Case Summary and Outcome

The Hungarian Constitutional Court overturned two lower courts’ decisions which had found an editor guilty of criminal defamation. The editor’s news website had published an opinion article criticizing a municipal mayor, accusing him of “demeaning women”. The mayor then filed a complaint alleging that the editor had not amended the opinion piece content and so had committed the offense of defamation under the Criminal Code. The court of first instance found that the statement in question was an untrue statement of fact and was not protected by freedom of expression because it was outside the scope of public affairs. On appeal, the second instance court upheld the lower court’s decision, noting that the statement infringed the mayor’s dignity and exceeded the criminal law limits of critique. The Constitutional Court found that the lower courts had not properly considered the constitutional issues involved when the rights to freedom of expression and dignity intersect and found that the comment fell within the bounds of protected speech.

Facts

On 18 July 2019, an opinion article, titled “Let’s stop for a word Mr Kondek”, was uploaded onto a Hungarian online press website by an unknown person. “Mr Kondek” referred to Zsolt Kondek, a municipal representative and the article addressed the establishment of a college and road renovation in the town of Hatvan. It contained the following statement: “He did not comment on the case of Kálmán Havassy, nor on the occasions when his mayor, Richárd Horváth, demeans women, and he also refrained from giving an opinion on the excursion of notary Márta Szikszai to China.”

The mayor pressed charges of criminal defamation against the editor-in-chief of the news portal. The District Court of Hatvan, acting as the court of first instance, in its judgment No. 8.B.1/2022/6 found the editor guilty of defamation under Section 226(1) of the Criminal Code and therefore reprimanded him. Section 226(1) of the Criminal Code describes the criminal offense of defamation and stipulates that: “A person who, in front of another person, states, disseminates a fact that is capable of harming one’s reputation or uses an expression in direct reference to such a fact is guilty of a misdemeanor and shall be punished by imprisonment for up to one year.”

The court of first instance found that the article’s main contents, beyond doubt, concerned a matter of public interest. It then examined the nature of the statement concerning the mayor and found that the sentence “Richárd Horváth demeans women” appeared at the end of the article unexpectedly and in a wholly incongruous manner, bearing no logical or substantive connection to the preceding content of the article. It held that the phrase “demeans women” was a false statement of fact, which is outside the scope of the debates on matters of public concern, was gratuitous and was intended to destroy social esteem and so freedom of expression therefore no longer affords protection to this statement.

The editor appealed to the Regional Court of Eger, as the court of second instance, which upheld the judgment of the first instance court in its judgment No 2.Bf.188/2022/8. The Court highlighted that the published article contained a negative statement of fact about the mayor which was not related to his activities as mayor and clearly went beyond the right to discuss matters of public concern and criticise a public figure. It found that the post “Richárd Horváth demeans women” clearly constituted a statement infringing human dignity, exceeding the criminal-law limits of freedom of expression, critique and critical observations as it was not an opinion contributing to public discourse, but a statement deliberately aimed at offending the private complainant. The Court found that the court of first instance had ruled correctly in concluding that the editor had intentionally breached his professional duties by failing to alter the content of the article before its publication and accessibility to the general public, thereby accepting the possible consequences of his conduct, which established the commission of the offense with the requisite intent.

The editor filed a constitutional complaint before the Constitutional Court seeking a declaration that the judgments of the Regional Court of Eger and the District Court of Hatvan were unconstitutional and their annulment on the grounds of violation of freedom of expression enshrined under Section IX(1) of the Fundamental Law.

Decision Overview

The Constitutional Court panel delivered a unanimous decision. The central issue for the Court’s determination was whether the publication of the article was protected speech or not and so whether the editor was guilty of criminal defamation.

The Court examined the content of the fundamental right to freedom of expression and freedom of the media relevant to the specific case. With reference to the findings of Constitutional Court decisions 7/2014 (III. 7.) and 5/2015 (II. 25.), the Court stated that it is a fundamental requirement that all citizens in society should be able to express their ideas freely, as without the freedom and diversity of public debate there is no free public opinion and no democratic rule of law. Accordingly, the Constitutional Court generally regards the free expression of political public discourse as belonging to the innermost sphere of protection of freedom of expression, noting that “speech concerning public figures is, nevertheless, a central component of political expression”.

