On 4 December 2018, the European Court of Human Rights provided some helpful clarification on the potential liability for posting hyperlinks to defamatory content in the case of Magyar Jeti Zrt v. Hungary. In doing so, the Court referred to the ever-growing corpus of European Union law concerning the concept of “communication to the public” contained in Article 3(1) of the InfoSoc Directive 2001/29/EC.
According to the judgment, a group of apparently drunk football supporters were travelling to a game when they decided upon a detour. They left the bus on which they were travelling and made their way to a primary school attended, largely, by Roma children. They racially abused the children, urinated in front of the building and made threats that led the teachers to shelter the children under tables in the school while they waited for the police. Thankfully, no one was physically harmed.
Following the incident, a local politician, “J.Gy”, provided an interview to a local media outlet. In the interview, he reportedly blamed the incident on the right-wing Jobbik political party, claiming, “Jobbik came in”, “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.” A recording of that interview was uploaded to YouTube.
The incident was widely reported, including by the operator of the 444.hu news portal, the applicant in the present proceedings. The applicant did not expressly repeat the identification of Jobbik, instead providing a hyperlink to the YouTube video at the words “uploaded to YouTube”.
The national proceedings
On 13 October 2013, Jobbik brought proceedings for defamation against J.Gy, 444.hu and others. The Hungarian court found that the statement was defamatory and could not be justified. The proceedings against 444.hu were based on provisions of the Hungarian Civil Code dealing with dissemination of defamatory content. 444.hu also sought to defend the proceedings on the basis that J.Gy’s comments were opinion, and that “Jobbik” had become a common term for someone who was anti-Roma. Crucially, the Hungarian courts rejected 444.hu’s argument that by not naming Jobbik, it had not repeated the defamatory statements.
444.hu lost at first instance and on appeal. It then lodged a complaint to the Constitutional Court of Hungary, claiming, inter alia, that the Civil Code imposed “absolute liability” for the statements of others (even where the statements were obviously those of a third party), meaning that the publishers would be liable even where their articles were fair and balanced reports. The complaint failed, with the court finding that 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 referred to previous case law concerning reporting press conferences, in which it had ruled 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. As the 444.hu article was not a “press conference”, it could not benefit from the exception, and its complaint failed.
The ECtHR considered a number of authorities, including the GS Media BV v Sanoma Media Netherlands BV and Others copyright case (C-160/15). In that case, the CJEU had considered whether a person communicates a copyright work to the public by posting a hyperlink to a copy of that work that is freely available on the internet. The CJEU found that where the person does so without pursuing a profit, and without any reason to believe that the hyperlinked copy was made available without the consent of the right holder, he is generally not liable for communicating the work to the public. However, the CJEU did find that the hyperlinker can be liable where he knew or ought to have known the hyperlinked content was unlawful (e.g. when it has been notified and/or is pursuing a profit).
The Court also referred to a German Federal Constitutional Court decision (1 BvR 1248/11 of 15 December 2011), in which the German court held that the provision of a link in an online article was protected under the German Basic Law, and a Canadian decision (Crookes v. Newton), in which the Supreme Court of Canada held that a person cannot defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material.
A number of parties intervened, including Mozilla and the European Information Society Institute (“EISI”). Mozilla stressed the technical, navigational purpose of hyperlinks, and argued that a restriction on the use of hyperlinks would undermine the very purpose of the internet. The EISI argued that hyperlinks allow non-editorial decentralised speech that supplements the watchdog role traditionally associated with the mainstream media. Applying strict liability rules for hyperlinking would inevitably lead to self-censorship.
In balancing Article 8 and Article 10 ECHR, the Court proceeded to find the following:
- Was Article 10 engaged?
Yes. There was no argument that it was not engaged.
- Was the interference “prescribed by law”?
444.hu had argued that it was not foreseeable that the Civil Code would apply to mere hyperlinking to a defamatory statement. While the Court indicated that it agreed with 444.hu’s arguments, it decided that it did not need to decide the point as the application was successful on other grounds.
- Did the interference pursue a legitimate aim?
Yes. The protection of reputation is a legitimate aim.
- Was the interference necessary in a democratic society?
The Court stressed the need to conduct a balancing exercise. The Court also explained that internet news portals may have different duties and responsibilities to those of traditional publishers (which are, generally, liable for all of the statements contained in their publications). Internet news portals can however assume responsibility, under certain circumstances, for third party content.
The court also seemed to refer to GS Media by finding that the availability of the defamatory YouTube video means that the public already has unrestricted access to the content. (Subject to the impending Supreme Court’s decision in Lachaux, this argument has been specifically excluded in England & Wales by the so-called rule in Dingle, and its application by Warby J at first instance (confirmed on appeal) to the serious harm test – see Lachaux v. Independent Print Ltd & Others  EWHC 2242 (QB) at  et seq.)
Taking all of this into account, the Court found that there will need to be a case-by-case analysis in each situation, but that the following are relevant factors: “(i) did the journalist endorse the impugned content; (ii) did the journalist repeat the impugned content (without endorsing it); (iii) did the journalist merely put an hyperlink to the impugned content (without endorsing or repeating it); (iv) did the journalist know or could reasonably have known that the impugned content was defamatory or otherwise unlawful [i.e. apparently adopting part of the CJEU’s reasoning in GS Media]; (v) did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?”
While in certain circumstances a publisher could be liable for repeating a statement by posting a hyperlink, there is no general requirement on journalists to “systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation”.
Further, the Court noted that the particular Hungarian laws in question excluded any Article 8 vs Article 10 balancing exercise (as hyperlinking automatically constituted “dissemination”, and there was no consideration of the publisher’s free speech rights). The court then found that 444.hu’s Article 10 rights had been infringed.
While specifically dealing with a provision of Hungarian law, the decision is undoubtedly helpful to publishers across ECHR countries, including the UK. It also must be right. The Court was careful not to say that a hyperlink could never give rise to liability in certain contexts, which would have been a step too far.
This decision does prompt further thought though. Does it have an effect on the liability of Twitter users that “retweet” defamatory statements without further comment? How about when the retweet is of a link to an article, and the original tweet itself does not contain the defamatory imputation complained of? What if the user is not a journalist (see, e.g. the Court of Appeal’s recent decision in Economou v. De Freitas  EWCA Civ 2591, in which the court held that the particular circumstances of the contributor are relevant to the public interest defence?). Such questions are likely to come down to a factual assessment of whether a retweet does equal endorsement, regardless of what Twitter bios such as the author’s commonly say, and whether the circumstances are such that there is a republication of the original statement.
Oliver Fairhurst is an Associate at Stewarts specialising in intellectual property, media & entertainment and competition law