Can a ban on the use of hyperlinks, leading to libelous content, violate freedom of expression?
By Lefteris Chelioudakis
On 4 November 2018, the European Court of Human Rights (ECHR) adjudged unanimously in its decision in the case Magyar Jeti Zrt v. Hungary that the prohibition to use hyperlinks leading to libelous content may violate the right of freedom of expression.
According to the facts of the case the applicant company (444.hu), which maintains a news website has been found guilty of disposal of libelous material by the national courts of Hungary. The main cause was that they had published an article that was hosting a hyperlink to an interview on Youtube, which was later found to contain libelous content.
Specifically, the bus that was transferring a group of hooligans, on its way to attend a football match, had parked in front of a school. The school had mostly Roma students, and the hooligans started shouting racist chants against them, throwing beer bottles, while one of the hooligans peed in front of the school. The children’s teacher called the police and the hooligans left only when the police arrived in point.
On the same day, the Head of the local Roma community gave an interview for the incident stating that the hooligans were members of the extremely right-wing Hungarian political party “Jobbik”.
The said interview has been made accessible on YouTube. The day after, 444.hu published an article on its website on the incident, attaching a hyperlink to the relevant interview.
In its decision, the ECHR underlined the importance of hyperlinks for the proper functioning of the Internet and made a distinction of hyperlinks from traditional publications, as the ones guide the users to available material and the others provide material.
The Court also found that the Hungarian law on strict liability for libelous material dissemination had excluded the possibility of any substantial assessment of the applicant company’s right on freedom of expression. Therefore, national courts should have examined the case more closely, as the relevant provisions could undermine the flow of information on the internet, preventing the use of hyperlinks by creators and issuers.
Moreover, the ECHR recalled that, for journalists, the protection of the right on freedom of expression of article 10 depends on the principle of good faith and the accuracy of factual elements, so that “reliable and precise” information are provided, according to journalistic ethics. Consequently, the protection provided from the specified right does not cover the possibility of spreading false news.
Lastly, the ECHR stressed that when third-party rights are at stake, it is necessary to achieve a fair balance between freedom of expression, as protected by Article 10 and the right to privacy as protected under Article 8 of the European Convention of Human Rights.