EHRM, 04-12-2018, nr. 11257/16

The applicant company operates a popular online news portal in Hungary called 444.hu, which averages approximately 250,000 unique users per day. The online news portal has a staff of twenty-four and publishes approximately seventy-five articles per day on a wide range of topics, including politics, technology, sport and popular culture.

On 5 September 2013, a group of apparently intoxicated football supporters stopped at an elementary school in the village of Konyár, Hungary, while travelling by bus to a football match. The students at the school were predominantly Roma. The supporters disembarked from the bus, and proceeded to sing, chant and shout racist remarks and make threats against the students who were outside in the playground. The supporters also waved flags and threw beer bottles, and one of them reportedly urinated in front of the school building. To protect the children, the teachers called the police, took the children inside and made them hide under tables and in the bathroom. The football supporters boarded the bus and left the area only after the police arrived.

On 5 September 2013, J.Gy. the leader of the Roma minority local government in Konyár gave an interview, in the company of a pupil of the elementary school and his mother, to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues. While describing the events, and referring to the arrival of the football supporters in Konyár, J.Gy. stated that ‘Jobbik came in1.’ (Bejött a Jobbik). He added: ‘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.’ On the same day the media outlet uploaded the video of the interview to Youtube.

On 6 September 2013 the applicant company published an article on the incident in Konyár on the 444.hu website with the title ‘Football supporters heading to Romania stopped to threaten gypsy pupils’, written by B.H., a journalist of the Internet news portal. The article contained the following passages:

The words ‘uploaded to Youtube’ appeared in green, indicating that they served as anchor text to a hyperlink to the Youtube video. By clicking on the green text, readers could open a new web page leading to the video hosted on the website of Youtube.com.

The article was subsequently updated three times — on 6 and 12 September and 1 October 2016 — to reflect newly available information, including an official response from the police.

The hyperlink to the Youtube video was further reproduced on three other websites, operated by other media outlets.

On 13 October 2013, the political party Jobbik brought defamation proceedings under Article 78 of the Civil Code before the Debrecen High Court against eight defendants, including J.Gy., Roma Produkciós Iroda Alapítvány, the applicant company, and other media outlets who had provided links to the impugned video. It argued that by using the term Jobbik to describe the football supporters and by publishing a hyperlink to the Youtube video, the respondents had infringed its right to reputation.

On 30 March 2014 the High Court upheld the plaintiff's claim, finding that J.Gy.'s statements falsely conveyed the impression that Jobbik had been involved in the incident in Konyár. It also found it established that the applicant company was objectively liable for disseminating defamatory statements and had infringed the political party's right to reputation, ordering it to publish excerpts of the judgment on the 444.hu website and to remove the hyperlink to the Youtube video from the online article.

14. The judgment of the High Court contains the following relevant passages:

The applicant company appealed arguing that public opinion associated the notion of ‘Jobbik’ not so much with the political party but with anti-Roma ideology, and the name had become a collective noun for anti-Roma organisations. According to the applicant company, the statement had not had an offensive content regarding the political party, since it had been publicly known that Jobbik had been engaged in hatred-inciting activities. The applicant company also emphasised that by making the interview with the first defendant available in the form of a link but not associating the applicant company with the video's content, it had not repeated the statements and had not disseminated falsehoods.

On 25 September 2014 the Debrecen Court of Appeal upheld the first-instance decision. It held that the statement of J.Gy. had qualified as a statement of facts because it had given the impression to the average audience that the football supporters had been organisationally linked to the political party. The court found that the statement had been injurious to the political party since it had associated the latter with socially reprehensible conduct. As regards the applicant company in particular, it held:

The applicant company lodged a constitutional complaint under Act no. CLI of 2011 on the Constitutional Court (‘the Constitutional Court Act’) on 1 December 2014, arguing in essence that under the Civil Code, media outlets had objective liability for dissemination of false information, which according to judicial practice meant that media outlets were held liable for the veracity of statements that clearly emanated from third parties. 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. It argued that the judicial practice was unconstitutional since it did not examine whether a publisher's conduct had been in compliance with the ethical and professional rules of journalism, but only whether it had disseminated an untrue statement. In the area of the Internet where the news value of information was very short, there was simply no time to verify the truthfulness of every statement.

Two of the defendants also lodged a petition for review with the Kúria. The applicant company argued that the second-instance judgment restricted the freedom of the press in a disproportionate manner, as it had only reported on an important issue of public concern, in compliance with its journalistic tasks. It emphasised that, as established by the lower-level courts, its report on the issue had been balanced. It further maintained that the statement of J.Gy. qualified as an opinion rather than a fact. In any event, it had not been engaged in the dissemination but had merely fulfilled its journalistic obligation of reporting.

