Information Note on the Court’s case-law 224
December 2018
Magyar Jeti Zrt v. Hungary - 11257/16
Judgment 4.12.2018 [Section IV]
Article 10
Article 10-1
Freedom of expression
Online news portal found liable for posting hyperlink leading to defamatory content: violation
Facts – The applicant company operated a popular online news portal in Hungary. Following an incident where intoxicated football supporters had shouted racist remarks and made threats against students at a school whose students were predominantly Roma, the leader of the Roma minority local government gave an interview to a media outlet with a focus on Roma issues. While describing the events, the leader stated, inter alia, that the football supporters were “members of Jobbik for sure”. The media outlet uploaded the video of the interview to Youtube. The applicant company published an article on the incident on its website, including a hyperlink to the Youtube video.
The right-wing political party Jobbik brought defamation proceedings. It argued that by using the term “Jobbik” to describe the football supporters and by publishing a hyperlink to the Youtube video, the respondents had infringed its right to reputation. The applicant company was found liable for disseminating defamatory statements, infringing the political party’s right to reputation. Its appeals were dismissed.
Law – Article 10: The domestic courts’ decisions amounted to an interference with the applicant company’s right to freedom of expression and pursued the legitimate aim of protecting the rights of others. It was not necessary to decide whether the relevant domestic provisions were foreseeable in light of the Court’s conclusion about the necessity of the interference.
The applicant company’s case concerned the “duties and responsibilities” of an Internet news portal, for the purposes of Article 10, in the particular situation where an online article had included a hyperlink leading to contents, available on the Internet, which had later been held to be defamatory. Bearing in mind the role of the Internet in enhancing the public’s access to news and information, the very purpose of hyperlinks was, by directing to other pages and web resources, to allow Internet users to navigate to and from material in a network characterised by the availability of an immense amount of information. Hyperlinks contributed to the smooth operation of the Internet by making information accessible through linking it to each other. Hyperlinks, as a technique of reporting, were essentially different from traditional acts of publication in that, as a general rule, they merely directed users to content available elsewhere on the Internet. They did not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website. A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, was that the person referring to information through a hyperlink did not exercise control over the content of the website to which a hyperlink enabled access, and which might be changed after the creation of the link – a natural exception being if the hyperlink pointed to contents controlled by the same person. Additionally, the content behind the hyperlink had already been made available by the initial publisher, providing unrestricted access to the public.
The issue of whether the posting of a hyperlink might, justifiably from the perspective of Article 10, give rise to liability for the content required an individual assessment in each case, regard being had to a number of elements. In particular the following aspects were relevant for the analysis of the liability of the applicant company as publisher of a hyperlink: (i) had the journalist endorsed the impugned content; (ii) had the journalist repeated the impugned content (without endorsing it); (iii) had the journalist merely put an hyperlink to the impugned content (without endorsing or repeating it); (iv) had the journalist known or could reasonably have known that the impugned content was defamatory or otherwise unlawful; (v) had the journalist acted in good faith, respected the ethics of journalism and performed the due diligence expected in responsible journalism?
The article in question had simply mentioned that an interview conducted with the leader of the Roma minority local government was to be found on Youtube and had provided a means to access it through a hyperlink, without further comments on, or repetition even of parts of, the linked interview itself. No mention had been made of the political party at all. Nowhere in the article had the author alluded in any way that the statements accessible through the hyperlink were true or that he had approved the hyperlinked material or accepted responsibility for it. Neither had he used the hyperlink in a context that, in itself, conveyed a defamatory meaning. It could thus be concluded that the impugned article did not amount to an endorsement of the incriminated content.
In connection to the question of repetition, punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there were particularly strong reasons for doing so. It could not be excluded that, in certain particular constellations of elements, even the mere repetition of a statement, for example in addition to a hyperlink, might potentially engage the question of liability. Such situations could be where a journalist had not acted in good faith in accordance with the ethics of journalism and with the diligence expected in responsible journalism dealing with a matter of public interest. However, that was not the case in the applicant company’s case, where the article in question had repeated none of the defamatory statements, and the publication had indeed been limited to posting the hyperlink.
As to whether the journalist and the applicant company had known or could reasonably have known that the hyperlink provided access to defamatory or otherwise unlawful content, the issue had to be determined in the light of the situation as it had presented itself to the author at the material time, rather than with the benefit of hindsight on the basis of the findings of the domestic courts’ judgments.
The journalist in this case could reasonably have assumed that the contents, to which he had provided access, although perhaps controversial, would remain within the realm of permissible criticism of political parties and, as such, would not be unlawful. Although the statements of the politician had ultimately been found to be defamatory because they implied, without a factual basis, that persons associated with Jobbik had committed acts of a racist nature, the Court was satisfied that such utterances could not be seen as clearly unlawful from the outset.
Furthermore, the relevant Hungarian law, as interpreted by the competent domestic courts, had excluded any meaningful assessment of the applicant company’s freedom-of-expression rights under Article 10, in a situation where restrictions would have required the utmost scrutiny, given the debate on a matter of general interest. Indeed, the courts had held that the hyperlinking amounted to dissemination of information and allocated objective liability – a course of action that had effectively precluded any balancing between the competing rights, that was the right to reputation of the political party and the right to freedom of expression of the applicant company. Such objective liability might have foreseeable negative consequences on the flow of information on the Internet, impelling article authors and publishers to refrain altogether from hyperlinking to material over whose changeable content they had no control. That could have, directly or indirectly, a chilling effect on freedom of expression on the Internet.
The domestic courts’ imposition of objective liability on the applicant company had not been based on relevant and sufficient grounds. Therefore the measure had constituted a disproportionate restriction on its right to freedom of expression.
Conclusion: violation (unanimously).
Art 41: EUR 597.04 in respect of pecuniary damage; no claim made in respect of non-pecuniary damage.
(See also Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Information Note 186; Bédat v. Switzerland [GC], 56925/08, 29 March 2016, Information Note 194; and Stoll v. Switzerland [GC], 69698/01, 10 December 2007, Information Note 103)
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This summary by the Registry does not bind the Court.
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