On 4 December 2018, the ECHR ruled that online news portals that post hyperlinks to external unlawful content cannot automatically be held liable (Magyar Jeti ZRT v. Hungary).
In the case brought before the ECHR, a company operating a news website was found liable by the Hungarian courts for posting a hyperlink to an interview on YouTube which was later found to contain defamatory content. The courts applied the standard of objective liability, irrespective of the question of whether the author and news portal had acted in good or bad faith and in line with their journalistic duties and obligations.
In its ruling, the ECHR emphasised that hyperlinks contribute to the smooth operation of the internet as they enable the sharing of information. Objective liability could have negative consequences on the online flow of information as authors and publishers might feel compelled to altogether abstain from hyperlinking. The ECHR also distinguished between hyperlinks and traditional publications, as the former do not present or communicate information, but merely direct users to information available elsewhere on the internet. Also, the person who posts a hyperlink does not control the information which it contains, and the information can subsequently change. Furthermore, the content posted through the hyperlink has already been made available by the original publisher, implying unrestricted access by the public.
In light of these elements, the ECHR did not agree with the Hungarian courts’ finding that the posting of a hyperlink equated with the dissemination of defamatory information, leading to objective liability. The ECHR found that liability required an individual assessment in each case, taking into account several elements. These include, among others: (i) whether the journalist repeated or endorsed the content, (ii) whether the journalist knew or could reasonably have known that the content was unlawful, and (iii) whether the journalist acted in good faith.
In the case at hand, the Court noted that the author of the article merely mentioned that the interview was available on YouTube and posted a link to it, without commenting on it, repeating or endorsing any of its content. The Court also considered that the author could reasonably presume that the contents to which he provided access, although perhaps controversial, would remain within the realm of permissible criticism of political parties and, as such, would not be unlawful. In view of these findings and of the fact that the Hungarian courts excluded any meaningful assessment of the news portal’s freedom-of-expression rights under Article 10 of the Convention, the ECHR ruled that the news portal had suffered a disproportionate restriction on its right to freedom of expression.
The ECHR’s ruling is also interesting in view of the case law of the Court of Justice of the European Union on hyperlinking to copyright-protected content made available without the consent of the copyright holder. In the much discussed GS Media case (C-160/15), the Court of Justice ruled that, when the posting of hyperlinks to such copyright-protected works is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned has not been unlawfully published on the website to which the hyperlink leads. Therefore, according to the Court of Justice, it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder, which would constitute copyright infringement. It is up to the person who posted the hyperlink for profit to rebut this presumption of knowledge.
For further information or general legal advice relating to this matter or media law in general, please contact Karel Janssens.