Aspects of the protection of freedom of expression in public life as a fundamental right: from public figures to public affairs
Abstract
The Hungarian Constitutional Court considers the freedom of speech and the freedom of press as “particularly precious”, which can only be restricted in particularly justified cases and under strict conditions. The present study first provides an overview of the earlier case-law of the Constitutional Court concerning freedom of expression, as well as its robust findings (still relevant and referenced today), both in general terms (with a general outline of the constitutional aspects related to freedom of expression) and regarding public figures, public affairs and those exercising public authority. In that scope, the study focuses primarily on criminal-law issues where the protection of human dignity and the right to freedom of expression conflict; however, that requires the enumeration of the general aspects of constitutional law, which provide general guidelines for the cases of conflict between those rights. After that the study describes the turn in the case-law of the Constitutional Court that led to a clear shift to prioritizing the objective aspects (a public affair affected by the case or the lack of that) regarding the restriction of freedom of expression related to public affairs stemming from law (and court case-law), and by which – nowadays – subjective aspects (a public figure affected by the case and the specific means of acting as a public figure) are only recognised as a part of that assessment.
Keywords: freedom of speech, freedom of expression, freedom of press, human dignity, public figures, defamation
I. Introduction
Freedom of speech (or “freedom of expression”)[2] and the closely related freedom of the press are (two) constitutional rights of paramount importance for which special protection was and is provided both by the “Old” Constitution of Hungary, that is the Constitution amended by Act XXXI of 1989 (the Rule-of-law Novel),[3] and the new constitution (the Fundamental Law of Hungary)[4] effective as of 1 January 2012. This special protection is not only manifested on the level of the wording of constitutional norms [paragraphs (1)-(2) of section 61 of the Constitution; paragraphs (1)-(2) of Article IX of the Fundamental Law], but the case-law of the Hungarian Constitutional Court (hereinafter: Constitutional Court) also considered and still considers these rights as “particularly precious”,[5] which can only be restricted in particularly justified cases and under strict conditions.
[1] This research was carried out using the European Constitutional Communication Network (ECCN) database, within the framework of the research project of the Comparative Constitutional Law Research Group at the National University of Public Service, with the support of the AURUM Lawyers’ Club for Talented Students Foundation.
[2] Antal Ádám and Gábor Halmai argued that the terminus technicus “freedom of expression” has a broader meaning than “freedom of speech” (Antal Ádám – Gábor Halmai: A véleményszabadság problémái az alkotmánybíráskodásban [The problems of freedom of expression in constitutional adjudication], Acta Humana 1996/24, 3–20, 11.) However, the terminus technicus “freedom of expression” is somewhat odd in Hungarian terminology, while the term “freedom of speech” (or literally in Hungarian the “freedom of opinion”) is more common. Nonetheless, all of the above terms are used basically as synonyms in jurisprudence, thus, they are used with the same meaning. (Cf. András Koltay: A véleménynyilvánítás szabadsága, a sajtószabadság és a közérdekű adatok nyilvánossága [Freedom of expression, freedom of the press and disclosure of data of public interest], in András Jakab [ed.]: Az Alkotmány kommentárja II (Budapest: Századvég 2009) 2219–2303, 2223.
[3] Act XX of 1949; hereinafter: “Constitution”.
[4] Hereinafter: “Fundamental Law”.
[5] Cf. primarily: Decision 7/2014. (X. 31.) AB of the Constitutional Court, Reasoning [39].