Case Summary and Outcome

The European Court of Human Rights found that the Hungarian authorities had violated Article 10 of the European Convention on Human Rights by imposing a fine on a political party for operating a mobile telephone application allowing voters to share anonymous photographs of their spoilt ballot papers. The political party had developed the application in the lead up to the Hungarian referendum related to the European Union’s migration relocation plan that was held in 2016. The National Election Commission of Hungary fined the applicant party on the basis that it had infringed the principle of fairness of elections, voting secrecy and proper exercising of rights. The European Court of Human Rights took the view that the fine interfered with the political party’s right to freedom of expression because the mobile phone application possessed a communication value since it was enabling voters to share opinions about votes. The European Court of Human Rights rejected the Government’s argument that the fine pursued a “legitimate aim” noting that the mobile application did not prejudice secrecy or the fairness of the referendum.

---

Facts

The applicant before the European Court of Human Rights was a Hungarian political party. On October 2, 2016, a referendum related to the European Union’s migration relocation plan was held in Hungary. During the referendum campaign, several opposition parties had called on citizens to vote in a way to invalidate their ballots in protest against the holding of the referendum. The applicant had made available a mobile telephone application to voters called “the cast-an-invalid-vote app” where they could upload and share with the public photographs taken of their ballots, and also add comments on the reasons for how they cast their ballot. One of the main features of the application was that users could post and share photographs anonymously.

On September 29, 2016, a private individual lodged a complaint with the National Election Commission of Hungary (Commission) about the application.  It held that the application had infringed the principles of fairness of elections, voting secrecy and the proper exercise of rights. The Commission concluded that the application was capable of discrediting the work of electoral bodies and tallying systems in the eyes of the public. The Commission ordered the applicant political party to refrain from further violations. It held, among other things, that taking photographs of the ballot papers could have led to electoral fraud.

The applicant then sought judicial review of the decision before the Supreme Court of Hungary (Kúria). On October 10, 2016, the Kúria upheld the decision of the Commission with regard to the infringement of the principle of the proper exercise of rights. It found that a ban on photographs and on publication had not infringed voters’ freedom of expression, since they had been free to express their opinions by casting their ballots and to share with others how they had voted. The Kúria overturned the remainder of the Commission’s decision on the infringement of the secrecy of elections and discrediting the work of electoral bodies.

On October 3, 2016, the same private individual lodged a new complaint with the Commission since the political party had activated the application during the day of the referendum. On October 7, 2016, the Commission reiterated its previous findings. It also added that as the application called on voters to cast an invalid ballot this could have influenced voters and, therefore, constituted unlawful campaigning. It fined the political party approximately 27,000 EUR.

On October 18, 2016, the Kúria upheld the Commission’s decision in part. It upheld the finding that the taking of photographs of ballots amounted to an infringement of the principle of the proper exercise of rights. It reduced the fine against the political party to 330 EUR.

The applicant political party then lodged constitutional complaints against the Kúria’s decisions, arguing that they had violated the right to freedom of expression. The Constitutional Court declared the complaints inadmissible on October 24, 2016, arguing that the cases did not concern the political party’s right to freedom of expression. It held that the political party had just provided a forum for voters to share photographs of their ballots, and had not itself expressed an opinion. Therefore, it had not been “personally concerned” by the decision of the Kúria.

The applicant political party subsequently brought its case to the European Court of Human Rights, complaining that the imposition of a fine for operating a mobile telephone application allowing voters to publish photographs of their ballot papers had violated its right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights. It argued, in particular, that providing a forum for voters to express their opinions fell under the scope of the right to freedom of expression. The Government argued that there had been no interference with the applicant’s right to freedom of expression since it had not expressed itself in speech. It also argued that the fine was aimed at ensuring the orderly conduct of the voting procedure and the proper use of ballot papers.

---

Decision Overview

The European Court of Human Rights (Court) began by noting that Article 10 of the European Convention on Human Rights (Convention) guaranteed the right to impart information and the right of the public to receive it. It noted that the freedom included the publication of photographs. It also reiterated that “Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information.” [para. 36]

In the case at hand, the Court ruled that the mobile telephone application was designed to enable users to share their comments and photographs through information technology. The Court went on to state that “the mobile phone application in the present case possesses a communicative value and thus, for the Court, constitutes expression on a matter of public interest, as protected by Article 10 of the Convention. Moreover, in the present case, the Court is satisfied that what the applicant political party was reproached for was precisely the provision of the means of transmission for others to impart and receive information within the meaning of Article 10 of the Convention.” [para. 37]

The Court had then to examine whether the interference was justified under Article 10 of the Convention, namely if it was “prescribed by law,” pursued a “legitimate aim,” and was necessary in a democratic society. The Court decided that it was unnecessary to consider whether the fine was “prescribed by law” since it did not pursue a “legitimate aim.”

With regard to whether the fine pursued a “legitimate aim,” the Court first considered the Government’s argument that the fine was aimed at ensuring the orderly conduct of the voting procedure and to secure the proper use of ballot papers. The Court recounted, and endorsed, the finding of the Kúria that the political party’s conduct was not conducive to any prejudice in respect of the secrecy or the fairness of the referendum.

The Court also found that the Government failed to point to any other actual rights of “others” that would or could have been adversely affected by the anonymous publication of imagery of marked or spoiled ballots. Furthermore, they did not show any resulting deficiency in the voting procedure requiring a restriction on the use of the application.

Finally, the Court noted that under domestic law it was illegal to use a ballot for any other purpose other than to vote. However, it held that the Government failed to convincingly establish any link between this domestic law and a “legitimate aim.”

Therefore, the Court found that the measure had not pursued a “legitimate aim”. The Court concluded that, in the light of the aforementioned reasons, the sanction imposed on the political party for operating the mobile telephone application in question did not meet the requirements enshrined under the Convention. Therefore, there had been a violation of the right to freedom of expression under Article 10 of the Convention.

As for damages, the Court awarded 330 EUR to the applicant political party in respect of pecuniary damages.

---