EHRM, 26-05-2020, nr. 63164/16

The applicants maintained that there had been an interference with their right to freedom of expression since, owing to the Speaker's decision, they had been prevented from report on issues of public concern.

The applicants argued that the Speaker's Order could not be regarded as a proper legal basis for restricting the exercise of their right to freedom of expression. In their view, Article (T) of the Fundamental Law (see paragraph 11 above) contained an exhaustive list of public bodies entitled to issue generally binding rules of conduct, and since the Speaker was not one of those public bodies, he could not issue regulations concerning parliamentary reporting. Moreover, under Article (I)3 of the Fundamental Law, the exercise of fundamental rights could only be regulated by Acts of Parliament.

The applicants further argued that the Speaker's Order had not met the criteria of foreseeability, since neither it nor the decision to ban them from entering Parliament had specified the period of restriction. In addition, the legislature had not defined the criteria to be taken into account when the Speaker restricted press freedom, and had thus failed to protect against ‘arbitrary interferences by a public authority’. Furthermore, the applicants contested the Government's argument that the relevant provisions had been applied consistently: they had filmed outside the designated areas on a number of occasions without any repercussions.

The applicants did not dispute the legitimate purpose of the restrictions on journalists as regards entry to and certain conduct within the Parliament building for the protection of the dignity and authority of the House. Nonetheless, they stressed that, in the present case, the Government had not demonstrated how the video recordings could have interfered with the ordinary work and undisturbed functioning of Parliament, national security, the secrecy of confidential information or the personality rights of MPs. They submitted that the premises where the recordings had been made had not been where parliamentary work that was to be sheltered from the public eye and would have involved any confidential information took place. Rather, Parliament was the venue for the most prominent political debates and its premises were open to the public, including journalists. Likewise, MPs shown in the recordings had had a duty to report on issues of public interest and tolerate questions concerning the main topics of current political debate. The presence of the Prime Minister and other senior politicians could not justify the interference either, since they had to withstand the closest public scrutiny. Accordingly, the applicants contested the Government's reliance on the need to protect the personality rights of parliamentarians (see paragraph 31 below).

In support of their argument that the interference had not been necessary in a democratic society, the applicants referred to the consequences of the measure and pointed to the fact that the ban, which had been the most severe measure possible, had lasted for more than four months and had had the effect of a prior restriction on reporting on matters of public interest. In this connection, they also maintained that the argument that their reporting activities could be carried out by their colleagues (see paragraph 35 below) had no bearing on the severity of the interference, which had concerned them as individual journalists and not as media outlets.

The applicants emphasised that Parliament was a public arena and the most important forum for public political debates. It was the duty of the media to serve as a public watchdog in respect of those in positions of power, especially those who were elected to office. It was not only the question they had put to the MPs, but also the MPs' reaction that had been a matter of public interest. Furthermore, legislative work had to be extensively covered by the media, since it had a direct effect on the lives of citizens and MPs were expected to have to answer questions put by journalists. Media presence and coverage were even more necessary given the difficulties citizens and members of non-governmental organisations faced when applying for entry passes. The applicants argued that the restrictions on making recordings in Parliament were in any case unreasonable obstacles to journalistic work.

The applicants also stressed that the rules had both been issued and applied by the Speaker, holding a political position, without impartial external control.

The Government pointed out that the Fundamental Law set forth the aims for which the exercise of the right to freedom of expression could be restricted. In addition, the Parliament Act contained the basic rules governing parliamentary reporting, as well as the Speaker's powers to impose disciplinary sanctions and thereby limit the exercise of journalists' right to freedom of expression. The Speaker's Order provided specific detailed rules on parliamentary reporting and accessing the Parliament building. In the Government's view, it was neither necessary nor possible to include all technical details regarding press reporting in an Act of Parliament. The Government contested the applicants' assertion that the Speaker's Order contained generally binding rules of conduct which could have been imposed only by an Act of Parliament (see paragraph 22 above). The Speaker's Order merely established the internal rules of Parliament; the fact that the regulation did not specify the period of suspension did not in itself render it unforeseeable in its application. Similarly, the fact that the ban had not been enforced previously did not mean that the applicants could not have foreseen the consequences of their actions.

