16
MAGYAR JETI ZRT v. HUNGARY JUDGMENT
way constituted distribution of information, for which the distributor should
bear objective liability, irrespective of his or her good or bad faith or the
seriousness of the infringement of others’ rights. Furthermore, this standard
did not entail a limitation of freedom of expression and did not impose an
undue burden on publishers.
48. The Government also pointed out that the applicant company was a
professionally operated for-profit Internet portal, which could easily have
foreseen the legal consequences of making accessible the video-recording in
question. It could reasonably have been expected to act with due care and
could have removed the hyperlink without any difficulty.
49. Thus, in the Government’s opinion the domestic courts had struck a
fair balance between the competing interests of the applicant company and
the political party, regard being had in particular to the insignificant
consequences of the final judgment for the applicant company in terms of
paying the court fees and publishing the relevant parts of the judgment.
(c) The third parties
50. Article 19 argued that there was a fundamental difference between
the use of a hyperlink to another web page and the publication of the content
on the linked web page, since hyperlinks only referred readers to content
that had already been published elsewhere. Without hyperlinks, most of the
information on the Internet would be difficult or impossible to find and
accessibility of information on the Internet would be reduced. Article 19
referred to comparative-law material concerning judicial decisions in
Canada, the United Kingdom, Australia and the United States, in particular,
showing that hyperlinks alone did not constitute publication but were
merely reference tools, similar to footnotes, offering readers the possibility
of pursuing further reading of separate publications. Another reason, in the
intervener’s opinion, to exclude liability for hyperlinking was that the linked
content was liable to change over time without the person who used the
hyperlink being made aware of it. Furthermore, in Article 19’s submission,
no liability should be imposed unless the person who used the hyperlink
was aware that the linked content was unlawful and where the hyperlink
was presented in such a way as to expressly endorse the linked content.
Lastly the intervener emphasised that holding someone who used a
hyperlink liable for third-party content would have the far-reaching
consequence that a wide range of groups could be penalised for the content
of websites over which they had no control, resulting in a chilling effect
limiting Internet users’ access to information.
51. The European Publishers’ Council, the Media Law Resource Center
Inc., the Newspaper Association of America, BuzzFeed, Electronic Frontier
Foundation, Index on Censorship, Professor Lorna Woods, Dr Richard
Danbury and Dr Nicole Stremlau jointly submitted that hyperlinking had a
number of public-interest benefits, including facilitating the journalistic
process by enabling content to be delivered more swiftly and assisting
journalists in reporting in a more concise and readily accessible manner,
enabling readers to check for themselves the original sources of the