The European Court of Human Rights has held that the Hungarian court's ruling that a hyperlink from an online news portal was defamatory had violated the portal's freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) (Article 10).
Article 10 provides that everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In GS Media BV v Sanoma Media Netherlands, where the content linked to was unlicensed, the European Court of Justice (ECJ) stated that:
- Liability would not subsist for link providers who do not pursue a profit-making intention and are unaware that the content linked to is unlicensed;
- Liability could subsist for for-profit link providers who have not acted diligently to make sure that the content linked to is lawful (rebuttable presumption of knowledge);
- Liability could subsist for for-profit link providers who are aware that the content linked to is unlawful (see News brief “Hyperlinking to unauthorised content: ECJ imposes conditions”, www.practicallaw.com/2-633-7919).
In 2013, a group of intoxicated football fans made racist remarks and threats against the pupils of a school in Hungary attended by a majority of Romani pupils.
M operates a popular news portal which published an article including a hyperlink to a YouTube video containing the recording of a telephone call between the leader of the Romani minority local government and one of the pupils' parents. The former indicated that the football fans were members of a political party, J.
J sued a number of subjects, including M's website, for defamation. It argued that, by using its name to describe the football fans and by publishing the hyperlink, M had infringed its right to reputation.
The Hungarian courts held that M's website was liable for disseminating defamatory statements conveying the impression that the football fans would be organisationally linked to J. The defamatory act, in the case of M's website, consisted of the hyperlink to the YouTube video.
M issued proceedings against Hungary for alleged violation of its own freedom of expression under Article 10. It argued that, by finding it liable for the posting on its own website of a hyperlink leading to defamatory content on YouTube, the Hungarian courts had unduly restricted its freedom of expression under Article 10.
The court ruled that the Hungarian court had violated M's right of freedom of expression under Article 10 when it ruled that M had infringed J's reputation by linking to a YouTube video containing material that was defamatory of J.
For the purposes of Article 10, the case concerned M's duties and responsibilities. The question was whether the interference with Article 10 was, in the circumstances, based on relevant and sufficient reasons and consequently necessary in a democratic society.
Article 10 protection is conditional on journalists acting in good faith and on an accurate factual basis so as to provide reliable and precise information in accordance with the ethics of journalism. When third-party rights are at stake, a fair balance must be struck between journalists' Article 10 freedom and other parties' freedoms, including respect for private life under Article 8 of the ECHR.
The portal was professionally run, published about 75 articles on a wide range of topics each day, and attracted about 250,000 readers each day. The purpose of hyperlinks was to allow internet-users to navigate to material and they were essentially different from traditional acts of publication. Also, referring to information through a hyperlink did not involve exercising control over the content of the linked website. So, it was wrong to equate the mere posting of a hyperlink with the dissemination of defamatory information. Whether posting a hyperlink gave rise to liability would require an individual assessment in each case.
The court identified in particular the following issues as relevant for its analysis of M's liability as publisher of a hyperlink:
- 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?
Here, the article merely mentioned an interview was to be found on YouTube and provided a means to access it through a hyperlink; it did not mention the political party. Also, the article did not amount to an endorsement of the content.
This decision is of interest in the context of the question of liability for linking under EU copyright law. The court stressed the importance of linking to the functioning of the internet and the dissemination of information. It also noted that among the factors to consider is whether the link provider knew or could have reasonably known that the content linked to was illegal. In this respect its reasoning reflects that in GS Media.
The ECJ's approach to linking in the copyright context and the one adopted by the court here in the context of human rights and freedom of expression therefore do not appear to diverge substantially, and both courts stressed the need for an individual assessment of the specific case. In assessing whether to impose liability for linking, in particular on media entities, a number of different rights are likely to be at stake and a careful balancing exercise must be undertaken.
Case: Magyar Jeti Zrt v Hungary (Application no 11257/16).
First published in the January/February 2019 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.