Furthermore, the practice of regulating press access to Parliament through acts issued by the Speaker or through other secondary legislation, by imposing restrictions on entry and recording and applying sanctions, was well-established in member States.

The Government were of the opinion that the restriction on access to the Parliament building had served a legitimate aim, namely the protection of national security, public safety and the prevention of disorder or crime. The Government submitted that it was only logical that special security rules should apply to the Parliament building, which served as the office of the highest dignitaries of Hungary, hosted international conferences and where the Holy Crown of Hungary was displayed. In addition, it was essential that certain restrictions on recording in the building be in place to ensure the undisturbed functioning and the dignity of the National Assembly, and in particular to prevent the disclosure of information received in confidence, since the building was the venue for producing, archiving and handling several classified documents. In this connection, the Government relied on decision no. 20/2007. (III.29.) AB of the Constitutional Court, which had held that restrictions on recording were ‘nevertheless to be regarded as necessary in order to ensure the undisturbed work of the National Assembly as supreme sovereign body and supreme organ of popular representation and to ensure the provision of objective and factual information guaranteeing the development and implementation of democratic public opinion’. The creation of non-recording areas was to ensure that MPs and those working for the legislature could carry out their duties.

The restrictions on recording in Parliament could further be regarded as protecting the rights of others, namely the reputation of MPs, since broadcasting MPs refusing to answer journalists gave the impression of incompetence, capable of undermining public confidence in their work.

The Government submitted that there was an unlimited right to film in Parliament. They also maintained that responsibilities were attached to the right to report from Parliament. They pointed to decision no. 20/2007 (III.29.)AB of the Constitutional Court (see paragraph 30 above) to argue that restricting broadcasting within the Parliament building did not constitute a disproportionate limitation on the exercise of the right to freedom of expression. In the Government's view, defining the rules of filming was a matter of parliamentary sovereignty and States enjoyed a wide margin of appreciation in questions pertaining to the functioning of Parliament. In addition, the legislative framework ensured that any restrictions on broadcasting and recording respected the free dissemination of information necessary for the formation of democratic public opinion.

In the Government's submissions, a clear distinction had to be made between the different premises of the Parliament building as regards the right of the public to access them. The primary role of parliamentary reporting was to document the functioning of Parliament, that is to say, to provide information about plenary sessions and committee meetings. There were few possible restrictions on such activities and Article 5(1) of the Fundamental Law and the Parliament Act ensured public access to these meetings and ensured their broadcasting. However, further reporting, press conferences and interviews related to parliamentary work did not entail the same level of protection. Moreover, expressive activities unrelated to parliamentary activities and merely conducted in Parliament were even less protected. The Government submitted that the applicants' interviews had fallen into this latter category and that the question put to the parliamentarians had not related to the work of Parliament. The Government emphasised that the recordings had not been made with a view to presenting the opinion of MPs on a matter of public concern either, but rather with the intention of presenting them in an unfavourable light. The applicants had not therefore been fulfilling their role as public watchdogs providing balanced information, but had been seeking the public's attention in a sensationalist manner, in line with the latest media trends.

The Government also argued that the applicants had had ample possibility to conduct their interviews elsewhere, either within or outside the building; there had been no compelling reason to proceed with the recordings outside the designated area. The applicants had also had the possibility to interview MPs without recording them. In any case, MPs did not have to answer a particular set of questions or maintain contact with members of the press. Given the particular characteristics of the applicants' interviewing techniques, the MPs had understandably been unwilling to answer their questions. In that connection, the Government emphasised that the applicants' conduct had verged on abusing the right to freedom of expression. In the Government's understanding, being aware of and having agreed to the relevant provisions, including the possibility of sanctions, the applicants had knowingly and wilfully broken the rules of reporting when filming outside the designated areas.

