Internet
II. RELEVANT DOMESTIC LAW 23. The relevant provisions of the Fundamental Law read as follows: Article VI “(1) Everyone has the right to have his or her private and family life, home, communications and reputation respected. ...” Article IX “(1) Everyone shall have the right to freely express his or her opinion. (2) Hungary shall recognise and protect the freedom and pluralism of the press, and ensure the conditions for freedom of information necessary for the formation of democratic public opinion.” 24. The Constitutional Court Act provides as follows: Section 27 “Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 § 2 (d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings (a) violates the complainant’s rights enshrined in the Fundamental Law, and (b) the complainant has already exhausted the available legal remedies or no legal remedy is available. ...” Section 29 “The Constitutional Court shall admit constitutional complaints if a conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance. ...” 17. Legal consequences of the decisions of the Constitutional CourtSection 39 “(1) Unless provided for otherwise by this Act, the decisions of the Constitutional Court are binding on everyone. (2) There shall be no remedy against the decisions of the Constitutional Court. (3) The Constitutional Court shall itself establish the applicable legal consequences within the framework of the Fundamental Law and of this Act.” Section 43 “(1) If the Constitutional Court, in the course of proceedings before it as specified in section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall annul the decision. (2) For the procedural legal consequences of the Constitutional Court’s decision annulling a judicial decision, the provisions of the codes on court procedures shall be applicable. (3) In court proceedings following the annulment of a judicial decision by the Constitutional Court, the decision of the Constitutional Court shall be binding as regards the issue of constitutionality. (4) The Constitutional Court, when annulling a judicial decision, may also annul judicial decisions or the decisions of other authorities which were reviewed by the decision in question. ...” 25. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides: Article 75 “(1) Personality rights shall be respected by everyone. Personality rights are protected under this Act. (2) The rules governing the protection of personality rights are also applicable to legal personalities, except in cases where such protection can, owing to its character, only apply to private individuals. (3) Personality rights shall not be violated by conduct to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void.” Article 78 “(1) The protection of personality rights shall also include the protection of reputation. (2) In particular, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation.” III. RELEVANT INTERNATIONAL LAW AND PRACTICE 26. Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet was summarised as follows in Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no. 33014/05, ECHR 2011 (extracts)): “29. At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication. 30. It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings. 31. The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included a recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.” 27. 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 Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states: – adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents; – review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people’s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship; – apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society; ... Appendix to Recommendation CM/Rec(2011)7 Criteria for identifying media and guidance for a graduated and differentiated response Introduction 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe. ...” 28. 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: “No one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.” 29. 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 were freely available on another website without the consent of the copyright holder, constituted a “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: “45. In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information. ... 47. For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. 48. Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13 February 2014, Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 18 to 23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention. 49. In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” 30. In 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. The Federal Constitutional Court 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. 31. 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 publication of the defamatory statements. It held that a person could not defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, in particular: “Hyperlinks are in essence references, which are fundamentally different from other acts of ‘publication’. Hyperlinks and references both communicate that something exists, but do not themselves communicate its content. ... A hyperlink, by itself should never be seen as ‘publication’ of the content to which it refers. ... Only when the person or organisation doing so presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by that person or organisation.” 32. 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 LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33. 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: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 34. The Government argued that the applicant company had failed to exhaust domestic remedies since it had not challenged the final judgment before the Constitutional Court. 