The reader could rightfully wonder what an Office for the Defence of Sovereignty defends in a democratic country – and from whom? And he or she would not be alone; an engaged citizen who wants to learn about those affected by the law and its aims and goals will only become more confused by reading the related news. Let’s start with the Fidesz government representatives’ contradictory statements on nuances like whether or not the law threatens the media and journalists. The obligation to share sources with the to-be-established Office for the Defence of Sovereignty is another confusing element. The bottom line of the political statements is that the law’s supposed higher goal is to report and map perceived threats to Hungary’s national sovereignty – and furthermore, to identify parties, bodies, and individuals suspected to be “serving foreign interests”. Additionally, all parties with foreign funding running in the election campaign would be criminalised.
After weeks of fear-mongering and contradictory political message exchanges in the Hungarian media about the ultimate aims and targets of the proposed law, on the 21st of November the draft was tabled. In their public reactions to the draft law, government representatives indicated that the objective of the law is purely to stop domestic political actors from accepting foreign funds. However, when the upcoming law was first publicly announced, one leading Fidesz politician told the press that among other intended targets were the so-called “Soros empire” and the “dollar left” – stigmatising expressions used to label media receiving money from the United States or the European Union. The proposal met sharp opposition from civil society, with more than 100 civil society organisations signing a petition in protest.
The devil in the details
The law would establish a new office with a leader appointed directly by the Prime Minister for a six-year mandate. Legal experts across the political spectrum warn that such a newly created office would have concerningly broad investigatory powers.
It would be empowered to look into financial records and demand documents and data from any organisation or body operating in Hungary, including civil society groups, media organisations, and political parties. With a special focus on election periods, the office would publish reports on these bodies' alleged foreign interference.
The main criticisms the proposed law has received are its extremely broad nature and its rubber definitions.
Red flags regarding human rights and civil liberties
“The proposal to establish an Office for the Defence of Sovereignty in Hungary, which would be vested with broad powers to investigate any organisation or person suspected of serving foreign interests or threatening national sovereignty, poses a significant risk to human rights and should be abandoned”, argues Dunja Mijatović, Council of Europe Commissioner for Human Rights, in her related statement.
Mijatović warns that “Under a president appointed by the President of the Republic from a proposal by the Prime Minister, it would have unlimited authority to request sensitive data and private information from anyone, without oversight, and without any legal remedy.”
The Council of Europe human rights commissioner stresses that for years she has consistently warned against the steps taken in Hungary to impose arbitrary restrictions on the indispensable work of human rights NGOs and defenders in the country. “If this proposal is adopted, it will provide the executive with even more opportunity to silence and stigmatise independent voices and opponents”, sums up Mijatović.
Media freedom retorsion threats
In its recent reaction to the law and its related analysis released on the 4th of December 2023, the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism, that tracks, monitors, and reacts to violations of press and media freedom in the EU, gave a warning about the chilling impact the Hungarian ruling party’s proposed Sovereignty Protection Act would have on what remains of the country’s embattled independent media community.
In an open letter signed by several prominent media freedom organisations, it is argued that “while media and media activities are not referenced directly in the text, the vague language of the bill means it could easily be applied to media organisations and individual journalists. Within the current parameters, any media receiving foreign funding could be accused of undermining Hungarian sovereignty by spreading ‘disinformation’, and carrying out activities that are ‘aimed at influencing the democratic debate’ or ‘aimed at influencing the will of voters’. Domestic media freedom groups registered in Hungary could be included within the scope of the law, while international media freedom organisations carrying out work in the country could also be stigmatised in reports by the proposed Sovereignty Protection Office.”
Tool of oppression or political tactic gone terribly wrong?
Given the several concerning elements mentioned, one must wonder if the Hungarian government is going to confront the EU and crack down on democratic freedoms in the country even harder than before. The answer is, we do not know. According to Tamás Lattmann, an international and EU legal expert, it is equally possible that the law is only meant to reinforce the government’s previous “dollar left” rhetoric. The criticism of candidate for prime minister Márki-Zay Péter’s movement, which at one time actually could not legally participate in the election as a nominating organisation, did not, under Hungarian campaign law, commit any illegal offence by accepting foreign funds.
“It is an entirely different question how much this is a political communication tool, or if it is something reflecting on a real problem, driven by real legislative intent. I doubt that.”
