Case Summary and Outcome

The European Court of Human Rights issued a landmark judgment on freedom of expression online, confirming that holding media companies strictly liable for content hyperlinked in their articles violated the right to freedom of expression under Article 10 of the European Convention on Human Rights. The case concerned Magyar Jeti ZRT, a Hungarian media company, and the operator of a popular online news portal, 444.hu. In September 2013, a journalist published an article on 444.hu about an incident involving football fans who chanted racist slogans and threatened Roma children. The article included a hyperlink to a Youtube video with a Roma leader who said that the fans were members of Jobbik, a far-right Hungarian party known for its anti-Roma acts. Jobbik sued the Roma leader and Magyar Jeti for defamation. Hungarian courts found that the Roma leader defamed Jobbik. Further, the courts held that Magyar Jeti was strictly liable for defamation because it disseminated content that contained false information. The European Court criticized the Hungarian courts for applying strict liability to the case at hand because it failed to sufficiently balance the right to freedom of expression with the right to reputation, and unduly burdening the free flow of information on the Internet.

Facts

Magyar Jeti ZRT, the applicant in the case, is an operator of 444.hu, a popular online news portal in Hungary. The portal publishes around 75 articles per day on a number of topics and attracts approximately 250,000 daily unique users.

On September 5, 2013, a group of visibly intoxicated football fans travelling to Romania stopped at an elementary school in the village of Konyár, Hungary. The school’s students were predominantly Roma. The fans sang, chanted and shouted racist slurs, and threatened students who were outside in the playground.  Some also waved flags and threw beer bottles. One reportedly urinated on the school building. The teachers called the police and took the children inside, where they told them to hide under tables and in the bathroom. The fans left after the police arrived.

After the incident, a local Roma leader gave an interview to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues. In his description of the events, he claimed that the football fans who attacked the school were members of Jobbik, a political party with a history of racism and far-right radicalism. The interview was uploaded on Youtube.

On September 6, 2013, an article about the incident was published on 444.hu, titled “Football Supporters Heading to Romania Stopped to Threaten Gypsy Pupils.” The article was written by a journalist for the portal and included a hyperlink to the local Roma leader’s interview. The article itself, however, did not contain any reference to Jobbik. The article was updated three times to reflect new information, most recently on October 1, 2016. Additionally, the hyperlink to the interview was shared on three other websites.

On October 13, 2013, Jobbik brought a defamation lawsuit against the local Roma leader, Magyar Jeti ZRT, and six additional media companies that shared hyperlinks to the interview. Jobbik argued that the football fans were misrepresented as Jobbik members, which harmed its reputation.

On March 30, 2014, the Debrecen High Court found that the Roma leader defamed Jobbik by falsely stating that the political party was involved in the incident in Konyár. The court also held Magyar Jeti strictly liable for defamation because it disseminated the Roma leader’s interview through 444.hu, and did not consider the media company’s intent nor balanced freedom of expression with the right to reputation. Under the standard of strict liability, a party is liable for the consequences of an action regardless of the existence of fault or criminal intent. The court ordered the Roma leader to publish sections of its judgment that explained the falsity of the claims made on Youtube for a period of 30 days. Magyar Jeti was ordered to do the same on 444.hu and to remove the hyperlink to the interview from “Football Supporters Heading to Romania Stopped to Threaten Gypsy Pupils.”

Magyar Jeti appealed. It argued that the public associated “Jobbik” with anti-Roma ideology and its name has become a collective noun for anti-Roma organizations. Thus, since it was publicly known that Jobbik engaged in hatred-inciting activities, the interview did not contain any offensive content about the political party. Lastly, Magyar Jeti emphasized that it simply provided a hyperlink to the interview, and did not repeat the Roma leader’s statements anywhere in the article published on 444.hu.

On September 25, 2014, the Debrecen Court of Appeal upheld the first-instance decision. It held that the Roma leader’s statements qualified as a statement of fact because they impressed on an average person the notion that the football fans were Jobbik members. The interview injured Jobbik because it tied the party to socially reprehensible conduct. Concerning Magyar Jeti, the appeals court, explained that an entity that disseminates information was legally responsible for any content that it made accessible to the public.