As regards the consequences and the effects of the impugned measure, the Government took the view that leaving the applicants' conduct unpunished would encourage media reporters to engage in unlawful means of reporting, placing them at an advantage in news competition. They pointed out that sanctions had only been applied to knowingly unlawful and recurrent recording and after repeated warnings. They also argued that the suspension of the right to entry had had no bearing either on the right of the media to report on issues of public interest or on the right of the public to receive information, since other journalists not concerned by the decision had remained free to access the building and the applicants themselves could continue to follow the plenary sessions through broadcasting, and interview MPs at other locations. Any chilling effect would have only been produced if the journalists had been forbidden from publishing the recordings, intimated or subjected to retaliation or prohibited from reporting on matters related to the National Assembly altogether. In any case, according to the Government, the sanction imposed on the applicants had been the least restrictive one and any other measure (e.g. a fine or warning) would not have provided the same result.

The Government also disputed the applicants' contention that the political nature of the Speaker's position could not ensure an impartial application of the regulatory framework (see paragraph 27 above).

The intervening NGO submitted that parliaments were a unique forum for political debate in democratic societies and that it was therefore in the primary interest of the public for the press to have appropriate access to parliamentary premises.

It considered that disciplinary measures against journalists should be applied proportionately: warnings and reprimands were less restrictive to the exercise of the right to freedom of expression, whereas the exclusion of journalists from Parliament was a ‘censorial power of an information monopoly’.

It maintained that based on research it had carried out, member States usually required some sort of registration of journalists in order to work in Parliament. The sanctions for breaching the code of conduct of Parliament however varied to a great extent.

Lastly, it agreed that disciplinary measures might pursue the legitimate aim of preventing disruption of the work of Parliament, but argued that a permanent and indefinite ban on entering Parliament was unlikely to be tailored to the particular disruption and therefore could not be regarded as proportionate or necessary. It also interfered with the right of the public to access information of public interest in a significant way.

The interveners jointly relied on the Court's judgment in the case of Otegi Mondragon v. Spain (no. 2034/07, ECHR 2011) to argue that in the context of restrictions imposed on journalistic activities covering the work of Parliament, particular emphasis had to be attached to the importance of free speech in the political context, where few restrictions were possible and strict scrutiny was applied.

In their opinion, where journalists were prevented from reporting from parliamentary buildings, the measure not only interfered with the ability of the media to disseminate information and ideas of public importance, but also hindered the gathering of information on the political affairs of the country. Parliamentary reporting was also the primary means by which the public received information.

The interveners also noted that all the media, and not just those authorised by the institution itself, had the right to report on all activities conducted by MPs. Furthermore, measures excluding journalists from accessing parliamentary buildings should be prescribed by law, and required a legal framework that ensured strict control and effective judicial review. Measures that amounted to a ban constituted a prior restriction on freedom of expression and could only be used in the most exceptional circumstances. The fact that a journalist could obtain information about parliamentary activities was of little or no relevance when assessing the necessity of the restriction. In comparison to second-hand reporting, providing direct access to the views of representatives allowed members of the public to assess not only the content of statements, but also the demeanour and apparent character of representatives.

The interveners also argued that the right of parliamentarians to respect for their private life in Parliament was limited as they had to expect that their images would be broadcast. The interveners acknowledged that the Convention could provide protection against the unauthorised broadcast of private images in certain circumstances, but argued that that protection did not extend to preventing the use of images of public figures engaged in political activity.

The Court notes that the suspension of the applicants' accreditation to enter the Parliament building for a period of almost five months (from 26 April until 12 September 2016 — see paragraphs 8 and 10 above) had had adverse effects, preventing them from obtaining first-hand and direct knowledge based on their personal experience of the work of Parliament and of any events taking place in the building. Those were important elements in the exercise of the applicants' journalistic functions. The Court therefore dismisses the Government's argument that the impugned measures had no bearing on the applicants' right to impart information (see paragraph 35 above) and accepts that there was an interference with the applicants' right to freedom of expression (see Selmani and Others v. the former Yugoslav Republic of Macedonia, no. 67259/14, § 61, 9 February 2017; see also, mutatis mutandis, Szurovecz v. Hungary, no. 15428/16, § 54, 8 October 2019).

