an overview of the new hungarian legislation on media
i. on act 104 of 2010
The purpose of the Act 104 of 2010 on the freedom of press and the fundamental rules on media content set forth in the explanatory part thereof is to set the most important principles of media regulation. The majority of the rules set forth herein have been adopted in former legislation, whereby certain regulations were applicable to all media and media content. While no separate sector regulations were in place concerning internet-based media (any breach of law committed in this segment was subject to sanctions under the Civil and Criminal Codes), no separate institutional and sanctioning framework were in place to ensure compliance with requirements on content laid down in the Press Act concerning the printed media. The novelty in the new legislation lies in the fact that it provides comprehensive, „platform-neutral” regulations applicable to all media content of prohibitive nature for a rather limited sphere (at the same time, other provisions of the Act do take heed to the characteristics of various media segments). The Media Council in charge of ensuring compliance with the regulations contained in the Act (as soon as the procedural rules are formulated and the framework of sanctions is defined) as well as the Courts having judicial competence over the resolutions of the Media Council are obliged to interpret and apply these regulations restrictively, with due heed given to ensuring freedom of press.
1. Terminology and scope of the Act (Article 1 and 2)
The Act shall be applied to all „media content”. Media content shall mean any content provided in any media service or press material. Media services are sub-grouped into two further categories, such as linear media services (basically, traditional television and radio broadcast) and on-demand media services (which term corresponds with the terminology of the EU’s Audiovisual Media Services Directive). The definition of the press materials – similarly to the definition of the media services - covers printed press (daily newspapers and other periodicals) as well as on-line newspapers and news portals, which provide an economic service.
The term of media service consists of four distinct attributes:
- Service of commercial character as defined in Article 56 and 57 of the Treaty on the Functioning of the European Union;
- For which editorial responsibility lies with the media service provider ;
- The primary objective of which is to distribute programmes to the public for information, entertainment or educational purposes;
- Via an electronic communications network.
Linear (traditional, i.e. television and radio broadcasting) media service provision means a media service provided by “a media service provider for simultaneous viewing of or listening to programmes on the basis of a programme schedule”, while on-demand media service means “a media service provided by a media service provider, where the viewer may view or listen to programmes at the viewer’s individual request on the basis of a catalogue of programmes selected by the media service provider, at the moment chosen by the viewer”. It is apparent that the Act in essence employs the terminology laid down in Article 1 of the AVMS literally. At the same time, the Act strives to align the definitions of the press materials that fall beyond the scope of the directive with that of the media service to the closest possible extent.
Accordingly, the term of press materials shall have the following attributes:
- The various issues of newspapers and other periodicals as well as on-line newspapers and news portals
- provided as an activity of commercial character;
- The editorial responsibility of the content of which lies with a natural or legal entity or a business association without legal personality;
- With the primary purpose of distributing content consisting of text and images to the public for information, entertainment or educational purposes;
- Provided in a printed form or via an electronic communications network.
The solution is deemed advantageous in strengthening and creating coherence between Hungarian and EU legislation in this issue, with the sketchy nature of the defined terms in the Directive also taken over in the Hungarian legislation. This problem may be solved by law enforcement taking due heed also to the provisions of the explanations laid down in the Recital of the AVMS (paragraph 21-24).
As the AVMS does not cover press materials, the above references may provide only restricted guidance for the precise interpretation of the latter term. The general interpretation suggests that press materials – in addition to the definition particulars laid down in the Act – may be defined by using objective and formal criteria (the most important of which being the regular publication under the same title). At the same time, the identification of on-line press materials may pose difficulties in practice. In this regard, the formal criteria relevant for the printed press may have less distinct role, with classification of these media forms becoming possible on the basis of their content. To this end, the nature of commercial character, the objectives (information, entertainment, education) and the assessment of editorial responsibility laid down in the Act may suffice. Therefore, the textual and image portion of an on-line newspaper will be deemed as a press material, while the audio-visual content therein provided will be deemed as an on-demand media service, and accordingly, the set of regulations applicable to them may differ. Other on-line content, such as private or corporate websites or weblogs fall beyond the scope of the Act.
2. Registration (Article 5)
Pursuant to the Act, „the Act may set official registration as a precondition for the commencement of media services and the publication of printed press materials. The conditions set for registration may not restrict the freedom of press.”
