Case Summary and Outcome

The Hungarian Constitutional Court held that although an unsuccessful electoral candidate ceases to be a public figure after an election, the debates about the candidate in the context of his public position as a candidate still require higher tolerance than can be expected of private citizens. After insulting comments were posted on Facebook about an unsuccessful candidate, the candidate filed a complaint arguing that the comments constituted criminal offences of breach of honor and defamation. The lower courts found that the candidate was no longer a public figure and so statements made about him did not constitute protected public speech. The Court stated that the public nature of a candidates conduct during a campaign does not end merely because they were not elected and so debate in the context of the campaign after the election is still governed by the principle that there is a higher duty of tolerance required from public figures who express their opinion in public affairs debates.

Facts

On January 4, 2020, a Hungarian individual posted insulting posts on the Facebook profile of an independent candidate who had run in Hungary’s local government elections in October 2019. The post, which included a link to an article about the independent candidate which contained prejudicial allegations, stated: “In Sümeg [a town in Hungary], the opposition rubbish was well and truly piled up for the municipal elections. The two frustrated little haters have not recovered since the big defeat. All they know how to do is lie, bully and hate. Fortunately, Sümeg swept out the rubbish.” The individual also commented on a third party’s Facebook page, saying “This cowardly socialist bitch is also messing with me from under his fake profile” and “together with this buffoon Szabolcs [a county of Hungary] kid”.

On January 16, 2020, the independent candidate filed a complaint against the individual at the Tapolca District Court for the offence of breach of honour under Section 227 (1) of Act C of 2012 on the Criminal Code (the Criminal Code) and the offence of defamation in violation of Section 226 (1) of the Criminal Code.

The Tapolca District Court found the individual guilty of breach of honour. In relation to the alleged public figure capacity of the candidate, the Court held that the candidate had actively participated in the public life of the municipality until the municipal elections (October 13, 2019), but after that did not participate in public affairs and so was not a public figure after the elections. The Court held that this meant that the duty of higher tolerance applicable to public figures did not apply to him. With regard to the comments published on the other Facebook account, the Court held that the individual had violated the candidate’s honor by using the terms “socialist bitch” and “buffoon” in the comment, and that the public Facebook post also constituted an offence committed before a public at large (in front of a large audience), and the individual was therefore criminally liable for breach of honor.

Both the individual and the candidate as private prosecutor appealed against the decision of the court of first instance.

The Veszprém Court of Appeal, as court of second instance agreed with the lower court that the candidate was indeed a public figure during the campaign, but not when the individual published the posts on Facebook and that there had been a breach of honour. In respect of the defamation offence, the Court held that the individual bore responsibility for the statements made in the title and content of the article he shared and therefore his criminal liability (for the offence of defamation) can be established as well.

The individual appealed against the judgment of the second instance court to the Győr Court of Appeal. The Court of Appeal shared the reasoning of the second instance court and emphasised that, according to the uniform court practice, in the case of acts committed on the same occasion against the same victim, the offence of breach of honour is merged into the offence of defamation; in other words, these two offences cannot be cumulative. Accordingly, the Court of Appeal found the individual liable only for defamation.

The individual appealed to the Constitutional Court, seeking an annulment of the decision of the Győr Court of Appeal (and, consequently also the judgments of the first and second instance courts) on the grounds that they violated his right to freedom of expression.

Decision Overview

The Constitutional Court delivered a unanimous decision. The primary issue to be examined was whether the decisions of the lower courts correctly interpreted the constitutional protection of the right to freedom of expression, under Article IX (1) of the Fundamental Law and public figure status of the candidate.

The individual argued that the candidate, as a public figure, had a duty of higher tolerance to public comment, and that the lower courts had not taken this into account.

The candidate maintained that his status as a public figure ended at the time of the 2019 municipal elections given that he had not been successfully elected.

The Court has addressed the definition of the constitutional criteria for reconciling freedom of expression and the protection of the personality rights of persons concerned by the expression on several occasions. With reference to a criminal case, Constitutional Court decision No. 13/2014 (IV. 18.), the Court emphasized that the assessment of a public communication requires a determination of whether the “communication in question is a speech relating to public affairs, reflecting the expression of a viewpoint in a public debate; in other words, whether it is in the context of the free discussion of public affairs.” [para. 39] This means that a Court must consider the context in which the communication was made, including “the type of the medium, the event that gave rise to the communication, the reactions to it and the role played by the communication in this process … the content, style, timeliness and purpose of the communication”. [para. 39] The Court noted that “[i]f an assessment of these circumstances leads to the conclusion that the communication concerns the free discussion of public affairs, the communication automatically enjoys a higher level of protection under freedom of expression”. [para. 39]

The Court’s jurisprudence has established that the connection or link of the communication to public affairs is the decisive feature, but that the personal circumstances, status or public figure capacity of the persons concerned do play an important role in determining the applicable constitutional standard. It has also established that speech relating to the discussion of public affairs falls within the specially protected sphere of expressions of opinion, so the scope for restricting them is much narrower.

In the context of the present case, the Court found that a person standing as a candidate in the election was an active participant in the public dialogue on public affairs, and so was subject to the duty of higher tolerance applicable to public figures. However, it stressed that the decisive criterion for constitutional review is whether “his public figure capacity that undoubtedly existed during the election campaign … was actually terminated (in view of his non-election) on the day after the municipal elections”. [para. 41]

The Court accepted that it is not disputed that statements made by a person standing as a candidate in an election campaign, other than those relating to their private or family life, form part of the debate on public affairs. However, if the candidate does not obtain a seat in the relevant elected body or does not win the office concerned, and at the same time “does not subsequently express an opinion on public issues, in other words, does not participate in public debates” the Court held that the individual’s capacity as a public figure “is not going to be maintained and so they (in respect of their statements and actions after the election period) will no longer be subject to a duty of higher tolerance”. [para. 42]

The Court noted that the mere fact that a candidate did not win a mandate does not in itself mean that their words and actions during the campaign and the fact of their candidacy itself become subject to the general standards of expression of opinion. This means that “[the] statements and actions of a candidate participating in an election campaign, as well as their candidacy, may give rise to public debate even after the election period (for instance, what they said during the campaign may still be criticised)”. [para. 42] The constitutional requirement of freedom of expression therefore requires that “if, following an election, criticisms are levelled against an unelected candidate in respect of their candidacy, they should not be judged by the general standards of freedom of expression, but by the duty of higher tolerance required from public figures who express their opinion in public affairs debates.” [para. 42]

Considering that, in the present case, the individual made critical comments on the activities and statements of the candidate during the election campaign in his capacity as a candidate (and shared an article published during the campaign and concerning the public activity and involvement of the private prosecutor) on his social media account, the Court held that the lower courts had incorrectly applied the constitutional criteria arising from the protection of freedom of expression in Article IX (1) of the Fundamental Law.

Accordingly, the Court ruled that the judgments of the Győr Court of Appeal, the Veszprém Court of Appeal and the Tapolca District Court were unconstitutional and therefore annulled them.