In Medias Res

A journal on press freedom and the rules of the public sphere

Archive

2021/2


Quo vadis, zero-rating?

Authors: Balázs Bartóki-Gönczy – Gábor Remes

In the case of mobile internet service, the so-called “zero-rating” is a market practice whose assessment was far from clear under Regulation 2015/2120 / EU, which addresses the issue of net neutrality. In its judgments of September 2020 and 2021, the Court of Justice of the European Union clarified that such a tariff option is contrary to the obligations arising from Article 3 (3) of the Regulation. While in its 2020 judgment the CJEU merely stated that it was illegal for a service provider to “highlight” certain content after a subscriber had exhausted data, in its 2021 judgments it already found it illegal to have positive discrimination before the data had been exhausted. This stricter interpretation may also justify a review of current market practice. The judgments also pointed out that the guidelines issued by BEREC to standardize the application of the law do not affect the case law of the CJEU.

Keywords: net neutrality, zero-rating, BEREC, soft law


Domestic regulation of e-government in the light of EU legislation

Authors: Zsolt Czékmann – Gergely Cseh

E-government and electronic communication have been part of the Hungarian legal system for more than two decades. This paper describes the process by which these legal institutions have been shaped and developed through domestic legislation, in the context of the European Union’s Information and Communications Technology and eGovernment policies. Since the Bangemann report in 1994, the ­European Union has given high priority to the development of e-public services and e-government, and this has placed a heavy burden on all Member States to implement the rules. In Hungary, too, the directed wayfinding started in the early 2000s, which, with some slowdowns, continues to this day. Two decades may not be a long time if we look at individual legal institutions, but in our case it is a dynamic period full of paradigm shifts that justifiably deserves academic interest. In our study, we have broken down domestic regulation into six distinct periods, in parallel with EU regulation.

Keywords: public administration, e-public administration, e-government, regulated electronic administration services, electronic public services


Basic institutions and the EU regulatory reform of the market regulation in the field of electronic communications

Author: András Lapsánszky

The study systematizes and analyzes one of the most important institutions of electronic communications competition administration, “market regulation,” on the basis of public administration theory. In this context, it discusses the most important domestic elements of market regulation competence, as well as the regulatory reform of the European Union affecting this activity. The study presents the basic theoretical issues of telecommunication market regulation and market competition, the conceptual elements of ex ante asymmetric competition administration, including the connections between general competition administration and special, telecommunications competition administration. The study systematizes the Hungarian and EU telecommunication market regulation tools, types of procedures, the concept of significant market power in telecommunication management on a scientific basis, and discusses the relevant law enforcement practice in detail.

Keywords: competition administration, electronic communications, market regulation, significant market power


Competition law based considerations regarding the attempt for regulating the technological giants

Author: András Pünkösty

In the centre of the recent legal discourse regarding the freedom of expression lies the phenomenon of the emergence of ‘ new media’. The main research interest focuses on the liability of the intermediary platforms and the possible methods of content regulation. So far, less attention has been devoted to the underlying reasons for the extraordinary advancement of the large intermediary platforms – the core reason of which, however, could be understood more accurately by applying competition law concepts. This paper aims to contribute to the media law discourse by providing an analysis using the relevant antitrust law notions, and presenting the prominent case law. The article also reflects the challenges of the merger control practice, which failed to decelerate the evolution of the extraordinary market concentration based predominantly on the dynamic online advertising market and market definition issues. This paper argues that the conflict between ‘media pluralism’ and ‘market concentration’ becomes more intense in the platform economy due to the rise of the gatekeeper platforms. Given the above prerequisites, the recent regulatory initiatives to enhance the burden on merger control concerning the large platforms, initiated on both sides of the Atlantic, seem to be forward-looking yet remain as an unsatisfactory solution to the problem itself.

