The European Commission’s proposal for a directive, which was published last week, would restrict public authorities of Member States from taking legal action against allegations made by journalists and non-governmental organisations to protect their legitimate interests and maintain public confidence in public institutions. According to the Commission’s interpretation, state action constitutes a form of harassment that is intimidating, thus making it impossible to speak in matters of public interest. The body would remedy this situation by introducing the concept of “strategic litigation preventing public participation” into EU law, and would set different dissuasive sanctions and other procedural rules in cross-border litigation – domestic litigation and criminal matters fall within national competence – in order to limit state action. In addition to the proposal for the directive, which can be seen as a stealthy extension of powers, the EC has adopted a recommendation encouraging Member States to harmonise their legislation with the planned law in their domestic affairs as well.
From a Fundamental Law point of view, the Commission’s proposal can be called into question, as it restricts access to justice.
Under Article XXVIII. (1) of the Fundamental Law, everyone shall have the right to have any indictment brought against him or her, or his or her rights and obligations in any court action, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act.
The Constitutional Court Decision No. 59/1993. (XI. 29.) states that the “unfolding” of ineffective proceedings, which, according to the Commission, made the work of journalists and civil society actors impossible, is limited by so-called litigation obstacles regulated in civil procedure. In its decision, the judicial panel also provides that legal restrictions shall not affect the essential content of the fundamental right of access to court, i.e., the restriction shall be indispensable and proportionate to the aim pursued. Furthermore, the fundamental right to go to court guarantees the position of a party in court proceedings: individuals are thus subjects, shapers and not “victims” of court proceedings.
Members of the European Commission welcomed the proposal as a major step: Didier Reynders, EU Commissioner for Justice, said that “Active practice of expression is key to a healthy and prosperous democracy”, while Vera Jourová, EU Commisioner for Values and Transparency, said that “In a democracy, no one can defeat the truth through wealth and power”.
The words of Reynders are undoubtedly valid and should be followed, but it should not be overlooked that even the fundamental right to freedom of expression is not absolute, and the actors of the press and civil society also have specific legal obligations, and in the case of a breach thereof litigation (by the state) is rightful.
Act CIV of 2010 on the Freedom of the Press and the Fundamental Rules of Media Content states that Hungary recognises and protects the freedom and diversity of the press. Everyone has the right to be properly informed about local, national and European public affairs, as well as about events of importance to the citizens of Hungary and the members of the Hungarian nation. At the same time, the entire media system has the obligation to authentically and accurately report on these matters and events. In its Decision No. 13/2014. (IV. 18.), the Constitutional Court derived from Article IX (4) of the Fundamental Law that public trust in public institutions constitutes a constitutionally justifiable restriction on the freedom of expression and thus on speaking on public affairs. In their dissenting opinion on the Constitutional Court Decision No. 3001/2008. (I. 10.), constitutional judges explained that the abusive exercise of a fundamental right, e.g., freedom of expression, may also harm the public interest. In addition, the widespread abuse of the fundamental right to freedom of speech and expression is likely to disrupt public order and, in more serious cases, to undermine confidence in democracy and the functioning of democratic institutions.
So, agreeing with the words of Reynders, the active exercise of expression is, of course, of key importance in a healthy democracy, but the freedom of the press and thus the information activities of journalists is not unrestricted but is subject to obligations in order to uphold other fundamental rights or constitutional values. The exercise of the freedom of the press does not in itself extend to the publication of falsehoods. In fact, one of the main responsibilities of journalists is to check the authenticity of the news and information published (Constitutional Court Decision No. 34/2017. (XII. 11.). Consequently, a disproportionate restriction on state action is likely to have an effect contrary to the original intention.
We can also agree with Jourová that in a democracy, no one shall be allowed to defeat the truth through wealth and power. However, based on recent video and audio recordings, all this is not a source of danger due to the action of public authorities but through the activities of various NGOs. Video materials provide a detailed insight into how pseudo-civil organisations linked to George Soros falsify reality. Prominent figures from Soros organisations (e.g., Andrej Nosko, former director of the Open Society Foundations (OSF) or former Hungarian director of Amnesty International, supported with millions of dollars by the US stock market speculator) and other left-wing actors detail how they tamper and influence journalists in their work to produce materials that are in their favour vis-à-vis Member States that do not agree with the left-liberal mainstream. It is clear from the recordings that NGOs have a strong influence on the public, and that regulating this phenomenon properly, even in the form of a directive, would be a real step forward so that no one should defeat the truth through its economic power. However, for well-known political reasons, the Commission would not do so, but would, on the contrary, deprive public authorities of access to justice under such conditions.
Although, according to the European Commission, public authorities are pursuing strategic lawsuits, in reality, this technique that overthows the system is organised on the left-liberal side, on the basis and spirit of the extreme principles of Alinsky, both in the West and Hungary.
