ECHR decision of 28 April 2020 in the case "ZRT Television company (ATV ZRT) V. Hungary" (aplication N 61178/14).
in 2014, the applicant company was assisted in preparing the aplication. The aplication was subsequently communicated to Hungary.
The case successfully considered an aplication against the ban on a TV company calling a political party "ultra-right", established on the basis of the application of a legislative ban on expressing any opinions to a news anchor. The case violated the requirements of article 10 of the Convention for the protection of human rights and fundamental freedoms.
Article 12 Of the law" on mass media "prohibited a news anchor from voicing any "opinion". The applicant company owned a television channel that was found to be in violation of the said law, since the news program allowed the host to describe the political party Jobbik as "far-right". It was forbidden to repeat the statement. The applicant company unsuccessfully appealed against this circumstance, claiming that the term "far-right" was widely used in relation to the Jobbik party, that such a definition was justified by political and social science, and that it reflected the party's position in the country's Parliament.
POINT OF LAW
Regarding compliance with article 10 of the Convention. The important question in the present case was not whether article 12 Of the law " on mass media "was in principle sufficiently prescient, in particular with regard to the use of the term" opinion", but whether the applicant company knew or should have known, when voicing a statement containing the definition of" ultra-right", that in the circumstances this expression would constitute"opinion".
The question of whether the Hungarian courts could have been expected to apply the campaign in the case is closely related to the question of whether, in a democratic society, it was necessary to prohibit the use of the term "ultra-right" in news programs in the circumstances of the case and in light of the legitimate purpose of such a restriction.
The concept of "opinion" in article 12 of the Law "on mass media" seems to have been too vague, extending to all types of definitions. In view of the insufficiently precise wording of the legislation, the Hungarian courts had to ensure that the contested norm only concerned expressions that could negatively affect balanced and impartial statements on issues of public interest and that could be subject to restrictions that could be appealed, and that the norm did not become an instrument for suppressing the right to freedom of expression, which covered activities and ideas protected by article 10 of the Convention.
In the course of the case, the Hungarian courts offered various methods of analysis for deciding on the nature of the concept under appeal. The Hungarian authorities also failed to demonstrate the existence of established judicial practice. This situation calls into question whether the interpretation of the rule as formulated by the higher courts of Hungary in the applicant company case could reasonably be expected, namely that the statement containing the definition of "ultra-right" was an opinion.
More importantly, there was no indication that the Hungarian courts, in assessing the nature of the contested concept, would have tried to determine whether the legislation should have promoted a balanced transmission of news information. Although the Hungarian constitutional court referred to the right of the public to receive factual and unbiased information in making this decision, it simply noted that public opinion could be influenced by using a definition without demonstrating whether the concept in question, in the circumstances of the present case, was capable of impairing the balanced presentation of material of public interest.
The European Court of justice accepted the applicant company's more General argument, presented in the Hungarian courts, that political party communications often used definitions (green party, conservative party, etc.) that simply indicated the political goals of the parties and their programs and were not an opinion or value judgment about the parties that could cause the audience to be biased.
The applicant company also referred to the factual circumstances of the case, namely that the contested definition was used in connection with a demonstration that was provoked by an anti-Semitic statement made by a member of the Jobbik party. In these circumstances, the court found that these factual circumstances were important for the claim that the definition of "ultra-right" did not concern the assessment of someone's behavior in relation to their moral qualities or personal opinions of the speaker, but rather the party's position in the political sphere in General and in the country's Parliament in particular. However, the Hungarian courts did not examine the circumstances surrounding the presentation of the information that was the subject of the complaint. Instead, the constitutional court of Hungary held that the provisions Of the law on mass media did not require that the opinion had a factual basis, thus clearly deeming irrelevant any defence arguments of the applicant company based on the truth and factual accuracy of the definition used.
Taking into account the different approaches of the Hungarian courts to identifying differences between facts and personal opinion, the purposes of the relevant provisions Of the law on mass media, and the circumstances of the case, the applicant company could not have foreseen that the definition of "ultra-right" would be interpreted as an opinion. Furthermore, the applicant company could not have foreseen that a ban on the use of the definition in a television programme would be necessary to protect the unbiased nature of the news presentation. Consequently, the restriction applied to the applicant company when using the contested definition was a disproportionate interference with the company's right to Express its opinion.
The case violated the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court of justice held that the finding of a violation of the Convention would in itself constitute sufficient just compensation for non-pecuniary damage.