This provision is therefore a mere declaration that allows the Media Act to provide for the obligation of registration. This provision however has a symbolic significance: This provision provide the grounds for the guarantee rule under which no condition other than the obligation of registration may be set for the media service providers for the commencement of the media service. In addition, it stipulates that the registration may not jeopardise the freedom of press, that is, it allows formal assessment only (e.g. conflict of interest, ownership structure or compliance with the obligation of data provision).
Paragraph 2 provides a reasonable exemption from the above when it requires that “when limited state-owned resources used by the media service providers are to be utilised, the service provider may be required to participate and declared a winner in a tender issued and conducted by the Media Authority before the media services may be commenced. Such tenders or official permits therefore may not be set as a precondition as regards press materials, however the practice does currently exist for media service providers (in case of service providers rendering services via terrestrial radio frequencies).
The obligation of registration is currently in place as regards the printed press media, and court practice requires registration of on-line media services under the Press Act (some service providers already fulfilled this obligation).
The real novelty in the requirements in the Media Act to be formulated under the provisions laid down in the legislation lies in its applicability to on-demand content.
3. Protection of information sources (Article 6)
The press and journalists have the privilege that they not be obliged to disclose their source of information. Confidentiality of information sources form an integral part of the freedom of press. Lacking this guarantee the press would be deprived from a number of confidential public information and it would be detrimental to the right of the public to information. A number of information from confidential sources find their way to the press, and such confidential sources will contribute to the information of the public on condition that they can remain anonymous.
Pursuant to Article 11 (1) (b) of the Press Act, the journalist „shall have the right – and at the disclosing party’s request shall be obliged to – keep the name of the information source in secret; in cases of information pertaining to a criminal act the provisions of the criminal legislation shall apply”. Therefore, the name of the disclosing party may be kept in secret in general and in civil lawsuits and public administrative procedures. The Press Act does not provide for witness testimonials to be made in criminal proceedings. Pursuant to Article 82 (1) (c) of the Act on Criminal proceedings, the witness testimony may be rejected in the event that the person is under obligation of confidentiality. Based on the foregoing, this obligation is not vested with the journalist on account of its profession – as he may not claim exemption on the basis of the Press Act, but make reference to the agreement he made with its source – therefore, it can be concluded that prior to enactment of the legislation the journalists were subject to the obligation to disclose information on their sources in criminal proceedings.
Therefore, the Act – by providing protection on the persons that provide information to the press - attempts to remedy the long-term deficiency in Hungarian legislation. Pursuant to paragraph (1), the media service provider and the journalist „shall have the right to keep the name of its informer in secret”. This right of general confidentiality also covers the court and official proceedings, that is, it grants exemption for the journalists to fulfil obligation of witnessing. To this end, neither the legislation on criminal nor civil proceedings need to be modified as the scope of the act is applicable directly in proceedings. The Act provides the rights but not the obligation for the media, at the same time provides an opportunity for the journalist to adhere to the agreement made with the informer as it provides for exemption from the obligation of witnessing.
The right to keep informer in secret is however not unlimited. It does not cover the protection of informer having furnished confidential data unlawfully and in exceptional cases in court and official proceedings the media service provider may be obliged to identity of the informer „with a view to protecting national security and public order or to investigating or preventing criminal acts”. In the future, it will cast great responsibility on the courts, as they should find a balance between the conflicting interests and the freedom of press will hopefully be treated with adequate attention.
4. Protection of editorial and journalists’ freedom (Article 7)
In the United Kingdom, the Royal Commission on the Press in 1977 engaged in the assessment of printed media operations raised the issue of the guarantees on editorial freedom and formulated principles that could serve as a basis for a prospective legislation, which did not materialise in the end. For example, it defined as a fundamental right of editors to decline publication of any text or document sent from “higher bodies”, to define the content of the newspaper freely, to decide on the utilisation of funds available for them in their budget without constraints and to reject any advice on editorial policy given to them, etc.
