Written by Célia Le Noé
In 2009, Viktor Orbán, President of the Hungarian party Fidesz, declared: “We only have to win once, but then properly” (The Economist, 2020). In this way, he clearly announced his will to take over power democratically on an unlimited basis in Hungary. Populist ideas, such as ‘national unification’ or economic nationalism (Buzogány, 2017) as praised by Victor Orbán (Bozóki, 2011), contributed to Fidesz’s landmark victory in the 2010 parliamentary elections, in which the alliance between Fidesz and the KDNP (the Christian-Democratic party) won 52% of the votes (Buzogány, 2017), thereby securing a two-thirds majority of seats in Parliament (Bogaards, 2018), i.e., a constitution-making majority (Buzogány, 2017). Thus, Victor Orbán accessed power with fully democratic means, that is, free and fair elections, even though the resulting number of parliamentary seats was amplified by an unbalanced electoral system (Bogaards, 2018).
As illustrated by the opening quotation, Orbán seemed to have no intention of letting go of power once he had acquired it in an irreproachable democratic manner, that is, without rigging the elections. Therefore, to guarantee Fidesz’s grip on power for the future parliamentary elections, including the April 2014 ones, Orbán’s government changed the electoral system in its favour. Under the pretext of ‘national unification’, the Orbán government granted citizenship to Hungarian minorities residing outside of Hungary, and thus voting rights. Considering the right-wing political tendencies of these minorities (Bozóki, 2011), they turned out to be of great advantage to Orbán’s party (Bozóki, 2011). In 2014, the gerrymandering of electoral districts under the new Electoral Code allowed for Fidesz to win six additional seats in the parliament in spite of having lost more than 560.000 votes (Buzogány, 2017). Using its majority in parliament, Fidesz wrote a new constitution, the Fundamental Law, which instituted an illiberal state through the elimination of checks and balances and conducted attacks on freedom of expression (Halmai, 2019).
This article will examine the following question: why and how is Hungary suffering from a democratic backsliding in the case of freedom of expression, and what impacts does this have on global governance, and more precisely the European Union? It will be argued that Victor Orbán’s will to keep power in his hands led to drastic reductions in freedom of expression, and that, in spite of an incapacity to act against Hungary so far, the European Union has at its disposal different solutions to sanction Hungary.
Media freedom and academic freedom, or the lack thereof, in Orbán’s Hungary
Soon after the 2010 elections, the Fidesz-dominated parliament passed a resolution that founded the National Media and Telecommunication Authority (Hungarian acronym: NMHH), whose role was to oversee private radio and television, as well as the print press and the internet (Bajomi-Lázár, 2013). Unsurprisingly, the NMHH was presided by a former Fidesz representative (Bozóki, 2011). As for public media, such as the Hungarian News Agency or the Hungarian Radio, they were to be supervised by the newly created Public Service Foundation (Bozóki, 2011). These bodies were to be controlled by the Media Council, composed of four members appointed by the parliament, therefore by Fidesz, since the party has a two-thirds majority in parliament (Bajomi-Lázár, 2013). It is to be noted that the Hungarian parliament, the Országgyűlés, is a unicameral institution. This explains the fact that a resolution if voted in parliament, has immediately the effect of a law, inasmuch as the approval of another parliament chamber is not required. Therefore, laws are the first means through which the government muzzles the media.
Recent developments related to the COVID-19 pandemic highlight the fact that government attacks against freedom of expression are an ongoing development. This is demonstrated by the Enabling Act, passed on March 30th, 2020, which gives dictatorial powers to the government under a state of emergency (Halmai, 2019). This act, introduced in the Criminal Code, made punishable by up to five years of imprisonment (Halmai, 2019), the “imparting or conveying [of] false information” (Amnesty International, 2021). One may argue that such criterion of ‘false information’ is highly subjective, and can therefore be used arbitrarily to further restrict freedom of expression.
Another means of restricting media freedom is through intimidation and self-censorship. This is particularly evident in the case of the negative financial incentives to align media to the government’s ideas, as well as the dismissal of employees. Firstly, cases of intimidation have been reported, such as the search by the Hungarian police of two German journalists, who attempted to film the construction of a stadium in Felcsút, and that of a railway between this village and another (Freedom House, 2017). Additionally, not only is the NMHH responsible for overlooking the activities of private media but it is also entitled to allocate its funds (Bajomi-Lázár, 2013). Therefore, it may impose fines of 200 million forints, causing the targeted media to close down because of a lack of financial resources to pursue any activity (Bajomi-Lázár, 2013). Second, self-censorship is significant in Orbán’s Hungary. Indeed, the NMHH is the only organisation allocating frequencies to radios (Bajomi-Lázár, 2013). This is why the activities of Klubradio, Budapest’s last opposition radio, were suspended: the NMHH had refused to renew its frequency (Bajomi-Lázár, 2013). Thus, the NMHH and the Public Service Foundation’s indirect censorship through financial means and intimidation (Freedom House, 2017), create an atmosphere of fear and self-censorship, which assure the government complete control over the media. As noted by András Bozóki, the Hungarian-speaking media market is rather small, it is thus relatively easily influenced through financial means (Bozóki, 2011).
