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2014. July 20.

LabourLaw : right of pregnant women to lie to employer


The Hungarian Constitution Court („CC”)issued a detailed decision [decision No. 17/2014. (V. 30.)AB] on the right of pregnant women and women under medical fertilization treatment to hide their pregnancy / fertilization process. The decision was published on 27 May 2014. The breakthrough ruling is introducing the “right to lie” in Hungary that is already recognized in some other EU member states.

In its decision the CC expressed its privacy concerns and eliminated a provision from Act No. I. of 2012 on the Labour Code, with retroactive effect.

Background

The Fundamental Law of Hungary protects privacy and family life. According to Article II thereof, human dignity shall be inviolable and every human being shall have the right to life and human dignity; embryonic and foetal life and shall be subject to protection from the moment of conception. Further, according to Article VI of the Fundamental Law of Hungary, every person shall have the right to the protection of his or her private and family life, home, relations and good reputation, and every person shall have the right to the protection of his or her personal data, and to access and disseminate data of public interest.

Further, in Hungary, pregnant woman are protected by law from termination (during pregnancy and until the third anniversary of the child or when they terminated their nursing period without work). According to some judgments the protection is “objective” and consequently applies to the woman even if she was not aware of her pregnancy; however, such judgments are rare.

The consistent court practice relating to the interpretation of the above provision has always been controversial, most judges argued that the employee must inform the employer at the time of the termination (at the latest) in order to benefit from the protection. Moreover, an individual judgment even confirmed that if the employee hides her pregnancy from the employer, she is not protected from the termination since she is acting in bad faith.

In order to unify the court practice in this regard and to protect the employer’s interest, the parliament incorporated a provision to the LC that the protection applies only if the employee informs the employer about the pregnancy / medical treatment. According to the original section 65 (5) of LC, the pregnant women and women under fertilization process are subject to termination protection provided that they properly inform their employer about the fact of pregnancy / fertilization process.

The commissioner for fundamental rights (“Commissioner”) submitted to the Constitutional Court a petition for ex-post normative control, asking for the constitutional review of Section 65 (5) of the LC. According to his opinion formed on the basis of reviewing the studies dealing with the codification of the new LC as well as the Hungarian and the European practice of fundamental rights, there are serious justifiable constitutional concerns regarding the challenged regulation on the termination protection. As pointed out by the petitioner, the provision requiring an employee to talk about pregnancy is impossible if the employee is not aware of the pregnancy. He highlighted that those who are not aware of their medical status should also need protection. He referred to the Fundamental Law which ensures the right for privacy and private family life. The commissioner for fundamental rights held that the recent changes in the provisions of the Fundamental Law in the field of privacy do not imply the disregarding of the Constitutional Court’s judicial practice – based also on the practice of the European Court of Human Rights – related to the right to private life. Moreover, the Commissioner made a reference to a Curia decision from 2004 arguing that it is against the principles of law to require an employee to talk about her pregnancy to the employer or even to give false information.

 Decision of the Constitutional Court

The Constitutional Court accepted the claim of the Commissioner and canceled section 65 (5) from the LC with retroactive effect. In the decision the CC gives a detailed analysis on the concept of privacy and introduced the “right to lie” in order to prevent human dignity.

In the decision the CC gives a detailed reasoning relating to the practice of the European Court of Justice protecting the rights of pregnant women and the requirements for equal treatment. However, the CC explains that it is not only an equal opportunity question but also an issue relating to privacy protection. In its view, the CC must examine (within the frame of the petition of the Commissioner) whether making the protection against dismissal defined in the Section 65 (3) a) and e) conditional upon informing the employer about it – before giving notice of dismissal – by the employee infringes the right to privacy or private family life. During this scrutiny by the CC, the starting point was the determination of the protection scope of the referred fundamental rights.