The Act – so to say – provides an unparallel independence for the media workers from the owner, advertisers and sponsors. It provides them professional independence, therefore it affects the professional integrity of journalists and stems from the understanding that not only the interests of the state, but as well as various private interests may also jeopardise the independence of the media and their rendering of its tasks in the public interests. Naturally, the owner may define the general direction and characteristics of the media owned by him, but may not give any instruction to the journalists and editors that may jeopardise their independence. Pursuant to the Act, no legal sanctions under labour or civil law may be applied against the journalist and editors on account of their rejecting to comply with the instructions jeopardising their freedom (at the same time, the owner may freely decide on their employment as from commencement thereof). The application of this rule in practice may give rise to interesting issues in the future.
5. Protection of investigative journalism (Article 8)
Does the press – in its investigations – have the right to commit an otherwise unlawful or criminal act in investigating a criminal or other fraudulent act, or what limits apply to investigative journalism? When we wish journalists to assist in ensuring transparency and democratic operation of the official authority, the mere accusation by the investigative authority - in case of their cooperation – may prove unsubstantiated, while journalists failing to inform the police in advance may not be held guilty on account of the unlawful act committed by them as the potential to jeopardise the general public is lacking.
The Act provides exemption for investigative journalists from any kind of official procedure on their culpability in the event that the unlawful act was committed with a view to obtaining information of public interest and the particular piece of information would be obtainable otherwise at disproportionate difficulties only, if at all. Exemption is conditional on the unlawful act committed by the journalist being unsuitable for causing disproportionate or grave grievance and being obtained without violating the Act on the protection of confidential information. Exemption does not cover the enforceability of claims under civil law for compensation for damage in property caused by the journalist’s unlawful conduct.
The powers laid down in Articles 6 to 8 cover without exceptions the media service provider, its employees or journalists in other relations for the performance of work (under agency contract or otherwise). Therefore, the Act grants powers to professional journalists, and not to freelancers or bloggers. This solution may be disputed, but legislators also sought to narrow the scope of the Act in terms of both obligations and powers, which should be respected as well. Although the term “journalist” may be defined at great efforts only (if at all), the term should not be to widely defined as it would give rise to legal uncertainty and the unjustified extension of certain privileges.
6. Press corrections (Article 12)
The Act introduced significant modification in the legal institute of press corrections. On the one part, in the future those concerned may seek publication of corrections in case of false (unproven) allegations in any media content, that is, the rules would be applicable to news agencies, media service providers providing on-demand content and on-line newspapers alike. Under court practice, on-line newspapers have already been obliged to publish such corrections in a number of cases. It is to be noted that the applicable EU documents provide for the right of press corrections as regards traditional, linear media services only and expressly encourage the Member States to apply the regulations in a scope as wide as possible.
7. Obligation of information imposed on media (Article 13)
Pursuant to the Act, “the task of each and every media content provider is the provision of authentic, rapid and correct information on local, national and EU issues and any event that is significant for the citizens of the Republic of Hungary and the members of the Hungarian nation”. This obligation does not mean that each and every service provider, including thematic content providers is obliged to provide general information; as it is a provision of declarative nature on the tasks of the media in fulfilling its operations in the public interests, which is derived from Article 2 (1) of the previous Press Act. The obligation of information, however, is not a paternalist antagonism from the Communist era, but - in line with the right to information for all – an obligation to be fulfilled from the media as such. In itself, this provision does not impose a definite obligation on media content providers, it merely sets forth a general principle in media law. The definite obligation of information should be imposed on certain media service providers, the scope of which should be defined under the Media Act, as is currently the case.
8. Protection of human dignity, constitutional order, human rights, privacy and prohibition of hate speech (Articles 14 and 16-18)
The provisions on the protection of human dignity, constitutional order and personal right as well as the prohibition of hate speech is already contained in Act I of 1996 on radio and television broadcasting now in force. The real novelty amount these values lies in the inclusion of the privacy among personal rights. The reason for this inclusion may derive from recent European trends that strengthened the protection of privacy vis-a-vis the media, which emerged in the practice pursued by the European Court of Human Rights.
Violation of the right for self-determination within personal integrity may emerge at this point, as – excepting constitutional order – the Media Act (and similarly, the Media Constitution ) seeks to protect personal rights. Even in case of hatred against a group in society, human dignity is the single most important value to be protected. In contrast, claims arising from violation of personal rights may be enforced subject to the decision of the aggrieved person or persons. Under media law, however, the Media Council will be in a position to establish violation of personal rights in a procedure initiated ex officio and not just at the initiative of the aggrieved person and this fact is seemingly in conflict with the right of self-determination.
