Nora Ban-Forgacs :Malfunctions in the area of freedom of information in Hungary during a pandemic[1]
Emergency powers are introduced into legal systems under extraordinary circumstances, such as war, climate catastrophe, or global pandemics, such as COVID-19, to manage the legal system under extraordinary pressure.
The emergency (or extraordinary) power of the state is used for a period of time to prevent damage to society. Constitutions regulate emergency powers differently. Usually, a feature of an extraordinary legal system is the constitutional limitation on fundamental rights, including freedom of information.
I argue that in Hungary, the limitation on freedom of information served as a pretext to halt the free access of information.
In Hungary, emergency procedures that deviate from the standard legislative process have been in force since 11 March 2020, first justified by the outbreak of the COVID-19 crisis,[2] then continuously prolonged, the last time with reference to the Russo-Ukrainian war.[3]
The European Union has raised concerns that in Hungary, emergency measures should be strictly proportionate, necessary, limited in time, and in line with European and international standards.[4]
The situation of freedom of information is specific because public data on the epidemic – such as the spread of the virus, the hotspots associated with the outbreak of the virus, and credible information on government measures to combat the epidemic – are not simply data of public interest, but are in fact prerequisites for sustaining public confidence in the fight against the pandemic.
Credible, verifiable information can strengthen public trust. To underscore just one dimension of my claim: without authentic information, it is hardly possible to increase confidence in vaccinations, and the willingness to be vaccinated is a key factor without which it is not possible to successfully combat a pandemic. Willingness to be vaccinated will only increase if citizens are aware of (data on) how many people have been vaccinated, what vaccine was used, and what the effect of vaccination was.
During the period of the application of emergency powers in Hungary, the public authority shall comply with requests for freedom of information within 45 days instead of the usual 15 days, the statutory requirement. This may be extended once by an additional 45 days. The request for access to data of public interest may not be submitted orally. The restrictive measures shall also apply retroactively to pending FOI requests. Regarding freedom of information and the emergency situation in Hungary, I will focus on three aspects of the problem. 1) First, there is a lack of regional epidemiological data; 2) Second, the fact of the unlawful publication of mortality data; and 3) issues involving the separation of personal and public data in the context of COVID-19.
1) The lack of regional epidemiological data
Essential epidemiological data were partly not communicated by the Hungarian Government to citizens, and data provision was partly delayed. This caused extreme difficulties during the first wave of the pandemic in the spring of 2020. Also, the Hungarian Government did not communicate (at all) regional epidemiological data during the first phase of the outbreak. Mr. Gergely Gulyás, Minister heading the Prime Minister’s Office, stated that regional epidemiological data were not being disclosed because “the Operation Task Force’s position is clear: we must not create panic in any municipality.”
Meanwhile, the independent Hungarian news agency 444.hu presented an analysis in an editorial that all European countries publish regional data on coronavirus patients, except for Hungary. In a press statement, the politically appointed president of the Hungarian National Data Protection Authority (NDPI) was quick to defend the government’s policy of non-disclosure. The president of NDPI stated that the reason for the concealment of the territorial data was that the data may also be “decision-making preparatory” data that are immune from disclosure based on Paragraph 5 of Article 27 of the Hungarian Information Act (Infotv).
In September 2021, Mr. István Ujhelyi, a member of the European Parliament (part of the Hungarian opposition), requested data of public interest on how many of the coronavirus patients who had ultimately been hospitalized or died had previously been vaccinated, what vaccine they had received, and how many times they had been vaccinated. No reply from the government was received.[5]
The other typical set of cases associated with the first wave of the virus involved data requests related to hospital bed evacuations. The Hungarian Ministry of Human Resources (EMMI) did not make public its order on the emptying of hospital beds for future COVID-19 patients.[6] However, the success of the evacuation process was widely contested in Hungarian society since some of those who had been forced to leave hospitals eventually died outside the hospital care system. The Hungarian Helsinki Committee, a civil rights organisation, submitted a public interest data request to the Ministry on 20 April 2020[7] asking for related information; however, the requested data has still not been made public.
