Véleményszabadság vs. emberi méltóság – Egy rejtélyes alaptörvény-módosítás nyomában

Absztrakt

The paper examines to what extent the Constitutional Court of Hungary relied – after the Fundamental Law took force – on formerly elaborated justifications and arguments in the course of interpreting the freedom of speech and human dignity. The contents of the text of the Fundamental Law taking force on 1 January 2012 was identical with the text of the previous Constitution. According to Article IX para. (1) of Fundamental Law: everyone shall have the right to freedom of speech.

However, according to the provision incorporated into the fourth amendment of the Fundamental Law, “the right to freedom of speech may not be exercised with the aim of violating the human dignity of others” [Article IX para. (4) of Fundamental Law].

This results in a difference between the text of Article IX of the Fundamental Law and the text of the previous Constitution in interpreting the freedom of speech, namely Article IX para. (4) focuses in particular on personality protection.

The paper attempts to find answers to the question as to why it was necessary to amend the Fundamental Law.
In Decision 7/2014. (III. 7.) AB, the Constitutional Court established that the Fundamental Law only reinforced the interpretation developed in the Constitutional Court’s practice, since, from the very beginning, it has been the cornerstone of the Constitutional Court’s interpretation of the freedom of speech that the human dignity of others can restrict the freedom of speech. Contrary to this interpretation of the Constitutional Court, the new law might result in an interpretation that human dignity has a narrower scope than before. According to such an interpretation, the right to human dignity shall be restricted to only a prohibition against inhuman or degrading treatment, as its original content, and shall preclude this right from being interpreted as “a general personality right”.
In another interpretation, with this amendment, the constitution-forming power would have liked to achieve a different interpretation of freedom of expression that provides greater protection of human dignity.
In this paper I make references to the “pro and con” arguments of these alternative ways of interpreting Article IX para. (4) of Fundamental Law.