Case Summary and Outcome

The Hungarian Constitutional Court confirmed two lower courts’ decisions and found Tibi Atya, a blogger, guilty of criminal libel. The blogger had used coarse and obscene language in posts about two media personalities, Kulcsár Edina and Csuti, who subsequently approached the courts as private prosecutors. The Constitutional Court accepted that the lower courts had correctly found that the blogger’s statements were not about matters of public interest and the media personalities were not public figures. It held that the statements were gratuitous, obscene and abusive and so infringed the media personalities’ human dignity.

Facts

On January 23, 2020, the popular Hungarian blog, “Father Tibi blog”, published a post in which the blogger Tibi Atya responded to the opinions and remarks made by two well‑known media personalities, Kulcsár Edina and Csuti, about a third media personality. The post employed obscene, coarse language, characterising the two media personalities as “worthless media vermin” and using the obscene term “fuckable” (denoting an object of base sexual gratification). The blog also characterized the activities of these two media personalities as being aimed at “systematic plundering and media prostitution of children”. The blogger has a significant social media following, which is particularly popular on social media

The two media personalities mentioned in the blog filed a complaint against the blogger (as private prosecutors). The Court of Central Districts of Pest acting as court of first instance found the blogger guilty of libel and placed them on probation for one year. The Court acknowledged that the advent of social media has widened the ambit of who may be regarded as a public figure, yet it ultimately determined that, although the media personalities routinely post images on their personal profiles, they do not engage in public debates of general societal concern and so, for the purposes of the present proceedings, they cannot be classified as public figures. It added that the unjustified use of obscene and abusive language by the blogger violated the privacy and human dignity of the media personalities.

The blogger filed an appeal to the Metropolitan Court of Budapest, which, in its final judgment, upheld the assessment of the first instance court and the sanction. In assessing the question of public‐figure status, the Metropolitan Court accepted the first instance court’s view and observed that, when matters of public interest are debated, evaluating a public figure’s duty to tolerate certain expressions – and so the unlawfulness of those expressions – sometimes requires a careful balancing exercise grounded in fundamental rights considerations. In its balancing exercise, the Metropolitan Court took the view that particular passages of the blog infringed the media personalities in their personal dignity, while other passages offended them in their capacity as parents.

The blogger lodged a constitutional complaint with the Constitutional Court, requesting that the Court declare the decision of the Metropolitan Court of Budapest incompatible with the Fundamental Law and annul it.

Decision Overview

The Constitutional Court delivered a judgment to which four judges gave concurring opinions and one member gave a dissenting opinion. The central issue for the Court’s determination was whether the blogger Tibi Atya’s statements were protected expression or liable for a conviction of libel.

The Court referred to its earlier pertinent rulings in Constitutional Court decisions 7/2014 (III. 7), 13/2014 (IV. 18) and 3145/2018 (V. 7), and addressed whether the final judgment had, in faithfully applying the relevant constitutional principles, correctly assessed the nexus between the blogger’s expressions and matters of public concern. It noted that the obscene epithets “worthless media vermin” and “fuckable” are “in no way connected with public affairs or speech made in relation to public affairs” and that although the blogger “framed as a question of public affairs whether featuring children on social media platforms could be regarded as ethical” there had been no debate on this issue between the blogger and the media personalities. The Court found that the Metropolitan Court of Budapest, having determined that the expression were “gratuitous and unrelated to any public debate,” was “constitutionally justified” in holding that the statements “are not entitled to the heightened protection afforded by freedom of expression in the free discussion of public matters”. [para. 26] However, the Court did note that even if the blogger’s statements had been related to issues of public affairs, this did not mean that the media practitioners would have had to tolerate the use of expressions that were offensive to their human dignity.

