EU Rights Court Guts Hungary Law on Libelous Links

(CN) – The European Court of Human Rights blasted Hungarian courts on Tuesday for upholding a libel verdict against a news outlet whose only “crime” was linking to a YouTube video inside a news story.

The European Court of Human Rights building in Strasbourg, France.

In 2013, the popular Hungarian news website www.444.hu published a story about an incident in a village near the Romanian border in which a group of drunken soccer fans stopped outside a school of predominately Roma children and shouted racist epithets. The article included a link to an interview placed on YouTube by another media outlet in which a Roma community leader said the drunken fans were actually members of the Jobbik political party who “came in” and “attacked the school.”

The Jobbik party sued eight defendants, including the Roma community leader, the outlet that interviewed him, www.444.hu and others. All the way up Hungary’s judicial ladder, judges reached the same conclusion: The Roma leader defamed the Jobbiks and both media companies were strictly liable for disseminating defamatory statements, good faith or not.

A constitutional court also rejected a claim brought by www.444.hu’s parent company Magyar Jeti Zrt, which argued Hungarian civil code unfairly allowed news outlets to be held liable for third-party statements even in well-prepared and balanced news stories on matters of public interest.

But on Tuesday, the European Court of Human Rights raked the Hungarian judicial system over the coals. The seven justices on the panel blasted the Hungarian courts’ rationale of equating the posting of a hyperlink with the dissemination of defamatory information without at least assessing the intentions of the reporter and the outlet.

The EU rights court also noted the point of the internet – and hyperlinks – are to improve the public’s access to information.

“Bearing in mind the role of the internet in enhancing the public’s access to news and information, the court points out that the very purpose of hyperlinks is, by directing to other pages and web resources, to allow internet users to navigate to and from material in a network characterized by the availability of an immense amount of information,” the Strasbourg-based court wrote. “Hyperlinks contribute to the smooth operation of the internet by making information accessible through linking it to each other.”

The court noted hyperlinks in news reporting only direct readers to potentially related content available on the internet and are not usually presented as a factual part of the news story in which they’re placed.

“A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, is that the person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access, and which might be changed after the creation of the link – a natural exception being if the hyperlink points to contents controlled by the same person,” the court noted. “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.”

To determine liability for hyperlinking potentially defamatory content, the EU court said the Hungarian judiciary should have considered five things: whether the journalist endorsed the content, or just repeated the content without endorsing, or simply posted the link and left it to the reader, or knew the linked content was potentially defamatory, or acted in good faith and with journalistic ethics in mind.

In this case, the rights court found, the story simply included the link and noted an interview with the Roma community leader was available to view there.

The EU court also cut into the Hungarian law that led to www.444.hu’s case, and said it runs contrary to both the interests of a free press and an accessible internet.

“It must be noted that the relevant Hungarian law, as interpreted by the competent domestic courts, excluded any meaningful assessment of the applicant company’s freedom-of-expression rights, in a situation where restrictions would have required the utmost scrutiny, given the debate on a matter of general interest,” the rights court wrote. “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.

“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 media company did not seek damages outside of the legal fees it was required to pay to the Jobbik party. The rights court ordered Hungary to reimburse those and pay the company’s legal fees related to this appeal.

Intervenors in the case included the European Publishers’ Council, the U.S.-based Media Law Resource Center, the Newspaper Association of America, Buzzfeed, Electronic Frontier Foundation, Mozilla, the European Roma Rights Centre and others.

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