Know Your Rights! What Can You Say and What You Cannot Say?

The right to freedom of expression and its value

Freedom of expression is one of your most widely protected fundamental rights. It ensures that you can participate and communicate freely in public life. In a true democracy, there is room for debate, which is designed to shape the views of even those who hold stupid or extreme views. That is why your opinion, whatever its content, is protected. Silencing, whether in form or content, is a breeding ground for stupid or extremist views. Consequently, it is not what you say that is protected, but the fact that you can express your opinion, i.e. that you can exercise this right.

Freedom of expression includes the expression of opinions on public issues (in private conversations, social media, demonstrations, press), as well as symbolic expression (e.g. the use of a badge), the choice of style and artistic freedom. Linked to this is the possibility of access to information of public interest, as informed opinion can only be truly expressed if it is well-informed.

1. Limits to freedom of expression

Contrary to popular belief, freedom of expression is not unlimited. Although it is very strongly protected, there are cases where your right can be restricted. This means that you can face legal prosecution for speaking out. A limitation may be based on, for example:

• the reputation, dignity, privacy of others (rights of others),

• personal data of others (name, address, etc.),

• certain secrets (official, business, lawyer, medical, etc.),

• public safety and

• public order in exceptional cases (constitutional values).

It is important to stress that it is for the court to consider and decide whether the restriction on freedom of expression is justified and lawful.

2. Assessment
There are a number of clearly identifiable aspects to the assessment. These can be prepared for in advance in any procedure.

The courts

• first examine whether the speech is in the context of a dispute about public affairs;

• second, whether the speech is a value judgment (opinion) or a statement of fact (the former is afforded greater protection);

• third, whether the speech exceeded the limits of freedom of expression (see point I.1).

3. What is public policy?

Speaking on public affairs is widely protected to ensure that everyone can participate in the public discourse and thus in the shaping of public affairs.

A public issue is anything that affects a large group in society or a local community:

• party politics and world politics;

• governance and the functioning of public bodies;

• matters relating to public funds;

• the quality of public services;

• issues affecting public life in the business world;

• the environment.

Examples

• For example, speaking out on a clearly public issue, speaking out about a battery factory being built, criticising the actions of public authorities or, where appropriate, local government.

• Similarly, it is public expression to criticise a decision, action or speech by a politician. Here, the quality of the public figure is also important, since they must tolerate offensive criticism (see the next section for a more detailed explanation of why and how they are required to tolerate it.)

• From the above list, it is perhaps less clear why judicial practice regards business issues as a public matter. Businessmen and other stakeholders often argue that commercial secrecy or commercial interest justifies keeping information about their company out of the public domain (not to be discussed in the press, etc.). However, there are cases where a company is supported by substantial amounts of public money, or even if no such money is involved, the public nature of the business justifies it, for example, if the company's senior managers or owners have close links with the government.

The Barabás family, who are suing Magyar Narancs, do not want to accept the public nature of business, as they have invoked the GDPR to prevent the press from disclosing information of public interest about their company in the course of their investigative work. As a result of the court's interim measure, the newspaper was only allowed to publish the article by covering up the information in question. However, the influence of the economic activity, the large amount of public money spent and the investments with a significant impact on the environment all justify the disclosure of this information to the public.

4. What if I criticize a public figure or a person in public office?

Unlike private individuals, a public figure or a person exercising public authority should generally tolerate criticism because it is in fact directed at public life.

However, it should not be tolerated in the event of criticism

• is not related to the person's public role or exercise of public authority, or

• although it is related to the person's public activities, it offends the very core of human dignity (or the person's private sphere).

For example, even a less harsh criticism of a school principal on matters outside his or her school activities may be offensive. The more power one exercises (see public officials, elected officials), the more harsh criticism one is obliged to tolerate.

Is an NGO and its staff a public actor?

It depends! In each individual case, it is necessary to look at how closely the activities of the organisation and its staff are linked to public affairs. The organisation itself is more open to criticism than its staff. However, some employees will only have a higher tolerance level if they themselves make public appearances. So an administrative employee is judged differently from someone who is frequently in the media.

Examples

• In 2017, the Pécs Assembly adopted a declaration against the Emberség Erejével Foundation in Pécs, asking the people of Pécs not to rent property to the "Soros campaign centre". The assembly's statement claimed that these campaign centres are set up to interfere in Hungarian elections and to promote the resettlement of migrants. On this basis, the municipality-owned Zsolnay Heritage Management Non-profit Ltd. of Pécs denied Emberség Erejével's request to rent the space. With the help of TASZ, the Foundation turned to the Equal Treatment Authority (EBH), which found the infringement. An important element in this case is that the infringement was not found by the court on the grounds of "labelling", but on the grounds of discriminatory refusal to rent the space.

