Case Summary and Outcome

The Budapest Court of Appeal in Hungary ruled that a political thriller film, based on real events, was sufficiently fictional that the depiction of a person in that film could not constitute an infringement of that person’s reputation. After the film was released and an accompanying communication was published by the film production company, a public official filed a complaint that the film’s depiction of a character closely resembling him was an infringement of his reputation. The lower court found that there had been an infringement and awarded damages. On appeal, the Court of Appeal emphasized that a reasonable viewer of a film would understand that it does not attempt to portray the true facts and so that the depiction of individuals would not be perceived as being factually accurate. The Court found the appeal of the film production company to be well-founded and set aside the lower court’s decision in its entirety.

Facts

In October 2021, a well-known Hungarian film producer released a film, Elkúrtuk (“We F*cked Up”), based on real events involving the circumstances and political background of the Budapest riots (mass protests and police excesses) in autumn 2006. On October 20, the production company published a press release, titled “Ministers, criminals and advisers – but which opposition politician is still active today?”, on its website, which listed the important characters – political, public or otherwise – who appeared in the film.

The head of a public opinion research company was one of the real-life characters in the film, and he was identified by name – Endre (the research company head’s first name) – and image in the press release. The research company head believed that the film producer had misrepresented him because, in the communication he was described as one of the characters in the movie who had played a significant role in the political decisions of the then-coalition government in the autumn of 2006 in relation to the riots and was personally present at the time of some important political decisions. The communication said that, as an opinion pollster and head of a well-known opinion and market research institute, he had manipulated polls to show that the support for the then-ruling coalition government was higher than it actually was, and that the support for the largest opposition party, Fidesz, was lower than it actually was. It also said that he was an important participant in the political decisions of the government and the parties of the then-ruling government coalition, and was personally present when decisions were made, and so was in constant contact with the minister without portfolio in charge of civilian intelligence services. The communication claimed that the research company head was involved in the leaking of the Balatonőszöd speech of then-Prime Minister Ferenc Gyurcsány, which caused a great political storm and ultimately led to the protests, and that he himself prepared the communications of the political response to the leaking. The production company’s communication added that the research company head had participated in taking the decision to use unlawful police violence on October 23, 2006.

The research company head submitted that the production company, by misrepresenting true facts, had violated Section 2:45 (2) of Act V of 2013 on the Civil Code. The section concerns “[a] violation of reputation means, in particular, if a person states or spreads untrue facts concerning another person and insulting that person, or misrepresents a true fact.”

The Metropolitan Court of Budapest, as the court of first instance, found that the film production company’s communication – going beyond the level of artistic representation – was not a criticism of the research company head’s public opinion research activities. It found that his role in 2006 was not conveyed to the press and the wider public as a fictional, possible (fictitious) storyline, but instead that the film was based on real events, and that the character in the film was the research company head. The Court found that the research company head was not linked to this character in the movie on any factual basis; there is no evidence that he had any contact with politicians, that he was involved in the decision-making process at the time, that he provided polling data during that period, or that he carried out polling activities used as a basis for political decisions. The Court held that the research company head was not obliged to tolerate this depiction and there was no public interest in the production company conveying a factually unfounded connection between the research company head and the character in the film to the public. Accordingly, the Court held that the company infringed the research company head’s right to reputation, and ordered the company to refrain from further infringement and to pay aggravated damages (compensation for injury to feelings) in the amount of HUF 1 500 000.

Both parties appealed against the first instance decision. In its appeal, the research company head sought an increase in the amount of the aggravated damages to HUF 2 000 000 and an order that the company, if any sequel or sequels of the film included the character concerned, must include a caption stating that the actions of the character did not depict the research company head’s actual actions. The company sought an alteration of the judgment of the court of first instance and the dismissal of the action.

Decision Overview

The Budapest Court of Appeal delivered the judgment. The central issue for the Court’s determination was how to the balance the rights to protection of reputation and to freedom of expression and artistic expression.

