December 10, 2018

The Hungarian claimant, Magyar Jeti Zrt, operated 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 posted on YouTube by another media outlet that 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 media outlet that interviewed him, Magyar and other media firms.

In March 2014, the Hungarian 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 Magyar and other media outlets were strictly liable as they had disseminated defamatory statements. It was irrelevant, the court said, whether they had done so in good or bad faith.

The court order included an obligation on Magyar 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 Magyar lodged a constitutional complaint and a petition for review with the Supreme Court. The Supreme Court upheld the appeal judgment while the Constitutional Court dismissed the constitutional complaint.

Magyar took its case to the ECtHR. Relying on Article 10 (freedom of expression), it argued that the Hungarian court’s decision amounted to an interference with its rights that had not been prescribed by law. There was no legislation or case law stating that hyperlinking amounted to dissemination of information, it said.

The ECtHR highlighted the importance of hyperlinks for the smooth operation of the internet. 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.

In addition, someone who posted a hyperlink did not control the information to which it led, which information could subsequently change. Further, the content behind the hyperlink had already been made available to the public.

The ECtHR did not agree with the Hungarian courts’ approach of equating the posting of a hyperlink with the dissemination of defamatory information. Rather, it said, the question of liability, within the context of Article 10, required an individual assessment having regard to various elements, including whether the journalist:

1. had endorsed the impugned content;
2. had repeated the content, without endorsing it;

• had simply posted a hyperlink, without endorsing or repeating it;

1. knew, or could have reasonably known, that the content was defamatory or otherwise unlawful; and
2. had acted in good faith, respecting journalistic ethics and with the due diligence of responsible journalism.

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

The ECtHR found that it could not have been obvious to the journalist who posted the hyperlink that it contained defamatory content. At that stage, there had been no judgment on the matter and it was not obvious that the statements were unlawful. Further, politicians or political parties had to accept wider limits of criticism.

The ECtHR noted that Hungarian law did not provide for any assessment of Magyar’s Article 10 rights in a situation where scrutiny was clearly important, given that it was part of a debate on a matter of general interest.

Further, there had been no balancing of the parties’ rights under Article 8 and Article 10.

Finally, a finding of strict liability could have negative consequences on the flow of information on the internet, the ECtHR said, as it could cause 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.

Overall, the ECtHR found that Magyar had suffered a disproportionate restriction on its right to freedom of expression and there had been a violation of its Article 10 rights. (Magyar Jeti Zrt v Hungary (application no. 11257/16) (4 December 2018) — to read the judgment in full, click here).