• In 2018, the now defunct newspaper Figyelő published a well-known article entitled The speculator's men. In the article, the newspaper listed the staff members who worked for the better-known NGOs and claimed that they were "mercenaries" working to enforce the will of George Soros. Although the Metropolitan Court of Budapest has condemned Figyelő, the verdict has been criticised by many who argue that freedom of expression extends to such extremist opinions, especially on public issues.

5. What is the difference between a value judgement and a statement of fact?

A value judgement (opinion) is an assessment, whether true or false, that is protected.

In contrast to a statement of fact, it is possible to prove whether it was a true fact. You are usually held liable for your statement if you make a false statement or rumour about someone, i.e. if you lie. A rumour can also mean, for example, that you share a Facebook post stating a false fact. Only claim something that you can prove is true.

False statements of fact can be defended in a very narrow range of circumstances, but this is something that 'professional' opinion formers and politicians have to put up with. In other cases, real, true statements of fact may be restricted. For example, even public figures and, within a narrow range, even those exercising public authority, and private individuals in particular, may claim protection of their personal data.

Boundary cases: value judgements on the facts

In Karsai v Hungary, the European Court of Human Rights (ECtHR) ruled on the question of whether freedom of expression is protected when a historian, in relation to the writings of another historian praising Teleki Paul, wrote that right-wing press products defame, incite and incite Jewry. He concluded that the lines in question were value judgments and therefore protected.

The mere fact of calling someone a communist or a fascist - although it may appear to be a statement of fact or an extreme expression of opinion - is not a value judgment punishable under the case-law.

Examples

• Our client called a local councillor untalented in a Facebook post. The court of first instance found him liable, but the court of appeal acquitted him. The representative has to tolerate such criticism, and it is a matter of personal conviction who is considered untalented, and therefore the comment is a value judgement, an opinion.

• In the previous example, we saw that the second instance corrected the misinterpretation of the first instance. Unfortunately, this does not always happen. In his article in PestiSrácok, Dániel Ács made allegations about the 444.hu journalist, Dániel Ács, that although a tender was published for the position of editor-in-chief of the newspaper of the IX district municipality, it was intended for the "mayor's kisser". The article, albeit in a conditional way, contained lies (untrue statements of fact), and this was established by the court of first instance. The court of second instance, on the other hand, held that, as they were only assumptions and conclusions, they enjoyed the protection of freedom of expression as a pre-judgment.

6. The legal definition of vulgar language

Vulgar language often serves stylistic purposes and is therefore also protected. Therefore, if you feel you have a reason to swear, you should not avoid using vulgar, obscene language when speaking in public. You can say, for example, that a Tokaj wine is shit, or a local councillor is a prick.

When you criticise another person, make sure that your language does not offend the very core of their humanity: it should not be unduly hurtful or degrading.

Examples

• Courts sometimes interpret freedom of expression differently, so their assessment leads to different results. TASZ's client, who called the deputy mayor of Győr a "prick" in a Facebook comment, had to take the first instance judgment to the court of appeal in order to protect his right to freedom of expression. The court of first instance convicted the author of the comment for defamation, but the court of appeal acquitted him. The court found that the comment in question constituted an expression of opinion on a matter of public concern and that the deputy mayor was a public figure. Consequently, even with the "undoubtedly crude and obscene language used", the comment enjoys the protection of the right to freedom of expression.

• In Uj v Hungary, the EJEB had to decide whether an opinion piece in which the author, Péter Uj, sharply criticised the wine of a state-owned company was protected by freedom of expression. As the article put it, "hundreds of thousands of Hungarians are proudly, even reverently, drinking the shit; it is fed (watered) to the much-suffering people, and at least twice (cf. state-owned company) paid for with it, and is explained with the most vile demagogy, from the right and the left". The EJEB noted in its judgment that the vulgar expression could also serve stylistic purposes. In the case in question, it also assessed that the criticism of the state-owned company was a matter of public concern and therefore covered freedom of expression.

II. Spaces for expression

You can express your opinion in a number of forums. You can express your opinion in a casual conversation, an interview, a speech at a demonstration or a Facebook comment. The law makes no distinction between online and offline expressions of opinion, and you can be just as liable to defamation or libel online as you can in person. However, in the case of unlawful speech, the degree of publicity your speech has received may play a role. In the case of defamation, the internet, press coverage, but also a large private event in a private setting can be considered as a high publicity and therefore aggravating circumstances.

III. Possible sanctions - who can help?

1. What should I expect if my opinion is considered offensive?

First, let's look at if you are being prosecuted for expressing an opinion as an individual. The rules for the press and the liability of press staff will be discussed later.

