in news and political information programmes of the media service provider, presenters, newsreaders or reporters cannot, as a general rule, add an opinion or an evaluative explanation to the political news they are...

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