Data Protection Laws and Freedom of Expression: Hungary
Constitutional/Primary Law Background - see also ECHR and EU Charter
Article 9 of the contemporary Hungarian Constitution (2011 as revised 2016) provides that everyone has the right to freedom of expression and sets out commitments to the freedom and diversity of the press and to conditions for the free dissemination of information necessary for the formation of public opinions. Limitations are enumerated based on human dignity and the dignity of the Hungarian nation and of any national, ethnic, racial or religious community. It is stated that detailed rules on press freedom, the supervisory organ for media and communication and detailed rules on electoral advertising (which it is stated must be free and equal) will be laid down in a cardinal Act. Article 10 separately provides that Hungary will ensure freedom of scientific research, artistic research, learning and (within a statutory framework) teaching. Meanwhile, Article 6 enunciates the right to have private and family life, home, communications and good reputation respected. It also establishes a right to the protection of personal data and that an independent supervisory authority for this will be established by a cardinal Act. Article U establishes special limitations as regarding “holders of power under the communist dictatorship” stating that personal data related to their roles and related acts may be disclosed to the public and toleration given to factual statements here with the exception only of deliberate statements that are untrue in their essence.
The first (quasi-)constitutional protection of freedom of the press including the abolition of censorship can be traced to Law 18 of 1848 on the Press. The Communist 1949 Constitution officially guaranteed citizens’ privacy of the home and correspondence (art 57) and “[i]n accordance with the interests of the workers” freedom of speech and the press (art 55). The constitutional changes of 1990 including reformulated provision on freedom of expression (art 61) and protections for good reputation, inviolability of the home, private secrets and personal data (art 59). With the exception of Article U which was adopted in 2013, the current provisions noted in the previous paragraph arose from the adoption of a new Constitution in 2011.
First-Generation Statutory Law
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Hungary adopted comprehensive first-generation data protection Act LXIII on the Protection of Personal Data and Disclosure of Data of Public Interest 1992 which, under article 59 of the Constitution of the Republic of Hungary as amended in 1990 required a two-thirds parliamentary majority (and thereby had a quasi-constitutional status).
Special Expression Derogation
There was no relevant provision.
Broad Expression Derogation
There was no specific provision.However, much of the debate on the legislation related to the general tension between data protection and freedom of expression/information.
Personal Exemption
No exemption for personal or household processing was provided for.
Knowledge Facilitation Framework
Article 32 addressed the processing of data in for research purposes. According thereto, data collected and stored for purposes of scientific research was not to be used for other purposes. Personal data would have to be anonymized (‘unidentified’) as soon as possible. Data which would allow for the identification of a natural person were required to be stored separately. Personal data could, moreover, be published in connection with scientific research if (a) the data subject consented thereto or (b) such publication was required to display the result of research relating to historic events.
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Parliamentary Debates
Special and Broad Expression
In 1992, when the Data Protection and Freedom of Information Act was introduced, the Minister of Justice Balsai expressed the view that, in general, freedom of information should be restricted for the sake of protection of personal data. This strict conception of the protection of personal data was reflected in the proposed Act.[1] István Mészáros MP (SZDSZ, liberal party, main opposition party) was concerned about the danger of 'building a too firm wall between privacy protection and freedom of information'.[2] He accordingly proposed an amendment to the bill[3], removing the need for specific consent by presuming implied consent to data processing in connection with any personal data a person has conveyed to the public or has supplied for dissemination when making a public appearance. This amendment (with a different wording) was subsequently accepted in the final form of the 1992 Act.[4]
Personal Exemption
As regards the personal exemption, several Members of Parliament voiced concern about the lack of such a provision leading to absurd results.[5]
Knowledge Facilitation Framework
The debate on knowledge facilitation derogations centred around historical research: should historians be allowed to have access to personal data and consequently use it? The focus on historical research arose in the context of access to files left after the collapse of the Communist dictatorship in Hungary. Particularly the access to the documents of the secret police stood out as a matter of general interest.