So there are limits to freedom of expression. It is illegal to make false statements about anyone (with a few rare exceptions), just as it is illegal to misrepresent the truth. In the same way, speech that is unjustifiably offensive or insulting is not protected. In such cases, however, it must also be considered whether the speech relates to a matter of public concern and whether the persons criticised are public officials or public figures, because the scope of freedom of expression is wider in such cases.

If you criticise someone publicly and they think the criticism violates their rights, they have several legal options:

• you can bring a civil action for infringement of your rights as an individual (a personality lawsuit);

• you can initiate criminal proceedings (for defamation or libel);

• and, if the false statement appeared in the press, he can bring a press-correction action against the press organ.

Importantly, if the person who is clearly criticised cannot be identified from your statement (you do not have to name him or her, just recognise him or her), he or she cannot bring proceedings against you. For example, if your communication refers in general terms to individuals or members of a group, you have a small chance of being sued.

2. What determines which procedure is launched?

The criticized person may choose to bring a civil action under the law of personality rights for violation of his or her privacy or reputation, or to bring a criminal prosecution for defamation (statement of facts) or libel (value judgement). You may also bring these actions in parallel.

In a defamation action, the court will examine whether the plaintiff's personality rights, usually his or her right to reputation, have been infringed. The least severe legal remedy in such an action is a declaration of infringement and the most severe is an order to pay damages or compensation. These proceedings are usually lengthy and costly. The experience of TASZ is that only in the case of very serious offences against the dignity of the person criticised do the courts rule in favour of the person criticised.

In criminal proceedings, the charge is most often defamation or libel. In such cases, the court decides whether the opinion expressed in public is capable of defaming the person. In criminal proceedings, a conciliation meeting is often held. If the conciliation is successful, the proceedings may end at that point. If a defamatory or libellous statement is made in the free discussion of public affairs through a press product or media service - provided that it is not aimed at a manifest and grossly degrading denial of the victim's human dignity - no crime is committed!

Defamation can only be committed by establishing facts. If it can be proved in the course of the proceedings that the content of the statements is true, the case may end in acquittal (although this may not be proven in all proceedings). It is important that the person who made the statement must prove its truthfulness. It is therefore recommended that you make a factual claim only after you are satisfied that it is true.

Although the law allows for imprisonment for defamation or libel, such proceedings typically end with a fine.

You may also be prosecuted for unlawful use of personal data under the GDPR (European General Data Protection Regulation). Unfortunately, such cases are also increasingly affecting the press, where it is legitimate for journalists to handle data. If you are being prosecuted for exercising your freedom of expression under the GDPR, contact the Legal Helpdesk of TASZ.

3. What can I expect as a journalist?

As a journalist or member of the press, you cannot commit libel or defamation offences in your job if the report is on a public matter and does not constitute a clear and serious offence against human dignity. Proceedings against the press are most often brought for press misconduct.

If a person considers that a newspaper article contains a false statement of fact, he or she can apply for a press rectification. In such a case, you must apply to the press body within 30 days of the publication of the disputed article, stating what the incorrect statement is and asking the press outlet to publish a corrective statement. The notice must be published within 5 days for newspapers, internet press products and news agencies and within 8 days for on-demand media services (e.g. video available via streaming service providers). If a periodical newspaper commits the infringement, it must publish the rectification in the nearest issue within 8 days of receiving the request. For linear media services (e.g. TV programmes), the rectification notice must also be published within 8 days, at the same time of day.

If the press fails to do so within the deadline, a press rectification action can be brought against it. It is important to note that a press censure cannot be requested for expressing an opinion or value judgement.

Such lawsuits are about proving whether the statement of fact was true or false. As a journalist, you have an increased responsibility for the accuracy of the facts reported and the credibility of the source.

Correction proceedings can only be brought against a media service provider, press product or news agency registered with the NMHH. Smaller blogs and non-profit providers are typically not registered with the NMHH, so there is no obligation to rectify the situation and the case should be closed.

As a journalist, you should also take care to protect your sources. You have a responsibility to ensure that your sources can safely communicate their knowledge to the press and are not harmed in the future. The importance of protecting your sources is recognized in law: as a journalist, you do not have to declare from whom you obtained your information.

Good to know checklist

• The first thing to emphasize in a legal proceeding is that the speech is a matter of public concern.

• This should be particularly important in the case of proceedings against a public authority/government body or a public figure. Here it should be specifically emphasized why and how the criticism is related to the discussion of public affairs.

• Value judgements are given increased protection, so you have a better chance of winning if you argue in favour of them (and they are value judgements). If it is a statement of fact, it is important that the statement is true. False statements of fact are only protected in a very narrow range.

• It is worth explaining why your speech does not go beyond the limits of freedom of expression: for example, in relation to a public figure, that your speech is not self-serving and does not violate the identity of the person being criticised, or that it relates to the public figure's public activities and in no way violates the core of his or her human dignity.

• TASZ's collection of arguments helps you to make your point.