FOURTH SECTION
CASE OF ATV ZRT v. HUNGARY
(Application no. 61178/14)
 
 
JUDGMENT
 
Article 10 • Freedom of expression • Television 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 • Domestic legislation lacking precision and absence of domestic courts’ common practice • Courts’ failure to demonstrate, in light of the aim of the ban, whether  the impugned term was capable of upsetting balanced and unbiased presentation of a matter of public interest • Courts’ failure to consider factual circumstances of the case and arguments based on the veracity and factual accuracy of the impugned term • Courts required to ensure that the statutory ban did not turn into means of suppressing free speech
 
STRASBOURG
28 April 2020
 
FINAL
 
28/07/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of ATV Zrt v. Hungary,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ganna Yudkivska, President,
 Paulo Pinto de Albuquerque,
 Egidijus Kūris,
 Carlo Ranzoni,
 Georges Ravarani,
 Marko Bošnjak,
 Péter Paczolay, judges,
and Andrea Tamietti, Section Registrar,
Having regard to:
the application against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian company, ATV Zrt (“the applicant company”), on 3 September 2014;
the decision to give notice to the Hungarian Government (“the Government”) of the complaint concerning Article 10 of the Convention;
the parties’ observations;
Having deliberated in private on 3 July 2018, 8 January 2019, 11 February 2020 and 17 March 2020;
Delivers the following judgment, which was adopted on that last date:
INTRODUCTION
The applicant company in the present case, the owner of a television channel, complained that the domestic courts’ decision finding that it had infringed the Media Act, in particular its provision prohibiting the expression of opinions in news programmes, had violated its right to freedom of expression. The applicant company relied on Article 10 of the Convention. THE FACTS
1. The applicant company is the owner of the TV channel ATV, with its registered place of business in Budapest. The applicant company was represented by Mr D. Karsai, a lawyer practicing in Budapest. 2. The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi. 3. ATV is an independent broadcaster, providing television and online services. Every evening it broadcasts televised news programmes that last for about 30 minutes. During the news programmes, a series of news items is introduced by a newsreader in a studio, and each news item is then presented by a different news reporter. 4. On 26 November 2012, in a speech delivered during a plenary session, a member of parliament from the political party Jobbik, Mr M.Gy., stated that “it is time ... that we made an assessment how many persons of Jewish origin, especially members of Parliament and government, there are who pose a risk to national security...”. 5. On 29 November 2012 the applicant television company broadcast a news item on preparations for a demonstration organised by a number of political parties with the title “Mass demonstration against Nazism” to be held as a protest against the political party Jobbik. It was explained that the background to the event was Mr M.Gy.’s speech during the plenary session and the party’s name was also mentioned. The newsreader introduced the news item by stating that “an unprecedented alliance is about to materialise on Sunday against the biased remarks of the parliamentary far right”. 6. Following a complaint from the press officer of Jobbik, the National Media and Infocommunications Authority initiated proceedings against the applicant company, found that the latter had infringed section 12(3) and (4) of Act no CLXXXV of 2010 on Media Services and Mass Communication (hereinafter the “Media Act”), and prohibited it from repeating the statement. It declared that the expression “parliamentary far right” went beyond a factual statement and amounted to a value judgment. The Authority noted in its reasoning that it was irrelevant whether the statement had negative connotations or was based on fact or was shared by a number of people or was the opinion of the newsreader or the broadcasting company. The communication of any opinion by a newsreader was prohibited by the Media Act, to ensure that the public received unbiased news and political information. 7. The applicant company appealed, 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. 8. By its decision of 17 April 2013 the Media Council of the National Media and Infocommunications Authority, acting as a second-instance authority, upheld the first-instance decision, endorsing its reasoning that the fact that a certain opinion was shared by the wider public did not change the nature of that opinion. 9. The applicant company sought judicial review of this decision. It maintained that the impugned statement constituted an integral part of a news item describing a certain parliamentary group. The term was widely used and thus unlikely to influence the audience. It pointed out that the international media referred to Jobbik as a far-right party and some of the information published on the party’s own website also contained this term. 10. By a judgment of 30 September 2013 the Budapest Administrative and Labour Court overturned the decision of 17 April 2013 (see paragraph 8 above) and remitted the case to the Media Council of the National Media and Infocommunications Authority. The judgment contained the following reasoning:
“It is significant that nowadays the term ‘right-wing’ is not used solely in relation to extreme, chauvinistic movements in daily political life (for instance sympathisers of fascist or national socialist ideologies) but also in relation to right-wing political parties with a milder stance. It is a sociological fact that the term has lost its meaning as referring exclusively to ‘extremists’. The same adjective could describe both truly radical, aggressive standpoints and also more moderate ideologies. It is a matter for political and sociological debate which category is to be referred to, but it is a fact that in current national and European public life [the term] is used to cover both. As a consequence, if a party whose founding document acknowledges its radical right-wing ideology is referred to in a news programme as ‘far-right’ – an adjective widely accepted in public and scientific life – this does not mean that an opinion is being expressed about the party, and especially not that it is associated with extreme chauvinistic ideas. It simply means that the political entity in question is being described, factually, using one of the various meanings of the adjective – not based on the plaintiff’s subjective assessment – corresponding to its nature as accepted by current social and political public understanding. The fact that the term ‘far-right’ is used in conjunction with the adjective ‘parliamentary’ further diminishes the impression that it refers to extreme ideology.”
