Blog post by Borbala Toth – Online posts under attack

By Borbala Toth

What can have greater chilling effect on freedom of expression, than the unclear content regulation stipulations – just to mention one of the major shortcomings of the Hungarian media laws introduced in 2010? A disturbing phenomenon, which has appeared lately: threatening and harassing those, who post online.

The country’s Penal and Civil Codes do not distinguish between forms of expression when it comes to slander/libel, defamation or incitement. Among other things, the Civil Code bans insulting one’s honour while the Criminal Code bans defamation, slander/libel, and public scare-mongering “before great publicity”.

A 1994 Constitutional Court decision stated that public figures’ tolerance level should be higher than everyday citizens’. The Criminal Code has been rarely used in defamation or libel cases, and court decisions based on the Civil Code generally ended up defending freedom of expression. At least until recently, when both criminal and civil proceedings have started in several cases based on online activities.

In November 2012, pursuant to an announcement of alleged defamation and libel, the police launched a criminal investigation concerning comments that appeared below articles about an MP of the governing party on news sites Nepszava.hu and Hir24.hu. The comments in question contain remarks about the MP. The police asked the publishers of the two sites to release personal data of commenters, including IP addresses, even though in case of Hir24.hu one can comment by a Facebook registration. Despite Nepszava.hu denied to provide the requested information, a commenter was summoned by the police as a witness, who – unlike a suspect – has a legal obligation of veracity.

In April 2013, the police started an investigation based on comments appeared on local news site Delmagyar.hu about another MP of the governing party. The competent police officer said that the MP made a criminal complaint for defamation based on comments. The secretary of the MP denied such complaint. The police has interrogated six persons as suspects.

No decision has been made in these two recently launched cases, and it is likely that if they will be brought to court at all, the decisions will favour the defendants in the name of freedom of expression.

Nevertheless, two other recent cases indicate the opposite. In June 2012, the Supreme Court condemned the publishers of two blogs for comments published by users. The comments were deleted soon after their publication, but the Court declared that the comments harmed the plaintiff’s right for good reputation stated in the Civil Code regardless of how long they were visible on the site.

In January 2013, a blogger was condemned for incitement based on the Penal Code. The basis of the decision was a blog post from 2009, when he incited for beating up members of the largest ethnic minority group in Hungary. The defendant has appealed.

Based on these examples it seems that the number of attacks on online posts is increasing. Investigations and trials may take years, and as the examples indicate, courts do not necessarily promote freedom of expression.

The governing Conservative Fidesz–KDNP coalition, executing a complete overhaul of Hungary’s legislative system, has not left the Penal and Civil Codes unchanged, which are planned to be in operation starting in 2013 and 2014. The draft Civil Code introduces a so-called ‘damnification fee’ for the non-pecuniary damages caused by violating civil rights, which may foster proceedings against commenters and publishers further, opening up Pandora’s box causing chilling effect, possibly triggering silence and fear among users.

Borbala Toth is a freelance researcher.

 

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