CIVIL DEFAMATION AND MEDIA FREEDOM IN HUNGARY Trends and Challenges in Court Practice in Personality Rights Cases Author: Bea Bodrogi Publisher: International Press Institute (IPI) February 2017 This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 Inter- national License. This report was supported by funding from the European Commission. TABLE OF CONTENTS: 5 I. Introduction 5 II. Legislative background 6 a. General legislative protection of personality rights 6 b. Specific personality rights 6 c. Enforcement of rights relating to personality 7 d. Sanctions for violations of personality rights 8 e. Regulations and judicial guidelines on non-pecuniary damages and restitution 10 f. Defamation and right to reputation 11 III. Review of cases 11 a. Injury to the reputation of politicians and public office holders 14 b. Politicians and the right to privacy 15 c. Violation of the right to reputation and privacy of other public figures and celebrities 16 d. Protection of the reputation of non-public figures (private individuals) 17 e. Dissemination: liability for the publication of information obtained from a third party 19 f. Right to one’s facial likeness and voice recording 20 g. The faces of police officers Civil Defamation and Media Freedom in Hungary 5 I. INTRODUCTION The present study examines current legislation and court practice in Hungary regard- ing civil law violations of rights to reputation, privacy and likeness, with a particular focus on trends in terms of awarding non-pecuniary damages/restitution.1 Through an analysis of relevant legislation and a presentation of cases connected with the press, it critiques the current situation in terms of limitations on freedom of expression.2 Personality rights3 in this context is a difficult area of jurisprudence, as it involves the consideration and balancing of two important values and constitutional rights: freedom of expression on the one hand and the rights to reputation, privacy and likeness on the other. This balancing act requires the interpretation of very succinctly worded legislative texts and rulings by the Constitutional Court with the help of the guidelines issued by the Supreme Court (also known as the Kúria). Another difficulty for the judiciary is the recent increase in Hungary of cases in which politicians turn to the courts to seek relief for injuries they allege to have suffered, hoping to obtain a judgment that will put an end to political and societal controversies in which they are involved. Meanwhile, the media get caught in the crossfire: on one hand, news outlets seek to report on such controversies and to provide a forum for di- verging opinions; on the other, they are also directly affected through legal action taken against them in media and personality rights cases. II. Legislative BACKground In 2014, Hungary adopted a new Civil Code4, which affects the protection of personal- ity rights in two ways. First, lawmakers changed the text of the Civil Code in order to match new jurisprudence. Second, the new Code introduced the institution of restitu- tion instead of non-pecuniary damages. The latter change is relevant in that in cases where personality rights have been violated, claimants can now request monetary compensation without having to prove that the violation caused damage. Thus, a find- ing of a violation of personality rights on its own constitutes grounds for entitlement to restitution. 1 It is important to note that it is fairly common in Hungary for criminal charges to be brought against jour- nalists as well, particularly for defamation and libel. This study focuses however on the civil law aspects of freedom of expression. 2 The present study is based on a review of 250 court decisions, as well as in-depth interviews with the in- house counsel of three media providers (two news portals and a tabloid paper) as well as with one judge. 3 The term “personality rights” may have different meanings in different contexts. In Hungary, the violation of “personality rights” covers violations to life, bodily integrity, health, personal liberty, privacy, discrimina- tion, defamation, violation of personal data, facial likeness, recorded voice and violation of the right to a name. The present study focuses on defamation, reputation and violation of privacy as well as the right to one’s facial likeness, as these are the rights most frequently referred to in personality rights cases aginst media outlets in Hungary. 4 Act V of 2013 on the Civil Code. Available at: http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A1300005.TV. 6 Civil Defamation and Media Freedom in Hungary a. General legislative protection of personality rights Protection of rights relating to personality Section 2:42 (1) Everyone is entitled to freely practice his personality rights within the framework of the law and within the rights of others, and to not be impeded in exercising such right by others. (2) Human dignity and the related personality rights must be respected by all. Personality rights are protected under this Act. (3) Personality rights shall not be considered violated by any conduct if the person affected has given prior consent thereto. b. Specific personality rights In addition to the general rules protecting personality rights, the Civil Code also speci- fies the main types of violations of personality rights. Specific personality rights Section 2:43 The following, in particular, shall be construed as violation of per- sonality rights: a. any violation of life, bodily integrity or health; b. any violation of personal liberty or privacy, including trespassing; c. discrimination; d. any breach of integrity, defamation; e. any violation of the right to protection of privacy and personal data; f. any violation of the right to a name; g. any breach of the right to facial likeness and recorded voice. c. Enforcement of rights relating to personality Enforcement of rights relating to personality Section 2:54 (1) Personality rights must be enforced in person. (4) If the violation of personality rights infringes upon the public interest, the public prosecutor shall be entitled to bring action upon the victim’s consent, and to invoke the sanctions independent of attributability. Pursuant to the pub- lic prosecutor’s action the financial advantage achieved shall be relinquished for public purposes. This Subsection shall apply to the infringement referred to in Subsection (5) with the exception that the public prosecutor shall be entitled to bring action without the victim’s consent within the applicable limitation period. (5) Any member of a community shall be entitled to enforce his personality rights in the event of any false and malicious statement made in public at large Civil Defamation and Media Freedom in Hungary 7 for being part of the Hungarian nation or of a national, ethnic, racial or reli- gious group, which is recognised as an essential part of his personality, mani- fested in a conduct constituting a serious violation in an attempt to damage that community’s reputation, by bringing action within a thirty-day preclusive period. All members of the community shall be entitled to invoke all sanctions for violations of personality rights, with the exception of laying claim to the financial advantage achieved. One of the new elements of the Civil Code is the right of communities to enforce claims. Under existing case law, a member of a community could not, without personal stand- ing, bring a claim in cases where statements had resulted in injury to the reputation of his/her community. However, this is now possible under the new Code.5 The present study will focus on violations of the personality rights of integrity, reputation, privacy and facial likeness, as these are the rights most frequently cited in personality rights cases against media outlets. d. Sanctions for violations of personality rights Sanctions for violations of personality rights can be divided into two groups: objective and subjective. Objective sanctions can be enforced even where the defendant was not negligent, i.e., where the violation was “not the defendant’s fault”. These are as follows: Sanctions independent of attributability Section 2:51 (1) A person whose personality rights have been violated shall have the right to demand within the term of limitation – based on the infringe- ment – as appropriate by reference to the circumstances of the case: a. a court ruling establishing that there has been an infringement of rights; a. to have the infringement discontinued and the perpetrator restrained from further infringement; a. that the perpetrator make appropriate restitution and that the perpetrator make an appropriate public disclosure for restitution at his own expense; a. the termination of the injurious situation and the restoration of the previous state, and to have the effects of the infringement nullified or deprived of their unlawful nature; a. that the perpetrator or his successor surrender the financial advantage ac- quired by the infringement according to the principle of unjust enrichment. 5 A binding court decision has been handed down based on this new legislative provision. In the case in question, an MP of the extreme-right Jobbik party stated that “if Viktor Orbán thinks that Gypsies are Eu- rope’s hidden resources, then we could deport them so that they can flourish”. Besides finding that rights had been violated in the case, the court ordered the payment of 100,000 HuF (273 eur) as restitution, and also ordered the MP to make a public apology. See http://www.haon.hu/fizethet-a-szavai-miatt-a-jobbikos-kepviselo/2961580. 8 Civil Defamation and Media Freedom in Hungary Insofar as the violation results from the negligence of the perpetrator – i.e., the perpe- trator failed to act with due care – the injured party may also claim subjective sanctions (restitution) in addition to the objective sanctions listed above in Section 2:51.