ECtHR: Lia­bi­li­ty for set­ting a link may vio­la­te Art. 10 ECHR (Magyar Zeti Zrt v. Hungary)

The Euro­pean Court of Human Rights (ECHR) has ruled in the Judgment MAGYAR JETI ZRT v. Hun­ga­ry of Decem­ber 4, 2018 (Com­plaint No. 11257/16). ruled that Hun­ga­ry had vio­la­ted the free­dom of expres­si­on within the mea­ning of Artic­le 10 of the ECHR by struc­tu­ring its lia­bi­li­ty law. The com­plainant was the ope­ra­tor of the web­site 444.huwhich had published a link to a video on You­Tube that was later jud­ged by a Hun­ga­ri­an court to inf­rin­ge per­so­nal rights. As a result, the ope­ra­tor of the web­site was orde­red to publish excerp­ts of the judgment on the web­site and to remo­ve the link.

The ECtHR sta­tes that the posting of a link may not be equa­ted with the dis­se­mi­na­ti­on of infor­ma­ti­on that vio­la­tes per­so­nal rights. Rather, a dutiful con­side­ra­ti­on of the indi­vi­du­al case is decisive:

76) Con­se­quent­ly, given the par­ti­cu­la­ri­ties of hyper­links, the Court can­not agree with the approach of the dome­stic courts con­si­sting of equa­ting the mere posting of a hyper­link with the dis­se­mi­na­ti­on of the defa­ma­to­ry infor­ma­ti­on, auto­ma­ti­cal­ly ent­ail­ing lia­bi­li­ty for the con­tent its­elf. It rather 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 put a hyper­link to the impug­ned con­tent (wit­hout endor­sing or repea­ting it); (iv) did the jour­na­list know or could 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?

In the pre­sent case, the­re were no indi­ca­ti­ons that the jour­na­list respon­si­ble was respon­si­ble, which is why the con­vic­tion of the ope­ra­tor vio­la­ted Art. 10 ECHR:

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.

Accor­din­gly, the­re has been a vio­la­ti­on of Artic­le 10 of the Convention.

Aut­ho­ri­ty

Area

Topics

Rela­ted articles

Sub­scri­be