Hungary: International Arbitration And Litigation Practices Achieve Significant Judgment In Freedom Of Expression Case At The European Court Of Human Rights
Last Updated: 10 December 2018

On December 4, 2018, the International Arbitration and Litigation Practices at Wilmer Cutler Pickering Hale and Dorr LLP, acting alongside the Hungarian Civil Liberties Union (HCLU) and the Media Legal Defence Initiative (MLDI), obtained a significant judgment from the European Court of Human Rights (ECtHR) in Magyar Jeti Zrt v. Hungary. In a unanimous judgment, the ECtHR found a violation of the applicant's right to freedom of expression.

The central issue in this case was whether automatic liability, which the Hungarian courts call "objective liability," for posting hyperlinks on the internet is compatible with the rights to freedom of expression and press freedom. The ECtHR's judgment is an important clarification of the circumstances in which liability might exist for using hyperlinks, given the importance of hyperlinks in the everyday functioning of the internet. As Judge Pinto de Albuquerque explained in his concurring opinion, "[t]he outcome of the present proceedings has implications for the everyday functioning of the Internet, given the importance of hyperlinks."

The case concerned a decision by the Hungarian courts about the news site 444.hu, which had in an article posted a hyperlink to a video where statements were made about Jobbik, a right wing Hungarian political party. 444.hu posted the hyperlink without endorsing or repeating the content of the video. The applicant was Magyar Jeti Zrt, the company which owns 444.hu. The Hungarian court's judgment held the applicant liable for defamation because it had "disseminated" false statements through the mere act of hyperlinking.

The ECtHR found that the Hungarian courts had failed to distinguish between content and communicating the existence of content i.e. hyperlinking. The ECtHR criticised the Hungarian courts' continued application of an "objective liability" standard in defamation cases without regard to whether an author or publisher acted in good faith and in accordance with their journalistic duties and obligations. The "objective liability" approach precluded the balancing of interests and the individual assessment of the applicant's situation contrary to the ECtHR's case law.

The ECtHR also noted that the domestic courts had failed to consider that the content in question appeared in a news report on a matter of public interest (specifically, threats against Roma schoolchildren) and could be perceived as a permissible statement criticising a political party.

The judgment recognizes hyperlinking as a technique of reporting that is essentially different from traditional acts of publication in that it simply directs users to content available elsewhere on the internet. The judgment also explains that hyperlink does not communicate any content, but merely calls attention to the existence of content on another website. The ECtHR's decision also notes that a person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access.

Magyar Jeti Zrt was represented by the firm along with MLDI and HCLU. Partner Steven Finizio and senior associate Shouvik Bhattacharya led the firm's team.

MLDI is a non-governmental organization which helps journalists, bloggers and independent media outlets around the world defend their rights. Wilmer Cutler Pickering Hale and Dorr LLP is a pro bono partner of the organization.

Visit www.mediadefence.org to learn more.

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