Lattmann reminds us that retrospectively legislating the political standpoint of the Fidesz government, even if this does not change the legality of previous events, is not uncommon in the Hungarian context. The government behaved similarly during the COVID-19 crisis, when they declared a then-unconstitutional state of emergency, giving the government extensive power. (This state of emergency is still in effect to this day, having been prolonged for various reasons, allowing Orbán to govern by decree.) The national assembly then, months later, proceeded to change the country’s fundamental law, the constitution, to be in compliance with the previous declaration of the emergency. From a legal standpoint, this may not make a lot of sense, as actions cannot be made legal or illegal retrospectively, but it proved to be a well-liked political tool of Fidesz.
But even if we can hope that the law will not be applied with much rigour, two things are still concerning, according to Lattmann. Firstly, it will be applied for the upcoming European Parliament election, a context for which it is entirely unfit, and it will likely end up being incompatible with the EU’s laws, values, and basic logic regarding elections. Secondly, it is poorly drafted, to the extent that its drafting issues could end up creating unintended consequences, from the ridiculous to the disastrous.
EU elections in a 19th-century legal framework
Lattmann points out that the concept of the legislation itself is very strange for a modern, integrated Europe. European politics, by nature, are integrated across national borders. The European elections, for example, have cross-national elements by design, including the existence of European party families. This means that national political parties are incentivised to campaign together with fellow members of their party groups.
“The whole proposal and its logic views the notion of national sovereignty as if we were in the 19th century.”
While the Hungarian government claims that the legislation is not unprecedented, as the US also has similar legislation, this is far from being the case. Lattmann explains that the context of transferring funds for political purposes within the EU is more similar to a Michigan Democrat financially supporting a Wisconsin Democratic candidate, something that is clearly legal in the US political and legal systems.
Given the distortion of access to resources between the Hungarian government and the opposition, closing one of the few remaining potential sources of funding for the opposition could have significant implications for the fairness of elections. The government already uses state resources to deliver messages to voters, but this tool is not available to the opposition, creating an uneven playing field. While resources from abroad have never been significant enough to even remotely compete with the prowess of state advertising that the government has, funding coming from one’s European party family is one of the very few resources that the opposition can have, and which the government cannot. The reason for this is that Fidesz left their party family, the European People’s Party, in 2021, after the Europarty suspended their membership in 2019. Thus Fidesz, in its current situation, can harm its opponents without disadvantaging itself.
What ifs
If we look at how the law could play out in reality, some strange things are possible. The law currently does not define what is meant by “abroad” or “support”, among several other key concepts. The proposal treats support from abroad as a national security matter but does not seem to criminalise the intent to commit the crime, which is strange. As an example, if someone is plotting a terror attempt, or electoral fraud, the intention to commit these crimes is criminal on its own, without the event actually taking place. This type of practice is standard for national security legislation in the Hungarian criminal code but is absent from the current proposal.
Maybe this is for the better, considering the alternative. If the intent to try to fund a political party from abroad were to become criminalised, then if a German member of the European Socialists and Democrats (S&D), for example, calls a member of the MSZP, the party’s Hungarian affiliate, and asks if they would like financial support, it would be a crime. Thus, if the call was caught by the Hungarian state, which is more than possible, they would need to persecute the German politician. Absurdities like this are absolutely conceivable due to the phrasing issues and missing elements in the law. Lattmann notes,
“When someone is drafting legislation, they should think about these details. I believe this was not very well thought through.”
The ball is in the EU’s court
In the context of the EU elections, it is quite certain that if the Hungarian government prevents parties from cooperating with their EU partners to the fullest extent, this will likely constitute a breach of EU law. Therefore, the European Commission will need to start yet another infringement proceeding against Hungary. While the case is clear-cut for EP elections, the EU may also be obligated to act against the law in the context of national elections. Lattmann says the proposal likely offends the EU values of freedom of speech and democracy, among others.
“There is a very strong professional consensus that these constitute fundamental EU values, and there is a connection to the union.”
Whether and in what form the Commission will act is still uncertain. But if the Hungarian government is honestly just concerned about foreign tampering in the country’s election, there is a way to protect against that without having to pass this legislation. The EU is developing and strengthening its common tools against foreign interference. This means that the new Hungarian law is obsolete for the purpose it is officially argued to serve. Therefore, all the Sovereignty Protection Act would do in addition to the status quo is intimidate and restrict the opposition, civil society, and the media, further erode Hungarian democracy, and potentially create room to sue unsuspecting internationals who simply want to make a campaign donation.
The authors are journalists running the Eurologus.eu portal
