Licensing / Media Regulation
Prosecutor v. New Times
Closed Expands Expression
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The Chamber of the Fourth Section of the European Court of Human Rights (ECtHR) found that Hungary violated Article 10 of the European Convention of Human Rights (right to freedom of expression) in a case concerning the suspension of the Applicant journalists’ accreditation to Parliament for having conducted interviews and video recordings with members of Parliament outside the designated areas. The ECtHR acknowledged the legitimate aims pursued by the interference, which were twofold: to ensure the effective functioning of Parliament by preventing disruption and to protect the rights of Members of Parliament (MPs). It emphasized the significance of responsible journalism, emphasizing that journalists should act in good faith, providing accurate and reliable information in accordance with the principles of their profession. The Court determined that the lack of sufficient procedural safeguards accompanying the restriction on the Applicants’ freedom of expression rendered the interference unnecessary in a democratic society. Consequently, it found a violation of Article 10 of the Convention.
The Applicants worked as journalists for various online news outlets, including index.hu, 24.hu, nol.hu, and hvg.hu. They were granted accreditation by the Parliament’s press office to cover the plenary session held on April 25, 2016. The press office confirmed their registration through an email that not only provided information on the rules governing reporting within Parliament but also included a disclaimer stating that by entering the Parliament building, the Applicants would be considered to have agreed to abide by those rules. These rules were also accessible on the Parliament’s website.
On April 25, 2016, the Applicants intended to conduct interviews and record discussions with members of parliament, particularly those from the governing coalition, including the Speaker of Parliament and the Prime Minister. The interviews pertained to an ongoing political matter, specifically allegations of illicit payments related to the Hungarian National Bank. The Applicants approached the MPs with their questions without prior notification, and they did so in an area of the Parliament building not designated for recording, namely the Cupola Hall and the Southern Lounge. Several parliamentarians declined to answer their questions, and the Prime Minister’s press officer and the Offices of Parliament staff members warned the Applicants that they were not filming in an authorized manner or within the designated areas. Subsequently, the recordings made by the Applicants were published on various online news outlets.
On April 26, 2016, the Speaker, invoking his authority under Section 54(6) of the Parliament Act, suspended the Applicants’ accreditation. The Speaker informed the editors-in-chief of the relevant media outlets about this decision through letters, which stated that the journalist’s right of entry had been suspended due to their continuous recording without permission and the deliberate breach of the rules. The letters also emphasized the need for media outlets to adhere to the parliamentary press regulations to maintain their accreditation.
Following this, on May 1, 2016, the Applicants made a request to the Speaker, seeking access to the session scheduled for June 6, 2016, during which Parliament was set to discuss the sixth amendment of the Fundamental Law of Hungary. However, they did not receive a response to their request. Finally, on September 12, 2016, the Speaker reversed his decision from April 26, 2016, and informed the Applicants that they were once again allowed to enter the Parliament building.
The ECtHR delivered a unanimous judgment finding a violation of Article 10 of ECHR. The central issue for the ECtHR’s determination was whether the Applicants’ freedom of expression protected by Article 10 of the ECHR was violated by suspending them from entering the Parliament.
The Applicants contended that their right to freedom of expression had been infringed upon due to the Speaker’s decision, which prevented them from reporting on matters of public concern. [para. 21] They further contended that the Speaker’s Order could not be considered a legitimate legal basis for restricting their freedom of expression. According to the Applicants, the exhaustive list of public bodies entitled to issue generally binding rules of conduct, as outlined in Article (T) of the Fundamental Law, did not include the Speaker. Consequently, they claimed that the Speaker lacked the authority to issue regulations concerning parliamentary reporting. [para. 22]
The Applicants further contended that the Speaker’s Order failed to meet the criteria of foreseeability, as neither the order itself nor the decision to ban them from entering Parliament specified the duration of the restriction. [para. 23] Although the Applicants acknowledged the legitimate purpose of restrictions on journalists’ access to and conduct within the Parliament building, particularly to protect the dignity and authority of the House, they disputed the Government’s claim that their video recordings could have interfered with the normal functioning of Parliament, national security, the confidentiality of information, or the personality rights of MPs. [para. 24] The Applicants emphasized the significance of Parliament as a public arena and the primary platform for political debates. Furthermore, they argued that extensive media coverage of legislative work was necessary as it directly impacted citizens’ lives, and MPs were expected to answer questions from journalists. [para. 26] Lastly, the Applicants raised concerns about the Speaker, a political figure, being the issuer and enforcer of the rules without impartial external oversight. [para. 27]
The Government contended the restrictions by asserting that the Fundamental Law and the Parliament Act provided the necessary legal framework for limiting freedom of expression. They argued that the Speaker’s Order was an internal regulation and not a generally binding rule of conduct, and its lack of specificity did not make it unforeseeable. [para. 28-29] The Government claimed that the restrictions on access to the Parliament building were necessary for national security and public safety, and to protect the dignity of the National Assembly. [para. 30-31] They justified the limitations on recording by emphasizing the need to prevent the disclosure of confidential information and to ensure MPs could carry out their duties effectively. The Government also argued that restrictions on broadcasting within Parliament did not disproportionately limit freedom of expression and were necessary for the functioning of democratic public opinion. [paras. 34-36]
