18
MAGYAR JETI ZRT v. HUNGARY JUDGMENT
on their use. Hyperlinks contributed to the development of new media,
providing greater (a) interactivity between journalists and readers;
(b) credibility, by giving context, facts and sources to support the
information; (c) transparency, by allowing readers to trace back the
reporting and news gathering process; and (d) critical reading, by allowing
journalists and readers to compare contrasting sources. Hyperlinks allowed
non-editorial decentralised speech that supplemented the watchdog role
traditionally associated with the mainstream media. Applying strict liability
rules for hyperlinking would inevitably lead to self-censorship.
55. The European Roma Rights Centre maintained that when minorities
targeted by hate crimes or hate speech associated those acts with politicians
or political parties, they engaged in expression for which Article 10 of the
Convention provided a high level of protection. In the intervening NGO’s
submission, it was a severe interference with the rights of Roma, especially
having regard to the long-term exclusion faced by them, to be prohibited
from expressing the link between racist speech and acts and the politicians
or political parties they perceived as promoting an environment of racial
hatred. Using defamation laws to prevent the Roma minority from
articulating the racially motivated practices of political parties would only
protect those political parties against the minority group. The intervener also
argued that exposing online publishers to liability for the content of linked
material would have a chilling effect and unduly burden civil society’s and
minorities’ work against racism.
2. The Court’s assessment
(a) Whether there has been an interference
56. The Court notes that it was not in dispute between the parties that the
applicant company’s freedom of expression guaranteed under Article 10 of
the Convention had been interfered with by the domestic courts’ decisions.
The Court sees no reason to hold otherwise.
57. Such an interference with the applicant company’s right to freedom
of expression must be “prescribed by law”, have one or more legitimate
aims within the meaning of paragraph 2 of Article 10, and be “necessary in
a democratic society”.
(b) Lawfulness
58. In the present case the parties’ opinion differed as to whether the
interference with the applicant company’s freedom of expression had been
“prescribed by law”. The applicant company argued that it had not been
foreseeable under domestic law that the posting of a hyperlink would
qualify as dissemination of untrue or defamatory information. The
Government referred to Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil
Code and argued that the applicant company had been liable for imparting
and disseminating private opinions expressed by third parties.
59. The Court reiterates that the expression “prescribed by law” in the
second paragraph of Article 10 not only requires that the impugned measure