Defamation / Reputation, Digital Rights, Political Expression, Press Freedom, Privacy, Data Protection and Retention
Standard Verlagsgesellschaft mbH v. Austria (no. 3)
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The Hungarian Constitutional Court held that that a statement by one mayoral candidate about another was protected speech. After the candidate from the governing party uploaded a Facebook video critical of their political opponent, the opponent and his own party filed a complaint with the local electoral commission. The commission held that the statements were political opinions and not fact. The regional electoral commission and the city’s Court of Appeal upheld the local electoral commission’s decision. The Constitutional Court stressed that single sentences must be read within the context of the entire text, and that a statement’s meaning must be determined by examining what the electorate would understand by it. The Court held that the candidate’s statement as a whole represented political opinion about their opponent’s political approach and experience.
On 4 September 2019, the Fidesz (the Hungarian Civic Alliance political party and the governing party at that time) candidate for mayor of the Hungarian city of Győr posted a Facebook video which criticized the performance of their political opponents, the Hungarian Socialist Party (MSZP). The video, posted on the candidate’s Facebook page, was titled “The Zoltán Kodály school will be renewed, everything else is a lie” and stated “In the past year, more than two billion forints worth of institutional renovations have been carried out in this city, which the opposition in Székesfehérvár has never, ever supported.”
The MSZP candidate for mayor in the local election and the MSZP party filed an objection to the local election commission on the grounds that the video contained untrue statements. They submitted that these statements were thus capable of misleading the electorate, resulting in a violation of the electoral principles of the integrity of elections and the bona fide and proper exercise of rights, as defined in the Election Procedure Act. The party sought an order that posting the video, violated the provisions of Act XXXVI of 2013 on Election Procedure (Election Procedure Act), namely Section 2(1)(a) on the protection of the integrity of elections and Section 2(1)(e) on the principle of bona fide and proper exercise of rights. It submitted that the video misleads the electorate by giving the impression that opposition representatives, including opposition candidates, do not support the renovation of institutions.
The local election commission – acting as the first instance body – rejected the mayoral candidate and the MSZP’s objection. It found that the statement in the video qualified as a political opinion, by which the municipal candidate intended to imply that opposition representatives did not generally support improvements to institutions. The commission stressed that if the MSZP considered the statements to be untrue they had the opportunity to provide a wide-ranging rebuttal during the campaign.
The candidate and MSZP appealed against the decision to the regional election commission, which upheld the decision of the local election commission. The regional election commission confirmed the findings of the local election commission that the municipal candidate in question discussed the behaviour of the opposition in general terms only, and the sentence taken out of context could not be examined independently because it would disrupt the logical order of the speech and would make it impossible to judge the real purpose and intention of the speaker.
The candidate and MSZP filed a petition for review with the Győr Court of Appeal, which found the petition to be unfounded, and therefore upheld the decision of the regional election commission. According to the statement of reasons of the judgment, a court had to take into account that, in an election campaign, the requirement of the contestability of public affairs must be enforced as widely as possible, and thus even exaggerated or heightened opinions on the candidates’ suitability and political programmes are acceptable. The Court also stressed (agreeing with the position of the regional election commission) that the challenged sentence cannot be judged in itself; the examination must necessarily include the entire context, the logical and content-related connections, and so the overall message it conveys to the electorate. The Court held that the statement as a whole and its actual content shows that the challenged sentence – the one taken out of its context – had no independent significance, and that the statement was directly linked to the political activities of the persons concerned and constituted a general criticism of the opposition’s conduct in relation to the development of institutions, and should therefore be considered a political opinion.
The candidate (but not the MSZP) appealed to the Constitutional Court, seeking an annulment of the decision of the Győr Court of Appeal in view of the violation of the right to privacy and freedom of expression.
The central questions for the Court’s determination were whether the statement made in the campaign video constituted a political opinion or a factual statement; and if it was a factual statement and was untrue, whether it could be capable of misleading the electorate and thus violate the principles of the Election Procedure Act.
