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Mar 25, 2020 - András Koltay

Coronavirus and freedom of speech in a state of danger

A guest post by András Koltay, Rector of the National University of Public Service (Budapest)

The proposed legislation on “the containment of the coronavirus” which awaits Parliament’s decision also provides for the amendment of the Penal Code, creating a second factual scenario for scaremongering. In the past few days, there have been keen debates in society regarding the bill, and these debates are ongoing also at present. In addition to other elements, the planned new restrictions on freedom of speech, too, have been heavily criticized. I would like to make a contribution, introducing a few additional considerations, to this scintillating debate.

Section 68(3) of our current defence legislation dating from 2011 permits “the prior monitoring of press products, Internet news portals, news sharing in social media and other communications using means of mass communication and the prior authorisation of publication” also “during a state of terrorist threat, a state of preventive defence, a state of national crisis, a state of emergency and unexpected attacks”. Other provisions of Section 68 permit grave restrictions on freedom of speech and press. And that this is not some scheming plot organised by the current Government against the constitutional regime is underlined by the fact that the former defence legislation of 2004 contained similar provisions. Special situations call for special legal solutions, in the interest of protecting law and order, and for the public good. 

The Fundamental Law of Hungary provides in a similar spirit for the possible restriction of human rights during the term of a special legal order. Based on Article 54(1) even the exercise of freedom of speech can be suspended, or restricted without regard for normal constitutional guarantees. However, the Fundamental Law only grants authorization for the introduction of such measures, and the actual restrictions must be laid down in a separate legal act. At the same time, the 2011 act on disaster management and the measures that can be implemented in a state of danger does not provide for this issue.

Section 337 of the Penal Code makes scaremongering a punishable offense. “Any conduct of uttering or publishing before the public at large a statement one knows to be false or with a reckless disregard for its truth or falsity at the scene of some emergency by which to violate public order or disturb the public peace at a place of public danger is guilty of a felony punishable by imprisonment not exceeding three years.” However, the meaning of ‘emergency’ is uncertain, and luckily, in recent decades, there was no precedence for legal practice regarding this matter to take root.

According to some interpretations, a state of danger due to an epidemic does not qualify as a state of emergency because it can only be brought about by human conduct. However, if it does qualify as a state of emergency – the norm text allows this interpretation –, commission of the offense is tied to a place, meaning at the scene of the emergency attended by large numbers of people who are realistically exposed to the threat of an injury arising from the dangerous situation; at the same time, the scaremonger makes a false factual statement which is capable of violating public order or disturbing the peace among the attending persons at the scene of the emergency. Lies spread via Facebook or mass media cannot fall into this category. As a result, the rules regarding scaremongering as in force at present cannot be applied to the current situation.

Meanwhile, fake news keeps spreading in mass, primarily on the Internet, but also by word of mouth. There are innocent contents (“Flora and fauna coming back to life – Swans spotted in Venice, dolphins at the coasts of Sardinia”), there are clickbait contents which are, however, relatively harmless (“Breaking news: Coronavirus vaccine discovered”), and there are positively dangerous contents (“Government to place Budapest under lockdown”). One of the pearls of wisdom I personally heard was a school rumor, asserting that the virus has already mutated, and though earlier it was enough to keep a distance of two meters from other individuals if you really wanted to be safe, in consequence of this mutation, the virus is now able to “jump” as far as four meters (and so we will all die sooner or later). Some of these lies/mistakes now even pose a threat to human lives, and public communication – regardless of the size of the audience – in a situation like this is not just a game without stakes.

Recognizing this, the proposed bill on “the containment of the coronavirus” submitted by Justice Minister Judit Varga with the support of the government parties would add a new paragraph to Section 337 of the Penal Code, and would impose a prison sentence extending from one year to five years upon anyone who “during the term of a special legal order utters or publishes before the public at large a statement one knows to be false or with a reckless disregard for its truth or falsity in a way which is capable of hindering or foiling the effectiveness of the containment effort”. If this provision becomes law, some of the lies intentionally spread during the state of danger due to the epidemic will become punishable.

In contrast to prior concerns, in my view, this prohibition is not capable of becoming one of the governmental pillars setting aside democratic rules on the pretense of the epidemic by silencing opposition or any other simple criticisms. I can support this opinion with the following arguments.

1. It is important that the prohibition only relates to false factual claims, not to critical opinions. Therefore, it cannot extend to any vehement criticism of measures taken by the government, or for instance, projections relating to future incidences. It likewise cannot extend to guesses related to unpublished data. There is an established legal practice which refers these manifestations to the realm of protected opinions, and as at present the epidemic is among our most important public affairs, within the boundaries of legal norms, public debates concerning this subject-matter must be afforded maximum protection.

2. It is remarkable that the prohibition only relates to a certain range of factual claims. The range of (false) information that is capable of hindering the effectiveness of the containment effort is relatively limited, or at least much more limited than all factual claims published in connection with the epidemic. For instance, news reports about the swans of Venice and dolphins of Sardinia or the miracle cure developed in China do not fall into that category.

3. The prohibited act must be objectively capable of hindering or foiling the effectiveness of the containment effort, meaning the totality of actions arising from the combined efforts of the government, other state agencies, local councils and even private individuals. The bar has been set very high; Facebook comments would hardly clear it.

4. The act must be intentional, similar to the other factual scenario of scaremongering. Meaning that the communicator must be aware that what they are saying is not true (they are lying intentionally), that their message will reach the wider public, and that their act is capable of hindering or foiling the effectiveness of the containment effort. The underlying intentions and goals are secondary from the respect of punishability. However, the provision does not prohibit the communication of false claims published negligently, without the appropriate verification of the facts, but in good faith. This does not mean that correcting these or publishing the correct information would not be important because falsities spread in good faith can also compromise the effectiveness of the fight against the virus, even if penal law has nothing to do with them.

5. Independent courts – not the government or some state authority – decide on the issues of truth-falsity, intentional conduct, capability, and in general the issue of threat to society.

Each state is managing this difficult and previously not experienced situation in its own way and in accordance with its own constitutional culture. During a state of special legal order, under the Fundamental Law, the Hungarian government could lawfully restrict the exercise of freedom of speech even by decrees. However, the content of the proposed amendment of the Penal Code even conforms to the intentions of the decision of the Constitutional Court [18/2000 (VI.6.) AB] which in 2000 annulled the former factual scenario of scaremongering.

Intentional lies, or “fake news” now are not simple means for spreading meaningless rumours, intentional disinformation or disturbing the course of democratic elections, but can become literally a danger to human life. Deterring people from this kind of behaviour, within the constitutional boundaries of freedom of speech, is a fair intention on the part of a responsible government that seeks to protect its citizens.

The author is the Rector of the National University of Public Service (Budapest) and professor of law.