MP Ferenc Kőszeg (SZDSZ, liberal party, opposition) raised in broad terms the need for a legislation similar to the one in Germany on Stasi documents.[6] His intervention focused on the right of the data subject to have access to documents containing information on herself in the files of the secret police. The government’s proposed bill should therefore not infringe upon historical research.[7]
Two further liberal MPs from SZDSZ, István Mészáros and Iván Pető, raised awareness of the need for a general exemption for historical research on several occasions during the debate. In the parliamentary debate, MP Pető voiced his party's wish to include some effective measures to safeguard historical research, especially in order not to hinder the discovery of the recent past of Hungary.[8] As the support of the largest opposition group – the liberal party (SZDSZ) – was key for the passage of the Act in light of the super-majority requirement for enactment of the law, MP Pető made clear that the group's support of the law depended on the inclusion of such a research exemption. For that purpose, MP Mészáros proposed in the Human Rights Committee on 30 September 1992 to amend the bill with a section on 'Processing and Use of Personal Data in Research Institutes'. The amendment aimed at carving out a general exemption from the consent requirement if 'it is necessary to demonstrate the findings of research in connection with historical events'.[9] He argued that the lack of such an exemption 'could have the effect of paralyzing the effective research of the past by setting up an impenetrable wall to the past'.[10] The government supported the inclusion of such a derogation, which was eventually adopted as Article 32.
Gyula Fekete MP (MDF, center right conservative, main government party) argued on 6 October 1992 that the bill should be amended to ensure that seventy years after the start of processing personal data all legal requirements would expire. He argued this would address the risk otherwise of data protection laws exerting a chilling effect on literary and historical works. His proposal was not retained in any form in the final bill.
Second-Generation Statutory Law
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In 2003 and iSee T/3735 A személyes adatok védelméről és a közérdekű adatok nyilvánosságáról szóló 1992. évi LXIII. törvény módosításáról) which included establishing a personal exemption. Hungary joined the EU on 1 May 2004 and, thereby, became subject to Directive 95/46. An entirely new data protection law was enacted in 2011 (Act CXII of 2011 on Informational Self-Determination and Freedom of Information).
Special Expression Derogation
The only explicit provision on special expression in the 2011 Act set out an exemption from the requirement to notify/register processing with the DPA files of media service providers (as specified within the scope of the Act on Media Services and Mass Telecommunication) which exclusively serve their own information activities (s. 65(3)(g)).[11] However, some very limited derogations were established through necessary implication under general provisions. Thus, the proactive transparency requirement even when collecting information directly from a data subject could be dispensed with when this was either impossible or involved a disproportionate effect.In these circumstances, the controller had instead to disclose to the world at large a wide range of information, including the event of data collection, its scope, its purpose, the duration of processing, possible controllers authorized to acquire knowledge of the data and information on the data subjects’ rights and legal redress opportunities (s. 20(4)). As a result of interaction with the law on the press and media, a derogation from the reactive transparency rule (subject access) was also established insofar as this would impact the confidentiality of the sources of information of journalists (s. 19 read with s. 6(1) of the Act CIV of 2010 on Freedom of the Press and the Fundamental Rights of Media Content).
Broad Expression Derogation
No special provision adopted.
Personal Exemption
From 2003 onwards the law no longer applied to natural persons controlling data exclusively for their own personal purposes (s. 2(4)).
Knowledge Facilitation Framework
The 2011 legislation carried forward provisions establishing that such data recording for scientific research purposes should (i) not be used for other purposes, (ii) be rendered unidentifiable as soon as possible and (iii) be stored in a manner where attribution information was kept separately from other information. It was finally provided that scientific research could lead to the publication of personal data with the consent of the data subject or if required to display the result of research related to historic events (s. 12).
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Parliamentary Debates
Special Expression Derogation
No explicit mention was made of special expression derogations in the legislative process.