Keywords: platform, media pluralism, concentration, merger control, regulation


Thoughts on the effects of the COVID pandemic on the Hungarian public administration system

Authors: Evelin Ritó – Balázs Szabó

The emergence and rapid spread of the virus has completely transformed our lives. This new situation posed significant challenges to the entire Hungarian legal system, as well as to the social and economic environment. In the present study, we examine the impact of the COVID-19 epidemic on the function­ing of local governments, with a special focus on digitisation. The study justifies that accelerated digitisation processes – there have been many jumps in several areas in a few months that we would have been able to achieve in years. Digitalisation benefits not only the public sector but also the population, as in many cases inflexible services can be replaced by personalised initiatives.

Keywords: COVID-19, digitalisation, local government


Media regulatory indications in order to eliminate failures of digital attention markets

Author: András Tóth

The main failure of digital attention markets is the accumulation of huge amounts of data in the hand of US based private companies. This has two further negative consequences. One is strategic and seriously affects the European Union’s digital sovereignty. Although the Union’s digital exposure could in theory be reduced by addressing the fundamental rights concerns regarding problems that undermine sovereignty, the accumulation of European data assets in private hands still raises a second concern which stems from the free availability of data for future technological developments and competition. In the latter area, however, the Union’s existing and planned measures accept as given the most damaging consequence of the zero price business model of the attention traders, the accumulation of European data in the hands of a few tech giants, and seek to counteract it, instead of addressing the root cause of the process that leads to the damage. Recognising the analogous situation between digital attention markets and media markets will help to address this root problem.

Keywords: digital attention markets, digital platforms, bilateral non-transaction markets, privacy paradox, take it or leave it effect


Fake news and social media: regulation and administrative measures in Slovakia

Author: Gábor Hulkó

The study deals with the administrative law´s institutions of state action against fake news in Slovakia, where this issue is prominently reflected in government strategy documents. The impact of fake news and social media, the habits of users of media platforms in Slovakia, the interpretation of freedom of censorship and expression in Slovak case law and the principles of liability of media platforms and users are reviewed. In view of the social impact of fake news amplified by social media platforms, the instruments for effective public action on this issue are primarily the responsibility of the public administration, while the instrumental system is essentially limited to informative actions. This fact raises several questions about the effectiveness of such public administration, but in a broader context, a critique of the legal regulation of fake news on social networks.

Keywords: fake news, social media, social media liability regime, administrative intervention, freedom of expression, censorship, Slovakia


Challenges for the regulation of video-sharing platform services

Author: Péter Bálint Király

Since the 2007 revision of the AVMS Directive, the nature of audiovisual media services and the viewing habits of viewers, especially the younger generations, have changed significantly. Thanks to the convergence of television and Internet services, new types of contents and services, such as user-generated content, video-on-demand services and video-sharing platform services, have entered the market in addition to traditional linear broadcasting services. All this made it necessary to rethink the legislation. EU Member States had until 19 September 2020 to bring into force the laws, regulations and administrative provisions necessary to comply with amendment of the AVMS Directive. In my study, I would like to present the European Union and Hungaian regulation of video-sharing platform services. Based on the regulation, I would like to describe the practical challenges arising from the regulation of video-sharing platform services, and, at the same time, to formulate proposals in order to improve the regulation and facilitate its application.

Keywords: video-sharing platform service, media, YouTube


Violation of the dignity of religious communities in the interpretation of the Constitutional Court in the field of personality rights

Author: Helga Kovács

In the present study, we examine the issues related to the freedom of artistic expression and creation, with paying particular attention to its intersections of copyright and personality rights. Firstly, we examine the meaning of the freedom of art, which is a right deriving from the freedom of expression, and it connects to creativity, creation, and culture. The legal analysis of these terms is not an easy task, but it seems clear that intellectual freedom and artistic (self)expression deserves the legal protection. However, the legal protection is not unlimited, in our study we examine the copyright and personal rights issues of works created by artistic freedom. The analysis is based on the case law of the European Court of Human Rights and the most important Hungarian and various European judgments. In our study, we examine the limits of artistic freedom imposed by personality rights and copyright law, and we show the framework and possibilities of the exercise of artistic freedom and artistic self-expression in the 21st century, which opens new frontiers by the technological development in this area as well.

Keywords: freedom of artistic life, personal rights, copyright, freedom of art