The ECtHR acknowledged that the conviction constituted an interference with the freedom of expression of the individuals involved. Such interference would be a violation of Article 10 unless it was in accordance with the law, must be “prescribed by law”, have one or more legitimate aims, and be “necessary in a democratic society” [Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, (2017); Selmani and Others v. the former Yugoslav Republic of Macedonia, (2017) and Szurovecz v. Hungary, (2019)]
The Court addressed the issue of whether the interference with the Applicant’s freedom of expression was “prescribed by law.” In the present case, the parties had differing opinions on whether the Speaker’s Order could be considered a source of law for restricting freedom of expression. The Court emphasized that the concept of “prescribed by law” not only requires a legal basis in domestic law but also refers to the quality of the law, which should be accessible and foreseeable in its effects. [para. 47-48] [Delfi AS v. Estonia, (2015)] It acknowledged that laws may have some vagueness but stated that the criterion of foreseeability does not demand that all detailed conditions and procedures be laid down in the substantive law itself. [Gorlov and Others v. Russia, (2019)] [para. 49-50] The Court recognized that professionals should exercise caution and seek legal advice when engaging in their activities. In this case, the interference was based on section 54 of the Parliament Act and the Speaker’s Order No. 9/2013. [para. 51]
The Court declined to examine the argument challenging the validity of the Speaker’s rules, as it pertained to the validity of secondary legislation, which falls under the jurisdiction of national courts. It highlighted the Speaker’s authority in regulating access to Parliament and considered the Speaker’s Order as allowing media professionals to regulate their conduct. The Court acknowledged that the absence of a specified restriction period in the Speaker’s Order and a decision was a relevant factor in assessing the necessity of the measure in a democratic society. Ultimately, the Court accepted that the complained interference had a legal basis in the relevant provisions of the Parliament Act and the Speaker’s Order, satisfying the requirements of “lawfulness” established in its case law. [paras. 55-56]
The Court found that the interference served two legitimate aims under Article 10(2) of the Convention. Firstly, it aimed to prevent disruptions to parliamentary work, ensuring the effective functioning of Parliament, which falls under the legitimate aim of “prevention of disorder.” Secondly, it sought to protect the rights of Members of Parliament, aligning with the aim of “protection of the rights of others.” Therefore, the key issue that remained was to determine whether the complained interference was “necessary in a democratic society.” [paras. 57-58]
In determining whether the interference in question was necessary in a democratic society, the Court referred to general principles established in Pentikäinen v. Finland, (2005); Bladet Tromsø and Stensaas v. Norway, (1999); Fressoz and Roire v. France, (1999); and Kasabova v. Bulgaria, (2011). These principles include the requirement for journalists to act in good faith, provide accurate and reliable information, and adhere to the standards of responsible journalism. Responsible journalism encompasses not only the content of information but also the lawfulness of journalists’ conduct, including their interactions with authorities. [paras. 59-63]
The Court acknowledged that the Applicants, in this case, had violated the rules of conduct in Parliament by filming in restricted areas. However, the Court emphasized that the Applicants’ recordings were related to a matter of public interest, namely alleged illicit payments linked to the National Bank. The Court recognized the importance of freedom of the press in enabling the public to form opinions on political leaders and participate in democratic debate. [Stoll v. Switzerland, (2007)] It also noted that regulations on recording in Parliament should be subject to limited scrutiny and that journalists should respect such regulations. [paras. 63-66]
While parliaments have the authority to regulate conduct and ensure the effective functioning of Parliament, the Court found that the impugned sanction imposed on the Applicants lacked adequate procedural safeguards. The domestic law did not require an assessment of the potential impact of the sanction or the relevance of the journalists’ activity, nor did it provide a means for challenging the Speaker’s decision. These deficiencies and the lack of response to the Applicants’ subsequent requests for authorization to enter Parliament led the Court to conclude that the interference with the Applicants’ right to freedom of expression was not proportionate to the legitimate aims pursued and violated Article 10 of the Convention. [paras. 73-74]
In conclusion, the Court held that the restriction imposed on the Applicants’ right to freedom of expression was not accompanied by adequate procedural safeguards, rendering the interference unnecessary in a democratic society. Therefore, a violation of Article 10 of the Convention. [paras. 73-74]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling highlights the importance of striking a balance between freedom of expression and the legitimate aims of protecting the orderly functioning of Parliament and the rights of its members. It emphasizes that journalists have a responsibility to act in good faith and provide accurate information following the principles of responsible journalism. The judgment underscores the significance of freedom of the press in enabling the public to be informed about matters of public interest and participate in democratic debate. It emphasizes that the press plays a crucial role in holding political leaders accountable and shaping public opinion. Furthermore, the ruling emphasizes the need for adequate procedural safeguards when imposing restrictions on journalists’ right to freedom of expression. The judgment directs that restrictions on freedom of expression, particularly those affecting journalists, should be accompanied by effective procedural safeguards to ensure proportionality and protect against abuse. It indicates that measures should be in place to assess the potential impact of sanctions and provide avenues for journalists to challenge decisions that restrict their rights.
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