On December 1, 2014, Magyar Jeti appealed to the Constitutional Court of Hungary. It argued that Hungary’s Civil Code imposed an undue burden on media companies by holding them responsible for the veracity of statements made by third parties. In its opinion, this obligation made reporting on controversial issues impossible, since it would be difficult to prove the veracity of information beyond a reasonable doubt in such matters.

Additionally, Magyar Jeti lodged a petition with the Kúria, the Supreme Court of Hungary, arguing that the appellate court’s judgment disproportionately restricted freedom of the press. The media company emphasized that it reported on an important issue of public concern, in compliance with its journalistic obligations, and in a balanced manner. It also rejected the court’s findings that the Roma leader’s statement qualified as fact rather than an opinion. Lastly, Magyar Jeti emphasized that it engaged in journalism and should not have been treated merely as a disseminator of information.

On June 10, 2015, the Supreme Court upheld the appellate court’s ruling. It reiterated that the Roma leader’s statement qualified as a statement of facts. The Court conceded that the term jobbikos (members of Jobbik) was used colloquially, but in this case the Roma leader explicitly referred to the political party. The Court also reiterated that the Civil Code established strict liability for dissemination of content, irrespective of the good or bad faith of the disseminator. It added that media outlets possessed the practical capacity to limit access to injurious statements, and doing so did not restrict freedoms of the press or expression.

On December 19, 2017, the Constitutional Court also dismissed Magyar Jeti’s complaint. It agreed with the appellate court’s judgment that providing a hyperlink to content qualified as dissemination of facts. It added that the dissemination was unlawful even if the content was provided by a third party and even if Magyar Jeti trusted its veracity. The Court explained, on the basis of its case-law, that reporting about public figures did not qualify as mere dissemination if (1) the report was unbiased and objective, (2) the statement concerned a matter of public interest, (3) the publisher identified the source of the statement and (4) gave an opportunity for a person affected by the potentially injurious statement to react. According to the court, doing the above ensures that journalists do not make their own statements and risk influencing public opinion with their own thoughts. Here, however, the article was defined by the choices and decisions of the editors and journalists.

Magyar Jeti then submitted a complaint to the European Court of Human Rights, alleging that the Hungarian courts’ judgments violated its freedom of expression under article 10 of the European Court of Human Rights. Specifically, the media company argued that:

1. Interference with its freedom of expression had not been prescribed by law. The company agreed that article 78(2) of the Civil Code established liability for dissemination of injurious falsehoods, but stressed that Hungarian legislation and case-law did not equate hyperlinking with dissemination of information.
2. The Hungarian courts’ application of standards of more traditional forms of sharing content to hyperlinks was not reasonably foreseeable, and failed to account for the specific features of hyperlinks.
3. Criticism, if any, of Jobbik fell into the limits of acceptable public scrutiny of politicians.
4. The Hungarian courts applied a strict liability standard, which excluded the possibility of any balancing of freedom of expression and the right to reputation.

The Hungarian Government agreed that the national courts’ judgments interfered with Magyar Jeti’s freedom of expression, but countered that the restriction was prescribed by law and pursued the legitimate aim of protecting the rights of others. It added that the judicial bodies acted within their margin of appreciation. The Government, further, argued that Magyar Jeti could have avoided liability if it acted with due care and had not published the hyperlink to the Roma leader’s defamatory speech. Additionally, Magyar Jeti should have foreseen that they would have been held liable for the content which they had failed to verify. Lastly, the Government reiterated that making unlawful content accessible in any way constituted dissemination of information, and the disseminator should be held strictly liable, irrespective of his or her good or bad faith or the seriousness of the infringement of others’ rights.

