Abandoning safe harbours: Hungarian online freedoms at risk

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Deutsch: [Ungarn: Die Freiheit des Internets steht auf dem Spiel | https://www.unwatched.org/EDRigram_10.22_Ungarn_Die_Freiheit_des_Internets_steht_auf_dem_Spiel?pk_campaign=edri&pk_kwd=20121107]

Restrictions on freedom of expression and on access to information would be two repercussions of recently drafted changes to Hungary’s Criminal Code. The law would allow the government to “block” and potentially delete online material if hosting providers fail to respond to notice-and-take-down procedures.

While Internet service providers would not be liable for user content, they would be obliged to “block” websites placed on the National Media and Telecommunication Authority’s blacklist following a court order. The Ministry of Justice considers temporary prevention of access “absolutely necessary to obstruct online criminal activity and for crime prevention”. The measures would shelter Internet users from criminal content, such as child pornography, or from material that may incite crime, such as hate speech, or so the conventional thinking goes. In fact, “blocking” has been shown to be ineffective in practice. It also carries risks of interfering with a criminal investigation by signalling that illegal content has been detected by the authorities.

The proposed bill does not explain how the kind of illegal content that easily escapes blocking measures—by using proxy servers, for instance— would be dealt with. Nor has the problem of illegal content delivery through backdoor systems been addressed.

Details concerning the implementation of interception measures are vague. It is not clear what the government means by “file deletion”, or whether temporary prevention of access to content would require blocking an IP address, domain name or URL.

The HCLU published an opinion that raises a number of concerns about the draft regulation. It states that the possibility of unduly restricting rights would be exacerbated by its shortcomings, which include technically flawed and vaguely worded provisions and measures that limit rights on the basis of alleged offenses rather than convicted offenses. These deficiencies would increase the likelihood that legal content could be unlawfully censored. The authors also point out that there are no provisions to allow the right of appeal to innocent users who would suffer damages from having their content wrongly removed from the Internet.

The proposed solutions have been called “disproportionately severe”, “unnecessary” and “unconstitutional” by the Hungarian Convent Providers Association (MTE). It issued a statement in which it argues that the legal system already contains procedures for determining legal infringements. These provide even stronger sanctions in the case of proven offenses. It worries that if hosting providers fail to follow the procedures outlined in the regulatory initiative they would also share civil and criminal responsibility. This would have even more serious consequences for society.

In a global survey of Internet freedom by Freedom House, Hungary was ranked among the top 5 out of 47 countries only months ago. Hungary’s commitment to press freedom has been questioned since it introduced widely criticized media laws and refused to assign a radio frequency to a station known to be critical of the current government. The survey highlighted the fact that Hungary’s media regulations cover traditional media only. The Constitutional Court ruled that online press must be exempted from the media laws in December of 2011, but the amendments made by the Parliament in May 2012 modified the regulations so that they would be applicable to online media too.

Insult, defamation and libel are criminal offenses under Hungarian law. Here, as elsewhere, slander is regularly invoked for political or economic reasons. Occasionally, however, domestic courts favour the plaintiff for reasons that are not easy to understand. In one notorious ruling the Supreme Court convicted a journalist for having used derisory language in an opinion about the Tokay of a state-owned winery; the European Court of Human Rights overruled the decision last year.

At a time when more and more Hungarians are fed up with having to choose between ideological media cocoons, the independent sources of news that blogs, and other tools of mass communication, provide are increasingly valuable. Legal means of monitoring, blocking and censoring these voices have, of course, developed in parallel, as recent developments in Russia, and elsewhere, illustrate.

The independence of the newly appointed authority for data protection and freedom of information is questioned by many, and there are currently no other specifically privacy- or digital rights-oriented organizations in Hungary to defend the interests of Internet users.

The new regulations are due to enter into force on July 1st of next year.

HCLU analysis of the draft law (only in Hungarian, 31.10.2012)
http://tasz.hu/szolasszabadsag/az-internet-szabadsagat-csorbitana-kormany

Opinion of the Hungarian Content Providers Association (MTE) (only in Hungarian, 9.11.2012)
http://m.cdn.blog.hu/mt/mte/file/MTE%20komment%20lehetosegek%20vitaanyag.pdf

Freedom House report (25.09.2012)
http://www.unhcr.org/refworld/docid/5062e8a4c.html

Rights advocates on the government’s new Internet bill (only in Hungarian, 24.10.2012)
http://www.origo.hu/techbazis/20121024-jogvedok-a-kormany-uj-internetes-torvenytervezeterol.html

Internet blocking: crimes should be punished and not hidden
http://www.edri.org/files/blocking_booklet.pdf

(Contribution by Christiana Mauro – EDRi Observer)