14
MAGYAR JETI ZRT v. HUNGARY JUDGMENT
demonstrated that it availed itself of the remedy alluded to by the
Government.
37. The Court accordingly concludes that the applicant company has
complied with the obligation to exhaust domestic remedies and that the
Government’s objection must be dismissed. It also notes that the application
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant company
38. The applicant company argued that the interference with its freedom
of expression had not been prescribed by law. It submitted that although
Article 78 § 2 of the Civil Code had established liability for dissemination
of injurious falsehoods, there had been no legislation or case-law stating that
hyperlinking was to be considered dissemination of information.
39. In its view, the Hungarian courts’ decisions had failed to account for
the specific features of hyperlinks and had applied to its case the standards
of more traditional forms of sharing actual content, which had not been
reasonably foreseeable. It explained that hyperlinking in itself did not
convey or communicate any information but merely pointed to its existence.
Furthermore, the standard applied by the domestic courts would have
entailed its liability even if the owner of the hyperlinked website had
modified the web page to include defamatory material that had originally
not been present.
40. The applicant company disputed that the protection of the reputation
of a political party could serve as a legitimate aim for the interference.
Relying on the Court’s case-law, it maintained that the limits of acceptable
public scrutiny were wider in relation to politicians, who had to have a
greater degree of tolerance to criticism.
41. In the applicant company’s submission, the interference had not been
necessary in a democratic society. It argued that the objective liability
standard as applied by the domestic courts had excluded any balancing
between the two protected values. Amongst other actions, by the application
of the objective liability rule, the domestic courts had not been able to
consider whether the applicant company had acted in good or bad faith or
what the purpose of the dissemination had been. In any event, the objective
liability standard was incompatible with the Court’s case-law.
42. The applicant company argued that had the domestic courts
undertaken a proper balancing exercise, they would have concluded that its
right to freedom of expression should have prevailed over Jobbik’s right to
reputation.
43. Firstly, the hyperlink had appeared in a balanced news report on a
matter of public interest. In its view, including the hyperlink in the article in