The Kúria upheld the second-instance judgment on 10 June 2015 (served on the applicant company on 4 September 2015), reiterating that J.Gy.'s statements were statement of facts and that the defendants had failed to prove their veracity. Although the term jobbikos was used in colloquial language, in the case at issue J.Gy. had explicitly referred to the political party and its role in the incident. As regards the question of whether the applicant company's activity constituted dissemination of information the Kúria found:

On 19 December 2017 the Constitutional Court dismissed the constitutional complaint. It emphasised the second-instance court's finding that providing a hyperlink to content qualified as dissemination of facts. Furthermore, dissemination was unlawful even if the disseminator had not identified itself with the content of the third-party's statement and even if it had wrongly trusted the truthfulness of the statement.

The Constitutional Court also reiterated its previous case-law concerning reporting about public figures' press conferences, stating that such conduct did not qualify as dissemination if the report was unbiased and objective, the statement concerned a matter of public interest, the publisher provided the source of the statement and gave the opportunity to the person concerned by the potentially injurious statement a possibility to react. In such cases, according to the Constitutional Court, journalists neither made their own statements nor did they intend to influence public opinion with their own thoughts. Therefore, the liability of the press for falsehoods was to be distinguished from situations where the media content was merely defined by the own choices and decisions of the editors and journalists. Specifically, in these situations the aim of a publication was neither to enrich nor to influence public debate with the journalists' own arguments, but to provide an up-to-date and credible report on the statements of third-parties participating in public debates. The interest of a public debate required accurate reporting about press conferences.

Concerning the present case, the Constitutional Court found that the dissemination of a falsehood did not concern a statement expressed at a press conference. The statement in question had related to a media report about an event which the press had presented according to its own assessment. The press report had summarised information concerning an event of public interest. A press report fell outside the definition of dissemination only if the aim of the publication was to provide a credible and up-to-date presentation of statements of third parties of a public debate. However, in the present case the Kúria found that the aim of the publication had not been the presentation of J.Gy.'s statements, but the presentation of the contradictory information concerning the event. Thus the press report qualified as dissemination.

The relevant provisions of the Fundamental Law read as follows:

Article VI

Article IX

The Constitutional Court Act provides as follows:

Section 27

Section 29

17. Legal Consequences of the Decisions of the Constitutional Court

Section 39

Section 43

Act no. IV of 1959 on the Civil Code, as in force at the material time, provides:

Article 75

Article 78

The Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet provides:

Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on a new notion of media (adopted on 21 September 2011) reads as follows:

The Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, states the following:

In Case C-160/15 GS Media BV v. Sanoma Media Netherlands BV, Playboy Entreprises International Inc., Britt Geertruida Dekker the Court of Justice of the European Union (‘the CJEU’) considered whether, and in what circumstances, posting on a website a hyperlink to protected works, which are freely available on another website without the consent of the copyright holder, constitutes ‘communication to the public’ within the meaning of Article 3 § 1 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. The CJEU found that:

In the judgment no. 1 BvR 1248/11 of 15 December 2011 the German Federal Constitutional Court pointed out that the provision of a link in an online article was protected under the German Basic Law. The discussion process necessary for the formation of opinion, protected by the Basic Law, included private and public information about third-party statements, and also therefore the purely technical distribution of such statements, regardless of any associated expression of opinion by the distributor itself. It stressed that by placing a hyperlink leading to another website, the person or organisation doing so did not automatically make the content of the website its own opinion. Lastly, it pointed out that the German Federal Court had correctly balanced the conflicting rights when it had found that the placing of the link did not further encroach on the rights of others (that is to say the claimant's copyright) since a website with the unlawful content could very easily be found via an Internet search engine anyway.

In Crookes v. Newton (2011, SCC 47, [2011] 3.S.C.R. 269) the Supreme Court of Canada considered the issue of whether creating a hyperlink to defamatory material constituted publishing the defamatory statements. It held that a person cannot defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, in particular, that:

On 26 July 2012 the United States Court of Appeals for the Third Circuit held in Philadelphia Newspapers, LLC (No. 11-3257, 2012 U.S. App. LEXIS 15419 (3d Cir. July 26, 2012) (precedential)) ‘that providing a link on a website to an allegedly defamatory article [was] not republication for purposes of the single publication rule or the statute of limitations’. Rather, the court found that the principles of traditional publication, according to which a mere reference to an article did not republish the material, as long as it did not restate the defamatory statement, were also applicable to internet publication. It held that ‘[t]aken together, though a link and reference m[ight] bring readers' attention to the existence of an article, they d[id] not republish the article’.