35. The applicant company argued that it had exhausted all available remedies. 36. The Court notes that on 15 January 2018 the applicant company’s representative submitted to it the Constitutional Court’s decision of 19 December 2017 (no. 3002/2018.(I.10.)AB) (see paragraph 20 above). The Court is therefore satisfied that the applicant company has in fact demonstrated that it availed itself of the remedy alluded to by the Government. 37. The Court accordingly concludes that the applicant company has complied with the obligation to exhaust domestic remedies and that the Government’s objection must be dismissed. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant company 38. The applicant company argued that the interference with its freedom of expression had not been prescribed by law. It submitted that although Article 78 § 2 of the Civil Code had established liability for dissemination of injurious falsehoods, there had been no legislation or case-law stating that hyperlinking was to be considered dissemination of information. 39. In its view, the Hungarian courts’ decisions had failed to account for the specific features of hyperlinks and had applied to its case the standards of more traditional forms of sharing actual content, which had not been reasonably foreseeable. It explained that hyperlinking in itself did not convey or communicate any information but merely pointed to its existence. Furthermore, the standard applied by the domestic courts would have entailed its liability even if the owner of the hyperlinked website had modified the web page to include defamatory material that had originally not been present. 40. The applicant company disputed that the protection of the reputation of a political party could serve as a legitimate aim for the interference. Relying on the Court’s case-law, it maintained that the limits of acceptable public scrutiny were wider in relation to politicians, who had to have a greater degree of tolerance to criticism. 41. In the applicant company’s submission, the interference had not been necessary in a democratic society. It argued that the objective liability standard as applied by the domestic courts had excluded any balancing between the two protected values. Amongst other actions, by the application of the objective liability rule, the domestic courts had not been able to consider whether the applicant company had acted in good or bad faith or what the purpose of the dissemination had been. In any event, the objective liability standard was incompatible with the Court’s case-law. 42. The applicant company argued that had the domestic courts undertaken a proper balancing exercise, they would have concluded that its right to freedom of expression should have prevailed over Jobbik’s right to reputation. 43. Firstly, the hyperlink had appeared in a balanced news report on a matter of public interest. In its view, including the hyperlink in the article in question had been a technique of reporting that the press should remain free to opt for. Moreover, it had been established by the domestic courts that the journalist who had written the article including the hyperlink had acted in accordance with his professional obligations, among other things, by verifying the information available on YouTube. The applicant company also pointed out that Jobbik had had the option of bringing a claim against the author of the comments. Lastly, while providing access to the YouTube video through a hyperlink had not had a significant impact on Jobbik’s reputation, the domestic court judgment finding the applicant company liable for third-party statements had had far-reaching implications for the press when producing online journalistic content. Concerning this latter aspect, the applicant company noted that given the chilling effect caused by automatic liability for defamation based on the use of hyperlinks, journalists and online news portals would refrain from including hyperlinks in their publications, restricting the cross-referential structure of the Internet and users’ access to information. (b) The Government 44. The Government conceded that there had been an interference with the applicant company’s right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had also acted within their margin of appreciation. 45. Firstly, under Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil Code, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a fact relating to another person, constituted defamation. Furthermore, the protection of the personality rights of others, that is to say the right to reputation, constituted a limit to the right to freedom of expression. 46. The Government were of the opinion that the court judgments against the applicant company could have been avoided had the applicant company acted with due care and had it not published the hyperlink leading to the video recording. The statement by J.Gy. had been expressed in definite terms and could not be viewed as an expression of an opinion but rather as a statement of fact. It had not reflected objective reality and had been capable of negatively affecting society’s opinion of the defendant, and irrespective of the applicant company’s good or bad faith, the dissemination of the statement had infringed the political party’s right to reputation. 47. The Government asserted that publishers of recordings should foresee that they would be held liable for content which they had failed to verify. Otherwise, serious human-rights violations could be committed without any sanctions. In their understanding, distribution of information meant transmitting or communicating information as thought which could infringe the rights of others even if the distributor did not agree with the content of the third-party statement or if he or she wrongfully relied on the veracity of the statement. Reiterating the arguments of the domestic courts, the Government emphasised that making unlawful content accessible in any way constituted distribution of information, for which the distributor should bear objective liability, irrespective of his or her good or bad faith or the seriousness of the infringement of others’ rights. Furthermore, this standard did not entail a limitation of freedom of expression and did not impose an undue burden on publishers. 