In his 12 rules for Radicals, Saul Alinsky, a former communist activist, summarised his views on the extreme steps he considered acceptable to gain power. The methods aim to incite political unrest and create social tensions by pushing and crossing legal boundaries and placing constant pressure on the government and public authorities.
The communist activist’s theorems, among other things, included:
- “Whenever possible, go outside the expertise of the enemy. Look for ways to increase uncertainty and anxiety.”
- “Make the enemy live up to its own book of rules. If the rule is that every letter gets a reply, send 30,000 letters. You can kill them with this because no one can possibly obey all of their own rules.”
- Keep the pressure on. Never let up. Keep trying new things to keep the opposition off balance. Attack, attack, attack from all sides, never giving the reeling organization a chance to rest, regroup, recover and re-strategize.”
The left has, among other things, developed the domestic technique of strategic litigation along these points, using various means and even social minority groups without hesitation to gain power. The fact that we are basically talking about a left-wing tool is evidenced by a study previously published by the Hungarian Helsinki Committee, supported by George Soros, which explains the importance of strategic lawsuits as a possible tool for resisting illiberal states (point 8).
In Hungary, among the most common forms of strategic litigation are cases related to access to public information upon request, a right often used by left-wing organisations to “make the enemy live up to its own book of rules” with unreasonable requests in large quantity. “If the rule is that every letter gets a reply, send 30,000 letters” to make the work of public authorities impossible. According to Act CXII of 2011 on the Right of Informational Self-Determination and on Freedom of Information, the organ performing public duties and processing the data of public interest shall fulfil the request for access to such data not later than 15 days and if the request concerns data large in number or in volume, or if fulfilling the request for data requires a disproportionate use of the labour resources, it may not exceed 30 days. In the event that the request for access to data of public interest is dismissed, or the time limit expires with no result, the requesting party may turn to court. This strict regulation is exploited in bad faith by various NGOs and media outlets in order to systematically initiate strategic lawsuits against public authorities.
Another common form of strategic litigation is the use of various minorities for political purposes under the slogan of legal protection, in which non-governmental organisations linked to George Soros also play a key role. Protecting the rights of social minority groups is of particular interest. However, the aim of the Soros organisations is not this but to place political pressure and social tension in the spirit of the Alinsky principles.
The Chance for Children Foundation (CFCF), an organisation sponsored by a group of supporters such as the Open Society Institute (OSI), the Norwegian Civil Support Fund, the Hungarian Soros Foundation and the Ökotárs Foundation, has initiated a number of strategic lawsuits in connection with the segregation of students of Roma origin, which have created enormous tensions in society. This NGO acted in the segregation case of both the Huszár-telepi school in Nyíregyháza and the school in Gyöngyöspata. The former case is memorable because Péter Niedermüller, famous for his anti-Christian statement, turned to the European Commission to initiate an infringement procedure against Hungary, despite the final decision by the Curia that no segregation had taken place regarding students of Roma origin. In the case of Gyöngyöspata, as a result of the CFCF’s action, the local government operating the school had to pay HUF 80 million in compensation, which almost resulted in the bankruptcy of the town.
In these cases, the obvious aim of the large number of lawsuits is to initiate proceedings against Hungary through various international institutions. This is also clear from an earlier interview with one of the founders of the CFCF: “It would be worthwhile to try to bring a Roma school segregation case before the European Court of Justice in Luxembourg.” To this end, since its existence, the NGO has initiated strategic lawsuits against several schools, school districts and public institutions for the illegal segregation of Roma students, which activity certainly contributed significantly to the fact that an infringement procedure could be initiated against Hungary with the accusation of domestic Roma segregation at the initiation of Benedek Jávor, MEP of Párbeszéd.
Another type of strategic lawsuits in Hungary is the so-called prison lawsuit. As a result of the proceedings initiated with the active participation of NGOs, including the aforementioned Hungarian Helsinki Committee, which is also supported by the European Commission, the Hungarian state had to pay more than HUF 10 billion in compensation to convicts for poor detention and prison conditions. Although domestic legislation protected the human dignity of detainees and included provisions on compensation, all this was not enough compared to the lenient European regulations. Recognising this, lawyers and advocacy organisations linked to the left have initiated a series of lawsuits, more than 12,000, and won lawsuits before the European Court of Justice. As a result of these circumstances, the Prison Service Act also had to be amended. The situation offending the sense of justice in society was finally ended by the government suspending payments with immediate effect.
The European Commission is misinterpreting reality when it identifies strategic lawsuits as a public asset and, as a result, intends to deprive public authorities of their rights. Quite the contrary, it is about time to prevent, by legal means, NGOs without any democratic mandate from making it impossible to use democratic means, destabilising the functioning of government and destroying public confidence in public institutions by their abusive exercise of rights, and from using vulnerable social groups to gain financial advantage and putting political pressure on national governments