Criticism of a children's book published by an LGBT organisation lawful. Judgment of the Constitutional Court of Hungary

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· The Constitutional Court of Hungary ruled that a newspaper had the right to criticise a collection of fairy tales containing homosexual themes, published by an LGBT association.

· The case concerned a lawsuit by the organisation, which accused the editors of violating its personal rights.

· The violation allegedly consisted of the publication of an article comparing the publishing house and the organisation's activities to paedophilia and paedophile activities.

· After rulings in several instances, including a Supreme Court ruling, the case was brought before the Constitutional Court.  

· The Constitutional Court dismissed the complaint, noting that criticism of ideas and creations of the human mind should be distinguished from criticism of persons.

· The Court also stressed that democratic discourse requires the state to provide space for different, conflicting opinions. Nor should the state obstruct public debate by means of law.

Controversial book

In September 2020, an LGBT organisation operating in Hungary published a collection of children's fairy tales containing homosexual themes. As a result, one newspaper posted an article on its website criticising the collection, stating that it deserved a similar rating as paedophilia, and the association itself that published the book was compared to a paedophile organisation.

After the article appeared, the association filed a lawsuit against the newspaper, alleging that it had violated the personal rights and the right to protect the organisation's reputation. The Capital Regional Court, sitting in the first instance, upheld the claim, ordering the defendant to express remorse by publishing a correction and awarding monetary compensation to the plaintiff.

As a result of the defendant's appeal, the case was heard by the Capital Court of Appeal. The Court of Appeals reversed the decision of the court of first instance and dismissed the claim. In the appellate court's view, the critical article should be assessed by analysing its entire content and the immediate context of the statements complained of. In this regard, the content of the text constitutes the expression of a value judgement on a topic of major social controversy. The statements, despite their provocative nature and exaggerations, enjoy the protection of freedom of expression. Therefore, in the court's view, the defendant's claim that there is a similarity between the association's publication and paedophilia cannot be subjected to a value-based assessment.

In response to the judgment, the association filed a cassation appeal with the Supreme Court, which upheld the judgment. In justifying its decision, the Supreme Court noted that the subject matter of the respondent's article concerned a matter of public and social interest and that the respondent had included a value judgement. The Supreme Court, analysing the informational content of the contested message in the light of the public's perception of it, noted that the author of the article did not claim that the complainant was promoting paedophilia, only that, in the author's opinion, a children's publication presenting homosexuality should be presented in the same way as paedophilia. Indeed, the essence of the message was that "sensitisation" is as undesirable and dangerous for the age group in question as paedophilia.

Case goes to Court

The association then filed a constitutional complaint with the Constitutional Court, challenging the Supreme Court's ruling. The applicant alleged that the Supreme Court had violated, inter alia, Article VI(1) of the Hungarian Constitution, according to which "everyone has the right to respect by others for his or her personal life and family life, home turf, personal contacts and good name". This violation allegedly consisted of an unconstitutional expansion of the boundaries of protected expression by allowing a publication that links the association's activities to paedophilia, which the association had never, in any form, endorsed. Thus, in the complainant's view, the allegations contained in the article never had any deep or hypothetical factual basis.

The Constitutional Court emphasised that the complaint raises an important constitutional question relating to an important problem concerning the principles of conflict between the right to express opinions and the protection of personal rights, in the context of a discussion of a socially relevant topic. As a result, the Constitutional Court concluded that the complaint was unfounded.

In arguing its position, the Court points out that the right to respect for private life, arising from Article VI(1) of the Constitution, includes within its scope the right to protection of reputation. Thus, those concerned may act in the interest of protecting their personal rights against verbal attacks, as this right is constitutionally protected.

Further on in its argument, the Court drew attention to an important problem, which is undoubtedly the need to appropriately balance two important values, namely freedom of expression and the right to reputation. At this point, the Court referred to its jurisprudence and the test developed within it, which establishes the criteria by which a collision between freedom of expression and the right to protection of personal rights can be assessed.

The first stage of this test is to examine whether the communication in question relates to the free discussion of public matters. Next, the court must decide whether the said communication constitutes a statement of fact or a value judgment. The final step is to assess that communication in terms of whether it exceeded the limits of freedom of expression.