48. The Government also pointed out that the applicant company was a professionally operated for-profit Internet portal, which could easily have foreseen the legal consequences of making accessible the video-recording in question. It could reasonably have been expected to act with due care and could have removed the hyperlink without any difficulty. 49. Thus, in the Government’s opinion the domestic courts had struck a fair balance between the competing interests of the applicant company and the political party, regard being had in particular to the insignificant consequences of the final judgment for the applicant company in terms of paying the court fees and publishing the relevant parts of the judgment. (c) The third parties 50. Article 19 argued that there was a fundamental difference between the use of a hyperlink to another web page and the publication of the content on the linked web page, since hyperlinks only referred readers to content that had already been published elsewhere. Without hyperlinks, most of the information on the Internet would be difficult or impossible to find and accessibility of information on the Internet would be reduced. Article 19 referred to comparative-law material concerning judicial decisions in Canada, the United Kingdom, Australia and the United States, in particular, showing that hyperlinks alone did not constitute publication but were merely reference tools, similar to footnotes, offering readers the possibility of pursuing further reading of separate publications. Another reason, in the intervener’s opinion, to exclude liability for hyperlinking was that the linked content was liable to change over time without the person who used the hyperlink being made aware of it. Furthermore, in Article 19’s submission, no liability should be imposed unless the person who used the hyperlink was aware that the linked content was unlawful and where the hyperlink was presented in such a way as to expressly endorse the linked content. Lastly the intervener emphasised that holding someone who used a hyperlink liable for third-party content would have the far ‑ reaching consequence that a wide range of groups could be penalised for the content of websites over which they had no control, resulting in a chilling effect limiting Internet users’ access to information. 51. The European Publishers’ Council, the Media Law Resource Center Inc., the Newspaper Association of America, BuzzFeed, Electronic Frontier Foundation, Index on Censorship, Professor Lorna Woods, Dr Richard Danbury and Dr Nicole Stremlau jointly submitted that hyperlinking had a number of public-interest benefits, including facilitating the journalistic process by enabling content to be delivered more swiftly and assisting journalists in reporting in a more concise and readily accessible manner, enabling readers to check for themselves the original sources of the journalistic content and thereby to verify the veracity of the publication. Hyperlinking also promoted diversity within the media and facilitated an informed public debate by allowing information and opinions to be more freely expressed and accessed. In the interveners’ submission, the imposition of strict liability for hyperlinking had a chilling effect, since journalists were not in a position themselves to verify the legality of the content on any linked pages and as a consequence would rather refrain from this reporting technique in favour of a more traditional approach. They also pointed out that in practice hyperlinked content could itself be changed so that it ceased to be lawful by the entity which controlled the relevant web page, for which it would be unreasonable to hold the journalist responsible. The imposition of strict liability did not meet a pressing social need because anyone whose rights had been adversely affected by the placing of unlawful content online would be able to seek adequate protection by suing the person who had placed the unlawful content online and requesting that the injurious content be removed. The interveners accepted that there could be situations where a journalist’s or journalistic organisation’s liability arose, for example when they proclaimed specific unlawful content to be true or when they refused to remove a hyperlink to a web page which had been found by a court judgment to contain a substantial amount of illegal content. 52. Access Now, the Collaboration on International ICT Policy in East and Southern Africa and European Digital Rights in their joint observations submitted that the design of the Internet was premised on the idea of free linking of information. They argued that hyperlinks were not in themselves intended to constitute editorial statements and did not necessarily imply, in particular, that one publication endorsed the other. Hyperlinks merely pointed to other pages or web resources, whose content, conversely, could change after the first hyperlink had been posted. In the interveners’ submission, the imposition of an objective-liability standard was unworkable, requiring individual users to assume that any hyperlink they posted pointed to content they could verify. 