Death threats - for free speech?

By Attila Szabó, LLM, Lawyer specialised in political liberties 

HCLU Head of Legal Aid Service.

From 1 January 2025, it will be a criminal offence in Hungary to make a comment in which a commenter makes a death threat against a specific person, including a public official. In this article, I look at the extent to which this poses a threat for freedom of expression. In the first part of the article, I explain the restrictions that applied to comments until 31 December 2024. In the second part, I explain what exactly the change is and what problems occur. In the third part of the article, I will examine the actual change and whether it is in line with the human rights standards that are binding for Hungary and the practice in relevant European countries.  

Photo credit: Kafka Ibram/Shutterstock

Legal framework in an illiberal system  

Hungary is not in a good position in many aspects of political freedoms, but fundamentally, freedom of expression for individuals is perhaps the least problematic area. If one looks at the latest Freedom House report, will find that this area scores three out of four, i.e. it is not considered particularly bad. According to the report 

while freedom of expression is constitutionally protected, ongoing efforts to sideline voices and perspectives that authorities find unfavourable, including many found at academic institutions, NGOs, and media outlets, have discouraged open criticism of the government and other politically sensitive speech. Human rights groups have also raised concerns that provisions in the new Sovereignty Defense Law, enacted in December 2023, can be used to intimidate and arbitrarily silence people who express criticism of the government. 

The criticism is therefore mainly that the government is trying to silence the institutional actors, not the individual citizens. This does not mean, of course, that there were no limits on comments, but that they were largely in line with the practice of the European Court of Human Rights (ECHR). However, it must be mentioned that there are uncertainties in the Hungarian legal practice in spite of the fact that ECHR case, Magyar Tartalomszolgáltatók Egyesülete And Index.hu Zrt v. Hungary would give a proper framework. 

The protection of human dignity, criminal law and the personality rights have, of course, always been a limit to freedom of expression, in Hungary too. However, the restriction of freedom of expression at the level of the ordinary courts and mostly at the level of the Constitutional Court has been in line with ECHR practice. Watchdog NGO-s have successfully defended ordinary citizens in cases where public authorities or, ad absurdum, state bodies have brought proceedings against commenters that were considered offensive or criminal. Without getting lost in the details of the legal practice, I would like to point out that the Hungarian Civil Liberties Union has successfully defended citizens and commentators in three local public cases of local importance in recent years.The practice was therefore well established and largely in line with European standards. This might now change with an amendment at the end of 2024. 

Of course, it should be mentioned that the situation is not nearly as bright in areas outside of commenting. Freedom of speech in parliament, street activism, certain aspects of the right of assembly, freedom of information are much more problematic in Hungary, but with the recent change, let's focus on the freedom of speech issues related to comments.   

Death threats 

 From 1 January 2025, a new criminal law rule came into force which will mean a tightening up of the commentary compared to the previous one. According to the rule 

Any person who, in a public place by means of an electronic communications network, uses any expression, representation or a sound or visual recording which identifies an identifiable person or persons violence against a person or persons 

(a) causing death, or 

(b) committed with particular cruelty or desire to commit an act punishable by a criminal offence, if it is more serious offence, shall be punishable as a misdemeanour with imprisonment for a term of up to one year. 

(2) A person shall not be punishable for an offence under subsection (1) who 

for the purposes of information, education, science, art, history or the present day 

events of the present time, provided that the act is not intended to create fear 

is likely to cause fear. 

The amendment package also includes a non-criminal part. It obliges media products to moderate their own commentary. The rule states that 

Where the publisher of an online press product provides for the possibility of reader comments on the content of the press product on the internet platform it edits or on an online platform operated by another party, it is obliged to establish a policy and to implement an effective solution to deal with comments that contain illegal or harmful content, in particular hate speech or offensive to human dignity. 

The legislator justified the tightening of the rules because it highlights a disturbing rise in online hate speech and fear-mongering, characterized by dehumanizing attacks and a complete lack of respect. This justification argues that there is an alarming trend which is exacerbated by the anonymity of the digital world, emboldening individuals to express hateful and even violent sentiments with impunity. The text emphasizes the shared responsibility of social media platforms and media outlets in curbing this harmful discourse.

Recognizing the fundamental right to free and unintimidated communication, the text advocates for legal measures to prevent the spread of hate speech, regardless of whether it targets individuals or specific groups. Ultimately, the aim is to safeguard human dignity and foster a more respectful and constructive public discourse, says the Hungarian legislator. 

The legislator, therefore, seems to be introducing the restriction on the grounds of human dignity. It is important to note that the legislative justification will have to be binding in Hungarian law in order to assist the interpretation of the law by the judiciary. That is why it is crucial to know why the legislation was created. 

Is it really a threat?  

 Despite the reasonable legislative intent, the amendment may constitute an unnecessary and disproportionate restriction on freedom of expression. The new barrier is unnecessary since the prohibition of hate speech has been included in the Criminal Code since 2016 under the title of incitement to hatred. 

This is disproportionate since it is very difficult to foresee legal practice. The interpretation of the law will also depend heavily on the context, but it will not be an easy task for the courts to determine. "A comment is not a chiselled text. It does not have an introduction, a discussion, or a complex thought arc. Amid a comment war, it will be much more difficult to judge the context in which a particular comment was made than, say, a speech at a demonstration or a newspaper article, said the lawyer of the Hungarian Civil Liberties Union. This will create uncertainty in the application of the law by the judiciary. The question is how soon the judicial law will become so clear that commenters will be able to adapt to it.  

In addition, there are no cases in ECHR practice that can help the Hungarian courts to make one-to-one decisions. However, in the case of Sanchez v France, the court clearly held that the editor of a commenting site could be criminally liable for the content published there. 

Finally, it should also be mentioned that if a Hungarian press wants to keep the comment section after the change in legislation, it would have to allocate huge resources to it. I am afraid that the already bleeding Hungarian press is incapable of doing this, so this is another slap in the face for the Hungarian press and thus for public discourse.  

All in all, however, it can be said that the amendment seems unnecessary and could also cause numerous problems in the procedure, for example, how the court will judge whether the person threatened can be identified or, for example, why there will be a difference between a comment seeking death by disease and, say, a comment seeking minor injury by violent crime. The legislator's argument can therefore be considered reasonable, but it is a question of time how judicial practice in this area will develop. This will decide whether the Hungarian jurisprudence on threatening comments will be constitutional and ECHR-compliant.