Broad Expression Derogation
In the parliamentary debates leading up to the adoption of the Act CVII of 2011 on the Right of Informational Self-Determination and on Freedom of Information, which preserved the bulk of the content of the 1992 Act on Data Protection of Freedom of Information, MP András Schiffer made the following remark: ‘The informational right to self-determination is first and foremost about protecting the individual, their autonomy against the state but not exclusively against the state. Protection is also needed against big corporation or eventually against intrusive Internet websites’.[12]
Personal Exemption
While the 1992 Act did not contain a personal exemption, such an exemption was introduced with an amendment in 2003. The 2003 amendment aimed at aligning the Data Protection and Freedom of Information Act with the EU’s Directive 95/64/EC. However, no debates took place.
Knowledge Facilitation Provisions
No debate.
Third-Generation Statutory Law
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Hungary adopted third-generation data protection provisions through amendments to the 2011 Act which inter alia implemented the GDPR in 2018.
Special Expression Derogation
The Hungarian Data Protection Act implementing the GDPR fails to establish any explicit derogation in favour of journalism or any other form of special expression.
Broad Expression Derogation
No special provision.
Personal Exemption – see GDPR, art. 2(2)(c)
Knowledge Facilitation Framework – see also GPDR, art. 5(1)(b) (compatibility), art. 5(1)(e) (time limits) and art. 89(1) (appropriate safeguards)
The Data Protection Act implementing the GDPR does not contain any specific knowledge facilitation derogations. However, as in the previous, law a provision enabling those conducting scientific research to disclose personal data where necessary to present results on historical events was included (2018. évi XXXVIII. törvény az információs önrendelkezési jogról és az információszabadságról szóló 2011. évi CXII. törvénynek az Európai Unió adatvédelmi reformjával összefüggő módosításáról, valamint más kapcsolódó törvények módosításáról, s. 5(8)).
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Parliamentary Debates
Special Expression Derogation
A number of MPs (Harrach Péter; Dr Vejkey Imre) noted that the right to privacy should not be infringed upon by the freedom of expression. However, neither of the MPs further elaborated on this point. The relationship between the right to privacy and the freedom of expression were not discussed further.[13]
No further parliamentary debates on the special expression or the knowledge facilitation provisions were found to take place.[14]
[1] 4. § A személyes adatok védelméhez fűződő jogot és az érintett személyiségi jogait - ha törvény kivételt nem tesz - az adatkezeléshez fűződő más érdekek, ideértve a közérdekű adatok nyilvánosságát (19. §) is, nem sérthetik. English translation: 'The right to data protection and personality rights – subject to exemptions provided by law – will not be infringed for the advancement of the interests of data processors, and for the freedom of information.' (By personality rights Hungarian law mainly means the right to preserve one's reputation against libelous and defamatory statements.)
[2] Remark of István Mészáros MP on the 6/10/1992; page 61.
[3] Amendment number 28.
[4] 1992 Act Article 3 (4). This provision was preserved in the 2011 Act as well in its Section 6 (7).
[5] Remark of András Kósa MP on the 20/05/1992; page 20; Remark of Tamás Tirts MP on the 20/05/1992, 21.
[6] Remark of Ferenc Kőszeg MP on the 25/05/1992, 38.
[7] Ibid.
[8] Remark of Iván Pető MP on the 8/06/1992, 51.
[9] This was the Amendment Proposal number 163.
[10] Remark of István Mészáros MP on the 30/09/1992 in the Human Rights Committee of the Parliament.
[11] Hungary, Act CXII of 2011 on Informational Self-Determination and Freedom of Information,, s 65(3)(g).
[12] 'Az információs önrendelkezési jog elsősorban az egyént, a polgár autonómiáját védi az állammal, de nemcsak az állammal szemben, hanem adott esetben nagy gazdálkodó szervekkel vagy éppen különböző kutakodó portálokkal szemben.' Remark of András Schiffer MP on the 11/07/2011; page 47.
[13] See Parliamentary Assembly, Országgyűlési Napló (17 July 2018) <https://www.parlament.hu/documents/10181/1569934/ny180717.pdf/f3a5f93d-7... (last accessed 11 April 2021).
[14] For an overview, see <https://www.parlament.hu/hu/web/guest/orszaggyulesi-naplo> (last accessed 11 April 2021).
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