The European Court of Human Rights has today ruled that a Hungarian news website should not be found liable for hyperlinking to another publisher’s defamatory Youtube video in a story.
The court upheld a complaint from Magyar Jeti Zrt, which operates news website 444.hu, that the Hungarian courts breached its right to freedom to expression under Article 10 of the European Convention on Human Rights with a ruling that it defamed a political party by publishing a hyperlink to an interview on Youtube.
In September 2013, 444.hu published an article about an incident in which a group of apparently drunk football supporters had stopped outside a school attended mainly by Roma students and shouted racist remarks.
The article included a hyperlink to an interview posted on Youtube by another media outlet which focused on Roma issues and had spoken with a Roma community leader in Konyar and with a parent.
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During the interview the community leader asserted that the football supporters were members of the Jobbik political party.
The following month Jobbik sued eight defendants, including the community leader, the outlet which interviewed him, media firms, and Magyar Jeti Zrt.
In March 2014 the High Court found that the community leader’s statements were defamatory as he had falsely claimed Jobbik was involved in the incident.
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The court also said Magyar Jeti Zrt and other media had “objective liability” – strict liability – holding that they had disseminated defamatory statements and that it did not matter whether they had done so in good or bad faith.
The court ordered Magyar Jeti Zrt to publish excerpts from the judgement on 444.hu and to remove the hyperlink to the Youtube video from the article. The judgement was upheld on appeal.
Magyar Jeti Zrt lodged a constitutional complaint and a petition for review with the Kuria, Hungary’s Supreme Court, arguing that under the Civil Code a media company could be held liable for defamation for the statements of a third party.
This, it said, meant that 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 as it would mean that they could only publish information the veracity of which they had established beyond any doubt, and would make reporting on controversial matters impossible, it added.
The Kuria upheld the appeal judgement in June 2015, and the Constitutional Court dismissed the constitutional complaint in December 2017.
The Fourth Section chamber of the European Court of Human Rights said the particular nature of the internet meant that the “duties and responsibilities” of online news portals under Article 10 might differ from those of a traditional publisher in relation to third-party content.
The question in this case was whether the interference with Magyar Jeti Zrt’s rights under Article 10 was necessary in a democratic society.
The purpose of hyperlinks, by directing to other pages and web resources, was to allow internet users to navigate to and from material in a network characterised by the availability of an immense amount of information, the Fourth Section court said.
It added: “Hyperlinks contribute to the smooth operation of the internet by making information accessible through linking it to each other.”
As a reporting technique, hyperlinks were essentially different from traditional acts of publication because, generally, they merely directed users to content available elsewhere on the internet – they did not present the linked statement to the audience or communicate its content, the court said.
A further distinguishing feature was that the person referring to information through a hyperlink did not control the content of the linked website, which might be changed after the link was created.
“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,” the court said.
It could not, it went on, agree with the domestic courts’ approach of equating merely posting a hyperlink with disseminating the defamatory information, automatically entailing liability for the content itself.
The issue of whether posting a hyperlink might, justifiably from the perspective of Article 10, give rise to such liability required an individual assessment in each case, having regard to a number of elements.
Relevant aspects in analysing the applicant company’s liability as publisher of a hyperlink were whether the journalist:
- endorsed the impugned content;
- repeated the impugned content (without endorsing it);
- merely put a hyperlink to the impugned content (without endorsing or repeating it);
- knew or could reasonably have known that the impugned content was defamatory or otherwise unlawful;
- acted in good faith, respected the ethics of journalism and performed the due diligence expected in responsible journalism.
In this case, the article in question simply mentioned that the interview was to be found on Youtube and gave a hyperlink to it, without further commenting on, or repeating parts of, the linked interview or mentioning the political party.
“The court observes that nowhere in the article did the author allude in any way that the statements accessible through the hyperlink were true or that he approved the hyperlinked material or accepted responsibility for it,” the Fourth Section chamber said.
“Neither did he use the hyperlink in a context that, in itself, conveyed a defamatory meaning. It can thus be concluded that the impugned article did not amount to an endorsement of the incriminated content.”
The higher domestic courts had not found relevant the issue of whether the journalist and Magyar Jeti Zrt knew or could have reasonably known that the hyperlink provided access to defamatory or otherwise unlawful content, the Fourth Section chamber said.
But this issue had to be determined in the light of the situation as it presented itself to the author at the material time, rather than with the benefit of hindsight on the basis of the domestic courts’ judgements.
In this case, the journalist could reasonably assume that the content to which he provided access, although perhaps controversial, would remain within the realm of permissible criticism of political parties and, as such, would not be unlawful, the court said.
Although the community leader’s statements were ultimately found to be defamatory because they implied, without a factual basis, that persons associated with Jobbik had committed acts of a racist nature, such utterances could not be seen as clearly unlawful from the outset.
Hungarian law also excluded any meaningful assessment of Magyar Jeti Zrt’s freedom of expression rights under Article 10 in a situation where restrictions would have required the utmost scrutiny, given the debate on a matter of general interest.
“Indeed, the courts held that the hyperlinking amounted to dissemination of information and allocated objective liability – a course of action that effectively precluded any balancing between the competing rights, that is to say, the right to reputation of the political party and the right to freedom of expression of the applicant company,” the court said.
“For the court, such objective liability may have foreseeable negative consequences on the flow of information on the internet, impelling article authors and publishers to refrain altogether from hyperlinking to material over whose changeable content they have no control.
“This may have, directly or indirectly, a chilling effect on freedom of expression on the internet.”
The domestic courts’ imposition of objective liability on Magyar Jeti Zrt was not based on relevant and sufficient grounds and was a disproportionate restriction on its right to freedom of expression, it was ruled today.
Picture: Reuters/Vincent Kessler
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