Zoltán J. Tóth: The jurisprudence of the Constitutional Court of Hungary concerning freedom of expression in relation to the right to human dignity[1] (ABSz, 2023. Különszám, 20-30. o.)

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.

The goal of this study is to provide a brief overview of the transition process whereby the Constitutional Court gradually started focusing on the assessment of objective criteria as opposed to asserting subjective criteria; as a result, when it comes to the restriction of freedom of expression related to public affairs, the key aspect - particularly in criminal cases, regarding the constitutional assessment of defamation or slander - is

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no longer the person (e.g. public figure) whom the opinion (or press publication) is about, but rather the type of issues (that is, public affairs or non-public matters) it is related to. Nonetheless, the fact that a public figure is affected remains a possible assessment criterion, but it is to serve the purpose of (and be subjugated to) ascertaining whether or not a public affair lies behind the case under constitutional assessment (and, thus, whether or not the special protection that must be asserted in connection with the freedom of expression related to political or social affairs is to be applied for the "speech" at issue).[6]

To that end, we will first provide 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, we will focus 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 - as a par excellence discussion of our topic - we will describe 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.

II. The case-law of the Constitutional Court concerning freedom of expression based on the Constitution

II.1. The credo of the Constitutional Court

According to the first, landmark decision of the Constitutional Court concerning freedom of expression, that is, Decision 30/1992 (V. 26.) AB of the Constitutional Court, freedom of expression has a prominent place among the constitutional fundamental rights; in effect it is the "mother right" of several freedoms, that is, the so-called fundamental rights of "communication". These fundamental rights include the freedom of expression and of the press; the freedom of artistic and literary creation and the freedom to distribute works of art; the freedom of scientific research and the freedom to teach scientific knowledge; the right of assembly; as well as the right to freedom of conscience and religion. According to the credo of the Constitutional Court expressed in the said decision, freedom of expression "renders possible the individual's reasoned participation in the social and political life of the community. Historical experience shows that on every occasion when the freedom of expression was restricted, social justice and human creativity suffered and humankind's innate ability to develop was stymied. The harmful consequences afflicted not only the lives of individuals, but also that of society at large, inflicting much suffering while leading to a dead end for human development. Free expression of ideas and beliefs, free manifestation of even unpopular or unusual ideas is the fundamental requirement for the existence of a truly vibrant society capable of development."[7] Furthermore: "[t]he right to free expression protects opinion irrespective of the value or veracity of its content. Only this approach meets the requirement of ideological neutrality (...). The freedom of expression has only external boundaries: until and unless it clashes with such a constitutionally drawn external boundary, the opportunity and fact of the expression of opinion is protected, irrespective of its content. (...) The Constitution guarantees free communication - as individual behaviour or a public process - and the fundamental right to the freedom of expression does not refer to the content of the opinion. Every opinion, good and damaging, pleasant and offensive, has a place in this social process, especially because the classification of opinions is also the product of this process."[8]