Márta Varga: What prompted you to found CivilMedia? Is the timing relevant to this decision?

Dr.  Bea Bodrogi

Dr. Bea Bodrogi

Bea Bodrogi: Hungary’s new Media Constitution and Media Law introduced an approach into media regulation which was so alien to the system and so unusual that it drew strong reactions and alarm from human rights experts. An example of this is the unjustifiably broad scope of powers of the National Media and Infocommunications Authority (hereinafter: the Authority) over Hungary’s media, which could easily make the work of political, economic and editorial journalists impossible, or compel them to practice self-censorship. Although the events of the past year have not fully justified our fears, and despite the fact that the Constitutional Court has also said “no” to some of the provisions of the new law (such as the obligation of journalists to reveal their sources), the supervisory role of civil society is still definitely needed and will continue to be needed in the future as well.

MV: The Media Law has been in force for one year now.Its more stringent requirements and broader range of control have not yet had any tangible effects.No fines of tens or hundreds of millions of forints (about 35,000 or 350,000 EUR) have been imposed.So what changes has the Media Law brought?

Dr. József Kárpáti

Dr. József Kárpáti

József Kárpáti: It’s hard to answer that. Essentially, we can say that a highly-centralized information super-ministry has been created to supervise print and broadcast media, supposedly legally independent, but whose leaders are chosen through a personality-based process that appoints them for terms that overarch parliamentary cycles. This system – or this mechanism – inevitably calls to mind Alan Parker’s film Brazil: essentially, that power itself or the mere possibility of sanctions has an effect even if sanctions are not directly applied. Once we can analyze a few years of its operation, then we will be able to form a substantial opinion as to what exactly this “futuristic” institution means for the media.

In early March, in response to the objections of the European Commission, the Media Law was amended, and the Constitutional Court has recently also struck down some of the Law’s passages as unconstitutional. What do you think of the disputed provisions? Do you think that there are still some objectionable parts in it?

JK: The problem with the statement of the European Commission was the same as with the ruling of the Constitutional Court – objections were raised against certain provisions, but the whole mechanism remains in force. Because of the narrow scope of the EU’s powers and its divided political interests, at first it only criticized the law in general. In the end, they only raised an objection against three specific points, which Hungary easily remedied. Currently, the same scenario between the EU and our country is being played out – only now other laws are on the table. Given the Constitutional Court’s actual jurisdiction and powers, it was only able to repeal a few passages – albeit important ones, but ones that did not affect the essence of the media regulation – but this has only contributed to maintaining the system. The extremely broad, centralized, and statist regulatory framework remained untouched.

What are the main aspects of your work?
BB: Providing legal assistance to journalists and persons shaping public opinion, primarily by defending strategic cases, monitoring balanced coverage in the media with respect to especially vulnerable and stereotyped social groups, and launching proceedings for judicial review by the Media Authority where appropriate. Later on, we also plan to analyze all of this and to organize various types of trainings if necessary. But for now, we want to thoroughly explore the first two issues.

What do you mean by “strategic” legal defence?Could you perhaps give an example?
JK: Yes, this is the million-dollar question. The essence of an organization can perhaps best be really grasped if we see what kind of cases it takes on or wants to represent in the future. If its aims are clear and if it is consistent in the principles it applies to select and represent cases, then it is proceeding strategically. Our organization primarily wants to grant legal assistance to those journalists or public figures who, because of their opinions expressed through democratic means, are facing threats of legal proceedings by the state or by commercial lobbies. Mainly, I am thinking of investigative journalists, or any person or journalist who, because of the opinions they have expressed, are being threatened with lawsuits for libel or even criminal proceedings as a way of preventing them for continuing to voice these opinions.

So far, there have been claims brought against journalists for defamation or libel, and in these cases they have generally been represented before the courts by the in-house counsel of their organizations.Where does CM come in?
BB: Going back to the notion of taking on the defence of strategic cases, another of our goals is to represent certain cases in order to draw attention to the fact that the rulings of Hungarian courts in freedom of expression and freedom of the press cases are not uniform and often do not follow the jurisprudence of the European Court of Human Rights. Thus, our role is not to take over the work of in-house attorneys at media organizations, but to in some way contribute to cases that relate to freedom of expression and freedom of the press and gain awareness of these cases. What this means in practice is that we independently offer legal representation to journalists affected by a given case, that we contribute to a pending case, or draft an amicus brief.

