Presentation on the areas, structure and dilemmas of disinformation regulation. Delivered at the Fighting Disinformation Conference (Budapest, 26-27 January 2023).

1. Punishing lying - chance or risk?
Prof. Gábor Polyák
ELTE Media and Communication Department

2. Fighting Disinformation – Budapest, 26-27 January 2023
Considerations and questions on…
• the structure of „disinformation regulation”
• who is empowered to determine the truth
• procedural and substantive truth
• legal instruments against disinformation tailored to the individual and social harm
caused by disinformation
• existing and missing areas of regulation
• the risks to the design of regulation
• censorship vs excessive individual responsibility
• norm clarity
• basically following the decisions of the Hungarian Constitutional Court

3. Fighting Disinformation – Budapest, 26-27 January 2023
Basic dilemmas
censorship irresponsible
negligence
underestimation
of voters overestimation of
voters
the right to have
all facts
questioned
the right to social
coexistence according
to democratic norms
defending
democracy strengthening
autocracy

4. Fighting Disinformation – Budapest, 26-27 January 2023
The power of truth identification
• The law may empower
• the court
• a regulatory body
• a private non-profit / for-profit actor
• A contract may empower
• a private non-profit / for-profit actor
• Only the individual person is empowered?

5. Fighting Disinformation – Budapest, 26-27 January 2023
Expectations of individuals
• During an election campaign, „the voters would interpret the statement
as a political opinion, rather than a factual one”
• „If the statements (…) concern the political activity, program or credibility
and suitability of public figures, then (…) it can be presumed that voters
will evaluate the statements as opinions.”
• „in Hungary, the characteristics of the functioning of a plural political
public sphere have recently developed, within which society can assess
what is said in public debates with due care”

6. Fighting Disinformation – Budapest, 26-27 January 2023
Truth as procedural or substantive issue
Evidence procedures
• investigation of the facts = reasonable conclusion based on real facts
• aims to convince the decision-maker with the appropriate means of evidence
• the evidence is considered by the judge
• the result: procedural truth, not objective truth
The punishment for lying
• as a general rule?
• as an obligation of the media / public service media?
• against specific individual and social harms

7. Fighting Disinformation – Budapest, 26-27 January 2023
No general prohibition
• Freedom of expression „does not only guarantee freedom of expression
with regard to certain ideas, facts and opinions, but protects the
possibility of expression itself”, and therefore protects expressions
„regardless of their value and truthfulness”.
30/1992. (V.26.) AB
• „freedom of expression would be of very limited value if it were no more
than the right to state the true facts”
18/2000. (VI.6.) AB

8. Fighting Disinformation – Budapest, 26-27 January 2023
Media as a guarantor of „democratic public opinion”
• „Democratic public opinion can only be based on full and objective
information”
• Public opinion is democratic if it is formed on the basis „full, balanced
and truthful” information
30/1992. (V.26.) AB
• The mass media are "not only a means of free expression but also a
means of information, i.e. they play a fundamental role in informing the
public, which is a prerequisite for the formation of an opinion."
37/1992. (VI.10.) AB

9. Fighting Disinformation – Budapest, 26-27 January 2023
Damages and legal instruments
Individual damage Social damage Legal instruments
Health information
The person as a biological
being
Epidemics, the social costs of
diseases
Regulation of health
communication, consumer
protection
Information about the
personality of a specific
person
The person as moral being Discrimination, exclusion,
hatred
Human dignity, reputation,
personality rights, hate
speech (?)
Information about goods
The person as consumer Fair competition, social
market economy
Consumer protection
Political information
The person as citizen and
voter
Democracy Protection of free and fair
elections
???

10. Fighting Disinformation – Budapest, 26-27 January 2023
Political disinformation at the intersection
of political communication regulations
Prohibition
of hate
speech
Balanced
information
Campaign
regulation
The rules
(personality
rights) for
public figures

11. Fighting Disinformation – Budapest, 26-27 January 2023
Clear formulation of the norm
• Scaremongering (Hungary, Criminal Code § 337)
• At the time of a Special Legal Order, any conduct of claiming or spreading a false
or distorted statement before the wide public by which to endanger or derail the
successfulness of the defense is guilty of a felony punishable by imprisonment
from one to five years.
• „there is not a sufficient basis for concluding that, that certain definitions
contained therein – fact, statement of fact, untrue statement of fact,
misrepresentation of fact, distinction between claiming and spreading, special
legal regime, wide publicity, etc. – are inherently uninterpretable and would
therefore be inapplicable.” (15/2020. (VII. 8.) AB)
• Same text in different countries – same effect? same perception?

12. Fighting Disinformation – Budapest, 26-27 January 2023
Thank you for your attention!
polyak.gabor@btk.elte.hu