“Fidesz has shut down the National Assembly!”, “No more elections in Hungary, Orbán in power forever!” are just two examples of the sensationalistic headlines published by the progressive international media outlets that have set their sights on Hungary.
Apparently, Hungary’s Coronavirus Response Act adopted to tackle the most severe health crisis in a hundred years seems to have given these media outlets license to paint a target on the back of the Hungarian government.
Most of the “journalists” writing on the subject never took the time to actually read the legislation and none of the critics offered an in-depth analysis of the state of emergency in Hungary.
But of course, it is much simpler to produce made-to-order talking points, misinformation and the fake news that appears to be so prevalent when it comes to the topic of Hungary and its prime minister, Viktor Orbán.
The charges being leveled against Hungary are easily refuted, but when you contact these outlets with a request that they publish a rebuttal, the answer, if there is any, is always a resounding “no”, or even worse, they simply censor rebuttals.
On a more sophisticated level, we find the NGOs masquerading as rights advocates openly financed by the Open Society foundation and its affiliates. These organizations cannot afford to resort to the above-mentioned outright lies while criticizing the actions taken by the Hungarian government to fight the coronavirus crisis out of fear of undermining the professional image they try to project.
Instead, they resort to opaque arguments and legal attacks to undermine Hungary’s international standing. Refuting these arguments doesn’t necessarily mean you need to bother yourself with the arcane language of legalese. Instead, it’s simply a matter of breaking down their accusations one by one and showing exactly why they’re unfounded, starting with claims that the Coronavirus Response Act restricts freedom of expression and keeps journalists from doing their job.
No journalist has ever been punished under Hungary’s law on spreading false information
First, the Coronavirus Response Act does indeed punish false statements in relation to an emergency, but this is meant strictly to be in relation to those purposely promoting false information that could jeopardize the country’s response or falsely spread fear among the public.
In fact, punishments related to scaremongering and spreading false information were codified into law in 2013, but the behavior itself had already been punishable already before that, including publishing or uttering a statement before the public at large one knows to be false or with a reckless disregard for its truth. This law also included punishments for saying or writing false statements at the scene of an emergency, which can lead to a violation of public order or disturb the public peace.
The Hungarian legislation is not materially different from its European equivalents, and to the extent that it is vague, so are similar laws across Europe.
Strangely enough, this regulation had never been criticized prior to the recent amendment during the coronavirus crisis, which seems to imply that it was generally acceptable to all before the crisis broke out. And how does it relate to journalists? Not a single one was ever charged under the above statute.
So, what changed in late March? The statute was amended to include a provision that if the above defined conduct happened during a state of emergency and could result in undermining or subverting the efforts to counter the coronavirus emergency, that would become a crime punishable by one to five years imprisonment.
This amendment was necessary because the previous statute was tied to the location of the public danger and could not be applied to the entire country. It is self-evident that in the digital age, deliberate misinformation can cause grievous harm during a pandemic wherever it originates.
It is worth mentioning that although the new passage will remain in the Hungarian legal framework beyond the COVID-19 crisis, it can only be activated during a state of emergency and nobody will be punishable under it unless another state of emergency is declared.
There are also many safeguards in the new statute. The criminal conduct has to be both intentional and detrimental to the effort to counter the crisis. That means that a harmless lie is not punishable. At the same time, accurate information published in the press isn’t punishable even if it hinders the emergency efforts.
The law also requires that the perpetrator be aware that the information they are publishing is false in nature at the time of publishing — a journalist acting in good faith on bad information, therefore, cannot be punished provided he or she acted with due diligence and according to the standards required from them even under normal circumstances.
This, in short, is the so-called nefarious Hungarian legislation that is supposed to “silence” Hungary’s press.
The double standards at work across Europe
Now, if we look around Europe, we can start to see some of the double standards in place. Let’s start with the German Criminal Code. Article 126 defines punishable conduct in a way similar to Hungary’s Code, and yet, it is actually broader in scope than its Hungarian counterpart as it does not require the misinformation to be published before the public at large. It merely states that the false information must be produced in a manner that could disturb the public peace.
The French Penal Code makes room for even looser interpretation. Article 322-14 states that “The communication or revelation of any false information with a view to inducing a belief that any destruction, defacement or damage dangerous to other persons will be or has been committed is punished by two years’ imprisonment and a fine of €30,000.”
As one can see, the punishable conduct is not tied to the location of a public danger, unlike the Hungarian regulation which existed before the state of emergency, and there is no requirement of disseminating the false information to the public at large, which is present in the Hungarian equivalent even during an emergency.
According to Article 357 of the Czech Criminal Code, a person who “intentionally causes a threat of serious concerment of at least a portion of population of a certain area by spreading alarming news that is untrue, shall be sentenced to imprisonment for up to two years or to prohibition of activity.”
“Serious concernment” is a rather abstract concept which allows for wide-ranging interpretations, and given that serious concernment is the result of the conduct, it can pose a serious challenge to establish the cause and effect context.
The requirement for misinformation to be published to the public at large appears only in the Swiss Penal Code, which punishes those causing “fear and alarm among the general public”. Criminal conduct is defined as “threatening or feigning a danger to life, limb or property”.
Several countries state that punishable conduct must result in measures taken by the authorities, but Hungary is not alone in not defining a result at all. Such countries also include Germany, France and Malta.
There are a few critics who allege that scaremongering or spreading public alarm is punished too severely in Hungary.
In addressing this point, first it is worth nothing that it did not seem to cause any concern when, in connection to the pandemic, Denmark doubled sentencing guidelines. In general, it is noteworthy that the severity or leniency of punishment are subjective concepts.
In my opinion, if somebody during the worst pandemic in living memory spreads misinformation with the intent to hinder efforts to contain the outbreak, such behavior represents such a grave crime that even the maximum 5-year punishment might seem too lenient to the majority of society. But of course, the Hungarian public’s sense of justice matters not at all to the critics of Hungary.
Let me make this very clear again: The Hungarian regulation in the crosshairs of progressive criticism does not deviate at all from European practice. And while different countries approach the matter differently almost every element of the Hungarian legislation is mirrored in one European country’s similar regulation or another’s.