A chance to set a Europe-wide precedent on hyperlinking

A joint team from MLDI and the Hungarian Civil Liberties Union are taking a case to the European Court of Human Rights, whose ruling would set a new precedent on defamation by hyperlinking.

Since it first appeared three years ago, 444.hu has been a “fresh, young voice in Hungarian media”, says Dalma Dojcsak, who leads the Freedom of Expression programme at the Hungarian Civil Liberties Union (HCLU). But the independent news outlet, like many others in the country, has faced civil defamation claims.

The case before the European Court of Human Rights concerns a news story, published in 2013, about football fans causing trouble outside a predominantly Roma school. 444.hu’s article hyperlinked to a YouTube video in which an interviewee called the fans “jobbikers”, referring to those aligned with the country’s far-right Jobbik party. The party was not mentioned in the article itself. Yet the party claimed that by linking to the video, 444.hu had violated their right to a good reputation. Despite the fact the reporting was balanced and accurate, the Hungarian courts agreed, ordering them to remove the hyperlink and publish paragraphs from the judgement on their website.

Strict liability

Hungary’s strict liability regime, which holds journalists and media outlets liable for any third-party content they disseminate, restricts their ability to report the opinions of others or to cover breaking news.

The limits are also unclear. One website, hvg.hu, was found liable alongside 444.hu for merely linking to 444.hu’s report — in other words, two clicks removed from the false accusation. By applying strict liability to websites hyperlinking to other content, the Hungarian courts have  fundamentally deterred the use of hyperlinks as an editorial tool. “Online media outlets may avoid using them altogether”, says MLDI’s Junior Legal Officer Jonathan McCully, “this would have a profound effect on how we consume and interact with online news stories.”

444.hu is determined to challenge the Hungarian rulings at the European Court. Since cases involving freedom of expression on the Internet are still relatively new, their decision could have far-reaching implications. “If a European state’s domestic courts are faced with a similar case in the future, they’ll look at this judgment for answers”, McCully says. “It could be very influential.”

HCLU is a non-governmental organization, established in 1994, that aims to protect citizens’ rights in Hungary. MLDI has worked with the organisation since 2011 and currently funds their freedom of expression programme. For HCLU, which provides legal representation to around 20 reporters, bloggers and citizen journalists every year, the case against 444.hu is of strategic importance. Enlisting the support of MLDI was therefore a logical step.

“MLDI were a fresh pair of eyes, providing new perspectives in fine tuning our application to the European Court,” says Dojcsak. “Thanks to MLDI’s network – and the fact that the case has been filed in English – the case has also attracted more publicity”.

Growing momentum

The case against 444.hu is just one of numerous defamation cases — civil and criminal — brought against independent journalists and media in Hungary; Dojcsak estimates that any journalist covering politics will be sued every two years on average.

But it’s not all bad news. In 2015, the courts ruled in favour of a news website which had quoted a member of parliament at an official press conference, arguing that a journalist should be able to assume the accuracy of information from official sources.

There is also growing public discontent with the country’s restrictive laws. A campaign is appealing for criminal defamation to be abolished and for barring public officials from initiating civil defamation procedures. Much attention has been drawn to citizens who have been sued or faced criminal charges. Their crimes? Publishing opinions on Facebook, using graffiti to criticise a political movement, or printing and distributing an independent newspaper.

The willingness of 444.hu to challenge its domestic rulings will add to this momentum, by highlighting the deficiencies in Hungarian defamation law. Dojcsak is optimistic. “The law is quite restrictive”, she says,  I believe we will win.”

444.hu’s case has recently been given priority status by the Vice-President of the Fourth Section of the European Court, and will therefore be considered with greater urgency.