This contradiction was resolved under resolution No. 46/2007. (VI. 27.) of the Constitutional Court. „In accordance with the consistent practice of the Constitutional Court, the basic right for human dignity covers also the freedom of self-determination, an important substantial element of which – among others – is the person’s right to enforce its substantial rights covered by the claim at various state authorities and the courts themselves. The right to self-determination also covers - as a general right to act – the right to refrain from enforcing its claims or non-action. As this right is for the protection of the integrity of the individual, in general, everyone has the right to decide whether to enforce its claims in the official procedure available under the Constitution for the protection of its rights and lawful interests, or to refrain from doing so (Resolution No. 1/1994. (I. 7.) of the Constitutional Court). The right of self-determination in legal proceedings therefore covers also the right to refrain from resorting to court action in case of violation of its rights. When the media service provider violates personal rights, the aggrieved person shall have the right to decide whether to enforce its personal rights vis-a-vis the media service provider that committed the violation of rights. Article (…) of the Media Act provides for institutionalised public administrative proceedings, in addition to court action. [The Media Authority] passes no resolutions in cases involving the violation of individual legal entity in public administration proceedings. Article (…) of the Media Act on respecting human rights derives from the Constitution. Accordingly, … [the Media Authority] shall have the right to establish in public administration proceedings whether the media service provider conducts its operations in respect of human rights and the topic, characteristics and attitude of the individual programmes violate human rights under the Constitution.”
The practice of the former media authority (The National Radio and Television Commission – ORTT) also followed the above interpretation, seeking to avoid the violation of the right for self-determination in its interpretation and application of rules pertaining also to personal rights. The provisions on personal rights may not be assessed from the standpoint of the aggrieved person; the authority will have the powers to declare a particular content as unlawful when it violates a basic right defined in legislation (human dignity, protection of constitutional order, etc.) at an intensity that calls for intervention of the authority.
II. Basic regulatory elements of the new media act
(Draft act T/1747)
1. Services covered by the Media Act
The material scope of the new Media Act is identical with that of Act 104 of 2010.
2. Regulation of market access, rules of registration
By applying procedural guarantees of market access, the Media Act establishes a transparent framework of the constitutional operation of the media system, also considering the fundamental rights of freedom of expression, freedom of the press and media. Any regulated activity may be performed by anyone without restriction, it should only be reported or registered with the relevant authorities prior to the commencement of providing the service. This is in conformity with the free movement of media services and the freedom of competition in the market, conforming to the particularities of the media.
3. General rules on avoiding concentration in the media market
It is laid down as a basic principle that avoiding any information monopoly is of essential importance. In order to avoid the expansion of any further information monopoly, obligations are imposed by the Act on media service providers having an annual average audience share exceeding a certain level in the market for media services. The level of audience share is regulated by the Act in a manner that it will not limit the economic freedom of service providers operating in the market for media services without due reason but the ownership concentration could not lead to the evolution of an information monopoly that might impede media pluralism.
If a media service provider reaches the level specified in the Act (an annual average audience share of 35 per cent) then it may not obtain a shareholding in any other media service and will be obliged to reorganize its programme structure accordingly. Such reorganization – in order to enhance diversity – might envisage e.g. the increasing of the proportion of works by independent or Hungarian producers. When complying with the latter obligation, in order to encourage voluntary commitments, upon a media service provider’s initiative the Media Council may conclude an official contract with the media service provider, allowing that the media service provider and the Media Council may jointly establish the terms providing appropriate guarantee for both parties to take the measures complying with the principles referred to above.
The obligations determined in the Act are proportionate, also considering that the right of viewers or listeners of media services to objective and plural information may only be ensured if the information monopoly can be avoided. Similar rules can be identified in several EC Member States (e.g. Germany).
4. Definition of media service providers having Significant Influencing Power (SIP)
The rules on identifying the media service providers with Significant Influencing Power serve the purposes of avoiding the evolution of a dominant position and ensuring the appropriate level of public information in the market for audiovisual and radio services.
