Hungary's Media Authority: Data Disclosure

September 7, 2012

(This is an excerpt from the report "Hungarian Media Laws in Europe: An Assessment of the Consistency of Hungary’s Media Laws with European Practices and Norms")

The Hungarian Media Authority has the right to request an unlimited range of data and information from media outlets, including corporate secrets and information protected by law, even after mandatory registration. Failure to comply with the Authority’s data requests can result in refusal of registration, fines, deletion from the register, and exemption from future tender offers. Free-press advocates and media experts warn these measures enable the Media Authority to exert undue and continuous pressure on the media and threaten press freedom. Hungarian officials say the system allows the Media Authority to exercise its regulatory tasks while still protecting media freedom. The Government also states these powers are in keeping with European community standards, as exemplified by similar data-disclosure policies granted to media authorities in a number of EU-member states.

The Media Act requires all media in Hungary, including the print and online press, to register with the Media Authority.1 For “press products,” on-demand and ancillary media services, publishers must register within 60 days of commencing their service or activity.2 The data required for registration differs by media sector, but generally includes names of top officers, basic corporate information, as well as type of media service. The Authority can refuse registration to media service providers and publishers of press products for failing to provide specified data or registration fees, or for violating conflict-of-interest rules or anti-concentration regulations.2 In the case a media outlet fails to notify the Media Authority of a change in registration data within 15 days, the Authority may impose a fine of up to HUF 200 million (EUR 722,000) for media service providers with “significant influence,”3 HUF 50 million (EUR 180,000) for other linear media service providers,4 and HUF 1 million (EUR 3,600) for publishers of press products,5 in accordance with the gravity of the violation as specified by the principles of proportionality as detailed in Article 185(2) of the Media Act.6 It can delete a media service or press product from the register for reasons enumerated in the Media Act,7 including, in the case of linear media, for a “repeated and serious violation” of any of the “rules on media administration.”8 Names and contact information of media service providers and press products are publicly available on the Media Authority’s website.9

The Media Authority can also request on a temporary or continuous basis “any and all” data from media outlets it considers “indispensable” to perform its regulatory duties, including in exceptional cases data protected by law.10 The Authority’s regulatory duties include monitoring compliance with provisions in the media laws, as well as with all public contracts with the Authority. The law also grants the Media Authority the power to “execute remote data reporting from an audit system installed on-site, attached to a (sic) official register or embedded in process, under its regulatory decision.”11 Failure to comply with the Authority’s data requests can result in a fine between HUF 50,000 (EUR 180) and HUF 50 million (EUR 180,000).12 Clients may appeal the Authority’s requests and decisions in the Budapest Metropolitan administrative court. The petition does not automatically suspend the enforcement of the decision.13 No appeal can be lodged against the ruling of the Budapest Metropolitan Court.14

When “establishing the facts of the case” during an investigation into a violation of the media laws, the Authority has the right to “view, examine and make duplicates and extracts of any and all instruments, deeds and documents containing data related to the media service, publication of a press product or media service distribution, even if containing secrets protected by law.”15 A witness can also be required to provide information on trade secrets “even if s(he) was not granted exemption from the obligation of confidentiality from the client.”16 The Authority also has the right to oblige the client, and in justified cases actors other than the client,17 to furnish data, and can impose procedural fines of up to HUF 25 million (EUR 90,252) for refusing to comply with these requests.18 For repeated offenses, the Media Authority may also fine senior officers of the breaching entity a maximum of HUF 3,000,000 (EUR 10,830) for hindering the proceedings or for non or improper fulfilment of the obligation to furnish data.19

The Media Council is also permitted to request data from media outlets in the course of its regulatory activities as well as during the course of infringement proceedings. As part of its duties in ensuring compliance with anti-concentration rules and regulating media service providers with “significant influence,” for instance, the Media Council may order media service providers to provide data and information.20 In cases of non- or improper provision of data, the Council can impose procedural fines between HUF 50,000 (EUR 180) and HUF 50 million (EUR 180,000) on the breaching entity, and between HUF 50,000 (EUR 180) and HUF 3,000,000 (EUR 7,220) on senior officers of the media outlet, for repeated infringements.21

In addition, the Media and Communications Commissioner may also request any data and information, including trade secrets, from any media outlet when investigating activities deemed to cause “harm” to the interests of media consumers.22 If the outlet fails to comply, the Commissioner can alert the Media Authority, which can require the data to be produced.23 Failure to comply with the Media Authority’s requests can result in fines between HUF 50,000 (EUR 180) and HUF 50 million (EUR 180,000), based on the media outlet’s previous year’s revenue and on whether the offense was repeated.24 Appeals can be made against these decisions following procedures detailed above, with regards to Articles 163 to 165 in the Media Act (see information on the Media Commissioner in Chapter 5.2 of this report).

