Posted in ECHR, freedom of expression, hyperlinking, intermediaries, Liability of ISPs, secondary liability

ECtHR To Hear A Case About Liability For Hyperlinking [+ Intervention]

Internet case-law of the ECtHR will soon be enriched. Magyar Jeti Zrt v Hungary is a new important pending case. It concerns liability for hyperlinks in the domestic defamation law and its compatibility with freedom of expression.

The applicant is in the case is an operator of the Hungarian news portal 444.hu which is used by approximately 250,000 users per day. The applicant often utilises hyperlinks embedded in the published contents, which lead readers to relating materials published elsewhere. On 5 September 2013 a group of football supporters travelling to Romania stopped at an elementary school in Konyár, Hungary. The pupils of the school were predominantly of Roma origin. After getting off the bus, the football supporters made racist remarks, waved flags; and one of them allegedly urinated on the school building. Some minutes later the football supporters got back on the bus and left the village.

Mr J.Gy., the head of the local Roma minority self-government, accompanied by a parent and one of the children attending the school, gave an interview to a Roma minority media outlet on the same day. During the interview, he referred to persons related to Jobbik, a right-wing political party in Hungary, which had been previously criticised for its anti-Roma and anti-Semitic stance. The video was uploaded to Youtube.com the same day. On 6 September 2013 the applicant published an article on the incident on the 444.hu website that referred to reports concerning the events in Konyár and included an embedded text hyperlink leading to the video available on Youtube.com. The text of the article itself did not mention the term Jobbik. On 13 September 2013 Jobbik initiated legal proceedings against several respondents, including the applicant, the head of the local Roma minority self-government making the allegedly defamatory comment, the Roma minority media outlet recording the video uploaded on Youtube and the operators of other Hungarian news portals, alleging that its right to reputation had been violated by the Youtube video.

On 30 March 2014 the Debrecen High Court established the responsibility of six out of the eight respondents, including the applicant, in respect of the defamatory comments made in the video. Regarding the applicant, the court found that in making available the Youtube video by providing a hyperlink leading to it, it had disseminated the defamatory statements. On appeal, on 25 September 2014 the Debrecen Court of Appeal upheld the judgment. The applicant now compaints that this ruling is a disproportionate interference with its freedom of expression. 

It is without doubt that the decision of the Court will set important limits for the future of freedom of expression online. Therefore, on Monday, European Information Society Institute (EISi) filed its third party intervention also co-authored by me. The submission explains the importance of hyperlinks for the functioning of the Internet and illustrates how imposing restrictions on their use can have strong adverse effects for our society.
The brief was prepared by me, students of the Tilburg Law School (Bruno Bautista) and attorneys & affiliates of Law Firm TRINITI and University of Tartu (Karmen Turk and Maarja Pild), as part of an Internet Policy Clinic that I run at the Tilburg Institute for Law, Technology, and Society (TILT).
We urge the Court to take into consideration the special content-neutral nature of a hyperlink and of their importance for innovative journalism and decentralized non-editorial speech. In line with Thoma v. Luxemburg, hyper-linkers should not be subject to unnecessary obligations to distance themselves systematically and formally from the referred content. The hyperlinks are already understood by general public, as also evidenced in this brief, as opinion-neutral references. 
Any restriction on the dissemination of the information in a form of liability, also inevitably diminishes the value of initial authorship. A strict rule regarding liability for hyperlinking will inevitably lead to self-censorship and over-restriction of legitimate content which this court already outlawed as impermissible forms of collateral censorship. We urge the court to rely on its Grand Chamber ruling in Jersild v. Denmark by holding that “unless there are particularly strong reasons for doing so”, imposing civil liability for assisting in the dissemination of statements made by another person by means of hyperlinks is a breach Art. 10 of the Convention. The states should be bear a heavy burden to justify why a democratic society necessitates a rule that sanctions its own citizens, let alone its journalists, for merely referring to what other people say. 
As recognized by this court in Editorial Board of Pravoye Delo and Shtekel v. Ukraine, the states should even underlie a positive obligation to create an appropriate regulatory framework to ensure effective protection of journalists’ freedom of expression when the journalists are engaging with third party speech online. This obligation is in line with the explicit legislative approach of some of the states which created clear liability exemptions to prevent imposition of liability for referring to third party content in their own hyperlinks. Although European Union decided not to address this topic under the E-Commerce Directive, it left the possibility open to its Member States to decide whether or not to regulate hyperlinks in the context of commercial activities on internet.  Austria,  Liechtenstein,  Portugal  and Spain  have developed unambiguous liability exemptions for the provision of links to third party content. In other countries this is a standard outcome based on their national tort laws.  It is therefore usual to prevent any liability to be imposed on the person who sets a link as long as he/she has no actual knowledge that the information is unlawful,  and has no control over the content to which it refers.
The ‘particularly strong reasons’ for holding a hyper-linker liable should depend on ‘all the circumstances of the (..) case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression’, but also his/her privileged position (e.g. being a journalist). The ECtHR has already accepted that criminal liability can be imposed for a specific type of hyperlinks in case the person concerned (1) acts with the intent, (2) is not a journalist, and (3) the information that he links affords lower protection than political expressions (Neij and Sunde Kolmisoppi v. Sweden). Such circumstances should in any case remain exceptional in their nature.
Therefore, the rule accepted by the Hungarian court, imposing strict liability on the mere sharing of information, cannot be considered as a necessary interference with freedom of expression in a democratic society.
  • Magyar Jeti Zrt Intervention ECtHR (.pdf)

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