The applicant company complained that the rulings of the Hungarian courts establishing objective liability on the part of its Internet news portal for the content it had referred to via a hyperlink had amounted to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows:

Article 41 of the Convention provides:

It has been the position of the Court that ‘the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology's specific features in order to secure the protection and promotion of the rights and freedoms concerned’2.. The present judgment reaffirms this principle3.. But the Court goes a step further in the characterisation of the ‘distinguishing features’4. of hyperlinks, stating that ‘[h]yperlinks, as a technique of reporting, are essentially different from traditional acts of publication …’5.. Three convincing reasons are invoked for this conclusion.

Firstly, hyperlinking does not convey ‘the linked statements to the audience or communicate its content’6.. Instead, it merely communicates the existence of such information. This is also the position of 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, whose jurisprudence the Court cites and adopts7.. Accordingly, referencing via hyperlink ‘by itself, is content-neutral — it expresses no opinion …’8..

The design of the Internet with the evolution of the World Wide Web was premised on the idea of the free linking of information. Indeed, as Tim Berners-Lee indicated early on:

Two system design principles are fundamental to the Web's structure and operational mode, which make freedom of expression possible:

Berner-Lee's comments on the importance of the need for prolific, universal linking of information should guide the Court's assessment:

Hyperlinks are 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. Without hyperlinks, publishers would have to provide alternative instructions for readers to find more information. For most ordinary people, this would be difficult, if not impossible, to execute without a strong technological background.

The above-mentioned principles of universality and decentralisation, which are especially important to the field of journalism, are bolstered by the Court's view that domestic laws should allow ‘journalists to use information obtained from the Internet without fear of incurring sanctions’12.. As a technique of reporting, hyperlinking facilitates and improves the journalistic process by enabling content to be delivered more swiftly to users and enabling journalists to convey information that is more readily accessible and digestible. It also promotes diversity and pluralism in the media, which is substantively in the public interest, since through hyperlinking large and small media organisations are able to work together in a mutually beneficial manner to provide enriched content to users. Typically, journalists and journalistic organisations are not in a position to reassure themselves as to the legality of the content on any linked pages. Even if it were assumed for the sake of argument that larger media organisations may to a certain extent be able to weather the legal risks attendant on hyperlinking, it is plainly the case that smaller journalistic organisations, with far more limited resources, would have no choice but to abandon hyperlinking.

Secondly, as also stressed by the Canadian Supreme Court, inserting a hyperlink gives the author ‘no control over the content in the secondary article to which he or she has linked’13.. The content of the destination can change, even radically so, from the point in time when the hyperlink is first posted, without the hyperlinker having any control over it14.. This line of argument is shared by the Court's reasoning, which nevertheless introduces a caveat: the ‘natural exception being if the hyperlink points to contents controlled by the same person’15.. In that case, however, liability is not vicarious16.. Furthermore, hyperlinking can often involve limited or no human editorial action, since most modern Web publication services, content management systems and social media applications include tools which enable automated or otherwise machine-assisted hyperlinking.

Thirdly, the Court adds that ‘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’17.. In so far as a hyperlink is a mere reference to already existing content, it does not create new content. Since the hyperlink is normally far removed from the actual content, a user facing a hyperlink is free to decide whether or not to move to the next website18.. If the user does not make the independent choice to follow the link, the content will never be displayed to him or her. This freedom of choice is crucial for media users. Hyperlinking enables users more readily to access and check for themselves the original sources of the journalistic content and to have a large measure of control over how they consume the content: they can either go no further than the journalistic content proffered to them or they can selectively look behind that content as they see fit. Hence, hyperlinking empowers the user in a manner that strongly serves the public interest.

In view of these distinguishing features, the Court refers, in general terms, to the relevant criteria for assessing the liability of natural and legal persons for the use of hyperlinks. The criteria are the following:

The first thing to be noted is that the Court sets out to describe exhaustively the objective and subjective criteria for assessing all possible scenarios involving the use of hyperlinks by journalists. Although the Court considers hyperlinks ‘essentially different from traditional acts of publication’20., it refers to criteria applicable to traditional acts of publication, like the print media, in order to deal also with those scenarios in which the use of hyperlinks equates to acts of publication21..

