Case Summary and Outcome

The Hungarian Constitutional Court dismissed an appeal against the lower courts’ decisions that a magazine cover depicting a famous painting, repurposed to show politicians at the birth of Jesus was not an infringement of the dignity of the Catholic community. The magazine cover sought to highlight the greed of the country’s leading politicians and all the courts accepted that it was not intended as an insult to Catholicism, Christianity or the birth of Jesus. The Court accepted that expression that is “unduly insulting” to the dignity of religious communities can be restricted, but that the purpose of the expression if of primary importance.

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Facts

The front page of December 2014 issue of the Hungarian national news weekly magazine, HVG, was titled “Nagy Harácsony” (meaning “Great Greedmas”). The cover featured a reworked version of Gerard van Honthorst’s The Adoration of the Shepherds (1617), with some of the holy family replaced by portraits of well-known leading government politicians and featuring a large pile of gold coins in the centre of a garment.

A member of the Hungarian Catholic community filed an application before the Metropolitan Court of Budapest, arguing that the cover violated his honour and human dignity as a member of the Catholic community. He submitted that the parody of the classic painting depicting the birth of Jesus mocked Christianity’s most sacred holiday in a humiliating manner that incited hatred. He stressed that Christmas is one of the most important holidays for Catholics and its significance is well known. He accepted that the symbols of the faith professed by Christian people do not have to be accepted by everyone, and did not dispute that their symbols can be a target for irony and humour, but submitted that no one should use the object of their religious veneration, or its symbols, in a self-serving manner, as an end in itself, as an illustration of unjustified negative political value judgments, or as a tool for hate propaganda.

The individual brought the application under section 2:54(5) of Act V of 2013 on the Civil Code (the Civil Code), which stipulates that “any member of the community may enforce his or her personality rights for a legal injury that is seriously offensive to the community or that is unduly insulting in its manner of expression, committed with great publicity, in relation to his or her membership of the Hungarian nation or of a national, ethnic, racial or religious community, which constitutes an essential characteristic of his or her personality”.

The Metropolitan Court of Budapest dismissed the individual’s claim. The Court held that section 2:54(5) requires that the infringing conduct must be directed against the community in question, which in this context presupposes a certain level of awareness; at the same time, the subject of the front page is the conduct of the leading politicians featured there and their attitude towards money. It held that the fact that the magazine made their negative value judgments in this context using the symbolism of a contemporary religious painting cannot in itself be prejudicial to the religious sensibilities of believers or to religious symbols. The Court also examined separately whether the front page was exaggerated or offensive in itself or in its expression and did not dispute that there were people who were outraged or offended by the front page, but found that this does not mean that the magazine’s conduct in publishing the front page was offensive to the community.

On appeal, the Budapest Court of Appeal upheld the judgment of the lower court, finding that it fully shared the view of the court of first instance that the conditions laid down in the legal provision had not been met. It explained that paragraph (5) of Section 2:54 of the Civil Code does not contain the expression that the harm to the community must be targeted, but it does in any case presuppose a harm to the rights of a particular community that is seriously offensive or unjustifiably offensive in its expression, made in public. In this case, the community concerned was in fact not the Catholic Christian community, but the community of leading politicians and, consequently, the individual did not suffer any damage to his rights as a member of the Catholic community because of the publication of the magazine’s front page, which mocked politicians. The Court held that the magazine’s aim was to ridicule politicians and not religion or religious symbols.

The Curia, acting on a petition for review of the final judgment, upheld the judgment of the Budapest Court of Appeal. It agreed with the final judgment that the contested communication must be assessed not from the point of view of the subjective sensitivity of a plaintiff, but from an external objective point of view and so the disputed front page was to be assessed as a sharp, characteristic (political) expression of opinion on the person and activities of the public figure politicians depicted there: it expressed the opinion that the persons depicted had an almost religious devotion to material wealth, wealth acquisition and its various possibilities and, at the same time, they formed a community united by material wealth. The Curia held that the opinion expressed and the way it was presented were not aimed at denigrating the Christian religion or the community of believers, and neither the front page nor the internal content of the news magazine dealt with religious life, nor the behaviour or perception of believers. It noted that the legislation does not require the infringement to be purposeful as it is basically a “result-oriented” regulation, but it must be assessed not only from the point of view of the community concerned, but also in the overall social, legal and political context.