That is why all linear audiovisual and linear radio media service providers having an annual average audience share of minimum fifteen per cent are obligated by the Act, because of the market influence and influencing power of those service providers, to carry out duties of special importance in terms of the interests of the community, and the fulfilment of those duties are regularly monitored by the Media Council. One of those obligations of public interest included in the Act is the compulsory broadcasting of news or the obligation to broadcast a certain proportion of the films – apart from the Hungarian language version – in a foreign language with Hungarian subtitles.
5. Provisions on the protection of children and minors
The provisions on the protection of children and minors continue to be included in the Act as basic guarantee standards; it is provided for in the Act that the rules on protecting minors shall apply to all services i.e. to broadcasting via fixed, mobile and satellite networks including the on-demand transmission of content. In addition to maintaining all former provisions, a new category is added to the rules (category below the age 6).
The detailed aspects applicable to the classification of the programmes by age and the details of signs to be used in the course of publishing will be determined by the Media Council in a recommendation to be issued upon a public hearing to be held with all relevant parties.
Emphasizing the technical solutions serving the purpose of protecting children (coded services etc.) is a new provision; a recommendation will be issued by the Media Council on the requirements of an effective technical solution upon consultation with the relevant organizations and the service providers.
6. Regulations on programme quotas
In order to preserve, protect and enhance the national as well as the European culture, the Media Act contains the minimum share of Hungarian and European works included in the media services in a differentiated manner as regards each media service provider. Different rules apply to the linear, on-demand audiovisual and radio media services in the regulatory regime of the new Media Act.
It should be stressed that the Media Council may grant a release from the immediate fulfilment of this obligation for maximum three years, and it should also be emphasized that special rules apply to certain media services (e.g. thematic radio media services).
7. New regulatory framework of sponsoring media services and programmes, product placement, commercial communications and advertisements
The new regulations included in the Media Act supplement the basic standards included in the Media Constitution with clear and transparent provisions. The sponsored media content published in media services may not encourage or call to purchase the sponsor’s product or to employ its services. It is possible to display the sponsor’s name or logo but may not be contrary to the nature and content of the programme. In conformity with the AVMS Directive the Act contains all restrictions and prohibitions relating to the sponsorship of programmes (e.g. no programmes may be sponsored by parties, political movements, undertakings manufacturing tobacco products or other products prohibited to be advertised). However it is made clear in the new Media Act that displaying the name or logo of the sponsor of a public event during broadcasting that event shall not be considered as a surreptitious commercial communication or sponsoring of a programme.
Re-regulation of product placement has been justified by the transposition of the provisions of AVMS Directive to the domestic law. Compared to the former regulation, the Directive contains lighter, more permissive rules to some extent; the standards of the Media Act has been established in conformity with the Directive. The cases when the product placement is permitted are defined by the Media Act i.e. in the event of cinematographic works, in case of sport programmes, entertainment programmes or series of films. However it is important that the permitted product sponsorship is not unlimited; product placement may not apply to certain products at all (e.g. tobacco products, medicinal products available only on prescription, products the advertising of which are prohibited), and no product placement may be effected in certain programmes (e.g. news). In addition to this, the programmes containing product placement must meet specific requirements e.g. they may not directly call to purchase goods or may not give undue prominence to the product displayed in the programme. A recommendation will be adopted by the Media Council on the manner of product placement and the call related thereto upon a public hearing.
The rules of the new Media Act on commercial communications comply with the requirements of the AVMS Directive. The new regulations of the Media Act extend the former basic requirements relating to advertisements (prohibitions, rules concerning drinks containing alcohol) to all commercial communications with the proviso that certain basic requirements have been included in the Media Constitution (prohibition of audiovisual commercial communication applying surreptitious or deliberately non-observable techniques). Besides the classical types of advertisements, the new Media Act enables new, innovative forms of advertising, too, e.g. divided screen commercials or virtual advertising.
Compared to the former regulations, one of the completely new elements of the new Media Act is the Chapter on self-regulation under which the professional self-regulatory organizations may contribute to the enforcement of laws. Thus the significance of self-management activities of the self-regulatory organizations is recognised by the Media Act.
The significance of self-regulation is also included in the AVMS Directive; in connection with this the Directive stresses that measures aimed at achieving public interest objectives in certain media services sectors will be more effective if they are taken with the active support of the service providers themselves.