2) The unlawful publication of mortality data
On 25 March 2020, the Hungarian news portal Index published an article entitled "Steven Dick, British Deputy Ambassador in Budapest, is one of the victims of the coronavirus outbreak in Hungary. He is the tenth person to die in Hungary from the coronavirus. He was aged just 37. The British embassy confirmed the news to Index."[8]
After being criticized for the lack of information, the Hungarian Government finally started publishing statistics on infections and deaths in March at https://koronavirus.gov.hu/elhunytak. In addition to the number of people who had died, their age, sex, and cause of mortality (including contributory factors) were also listed. For example, the tenth victim on the list was a 37-year-old man with the underlying problem of alcoholism. The data were attributed to the British deputy ambassador; resultingly, it became common knowledge that the deputy UK ambassador had suffered from alcoholism. This resulted in difficulties in Hungarian diplomatic relations because sensitive data about a foreign diplomat had been published without consent.
On 31 March 2020, the Hungarian Civil Liberties Union (TASZ) contested the Hungarian Government’s practice of publishing names and the details of underlying illnesses contributing to the deaths of coronavirus patients, which was deemed to infringe the right to privacy. TASZ also enclosed a rule of procedure and concrete suggestions on how to avoid such interference with fundamental rights. However, the Hungarian Government continued to publish the mortality data in the same way.
3) Relying on data protection to counter the freedom of information to retrieve information
The case of Mr. János Áder, President of the Republic, clearly represents the conflict between data protection and freedom of information during the COVID-19 pandemic in Hungary. In this case, the complainant requested that the Office of the President of the Republic release a copy of the President’s vaccination certificate as public data, claiming that the President had previously announced that he had received the Chinese vaccine Sinopharm. A statement about the President was made at a press conference, during which the latter personally made the information public. The NDPI, in its position (NDPI- 3356-2/2021), stated that the public data in Article 26(2) of Act CXII of 2011 in the Information Act (Infotv.) explicitly refers to “personal data related to the performance of public duties.” Therefore, such personal data subject to being revealed shall be directly related to the constitutional duties of the Head of State. Vaccination data, however, is not related to the public duties of the President; thus, unless Mr. János Áder, the President of the Republic, should “'voluntarily and freely decide otherwise,” his vaccination certificate “may be lawfully refused in the context of a request for data in the public interest.” [9]
4. Conclusions
Rapid, effective, and uncontrolled responses are not implausible reactions to internal and external crises such as war or pandemics (here, the Russo-Ukrainian war and COVID-19). However, when they appear to be deployed as a façade that enables the Government to circumvent fundamental rights, democracy is endangered.[10]
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[1] The research was carried out under the project "The responsiveness of the legal system in a post-Covid society: risks and opportunities" (05016764); funded by the High-Risk Grant for Research on Post-COVID Phenomena by the Hungarian Academy of Sciences; Host institution: Centre for Social Sciences.
[2] Coronavirus crisis: a ‘mass human pandemic endangering the safety of life and property [...] in order to protect the health and lives of Hungarian citizens’. Government Decree 40/2020. (III. 11.).
[3]Government Decree 180/2022. (V. 24.). See 2023 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2022 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2021 Rule of Law Report, Country Chapter on the rule of law situation in Hungary; 2020 Rule of Law Report, Country Chapter on the rule of law situation in Hungary.
[4] Council Recommendation of 20 July 2020 on the 2020 National Reform Programme of Hungary and delivering a Council opinion on the 2020 Convergence Programme of Hungary 2020/C 282/17.
[5] https://nepszava.hu/3132813_miert-titkolja-a-covid-betegek-oltasi-adatait-a-kormany.Also: https://infostart.hu/belfold/2021/09/30/ujhelyi-istvan-pert-indit-a-covid-betegek-oltottsagiadatai-miatt
[6] http://www.ekint.org/az-allam-atlathatosaga-informacioszabadsag/2020-05-12/uvegemberkent-elni-a-nagy-testver-orszagaban-avagy-a-lemeszarolt-informacios-szabadsagok
[7] https://kimittud.atlatszo.hu/request/korhazi_agykapacitas_felszabadit
[8]https://index.hu/belfold/2020/03/25/a_brit_nagykovethelyettes_a_koronavirus_egyik_aldozata_magyarorszagon
[9] NDPI-3356-2/2021
[10]Fruzsina Gárdos-Orosz and Nóra Bán-Forgács, Introduction The (Non)Resilience of the Hungarian Legal System: From Populist Constitutionalism to a Permanent State of Danger. In: Fruzsina Gárdos-Orosz (Ed), The Resilience of the Hungarian Legal System since 2010, A Failed Resilience? Springer, 2024. 13. o.
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.