The CC has interpreted the right to privacy and its relation to the right to human dignity in its previous decision No. 32/2013. (XI. 22.). It came to the conclusion that the Article VI (1) of the Fundamental Law – contrary to Article 59. § (1) of the previous Constitution – provides comprehensive protection of privacy: and covers the private and family life, home, communication and good reputation of the private individual. As regards the substance of privacy, it continued to deem sustainable the definition – representing the overall essence of the notion of private life - reached by the Constitutional Court in its earlier practice, according to which, the essential conceptual element of privacy is that others may not interfere or have access thereto against the will of the person concerned. The Court highlighted that there is a particularly close relationship between the right to privacy ensured by Article VI. (1) of the Fundamental Law and the right to human dignity guaranteed by Article II. of the Fundamental Law.

In the CC’s interpretation, Article II.of the Fundamental Law provides basis for the protection of the “untouchable area of the formation of privacy”, which is completely excluded from any kind of state intervention, since it is the basis for human dignity. Nonetheless, according to the Fundamental Law, the protection of privacy is not restricted only to the inner sphere or intimacy protected also by Article II of the Fundamental Law, but it also covers privacy of a wider sense (communication) and the territorial sphere, in which the private and family life unfolds (home). Beyond this, the image created about one’s life enjoys individual protection as well (right to good reputation).


 [30] Article XVII (3) of the Fundamental Law concretizes the protection of rights ensured in Article II and VI (1) of the Fundamental Law in relation to employment: „Every employee has the right to working conditions which respect his or her health, safety and dignity.” The safe working conditions, not endangering the health of employees are ensured by the Act XCIII of 1993 on labour safety; to respect employees’ dignity by the Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities, furthermore during the employment by the provisions of the LC guaranteeing the protection of personal rights and Sections 2:42–54. § of the Act V of 2013 on the Civil Code.

Section 9 § (1) of the LC stipulates the general requirement of the protection of personal rights. Personality rights are named within the Civil Code, thus the right to privacy and the right to the protection of personal data as well [CC 2:43. § b), e)]. The protection of personality rights in labour law – according to the reasoning of the LC – is of high importance, primarily due to the imbalanced nature of the employment relationship. According to Section 10. § (1) of the LC, an employee may be requested to make a statement or to disclose certain information only if it does not violate his rights relating to personality, and if deemed necessary for the conclusion, fulfilment or termination of the employment relationship.

With view to the fact that the circumstances defined in Sections 65. § (3) a) and e) of the LC are regarded as personal data, the Constitutional Court referred to its previous practice regarding the relationship of the right to privacy and the right to protect personal data ensured by Section VI. (2) of the Fundamental Law. The Constitutional Court (since 1991) had not construed the right to protect personal data as a traditional protective right, but taking into account its active side as well, interpreted it as right of informational self-determination.

The CC highlighted that the right of informational self-determination is closely linked to the right to privacy, whilst it contains the right to decide as to when and within what limits will the individual reveal its data related to its person. The restriction of the right of informational self-determination – contrary to the right to privacy– is not aligned primarily to the character of the data, but to its use. The right of informational self-determination comprehensively protects the personal data of the private individual, irrespectively of how the data controller came to the possession of those.

Interpretation of the term “private life” in Hungary by other authorities

The definition of private life is a broad concept with no exhaustive definition in Hungary. Different interpretations are available in decisions adopted by criminal or civil courts. However, in general, the concept is wider than that of the right to privacy and it concerns a sphere within which everyone can freely pursue the development and fulfillment of his/her personality. In the interpretation of the CC, the right to private life is not only wider than to right to privacy, but it is covered by the “information self-determination” that requires active (pro-active) conduct from the affected individual.

The previous Data Protection Commissioner already analyzed in details the employee’s rights to protect certain information from the employer and he pointed out in several opinions and statements that the employee may not be forced to provide information on his /her private life to the employer unless the question of the employer affects the material part of the employment relationship. For example, pregnant women can only be requested to provide information on their pregnancy if the information is relevant to work schedule or to dangers involved in fulfilling certain positions. In any other case, it falls under the right of the woman’s information self determination whether to provide the information to the employer or not.