Compared to the types of self-regulation existing in other sectors (e.g. alternative procedures, mediation and other processes of dispute settlement, codes of conduct), the most significant novelty of the self-regulatory regime included in the Media Act is the authorization provided by the Media Council, the scope and manner of the power to perform public duties as granted by the Media Council as well as the self-management process of the self-regulatory organization affecting and preceding official powers, and the set of rules thereof governed by public law.
Thus the particularities of the self-management regime laid down in the Media Act are the following:
Firstly, it s not a procedure for the settlement of disputes (capable to settle only the disputes between two or more parties, falling out of the powers of the authorities, similarly to the arbitration courts).
Secondly, the rules involve the ’civil sphere’ (associations, other self-regulatory bodies) connected to media management in the framework of a shared law enforcement (i.e. non public bodies, specific institutions of public administration).
Thirdly, the Act grants the strongest (and still constitutional) authorization possible for a self-regulatory organization in this field. This authorization means that the Media Council may authorize the self-regulatory organization to act vis-a-vis the members and all those persons who submit themselves voluntarily to the self-regulatory procedure concerned as regards any official power but not with official executive power, in an order of self-management and as part of its duties prior to the Media Council exercises its powers.
The procedure laid down in the new Media Act is completely new as regards the entire Hungarian administration and the sectors of administration, too. Thus it is a unique rule of law solution complying not only with the rules of the European Communities but also, notwithstanding its novelty, with the domestic constitutional principles.
So the functions include the official matters within the competence of the Media Council, performed by the Authority jointly with the self-regulatory organizations. The types of matters (e.g. infringement of moral rights, exclusionary content or content inciting hatred) that may be managed by the self-regulatory organization upon authorization are determined in the new Media Act relating to any printed and Internet printed matters and on-demand media services.
Within the scope of self-regulation, in addition to managing the official matters as specified, the other field includes the contribution to the fulfilment of non-official duties, programs and targets of public interest closely related to media management. Within the scope of the cooperation the Media Council will provide support to the self-regulatory organization for the performance of its duties.
Under the regulatory regime the self-regulatory organizations and the Media Council will conclude a public administration agreement of the type of a working agreement setting forth the detailed rules concerning the performance of duties. A professional Code of Conduct which must be approved by the Media Council and where the self-regulatory organization determines the performance of self-management duties, will be a compulsory part of the public administration agreement.
In the official matters specified in the public administration agreement the official jurisdiction i.e. the application of law by the public authorities „withdraws” and makes way for the private or self-management. Because of the official powers affected and due to guarantee reasons, the Act provides for the details of the content and scope of the authorization, and determines the basic rules of the procedure of the self-regulatory organization.
As regards the procedure of the self-regulatory organization it is important to stress that the self-regulatory organization will not exercise any official power in the course of dealing with the matters, consequently it will not become a quasi administration. In specific matters the Media Council may exercise its powers also during the term of the public administration agreement i.e. the procedure of the self-regulatory organization precedes but not replaces exercising of the powers of the Media Council. Namely, in these matters the self-regulatory organization will act vis-a-vis those voluntarily submitting themselves to that service. Should the self-regulatory type voluntary enforcement of law fail to be realized appropriately then the Media Council shall have the right to exercise its official powers and authorizations conferred on it by law.
Self-regulation under the Media Act is a specific self-management service for the decision is binding on all parties covered by it This self-government power is counterbalanced by strong public law guarantees, especially the one that a self-management duty may be exercised only vis-a-vis the persons voluntarily undertaking the membership in the self-regulatory organization or voluntarily submitting themselves to that service. The self-regulatory organization shall keep records about its members and the undertakings accepting the Code of Conduct in order to clearly define the persons against whom the self-regulatory organization may perform its duties, and this is a guarantee of appropriate law enforcement, too.
Another guarantee is the supervision of the Media Council , enabling the review of any specific procedure of the self-regulatory organization, on the one hand, for the undertaking affected by the decision may initiate the review of the decision if it is inappropriate for itself.
And on the other hand, the Media Council will examine the procedures of the self-regulatory organization in general however it does not mean the supervision of all activities of the self-regulatory organization or the surveillance of its organization; the scope of such examination will only and exclusively cover the supervision of the self-regulatory activity. The self-regulatory activity may be fully supervised by the Media Council, partly because the authorization comes from the Media Council itself. Secondly, this supervision is necessary also because in the event of an inappropriate self-regulatory law enforcement the Media Council must exercise its official powers related to the type of matter concerned.
