Important ECtHR judgment on hyperlinking and defamation finds violation of press freedom

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Posted on: 
4 Dec 2018

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In a unanimous judgment today in the case of Magyar Jeti ZRT v Hungary, the European Court of Human Rights (ECtHR) found a violation of the applicant’s right to freedom of expression.

The central issue in this case was whether applying an objective liability standard for posting hyperlinks on the internet is compatible with the rights to freedom of expression and press freedom. The ECtHR’s judgment is an important clarification of the circumstances in which liability might exist for using hyperlinks, given the importance of hyperlinks in the everyday functioning of the internet.

The case concerned a decision by the Hungarian courts about the news site 444.hu, which had hyperlinked to a video in an article where statements were made about Jobbik, a right wing Hungarian political party. The applicant, Magyar Jeti Zrt – the company which owns 444.hu – posted a hyperlink to the video in an article, without endorsing or repeating the content of the video. The Hungarian court’s judgment held the applicant liable for defamation because it had ‘disseminated’ false statements.

The ECtHR found that in considering the case in the context of defamation law the Hungarian courts had failed to distinguish between content and communicating the existence of content i.e. hyperlinking. The ECtHR criticised the Hungarian courts’ continued application of an objective liability standard in defamation cases without regard to whether an author or publisher acted in good faith and in accordance with their journalistic duties and obligations. The ‘objective liability’ approach precluded the balancing of interests and the individual assessment of the applicant’s situation contrary to the ECtHR’s case law.

In addition the ECtHR noted the domestic courts, including the Constitutional Court in its decision of December 2017, had failed to consider that the content in question appeared in the context of a news report on a matter of public interest, as it related to threats against Roma schoolchildren, and could be perceived as a permissible statement criticising a political party.

This is an important judgment because it correctly recognises hyperlinking as a technique of reporting that is essentially different from traditional acts of publication in that it simply directs users to content available elsewhere on the internet. The linked content is not communicated to an audience, but rather attention is called to its existence on another website. The ECtHR’s decision also notes that a person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access.

In his concurring opinion Judge Pinto de Albuquerque helpfully identified a number of factors as relevant to consideration of whether liability for defamation exists for the publisher of a hyperlink including whether the journalist endorsed the impugned content and whether the journalist acted in good faith, respected the ethics of journalism and performed the necessary due diligence expected in responsible journalism.

The case was brought to the European Court of Human Rights by the Hungarian Civil Liberties Union (HCLU) acting alongside MLDI and the US law firm Wilmer Hale as representatives of the applicant.

HCLU’s Political Freedoms Project Director, Dalma Dojscak, stated that:

“HCLU has been challenging the so-called objective liability standard of the Hungarian courts for years. We welcome the decision of the ECtHR and urge the Hungarian courts to adopt the test outlined by the Court when assessing future cases concerning hyperlinking.”

MLDI’s Head of Legal Cluster Alinda Vermeer also welcomed the judgment, noting that:

“the Court’s decision provides very helpful guidance as to the limited circumstances in which liability for defamation can be found for the use of hyperlinks. It also clarifies, once again, that the test applied by the Hungarian courts to defamation in the context of hyperlinking is wrong.”

The ECtHR’s decision can be found here.

The ECtHR’s press release about the judgment can be found here (PDF).

 

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