Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Expands Expression
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In November 2013, Ottó Szalai, a member of the City Council of Siklós, Hungary, was found guilty of criminal defamation under Section 179 of the Criminal Code after criticizing the city’s Mayor János Marenics. In his self-published local newspaper, Szalai accused the mayor of “treat[ing] public money as his own.” He specifically questioned the mayor’s decision to increase the salary of his deputies, at the same time when the general public was faced with new austerity measures. The District Court of Siklós sentenced him to a fine of HUF 90,000.00 (approximately $300.00).
Subsequently, Szalai appealed the judgment to the Constitutional Court of Hungary, arguing that his conviction violated his right to freedom of expression guaranteed under Article 9 of Hungary’s Constitution. In April 2014, the Court reversed his conviction on the grounds that the lower court did not assess important factors to determine the nature of his speech and whether his criticism was a value judgment, deserving protection as opposed to an unsubstantiated factual allegation.
As a member of Siklós’ City Council, Ottó Szalai continuously criticized the city’s Mayor János Marenics during public hearings. Szalai later set up a self-published newspaper with the help of his father. In one of the issues, he wrote an article on the fiscal management of the city in which he questioned the mayor’s handling of taxpayer money, alleging that the mayor was “treating public money as its own.” As an example, Szalai expressed his opposition against the mayor’s decision to raise the salary of his deputies, while the city had just passed new austerity measures resulting in financial hardship for the general public.
In response, the mayor initiated a criminal defamation action against Szalai under Section 179 of the Criminal Code. As he was critized in his official capacity, the charges were brought by the Public Prosecutor of Siklós.
In November 2013, the District Court of Siklós found Szalai guilty of criminal defamation on the ground that his article contained an unsubstantiated factual allegation that the mayor had committed corruption. He was sentenced to a fine of HUF 90,000.00 (approximately $300.00), amounting to two months of his income.
Subsequently, Szalai appealed the judgment to the Constitutional Court of Hungary.
The main issue was whether the impugned criticism against the mayor was a value judgment or a statement of facts. This distinction is vital in criminal defamation cases because an author’s opinion is presumed to be protected under the right to freedom of expression, while a statements of fact must be proven before the court. Under Article 9 of Hungary’s Constitution, “[e]veryone shall have the right to freedom of speech.” The Constitutional Court described the right as the “mother right,” because it “gives opportunities to participate in the social and political processes” [para. 24]. The Court added that free press encompasses the right to express opinions on public affairs, which includes expressions on “the performance, efficiency and quality of work” of public officials [para. 25].
Additionally, the Court addressed the European Court of Human Right’s jurisprudence on the right to freedom of expression, emphasizing that the European Convention provides “protection to all opinions, regardless of whether they are offensively shocking or disturbing because this is required by principles of a democratic society, [such as] tolerance, pluralism, and openness.” [para. 35]
Szalai argued that his criticism in the article was not a statement of fact, but a value judgment, concerning the mayor’s public duty. He refuted the claim that he had accused the mayor of committing a crime. Rather, he merely expressed his opinion that the mayor committed “a morally reprehensible act” in his official capacity, which is protected by the freedom of expression. [para. 45]
The Court first found that the criticism at issue was of political nature, entitled to the highest level of protection. In determining the political nature of an expression, the Court ruled that factors, such as subject matter, the context of the speech, platform, and the circumstances of the publication must be examined. [para. 49] Also, when categorizing an expression as a statement of facts or a value judgment, the form of expression as a whole must be assessed.
As applied to Szalai’s article, the Court found the lower court erred in not examining the above-mentioned factors; it reiterated that because of the vital role of free speech in a democratic society, laws limiting freedom of expression must be strictly interpreted. Accordingly, the Court reversed Szalai’s conviction.
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