In this legal analysis, ARTICLE 19 comments on the compatibility of the recently passed Act on the Defence of National Sovereignty (2023) (the Act) in Hungary with international free expression standards. ARTICLE 19 is gravely concerned about the passage and anticipated use of the Act, which we view through the lens of years of attacks on the media and civil society in Hungary. It threatens to put a final nail in the coffin for any ability of media and civil society to independently operate in the country.
In the lead-up to its passage, the Act had already been subject to significant scrutiny both regionally and internationally. ARTICE 19 finds this was for good reason. The Act establishes a non-independent body with an investigatory mandate to demand documents or testimony — both physical and digital — from any organisation or person in Hungary within 15 days. The target of such an investigation can include journalists, media organisations, civil society, and any person or entity engaged in ‘advocacy’. Initiating an investigation does not require any criminal suspicion or judicial review, and failure to comply can lead to public censure and forwarding of information to other agencies. This breadth is entirely intentional; the Act’s own commentary plainly asserts that it grants ‘wide powers of investigation in relation to the organisations under investigation, state and local government bodies and other organisations and persons involved in the case’.
While media and media activities are not referenced directly in the text of the legislation, the Act is so broadly worded that it captures media in its plain language. Political candidates that accept foreign funding are also subject to up to three years in prison. It is unclear the extent that prohibitions on foreign support of a candidate would capture; for instance, it is not clear how this would apply to an independent media outlet with some foreign grants merely covering the candidate or criticising an opponent. As such, the severity of the threat posed by the Act cannot be overstated.
ARTICLE 19’s key concerns with the Act include:
- The Act grants sweeping powers based on vague terms. The Act’s core provisions are rooted in vague terminology, including ‘information manipulation’, ‘disinformation activities’, and ‘activities aimed at influencing democratic debate’ that are not defined in law. It is ostensibly passed to for the ‘protection of national sovereignty’, which is also not defined.
- The Office for the Defence of Sovereignty (the Office) is not independent and has limitless investigatory power over any employee of a media or civil society organisation, with no requirements of criminal suspicion, judicial oversight, or basic due process safeguards. The Office is formally granted investigative powers, including rights of inspection and copying, in physical or electronic medium, of any organisation or person in Hungary. It has the power to compel any member of the staff of a media or civil society organisation for either written or oral information or documents. The goal of these measures is stated to be the ‘mapping’ of organisations, which is not a legitimate aim under international law. Moreover, the Office is appointed directly by the President and the Prime Minister and is not subject to any legislative or other independent oversight.
- The Act creates a chilling effect on media and civil society, amounting to unlawful interferences with both the rights of expression and association. International and regional standards make clear that the imposition of invasive investigative measures, as well as stigma created by publication of non-compliant cases, amount to interferences with the right of freedom of association. Where these measures are taken to harass media outlets, they also constitute interferences with freedom of expression. Granting broad investigative powers to question any member of a media organisation or nonprofit, and publish or share the results with any government agency, is not a proportionate or necessary means to achieve any legitimate aim.
- The Act fails to protect data and allows for sharing of journalist information across agencies, including law enforcement. The Act is vague in the limited instances it claims to provide protections, and it allows for unlimited sharing of collected information with other agencies. This appears to create a dangerous loophole that allows law enforcement to circumvent any legal requirements to collect evidence against journalists or, worse, seek out their sources
- The Act imposes disproportionate criminal sanctions on candidates who either receive funding or ‘property derived from’ foreign funding to influence the electorate, threatening to chill political opposition to the majority. The scope of this is concerningly broad: an independent media outlet that merely receives a grant from abroad, and goes to support a candidate or devote media space to their support, might be considered under the breadth of the law to trigger criminal sanctions for the candidate.
ARTICLE 19’s key recommendations:
- The Hungarian government must repeal the Act immediately as it is fundamentally incompatible with basic human rights standards on freedom of expression and freedom of assembly. As drafted it threatens the very existence of independent media and civil society in Hungary.
- The government must take immediate steps to protect and promote an independent environment for media and civil society in the country.
- The European Commission should launch infringement proceedings against Hungary and challenge the law in the European Union courts.