Interview by Roberta Maddalena, ICRP |

Nowadays, in the declarations of Human Rights of both European Union and UN there articles regarding freedom of expression and of press. According to you, what does freedom of press mean and is this right respected in Europe?

The question is indeed complicated; it is very difficult to give an answer in a few sentences and it would be much easier to do so in a couple hundred pages. Anyhow, if we want to provide a brief answer as to what freedom of press is, we must say that it is one of the most important political liberties. Freedom of the press protects the individual (the journalist), not for themselves, but rather as the representative of a constitutionally recognised institution (the media). Freedom of the press covers all media (television, radio, printed and online press), the content of which may only be restricted to a very limited degree; their opportunity to enter the market and their acceptable behaviour in the market are ensured and protected to a great extent. Respect for the freedom of press is a part of European culture, moreover, of European identity, therefore it is not only a matter of law, and we should not look at it as a purely legal question either.

 

What do you think is the largest threat to freedom of expression in the 21st century?

As a result of hundreds of years of struggle, in most European countries the greatest traditional enemy of freedom of the press, the government, has been put on a leash. Since then, the government may appear primarily as the defender of the freedom of the press by determining the framework of the legal system that protects and ensures this fundamental right as well. It is however, now a commonplace that it is not only the government that has a toolkit that is capable of restricting the freedom of the press and the reducing transparency. For instance, in the field of online communication, not only those services that make content have relevance, but also those that transmit such content to the public. Besides others, internet service providers, search engines and social media (together: intermediaries) are unavoidable participants in the system and are individually able to significantly influence the public sphere, make certain content inaccessible or very hard to access, and get certain other content to a great mass of people. Besides the fact that, in many fields, intermediaries are stretching the boundaries of the existing legal system (data protection, protection of privacy, defamation or hate speech), they have also become significant actors in the democratic public sphere.

Meanwhile, their operation is not restricted by the guarantees that bind the government in relation to the general public and the pluralist marketplace of ideas (e.g. the prohibition of censorship, or active measures to transmit diverse opinions to the public). For instance, Google and Facebook have implemented their own separate “legal systems” that are quicker and more efficient than the legal system of any state; nevertheless, the decisions adopted  by them are neither transparent nor subject to any procedural guarantee of the rule of law. These service providers can determine, or at least make a significant impact on the political agenda, formulate public debates in line with the interests of their shareholders and influence procedures for access to different opinions. Furthermore, these service providers have a certain natural monopoly; they are unavoidable during our everyday use of the internet, and consequentially they squeeze out advertising revenues from media enterprises and become influential players in the media market without producing any kind of content.

How large internet intermediaries can be forced to respect the guarantees we expect from the government as regards the maintenance of a diverse and plural market of opinions and how to ensure that individuals wishing to express their opinion may exercise a right to remedy against their decisions is a massive issue for media regulation – and will be so in the following decades as far as it is foreseeable.

 

How has the freedom of speech, and its legislation, in Hungary changed since 1989?

1989, the year of the change in regime, is also the date when freedom of expression was reborn in Hungary. The need for freedom of expression is deeply rooted in Hungarian historical tradition; it was always one of the most important demands in the political fights for the country’s independence. The symbolic achievement of freedom of expression was always an overture to gaining liberty – albeit fragmented and short-term – from time to time. We can recall the occupation of Landerer’s printing house (the largest in the capital of the country that time) in 1848, the attack on the radio building in 1956 and the demonstrations in front of the headquarters of the state television in 1989. The quarter century that has passed since the democratic transition started in 1989 is the longest period in Hungarian history over which freedom of expression has enjoyed constitutional recognition. From a historical perspective, this is not a long period and is not enough to catch up on a backlog of many decades, especially in an era when the foundations of the media are being questioned and change with incredible speed all over the world. In the above-mentioned period we have made significant progress in the field of developing the constitutional basis and details of the freedom of press; however, there are still many issues to discuss and develop further. Freedom has been achieved, at least as far as it is achievable by the means of the law. Today there is very little chance that a citizen intending to express their opinion would be hurt by the punishing hand of the legal system. Actually there are many forums available for publishing one’s opinion. There are no miracles, though. We must take care of our freedom of expression, nurture it, look after it and use it bravely, so that we can keep it. The last quarter-century could provide this much: not meagre, but, in many respects, not enough either.