As a matter of fact, the Court identifies three types of conduct (actus reus) on the part of journalists using hyperlinks: hyperlinks with endorsement of the content to which they lead, hyperlinks with repetition of the content to which they lead, and mere hyperlinking without any endorsement or repetition of the linked content. These different factual situations call for different liability principles.

In addition, the Court refers to three types of subjective standard (mens rea)22.: good faith, knowledge that the content to which the hyperlink makes reference is defamatory or otherwise unlawful, and constructive knowledge that it could be so. It is important to underscore that for the Court, as a matter of principle, liability for the use of hyperlinks is always subjective, even in the case of corporate liability. Moreover, the mens rea of the journalist must 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 findings of the domestic courts' judgments’23.. This means that the journalist's knowledge of the defamatory or otherwise unlawful nature of the content to which the hyperlink leads cannot be assessed according to the findings of the domestic courts delivered after the material time. I will return to this point below.

In order to impute liability to a journalist who uses hyperlinks it does not suffice to prove positive and actual knowledge (‘Did the journalist know …?’)24. of the unlawfulness of the content to which the hyperlink leads; there must be proof of bad faith on the part of the journalist. The Court's mentioning of the general clause of ‘good faith’ (‘Did the journalist act in good faith …?’)25. encapsulates an additional ground for exculpation with regard to respect for the ethics of journalism and the performance of the due diligence expected in responsible journalism. As a subjective requirement for liability, bad faith is the obverse of the exculpatory clause of ‘good faith’.

In view of the above, neither the mere use of a hyperlink nor the repetition of its content can be understood as a tacit expression of approval, adoption, ratification, promotion or condoning of the content to which it leads26.. In order to impute liability, be it civil or criminal, there must be concrete evidence of endorsement by the journalist, who knowingly assumed the unlawful content as his or her own by means of explicit and unequivocal language. This endorsement corresponds to the publication or dissemination of the defamatory or otherwise unlawful content, which is equated to traditional forms of publication. When such endorsement is the expression of bad faith on the part of the journalist, the use of the hyperlink entails his or her liability, as well as that of his or her media company27..

The repetition by a journalist of defamatory or otherwise unlawful content, accompanied by a hyperlink to the source of the content, is also equated to traditional forms of publication. Where the journalist acted in good faith and in accordance with professional ethics and the due diligence expected in responsible journalism, such repetition does not make him or her liable for that content28.. By contrast, where the journalist acted in bad faith, breached professional ethics and did not perform the aforementioned due diligence, he or she is liable for the defamatory or otherwise unlawful content. This means that the obligations incumbent on a journalist who posts the hyperlink are obligations of means and not of result.

All defences available to primary publishers29. should be available to the creators of the hyperlink if they are subject to liability in respect of linked content. The logic underlying equal treatment is that, as the United Nations Human Rights Council states, ‘the same rights that people have offline must also be protected online’30..

In cases where the journalist repeats the content to which the hyperlink leads, the Court does not impose an obligation for the journalist to distance him or herself formally from that content. The same applies a fortiori where the journalist simply creates the hyperlink without endorsing or repeating the content to which it leads.

The simple use of a hyperlink, without endorsing or even repeating the unlawful content to which it leads, is not equated to traditional forms of publication. Hyperlinking in this case does not make the journalist liable for that content, save in the very exceptional circumstance of non-compliance with a binding judicial decision31..

In this specific situation of non-compliance with a domestic court order declaring such content unlawful and prohibiting its use, the journalist can be said to have deliberately contravened the ethics of responsible journalism and acted in bad faith32..

The Court accepts that in exceptional cases there may also be liability in a situation of constructive knowledge (‘could reasonably have known’)33.. For the assessment of constructive knowledge, the Court uses the due diligence obligations of responsible journalism which are based on the rules of ethics of journalism34.. It can be said that a journalist could reasonably have known of the defamatory or otherwise unlawful content of the hyperlinked message where he or she did not respect the ethics of journalism and did not comply with the due diligence obligations of responsible journalism. Any lower subjective standard for liability would inevitably lead to self-censorship.

Finally, liability must be assessed by reference to the specific facts of the case rather than on a strict, blanket basis. Any regime of objective or strict liability for the use of hyperlinks is per se contrary to the above-mentioned Convention principles35.. It could result in an infinite regress of liability whereby authors could be held liable for content on websites that may be accessed through a sequence of hyperlinks beginning with the author's website. This is not a merely hypothetical scenario, as this case shows.