There were six third-party interventions submitted to the European Court of Human Rights in support of Magyar Jeti:

• Article 19 argued that there was a fundamental difference between a hyperlink and the content on the linked page, since hyperlinks simply referred to already published information. Further, comparative law from Canada, the UK, Australia and the USA showed that hyperlinks alone did not constitute publication, but merely served a reference function. Lastly, holding someone liable for hyperlinking to third-party content opened to liability many internet users for content that they do not control.
• The European Publishers’ Council, The Media Law Resource Center Inc., the Newspaper Association of America, Buzzfeed, Electronic Frontier Foundation, Index on Censorship, Professor Lorna Woods, Dr. Richard Danbury and Dr. Nicole Stremlau argued that hyperlinking provided public interest benefits and facilitated journalism. Further, journalists could not verify the legality of all content in linked pages, thus holding them strictly liable for hyperlinking unlawful content would result in a chilling effect on journalism. Additionally, lawful hyperlinked content could be later changed to unlawful content.
• Access Now, the Collaboration on International ICT Policy in East and Southern Africa and European Digital Rights argued the Internet was premised on the idea of linking information and that hyperlinks merely pointed to other pages or web resources.
• Mozilla argued that if hyperlinking could impute liability, then publishers would have difficulty sharing content online, and would be required to provide alternative instructions for readers to find more information.
• The European Information Society Institute submitted that hyperlinks contributed to the development of new media providing “more a) interactivity between journalists and readers, b) credibility, by giving context, facts and sources to support the information, c) transparency by allowing readers to trace back the reporting and news gathering process and d) critical reading by allowing journalists and readers to compare contrasting sources.” [para. 54] Further, hyperlinks provided non-editorial decentralized speech to supplement the watchdog role of mainstream media.
• The European Roma Rights Centre, which was the recipient of the 2018 Columbia Global Freedom of Expression Prize, argued that when minorities targeted by hate speech associate those acts with politicians or political parties, they engage in a protected form of expression. It was thus a severe interference with the rights of the Roma to be prohibited from expressing the link between racist speech and acts and the political parties they perceived as promoting an environment of racial hatred. Further, exposing online publishers to liability for the content of linked material would have a chilling effect and unduly burden civil society’s and minorities’ work against racism.

Decision Overview

In its assessment of the issue at hand, the European Court of Human Rights applied the three part test to assess whether the interference with Magyar Jeti’s freedom of expression was lawful (prescribed by law), served a legitimate aim or was necessary in a democratic society. It concluded that the Hungarian courts’ imposition of strict liability on Magyar Jeti was not necessary in a democracy and constituted a disproportionate restriction on its right to freedom of expression.

The European Court swiftly went through the analysis of the prongs of lawfulness and legitimacy since the essence of its ruling related to necessity. The European Court did not rule on the prong of lawfulness, finding that it was not needed since it found a violation on the basis of necessity. However, it reiterated that to satisfy the “prescribed by law” prong, the interference must have a legal basis in domestic law, which in turn must meet a certain threshold of quality, be accessible to the persons concerned, and its effects must be foreseeable. The Court added that domestic legislation could not be expected to provide for every eventuality, and the degree of its precision depended on the contents of the law, the sector it regulated, and number and status of individuals or entities it regulated. Further, persons who in their professional capacity were expected to apply a high degree of caution were expected to “take special care in assessing the risks that such activity entails.”

On the question of legitimacy, the Court agreed with the position of Hungary’s Government that the interference was legitimate since it aimed to protect the rights of others.

The Court began its analysis of the necessity prong of the three part test by outlining the relevant general principles. First, it reiterated that as per the precedent in Bedat v Switzerland, protections afforded by Article 10 to journalists were subject to the condition that the journalists acted in good faith and on an accurate factual basis. It added that in Stoll v Switzerland the Court emphasized the importance of monitoring compliance with journalistic ethics in the current age of vast quantities of information in traditional and electronic media, involving an ever-growing number of players.

Further, the Court noted that the Internet played an important role in the enhancement of the right to freedom of expression and information, but it also posed a higher risk of harm to some human rights, including the right to the respect of private life, as compared to traditional media. Thus, as highlighted in Delfi v Estonia, because of the particular nature of the Internet, the “duties and responsibilities” of Internet news portals may differ from those of a traditional publisher. Moreover, Internet news portals could assume responsibility under certain circumstances for user-generated content, as the Court found in Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary.