The Media Act also grants individuals participating in the administration of a case and employed by the Authority “unlimited powers to familiarize themselves with secrets protected by law.”25 The law contains a number of provisions regarding the handling of confidential data and allows a client to specify certain data as “restricted” and to be kept from the public record.26 Data deemed as “restricted” is accessible to the keeper of minutes, the president of the Media Authority, members of the Media Council, the competent public prosecutor, and in case of judicial review, the acting judge, as well as other “administrative authorities or government entities,” as deemed appropriate by the Authority.27 The law requires the Media Authority to ensure such “restricted” data is protected; the Authority can however lift the “restricted” designation in justified cases, such as the proper enforcement of the law.28

INTERNATIONAL CRITICISM

Media experts have challenged the new registration requirements for print and online media as a “preemptive restraint” on the press, which violates European norms. According to the Council of Europe’s Commissioner for Human Rights, Hungary’s new registration requirements for print and online press do not comply with Article 10(1) of the European Convention on Human Rights, which “recognises that states may require the licensing of audio-visual broadcasters, as well as television and cinema enterprises. However, nowhere in the Convention is provision made for the mandatory registration of the printed press.”29

According to a legal review conducted for the OSCE, “[t]he obligation requiring all media – broadcast, print and online – to be registered with the media authority is excessive.”30 This report concludes that “[i]nternational practice also shows that registration is normally only required in societies where the media is not really free. Especially if the body that handles the registration is political or perceived to be, it may have a chilling effect on free expression and plurality.”31

Opponents have also raised concerns over measures in the law granting the Media Authority unlimited powers to require any information it deems necessary in the course of the Authority’s regulatory inspections and infringement procedures.32 Critics warn this gives the Authority far-reaching investigatory powers, and that the law provides inadequate legal mechanisms for appealing these requests. According to one legal review, the law grants the Authority “oversized” investigatory powers by allowing officials to request an unspecified range of data from media outlets as well as “any other person or organization.”33

In addition, the provision granting the Media Authority the power to gather data “remotely from a supervision system installed on the business’s premises or built in the business’s procedures” is vague, according to this analysis, as it is unknown what this system is or how such a system would be installed.34 According to this study, the provision allowing the Media Council to administer procedural fines on media outlets and senior officers or any participants in the procedure could also allow the Council to punish anyone who “exhibits behavior that may potentially hinder or delay the procedure,”35 as “the behavior does not need to be intentional, or result in the actual delaying of the procedure – only that it may potentially hinder it.”36

HUNGARIAN GOVERNMENT'S RESPONSE

The Hungarian Government states that the Media Act’s rules on data disclosure are strictly defined in law in order to prevent unnecessary intrusions on the media while also ensuring that authorities can perform their regulatory duties.37 “Authorities may only launch and conduct authority procedure in the interest of fulfilling its tasks stated in the contextlegislation and according to the procedural code defined therein,” according to the Hungarian Government’s December 2010 statement. It continues: “[t]he provision of interlinked conditions of the market, business, society, public service and human rights and the operation of the media system is a key task of the state, whereby appropriate legal enforcement is indispensable. However, any state intervention into the media system and exploration of facts is severely restricted by the constitutional principle and guarantees of the freedom to express opinions.”38

According to the Government, the “legality of the registry and of ordering data disclosure, and the protection of trade secrets are ensured by the execution of the authority’s procedures according to the rules on administrative procedures, in the context of which judicial review (legal remedy) is ensured in all cases.”39 The Government states that the laws were specifically designed to safeguard media freedom, in line with European standards. “In order to avoid the criticism alleging media intervention and censorship, the proposed media act makes a reference to the proceedings set forth in the Public Supervisory Procedures Act, representing a system of basic rules and tools accepted for all sectors and are also in line with the principles of ‘fair proceedings’ pertaining to authority procedure of the European Community.”40