 

In one of your papers, you analyse the doctrine of hate of speech in Hungary with regard to ECHR’s jurisprudence too. According to you, is possible to identify a clear boundary between freedom of speech and hate speech? If so, when condemning hate speech can limit individual’s right of freedom of speech and, on the contrary, when can censorship protect human dignity?

Freedom of expression is given particular protection by the legal system, but even so it is not automatically given priority when it collides with other fundamental rights. The level of protection does not correspond to the damage resulting from the expression of one’s opinion; in other words, freedom of expression may even prevail in certain cases if it causes damage. For instance, the chance of an open debate on public matters justifies the protection of hateful opinions. Expressions and opinions qualify as ‘hate speech’ if they express hatred based upon race, ethnicity, religion, gender or sex, xenophobia, anti-Semitism or another kind of hatred deriving from intolerance of a certain social group. We would be mistaken to think that all expressions of hatred can be restricted automatically. On the contrary, the states – in different ways – prohibit “offending” a community or the “incitement”, “provocation” or “instigation to hatred” against such community in their legislation, and not the mere expression of hatred. Between incitement to violence, which is unequivocally outside of the protection of freedom of expression, and clearly offensive, appalling opinions that cause no further harm, European states enjoy a wide margin of appreciation with regard to sanctioning or liberalising hate speech.

 

Regarding the Hungarian hate speech laws, which are the positive and the negative features of the doctrine and is it in line with the jurisprudence of the European Court of Human rights?

The direct and obvious threat induced by hate speech that is applied by the U.S. doctrine is not a definitive element of ‘European’ criteria, i.e. it is not a precondition for the restriction of freedom of expression that the danger of violence against the offended community should be imminent. Oddly, the exception happens to be Hungary, at least with regard to the application of criminal law, as Hungarian legislation considers that only expressions that lead to the clear and present danger of violence may be subject to criminal sanctions. The European Court of Human Rights in Strasbourg has not formulated such a detailed regime for hate speech as it has for example in defamation cases. Instead, the Court mainly leaves this issue to the discretion of the states and lays down only a few general principles. Where the Strasbourg Court does attempt to set forth a uniform European standard, it mainly favours freedom of expression. The current Hungarian approach therefore is completely in line with the standards applied by Strasbourg.

 

Although sometimes we use the expressions freedom of speech and freedom of press as synonymous, they are now considered as two fundamental rights (not clearly separated). How is it possible that the individual’s freedom of expressing him- or herself is not identical with the freedom of the press?

European constitutions and the respective legal systems intend to separate freedom of expression from freedom of press. The media are separately regulated by all European states; even the European Union created separate legislation for audiovisual media services. In simple terms, one might say that freedom of expression is a right of individuals and not of institutions (media enterprises), and the ownership rights attached to media do not equate to freedom of expression. Article 10 of the European Convention on Human Rights on freedom of expression does not describe freedom of the press as a separate right; nevertheless, one can reach that conclusion indirectly based on the text and, furthermore, the case law of the Convention has been outlining the legal boundaries of the freedom of the press for decades. Article 10 paragraph 2 refers to these rights as ones “that carry duties and responsibilities”. According to the consistent case law of the European Court of Human Rights, it is the task – even more, the obligation – of the media to publish information of general interest and opinions attached to matters of general interest. In Hungary, the Constitutional Court contributed greatly to the formulation of the new, democratic definition of freedom of the press and after 1989 it intended to attribute a separate meaning to this term. Resolution 37/1992. (VI. 10.) AB of the Constitutional Court set forth, less than three years after the regime change, that “the press is not only the means of the free expression of opinions, but also of providing information, therefore it has a crucial role in the latter, which is a precondition of formulating an opinion.” If freedom of the press is considered a liberty with certain attributes then special rights and obligations derive from this recognition. As such, the distinction between freedom of expression and freedom of the press is not a theoretical matter. People working in the media industry obviously have freedom of expression as well; however, they can only exercise this right within the framework of the special regulations applicable to the media. On the other hand, they can also enjoy additional protection justified by the democratic functions of the media.