53. The Mozilla Foundation and Mozilla Corporation (collectively “Mozilla”) argued that the sole purpose of hyperlinks was to allow readers to navigate to and from information. Hyperlinks were technical and automatic means for users to access information located elsewhere and could not be considered to amount to publication of that information. A restriction on the use of hyperlinks would undermine the very purpose of the World Wide Web to make items of information accessible by linking them to each other. The intervener expressed doubts as to how people would be able to convey information across the countless number of web pages in existence today if hyperlinking could give rise to liability. Without hyperlinks, publishers would have to provide alternative instructions for readers to find more information. 54. The European Information Society Institute submitted that hyperlinks were a primary tool of digital navigation: they allowed immediate access to other texts, unlike traditional citation. They also had an impact on social interactions, which could easily be repressed by restrictions on their use. Hyperlinks contributed to the development of new media, providing greater (a) interactivity between journalists and readers; (b) credibility, by giving context, facts and sources to support the information; (c) transparency, by allowing readers to trace back the reporting and news gathering process; and (d) critical reading, by allowing journalists and readers to compare contrasting sources. Hyperlinks allowed non-editorial decentralised speech that supplemented the watchdog role traditionally associated with the mainstream media. Applying strict liability rules for hyperlinking would inevitably lead to self-censorship. 55. The European Roma Rights Centre maintained that when minorities targeted by hate crimes or hate speech associated those acts with politicians or political parties, they engaged in expression for which Article 10 of the Convention provided a high level of protection. In the intervening NGO’s submission, it was a severe interference with the rights of Roma, especially having regard to the long-term exclusion faced by them, to be prohibited from expressing the link between racist speech and acts and the politicians or political parties they perceived as promoting an environment of racial hatred. Using defamation laws to prevent the Roma minority from articulating the racially motivated practices of political parties would only protect those political parties against the minority group. The intervener also argued that exposing online publishers to liability for the content of linked material would have a chilling effect and unduly burden civil society’s and minorities’ work against racism. 2. The Court’s assessment (a) Whether there has been an interference 56. The Court notes that it was not in dispute between the parties that the applicant company’s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts’ decisions. The Court sees no reason to hold otherwise. 57. Such an interference with the applicant company’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims within the meaning of paragraph 2 of Article 10, and be “necessary in a democratic society”. (b) Lawfulness 58. In the present case the parties’ opinion differed as to whether the interference with the applicant company’s freedom of expression had been “prescribed by law”. The applicant company argued that it had not been foreseeable under domestic law that the posting of a hyperlink would qualify as dissemination of untrue or defamatory information. The Government referred to Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil Code and argued that the applicant company had been liable for imparting and disseminating private opinions expressed by third parties. 59. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed. The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 123 ‑ 25, ECHR 2016 (extracts), and the cases cited therein). 60. The Court observes that the domestic courts found that the posting of a hyperlink had amounted to the dissemination of defamatory statements and chose to apply Article 78 of the Civil Code. It also notes that there was neither explicit legal regulation nor case-law on the admissibility and limitations of hyperlinks. 61. However, given its conclusion below about the necessity of the interference (see paragraph 84 below), it considers that it is not necessary to decide on the question whether the application of the relevant provisions of the Civil Code to the applicant company’s situation was foreseeable for the purposes of Article 10 § 2 of the Convention. (c) Legitimate aim 62. The Government submitted that the interference had pursued the legitimate aim of protecting the rights of others. The Court accepts this. (d) Necessary in a democratic society (i) General principles 63. The fundamental principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, ECHR 2015, and the cases cited therein). 64. The Court reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Bédat v. Switzerland [GC], no. 56925/08, § 58, ECHR 2016). In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance (see Stoll v. Switzerland [GC], no. 69698/01, § 104, ECHR 2007 ‑ V). 65. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, and the cases cited therein). 66. As regards the importance of Internet sites in the exercise of freedom of expression, the Court has found that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet has played an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Egill Einarsson v. Iceland, no. 24703/15, § 46, 7 November 2017). Because of the particular nature of the Internet, the “duties and responsibilities” of Internet news portals for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content (see Delfi AS, cited above, § 113). Although Internet news portals are not publishers of third-party comments in the traditional sense, they can assume responsibility under certain circumstances for user-generated content (see Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 62, 2 February 2016). 