The petitioner argued that the contested communication contains a clearly untrue statement of fact, which is not constitutionally protected, and therefore the lower court’s reasoning cannot be correct. He submitted that, given that the video to which the objection relates also contains his likeness, the overall effect of the video negatively affected his image in the eyes of the electorate.
Under sections 2(1)(a) and (e) of the Election Procedure Act, the rules of the election procedure enforce the principles of safeguarding the integrity of the election and the bona fide and proper exercise of rights. Hungarian jurisprudence establishes the principle that the bona fide and proper exercise of rights is violated if the participants in the election exercise their rights in relation to the election, including the right to campaign, in such a way that they attempt to deceive the electorate by concealing or distorting certain facts and thereby reduce the electoral chances of their political opponents. In the present case, the subject of the constitutional assessment was whether the challenged communication constituted a political opinion piece enjoying the broadest protection of freedom of expression or an untrue statement of fact, and then whether the Court of Appeal had taken into account and assessed all the circumstances of constitutional relevance.
The starting point for the constitutional assessment is that statements on public affairs, especially during election campaigns, are expressions that fall within the particularly strongly protected area of freedom of expression, which is often and naturally accompanied by strong criticism of the views, political activities, work and credibility of political opponents. Although negative campaigning is not prohibited by Hungarian legislation and judicial practice, and “[i]n an election campaign, freedom of expression and its limits must typically be interpreted and judged in the context of the public figures’ relations with each other”, statements made during the campaign in the course of debates between public figures do not enjoy unlimited protection. [para. 28] For example, in the case of opinions that offend human dignity or knowingly untrue statements without the slightest factual basis intended to mislead the electorate, the speaker may be held liable.
The Court referred to its consistent treatment of these matters and reiterated its view that during election campaigns “the arguments in favour of the freest possible debate on public issues are most strongly considered, and where there is most room for even exaggerated and heightened expression of opinions on political programmes and the suitability of candidates, given the considerable scope for rebuttal or counter-opinion during this period”. [para. 30]
The Court had to examine whether the statements made in the video should be interpreted as a statement of fact or as a value judgment in order to determine the level of constitutional protection. The Court referred back to its previous findings when evaluating the criteria of delimitation, stating that “in the heated atmosphere of political debates, especially during election campaigns, the determination of the facts cannot be made by the automatic application of the test of provability in the ordinary sense, meaning that it cannot be limited to the evaluation of the literal content of the statement under evaluation. To establish the legal liability of those participating in an intensive debate of public affairs, it is not sufficient to show that certain elements of the examined statement may be rebutted objectively”. [para. 28]
Statements made by candidates during an election campaign must be assessed with regard to whether the electorate can reasonably draw a conclusion from them on the basis of whether what is said can be interpreted according to a meaning other than its grammatical meaning. In other words, the key question is whether there is a possible interpretation of the communication that would qualify it as a value judgment of the other candidate’s political performance or suitability. The primary criteria for classifying communications are therefore not formal criteria (such as declarative sentence or literal interpretation), but the message it conveys to the electorate, and the communication can be considered a statement of fact if it does not convey any meaning that would be identifiable by the public as an opinion or value judgment.
The Court, on the basis of an assessment of the lower court’s decision in accordance with the above criteria, concluded that the contested statement “in its context, primarily indicates that the opposition members, according to the municipal candidate who published the video, do not generally adopt a constructive attitude towards the motions put forward by the majority of the assembly”. [para. 31] The Court found that the constitutional assessment by the lower court led to the correct result when it stated that “the contested speech, despite the statement contained therein that appears to be factual, constitutes, on the whole, a (political) opinion, which draws the attention of the electorate to the extent to which the opposition representatives or candidates have been constructive (or in this case, rather destructive) in the assembly’s negotiations or votes to promote the development of local institutions, according to the municipal candidate making the allegation”. [para. 31]
Accordingly, the Court dismissed the constitutional complaint.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court’s decision confirms that the boundaries between statements of fact and (political) opinion may be blurred in the course of election campaigns. A speaker may be held liable for misrepresentation of facts if the statement cannot reasonably be attributed, even in the circumstances of the campaign, a meaning that the voters would interpret it as a political opinion.
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