What is an “amicus brief”?
BB: In Hungary, the concept of an amicus curiae brief is still relatively unfamiliar. Basically, it is a document submitted to the court that expresses a coherent set of values or legal principles, and that is not written by a party to the proceedings nor by a party directly affected, but by a person or an organization who has some interest in ensuring that a certain substantiated expert opinion also be taken into account in the proceedings. The aim is to, before the court reaches a decision, familiarize it with a new perspective on not only the case at hand but also on the topic as a whole. The court itself decides what to do with the amicus brief – whether to take it into consideration when making its ruling or to refuse to admit it as evidence.

Why has no such practice emerged in Hungary?
BB: This is primarily a type of motion or submission to a court that comes from the Anglo-American common law. In a way, continental (civil) law offers less opportunities for independent special-interest groups to contribute their opinion to a proceeding. A Hungarian judge doesn’t really know what to do with a party who has no defined role in procedural law and who just starts “commenting” on the case. This is not only because our post-socialist justice system is inflexible, but because the continental legal system simply operates on different principles than the common law, which is built up on precedent. Despite this, amicus briefs have been drafted in Hungary too in certain cases where a court has had to rule on an issue of principle or of human rights.

To what extent is Hungarian news coverage balanced, and why are you monitoring content specifically in relation with three “protected groups”?
JK: In a society where prejudice and discrimination against vulnerable groups, it comes as no surprise that the media also contributes to building up these familiar moulds and stereotypes. According to the latest research, portrayal of Roma in the media as criminals hasn’t been this high since 1988. According to the latest results of a study by Gábor Bernáth and Vera Messing, (Gábor Bernáth – Vera Messing: Szélre tolvaKutatási zárójelentés a roma közösségek többségi médiaképéről [“Against the wind: final research report on the portrayal of Roma in mainstream media”], 2011) during the period which they surveyed, one newspaper article out of three portrayed Roma as criminal offenders in some form. Our experience has also shown that, besides Roma, the gay or LGBT communities have very often been the targets of attacks because of their minority status– the Gay Pride parades give more than enough evidence of this (translator’s note: Budapest Gay Pride parades have often been disrupted by right-wing protesters). As for anti-semitism, it is unfortunately a perennial part of Hungarian public opinion. Sometimes it dies down a bit, then raises up its voice again, especially when a scapegoat is needed. Over the course of the last few decades, very extreme positions have been taken against these three groups in Hungary, thus it seemed obvious that we should monitor coverage of these groups in the media. However, we must emphasize that our monitoring of coverage will only apply to broadcast media (TV and radio) programming, based on specific criteria. We will examine those reports and news programmes that cover social problems affecting the given groups.

How will you be able to catch cases of unbalanced reporting?

JK: It’s true that there are few news reports that are openly racist or marginalizing. Instead, some of them use certain suggestive images to evoke a certain emotional mood in the viewer, perhaps giving incomplete, one-sided information that shows only one aspect of reality. There is no surprise here, as this is the underlying principle in media: tabloid-style news items draw more viewers or readers. Conversely, contemporary media also has a heightened responsibility: if it portrays or reinforces stereotypes in accordance with the needs of consumers’ opinions, this can have lasting consequences even in the short term, as viewer reactions of “I knew it” and “there they go again” only serve to strengthen existing prejudices. The opportunity that the Media Law offers is that if something is broadcast that has factual errors, is not timely or is not objective – that is, coverage is not balanced – then a person representing the side of the story which was not covered may launch proceedings with the Media Authority for redress against the television or radio broadcaster. Although this was also possible under earlier legislation, no uniform practice has yet emerged which would push media content providers in the right direction. So the legal means are there, it’s just a question of putting substance into the institution.

Protecting freedom of speech while also speaking out in favour of balanced coverage could lead to some contradictions.Where do you draw the line between the two?
JK: The requirement of balanced coverage provides a framework for the right of society to adequate information, and for the obligation of the media content provider to uphold human rights and respect human dignity. Who expresses an opinion, when, how, and in front of how many people or to whom – all of this matters. The need for balanced coverage is most evident in news or public service programmes rather than in shows that are explicitly designed for the exchange of opinions. Shows that reach a lot of people have more significance than media products that are consumed by only a few. Thus, we will attempt to call news programmes with significant viewership to account for timeliness, factual accuracy and objectivity.

Let’s just stay with balanced coverage and see how this could work in practice.Would you compare the amount of time for which images or shown and/or sound clips are broadcast, do you compare the content or do you examine their effect? Or perhaps all of these, or something else?
JK: It is up to the Media Authority to decide whether any given programming meets the balanced coverage requirements. Factors that should be taken into account in reaching this decision are whether, in this programming, factual accuracy, timeliness, objectivity and pluralism are truly present. Accordingly, a mere examination of whether the various sides of the issue covered by a programme have been mentioned or how much time was devoted to each side will not necessarily provide appropriate guidelines to deciding this issue.