This article belongs to the debate » Ukraine, the European Union and the Rule of Law
24 Dezember 2022

A fragmented response to media freedom at risk in the Union

The Polish and Hungarian governments have famously parted ways over responses to the Russo-Ukraine war. However, internally, both continue to rely on similar structural changes in the media environment that help them target voters and undermine elections fairness. The EU’s response to the media freedom and pluralism crisis in Hungary and Poland has been more restrained and also qualitatively different from its answer to the judicial independence crisis or threats to academic freedoms and minority rights.

Viktor Orbán has already secured another term in office, but the prospects for PiS in Poland in 2023 general elections are uncertain. Both governments badly need the propaganda in controlled media.

And what does the EU need? Even more in the context of the ongoing war – which is a contest between imperialist authoritarianism and democracy – the EU needs democratically resilient member states that hold free and fair elections. The time is of the essence for the EU to make sure that the European Parliament and local elections in 2024 in Hungary and Poland will meet the EU law requirements.

So far, the EU has decided to tackle assaults on media freedom and pluralism in Hungary and Poland chiefly through a combination of political instruments and new legislation. The European Media Freedom Act that is currently under works may bring some value and embolden the EU institutions to take legal action. However, the EU already has avenues for legal action to protect media freedom in member states. But it does not act as strong as it could. Yet, the EU’s principled position regarding democratic backsliding, as we have recently seen, may prove successful.

Biased coverage tarnishes elections in Hungary and Poland

After years of pro-Russia messaging in homogenized, government-controlled media, only 35% of Hungarian respondents blame Russia for the war in Ukraine, compared to 75% of Poles, according to YouGov poll, During the spring election campaign, Hungarian PM addressed a Conservative Political Action Conference participants, recommending US republicans to “have their own media” and advised broadcasting biased news programs day and night. During the campaign, Fidesz used controlled communication channels to scare voters that the opposition politicians were dangerous warmongers that would drag Hungary into the conflict with Russia. The opposition leader Péter Márki-Zay was allowed only five minutes on public television to present his program. Fidesz party won the elections by a landslide.

General elections in Poland are expected in the second half od 2023. In 2024, the European Parliament and local elections will take place. PiS chairman Jarosław Kaczyński already rallies his base during a grand tour of the country. According to Kaczyński, independent media are a significant liability because they never co-operate constructively with the PiS government, rejecting its policies, just like the political opposition, and, in his view, create a distorted narrative.

In reality, for years, the PiS-controlled public media have been demonizing, often literally, opposition politicians. The acquiescent public broadcaster is a tool to convince voters that the opposition in the past decades has not pursued Polish interest, but was „realizing the Russian agenda at Germany’s request”. In the public media, the European People’s Party’s EPP acronym was translated as „European Putin’s Party”. Complaints are filed to the media regulator against such distorted coverage, to no avail.

Since 2011, Hungary’s public broadcaster has participated in a smear campaign against members of the European Parliament criticizing the Fidesz’s government. Private pro-government media have also “investigated” Hungary’s opposition parties’ MEPs during the general elections campaign in 2022.

OSCE/ODIHR elections observations missions concluded that biased electoral coverage in Hungary in the 2018 and 2022 elections significantly limited the voters’ opportunity to make an informed choice.1) OSCE/ODIHR also found that Polish public television failed to provide balanced and impartial coverage of the 2020 presidential elections.2)

With the European Parliament and local elections planned in Hungary and Poland in 2024, time is of the essence for the EU institutions to ensure that the elections will be free and fair. The EU Commission is obliged to do so. EU law protects the electoral rights of EU citizens in the European Parliament (Article 14(3) TEU, Article 11 and 39.2 of the Charter) and municipal elections (Article 20(2)(b) TFEU.

The fall of media freedom and pluralism in Hungary and Poland

In the 2022, in the RSF World Press Freedom Index, Hungary fell to 85th out of 180 countries (from 67th in 2015), and Poland to 66th (from 18th in 2015) place. In recent years, political factors have greatly impacted the Polish and Hungarian media environments.

The first is the political capture of media regulators, which is a part of informal power grab. The Media Council in Hungary, the Polish National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji) and PiS-introduced National Media Council (Rada Mediów Narodowych) are staffed with people with links to the ruling camp or president and are only nominally independent. In result, those responsible for the captured public media partial programming are shielded from accountability. The regulators use their powers to threaten private media with non-renewals of license or fines for reporting. The new president of the Polish National Broadcasting Council Maciej Świrski in the past called for boycotting private channel TVN and led on organization that provided legal help in civil law cases against historians of the Holocaust.

