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17.12.2018

Hungary must pay damages for claiming defamation via hyperlink to YouTube

by Emil Weber

The European Court of Human Rights (ECtHR) on 4. December 2018 backed a Hungarian news portal for hyperlinking a Youtube video which, according to the domestic courts, contained “defamatory” remarks about an anti-Roma political party.

Building of the European Court of Human Rights Building of the European Court of Human Rights (photo: CherryX)

The ECtHR’s decision is highly relevant for media and journalists since hyperlinking has become a widely used reporting technique.

The popular news portal 444.hu, owned by Magyar Jeti Zrt, reported back in September 2013 on a case involving Hungarian football fans who, while travelling by bus towards Romania, had stopped in front of a school in the village of Konyár. Most of the school’s students were Roma. The fans shouted racist remarks, waved flags, threw beer bottles, and urinated in front of the school. The teachers reacted to protect the students by calling the police, took the students inside the school, and ordered some of them to hide under the tables.  

The news portal provided in its report a Youtube hyperlink of a video interview of a Roma local leader published by an outlet focused on Roma issues. The Roma leader had said among others that “Members of Jobbik […] attacked the school”.

The political party Movement for a Better Hungary, known as Jobbik, brought forward defamation proceedings arguing that the use of name “Jobbik” had infringed its reputation. The Debrecen High Court ruled that the interview conveyed the impression that the party was involved in the incident and that the company was liable for disseminating defamatory statements. It ordered the company to remove the hyperlink.

'Jobbik' associated with anti-Roma ideology

Still the company appealed, arguing that the world “Jobbik” had rather become a collective name for organisations with anti-Roma ideology in Hungary and that by disseminating the hyperlink it did not associate itself with the video’s content. The Debrecen Court of Appeal upheld the decision, and later the Constitutional Court dismissed the company’s complaint.

However, the European Court of Human Rights (ECtHR) has now ruled that the sanctioning of the news portal amounted to violation of article 10 of the European Convention on freedom of expression. It ordered Hungary to pay the company EUR 4,746.43 in pecuniary damages and court costs. 

The ECthR described the differences between hyperlinks as a reporting technique in comparison to traditional publications “They do not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website”, the court said. 

 “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 [...] 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”, it added.

In assessing the Hungarian case in question, the court said “nowhere in the article did the [the website] allude in any way that the statements accessible through the hyperlink were true or that [it] approved the hyperlinked material or accepted responsibility for it”.

The court said the article did not repeat the defamatory statements, but only published the hyperlink, and thus did not act in bad faith. 

It reiterated that the political parties must display a greater degree of tolerance to public scrutiny in comparison to private individuals.

ECtHR said it could not agree with the domestic courts in equating the  posting of a hyperlink with dissemination of defamatory information. 

 “[This] 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”, the court said. 

Potential chilling effect

According to the court, such actions could have consequences on the flow of information as authors and publishers could refrain from “hyperlinking to material over whose changeable content they have no control” and thus serve as a chilling effect on freedom of expression in the internet. 

In Reporters Without Borders’ World Press Freedom Index, the ranking of Hungary has continually declined since 2013 and currently stands at number 73 out of 180 countries.

The Freedom House’s profile for Hungary in 2018, says: “Roma, Hungary’s largest ethnic minority, continue to face widespread discrimination, societal exclusion, and poverty”.

Magyar Jeti Zrt v. Hungary, application no. 11257/16. 4 December 2018