A legal opinion commissioned by the European Centre for Press and Media Freedom (ECPMF) finds that the Hungarian Government’s response to the COVID-19 pandemic fails to live up to domestic or European legal standards and entrenches the country’s attacks on independent media outlets, journalists and media workers.

In March 2020, the Hungarian Government proclaimed a State of Danger, passed a number of decrees and adopted a new bill; the Authorisation Act, in its response to the COVID-19 pandemic. The Authorisation Act gave the Government enhanced powers to rule by decree, enabling it to bring forward, amend or withdraw legislation and amend the Hungarian Criminal Code to expand the definition of the crime of “Scaremongering”. Due to the ruling party coalition’s two-thirds majority in Parliament, these changes were swiftly adopted and implemented. Recently, the Hungarian Government has stated its intention to repeal the State of Danger. However, it is unclear whether this repeal will cover all changes made and what mechanisms will be in place to identify and address the short- and long-term impact of these amendments on media freedom.

“The Hungarian Government’s response to the COVID-19 pandemic demonstrates their willingness to use any excuse to restrict and attack media freedom”, says Dr. Polyák Gábor, author of the legal opinion. “Without an independent Constitutional Court or any other adequate check on state power in Hungary, these actions that violate both Hungarian and European law can continue to demonise, isolate and threaten journalists and media workers. While the COVID-19 pandemic will come to an end, the pandemic of threats to media freedom looks set to continue in Hungary” 

The proposed repeal of these legislative changes should not close the door on dissecting how the Hungarian Government responds to independent media scrutiny, especially at a time where press and media freedom is already under threat. Since 2014, Hungary has fallen 25 places in the World Press Freedom Index, ranked 89^thout of 180 in 2020. In the same period there have been over 251 alerts uploaded to the Mapping Media Freedom platform. These range from restricting access to public funds, support and licences available for independent outlets, journalists and media workers; the demonising of critical reporting as “fake news” and the limiting of access to ministers, representatives and health professionals. The Government’s response to the pandemic has entrenched the fragile state of press and media freedom in Hungary. A joint press freedom mission to Hungary in December 2019 concluded that the country continues to dismantle media freedom and pluralism.

“The Hungarian government has long demonstrated that it will use its power to limit human rights, including freedom of media,” says ECPMF’s legal advisor, Flutura Kusari. “This legal opinion documents the latest attack on press freedom in Hungary that aims at controlling media and creating a chilling effect on journalists. We call on the European Commission to use its Rule of Law Mechanism to hold Hungary accountable”.

This legal opinion, authored by Dr. Polyák Gábor, Mertek Media Monitor (CMDS) highlights the changes brought forward by the Hungarian Government and a number of issues related to potential violations of Hungarian Basic Law. These include the ability to sidestep parliament, by not affording them the opportunity to approve or question any extension to decrees passed during the Special Legal Order, and using vague definitions found in pre-existing disaster management legislation to extend the Government’s powers during the pandemic. Further to this, amending the crime of scaremongering, while bypassing existing legislation that can target malicious communications, increases confusion about the laws that target free expression and reduces the space within which media outlets, journalists, media workers and civil society can express themselves free from the risk of state action.

After concluding the paper, two important developments took place in Hungary in relation to the special legal order and the crime of scaremongering.

On 16 June, the parliament passed the bill that abolished the Special Legal Order. At the same time, the parliament also passed the law on epidemiological preparedness. Under the new law, the government can order a health crisis on the recommendation of the Chief Medical Officer. During a health crisis, the government still has a very broad right to rule per decree. On 17 June, the government passed the order Nr. 282/2020. (VI. 17.), which eliminates the state of danger declared on 11 March 2020, starting from 18 June 2020. At the same time, the Order Nr. 283/2020. (VI. 17.) introduced the concept of epidemiological preparedness for the entire territory of Hungary from 18 June, which establishes enhanced powers for the government during a health crisis. The government reviews the need to maintain epidemiological preparedness every 3 months. The regulation will remain in force until 18 December 2020 at the latest, but can be extended by the government at any time.

On 17 June 2020, the Hungarian Constitutional Court ruled that the new criminal law related to “scaremongering” is constitutional. An individual filed a complaint to the Constitutional Court, stating that the new legislation restricts the right to freedom of expression and provides a completely unpredictable, wide scope for arbitrary application of law.

In its decision, the Constitutional Court held that the dissemination of “scaremongering” under the disputed regulation applies to a narrow range of communications. For example, it prohibits the communication to the general public of knowingly false or distorted facts, but only if it is used in a Special Legal Order to obstruct the defence against the pandemic. However, the prohibition only applies to knowingly untrue or distorted statements of fact, not to critical opinions. The Court stated that the regulation also does not cover communications where the perpetrator was unaware that their communication contained false information.

At the same time, the Constitutional Court considered it necessary in the interests of legal certainty to confirm that the crime of “scaremongering” is in accordance with laws and standards related to freedom of expression. This so-called constitutional requirement gives a binding interpretation for all law enforcement bodies. The offense covers only the communication of facts, which the perpetrator must have known at the time the act was committed is false or distorted and which, in the context of the Special Legal Order, is capable of endangering or derailing the defence. It is not a criminal offence to communicate facts which were disputed at the time of the offence and which later proved to be false.

Overall, the Constitutional Court’s decision attempted to both reassert and amend the crime of “scaremongering”. On the one hand, it stated that the regulation is constitutional, however, it also acknowledged and tried to address the stated issues related to the unpredictability of the regulation that breeds uncertainty for journalists, media workers and civil society in Hungary.