The second is public media capture. Immediately after gaining power, Fidesz and PiS sacked experienced journalists in public radio and television and replaced them with people who agree to produce the propaganda. Government-subservient public media are lavishly funded. The Polish public broadcaster is funded by a license fee income and the rest by compensation from state funds, which doubled from 2017 to 2022 to PLN 1.95 billion (approx. EUR 420 M) per year. In 2023, additional PLN 700 M will be added on top of that. State media is also generously funded in Hungary and has an annual budget of HUF 130 billion (EUR 310 M).

The third is private media capture. This process is already advanced in Hungary and is advancing in Poland. Fidesz has taken control over private media by friendly oligarchs. PiS has used the state-controlled company PKN Orlen that, in 2021, acquired the largest regional daily newspaper group Polska Press from the German Verlagsgruppe Passau.

The fourth is distorting the media market by boosting friendly private media from state funds. The state is the largest advertiser in Hungary, spending 79 M Euros on advertising in 2020, which is estimated to represent one-third of the whole advertising market. In Poland, according to an independent study, the pro-government weekly magazine Sieci received 31percent of advertising revenues in 2020 from government-controlled state companies and the daily Gazeta Polska Codziennie – 29 percent in 2020 and 53percent in 2019.

The fifth is mounting hurdles to private media that dare to criticize the government. These obstacles include threats of not renewing licenses, planned new taxes or interferences in media ownership structures, and legal actions that aim to intimidate, including Strategic Lawsuits Against Public Participation (SLAPPs), brought by government sympathisers. In Hungary, investigative journalists have been surveilled with spyware. In Poland, some journalists were pepper-sprayed and briefly detained by the police while covering anti-government protests.

The time is up to act on media freedom and pluralism

The European Union institution’s treatment of the ongoing media freedom and pluralism crisis in Hungary and Poland has been qualitatively different from its answer to other areas of the rule of law backsliding. The EU’s response s far includes monitoring, in the case of Hungary, political dialogue in the Article 7(1) Treaty on the EU procedure, legislative action, and financing.

The European Commission has been persuaded, in significant part, thanks to persistent efforts of civil societies, to start several EU law infringement proceedings under Article 258 of the Treaty on the Functioning of the EU against curbs on judicial independence, academic freedom, assaults on LGBT, or attacks on the rights of migrants and asylum seekers, which resulted in breakthrough judgments of the EU Court of Justice.

The Hungarian government had been delaying but eventually complied with the CJEU rulings, for instance, in the lexNGO case – although the law’s provision also raised concerns. After all, PM Viktor Orbán has made democratic backsliding under the veneer of legality his trademark. In the first years of the rule of law crisis, the Polish government has also complied with CJEU rulings, including the two judgments from 2018 about the lowering of judges‘ retirement age. In 2021, Mateusz Morawiecki’s government has adopted a more confrontational approach, using the captured Constitutional Tribunal to reject CJEU and the European Court of Human Rights rulings on judicial independence.

However, recently, with the increased military spending, pressure on the economic front, poor approval ratings and general elections looming in 2023, the government in Warsaw has been more keen on dialogue with Brussels and attempts to pass a bill that would satisfy the European Commission’s expectations regarding the rule of law „milestones” in the Polish recovery and resilience plan. In this context, the PiS government appears unlikely to openly challenge CJEU’s rulings until all Next Generation EU funds transfers arrive in Poland or until it wins the next general election. Budapest faces being cut off from significant EU funding.  Orbán’s domestic position weakens due to economic and food security crisis. In turn, the anti-EU propaganda intensifies. Thousands of billboards around the country put the blame squarely on Brussels: sanctions are depicted as a bomb, and it is implied they are ruining Hungarians already.

In such context, the European Commission should keep up the momentum and pressure the Hungarian and Polish governments also on the media freedom front, using all available tools including legal mechanisms.

The EU’s underwhelming response

The EU’s institutions are well-aware of the concerted, structural attack on media freedom and pluralism in Hungary and Poland. The EU monitors it extensively, using the Media Pluralism Monitor and, since 2020 also in the flagship Rule of Law reports that since 2021 also include non-binding recommendations.The Article 7(1) procedure against Hungary concerns changes made to the Press Act and the Media Act, including the rules for electing members of the Media Council, the biased coverage of elections in public and private pro-government media, smear campaigns and obstacles to the work of independent journalists. However, Article 7(1) procedure against Poland does not cover media freedom issues

Despite the broad evidence of various media freedom and pluralism violations, the European Commission in the past decade has launched only one EU law infringement proceeding in a case regarding media freedom in Hungary and Poland. In June 2021, the Commission started an infringement action against the Hungarian government concerning the Media Council’s decision to deny the independent Klubrádió license extension. The Commission has argued that the Media Council’s decision was disproportionate and non-transparent and that Hungarian authorities failed to comply with the European Electronic Communications Code (Directive (EU) 2018/1972). The case is pending.

