A clean slate?
The freedom of the press is over again – proclaim left-wing newspapers. For the time being all that has happened is that the new media law proposal would grant previously unprecedented rights to the Media Council led by Annamária Szalai. How a body set up from Fidesz delegates could exploit this is still not known.
Freedom of the press is over, or least this was the message last week by two daily papers and one weekly when they came out with blank front pages. Magyar Narancs, Élet és Irodalom and Népszava expressed their protest against the planned new media law with the dramatic effect created by their blank pages on the front cover.
The document actually does create a new situation, but the protest was premature. By the time the above newspapers had published their front pages in a deliberate bid to shock, a Fidesz-Christian Democrat amendment proposal had already been set out. The amendment proposal, if passed by parliament, would largely render the battle for press freedom obsolete. For one of the main objections to the proposal was that it would place all the editorial content of the Hungarian media under the sphere of authority of the Media Council led by Annamária Szalai, whose members are elected exclusively from among Fidesz delegates. Since the proposed law would bestow this council with the right to levy fines, the council can virtually do away with any press product it deems unsuitable.
The press is not the target
This was really a possibility in the original bill. It contained the proviso that in the event of an infringement of law the Media Council was entitled to impose a ten-million-forint fine upon press products, the whole amount of which would have to be paid regardless of whether the given organ appealed against such a decision in court. However, according to the amendment the coming into effect (of the payment) would be postponed during the court's revision of the case, thus there is no chance for the council to deliver a knock-out blow to the newspapers that politically oppose it.
Not that this was the objective: the writers of the draft wanted to change an old practice that worked miserably, with a fine that would have to be paid immediately. Commercial TV companies used to take legal steps in order to stall the consequences of damning decisions made against them by ORTT (the National Radio and Television Body). Even though in 98 percent of cases the courts have upheld ORTT's decisions, the effected parties have often managed to postpone the suspension of their broadcasting and obligation to pay a fine for years, thus making sure there are no threats to the profit gained from broadcasting inappropriate content, for example sexual, in the given financial year; a profit that they might have lost if they had not contested the body's decision.
At the same time it is understandable that it is not the commercial companies that are making the greatest effort to stop the new regulation. They will actually benefit from it - apart from the three-percent advertising tax. While, for example, in the programme provision contract of RTL Klub there is a 400 million-forint penalty for delays, the new regulation caps fines at 200 million for them. The document also eases the prohibitions on monopolies: only those with an annual audience proportion of 35 per cent on the TV or radio market - or a compounded 40 per cent on both markets - are not allowed to launch a new broadcasting service. Thus, unlike previously, big television companies will not have to resort to all sorts of tricks. They might even bring their business, channels like Cool or Sportklub, to Hungary and actually pay their taxes here, which is a vitally important argument for the legislators. Not by chance: today only eleven out of the sixty Hungarian language TV channels operate under Hungarian jurisdiction.
The rights of the victims
At the same time, the consternation of the opposition press cannot be explained from a merely political standpoint. It really is a significant change that it is not only the scope of the new law that extends to the press and the Internet, but the legal entity of the Media Council is a monitoring organ for the industries - while its legal predecessor, ORTT, was only allowed to supervise television and radio. The fears about the law also prescribing an information provision obligation for the press and internet organs have no basis. This obligation only refers to TV and radio; nevertheless, this is an unprecedentedly wide scope of jurisdiction granted to such an organ by EU comparison.
For example a regulation applies to the printed press now, according to which "the media content shall not be suitable for or be directed at arousing hatred against any person, nation, community, national, ethnic, language-based or other minority, neither against any church or religious group, nor be suitable for or directed at the overt or covert offence or exclusion of any community". What qualifies as an offence is not detailed by the law, and the right of interpretation is left in the hands of the Media Council; therefore, in theory, a daily paper could be fined ten million forints because of a vitriolic piece of journalism.
If this were to happen, the editor-in-chief of ÉS, Zoltán Kovács, would have good reason to expect the whole profession to be up in arms, but last week was too early for the protest. The reason why the printed press was included in the scrutinized media was mostly necessitated by several cases of infringement of law by the tabloid press. "If a bloody picture of the victims of a chainsaw murderer appear on the front page of a tabloid paper, that obviously constitutes an infringement of law, only the affected parties are unable to sue because they are be dead and the family is too busy mourning. Now there will be an authority that can officially take steps," says our source who participated in the elaboration of the bill, and who believes this is merely a framework regulation, which serious political newspapers would be incapable of breaching if present practice is continued. Moreover, the law creates ample leeway for self-regulation: if the profession is able to settle the matter in the form of compensation after an infringement of law, the authority will not intervene in the affair.
The same is true for internet products too, which - if made by a board of editors and an infringement of law is established - can also incur a fine from the authorities. The law does not apply to private blogs, thus if the Media Council used its power to exert political pressure, this market niche would be filled with content by the opposition. And this niche is by no means small: 70-90 percent of articles on the internet are published by private users.
Unprecedented in the EU
Despite the apparent strictness of the regulation, it will be precisely those problems that have entered common parlance that will be hard to remedy: for example, terminating the operation of Kurucinfó portal, which regularly publishes content that is an infringement of law, would be just as complicated with the new law. Even though the Media Council would be able to oblige the service provider to delete content that contravenes the law, this measure will also be easy to circumvent. Even if 15 out of 20 service providers conform to this order, the content will still remain accessible. Moreover, even such an ambiguous result will only be achieved after a lengthy international procedure. In theory, a possible solution would be for the law to invest the Media Council with an investigative sphere of authority, which would allow the authority to request data from the board of editors and the members of the Media Council to launch an investigation even if there is no infringement of law. But in Kurucinfó's case there is no official board of editors.
The above-mentioned sphere of authority and the compulsory registration of press products, which are not automatically approved by the Media Council are unprecedented in the EU. This is true even though the legislation makes reference to an EU Directive. While the EU does allow some leeway to the member states to monitor the content they receive, the directive concerns only television and mentions such content as NeoNazi propaganda or information likely to harm the healthy development of children.
Regulating the press through a state authority did not occur to anybody else in the EU. As our sources stated: this is only a formal extension of the law and none of it will influence what actually happens in practice. The question then arises: if this is true and nothing changes in the regulation environment, what is the need for a "formal extension of the law"? The draft proposal may change considerably anyway. But even if things remained in their present form, it would still not necessarily constitute the end of press freedom - although there is no doubt that if the law were to be applied vindictively, that freedom could be seriously violated. And if it is not, then is granting licenses that will never be used by the authority worth all the fuss?
The authority has the right to oblige those who infringe the law to publish a statement. Further to this, it can suspend the media service provider from practising its licenses, and it also has the authority to terminate the offensive media service. It may also impose fines, as follows:
- in the case of infringements by big television companies the maximum fine is 200 million and 50 million forints for smaller ones,
- for national daily papers it is 25 million,
- for national weekly papers or periodicals it is 10 million,
- for other daily papers, weekly papers or periodicals it is 5 million,
- for internet products it is 25 million,
- for programme distributors it is 5 million,
- and for intermediary service providers the fine is 3 million.
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