 

Speaking more specifically about media, to what extent can the market and the State influence the freedom of press?

In disputes relating to the freedom of the press, one can detect a clear division between the supporters of the free market and of government intervention. The advocates of the market believe that the market can ensure the best and most effective operation of the media by way of rules prepared for self-regulation and thereby it concurrently satisfies public and private interests. Borrowing the phrase of the U.S. philosopher Clinton Rossiter, this attitude is “the great train robbery of intellectual history”: the current devotees of laissez faire reinterpret the arguments of 19th century classical liberalism, repeat them enthusiastically and wish to defend fundamental values worthy of unconditional protection (freedom, individualism, opportunity, progress, etc.) against the government and surround them with strict guarantees. However, the operation of the media – which by origin belongs within the sphere of private autonomy and claims to represent several basic human rights (freedom of the press, freedom of property, freedom of enterprise, etc.) – is limited precisely in order to protect freedom in its initial sense. Although measures preventing monopolies, restrictions on content aimed at the protection of public interests and actions attempting to protect culture doubtlessly limit the media’s room for manoeuvre, they cannot be considered as “limits” of liberty: to the contrary, they serve to rectify the concept of freedom that is possibly distorted by the private sector. Those who do not welcome government intervention but rather consider it a necessity and the only possible solution, view the media as a fundamental institution of a nation or another community. According to this approach, the media can be used for so much more than any other service offered on the market: they can function as a network that promotes social cohesion, plays key role in facilitating community debate and provide a primary forum for disseminating national and universal culture.

 

Do you think that there is a strong legal mechanism to protect media’s freedom in Europe, such as that mentioned in the article 11 of EU Charter of Human Rights?

Freedom of expression is a cultural phenomenon. It has no uniform, universal definition, borders that apply everywhere, or substantial conditions, based on which it would be able to function anywhere. Even the expression indicating this right may vary from country to country. For instance, in the United States an almost romantic infatuation is attached to the First Amendment of the Constitution, which ensures freedom of expression.  In the U.S., individual freedoms, and freedom of expression in particular, have evolved to become a symbol: they represent the Americans’ love of freedom, vitality, stubbornness, self-reliance, strength, pride, autonomy and independence. Freedom of expression is a symbol in Europe as well, but with different content in each country: for example, in Hungary it stands for the independent, sovereign Magyar state, society, the nation that, in certain moments of history, gained its autonomy. It is only natural that certain solutions work in one country but are not completely appropriate in others. The legal status of freedom of expression does not only indicate the current state of the social and political culture; it also signals with great precision the path chosen by decision-makers for the whole of society. Apparently one can clearly observe the type of society to which a few chosen persons (be it the media itself, the Government, the Parliament, the Constitutional Court, or judges hearing free speech cases) wish to contribute.  How the boundaries of freedom of expression are set will therefore inevitably reveal the rank order of values preferred by the decision-making body: of freedom, dignity and equality, which value is considered more important, and what balance is struck between these values. This is why freedom of expression cannot be regulated in general at the level of the European Union. One can only approve the fact that the EU has not made any attempts to do so in the last decades, except for the schematic regulation of a few details of the audiovisual media’s regulation by way of directives.

 

In your work published in 2013, you defined freedom of speech as “the unreachable mirage”. May you explain the meaning of this expression and why do you believe that is it difficult (or even impossible) to reach it?