1 Under Article 41(4)(a) of the Media Act, the media required to register are: linear audiovisual media services, linear radio media services, audiovisual media services which obtained its services via tendering, on-demand audiovisual media services, on-demand radio media services, ancillary media services, printed press products, online press products and news portals. Article 41(2) of the Media Act specifies that for press products, ancillary media services, and on-demand media operating in Hungary registration is not a precondition to commence operations but these media must register with the Media Authority within 60 days of the commencement of their operations, available at: http://nmhh.hu/dokumentum.php?cid=26536. 2 Conditions for refusing registration are provided in Article 42(6) of the Media Act. Article 43 defines conflict-of-interest rules; Article 68 outlines anti-concentration regulations, http://nmhh.hu/dokumentum.php?cid=26536. Per Article 42(9) and 42(10) of the Media Act, which states: “The Office may impose a fine according to Article 187(3)(ba) or (bb) on the media service provider in case of late or non-performance of the notification on such changes.” Available at: http://nmhh.hu/dokumentum.php?cid=26536. 4 Article 187(bb) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 5 Article 46(8)(a) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 6 Article 185(2) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 7 Article 42(7) of the Media Act for linear media services; Article 46(6) of the Media Act for press products; Article 45(5) of the Media Act for on-demand media, available at: http://nmhh.hu/dokumentum.php?cid=26536. 8 Article 42(7)(f) of the Media Act: “The Office shall delete the linear media service from the register ... if the Media Council ordered the application of this legal consequence with regard to the provisions of Articles 185 to 187,” available at: http://nmhh.hu/dokumentum.php?cid=26536. 9 Article 41(6) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 10 Article 175(1) and Article 175(3) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 11 Article 175(4) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 12 Article 175(8) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 13 However, according to Article 175(5), “The submission of the application for non-contentious proceedings shall have a suspensive effect on the enforcement of the decision,” available at:http://nmhh.hu/dokumentum.php?cid=26536. 14 Article 175(5) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 15 Article 155(2) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 16 Article 155(7) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 17 Article 155(4) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 18 Article 155(5) of the Media Act; procedural fines are specified in Article 156, available at: http://nmhh.hu/dokumentum.php?cid=26536. 19 Article 156(4) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 20 Article 70(2) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 21 Article 175(8) and 70(3) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 22 Article 142(1) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 23 Article 142(2) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 24 Article 142(2), in reference to Article 175(8), of the Media Act. A legal remedy lies against this decision per Articles 163–165 of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 25 Article 153(1) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 26 Article 153 of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 27 Article 153(4) and (5) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 28 Article 153(7) of the Media Act, Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 29 See “Opinion of the Commissioner for Human Rights on Hungary’s media legislation in light of Council of Europe standards on freedom of the media, Strasbourg, 25 February 2011, CommDH(2011)10, https://wcd.coe.int/wcd/ViewDoc.jsp?id=1751289. 30 “Analysis of The Hungarian Media Legislation,” Prepared Bykatrin Nyman-Metcalf, Professor And Chair Of Law And Technology, Tallinn University Of Technology, Commissioned By The Office Of The OSCE Representative On Freedom Of The Media 28 February 2011, http://www.osce.org/fom/75990. 31 “Analysis of The Hungarian Media Legislation,” Prepared Bykatrin Nyman-Metcalf, Professor And Chair Of Law And Technology, Tallinn University Of Technology, Commissioned By The Office Of The OSCE Representative On Freedom Of The Media 28 February 2011, http://www.osce.org/fom/75990. 32 According to Article 153(1) of the Media Act, available at: http://nmhh.hu/dokumentum.php?cid=26536. 33 “The New Hungarian Media Law Substantially Curtails Press Freedom” by Dr. Judit Bayer, prepared for the South East European Network for Professionalization of Media (SEENPM) with the support of the International Freedom of Expression eXchange (IFEX), (emphasis in original), http://www.seemo.org/hungary/files/Bayer_Media%20Law_IFEX_ENfinal220311.pdf. 34 “The New Hungarian Media Law Substantially Curtails Press Freedom” by Dr. Judit Bayer, prepared for the South East European Network for Professionalization of Media (SEENPM), with the support IFEX, (emphasis in original), http://www.seemo.org/hungary/files/Bayer_Media%20Law_IFEX_ENfinal220311.pdf. 35 “The New Hungarian Media Law Substantially Curtails Press Freedom” by Dr. Judit Bayer, prepared for the South East European Network for Professionalization of Media (SEENPM) ), with the support IFEX, http://www.seemo.org/hungary/files/Bayer_Media%20Law_IFEX_ENfinal220311.pdf. 36 “The New Hungarian Media Law Substantially Curtails Press Freedom” by Dr. Judit Bayer, prepared for the South East European Network for Professionalization of Media (SEENPM) with the support of IFEX, http://www.seemo.org/hungary/files/Bayer_Media%20Law_IFEX_ENfinal220311.pdf. 37 See “Criticism 20,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 38 See “Criticism 20,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 39 See “Criticism 20,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n... 40 See “Criticism 20,” in “Criticisms and answers formulated on the subject of the proposed media act examined in a European context,” Ministry of Public Administration and Justice, December 20, 2010, available at: http://www.kormany.hu/en/ministry-of-public-administration-and-justice/n...

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