Court condemns libel verdict against a Hungarian media company, stresses importance of hyperlinks on Internet

JUDGMENT 

Magyar Jeti Zrt v. Hungary  4.12.2018 (no. 11257/16)

see here

SUMMARY 

The case concerned the applicant company being found liable for posting a hyperlink to an interview
on YouTube which was later found to contain defamatory content.

The Court underscored the importance of hyperlinking for the smooth operation of the Internet and
distinguished the use of hyperlinks from traditional publishing – hyperlinks directed people to
available material rather than provided content.

Updating its case-law on these issues, the Court set down elements which need to be considered
under Article 10 when looking at whether posting a hyperlink could lead to liability and said that an
individual assessment was necessary in each case.

The Court found that the Hungarian domestic law on objective (strict) liability for disseminating
defamatory material had excluded the possibility of any meaningful assessment of the applicant
company’s right to freedom of expression in a situation where the courts should have scrutinised the
issue carefully

Such objective liability for using a hyperlink could undermine the flow of information on the
Internet, dissuading article authors and publishers from using such links if they could not control the
information they led to. That could have a chilling effect on freedom of expression on the Internet.
Overall, the applicant company had suffered an undue restriction of its rights

PROVISION 

Article 10

PRINCIPAL FACTS 

The applicant company, Magyar Jeti Zrt, is private limited company registered under Hungarian law.

The company operates a popular news website called www.444.hu. In September 2013 the website
published an article about an incident in the village of Konyár, near the border with Romania, in
which a group of apparently drunk football supporters had stopped outside a school attended
mainly by Roma students and had shouted racist remarks.

The article included a hyperlink to an interview placed on YouTube by a media outlet focusing on
Roma issues, which had spoken with a Konyár Roma community leader and a parent. In the
interview the community leader asserted that the football supporters were members of the Jobbik
political party, stating: “Jobbik came in”, and “They attacked the school, Jobbik attacked it”.

In October Jobbik brought defamation proceedings against eight defendants, including the
community leader, the outlet which interviewed him, the applicant company and other media firms In March 2014 the High Court found that the community leader’s statements had been defamatory
as he had falsely claimed that Jobbik was involved in the incident. The court also held that the
applicant company and other media had “objective liability” (strict liability) as they had disseminated
defamatory statements and it did not matter whether they had done that in good or bad faith.
The court order included a requirement for the applicant company to publish excerpts from the
judgment on www.444.hu and to remove the hyperlink to the YouTube video from the article.
The judgment was upheld on appeal and the applicant company lodged a constitutional complaint
and a petition for review with the Kúria (the supreme court).

In the constitutional complaint, the applicant company essentially argued that under the Civil Code a
media company could be held liable for defamation for the statements of a third party, even if the
company had otherwise prepared a well-balanced and unbiased article on a matter of public
interest. It also argued that the courts did not look at whether publishers had followed the ethical
and professional rules of journalism, but only whether they had disseminated a false statement.

The Kúria upheld the appeal judgment in June 2015 while the Constitutional Court dismissed the
constitutional complaint in December 2017.

THE DECISION OF THE COURT

The Court highlighted the importance of hyperlinks for the smooth operation of the Internet by
making information available through linking. When it came to reporting, hyperlinks were different
from other traditional acts of publication as they did not present content or communicate it, but
directed users to information available elsewhere or called readers’ attention to its existence.

Another distinguishing feature was that someone who posted a hyperlink did not control the
information which it contained and that information could subsequently change. The content behind a hyperlink had also already been made available by the original publisher, providing unrestricted
access to the public.

Given such considerations the Court did not agree with the Hungarian courts’ approach of equating
the posting of a hyperlink with the dissemination of defamatory information, which led to objective
liability. Rather, the question of such liability, within the context of Article 10, required an individual
assessment, having regard to several elements.

It went on to identify five such elements: whether the journalist endorsed the impugned content;
did he or she repeat the content, without endorsing it; did the journalist simply post a hyperlink,
without endorsing or repeating it; did the journalist know, or could he or she have reasonably
known, that the content was defamatory or otherwise unlawful; and did the journalist act in good
faith, respecting journalistic ethics and with the due diligence of responsible journalism.

It noted that the applicant company’s article had simply mentioned that an interview with the
community leader was available on YouTube and provided a link to it, without any comments,
repetition of the content or mention of the political party. The article made no mention of whether
the community leader’s comments were true or not, and had not amounted to an endorsement.

The Court found that it could not have been obvious to the journalist who provided the hyperlink
that it led to defamatory content – at that stage there had been no judgment on the matter and it
was not possible from the outset to view the statements as being clearly unlawful. Furthermore,
politicians or political parties had to accept wider limits of acceptable criticism.

Lastly, the Court noted that Hungarian law, as interpreted by the courts, did not provide for any
assessment of the applicant company’s Article 10 rights in a situation where such scrutiny had been
very important given the debate on a matter of general interest that was involved at the time.
A finding that the hyperlink amounted to dissemination of information which entailed objective
(strict) liability meant there had been no balancing of the parties’ rights under Article 8 and Article
10.

Such objective liability could have negative consequences on the flow of information on the Internet
by impelling authors and publishers to refrain altogether from hyperlinking to material whose
content they could not control. That could directly or indirectly have a chilling effect on freedom of
expression on the Internet.

Overall, the applicant company had suffered a disproportionate restriction on its right to freedom of
expression and there had been a violation of its Article 10 rights.

Just satisfaction (Article 41)

The Court held that Hungary was to pay the applicant company 597.04 euros (EUR) in respect of
pecuniary damage and EUR 4,149.39 in respect of costs and expenses.

Separate opinion

Judge Pinto de Albuquerque expressed a concurring opinion which is annexed to the judgment(echrcaselaw.com editing). 


ECHRCaseLaw

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