11. The respondent requested a review of the judgment before the Kúria. 12. By a judgment of 16 April 2014 the Kúria overturned the first‑instance judgment and upheld the Media Council’s decision. It also ordered the applicant company to pay 91,000 Hungarian forints (HUF) (approximately 300 euros (EUR)) in court fees and HUF 80,000 (approximately EUR 260) for the respondent’s legal costs before the domestic courts. According to the Kúria:
“The term ‘far-right’ in the news programme is an opinion, not a statement of fact. According to the first-instance court, the term ‘far-right’ is the subject of political and social debate and if terminology is debated, it cannot be the subject of a factual statement. The debate was not about the meaning of the term ‘far-right’, but whether the term ‘far-right’ constitutes an opinion on a news item or a statement of fact. In the Kúria’s view the mentioning of the ‘parliamentary far right’ constitutes an expression of opinion. Jobbik does not consider itself a far-right party, and describing it using such an adjective constitutes an expression of opinion, creating an association with an extreme radical stance in the public’s mind, and thus having a negative influence.”
13. The applicant company lodged a constitutional complaint. It submitted, amongst other things, that political parties are regularly described using adjectives, such as the “Green” party or the “Christian” democrats, which do not reflect an opinion. Similarly, in the present case the use of the adjective reflected additional information about Jobbik that is accepted by the general public. It argued that the term should be analysed in its broader context, namely that it was expressed in connection to a demonstration triggered by an anti-Semitic comment of a Jobbik member. It also emphasised that the term was to describe the position of Jobbik in Parliament, which was factually on the far-right. 14. On 6 December 2016 the Constitutional Court dismissed the applicant company’s complaint. The judgment contained the following reasoning:
“Section 12 of the Media Act regulates the relationship between the media and the news, opinions and evaluative explanations they broadcast as a sub-rule of the obligation to provide balanced and factual coverage. Pursuant to this provision, in news and political information programmes of the media service provider, presenters, newsreaders or reporters cannot, as a general rule, add an opinion or an evaluative explanation to the political news they are transmitting, with the exception of providing background information. Any opinion or evaluative explanation added to the news provided in a programme must be made in a form that distinguishes it from the news itself, indicates its nature as such, and identifies its author. The legislation therefore does not envisage a simple prohibition on expressing opinions, since the expression of opinions is possible, but the public needs to be informed that the expression is an opinion and about its author, and it should be distinguished from the news itself. The Media Act sets the external, legislative boundaries of a fundamental right. The provisions [of the Media Act] do not require that an opinion has a factual basis and do not pose a restriction on the publication of opinions without any factual basis but regulate the manner of publication of any such opinion. The regulation balances the right to freedom of expression against the public’s right to factual and unbiased information; it restricts the right to freedom of expression to a minimal extent by providing that media consumers should be duly informed about the fact that a particular term is an expression of opinion and about its author.
... 35. If a qualifying adjective expressed in context in connection with a news item cannot be traced back to an organisation or person unconnected with the media, or if the origin of the opinion is not clearly stated, it can create the impression in the public that it is the opinion of the broadcaster or newsreader.
... 43. In the Constitutional Court’s view, classifications used in political science and everyday language are not exact categories, and opinions vary as to which political ideologies might be included. The legislation does not differentiate between positive or negative opinion, but restricts every opinion or explanatory comment on news items. Section 12 (3) and (4) forbid the expression of any opinion, and rather regulate the appropriate way of publication.
... 45. The self-definition of the political party in question is not an objective measurement, neither is the opinion of the general public. The aim of the legislation is, above all, to safeguard the public’s interest in credible information.
... 47. In the case of news reporting, it can be assessed on a case-by-case basis whether the adjective used reflects a social consensus to such an extent that there is no doubt that the adjective represents a fact. However, if there is no such standard beyond doubt, or if there are grounds for believing that the expression is an opinion, further individual assessment is needed to decide whether the adjective is the newsreader’s opinion or whether it has other origins.