Rights are not only options to do something; exercising them implies responsibility as well. The traditional fields of freedom of expression are basically unrestricted in today’s Hungary; there are no strict legal limitations. One can publish the truth, serve the community, and the media’s room for manoeuvre is fairly large. Nevertheless, freedom of expression is not only and not primarily a legal issue. Media law, and in general legislation per se is unable to grasp genuine social processes and problems.

Media lawyers live the majority of their lives in a fictional, imaginary world. It is fiction if the legislation of the media is rooted in the concept that respect for the public interest – mandatory by law – may supersede the business interests of the media market’s players. It is also fiction if we believe that the majority of citizens are conscious and well-informed, that they make a large number of thorough decisions by considering arguments and counterarguments, and if we handle this concept of democratic public opinion as a point of reference and attempt to support it by legal means. It is fiction if we believe that, within a reasonable time, our journalists will be strong, independent and conscientious, capable to protect their independence from everybody (meaning, besides political influences, from business stakeholders and even from their own owner). It is fiction if we believe that the requirement of “balanced news coverage” set forth by law would actually make the news editing practices of those bound by the above rule genuinely balanced, objective, ethical and serving the public interest. It is fiction to expect that, by stipulating the rules of jurisdiction, the European media market would be able to keep alive the media markets of smaller states as well and keep the national cultural and social differences in mind in the course of applying the regulations. Nevertheless, the public good must be taken into account, even if the legislation can only promote it with fragmented success, as the alternative to this – which is total liberalisation – would eliminate even this partial achievement. Could we have any other purpose than to operate the public service media in a manner that supports independent decision-making by citizens, regardless of how many of them actually make use of their opportunity to do so? Should we not offer the chance of self-defence to journalists even if they are not willing to use it?  Should we not take steps against excessive economic power and the monopoly of opinions, even if such measures can be circumvented and even if we know that a great variety of market players does not automatically result in a great variety of content?  Should we not maintain the increasingly symbolic rule of balanced coverage to serve as a call for ethical behaviour?  Should we not be satisfied with the single European market that – in spite of its imperfections and the price we have to pay for it – still enables the free movement of media services and thereby contributes to the growing number of options the public may choose from? As history demonstrates, the ideal of freedom of expression that we long for has never been and never could have been fully realised.

Consequently, freedom of expression is an ideal, a mirage impossible to reach. Its primary objective is to enable the community to cooperate and concurrently the individual to be fulfilled within the community. The preconditions for this are such – a well-informed public, a political culture that tolerates, or what is more, even encourages opinions, a great number of educated people – that freedom of expression may never exist in its idealistic, perfect form.

How we can handle our existing freedom is a different question. Do we use it for what it is meant to be used for? When he was asked what the drafters of the Constitution had given to the American people, Benjamin Franklin replied “a republic, if you can keep it”. Keeping the republic is only possible if many can express their opinion towards many others in diverse public forums. For this to be effective, it is also necessary for us to learn to exercise the culture of freedom of expression and not only the right itself.

 

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Dr. András Koltay has been a lecturer at Pázmány Péter Catholic University Faculty of Law and Political Sciences in Budapest, Hungary since 2002. From 2012 he is an associate professor. He received LL.M. degree in public law at the University College London in 2006, and PhD degree in law at the Pázmány Péter Catholic University in 2008. He attended the human rights course of the International Institute of Human Rights in Strasbourg in 2003. His principal research has been concerned with freedom of speech, personality rights and media regulations, but he also deals with other constitutional questions. He is the author of more than 150 articles in Hungarian and in foreign languages, and three monographs on comparative freedom of speech (in English: Freedom of Speech – the Unreachable Mirage. Budapest, Wolters Kluwer, 2013). He was a speaker in more than 75 conferences in several countries. Since 2010 he has been a member of the Media Council, the authority which supervises the functioning of the media system.