Magyar Kétfarkú Kutya Párt v. Hungary [GC]

Information Note on the Court’s case-law 236

January 2020

Magyar Kétfarkú Kutya Párt v. Hungary [GC] - 201/17

Judgment 20.1.2020 [GC]

Article 10

Article 10-1

Freedom of expression

Freedom to impart information

Insufficiently foreseeable legal basis for a fine on political party for making available a mobile application allowing voters to share anonymous photographs of their ballot papers: violation

Facts – In 2016 a referendum related to the European Union’s migration relocation plan was held in Hungary. Just prior to the referendum the applicant, a political party called Magyar Kétfarkú Kutya Párt (“the MKKP”), had made available to voters a mobile application which they could use to anonymously upload and share with the public photographs of their ballot papers. Following complaints by a private individual to the National Election Commission (NEC), the applicant party was fined for infringing the principles of fairness and secrecy of elections and of the exercise of rights in accordance with their purpose. The Kúria upheld the NEC’s finding regarding the infringement of the principle of the exercise of rights in accordance with their purpose, but dismissed its conclusions regarding the voting secrecy and fairness of the referendum. The applicant party’s constitutional complaint was declared inadmissible.

In a judgment of 23 January 2018 (see Information Note 214), a Chamber of the Court held, unanimously, that there had been a violation of Article 10 of the Convention. In the Court’s view, the applicant party’s conduct was not conducive to any prejudice in respect of the secrecy or fairness of the referendum. The sanction imposed on the applicant did not pursue any of the legitimate aims enumerated in Article 10 § 2.

On 28 May 2018 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 10

(a)  Existence of an interference – The domestic authorities’ decisions had interfered with the MKKP’s freedom of expression. For the Court, the posting of ballot photographs was a form of conduct that qualified as the exercise of the freedom of expression.

The MKKP had not been the author of the photographs in issue; rather, it had participated in their dissemination by providing a mobile application for their publication. In its case-law the Court had established that Article 10 applied not only to the content of information but also to the means of dissemination, since any restriction imposed on the latter necessarily interfered with the right to receive and impart information. The mobile application had been a means put in place by the MKKP for voters to impart their political opinions, allowing them to exercise their right to freedom of expression.

In the line of the domestic authorities’ interpretation of the MKKP’s conduct, the Court considered that the MKKP had been seeking not only to provide a forum for voters to express their opinion, but also to convey a political message itself. Given the context – the time of a national referendum – and the name of the application – “Cast an invalid ballot” – the operation of this mobile application was to be regarded as an expression of the MKKP’s political opinion on the referendum in question.

The MKKP had claimed that it had been penalised not for carrying out campaigning activity as such, but for doing so through the mobile application in question. The protection of Article 10 extended not only to the substance of the ideas and information expressed but also to the form in which they were conveyed. The MKKP’s conduct fell into this category.

In the circumstances of this case, the two aspects – providing a forum for third-party content and imparting information and ideas itself – were inseparably intertwined. Providing voters with a mobile application and calling on them to upload and publish photographs of ballot papers, and encouraging them to cast an invalid ballot, thus had involved the exercise of the MKKP’s right to freedom of expression in relation to both aspects.

The authorities’ reaction to the MKKP’s exercise of its rights under Article 10 of the Convention had amounted to an interference with those rights.

(b)  Whether the interference was prescribed by law – The scope of the notion of foreseeability depended to a considerable degree on the content of the instrument in question, the field it was designed to cover, and the number and status of those to whom it was addressed. The electoral context took on special significance in this regard, given the importance of the integrity of the voting process in preserving the confidence of the electorate in the democratic institutions.

When legal provisions governing elections formed the basis for restricting the exercise of the freedom of expression, this was an additional element that had to be taken into account when considering the foreseeability requirements which the law had to fulfil. In this connection free speech was essential in ensuring “the free expression of the opinion of the people in the choice of the legislature”. For this reason, it was particularly important in the period preceding an election that opinions and information of all kinds be permitted to circulate freely. This was especially true when the freedom of expression at stake was that of a political party. As the Court had repeatedly stated, political parties played an essential role in ensuring pluralism and the proper functioning of democracy. Restrictions on their freedom of expression therefore had to be subject to rigorous supervision. The same applied, mutatis mutandis, in the context of a referendum aimed at identifying the will of the electorate on matters of public concern.