The individual appealed to the Constitutional Court, requesting it declare the judgment of the Curia unconstitutional and to annul it, on the basis that it violated Articles II, VII and IX (4)-(5) of the Fundamental Law.

Article II protects the right to human dignity; Article VII the right to freedom of thought, conscience and religion; and Article IX the right to freedom of expression.

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Decision Overview

The Constitutional Court judges provided five concurring opinions and five dissenting opinions. The central issue for the Court’s determination was whether the front cover did infringe the dignity of the Catholic community.

The Court confirmed the right to freedom of expression “also includes acts other than oral or written communication” and that “the person expressing his or her opinion may communicate his or her ideas not only in words but also, for example, by using images, symbols or wearing clothes – symbolic speech, as manifested in the use of symbols, may be one of the classic issues of freedom of expression”. [para. 25] It explained that this means that the scope of expression of opinions towards certain religious communities is wider than verbal or written communications, and in some cases may also protect communicative acts other than ordinary speech. It described it as a “necessary, but by no means a sufficient condition” that for something to be the expression of an opinion the speaker has the intention of expressing their opinion, and so the “purpose or motive” is a primary consideration. [para. 36] The Court added that, “in order to apply freedom of opinion, it is also necessary that the form of communication chosen should be an objectively suitable means, a medium for the communication of ideas”. [para. 36]

The Court emphasized that “a person who uses seriously offensive or insulting expressions in order to humiliate the human dignity of another person is not exercising his or her freedom of expression in matters of public affairs” and that, accordingly, “human dignity, which is the direct embodiment of our humanity, marks the boundary of freedom of public debate. Speech on public affairs must yield to this inalienable essence of human dignity that determines human status”. [para. 26]

The Court’s jurisprudence has established that freedom of opinion opens the door to the possibility of expression itself, and may involve a certain degree of exaggeration and provocation in order to control public power or those exercising public power and to inform and draw the attention of public opinion; it does not, however, protect against self-serving communications outside the scope of public debate, such as those relating to private or family life, which are intended to humiliate or insult, or to use abusive or offensive language or to cause other legal harm and will not defend an opinion expressed in a public debate if the views expressed therein violate the inalienable core of human dignity, and thus amount to a manifest and serious denigration of human status. The limit to freedom of expression, however, is not the insult to someone but an insult to human dignity and expressions that are subjectively offensive to the personality but do not violate human dignity are protected by freedom of expression. Accordingly, the limit to freedom of expression is not the violation of the community itself or of its individual members, but the violation of the dignity of the community.

The Court added that, based on Section 2:54 (5) of the Civil Code, a communication can be classified as “seriously offensive” or “unduly insulting in its manner of expression” if it “violates the inalienable core of the human dignity of the members of the community, or if it is otherwise self-servingly directed at violating the dignity of the community or its members”. [para. 30]

The Court identified its decisions that are closely related to the discussion of public affairs but which are “unduly insulting in their manner of expression”, and outlined two approaches. According to the first one, “the opinion can be considered as unduly insulting in its manner of expression if the person expressing the opinion could have sought a form of expression that was neutral or non-offensive from the point of view of the community concerned”. [para. 31] However, the Court did not consider this approach defensible, and held that the other approach was preferable. According to the other approach, “when discussing a public matter, in particular when the purpose is to examine public power or those exercising public power and to inform and draw the attention of the public, the form and style of expression chosen must not be inconsistently or excessively offensive, but criticism, irony, a certain degree of provocation and, where appropriate, mildly offensive or insulting communications remain protected by the freedom of expression”. [para. 31]