67. Concerning information society service providers (“ISSPs”) which store information provided by a recipient of their services, the Court has indicated in respect of an Article 8 complaint that in line with the standards on international law, ISSPs should not be held responsible for content emanating from third parties unless they failed to act expeditiously in removing or disabling access to it once they became aware of its illegality (see Tamiz v. the United Kingdom (dec.), no. 3877/14, 19 September 2017). 68. Lastly, the Court has held 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 technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned (see Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011 (extracts)). The absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (ibid., § 64). (ii) Application of those principles to the present case 69. The Court considers that the present case concerns the “duties and responsibilities” of an Internet news portal, for the purposes of Article 10 of the Convention, in the particular situation where in an online article it included a hyperlink leading to content, available on the Internet, which was later held to be defamatory. The domestic courts found that the posting of such a hyperlink automatically qualified as the publication of the defamatory statement, which finding entailed the objective liability of the journalist and the news portal run by the applicant company. The question before the Court is therefore whether the ensuing interference with the applicant company’s rights under Article 10 of the Convention was, in the particular circumstances, based on relevant and sufficient reasons and consequently necessary in a democratic society. 70. The Court observes that the Internet news portal in question is professionally run, publishes some seventy-five articles on a wide range of topics every day, and attracts a daily readership of about 250,000. 71. The Court notes that the practice of the domestic courts exempted publishers from civil liability for reproduction of statements made at press conferences, provided that they reported on a matter of public interest in an unbiased and objective manner, distinguished themselves from the source of the statement and gave an opportunity to the person concerned to comment on the statement (see paragraph 21 above). However, no such immunity existed for the dissemination of false or defamatory information falling outside the scope of press conferences, where the standard of objective liability applied, irrespective of the question of whether the author or publisher acted in good or bad faith and in compliance with their journalistic duties and obligations. 72. The Court reiterates that it has previously noted with approval that the differentiation as regards third ‑ party content between an Internet news portal operator and a traditional publisher was in line with the international instruments in this field, which manifested a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audiovisual media on the one hand and Internet ‑ based media operations on the other (see Delfi AS, cited above, §§ 112-13). 73. Furthermore, 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 characterised by the availability of an immense amount of information. Hyperlinks contribute to the smooth operation of the Internet by making information accessible through linking it to each other. 74. Hyperlinks, as a technique of reporting, are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet. 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. 75. 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 content controlled by the same person. 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. 76. Consequently, given the particularities of hyperlinks, the Court cannot agree with the domestic courts’ approach equating the mere posting of a hyperlink with the dissemination of defamatory information, automatically entailing liability for the content itself. Instead, it considers that the issue of whether the posting of a hyperlink may justifiably, from the perspective of Article 10, give rise to such liability requires an individual assessment in each case, regard being had to a number of elements. 77. The Court identifies in particular the following aspects as relevant for its analysis of the liability of the applicant company as publisher of a hyperlink: (i) did the journalist endorse the impugned content; (ii) did the journalist repeat the impugned content (without endorsing it); (iii) did the journalist merely include a hyperlink to the impugned content (without endorsing or repeating it); (iv) did the journalist know or could he or she reasonably have known that the impugned content was defamatory or otherwise unlawful; (v) did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism? 78. In the present case the Court notes that the article in question simply mentioned that an interview conducted with J.Gy. was to be found on YouTube and provided a means to access it through a hyperlink, without further comments on, or repetition even of parts of, the linked interview itself. No mention was made of the political party at all. 79. The Court observes that nowhere in the article did the author imply in any way that the statements accessible through the hyperlink were true or that he approved of the hyperlinked material or accepted responsibility for it. Neither did he use the hyperlink in a context that, in itself, conveyed a defamatory meaning. It can thus be concluded that the impugned article did not amount to an endorsement of the impugned content. 