Council of Europe and Hungarian Government agree on changes to media laws

Following months of negotiations with the Council of Europe, Hungarian lawmakers are expected to introduce a set of amendments to the media laws that include changes to the appointment system and term lengths of members of the Media Council, the rules on source protection, and balanced reporting requirements for broadcasters, according to an announcement by Council of Europe’s Secretary Thorbjorn Jagland (view video address here).

The proposed amendments address some of the most controversial elements of Hungary’s media legislation, including the independence of Hungary’s new Media Council, which is currently composed of all members that were nominated and elected by Hungary’s ruling party. Under current rules, the Prime Minister appoints the president of the Media Authority, and that appointee becomes the automatic nominee to serve as chairperson of the Media Council, for indefinite nine-year terms. According to the planned amendments, Hungary’s president will appoint the head of the Media Authority, based on the recommendation of the prime minister, and the position will be limited to a single nine-year term, in keeping with “a normal standard for a European body,” said Jagland. Under the proposed amendments, civil society could also participate in the nomination of Media Council members, he said.

According to Secretary Jagland, the amendments will strengthen provisions on source protection, which he said are currently in violation of the European Convention on Human Rights (ECHR), and journalists will only be required to reveal their sources to criminal investigators with a court order.  Under Article 6 of the Hungarian “media constitution” (Act CIV of 2010), the court has the right “in exceptionally justified cases as defined by law – to oblige the media content provider or a person in an employment relationship or in other work-related legal relationship with a media content provider to reveal the identity of the journalists’ source or to hand over any document, object, or data carrier that could potentially identify the journalists’ source.” Secretary Jagland did not elaborate further on how this provision would be modified to bring it into compliance with ECHR standards.

The other proposed amendment would change the heavily contested “balanced” reporting requirement for broadcasters, a provision that has been found by numerous legal experts, including those at the Council of Europe and the OSCE, to transgress European standards. According to Hungary’s current legislation, radio and TV broadcasters are required to produce “diverse, comprehensive, factual, up-to-date, objective and balanced coverage on local, national and European issues that may be of interest for the general public and on any events and debated issues bearing relevance to the citizens of Hungary and the members of the Hungarian nation, in the general news and information programmes broadcasted by them” (see Article 13 of Act CIV of 2010). Numerous experts say the scope of this rule is vague and over-reaching, which could have a chilling effect on the media. Although “balanced” coverage requirements are common in European media legislation, this provision should be narrowly defined so to not interfere with a broadcaster’s editorial decisions and orientations.

Hungary’s “balanced” reporting provision was initially required for all media—including print and online press—but was later amended to apply only to radio and TV broadcasters after negotiations with the European Commission. According to the law, stations cannot be fined for violating the “balanced” reporting provision. The Media Authority and Media Council can pursue breaches to “balanced information” requirements based on complaints by viewers or listeners. Fines or stronger sanctions cannot be levied for breaches to this provision, but the Media Authority or Council can require the outlet to broadcast the decision of the infringement.

The Hungarian Government has indicated they will pass the agreed upon amendments this spring. In March 2011, the Hungarian lawmakers passed a set of limited amendments to the legislation following negotiations with European Commission. The amendments were met with widespread disappointment and criticism from civil-society groups, human-rights activists, journalists, and free-press advocates who claimed the deal between the Commission and Hungarian officials failed to address the Media Council’s composition and had therefore left the most problematic aspect of the new media regulation system intact. The Commission argued that its mandate is limited to ensuring compliance with the EU Audiovisual Media Services Directive, which does not contain requirements regarding the independence of national regulatory authorities. This provision was initially debated by EU-member states during the EU AVMSD’s initial drafting but failed because several EU-member states refused to allow this measure to be included in the final legislation.

The Council of Europe, which has a far wider mandate to address freedom principals as codified by Article 10 of the European Convention on Human Rights (ECHR), has since taken on a more prominent role in negotiating amendments to Hungary’s media legislation. In May 2012, the Council of Europe published an extensive report detailing the key provisions of the Hungarian legislation that are inconsistent with Article 10 of the ECHR.  This document specified that the appointment procedures of the Hungarian Media Council fail to meet the CoE’s recommended standards for the independence of regulatory authorities for the broadcasting sector.