It was therefore first examined whether the article complained of constituted speech on a matter of public concern and whether it was therefore subject to a higher level of protection. Indeed, according to the previous case law of the Constitutional Court, matters of public debate are subject to a specific assessment, and in such cases freedom of expression can only be restricted to a narrower extent. The answer to the question posed is in the affirmative. In the opinion of the Court, the communication in question was also in the nature of a value judgement rather than a statement of fact. This is due to the fact that the author of the article compared the collection of fairy tales as well as the activities of the association to content and activities, without, however, stating that the complainant conducts or encourages paedophilic activities.

Books have no human dignity

The key question, however, is the answer to the third issue, that is, whether the message contained in the article exhausted the elements of a violation of human dignity, which is no longer covered by freedom of expression. In this case, the Court relied on the premise that criticism of ideas and the makers of the human mind must be distinguished from criticism of persons. The Court justified its position by saying that all ideas, regardless of the spirit of the age, are subject to free criticism, even strongly critical criticism. The object of this criticism may be any form of communication, including, inter alia, publications, other written content or images.

"Democratic discourse requires the State to provide space for diverse, contradictory opinions and not to impede them through legislative tools and the execution of the law. These debates should only be restricted in the most extreme cases: neither books nor ideas have any human dignity against which freedom of expression should be restricted," the Court stressed.

Therefore, the Court shared the Supreme Court's view that criticism of the author of an article referring to a collection of fairy tales enjoys the protection of freedom of expression, as creations of the human mind do not possess personal goods. Thus, a prohibition on criticism of a book or ideology cannot be derived from Article 6 of the Constitution.

At the same time, the Court pointed out that the criticism of the author of the article, as a negative value judgement, referred not only to the book, but also to the applicant association. Indeed, it is the subject of the protection of personal rights. However, the Court noted, following the lower court, that this issue should be assessed in the light of the entire text and its context. On that basis, it may be inferred that the message referred not to the applicant association in general, but was closely connected to the book which was the subject of the article. Thus, the criticism in question was directed not at the association itself, but at its activities in relation to the collection of fairy tales in question. Therefore, it cannot be said that the contested judgment fails to respect the right contained in Article VI(1) of the Constitution.

- Omawiany wyrok jest interesujący pod względem zaprezentowanej argumentacji prawniczej, jako że opiera się na rozróżnieniu szeroko rozumianej krytyki idei i wytworów tej idei od krytyki osób. W opinii węgierskiego Trybunału Konstytucyjnego, państwo ma obowiązek zapewnienia przestrzeni dla publicznej debaty, także tej odnoszącej się do kontrowersyjnych tematów, takich jak np. homoseksualizm. Wolność słowa jest wartością, której należy się szczególna ochrona, co także podkreślał polski Trybunał Konstytucyjny w 2008 r. wskazując, że wartość ta uczy tolerancji do odmiennych opinii, dzięki czemu tworzy się społeczeństwo pluralistyczne - wskazał Patryk Ignaszczak, analityk Ordo Iuris.

- Omawiany wyrok jest interesujący pod względem zaprezentowanej argumentacji prawniczej, jako że opiera się na rozróżnieniu szeroko rozumianej krytyki idei i wytworów tej idei od krytyki osób. W opinii węgierskiego Trybunału Konstytucyjnego, państwo ma obowiązek zapewnienia przestrzeni dla publicznej debaty, także tej odnoszącej się do kontrowersyjnych tematów, takich jak np. homoseksualizm. Wolność słowa jest wartością, której należy się szczególna ochrona, co także podkreślał polski Trybunał Konstytucyjny w 2008 r. wskazując, że wartość ta uczy tolerancji do odmiennych opinii, dzięki czemu tworzy się społeczeństwo pluralistyczne - wskazał Patryk Ignaszczak, analityk Ordo Iuris.

- The judgment in question is interesting in terms of the legal argumentation presented, as it is based on a distinction between criticism of ideas and the products of those ideas, in the broad sense, and criticism of persons. According to the Hungarian Constitutional Court, the state has an obligation to provide space for public debate, including that relating to controversial topics such as homosexuality. Freedom of speech is a value that deserves special protection, which was also emphasised by the Polish Constitutional Court in 2008, pointing out that this value teaches tolerance to different opinions, thanks to which a pluralistic society is created, pointed out Patryk Ignaszczak, an analyst at Ordo Iuris.