In the light of paragraph 2 of Article 10, such an interference with the applicants' right to freedom of expression must be ‘prescribed by law’, have one or more legitimate aims and be ‘necessary in a democratic society’ (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 141, 27 June 2017).

In the present case, the parties' opinion differed as to whether the interference with the applicants' freedom of expression was ‘prescribed by law’. The difference in the parties' opinions as regards the applicable law originates in their diverging views on the issue of whether the Speaker's Order could be considered a source of law for restricting the exercise of the right to freedom of expression.

The Court reiterates that the expression ‘prescribed by law’ in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 120, ECHR 2015, with further references).

The Court accepts that it is difficult to attain absolute certainty in the framing of laws, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The criterion of foreseeability cannot be interpreted as requiring that all detailed conditions and procedures governing the interference be laid down in the substantive law itself, and the requirements of ‘lawfulness’ can be met if points which cannot be satisfactorily resolved on the basis of substantive law are set out in enactments of lower rank than statutes (see Gorlov and Others v. Russia, nos. 27057/06 and 2 others, § 89, 2 July 2019). A law which confers a discretion is thus not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Gillow v. the United Kingdom, 24 November 1986, § 51, Series A no. 109).

The Court has found that persons carrying out a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails, for instance by seeking appropriate legal advice (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV).

In the present case, the legal basis of the interference under consideration was provided by section 54 of Parliament Act and the Speaker's Order No. 9/2013 (see paragraphs 12 and 13 above).

The Court notes that the ‘accessibility’ of the relevant texts is not an issue in the present case. It has not been disputed that the applicants were aware of the relevant provisions of the Speaker's Order, and that in the case of disorderly conduct it was only to be expected that they would be escorted out of the Parliament building and that their entry would be restricted. As the Government rightly pointed out, the regulations governing parliamentary reporting were sent to the applicants at the time of their registration, in line with usual practice (see paragraph 5 above). Moreover, the applicants were media professionals and, as such, must have been familiar with the regulations intended to ensure orderly conduct within the Parliament building.

As to the applicants' argument, namely that under Article (T) of the Fundamental Law the Speaker was not entitled to issue binding rules governing parliamentary reporting (see paragraphs 11 and 22 above), the Court considers that this amounts to challenging the validity of domestic legislation on the grounds that the provisions in question are unconstitutional as they disregard the constitutional rule of law-making. However, it is not for the Court to examine this argument, which concerns the validity of a form of ‘secondary legislation’. The interpretation of the Contracting Parties' domestic law and of its validity is primarily a matter for the national courts (see, mutatis mutandis and among other authorities, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999-III).

In this connection, it must be pointed out that the authority of the Speaker in the sphere of regulating access to Parliament derives from his rule-making power which he enjoys by parliamentary delegation. Section 54 of the Parliament Act provides that certain aspects of entry to the Parliament building must be established by an order of the Speaker without infringing the dissemination of information necessary for the formation of democratic public opinion (see paragraph 12 above). In view of the precise and detailed provisions of Order No. 9/2013, adopted by the Speaker in accordance with the provisions of the Parliament Act (see paragraph 13 above), the Court considers that it allowed media professionals to regulate their conduct.

As regards the applicants' arguments that neither the Speaker's Order nor the Speaker's decision issued in their case specified the period of restriction (see paragraph 23 above), the Court considers that this is a material consideration to be taken into account in determining whether the measure complained of was necessary in a democratic society.

Accordingly, the Court is prepared to accept that the interference complained of had a legal basis in the relevant provisions of the Parliament Act and the Speaker's Order and that these provisions satisfied the ‘lawfulness’ requirements established in its case-law.

The Court is satisfied that the interference pursued two legitimate aims for the purposes of Article 10 § 2 of the Convention. Firstly, it was aimed at preventing disruption to the work of Parliament so as to ensure its effective functioning, and thus pursued the legitimate aim of the ‘prevention of disorder’. Secondly, it was intended to protect the rights of MPs, and thus pursued the aim of the ‘protection of the rights of others’.

Accordingly, the central issue which remains to be determined is whether the interference complained of was ‘necessary in a democratic society’.