The Court then proceeded to apply the above principles to the facts at hand. The Court noted that hyperlinks contributed to the smooth operation of the Internet by making information accessible through linking sources.  It also agreed that hyperlinks, as a technique of reporting, differed from traditional acts of publication since they did not present the linked statements to the audience or communicated its content, but only served to bring readers’ attention to content on other websites. Additionally, an individual who hyperlinked the content did not necessarily control the website that hosted the said content. Plus, this content could be changed after the publication of a hyperlink. The European Court reasoned that given these qualities of hyperlinks, it was improper to apply a strict liability standard to a media company for hyperlinking defamatory content.

Instead, the Court concluded that such cases must be assessed on an individual basis. The Court listed five factors to consider when assessing the liability of Magyar Jeti:

1. did the journalist endorse the impugned content;
2. did the journalist repeat the impugned content (without endorsing it);
3. did the journalist merely put an hyperlink to the impugned content (without endorsing or repeating it);
4. did the journalist know or could reasonably have known that the impugned content was defamatory or otherwise unlawful;
5. did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism? [para 77]

Here, the article published on 444.hu simply mentioned the Roma leader’s interview and linked to it, without any endorsement, disapproval, comment on or repletion of its contents. Further, citing Jersild v Denmark, the Court reiterated that punishing a journalist for “assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.” [para. 80] Moreover, requiring journalists to “systematically and formally distance themselves from third party content might insult or provoke others or damage their reputation,” and was “not reconcilable with the press’s role of providing information on current events, opinions and ideas.” [para. 80] Of course, a journalist could be held liable for hyperlinking content in situations where s/he did not act in “accordance with the ethics of journalism and with the diligence expected in responsible journalism dealing with a matter of public interest.” [para. 80]

The Court noted that it was irrelevant if Magyar Jeti knew or could have reasonably known that the hyperlink provided access to defamatory or otherwise unlawful content. The Court restated Delfi precedent that “an attack on personal honor and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life.” [para. 81] Plus, the limits of acceptable criticism are wider in relation to politicians.  In the eyes of the Court, Magyar Jeti’s journalists could not have reasonably assumed that the content of the hyperlinked video, although perhaps controversial, did not qualify as permissible criticism of political parties.

Lastly, the Court criticized Hungarian courts for applying the strict liability standard in the current case since it precluded any meaningful assessment of Magyar Jeti’s freedom of expression, particularly given that the information concerned a matter of general interest. “For the Court, such [strict 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.” [para. 83]

On the basis of the above, the European Court of Human Rights Court found that the domestic courts’ imposition of objective liability on Magyar Jeti was not based on relevant and sufficient grounds, and   constituted a disproportionate restriction on its right to freedom of expression.

Concurring Opinion of Judge Pinto De Albuquerqe

In light of the importance of hyperlinks on the Internet, Judge De Albuquerqe issued a concurring opinion to highlight the underlying principles concerning liability for the use of hyperlinks.

First, The Judge repeated established precedent from the German Federal Constitutional Court, the Canadian Supreme Court, in Crookes v. Newton, and the United States Court of Appeals for the Third Circuit, in Philadelphia Newspapers, LLC, according to which a hyperlink was content neutral and expressed no opinion.

Referring to Sir Timothy John Berners-Lee, one of the creators of the World Wide Web, the Judge reiterated that “Hyperlinks [were] the glue that holds the Web together in so far as they enable people to easily and quickly navigate to other webpages to retrieve, view, access and re-share information.” Further, hyperlinks aided in the promotion of the principles of universality and decentralization, because when used in reporting, they facilitated and improved the journalistic process by enabling content to be delivered more swiftly. Using hyperlinks also promoted diversity and pluralism in the media by linking to large and small media organizations, thus enabling them to work together in a mutually beneficial manner to provide enriched content.

The Judge, paraphrasing the words of Berners-Lee, concluded that “hyperlinks [were] critical not merely to the digital revolution but to our continued prosperity – and even our liberty. Like democracy itself, they need defending.”