The Court considered the constitutional requirements to be applied in resolving the conflict between freedom of expression and the protection of the personality rights of public figures. Relying on its earlier practice, it assessed the three steps of the specific tests to be applied: first, it must be examined whether the given communication reflects participation in public affairs or an opinion expressed in a debate of public interest; second, it must be determined whether the communication qualifies as a statement of fact or as a value judgment; and finally, it must be assessed whether the restriction has exceeded the limits of freedom of expression, that is, whether it entails an infringement of the inviolable core of human dignity.

As to the applicability of the constitutional tests in the specific case, the Court stated, in line with the findings of the first and second instance judgments, that “the article examined the activities and statements of a municipal representative in relation to the establishment of a college and road renovations in the town of Hatvan.” [para. 40] The Constitutional Court noted that the courts had concluded, in the light of constitutional considerations, that the communication constituted a speech on public affairs and was therefore covered by freedom of expression.

However, the Court found that the lower courts had not correctly applied the relevant constitutional requirements in the context of the delimitation of statements of fact and value judgments. It disagreed with the lower courts’ finding that the article contained a negative statement of fact by the editor, which was “unrelated to the mayor’s activities, clearly going beyond the right to debate public affairs or criticize a public figure, and objectively capable of diminishing human honor and social esteem”. [para. 41] Instead, the Court held that the editor “repeatedly invoked during the proceedings that the communication was based on the termination of a person’s civil service employment and was formulated in relation to the ‘demeaning’ circumstances of their dismissal from the mayor’s office. It cannot therefore be concluded that the statement concerned matters unrelated to the mayoral activities of Richárd Horváth or that it fell outside the scope of public discourse.” [para. 41] The Court found that the statement concerned a question of fact, but that the communication must be considered in its full context, and that “the purpose of the communication was to criticise the functioning of the local government, meaning that the article employed irony and exaggeration to evaluate the municipality’s operations. [para. 41-43] It added that the article’s author had “expressed opinions on matters of concern to the local community” and “conveyed the view that the public service employment of several individuals, including the named municipal employee, had been terminated in a ‘demeaning’ manner.” [para. 41-43] The Court also highlighted that “the mayor did provide a rebuttal of the statement, and hence the local community had the opportunity to become aware of the mayor’s position on the matter.” [para. 41-43]

Accordingly, the Court held that the lower courts had not properly assessed the relevant constitutional considerations and consequently had extended the statutory element “makes a statement of fact” included in the definition of the offense of defamation to the contested expression in a manner contrary to the Fundamental Law. [para 43]

Finally, the Court examined whether the communication remained within the constitutionally protected limits of expression or whether it constituted an expression that offended the inalienable core of human dignity. It found that “the constitutional limit of freedom of expression is only exceeded by those statements that infringe the inviolable aspect of human dignity, that is, that violate the content of dignity legally capturing the essence of being human”. [para. 44] The lower courts had unanimously concluded that the contested statement was deliberately aimed at offending the mayor and, as such, constituted a statement of fact infringing human dignity. The Court, however, noted that the lowers courts had not properly applied the constitutional considerations when assessing statements capable of infringing human dignity. It emphasised that “an infringement of human dignity can only be established if the speaker denies or questions the individual’s humanity and the requirement to be treated as a human being, or if the statement intrudes into the innermost aspects of human nature, targeting the features constituting the essence of personality and identity in a gratuitous manner.” [paras. 45 and 47] It found that there was no such infringement in the present case.

The Court referred to the provision of the Criminal Code in force from June 2023, which – consistent with the constitutional considerations applied – seeks to ensure by statutory means that criminal-law restrictions on statements related to public affairs may only be imposed as a last resort. Paragraph (3) of Section 226 of the Criminal Code states: “If a person commits the act specified in paragraph (1) in the context of the free discussion of public affairs in a press product or media service, that person’s act shall not be punishable as defamation, provided that his act is not aimed at the obvious and seriously derogatory denial of the human dignity of the aggrieved party.”

Accordingly, the Court found that the lower courts had not properly weighed the constitutional considerations regarding the protection of personality rights, and therefore declared that the judgments of the Regional Court of Eger [2.Bf.188/2022/8] and the District Court of Hatvan [8.B.1/2022/6] are contrary to the Fundamental Law and were annulled.