The Court stressed that the communication and the film had to be examined together, as the communication stated that the film “brings real people to life”. Accordingly, the Court examined whether the film itself infringed the research company head’s reputation because if it did not, then the communication’s identification of him with the character in the film (and so that character’s actions) could not be an infringement either.

The Court examined the Constitutional Court’s jurisprudence on the conflict of fundamental rights in Constitutional Court decisions 36/1994 (VI. 24.), 7/2014 (III. 7.) and 13/2014 (IV. 18.). It accepted that freedom of expression deserves special protection where the expression concerns a public matter, a public issue or a public figure, and so considered the primary issue to be whether that circumstance existed in the present case. The Court noted that the film “deals with real and unprecedented political and social events in Hungary’s recent history, in its own style, woven into its own fictional storyline. The movie thus deals with a public issue and is therefore legally considered to be an expression made through the means of art on public affairs”. [para. 63]

Having established that the film had a public nature, the Court assessed the research company head’s possible status as a public figure and the extent to which his personality rights could be restricted on this ground. It found that the research company head had undisputedly appeared in the media on several occasions as a public opinion researcher, both at the time of the events of the movie and during its production. He had reported on the support and popularity of certain political parties and politicians and interpreted and evaluated the data underlying this. At the time of the film, the public opinion research company had conducted public opinion research on behalf of the then-ruling government, for which the head had received remuneration – from public money. Accordingly, the Court accepted the parties’ agreement that the research company head was a public figure. [para. 64]

The Court examined the specific characteristics of the film. It referred to the interpretation in the Constitutional Court decision 24/1996 (VI. 25), on the constitutional content of the freedom of artistic creation: “as a fundamental right, it also means the freedom of artistic creation, the freedom of the artist to express himself without any unauthorised restrictions, and the freedom to make his works of art available to the public, and to display and distribute them. (…) [T]he essential content of the right to freedom of artistic expression is the right to perform creative artistic work free from any form of influence by authority and to express freely the opinions expressed through artistic creation, that is, the right to publish the works of art.” The Court noted that the Constitutional Court has ruled, in Constitutional Court decision 13/2000 (V. 12.), on the relationship between the constitutional rights of artistic freedom and freedom of expression, that “artistic expression and criticism (…) are part of the constitutional freedom of expression”.

In determining whether the communication constituted a statement of fact or a value judgment, the Court focused on the characteristics of the film serving as a form of representation and the way in which the communication can be interpreted by the receiving audience and the meaning it may have. The Constitutional Court had stressed that while value judgments can be limited only in the narrowest sense (i.e. in order to protect human dignity or respect for privacy), greater care is required in the context of statements of fact. The Court assessed the film through the eyes of the average viewer and found that since the film is a political action thriller which is primarily an artistic work for the entertainment of the cinema-going audience, the “average viewer is aware that the purpose and effect of feature films is not to repeat an event that has happened in the past realistically, to present it in a documentary style, to reveal facts not known to the public, but to entertain the viewer with a fictional story. It is obvious to the average informed viewer that films of this kind, when viewed on a cinema screen, television or other electronic device, do not reproduce real events through the actors’ performances, but are a visual and aural representation of the filmmakers’ imagination”. [para. 73] It added that, in terms of audience reception, the fact that the film is purportedly “based on the real events” of autumn 2006, does not change the perception of the film. It noted that the fictional character of the film can still be identified by the average viewer, and “the actions of the characters in the movie, which are portrayed as real persons, will not be treated as if they had actually happened in reality”. [para. 74] Accordingly, the Court held that the average viewer did not interpret the messages of the film as true reality, and so information in the movie could not be interpreted as statements of fact.

Accordingly, as statements made by the character similar to the research company head in the film did not constitute statements of fact, there could be no damage to his reputation. The Court found the production company’s appeal to be well-founded and dismissed the research company head’s claim in its entirety.