In the Court’s opinion, this kind of supervision naturally extended to the assessment of whether the legal basis relied on by the authorities in restricting the freedom of expression of a political party had been foreseeable in its effects to an extent ruling out any arbitrariness in its application. Rigorous supervision here not only served to protect democratic political parties from arbitrary interferences by the authorities, but also protected democracy itself, since any restriction on freedom of expression in this context without sufficiently foreseeable regulations could harm open political debate, the legitimacy of the voting process and its results and, ultimately, the confidence of citizens in the integrity of democratic institutions and their commitment to the rule of law.

The salient issue in the present case was whether the MKKP – in the absence of a binding provision of domestic legislation explicitly regulating the taking of ballot photographs and the uploading of those photographs in an anonymous manner to a mobile application for dissemination while voting had been ongoing – knew or ought to have known (if need be, after taking appropriate legal advice) that its conduct would breach the existing electoral procedure law.

The vagueness of the principle of the “exercise of rights in accordance with their purpose”, enshrined in section 2(1)(e) of the Electoral Procedure Act (EPA), had been pointed out by the Constitutional Court in its decision. The EPA had not defined what had constituted a breach of the principle and had not established any criteria for determining which situation constituted a breach of the requirement to exercise rights in accordance with their purpose, nor did it even give any examples. In the Constitutional Court’s understanding, it had been likewise not possible to establish generally applicable criteria for the exercise of rights not in accordance with their purpose; rather, it fell to the National Election Commission (NEC) and eventually the domestic courts to conclude, on the basis of the examination of all the circumstances of a given case, whether a certain conduct had been in breach of the principle.

The Court considered that a situation entailing the judicial interpretation of principles enacted in law would not in itself necessarily fall foul of the requirement that the law should be framed in sufficiently precise terms. However, the fact remained that the domestic regulatory framework applied in the present case had provided for the possibility of a restriction on voting-related expressive conduct on a case-by-case basis and therefore had conferred a very wide discretion on the electoral bodies and the domestic courts that had been to interpret and apply it. Consequently, the lack of clarity in section 2(1)(e) of the EPA and the potential risk inherent in its interpretation for the enjoyment of voting-related rights, including the free discussion of public affairs, had called for particular caution by the domestic authorities.

As to the interpretation of section 2(1)(e) of the EPA, the Constitutional Court had restricted the reach of the provision to voting-related conduct that entailed “negative consequences”, including the infringement of the rights of others. A similar approach transpired from the case-law of the Kúria. However, the Kúria had found that the secrecy of the ballot had not been infringed as the mobile application had not allowed access to the personal data of the users and had thus been incapable of linking a cast ballot to a voter. It further had found that the MKKP’s conduct had had no material impact on the fairness of the national referendum and had not been capable of shaking public confidence in the work of the electoral bodies. It had therefore remained unestablished how the impugned restriction, based as it had been on the principle of the exercise of rights in accordance with their purpose, related to, and addressed, a concrete “negative consequence”, whether potential or actual.

The present case had been apparently the first in which the domestic authorities had applied the principle of the exercise of rights, in accordance with their purpose, to the use of a mobile application for posting ballot photographs in an anonymous manner. This did not, as such, make the interpretation of the law unforeseeable. However, having regard to the particular importance of the foreseeability of the law when it came to restricting the freedom of expression of a political party in the context of an election or a referendum, the Court took the view that the considerable uncertainty about the potential effects of the impugned legal provisions applied by the domestic authorities had exceeded what was acceptable under Article 10 § 2 of the Convention.

Conclusion: violation (sixteen votes to one).

Article 41: EUR 330 in respect of pecuniary damage.

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This summary by the Registry does not bind the Court.

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