Case Summary and Outcome

The Hungarian Constitutional Court dismissed an application to annul a lower court’s decisions which had found that an article containing statements insulting to the Hungarian nation was not protected by the right to freedom of expression. Two individuals had sought a declaration that the article had infringed their human dignity in terms of the Hungarian Fundamental Law which excludes from protection of the right any expression that is “exercised with the aim of violating the dignity of the Hungarian nation”. The Court of First Instance had found the article to be in violation of dignity and although the Court of Second Instance had reversed that judgment, the Curia had upheld the first judgment. The Constitutional Court, concurring with the findings of the Curia, established that the individuals were members of a community protected by the Fundamental Law, and that the fact that the expression was on matters of public interest does not remove the requirement not to humiliate individuals as members of the community.

Facts

On November 8, 2018, an article titled “A Hungarian does not steal, he only ventures” was published on a Hungarian online portal operated by the Hungarian publisher HGV. The article was critical about the termination of a process to examine the lawful use of public funds, and of an alleged immunity of the Prime Minister’s friends and family members. It referred to “stinking Hungarian migrants” and “Hungarian bandits”.

Two private individuals approached the Metropolitan Court of Budapest and sought a declaration that HGV had violated their personality rights as members of the Hungarian national community.
The Metropolitan Court found that the HGV had violated the human dignity of the individuals in the article through the use of the phrases,“stinking Hungarian migrants” and “Hungarian bandits”, which were offensive to the dignity of the Hungarian nation. It ordered HGV to remove the offensive terms from the article, to publish an apology and to pay the individuals aggravated damages (compensation for injury to feelings) in the amount of HUF 400,000 (approximately US$1 200 in 2025). The Court relied on Section 2:54(5) of Act V of 2013 on the Civil Code (the Civil Code), which stipulates that “any member of the community may enforce his or her personality rights for a legal injury that is seriously offensive to the community or that is unduly insulting in its manner of expression, committed with great publicity, in relation to his or her membership of the Hungarian nation or of a national, ethnic, racial or religious community, which constitutes an essential characteristic of his or her personality”. The Court held that the author of the article had used the term “stinking Hungarian migrants” not in a political or legal sense, but as a slur, and that pejorative adjectives used in the article created a highly offensive combination of words that would offend the dignity of any community concerned. It added that if someone calls a people, denomination, ethnic, racial or religious community a “bandit”, this is not aimed at qualifying a particular act or conduct, but constitutes a generalizing stigmatization that violates the dignity of any such community. The Court held that the title and essential message of the article could be regarded as a critique of public discourse but that such an intention would not be recognized by the average reader.

The Budapest Court of Appeal reversed the judgment of the regional court and dismissed the action. The Court of Appeal disagreed with the lower court’s finding that an average reader could not recognise a critique concerning the state of political public discourse in the article. It emphasized that, based on an examination of the entirety and context of the text, the article should be seen to contain an opinion, evaluation, and critique addressing how the authorities communicate a particular event domestically and internationally, and the potential external responses to it. This meant that there was no infringement under Section 2:54 (5) of the Civil Code, as HGV’s conduct was not directed against the Hungarian nation or its members, and the author did not address his offending statements against the community of Hungarians. The Court of Appeal held that, in the context of belonging to the community and in the absence of an attack against the community, no violation of the individuals’ human dignity could be established through an alleged infringement of the community’s dignity.

The individuals filed a petition for review before the Curia against the final judgment, which set aside the decision of the Court of Appeal and upheld the judgment of the Court of First Instance. The Curia found that one part of the contested article examined the period preceding the founding of the Hungarian state, drawing a parallel between the events of the historical era of the “ventures” and those of the present, while also employing strong, coarse, and vulgar expressions. It did not accept the argument that the statements represented the perspective of the victims of the Hungarian military “ventures” and thus did not constitute a “hate attack” against the dignity of the community. The Curia held that the author used the pejorative expressions “stinking”, “migrant” and “Hungarian bandits” as generalising stigmas applied to “those belonging to the Hungarian nation,” and found those expressions to be unduly offensive. It accepted that the article expressed the author’s indignation within the framework of a public debate but held that the literary devices and irony used to convey this were impermissible.

HGV filed a constitutional appeal, seeking a declaration from the Constitutional Court that the judgment of the Curia was unconstitutional and to annul it, on the grounds that it violated Sections IX (1) and (4)-(5) of the Fundamental Law which protect the right to freedom of expression.

Decision Overview

The Constitutional Court delivered a judgment to which four judges concurred and two dissented. The central issue for the Court’s determination was whether the statements in the article were protected by the right to freedom of expression.

The Court set out its practice on the dignity of communities and the protection of dignity, and referred to the fourth amendment of the Fundamental Law of Hungary, which explicitly recognises the protection of the dignity of not only individual persons but also communities against freedom of expression, while simultaneously providing the possibility of taking action through civil law remedies in the case of such statements. Sections IX (4) and (5) of the Fundamental Law state that “(4) The right to freedom of expression may not be exercised with the aim of violating the human dignity of others. (5) The right to freedom of expression may not be exercised with the aim of violating the dignity of the Hungarian nation or of any national, ethnic, racial or religious community. Persons belonging to such communities shall be entitled to enforce their claims in court against the expression of an opinion which violates their community, invoking the violation of their human dignity, as provided for by an Act.”

