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.