Don't Shoot the Messenger – On the Special Standing of Hyperlinks in Online Defamation Proceedings Following Magyar Jeti Zrt v. Hungary

ByDafna Dror-Shpoliansky.

In a recent judgment of the European Court of Human Rights (ECtHR), the Court ruled that imposing objective liability on a news website company for publishing a hyperlink is a disproportionate restriction on the company's right to freedom of expression.[1] The case brings up the complex discourse on the costs and benefits of freedom of expression in the world of online communication and social media.

In a nutshell, the applicant was a Hungarian private company that operates a popular news website. It published an article on an incident when a group of football supporters entered a school and threatened Roma minority students.[2]The article included a hyperlink which referred to an interview on YouTube, with a leader of the Roma minority who claimed that members of Jobbik, a political party in Hungary, were the ones who came and attacked the school. Consequently, the political party Jobbik initiated a defamation proceeding against the company and several other defendants including the media outlets that provided links to the impugned video.[3] The domestic courts in Hungary found that the content in the YouTube video indeed falsely conveyed the impression that the Jobbik had been involved in the incident in the school. According to the decision of the domestic courts, by publishing a hyperlink to the YouTube video, the company was objectively liable for disseminating its defamatory contents and thus infringed the political party's right to reputation.[4][5] In other words, the domestic courts found that posting of a hyperlink leading to content which was later held to be defamatory qualifies as the publication of defamatory contents and thus entails a finding of objective liability against the applicant's news portal.[6]

Following this decision, the applicant company brought the case before the ECtHR. The legal question before the Court was whether such interference with the applicant's freedom of expression is necessary in a democratic society, in accordance with the provision in article 10(2) of the European Convention on Human Rights.[7]

Unlike the domestic courts, the European Court held that the mere posting of a hyperlink does not qualify as dissemination of a defamatory content and should not entail liability for the content itself.[8] It concluded that imposing objective liability on the applicant company might lead publishers and journalists to refrain from hyperlinking completely; thus impeding the flow of information on the internet and resulting in a chilling effect on freedom of expression on the internet.[9] Therefore, according to the Court, such a measure is a disproportionate restriction in the Applicant's right to freedom of expression and a violation of Article 10 of the European Convention.[10] 

Essentially, the Court is basing its conclusion on "the unique features" of the hyperlink. Those features include mainly: (1) The indispensable nature of hyperlinks on the internet. According to the Court, hyperlinks are not merely a technical platform; they are essential instruments for making information accessible for users by helping them navigate an endless amount of information.[11] Imposing strict liability on every publication of a hyperlink would impede the easy navigation and operation of the internet.[12] (2) The difference between a hyperlink and an act of publication. Unlike a publication, a hyperlink does not deliver the content itself but only points to the existence of content which is located on another website.[13] They are "content neutral".[14] (3) The lack of control over the referred content. The content in the website to which the hyperlink leads might be changed, while the person who posted the hyperlink usually does not have control of it, and is usually not even aware of any changes that are made after the hyperlink was posted. (4) The content behind the hyperlink, is already, and independently, published and available.

Therefore, the Court asserts that imposing liability on the journalist who published the hyperlink could be justified only on a case-by-case basis and requires examination of several relevant elements. Primarily, whether the journalist knew that the referred content in the hyperlink was defamatory or otherwise unlawful, and whether the journalist endorsed or repeated the content in his/her article, or merely provided the hyperlink without any further reference.[15] The Court found that in this case the article merely provided access to the interview through the hyperlink without endorsing or repeating the content either directly or by inference;[16] the journalist merely mentioned that an interview with a leader of the Roma minority was available on YouTube.[17] The Court also asserted that the journalist could not have assumed that the content was unlawful.[18]

In its decision, the Court points to the struggle in adapting human rights protections to the digital age: the internet, according to the Court, has a "particular nature"; as such, the duties and responsibilities – in this specific case – of an internet news portal relating the right to freedom of expression - should be modified to some extent from those of a traditional publisher.[19] Nevertheless, the Court indicates that the criteria it chooses to use in order to assess the liability of the news website are based on parameters that are relevant for traditional publication,[20] particularly, the requirement for endorsement of the content of the hyperlink and the requirement to respect journalist ethics.[21]

It is important to note that the case dealt with the right to reputation of a political party, therefore – unlike in the case of a private individual – the right to know and the public interest in information and expression would from the outset outweigh the right to reputation.[22]

Even so, looking at the principles that the ECtHR drew on, it seems that the Court’s analogy to traditional journalism has overlooked or at least underestimated the power of the mere act of “communicating existing content” in the age of the online world. Arguably, the article in question did not necessarily endorse, repeat or refer in any way to the content of the video, but it gave it additional stage and publicity by linking to it. Unlike a quote or a reference to a source in traditional journalism, in light of the rhythm and widespread nature of online media, greater responsibility attaches to the mere act of republishing a certain video.