Should the Media Council reveal any deficiency or defect or deviation from the Code of Conduct or the public administration agreement then first a notice will be sent. If the requirements included in the notice are not met in an appropriate manner then the Media Council will be entitled to terminate the public administration agreement.
9. System of sanctions set out in the new Media Act
The new Media Act establishes an objective and up-to-date system of sanctions complying with the principles of the rule of law and legal certainty, and adjusted to the particularities of media management.
In the field of determining the legal consequences, the three most important basic principles are progressivity, proportionality and equal treatment. The system of legal consequences laid down in the draft Act focuses on preventing any infringement and encouraging voluntary compliance.
The system of legal consequences laid down in the Media Act is based upon a double ground which means the applicability of two bodies of law: the notice and the sanction. In the event of a minor infringement of the law, the authority issues a warning the person, who violated the law, and calls him to restore the lawful situation and to abide by the law, while also setting a date of fulfilment. However, this does not qualify as a sanction. In case the notice is not complied with (or if the notice is an inappropriate instrument relating to the infringement of law or the matter concerned) then the authority will be entitled to impose a sanction according to a scheme prescribed by law.
It is possible under the draft Act to use more types of sanction, also combined, imposed jointly, adjusted to the characteristics of media management, departing from the Media Act currently in effect. However, the maximum amount to be exacted when applying sanctions, pursuant to the type of service provided. This is different to the previous regulation, when there was no maximum amount set when the amount gained illicitly – due to the illegal activity – could have been established.
These types of sanctions include especially the possibility to disqualify any infringing party from the participation in tenders for grants, imposition of fines or suspension of exercising the media servicing rights for a definite period of time; and finally, in the event of grave or repeated infringements, the service may be cancelled from the records.
When determining the extent and type of the sanction, the draft Act meets one of the most important requirements concerning the laws regulating administrative legal sanctions i.e. the Act determines the aspects the assessment of which is compulsory (gradual, proportionate and application of sanctions, and equal treatment of market players.)
Both the type and the procedure of all sanctions are objective, transparent and predictable; furthermore it is also an important guarantee that the Media Act clearly defines the rules of procedure for imposing sanctions. Thus legal consequences may be imposed only in an official procedure and by an official decision, and all types of sanction are subject to appeal and court redress. Should the Media Council or the Office of the National Media and Infocommunications Authority fail to give due attention to the above principles when applying a certain sanction, the Court may nullify the resolution.
10. Liability of program-distributors and intermediary service providers
In conformity with the AVMS Directive and in order to increase the effectiveness of law enforcement, the Act provides that a program-distributor may be obligated to terminate any unlawful media service on the basis of a final decision revoking or cancelling the right to provide media services. In case of repeatedly imposing other sanctions for any grave infringement, the program-distributor may be obligated to suspend the media service. If the publisher of an Internet printed matter fails to voluntarily comply with its obligation to suspend the publication or to publish a communication as prescribed in the final decision of the relevant authority then the Internet intermediary service provider may be obligated to suspend the provision of such Internet printed matter.
If the distributor fails to comply with the notice of the Media Council to do so then a fine may be imposed on it in an ex officio official procedure.
11. Procedure related to media service providers established abroad
In the event of media services provided by a service provider established abroad, it was very difficult in several cases to act effectively against an infringing content under the then-current Media Act. By transposing the provisions of the AVMS Directive, it has become possible under the Media Act to provide an effective law enforcement against a media service (including printed matters) of a media service provider established in a foreign country which infringes the basic provisions of the Media Constitution or transmits an extremely infringing media content as defined in the Act (e.g. incitement to hatred). In the event of such a grave infringement of law, first the Authority will request the relevant Member State to take the appropriate measures while should the consultation prove to be unsuccessful then the Authority may impose legal consequences e.g. impose a fine or suspend the exercising of the right to provide media services.
It should also be stressed that provisions aiming at avoiding law evasion are also included in the new Media Act in conformity with the AVMS Directive. Thus, as an exemption from the country of origin principle, it has been made possible to apply the Media Act also to foreign media service providers providing services targeting, primarily Hungary which have been established in a foreign Member State in order to circumvent the more severe Hungarian regulations.
21 December 2010