Does HUMED implement AVMSD?

A couple of weeks ago I was in Brussels speaking at a public hearing on the interplay between ICTs and human rights. It was a very interesting event with great insights from all sides, and I thank the Green MEPs Jan Phillip Albrecht, Eva Licthenberger, Indrek Tarend and Heidi Hautala for organizing it and inviting me to participate.

While the discussions were primarily focused towards freedoms online, with a lot of focus on ideas such as filtering and blocking, state interference in communications and, interestingly, how state and corporate censorship can be seen as interference and violation of free trade agreements, an issue I’ve been looking into a bit and will undoubtedly write more about in coming months.

Despite this, I did at some point during my intervention mention the Hungarian media law and how it was a fine example of how double-edged legislation such as the Audiovisual Media Services Directive could be abused. This, and many other things that I said, provoked a fairly strong response from Gerard de Graaf, the Head of Unit for the co-ordination of the Europe 2020 Strategy in the European Commission’s Secretariat-General. While some of his criticisms were fair, many were pretty silly. For example, dismissing my critique of the Law Enforcement Working Party’s idea to erect a “Virtual Schengen” around Europe [1] [2] as a red herring is a bit rude, considering that it appears that this is actually being considered – it’s not like I’m pointing at some figment of my imagination here.That said, to his merit, he also dismissed the “Virtual Schengen” idea itself as nonsense.

But by and large the Commission’s ability to be dismissive is nothing new. What struck me though was his comment on the Hungarian Media Law, which has been bugging me since the event and I felt I had to disassemble a bit (my boldface):

“The Hungarian Media Law was passed in review. This was not a transposition of the AVMS, just to be precise, this was an autonomous act of the Hungarian government which we addressed and attacked under European law, in so far as we could use European law to attack those aspects of the Hungarian Media Law. It is wrong to think that the European Union has enormous wide discresion to take action against all member states whenever there is an issue of fundamental freedoms at stake. We have to act like any citizen, like any organization, within the competences we’ve been given. We have the charter of fundamental rights, but the charter of fundamental rights permits the commission to intervene only insofar as it involves the exercise… the implementation of European legislation.”

Now, first off, regarding the question of the new Hungarian Media Law being a transposition of the AVMSD, I didn’t feel confident to comment on this at the hearing because I didn’t have the references on hand, but I distinctly remembered several conversations while in Hungary only some weeks previously where the Hungarian Media Law came up, amongst which was a press conference in the Hungarian Justice ministry where I specifically asked the question of the Justice ministry representative and Frank La Rue, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, whether it could be possible that since Hungary is coming under heavy criticisms for their media law and they themselves keep pointing at the AVMSD as their basis, that the directive itself may be flawed (to which I got an evasive answer from the Justice ministry representative – the guy was keen enough to realize the feedback implied). To boot I’ve also read enough of the English translation to have seen the striking similarities… but nevertheless, I decided to look it up.

The Eur-Lex database cites 10 different references in Hungarian law regarding transposition of the AVMSD, including three specific ones:

• 2010. évi CIV. törvénya sajtószabadságról és a médiatartalmak alapvető szabályairól
• 2010. évi CLXXXV. törvénya médiaszolgáltatásokról és a tömegkommunikációról
• 2011. évi XIX. törvénya sajtószabadságról és a médiatartalmak alapvető szabályairól szóló 2010. évi CIV. törvényés a médiaszolgáltatásokról és a tömegkommunikációról szóló 2010. évi CLXXXV. törvénymódosításáról

Now, my Hungarian is only marginally better than my French (which I couldn’t utter a word of to save my life), but some searching, machine translating and asking around leads me to believe that these are the Hungarian media law of 2010, otherwise known as “law of mass communications and media services”, the ”freedom of the press law and the basic rules for media” act, and the 2011 amendment to these acts in response to the criticisms that came from the Commission. The CMCS’s page on Hungarian media legislation confirms this belief. (If I’m wrong on this, please let me know.)

As for the claim that the Commission took every action within its competency, it is rather far fetched. Everybody who’s looked at the massive and scary competencies that the EU has given itself knows that there’s a lot of clever rules lying around for just this kind of situation. Eva Lichtenberger, during the panel, mentioned Article 7 of the TEU, which I was going to bring up anyway. Although TEU article 7 is a very heavy handed tool, it was put into the treaty out of a fear that the likes of Jörg Haider might rise to power and start doing bad things. I’m not sure if Orbán Victor deserves to be likened to Jörg Haider, but there’s certainly some likeness, and the situation clearly warrants it – perhaps the EU Commission doesn’t think so, but the UNHCHR and the OSCE certainly do, and I’d say that they have a clearer perception of these things, seeing as how they aren’t subservient by the country in question as part of the EU presidency and that looming veto power in the council…