80. In connection with the question of repetition, the Court reiterates that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III § 62; and Novaya Gazeta and Milashina v. Russia, no. 45083/06, § 71, 3 October 2017). A general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas (see Thoma, cited above § 64). With these principles in mind, the Court would not rule out the possibility that, in certain particular constellations of circumstances, even the mere repetition of a statement, for example in addition to a hyperlink, may potentially engage the question of liability. This could include situations where a journalist does not act in good faith in accordance with the ethics of journalism and with the diligence expected in responsible journalism dealing with a matter of public interest (see in this respect, for example, Novaya Gazeta and Milashina, cited above, § 72). However, this was not the case in the present application, where, as observed above, the article in question repeated none of the defamatory statements, and the publication was indeed limited to posting the hyperlink. 81. As to whether the journalist and the applicant company knew or could reasonably have known that the hyperlink provided access to defamatory or otherwise unlawful content, the Court notes at the outset that the domestic courts, with the exception of the first-instance court, did not find this aspect relevant, and therefore did not examine it. The Court also considers that this issue 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. At this juncture, the Court reiterates that an attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to the personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137, and Axel Springer AG, cited above, § 83). Furthermore, the limits of acceptable criticism are wider as regards a politician – or a political party – as such than as regards a private individual. Unlike private individuals, politicians and political parties inevitably and knowingly lay themselves open to close scrutiny of their every word and deed by both journalists and the public at large, and must consequently display a greater degree of tolerance (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007 ‑ IV). 82. Relying on these principles, the Court considers that the journalist in the present case could reasonably have assumed that the content 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. Although the statements by J.Gy. were ultimately found to be defamatory because they implied, without a factual basis, that persons associated with Jobbik had committed acts of a racist nature, the Court is satisfied that such utterances could not be seen as clearly unlawful from the outset (contrast Delfi AS, cited above, §§ 136 and 140). 83. Furthermore, 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 under Article 10 of the Convention, in a situation where restrictions would have required the utmost scrutiny, given the debate on a matter of general interest. Indeed, the courts held that the hyperlinking amounted to dissemination of information and imposed 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 (see, mutatis mutandis, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 89). In the Court’s view, 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. 84. Based on the above, the Court finds that the domestic courts’ imposition of objective liability on the applicant company was not based on relevant and sufficient grounds. Therefore, the measure constituted a disproportionate restriction on its right to freedom of expression. 85. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 87. The applicant company did not submit any claim in respect of non-pecuniary damage. However, it claimed 597.04 euros (EUR) in respect of pecuniary damage. This sum corresponded to the amount which the applicant company had been ordered to pay in respect of court fees and to the plaintiff political party in respect of the latter’s legal costs in the domestic proceedings. 88. The Government contested this claim. 89. The Court accepts that there is a causal link between the violation found and the pecuniary damage alleged; it therefore awards the sum claimed in full. B. Costs and expenses 90. The applicant company also claimed EUR 1,792.20 for the costs and expenses incurred before the domestic courts, which comprised EUR 1,451.91 for lawyers’ fees amounting to 100 hours at an hourly rate of 16 United States dollars (USD), and EUR 340.29 for lawyers’ fees amounting to fifteen hours at an hourly rate of USD 25. The applicant company also claimed EUR 2,357.19 for costs and expenses incurred before the Court, which comprised EUR 2,060 for translation costs and EUR 297.19 for organisational costs. The applicant company’s total claim for costs and expenses came to EUR 4,149.39. 91. The Government contested these claims. 92. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,149.39 covering costs under all heads. C. Default interest 93. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It underscored in particular the importance of hyperlinking for the smooth operation of the Internet and distinguished the use of hyperlinks from traditional publishing – hyperlinks directed people to available material rather than provided content. Updating its case-law on these issues, the Court set down elements which need to be considered under Article 10 when looking at whether posting a hyperlink could lead to liability and said that an individual assessment was necessary in each case. In the present case, the Court found that the Hungarian domestic law on objective (strict) liability for disseminating defamatory material had excluded the possibility of any meaningful assessment of the applicant company’s right to freedom of expression in a situation where the courts should have scrutinised the issue carefully. Such objective liability for using a hyperlink could undermine the flow of information on the Internet, dissuading article authors and publishers from using such links if they could not control the information they led to. That could have a chilling effect on freedom of expression on the Internet. The Court therefore found that, overall, the applicant company had suffered an undue restriction of its rights.