Lastly, another key aspect of infringements on press and media freedom is media colonisation. In that regard, Opimus Press, a firm owned by Lőrinc Mészáros, Victor Orbán’s long-standing friend, plays a crucial role. Indeed, Lőrinc Mészáros’s close relationship with Orbán guarantees his firm’s alignment with the Fidesz President’s positions. In 2016, Opimus Press has acquired and established new media outlets (Freedom House, 2017). In October, for instance, it acquired the publisher Mediaworks (Freedom House, 2017). Opium Press’s numerous acquisitions allowed it to control about half of the Hungarian printed press by the end of 2016 (Freedom House, 2017).
Supranational responses and consequences: the impact of Hungary’s backsliding on the EU
Blatant violations of the international human rights norms by Hungary, an EU member state since 2004, are in contradiction with fundamental treaties of the European Union. The values of the European Union, enumerated in Article 2 of the Treaty on the European Union (TEU), indeed include, among others, freedom, respect for human rights, pluralism, and tolerance. By restricting media and academic freedoms, the Hungarian government under Victor Orbán infringes on all of these values.
Furthermore, the Copenhagen criteria, which a country has to respect in order to become a member state of the European Union, are not necessarily observed after the country’s accession to the EU, thus paving the road for democratic backsliding (Halmai, 2019). This is due to the fact that the EU considers itself an association between democracies but has no intention of imposing a single model on any country, leaving each member state responsible for its internal politics (Kelemen, et al., 2017). Therefore, this raises the question of how to keep in check the authoritarian backlash of the Orbán rule.
The first answer would be the implementation of the procedure of Article 7 TEU. This article is designed to penalise member states which did not respect the values of article 2 (Kelemen et al., 2017). The final stage of the Article 7 procedure is the loss for the deviant member state of its voting rights (Buzogány, 2017). However, this article 7 procedure was never implemented in the case of Hungary. While Aron Buzogány points out the fact that article 7 represented a stake too great and endangered the stability of the EU integration process (Buzogány, 2017), Petra Bárd emphasises the responsibility of partisan politics in shaping this lack of reaction from the EU regarding Hungarian violation of international human rights. Bárd thus contends that, if punitive measures are not implemented against Hungary, it is because of the votes that Fidesz brings to the European People’s Party (EPP) (Kelemen et al., 2017). Paradoxically, this issue stems from the efforts by the European Union to democratise its political system, following criticism of an EU democratic deficit. In doing so, the EU is emphasising partisan politics and greater power for the parties in the European Parliament, the Europarties (Kelemen et al., 2017). This, in turn, leads to more competition among Europarties, and thus to situations such as the one concerning the EPP and Hungary, where a Europarty, out of fear of losing votes, chose to turn a blind eye to democratic backsliding and infringements on human rights norms (Kelemen et al., 2017).
However, another reason for which the EU has so far proven unable to sanction Hungary’s backsliding is the fact that, while party politics are developed enough in the European Parliament to provide incentives for the protection of deviant member states, they are not sufficiently advanced to provide tools for direct intervention (Kelemen et al., 2017). Indeed, it is illegal to intervene financially in the domestic politics of a member state, for instance by allocating funds to an opposition party (Kelemen et al., 2017). Besides, any intervention in domestic politics by a Europarty would be considered illegitimate, thereby causing tensions in the European Union (Kelemen et al., 2017). Any external intervention is thus unlikely to happen. The European Union is hence, in spite of its efforts to democratise itself, caught in an ‘authoritarian equilibrium’ (Kelemen et al., 2017), in which it appears to be unable to fight the non-respect of its own treaties by deviant member states. The state of affairs in Hungary was denounced in the Tavares report, which pointed out the threats to international human rights posed by the new Hungarian constitution (Buzogány, 2017). The report was harshly condemned by Fidesz (Halmai, 2019). It was nonetheless passed in the European Parliament with only 370 votes in favour (Halmai, 2019).