Under Hungarian law, the decision of the CC may serve as a basis for the re-opening of the closed litigation in which pregnant woman were affected. The case also shows that the interpretation of privacy law remains at the table of the Constitution Court, further refining its previous practice interpreting the notions of privacy, private life, and personal data protection.

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2014. July 11.

Punishable comments on the internet


In its order No.IV/5/2013.the Constitutional Court stipulates that the liability of internet content providers or operators of forums is objective regarding the non-moderated  infringing comments. According to the judicial body, the intermediary internet service providers may be held liable when disclosing comments, regardless of whether they had monitoring obligation as to their content or not.

The legal determination of internet service providers´ liability has always raised questions of fundamental significance in the world of internet. This was faced in the case underlying the order of the Constitutional Court, where an internet content provider (hereinafter: ICP) initiating constitutional complaint had disclosed an opinion in its homepage concerning the advertising practice of one realtor company.

The article recorder that from several users complaints arrived about the contractual practice of the homepages operated by the realtor, which after examination the ICP found it to be unfair itself and declared the practices of the company as being based on deceit of consumers. At the same time, it called the attention of users to the importance of awareness of internet use and to read through carefully the terms of use. The opinion was commented and was communicated forward by several other internet portals too.

The realtor company had filed a petition against the ICP for the infringement of its personal rights. According to its opinion the content of the articles is false and along with the comments made thereto, infringes its right to the protection of good reputation.

According to the courts of first and second instance the article of the ICP is not unlawful, however, it provided platform for serious violating and degrading comments, hence it conducted the infringement of good reputation by  rumor. The court added that the fact that the comments were removed by the ICP without delay, has no significance when determining the infringement.

The ICP had pointed out that according to the effective legal regulations pertaining to the information society, it is in the present case deemed to be an intermediary service provider;therefore, it shall not be responsible for the contents of the comments,since the intermediaries are not obliged to moderate the blogs and the comments, or to monitor theircontent, such internet service providers provide exclusively storage and platform forplacing the content. Comments appear on the websiteby one click, without the assistance and supervisionof the intermediary.

The Association of Hungarian Content Providers (hereinafter: AHCP), who intervened to the case in the interest of the ICP to win the lawsuit and turned to the Constitutional Court, whilst it found injurious that according to the court decisions it is infringingthat someone is ensuring possibility on its homepage for the placement of comments without monitoring them, whereas it must count with the possibility that there may be an infringing comment among them. According to the constitutional complaint the court decisions infringe the freedom of express of opinion and the freedom of press. It held that it is a necessary and proportionate restriction of the freedom of press when the court qualifies the opinions infringing good reputation, unlawful; however, it is un-proportionate, if the person who has no influence on the content of such comment shall be held liable as well, since it provides exclusively the platform for disclosing the comment.

In the view of the AHCP, whereas being a fundamental right of communication,the aim of the right of expressing opinionis to ensure the discussion of „public matters”, „the possibility of self-expression in a social context”.These are the internet forums and comments, where users may express their thoughts and opinions. As per the AHCP, it is the significant element of the freedom of the expression of opinion that someone may disclose comment on the internet without prior moderation, hence if only previously moderated comments could appear, opinions would not meet and an important element of the clashes ofopinions would disappear. 

However, according to the Constitutional Court, the complaint was not justified.

At the beginning of its order it refers to the currently effective laws, pursuant to which the liability of internet service providers and intermediaries is different. While the internet service provider is responsible for the unlawful information made available, since it creates and publishes it by itself, on the other hand the intermediary - although as a general rule it is liable -, in the existenceof certain conditions may be exempted from the responsibility, according to the governing act it is obliged to monitor the information only forwarded and stored by it.