Providing a link to a video in the digital realm has the potential to be highly influential due to some prominent features of the internet. The first is the internet’s ability to preserve information and thereby to make the information not only widespread, but also permanently available to the public. The phenomenon of “Content Permanency” was described by the privacy scholar Solove, who stated that “content which was in the past scattered and forgettable is becoming permanent and searchable".[23] This contrasts with the well-known perception of the traditional newspaper as “tomorrow’s fish and chip paper.” As one may recall, this feature had, inter alia, triggered recognition of the right to be forgotten in the famous ECJ Costeja case (later incorporated in the GDPR). This right now allows European users to ask to delete personal information about them by removing the links to the content that appears in a search engine[24] if a certain amount of time has passed, even if the content itself is not harmful but simply no longer necessary.[25] 

Another relevant feature of the ןnternet is the so-called "Aggregation Problem". This refers to the fact that in the digital age, information can be easily assembled and thus, even details that were traditionally considered as neither private, nor harmful, nor defamatory, when collected together create a kind of 'digital profile' of an individual or an entity that does not necessarily accurately reflects their real tangible identity.[26] 

These two features lead to another complication, namely the problem of inconsistency and lack of transparency. Without any transparent reason, much of the information online disappears within days or months, while other pieces of harmful content can remain forever.[27]

To conclude this point, when dealing with the reputation of a person, or even an entity, it is hard to ignore the “online circumstances,” and above all the fact that pieces of information including videos can disseminate and float in cyberspace without any distinction, sometimes forever. Thus, linking to a video might have far-reaching implications, even without endorsing the content and even if the content that appears in the hyperlink does not necessarily fall into one of the categories of harmful or defamatory contents. Therefore, one must use hyperlinking with the requisite care.[28]

Proper attention should also be paid to the fact that in the Magyar Jeti Zrt case, the publisher runs a popular online news portal.[29] In fact, the identity of the publisher, whether a private individual, a blogger, or a large-scale news company, was not viewed by the Court as a relevant aspect in assessing liability of a publisher of a link.[30]

This is surprising in light of the immense implications that even an unintentional mistake in reporting might have today in the digital realm. This consideration could have lead to assume a stricter level of expectations or responsibility from a professional news website. It is true that according to the Court's decision, no intent to disseminate defamatory content was found and of course that this case is very far from a fake news incident (which generally describes articles that are "intentionally and verifiably false and could mislead readers.")[31] Yet again, the scale of the implications, emphasizes the gap between online and offline reporting and hence affirms the limitations of traditional protections of the right to reputation. This dissonance is evident also by the fact that the Court stressed the importance of maintaining compliance with journalistic ethics in today's world, which is characterized by a vast amount of information.[32] Such an approach does not necessarily correspond with the reality of the digital world, which is teeming with writers and bloggers, and where private users of social platforms are typically not committed in any way to journalistic ethics.

Indeed, the Court rightly concluded that imposing strict liability is akin to "throwing the baby out with the water". It is not the proper way of dealing with the implications of posting a hyperlink because it will create a chilling effect and impose an excessive restriction on the right to freedom of expression. The fact that the case discusses the right to reputation of a political party obviously supports this conclusion. However, while the Court prioritized the right to free expression in the digital arena, emphasizing its new features, the alternative criteria that the Court provided for assessing liability in this type of cases, are neither sufficient nor well enough developed to address the new challenges of protecting the right to reputation in the digital age. This highlights the need to develop norms that are adjusted for the digital arena, in particular regarding the proper balance between the right to free expression and the right to reputation and privacy.

* This blog post was written in my personal capacity. It does not necessarily reflect the views of Israel’s Ministry of Justice and/or the Israeli government

 

[1] European Court of Human Rights, Application no. 11257/16, Magyar Jeti Zrt v. Hungary (4.12.2018). European Convention on Human Rights (CTE no. 14), Article 10.