The Court examined the constitutionality of the Metropolitan Court’s reasoning that formed the basis of the blogger’s conviction, namely its finding that “the chosen coarse and obscene mode of expression amounted to utterances that degraded the private prosecutors in their capacity as human beings, thereby violating their human dignity and honour”. [para. 28] Here again the Court reviewed its prior jurisprudence on the permissible limitation of freedom of expression insofar as it must respect the right to human dignity. Invoking Article IX(4) of the Fundamental Law and its own jurisprudence, the Court held that the limit to freedom of expression is the respect for the human dignity of others. It explained that freedom of expression does not extend protection to gratuitous statements that lie beyond the scope of public debate – particularly those concerning private or family life whose sole purpose is to humiliate, to deploy hurtful or offensive language, or to inflict other injury – and it does not shield opinions voiced in the forum of public discourse when their substance violates the inalienable core of human dignity, manifesting as an overt and serious denigration of a person’s status. The Court noted that, by criminalizing libel, the legislature sought to convey that “the impairment of one’s honour violates human dignity, and that the exercise of the right to freedom of expression may not impair the honour of others. The courts must recognize and consider the fundamental rights implications within the framework established by the statutory definition of libel”. [para. 51]

The Court had to rule on the question whether the blogger’s expressions were capable of violating the inalienable core of human dignity; if so, the expression was not constitutionally protected. In agreement with the lower courts’ findings, the Court held that the final judgment had duly expressed the “criteria of review developed in Constitutional Court jurisprudence as constitutional-law considerations” and rightly concluded that the expressions “worthless media vermin” and the obscene term denoting an object of base sexual gratification (“fuckable”) – as exceptionally offensive opinions amounting to a verbal desecration of the mother concerned in the case – violated the media personalities’]human dignity, honour, and reputation. [paras. 55–57]

The Court considered both the mass‐communication medium employed and the blogger’s intent and regarded as a “material circumstance that the expressions at issue were not uttered in the heat of the moment but had been composed in writing and subsequently transmitted (posted) by the [blogger].” [para. 62] It noted that this “is only possible through explicit, direct intentional acts, not unintentional. Therefore the [blogger] considered what he did, he intended to insult, hurt and humiliate the [media personalities], which also falls outside the scope of the protection of the fundamental right to freedom of expression.” [para. 62]

Accordingly, the Court found that the Metropolitan Court of Budapest reached a constitutionally correct decision, correctly recognized and weighed the fundamental rights context, and therefore rejected the constitutional complaint seeking to establish the unconstitutionality of the final judgment and its annulment.

In her concurring opinion, Judge Ágnes Czine drew attention to the media personalities’ function as influencers – an aspect that, in her view, the panel did not sufficiently emphasize in its ruling. She said that “it can be clearly established that the [media personalities] are widely known personalities (influencers) in public life, who influence and shape public life. And this role of theirs is undoubtedly based on their own voluntary choice. For these reasons, they should be considered public figures.” [paras. 86-87] She maintained that – irrespective of the foregoing considerations – the violation of human dignity can indeed be established

In her concurring opinion, Judge Ildikó Hörcherné dr. Marosi departed from the majority with respect to both the media personalities’ designation as public figures and the public‑sphere dimensions of the blogger’s exercise of free expression. She emphasized that “the vulnerability of children in relation to social media use, as well as the question of parents’ featuring of their children, lies at the heart of both scholarly research and public debate” which created an ongoing “societal debate.” [para. 95] She considered this a matter of public discourse. She noted that one of the media personalities “is a media personality – an exceptional public figure – who maintains a presence on social media with a following of several hundred thousand, regularly features her children on those platforms by her own choice, and wields substantial opinion‑forming influence; this influencer is therefore able to utilise mass‑communication tools more broadly and effectively than the average individual in responding to any potential personal attacks” which, in her view, calls into question the propriety of treating this influencer as a private person. [para. [99] Judge Ildikó Hörcherné dr. Marosi stated that the Court could have dismissed the constitutional complaint on the basis of these arguments. She regarded the phrase “the systematic exploitation and media prostitution of children” as offensive criticism but deemed it a permissible form of opinion. [para. 102]

In his dissenting opinion Judge Balázs Schanda stated that “the Court failed to recognize the [media personalities’] status as a public figure and the public character of the debate, and this circumstance alone would have warranted annulment of the decision.” [para. 165] Here he aligned with the constitutional arguments of the two concurring opinions. He would have found that the basis for the annulment of the final judgment was not the fact that the blogger’s expressions fall within the scope of freedom of expression, and that “the Court – having duly weighed the [media personalities’] public‑figure status and the public nature of the debate – may nonetheless conclude that a given mode of expression reaches the threshold of punishability, since even non-gratuitous evaluations of public figures connected to public debate cannot be boundless.” [para. 169] He stated that “without proper consideration and weighing of these aspects, the Court’s decision is necessarily contrary to the Fundamental Law.” [para. 169]