Furthermore, while the EU attempted to launch legal actions against Hungary, this did not address the structural concern present in this member state (Kelemen et al., 2017). Indeed, for lack of ability to implement article 7 procedures, the European Commission confronted Hungary before the European Court of Justice (ECJ) in a case-by-case approach (Kelemen et al., 2017). For instance, in order to fight against the elimination of checks and balances through the lowering of the Supreme Court judges’ retirement age, the European Commission started an infringement action for age discrimination (Halmai, 2019). The European Court of Justice confirmed that it was a violation of EU law, but the decision came too late (Halmai, 2019). Therefore, the judicial confrontation between the Commission and Hungary did not help assert the rule of law, and therefore international human rights, again. Such a case-by-case method allowed the Hungarian government to avoid deep criticism through minor changes to its most contentious regulations (Kelemen et al., 2017).
In order to overcome this issue, and following the Tavares report’s recommendation of creating a new system of monitoring, the EU introduced in March 2014 the Rule of Law Framework (Halmai, 2019), whereby the Commission would enter into dialogue with the concerned member state in order to warn it that, in case of further disregard of EU values, article 7 procedure might be launched against it (Halmai, 2019). The Commission may, in case of cooperation on the part of the member state, monitor their re-assertion of democratic values (Halmai, 2019). However, leaders refused to apply this newly crafted tool to the Hungarian government (Kelemen et al., 2017).
Indeed, another incentive for EU leaders not to take action against Hungary is the fact that Victor Orbán’s Fidesz came to power and changed the constitution in a democratic way, leaving little room for criticism on the technical aspects of this seizure of power. As noted by D. Kelemen, M. Matthijs, and E. Jones, the EU may be more reluctant to intervene in such circumstances, as opposed to the case of Poland, for instance, in which the government does not formally respect the rule of law (Kelemen et al., 2017).
Possible solutions to the EU’s democratic deficit
For all of the reasons considered hereinabove, the European Union is said to have a democratic deficit; and its ineffectiveness in sanctioning Hungary leads to a loss of legitimacy and trust in its enforcement of international human rights (Halmai, 2019). The situation in Hungary is “testing the EU’s ability to defend its founding values,” as put by the European Parliament in an April 2017 resolution (Halmai, 2019). However, new perspectives and possible solutions are to be highlighted.
First of all, the infringement procedure of article 7 TUE is not only unlikely to be applied to Hungary, but its outcome would be undemocratic. Indeed, according to T. Theuns, article 7 itself is incompatible with the principle of democratic equality inasmuch as, in the case of an EU member-state being sanctioned following an article 7 procedure, that state would still have the obligation of respecting the Council’s decisions it did not have a say for, having lost its voting rights because of article 7 (Theuns, 2020). This leads Theuns to consider article 7 “democratically illegitimate” (Theuns, 2020). An answer to that issue would be to apply economic sanctions instead of political ones, such as a combination of positive incentives such as increased funding, and negative sanctions in the form of withdrawal of EU structural funds (Theuns, 2020). This would depart from the traditional allocation of funds in the European Union, which is not conditional on the state of the rule of law in the receiving country (Halmai, 2019).
This option of creating conditionality has been supported by several international figures, such as Gajus Scheltema, former ambassador of the Netherlands to Hungary, Hans Eichel, co-founder of the G20, and Pascal Lamy, former European Commissioner (Halmai, 2019). Financial sanctions were furthermore proposed in August 2016 against Poland and Hungary by two members of the European Parliament (Halmai, 2019). The reasoning behind the proposition to cut funds for Hungary is that the EU indirectly finances democratic backsliding. Indeed, member states such as Hungary may use EU funds in order to perpetuate their regime (Kelemen et al., 2017). Therefore, it might be a solution for the European Union to institute conditionality on the respect of international human rights into the EU’s Multiannual Financial Framework (Halmai, 2019). In the case of Hungary, this may result in a temporary interruption of EU regional development funds until its human rights situation is rectified, with the exception of the funds allocated by the Commission without any interference of the Orbán government (Halmai, 2019). Arguably, such economic sanctions might prove more efficient than political ones, inasmuch as Hungary is heavily dependent on EU funds (Halmai, 2019). Furthermore, G. Halmai rejects the criticism which contends that such action would solely punish the people instead of their representatives. Indeed, he argues that this would result in growing antipathy for the authoritarian leaders and thus lead the population to overturn the regime in new elections (Halmai, 2019).
Hungary is suffering from a democratic backsliding in media freedom, with censorship of journalists and financial sanctions, due to the intensification of illiberalism under Victor Orbán. The European Union, because of the increase of partisan politics and the fear of threats to its unity, has as of now been unable to react to the Hungarian government’s infringements on international human rights. However, both scholars and European politicians are highlighting new solutions, such as the possibility of establishing conditionality to the EU’s funds. In that case, grants might be suspended for a member state in case of abuses of international human rights. Furthermore, one might consider the revision of the EU’s voting system, with suppression of veto rights. Therefore, in spite of the European Union being currently caught in an authoritarian equilibrium, one may argue that there is hope for future improvements regarding the human rights situation in Hungary.