Published: March 17^th, 2019

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