[2] Ibid, p. 2, para 9.

[3] Ibid, pp. 2-3, para 6-12.

[4] Ibid p. 3, para 12.

[5] Ibid p. 7, paras 20-22; p. 19, para 60.

[6] Ibid p. 20, para 69; p. 8, para 22; p. 19. para 60.

[7] Ibid p. 20, para 69.

[8] Ibid p. 21, para 76.

[9] Ibid p. 23, paras 83-84.

[10] Ibid p. 24, para 84.

[11] Ibid p. 21. para 73.

[12] Ibid p.21, para 73; p. 27, para 4: Hyperlinks are the glue that holds the Web together in so far as they enable people to easily and quickly navigate to other webpages to retrieve, view, access and re-share information. Without hyperlinks, publishers would have to provide alternative instructions for readers to find more information. For most ordinary people, this would be difficult, if not impossible, to execute without a strong technological background.

[13] Ibid p. 21, para 74.

[14] Ibid p. 27, para 3.

[15] Ibid p. 22, paras 77-80: 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 an 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? ….With these principles in mind, the Court would not exclude that, in certain particular constellations of elements, even the mere repetition of a statement, for example in addition to a hyperlink, may potentially engage the question of liability.

[16] Ibid p. 22, paras 79, para 80.

[17] p. 22, para 78-80.

[18] p. 23, para 82.

[19] p. 20, para 66. P. 21, para 72

[20] p. 22, para 77, Also see Concurring opinion of Judge Pinto De Albuquerque p. 29, para 9 and 13:

…In order to impute liability, be it civil or criminal, there must be concrete evidence of endorsement by the journalist, who knowingly assumed the unlawful content as his or her own by means of explicit and unequivocal language. This endorsement corresponds to the publication or dissemination of the defamatory or otherwise unlawful content, which is equated to traditional forms of publication.

[21] Ibid p. 22, para 77.

[22] Ibid, p. 23, para 81: 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 the latter, the former inevitably and knowingly lays himself open to close scrutiny of his or her every word and deed by both journalists and the public at large, and he or she must consequently display a greater degree of tolerance.

[23] Solove, Daniel J., The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2007), p. 4, p. 33.: Viktor Mayer-Schönberger, The Virtue of Forgetting in the Digital Age. (Princeton University Press, 2009), p. 11; Ambrose, M.L., 2012. It's about time: privacy, information life cycles, and the right to be forgotten. Stan. Tech. L. Rev.16, p. 369

[24] European Court of Justice, Case C-131/12, Google Spain SL v. Ageficia Espanola de Protecci6n de Datos, Mario Costeja Gonzdlez, (13.5.2014). para 93-96 (Hereinafter: Costeja):"… It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed…"

[25] https://gdpr-info.eu/issues/right-to-be-forgotten/

[26] Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137 (2002), p. 1185I contend that the nature of the harm stems from what I call the "aggregation problem." Viewed in isolation, each piece of our day-to-day information is not all that telling; viewed in combination, it begins to paint a portrait about our personalities. The aggregation problem arises from the fact that the digital revolution has enabled information to be easily

amassed and combined. Paul M. Schwartz; Daniel J. Solove, The PII Problem: Privacy and a New Concept of Personally Identifiable Information, 86 N.Y.U. L. Rev. 1814 (2011), p. 1821, 1842.

[27] Ambrose, M.L., 2012. It's about time: privacy, information life cycles, and the right to be forgotten. Stan. Tech. L. Rev.16, pp. 368-369.

[28] Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 CALIF. LAW REV. 691, 693 (1986). Also see: Cheung, Anne S. Y. and Schulz, Wolfgang, Reputation Protection on Online Rating Sites (September 15, 2017). 21 Stanford Technology Law Review 310 (2018). ; University of Hong Kong Faculty of Law Research Paper No. 2017/026. Available at SSRN: https://ssrn.com/abstract=3037399 .

[29] Magyar, p. 21, para 70: The Court observes that the Internet news portal in question is professionally run, publishes some 75 articles in a wide range of topics every day, and attracts a readership of about 250,000 persons per day.

[30] Ibid, p. 22, para 77.

[31] Allcott, Hunt, and Matthew Gentzkow "Social media and fake news in the 2016 election." Journal of Economic Perspectives31.2 (2017): 211-36.(Albeit the term "Fake news" is still a controversial definition.)

[32] Magyar, p. 19, para 64.