Defending independent media in an illiberal regime: new roles, challenges and responses

HCLU TASZ logoGuest article by Attila Mráz, Hungarian Civil Liberties Union (HCLU). MLDI has been working with HCLU since 2011 to provide legal defence to journalists, bloggers and independent media in Hungary.

What kind of challenges do journalists face in the illiberal democracy, or hybrid regime of today’s Hungary, and how can we step up to adequately respond to them through legal means such as litigation? From journalists’ physical exclusion from public spaces to having to literally chase politicians for answers, from forced closures to dismissal, media workers overcome a wide range of obstacles while fulfilling their democratic functions — and they need creative methods of legal defence to continue their work. But what is the role of legal defence in this context, and what particular responses are needed in this environment? The Hungarian Civil Liberties Union’s answers follow.

The same but still different

Journalists and the media are in need of legal protection everywhere, even where liberal democratic standards are properly embedded in constitutional protections and respected by those in power. As long as the media holds political power accountable, political power will – regrettably but predictably – use legal and other means to minimise democratic control and accountability. Defamation lawsuits launched by public figures against journalists are everyday business in Euro-American established democracies just as much as in Hungary. So, too are struggles to access information of public interest that political office-holders wish to withhold – often to save their own reputations from (evidence-based) claims of corruption, dishonesty, or incompetence.

Legal action is therefore necessary everywhere to protect a media environment that dares and is able to exercise democratic control. An effective legal defence of the media (anywhere in the world) requires expertise, creativity, dedication and resources, yet in well-established liberal democracies it can also rely on a fairly stable, widely accepted and enforced system of constitutional guarantees. In illiberal, hybrid regimes, this is not the case.

What is left for the legal defence of media in places with diminished constitutional guarantees and higher courts of questionable independence, such as Hungary? My aim is to show there is a lot left to do. Though I hope to outline some general tendencies, my insights will rely on the very particular legal expertise and rich case history of the Hungarian Civil Liberties Union (HCLU), a major human rights NGO which has been protecting media workers in Hungary for almost a quarter of a century, and whose litigation in defence of journalists has been generously supported by MLDI for several years.

Fighting silence and exclusion: access to information issues

Independent media outlets cannot work without physical access to information: professional, objective, unbiased reporting requires that journalists see certain places with their own eyes, and hear certain people with their own ears. But venues crucial for reporting can easily be made inaccessible for them through administrative means, abusing the lack of regulation. Those who are denied access to public spaces often have no legal standing to challenge decisions of exclusion in court, or sometimes judicial review of such decisions is not available at all. Meanwhile the lack of adequate procedural guarantees does not seem to be a chance imperfection in a legal system put together in good faith, but are at the very heart of an illiberal regime.

A clear example of this is an ongoing case in which the HCLU represents a journalist who wanted to report on an immigration detention center. He duly asked for permission to enter the premises – and the manager of the detention center wrote a letter in reply, in which he was denied entry. But what can you do with a letter? Unfortunately, there is no right to appeal against letters. If representatives of state institutions exclude journalists from their premises without ever issuing formal administrative decisions that are subject to judicial review, exclusions may be purely arbitrary.

Similarly, another client of ours wanted to gain admission to the weekly press conference of the Hungarian Government. Working for a heavily critical local political blog in a town in Eastern Hungary, she applied for admission every week, in vain. No matter how early she applied, miraculously, no places were left by the time her application was received. (Lately, nationally relevant independent online news portals have reported similar experiences.)

Yet there are even simpler ways to avoid the critical attention of independent media: just don’t answer their questions, ignore their emails, and turn away from their mics at public events. This is becoming a regular occurrence in Hungary.

In one of the most widely known cases of the HCLU, journalists who wanted to interview MPs were expelled from and denied further access to the Parliament building, apparently because their behavior was inconvenient to Parliamentarians. The Speaker of the House did not have to provide any lawful reason for the expulsion, nor is there currently any judicial review against his decision.

These techniques are smart in many ways. Firstly, they help to create heavily biased media reporting since only government-friendly press organisations will be able to report on crucial events. Secondly, they discredit independent media outlets, as they are unable to show multiple viewpoints on any given event, they are in effect unable to report in completely unbiased ways. Thirdly and most crucially, exclusion means public officials can avoid all of the public scrutiny that independent reporters would bring by questioning them.

But the law is not without adequate means in these cases either.

No effective remedie against exclusion? A legal response is still necessary and available. In some cases – such as those of the journalists ousted from the immigration detention center and the Parliament – we turned to the European Court of Human Rights. (Both cases have been communicated to the Government, and we are awaiting the decisions.) In other cases – such as refusing admission to the government’s press conferences – we used equal treatment law to fight back against what can be seen as viewpoint discrimination based on (perceived) political opinion.

No questions answered by government Press Offices? Journalists can use the more formal method of freedom of information (FOI) requests to get answers. Journalists in Hungary have become considerably more reliant on FOI requests as politicians’ willingness to answer questions has declined. And more often than not, when requests are not answered: litigation is still a useful tool.

Litigation and advice in new areas: avoiding imposed ‘self’-censorship

However, illiberal regimes do not need to use direct legal means to silence critical voices and independent journalism. There are also more subtle, indirect ways to undercut independent reporting. Political power, and the economic power affiliated with it, can chase individual journalists and press organisations into self-censorship by threatening their jobs or even entire media outlets.

Recent history shows that this is not just a threat: the most widely read, nationally distributed left-liberal leaning daily paper, Népszabadság, was simply bought up and then closed down overnight by its new owners in 2016. And just this year, all the editors were dismissed from a conservative-leaning journal, Századvég, apparently because they published an academic paper that was critical of the government’s economic policies. (The new editor even announced publicly that the new direction of the journal would be to support the government.)

How can we defend independent media against such attacks? In order to meet new challenges, the HCLU has recently forayed into legal fields that seem far from our traditional terrains of freedom of expression and media law. We used labour law to win a court ruling which found that the closure of Népszabadság was illegal, and we continue to use labour law to advise journalists on what sort of instructions they are not obliged to take from their editors – who are often under political pressure. We also represent journalists in labour court cases if they are dismissed due to their annoying insistence on ethical, unbiased professional journalism.

The multiple faces and roles of legal defence in an illiberal regime

Legal defence of the media, in a hybrid regime, has many faces. It has to explore new areas of law, and it has to be preventive as well as reactive. We need to broaden journalists’ and editors’ knowledge of the legal space they have, and prepare them to strengthen their institutions and policies against legal, political and economic attacks – as reactive litigation may simply be too late. Sometimes, we need to take cases at the highest regional court only to bring the results back home, convincing a government-friendly Constitutional Court to develop its case law. But in other cases, we have to continue to litigate at the lowest criminal courts to shape jurisprudence on defamation and freedom of expression.

We have to accept that our role is complex too: while we must continue to litigate to establish more progressive judicial practice, in other cases, our major impact is to conserve, by all legal means, existing independent journalism and the space that it needs to grow in an illiberal regime.

Attila Mráz,

Political Freedoms Project,

Hungarian Civil Liberties Union

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