With regard to debating public affairs, the boundaries of the freedom of expression and of the press are set wider6 November 2018
The Constitutional Court underlined in its recent decision: a non-offensive recording taken in a public place, including a courtroom, depicting the affected public figure objectively may, in general, be disclosed without consent, provided that it is connected to a report on a publicly challenging event. Upon setting the personality protection limitations of the freedom of expression, the Constitutional Court consistently attributes a decisive significance to the fact whether the subject of the examination is a position expressed in the debate of public affairs.
The petitioner, the defendant of the case behind the constitutional complaint was the publisher of an internet news portal. An article, illustrated with a picture, about the plaintiff who was at that time a public figure was published on the news portal. The picture had been taken illegally many years ago during the criminal procedure against the plaintiff, as according to the laws in force at the time of taking the picture, it had infringed the plaintiff’s personality rights. The plaintiff had filed a lawsuit against the petitioning news portal because of using the picture, but the court rejected the claim by referring to a regulation that has been introduced subequently and according to which a criminal case about the plaintiff’s conduct performed as a public figure is subject to the attention of the public, thus the petitioner could assume that the repeated using of the picture was lawful. The plaintiff had appealed and the Budapest-Capital Regional Court of Appeal held that his appeal was well-founded. According to the Regional Court of Appeal, a sound or image recording of a public figure may only be taken at a court hearing in the framework of a criminal procedure with the consent of the person concerned, and the plaintiff had explicitly prohibited it. The petitioner turned to the Constitutional Court as it held the judgement to be contrary to the freedom of expression and the freedom of the press.
The Constitutional Court laid down in its decision that the photo subject to the debate and the article to which it was connected qualify as a report about a publicly challenging event and it is a publicly known fact that the public figure plaintiff – as a former minister – is directly and personally affected in it. Therefore the extra level of constitutional protection attributed to the debating of public affairs is applicable to the article published by the petitioner.
The Constitutional Court underlined: even though the court had earlier decided that taking the photograph subject to the debate had been an infringement, this is an existing photograph and the constitutionality of using it should be assessed separately. Additionally, the article made it clear that the criminal procedure had been closed with final force, the plaintiff had been acquitted from the charge of abuse of office, thus one may establish that the report has given an objective account of the the result of the procedure. The photograph does not depict the plaintiff in a humiliating situation, in a gravely offensive way or in a manner violating the unrestrictable essence of human dignity. Therefore using in the present case the photograph subject to the debate without the plaintiff’s consent is not capable of violating the objective sense of dignity; it is a proportionate restriction of the plaintiff’s right to his image and it is not considered as a misuse of exercising the freedom of the press.
On the basis of the above, the decision of the Constitutional Court annulled the judgement of the Budapest-Capital Regional Court of Appeal.
Judge Dr. Ágnes Czine attached a concurring opinion, while Judges Dr. László Salamon and Dr. István Stumpf attached dissenting opinions to the decision.