This article was originally published on the Article19‘s website.
This report examines legislation and practices related to ‘hate speech’ in Hungary, with a particular focus on the media. It examines the compliance of the national legislation with international freedom of expression standards and offers recommendations for their improvement.
During the last few years, ‘hate speech’ against disadvantaged groups, in particular the Roma, Jews, LGBTQI people, migrants, and asylum seekers, has been an issue of growing concern in Hungary. The rise of prejudice and intolerance in Hungarian society can be closely linked to the Hungarian government’s own policies and communications strategies, as well as the lack of political will to deal with instances of hate crime and ‘hate speech’. In recent years, the government has run public campaigns against refugees, migrants, and, more recently, against non-governmental organisations (NGOs) and George Soros, a Hungarian-American businessman and philanthropist. This has created a forum for the rise of ‘hate speech’ and facilitated its legitimation in Hungarian public discourse.
At the same time, there have been some progressive developments in Hungary’s ‘hate speech’ legislation in administrative, civil, criminal, and media law. However, prohibitions of incitement in criminal law do not fully comply with international freedom of expression standards, and criminal law also prohibits a range of vague and overbroad offences, contravening international law. Most importantly, the interpretation and implementation of the existing criminal law protection is problematic. Public authorities are failing to apply the available mechanisms against ‘hate speech’ in an effective manner. As a result of law enforcement agencies’ inertia in this regard, the relevant criminal provisions remain effectively dormant, with even the most severe cases reaching the incitement threshold going unpunished.
Beside the protections provided under criminal law, victims of ‘hate speech’ have three types of remedies available to them under Hungarian civil and administrative law. They can either: a) initiate a civil action under the new provisions on ‘hate speech against a community’ of the Civil Code; or b) file a complaint with the Equal Treatment Authority under the harassment provisions of the Equal Treatment Act (ETA); or c) initiate a civil action before the courts for harassment under the provisions of the ETA together with the provision on inherent rights under the Civil Code. In practice, however, victims rarely bring actions under these provisions. Since 2009, a number of ‘hate speech’ cases concerning harassment have been initiated under the ETA, especially by NGOs against public officials. However, Hungarian courts restricted the applicability of these provisions by applying a strict interpretation of the anti-discrimination legislation and narrowly defining what constitutes an expression made in an ‘official capacity’.
Under media law, the Hungarian Media Council (the Media Council) has the authority to investigate cases of infringement, both ex officio and in response to complaints in ‘hate speech’ cases, and impose administrative sanctions. Since its creation in 2011, the Media Council has examined only a few cases of ‘hate speech’; again, this is due to the strict test applied by the Media Council in the respective cases. Moreover, the Media Council does not have oversight powers over public service media and other state-controlled media, which have broadcast problematic governmental campaigns.
Under media law, the Hungarian media have established self-regulation mechanisms for print media. However, this system has not been effective in practice to tackle instances of ‘hate speech’ in the media. More positively, a number of constructive initiatives, including those promoting ethical journalism at the Editor’s Forum, can be noted.
Certain forms of ‘hate speech’ are prohibited in advertising (commercial communications), and the Self-Regulatory Advertising Organisation (ÖRT) has adopted a code of conduct that addresses some issues related to discrimination in advertising. It has not yet received any complaints regarding ‘hate speech’ in advertising.
Summary of recommendations:
- The Hungarian government should immediately discontinue its various ‘hate speech’ campaigns. Instead, it should make a commitment to equality and undertake measures to promote tolerance in society. As all public officials, including politicians, have a key role to play in recognising and promptly speaking out against intolerance and discrimination, they should express support to the targeted individuals or groups, and refrain from engaging in ‘hate speech’ themselves. This is particularly important where inter-communal tensions are high, or are susceptible to being escalated, and where political stakes are also high, such as in the run-up to elections;
- All Hungarian legislation – in particular the relevant criminal law provisions – should be revised for their compliance with international human rights standards applicable to ‘hate speech’. The advocacy of discriminatory hatred that constitutes incitement to hostility, discrimination, or violence should be prohibited in line with Articles 19(3) and 20(2) of the International Covenant on Civil and Political Rights (ICCPR), establishing a high threshold for limitations on free expression, as set out in the Rabat Plan of Action, as well as prohibitions on direct and public incitement to genocide and incitement to crimes against humanity;
- The criminal provision on incitement against a community, in Section 332 of the Criminal Code, should include the reference to incitement to discrimination. Criminal offences of “public denial of sins of national socialist or communist regimes”, “desecration of national symbols”, and “the use of symbols of totalitarianism” should be abolished;
- The Hungarian nation should be omitted from the list of protected groups in the legislation;
- The judiciary, law enforcement agencies, and public bodies should be provided with comprehensive and regular training on relevant international human rights standards applicable to ‘hate speech’;
- In collaboration with experts and civil society, law enforcement agencies should develop investigative guidelines on the prosecution of incitement cases, based on international human rights law. The government should ensure that all law enforcement agencies are made aware of the guidelines during their trainings and in their work;
- The provisions on harassment in the Equal Treatment Act should be amended. It should state that harassment can also be committed against groups, and the provisions should apply to all statements of public officials made in public while they are acting in their official capacity;
- The provisions of the Civil Code pertaining to ‘hate speech’ should be revised. In particular, the list of protected groups in the provisions on ‘hate speech against a community’ should be non-exhaustive, and the statute of limitations for initiating cases should be extended to 12 months. The provisions on ‘community reputation’ should be rephrased and narrowly tailored to provide civil law protection in ‘hate speech’ cases;
- The law enforcement agencies (prosecutors) should not be involved in civil law actions. The requirement for legal representation in civil proceedings is unnecessary and unjustified, and places a disproportionate burden on the claimant;
- The Media Council should develop and publish clear policy guidelines on ‘hate speech’ in order to circumscribe vague concepts of illegal media content. Further, by applying clear policy guidelines, it should take a less restrictive approach, and it should hear complaints against hateful media contents, particularly with regard to the content disseminated by public service media;
- Media self-regulatory bodies should actively promote existing self-regulatory complaint procedures and invite the public to use alternative dispute resolutions in media-related cases; and
- The civil courts should refrain from taking an objective liability approach in cases when content providers make publication of third-party content possible. As a general rule, web-hosting providers or hosts should be immune from liability for third-party content when they have not been involved in modifying the content in question.