On the basis of the above-mentioned objective and subjective criteria, the Court's principles regarding liability for the use of hyperlinks can be summed up as follows:

Principle 1: Where a journalist endorses, by means of explicit and unequivocal language, or repeats defamatory or otherwise unlawful content to which the hyperlink leads, the use of the hyperlink is equated to traditional forms of publication.

Principle 2: Liability should be imposed only where a journalist knows (actual and positive knowledge) that the content to which the hyperlink leads is unlawful, and acts with bad faith. Exceptionally, liability may also be imposed where the journalist could reasonably have known (constructive knowledge) that the content was unlawful, in the light of professional ethics and the due diligence obligations of responsible journalism.

Principle 3: Where a journalist uses a hyperlink and does not endorse or repeat the defamatory or otherwise unlawful content to which it leads, the use of the hyperlink is not equated to traditional forms of publication and does not entail liability, save in the case of non-compliance with a court order declaring such content unlawful and prohibiting its use.

Principle 4: All defences available to primary publishers should be available to the journalist if he or she is subject to liability in respect of linked content. The journalist does not have an obligation to distance him or herself from the defamatory or otherwise unlawful content to which the hyperlink leads.

Principle 5: The above-mentioned Convention principles require an individual assessment in each case, 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 findings of the domestic courts' judgments.

Principle 6: Any regime of objective or strict liability for the use of hyperlinks is per se contrary to the above-mentioned Convention principles.

Principle 7: These principles apply both to natural persons (the journalists) and legal persons (the media companies).

The Hungarian courts held the applicant company liable for defamation for ‘dissemination’ of false statements regarding Jobbik under Section 78(2) of the Civil Code. Section 78(2) defines defamation as ‘the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person’. The domestic courts did not find the applicant company liable for the article on the Konyár incident, but specifically for the fact that the journalist Mr Horváth had used a technique of hyperlinking to a video already available online. Oddly enough, the domestic courts' removal order targeted the hyperlink, but not the other references to the existence of the video in the article.

The applicant company claimed that it could not have foreseen that the Hungarian courts would consider hyperlinking to constitute dissemination. Accordingly, the applicant company could not have foreseen that, by including the hyperlink in the article, it would be found liable for defamation and ordered to remove the hyperlink, publish excerpts of the judgment and pay legal costs. The Government conceded that there had been interference with the applicant company's freedom of expression, but argued that this interference had been lawful and proportionate in the light of the prevailing doctrine of objective liability in this field of law in Hungary.

By equating hyperlinking to ‘dissemination’ in four consecutive instances36., the Hungarian courts disregarded the fundamental distinction between content and communicating the existence of content (hyperlinking). The application of objective liability to any form of hyperlinking precluded the balancing of interests required under the Court's case-law and the individual assessment of the applicant company's situation, and resulted in truly draconian interference with the applicant company's Article 10 rights. This criticism of the Hungarian courts is not new. In another case, the Hungarian courts' application of an objective liability interpretation of Article 78 of the Civil Code was already found to be incompatible with the Convention37.. In the present case, the Court reiterates this finding with regard to hyperlinks.

As a matter of law, the domestic courts failed to consider that the journalist simply posted the link in his article, without endorsing or even repeating the content to which the hyperlink led, and that the content referred to (namely Mr Gyöngyösi's comments on the Konyár incident) had not been declared unlawful and had its use prohibited by any court decision prior to the creation of the link. Furthermore, the domestic courts also disregarded the fact that the content in question appeared in the context of a news report on a matter of public interest, as it related to threats against Roma schoolchildren and could be perceived as statements made within the ‘permissible criticism of political parties’38..

Worse still, this case highlights how objective liability for hyperlinking may lead to an infinite regress of liability. In fact, the domestic courts held a website (hvg.hu) liable for hyperlinking to the article on the applicant company's website because that article itself included a hyperlink to the allegedly defamatory video.

In sum, the Web is not intended, as a technology, to function in the way the respondent Government states, where spreading information via a hyperlink is itself always a ‘thought-content’39.. This approach begs the question of how people are to convey information across the estimated trillions of webpages in existence today and countless future pages if doing so can give rise to liability. It is too burdensome, and in many cases impossible, for people to make a legal determination as to whether each and every hyperlinked content is defamatory or otherwise unlawful. If such a burden were to be imposed automatically on journalists, by way of an objective liability regime, it would stifle the freedom of the press. To paraphrase the words of Berners-Lee, hyperlinks are critical not merely to the digital revolution but to our continued prosperity — and even our liberty. Like democracy itself, they need defending40.. It is indeed remarkable that, by finding a violation of Article 10 of the Convention, the present judgment has done just that.