... 50. The expression was a quotation from one of the descriptions used by the organisers [of the demonstrations] (fascist, far-right)...but it was not made clear that it reflected the opinion and value judgment of the organisers.
... 52. Classifications in political science or in colloquial language that do not correspond to exact categories or undisputed facts are generally subjective opinions. Although the adjective was used to express the opinion of the organisers of the demonstration and therefore reflected the regularly used, well-established opinion of certain social groups, it is still necessary to distinguish it from the newsreader’s opinion.
... 56. Even a widely used expression can influence public opinion, since public opinion changes over time and due to circumstances, so that even well-established public opinion can be reinforced or weakened by the use of an adjective. The recurring use of an adjective ... by newsreaders may fall foul of the prohibition on expressing an opinion, since such usage can infringe credibility and objectivity.”
RELEVANT legal framework
15. The relevant provisions of the Media Act provide as follows:
Information Activities
Section 12
“... (2) Depending on the nature of the programmes, a balanced manner of information provision shall be ensured either within the given programme or within a series of programmes appearing regularly. (3) Save for providing background information about the news in question, employees of the media service provider appearing regularly in the programmes and providing news service and political information as presenters, newsreaders or correspondents may not add any opinion or evaluative explanation to the political news appearing in the programme aired by any media service provider. (4) Any opinion or evaluative explanation added to the news provided in a programme shall be made in a form that distinguishes it from the news itself, indicates its nature as such, and identifies its author.”
Section 186
“(1) When the infringement is of minor significance and no re‑occurrence can be established, the Media Council or the Office – after noting and issuing a warning about the occurrence of the infringement – may, setting a deadline of thirty days at the most, request that the infringer discontinue its unlawful conduct, refrain from infringement in the future, and act in a law‑abiding manner, and it may also set the conditions hereof.”
16. At its 103rd plenary session, held on 19 and 20 June 2015, the Venice Commission adopted an 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). The relevant parts of the Opinion read as follows:
Provisions related to the positive obligation to give balanced press coverage
“47. Section 13 of the Press Act in its current form requires that linear media service providers (i.e. essentially radio and TV broadcasters) must provide ‘balanced’ information (see also Section 12 (2) of the Media Act). In addition, Section 12 (4) of the Media Act obliges the presenters of the news programs to distinguish clearly between ‘facts’ and ‘opinions’. These requirements concern information programs. Section 181 of the Media Act establishes an administrative procedure to handle the infringements of the obligation of balanced information. This procedure will be initiated on request of ‘the party subscribing to the unrepresented view, or any viewer or listener’ and can lead to a decision of the Media Council to impose either the obligation to broadcast or publish the declaration of infringement or to provide an opportunity for the petitioner to make his viewpoint known. The Media Council’s resolution in this respect is subject to judicial review. 48. It must be noted that Section 13 of the Press Act has already been amended, in response of the recommendations contained in the CoE expert examination of 2012. Namely, the requirement of the ‘diverse, comprehensive, factual, up-to-date, objective’ coverage was removed from the law. Furthermore, Section 13 of the Press Act is now applicable only to linear media service providers. Those amendments are welcome. The question is whether the remaining requirements (‘balanced’ news coverage and the obligation to distinguish between ‘facts’ and ‘opinions’) are justified. 49. Balanced and neutral news reporting is, indeed, a commendable professional standard for every journalist. Furthermore, it is perfectly legitimate to require that ‘media system on the whole’ is organised in such a manner as “to provide credible information, quickly and accurately” (see Section 10 of the Press Act). After all, Article 11 of the EU Charter specifically guarantees ‘media pluralism’, which is impossible without diverse and balanced media coverage of current events. As the Venice Commission held in its opinion on laws ‘Gasparri’and ‘Frattini’ of Italy, “media pluralism is achieved when there is a multiplicity of autonomous and independent media at the national, regional and local levels, ensuring a variety of media content reflecting different political and cultural views’; further down it continued: ‘while external pluralism relates particularly to the private sector, internal pluralism has increasingly become associated with the public sector’. In the Hungarian context, measures aimed at limiting over-concentration of the media and provisions fixing minimal quotas for national and European independent content providers are supposed to ensure diversity of opinions on the media market as a whole (see, in particular, Part Two of the Media Act, Chapters I, IV, V and VI). 50. However, it is questionable whether ‘balance’ should become an enforceable legal obligation of every particular media taken alone. The norms under consideration create a very complex obligation on the media and lack precision. How can information be ‘balanced’? One can understand balance of opinion, but information (facts) needs to be thorough and accurate, not ‘balanced’? How quickly has the ‘balance’ to be achieved when the programme is a ‘series of programmes regularly shown’? Should the ‘balance’ be assessed in quantitative or more in qualitative terms? In addition, ‘facts’ cannot always be clearly distinguished from ‘opinions’; after all, it is difficult to imagine an anchor-man not using any adjective, while every adjective gives a flavour of an ‘opinion’ to a statement of fact. In sum, the vagueness of the terms employed in two acts may turn those provisions into a tool of suppression of the free speech, even if originally it was supposed to promote non-opinionated news reporting. 