Media regulation has traditionally been the competence of member states and regulated heterogeneously, with an important exception of the Audiovisual Media Services Directive (AVMSD). However, the Council of Europe has developed rich, non-binding standards on public media.

The EU is currently working on a more comprehensive, enforceable media freedom and pluralism protection system at the EU level. The flagship European Media Freedom Act, whose draft was published in September 2022, was not devised  solely to answer to the media freedom and pluralism issues in backsliding Hungarian and Polish democracies. However, certain regulations envisaged in the draft EMFA relate to these concerns. The draft MFA includes standards on the independence of national regulatory authorities (recital 22 and Article 7) and public media (recital 18 and Article 5), and rules enhancing transparency and fairness in the allocation of state advertising to media outlets (recital 48 and Article 24). Moreover, the draft MFA requires member states to carry out media freedom and pluralism independence test when adopting any new regulatory measures that impact media market (recital 40 and Article 20)3). That would apply, for instance, to decisions impacting media concentration or decisions on private media licensing (recital 38). However, it is unclear in what shape EMFA will be adopted. Besides, without fixing the structural problems with the rule of law, including the independence of state institutions, it’s effective enforcement in Hungary and Poland would be probably limited.

What the EU could do more

However, focusing on developing new legislation should not be an excuse for taking action, as the EU already has untested avenues for legal actions to protect media freedom and pluralism in member states. Article 30 of the revised Audiovisual Media Services Directive (AVMSD) requires member states to guarantee that their media-market regulators are entirely independent of political and business influence and exercise their powers impartially and transparently, in keeping with principles of media pluralism, cultural and linguistic diversity, non-discrimination, and fair competition. The EU Commission should particularly monitor decisions of Hungarian and Polish media regulatory authorities that are detrimental to specific media that are independent of government and to the private media sector in general. It is crucial that the Hungarian and Polish state authorities who are responsible for setting the framework for the media know that the Union can react to independent media harassment.

Poland faces a marathon of elections and polarising campaigns. In Hungary, the government propaganda will most probably try to disgrace the Union and the main political groupings on the European level. Concerns about the next European Parliament elections fairness are not exaggerated. In Poland, Jaroslaw Kaczynski is calling on his supporters to create an election protection corps, despite the fact that his party has control over the vast majority of state institutions, and election irregularities are usually the responsibility of those who do not want to give up power. The Union already has election protection mechanisms. You have to be willing to put it in place with regards to media freedom and pluralism.

References

References
1 OSCE/ODIHR, Hungary. Parliamentary Elections. April 8, 2018, ODIHR Limited Election Observation Mission Final Report, June 27, 2018; and Hungary. Parliamentary Elections and Referendum. April 3, 2022, ODIHR Election Observation Mission Final Report, July 22, 2022.
2 OSCE/ODIHR. Poland, Parliamentary Elections, October 13, 2019: Final Report, February 14, 2020, and Poland, Presidential Election, June 28 and July 12, 2020: ODIHR Special Election Assessment Mission Final Report, Organization for Security and Co-operation in Europe, September 23, 2020.
3 Recital 40: „Media play a decisive role in shaping public opinion and helping citizens participate in democratic processes. This is why Member States should provide for rules and procedures in their legal systems to ensure assessment of media market concentrations that could significantly impact media pluralism or editorial independence. Such rules and procedures can impact the freedom to provide media services in the internal market and need to be properly framed and transparent, objective, proportionate and non-discriminatory. Media market concentrations subject to such rules should be understood as covering those which could result in a single entity controlling or having significant interests in media services which have a substantial influence on the formation of public opinion in a given media market, within a media sub-sector or across different media sectors in one or more Member States. An important criterion to be taken into account is the reduction of competing views within that market due to the concentration. 

SUGGESTED CITATION  Wójcik, Anna: A fragmented response to media freedom at risk in the Union, VerfBlog, 2022/12/24, https://verfassungsblog.de/a-fragmented-response-to-media-freedom-at-risk-in-the-union/, DOI: 10.17176/20221225-001551-0.

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