The applicant company, Magyar Jeti Zrt, operated an online news portal in Hungary called ‘444.hu’ with roughly 250,000 unique users per day.
On 5 September 2013 a group of apparently intoxicated football supporters stopped at a school in the village of Konyar, Hungary, made up of predominantly Roma students. The supporters proceeded to shout racist remarks and make threats to the students, as well as allegedly throwing beer bottles at them. The teachers called the police to protect the children. Only after the police arrived did the football supporters leave.
Later that day, ‘J. Gy.’, the leader of the Roma local government in Konya, gave an interview to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues, whilst in the presence of one of the pupils of the school and his mother. In his interview, uploaded to Youtube, J. Gy. Stated that “Jobbik came in”, “They attacked the school, Jobbik attacked it”, and “Members of Jobbik, I add, they were members of Jobbik, they were members of Jobbik for sure.” Jobbik is a right-wing political party which had, at the time, the third largest representation in Hungarian parliament.
On 6 September 2013 an article was published on the applicant’s website, 444.hu, with the title “Football supporters heading to Romania stopped to threaten gypsy”. The article provided a measured and objective account of the events that transpired. Importantly, it contained a hyperlink to the Youtube interview which contained the allegations of Jobbik’s involvement, along with the statement “a phone conversation with Mr Gy. and a parent has already been uploaded to Youtube”.
On 13 October 2013 the political party Jobbik brought a defamation claim under Article 78 of the Civil Code before the Debrecen High Court against eight defendants, including the original media outlet that had published the interview (Roma Produkciós Iroda Alapítvány), Mr Gy., and the applicant company, Magyar Jeti Zrt. The claimant argued that by using the term ‘Jobbik’ to describe the football supporters and by publishing the hyperlink to the Youtube video, the applicant had infringed its right to reputation.
On 30 March 2014 the High Court upheld the party’s claim, finding that Mr Gy.’s statements falsely conveyed the impression that Jobbik had been involved the incident in Konyar. Crucially, it also found that the applicant company had ‘absolute liability’ (i.e. strict liability) for disseminating defamatory statements by providing a hyperlink to the Youtube video, and had therefore infringed the party’s right to reputation.
Magyar Jeti Zrt was therefore ordered to publish excerpts of the judgment on their 444.hu website and to remove the hyperlink. The applicant company therefore appealed on the basis that it was public opinion that the word “jobbik” was not so much associated with the political party as with an anti-Roma ideology. Further it argued that making the interview available in the form of a link did not constitute repeating the statements and disseminating falsehoods.
On 25 September 2014 the Debrecen Court of Appeal upheld the first-instance decision. Further:
“... With regard to the fifth defendant’s [the applicant company] reference in its appeal, the court of first-instance correctly established that making a false statement available through a link, even without identifying with it, qualifies as the dissemination of facts.”
The applicant company lodged a constitutional complaint at the Constitutional Court on 1 December 2014 arguing that media outlets do not have objective liability for the dissemination of false information. Thus:
“even if a media organ prepared a balanced and unbiased article on a matter of public interest, it could still be found to be in violation of the law. This would result in an undue burden for publishers, since they could only publish information whose veracity they had established beyond any doubt, making reporting on controversial matters impossible.”
Further, the applicant argued that the second-instance judgment restricted the freedom of the press in a disproportionate manner, and that its report had been balanced. It stated that it had not been engaged in the dissemination but had merely fulfilled its journalistic obligation in reporting newsworthy items.
On 19 December 2017 the Constitutional Court dismissed the complaint and supported the second-instance court’s finding that providing a hyperlink to content did qualify as dissemination of information.
The applicant then appealed to the European Court of Human Rights ("ECHR").
The applicant company complained under Article 10 of the Convention that, by finding it liable for the posting of a hyperlink leading to defamatory content on its website, the domestic courts had unduly restricted its freedom of expression.
The Government conceded there had been an interference with the applicant company’s right to freedom of expression. Yet, it argued that the interference was (i) prescribed by law (ii) pursued a legitimate aim (the protection of the rights of others) and (iii) was necessary in a democratic society.
Several parties were given permission to intervene as third parties in the proceedings including the European Publishers’ Council, Buzzfeed and Mozilla Foundation and Mozilla Corporation. Several reasons were given as to why hyperlinks should not incur liability in this context, such as the fact that linked content can be liable to change over time without the person posting the hyperlink necessarily being made aware of it. It was also argued that hyperlinking had a number of public interest benefits, such as promoting diversity within the media and facilitating an informed public debate by allowing information and opinions to be more freely expressed and accessed.
The ECHR held that the applicant company’s freedom of expression rights under Article 10 had been interfered with by the domestic courts’ decision. The court did not accept that such an interference was ‘necessary in a democratic society’ as is required by Article 10(2) of the Convention.
Axel Springer was cited in terms of how the Court should ascertain whether the domestic authorities have struck a fair balance between the freedom of expression rights protected by Article 10 and the respect for private life/reputation enshrined in Article 8.
The court further mentioned that, if hyperlinking amounted to dissemination of information and allocated absolute liability, as held by the Hungarian domestic court, this could have a chilling effect on freedom of expression on the Internet. Such strict liability was therefore a disproportionate restriction on the company’s right to freedom of expression.
Crucially, the ECHR held that:
“74. Hyperlinks, as a technique of reporting, are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet. They do 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.
75. A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, is that the person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access, and which might be changed after the creation of the link – a natural exception being if the hyperlink points to contents controlled by the same person. Additionally, the content behind the hyperlink has already been made available by the initial publisher on the website to which it leads, providing unrestricted access to the public.”
As a result, the Court ruled that sites publishing hyperlinks in this way cannot be held liable for (potentially defamatory) content that is reached via the hyperlink. Here, none of the content was repeated and thus it was not seen to be endorsed.
This judgment is useful in confirming that in most – but crucially, not necessary all – situations, a website using solely a hyperlink to another site’s defamatory content will not usually cause the former to be liable for defamation. If, however, the article contains the defamatory content as well as the hyperlink in the body of the text, then this is likely to count as publication or dissemination in the eyes of the court. This will be fact specific and will depend on all the circumstances. Factors noted by the court include:
Did the journalist endorse the impugned content?
Did the journalist repeat the impugned content (without endorsing it)?
Did the journalist merely put a hyperlink to the impugned content (without endorsing or repeating it)?
Did the journalist know or could reasonably have known that the impugned content was defamatory or otherwise unlawful?
Did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?
It is likely that any ensuing cases on hyperlinking will be fact sensitive and therefore will have to be approached incrementally by the courts.