The Court stressed that the dignity of the community means a special dignity of its members arising from their membership of the given community, the enforcement of which is possible under the legal protection derived from the Fundamental Law, based on Section 2:54 (5) of the Civil Code and so the Fundamental Law expressly states that respect for human dignity constitutes an objective limit to freedom of expression.

The Court highlighted that the inviolable core of human dignity is a limit to freedom of expression even if the speech in question is on public affairs, in the context of public issues. It stated that “the Constitutional Court has on several occasions dealt with cases concerning public affairs and justifying the application of Sections IX(4) and (5) of the Fundamental Law, in which statements raising an issue of human dignity appeared as instruments of opinion or message expressed in matters of public interest. In such cases, the essence of the contested statement – typically criticism – does not target the individual and/or community whose alleged infringement is the subject of judicial and constitutional review. Since, under Section IX(4) of the Fundamental Law, a statement is unconstitutional only if it is aimed at violating human dignity, it is questionable whether an instrumental opinion that nonetheless infringes human dignity falls within the scope of Section IX(4) of the Fundamental Law at all”. [para. 32]

In order to resolve the conflict between the human dignity of persons belonging to a given community and freedom of expression, the Court set out a three-part test: first, to establish the protected nature of the relevant community, of which the individual is a member and in which they are perceived to have suffered an actual or alleged harm as a result of the expression; second, to determine whether the intensity, or “depth” of the harm clearly reaches the threshold of an infringement of human dignity; and third, to examine the purpose of the statement in question, and assess whether the expression of opinion relates to a matter of public interest and conveys an identifiable, evaluable opinion; in other words, whether it contributes to the discussion of a matter of public interest or, detached from such context, merely provokes scandal without substantive content. In applying the test, the Court must in every case also consider the context of the contested statement and its broadly construed orientation.

Although the issue did not arise during the judicial proceedings, the Court emphasized, in principle, that “[i]n cases concerning the applicability of Section IX(5) of the Fundamental Law, the public figure status of the person criticised is irrelevant, because in such cases the criticism does not focus on a specific individual but extends to a community, whose members also include non-public figures, who in fact constitute the majority. (…) Accordingly, anyone who, in critiquing a public figure, uses – inherently generalising – expressions that offend a community cannot expect that their statement will, at least in this respect, be subject to the higher tolerance threshold applied to statements about public figures”. [para. 34]

Applying the test to the present case, the Court held that the expressions concern the Hungarian nation, and the Hungarian nation is a community as defined in Section IX(5) of the Fundamental Law, and thus its members are entitled to assert claims against communications that are offensive to it. In connection with the potentially dignity-infringing nature of the expressions complained of, the Court emphasized that “expression in matters of public interest does not confer authorisation to humiliate individuals in respect of the inalienable aspect of the right to human dignity or their human status as members of a community; such statements conflict with Section IX(4) of the Fundamental Law, which sets limits on freedom of expression.” [para. 41] It added that “the descriptor ‘stinking’ is not inherently offensive, but in the given context is dehumanising and manifestly irreconcilable with human dignity, particularly in light of its, still regrettably frequent, association in public discourse with anti-Semitic, racist, homophobic, and xenophobic expressions”. [para. 42]

Accordingly, the Court found that the expression “stinking Hungarian migrant” is incompatible with the values of the Fundamental Law and that the Curia’s finding was consistent with Sections IX(4)–(5) of the Fundamental Law. It therefore dismissed the constitutional complaint seeking a finding of unconstitutionality and annulment of the Curia’s judgment.

The authors of the dissenting opinions, Judges Balázs Schanda and Réka Varga, both took the position that the panel should have annulled the Curia’s judgment as the expressions complained of – regardless of whether one identifies with their style, tone, or content – enjoy constitutional protection under the freedom of expression. Judge Balázs Schanda noted that the expressions “stinking Hungarian migrant” and “Hungarian bandit”, particularly given the twisted use of phrases commonly employed in public discourse, do not express hatred against the Hungarian nation, but irony. He said that “the context of the expressions relates to a public debate and contributes to it: is it possible to discern a parallel between the actions of the venturing Hungarians, the assessment of those actions, and contemporary events?” [para. 91] He accepted that although the word “stinking” is understood as a derogatory descriptor, it cannot be interpreted as challenging the inviolable core of human dignity, and the coarse formulation also falls within the protective scope of freedom of expression.

Judge Réka Varga highlighted the political opinion character of the article’s content, arguing that it contains ironic and satirical elements, but no statements aimed at insulting the Hungarian nation. She would have found that even in the case of a newspaper article considered to have an unacceptable tone, its exclusion from public discourse cannot be reconciled with fundamental rights requirements.