In the present case, the Court found that the lower courts were right in principle to recognize the importance of the purpose of the communication, but found that the conclusion of the Court of First Instance that “if the expression of an opinion is intended to discuss public affairs, any use of the symbols of a particular religion in this context would necessarily be lawful” was incorrect. The Court noted that the Curia correctly interpreted section 2:54 of the Civil Code as being applicable “even in the absence of an express purpose and the communication, regardless of its purpose, cannot result in serious injury or humiliation of members of the religious community”. [para. 37] It added that the Curia’s application of the “external objective point of view” meant that “on the one hand, the sense of grievance felt by the members of the community does not necessarily lead to the establishment of a legal violation; on the other hand, the courts cannot deny legal protection solely because the author of the statement that is severely insulting or unreasonably offensive in expression towards the community claims that their underlying intention was to convey a social or political message”. [para. 37] The Court also found that the Curia had correctly assessed the circumstances of the case that are relevant from a constitutional law point of view within this range of interpretation, stating that, on the one hand, the message was not aimed at violating the dignity of the (members of the) community concerned and, on the other hand, the content of the political opinion and value judgement conveyed by the message was clearly identifiable, “the form of expression of which – the religious simile displayed in the image – was not found to be arbitrary or unjustified in relation to the content of the opinion”. [para. 37] It added that although Article IX (5) of the Fundamental Law of Hungary had not been applied on the merits before, meaning the courts acting in the main proceedings could not have taken into account the interpretative aspects it mentioned, “the judgment under appeal remained within the range of constitutional interpretation”. [para. 37]

The Court highlighted that any person, including members of the community concerned, the press or public figures, may express a critical opinion on communications that are mildly offensive or insulting to a community, or that may be considered unethical or distasteful, in a manner compatible with the fundamental right to freedom of expression.

Accordingly, the Constitutional Court rejected the constitutional appeal.

In a concurring decision, Judge Balázs Schanda noted that “Christianity and a content related to the Christian faith is not the object but the instrument of the mockery. This, despite its possible distastefulness, is also protected free speech”. [para. 74]

Judge Miklós Juhász, in a concurring decision, examined the relevance of the question of the evaluation of the cartoon by the audience, meaning the “average reader” (the “average person”), and said that “for the average reader, viewer or believer who encounters the opinion, if they do not know the original painting, there is no obvious, direct and clear connection between the message on the front page and the painting of the birth of Jesus conveying the symbolism”. [para. 69]

Judge Tünde Handó, on the same issue, said that “it would be incorrect to measure the grievance according to the average person’s reaction, as the essence of a violation of personality rights is that it must be realized in relation to a specific individual. The yardstick should therefore be adjusted, not according to what an ordinary person considers offensive but according to what is offensive to a believer in a religious community”. [para. 95]

In his dissenting opinion, Judge Imre Juhász stated that “the technique of expressing criticism should be such that it does not constitute an insult to the community or an affront to the human dignity of the persons belonging to that community”. [para. 124] The Judge added that, in relation to the majority position on the primacy of the fundamental right to freedom of expression in the face of Christian symbols, “it cannot be disregarded that there is a close correlation between provocative press communications (memes, cartoons, caricatures, etc.) that do not spare religious symbols, founders of religions and religious people in general, and the wide range of reactions from the religious persons concerned (the persons offended)”. [para. 130]

In a dissenting opinion, Judge Attila Horváth stated that “it is not under the protection of freedom of expression if the birth of Jesus and Mary, one of the most important religious symbols of Christianity, as well as the figures and values of the persons represented in Christianity, are used as a means of criticism and mockery of some public or social phenomenon”. [para. 108]

In a dissenting opinion, Judge Mária Szívós stated that the Constitutional Court “did not protect one of the most important Christian symbols – the birth of Jesus Christ – while in Europe we see that the extremist branch of Islam uses the most violent methods to repel even the slightest violation of religious symbols”. [para. 139]

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