51. It was reported during the visit that the above positive obligations of the media are not strictly enforced in respect of the public service media, and, at the same time, create additional burden for the private media. The Venice Commission understands the need to distinguish between facts and opinions and provide ‘balanced’ news coverage, especially when those requirements are applied to public service media. However, given the vagueness of those concepts and the risk of abusive interpretation of Section 13 of the Press Act and Section 12 of the Media Act, the Venice Commission recommends the Media Council to issue clear policy guidelines on the application of those provisions. Such guidelines should be developed by the Media Council jointly with the self-regulatory bodies, and should be published.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
17. The applicant company complained under Article 10 of the Convention that the domestic courts’ decisions had entailed an interference with its right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Admissibility
18. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant company
19. The applicant company claimed that the infringement of its right to freedom of expression had had no basis in clear and foreseeable practice, and that it had been punished for having employed what was a commonly used expression to describe Jobbik. It also maintained that the aim of the restriction had not been to protect the audience’s interest in receiving unbiased information, but rather to protect the reputation of the political party. This was evident from the fact that its news programmes had not been considered biased in general, but only as regards the use of the adjective describing Jobbik. 20. It argued that the term “far-right” was not a reflection of its subjective opinion but was commonly accepted in Hungary when referring to Jobbik. It maintained that it had applied this term in good faith and disputed the criterion applied by the Constitutional Court and supported by the Government, namely that for a term to qualify as a statement of fact, there should be “no doubt” whatsoever in society about its accuracy. In its view, in these days of modern media all notions were likely to be the subject of public debate. 21. The applicant company further contested the Government’s argument that – since there was no blanket prohibition on expressing opinions – it had not suffered significant prejudice and could have presented the alleged opinion in a different way. It argued that the newsreaders’ job would be impossible if they were obliged to declare each time a term they used might constitute a value judgment. 22. The applicant company accepted that it was under an obligation to inform the public in an unbiased manner; however, it submitted that there could never be complete impartiality in news reporting (given that even the selection of news items represented a value judgment), which posed a natural limitation on its duties of impartial reporting. (b)   The Government
23. The Government argued that the complaint under examination was of a fourth-instance character, that the national courts had set out the reasons for their decisions, and that the Court would be acting beyond its jurisdiction if it overruled them. 24. In addition, the Government contested that the applicant company’s rights under Article 10 of the Convention had been violated. They accepted that the injunction interfered with the applicant company’s right to freedom of expression and was based on sections 12 and 186 of the Media Act. However, they maintained that the injunction had been necessary in a democratic society in order to protect the right of others to receive balanced and unbiased information on matters of public life and current events and to guarantee pluralism of information and a democratic public opinion. 25. According to the Government, democratic public opinion could come about only through the provision of full and objective information. The measure in question served to protect freedom of the press and to prevent the emergence of monopolistic public opinion based on an “officially correct version”. Since the provision was meant to ensure that service providers did not influence their audience surreptitiously by broadcasting subjective opinions, it was irrelevant whether the opinion had negative or positive connotations or a factual basis. 26. In this connection the Government emphasised that television programmes had a greater influence on the public since they reached a wider audience, even in the case of programmes knowingly chosen. Also, audio-visual content, by definition, influenced its audience differently. 27. Endorsing the findings of the Kúria and the Constitutional Court, the Government maintained that the impugned statement constituted an opinion. Since the expression “far-right” was not an exact category but a matter of political and social debate, it could not be argued that referring to a political party in those terms had been a factual statement. They pointed out that Jobbik had not identified itself as far-right party but as a conservative, value-based, national-Christian party “radical in its methods”. Furthermore, there was no social consensus on the term, which could leave the audience with the impression that it had been a subjective opinion on the part of the newsreader. This was even more likely since the newsreader had failed to clarify that the use of the impugned adjective had been a quotation of the opinion of the organisers of the demonstration. 28. As to the proportionality of the measure, the Government explained that the Media Act did not impose a complete ban on the expression of opinion, but merely regulated the manner of publication thereof, requiring that opinions be expressed only if their origin was specified. Moreover, the sanction that had been imposed on the applicant company for its infringement of the Media Act had been the least severe one.

Outcome for Article 41: violation