Furthermore, the Constitutional Court stipulates on conceptual basis that the Fundamental law ensures and protects free communication, regardless of its content of value or truth, thus the constitutional protection extends to all opinions no matter its content. It elaborates further that the freedom of press grants constitutional protection to the freedom of spreading information,opinion; does not protect the content of the opinion, but its forward to the public. Therefore, the determination of the liability of the operator of the internet page, without no doubt restricts the freedom of press extending as well to the internet communications.

It also points outthat there are two forms of comments: the moderated and non-moderated comments. The prior are preliminarily examined by the webpage operator and if it finds it unlawful or contrary to its own moderating principles,will not disclose it. The latter are not moderated by the operator, it is not in its duty either.

 Nonetheless, since mainly the person of the actual infringer „commenter” is unknown, the liability is on the operator of the webpage. The moderated comment, if it is infringing, triggers the same legal consequence as if it was not monitored previouslyorsubsequently.The moderation of the comments does exempt from the liability or responsibility for unlawful communications. The liability for the unlawful comments (and the obligation for damages in certain case) is independent from moderating: it is based on the sole fact of the unlawful comment.

Conclusion

The Constitutional Court stipulates thereby in its order that it does not deem it justified to differentiate between the moderated and non-moderated comments. According to its opinion, if the internet providers undertaking moderating are liable for the illegal comments appearing on their page, then determining the infringement against the intermediary operators of the pages not undertaking moderating shall be proportionate as well. Question arises as to whether the modern form of expressing opinion will be limited in the light of the findings of the above order and whether the operation of non-moderated internet commenting in Hungary will be become questionable?

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2014. July 04.

Foreign currency debtors - The act puts more strain on the banks than expected


The bill which purpose is to help the foreign currency debtors was accepted on the 4th of July 2014, this can rewrite many consumer loan agreements, in this case it can put a much bigger strain on the financial institutions than expected. The accepted bill is waiting to be signed by the president and is then going to be published by Hungarian official journal.

The act (which was entered into force between the 1st of May 2014 and before this act came into effect) can effect consumer loan agreements, but also loan agreements which are based on HUF and financial leasing contracts. The companies will not be affected, since according to the credit institution law, they are not considered as consumers and oblige to final repayment. Furthermore those persons will not be affected who dedicated their real property to Hungarian National Asset Management Inc.

The aim of this act is to manage the situation of the debtor, to relieve the courts and to give the financial institutions the chance for voluntary compliance.

The act declares the credit gap in foreign exchange rate contracts as unfair and invalid. As well as the use of different buying and selling rates, therefore the official currency rate of Hungarian National Bank is going to be implemented. They presume furthermore the contractual cause which contains unilateral interest raising or charge raising or fee raising as unfair, which is normative in the case of loan and financial leasing contracts. The pending lawsuits and judicial execution procedures are going to be suspended. The contracted agreements are going to be upheld by the act, but to avoid the conditions which are declared as unfair, close deadlines are set to fulfill the obligations by the financial institutions.

(i)      The conversion of foreign currency loans have to be carried out  90 days after the bill comes into force, the plan of conversion to the Hungarian financial supervisory authority has to be carried out within 60 days.

(ii)    the general contract terms and conditions and unique contract terms and conditions which contain unilateral modification of contracts shall be revised within 30 days after the bill comes into force on top of this, a report has to be made to the Hungarian financial supervisory authority, and at the same time they shall declare whether in their opinion these are unfair or not. If the Hungarian financial supervisory authority announces this as fair, they can commence a civil procedure against the Hungarian state, they then have a chance to do so 30 days from the time the bill came into force in, in case of HUF currency loans they have a chance to do so between 90 and 120 days. As in the lawsuit there is no possibilities to complete the documents, the burden of proof encumber the financial institutions, this is a vital information for those who are submitting a claim, especially since the act defined the proceeding fee in 1 500 000 HUF.

The act obligates the financial institutions to cut the unfair conditions, under the control of the Hungarian financial supervisory authority.

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