Information Note on the Court’s case-law 239

April 2020

ATV Zrt v. Hungary - 61178/14

Judgment 28.4.2020 [Section IV]

Article 10

Article 10-1

Freedom of expression

TV company prohibited from describing political party as “far-right” on the basis of unforeseeable application of statutory ban on the communication of any “opinion” by a newsreader: violation

Facts - Section 12 of the Media Act prohibited the c ommunication of any “opinion” by a newsreader. The applicant company owned a television channel found to have infringed the Act by describing, in a news programme, the political party Jobbik as “far-right”. It was prohibited from repeating the statement. T he applicant company appealed unsuccessfully, arguing that the term “far-right” was widely used in relation to Jobbik , that it had a scientific basis in political and social science, and that it reflected Jobbik ’s position in Parliament.

Law - Article 10: The salient issue in the case was not whether section 12 of the Media Act was in principle sufficiently foreseeable, in particular in its use of the term “opinion”, but whether, when publishing the statement containing the term “far-right”, the applicant c ompany knew or ought to have known that that expression would represent an “opinion” in the circumstances.

The question whether the domestic courts’ approach could reasonably have been expected was closely related to the issue whether in a democratic socie ty it was necessary to ban the term “far-right” in a news programme in the circumstances, and in the light of the legitimate aim pursued by the restriction.

The notion of “opinion” in section 12 of the Media Act appeared to be very broad, covering all kin ds of adjectives. In view of the lack of precision in the legislation, the domestic courts were required to ensure that the contested provision concerned only expressions which were likely to upset balanced and impartial reporting on matters of public inte rest and which could arguably be restricted, and that it did not turn into a tool for the suppression of free speech, encompassing activities and ideas which were protected by Article 10.

Throughout the proceedings, the domestic courts had suggested differ ent elements of analysis to decide on the nature of the impugned term. The Government had not demonstrated the existence of a common practice either. That state of affairs cast doubt on whether the interpretation given by the higher-level domestic courts i n the applicant company’s case – namely, that a statement containing the term “far-right” constituted an opinion – could reasonably have been expected.

More importantly, there was no indication that the domestic courts had sought to consider, when assessing the nature of the impugned notion that the legislation was supposed to promote balanced news reporting. Although the Constitutional Court had referred to the public’s right to factual and unbiased information, in reaching its decision it had simply found that public opinion could be influenced by the use of an adjective, without demonstrating whether in the circumstances of the case the specific term in issue had been capable of upsetting the balanced presentation of a matter of public interest.

The Court found force in the applicant company’s more general argument before the domestic courts that political parties were frequently defined with adjectives (green party, conservative party, and so on) that merely referred to their political objectives and programmes and did not constitute an opinion or value judgment about them, capable of creating bias in the audience.

The applicant company had also relied on the factual circumstances of the case, namely that the disputed term had been expressed in connection with a demonstration triggered by an anti-Semitic comment by a Jobbik member. In those circumstances, the Court found that such factual elements were r elevant for the contention that the term “far-right” did not concern an assessment of someone’s conduct in terms of its morality, or a personal feeling of the speaker, but the position of a party within the political spectrum in general and in Parliament i n particular. However, the domestic courts had not considered the circumstances surrounding the information which formed the object of the reporting, but instead the Constitutional Court had held that the provisions of the Media Act did not require that an opinion had a factual basis, thus implicitly considering irrelevant any defence by the applicant company based on the veracity and factual accuracy of the term employed.

Having regard to the domestic courts’ divergent approaches to distinguishing facts from opinions, to the aim of the relevant provisions of the Media Act and to the circumstances of the case, the applicant company could not have foreseen that the term “far- right” would qualify as an opinion. Nor could it have foreseen that the prohibition of its use in a news programme would be necessary in order to protect unbiased reporting. Therefore, the restriction placed on the applicant company in its use of the impug ned term had been a disproportionate interference with its right to freedom of expression.

Conclusion: violation (unanimously).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

(See also th e Venice Commission’s Opinion on Media Legislation (Act CLXXXV on Media Services and on the Mass Media, Act CIV on the Freedom of the Press, and the Legislation on Taxation of Advertisement Revenues of Mass Media) of Hungary (CDL-AD(2015)015))

© Council o f Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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