22
MAGYAR JETI ZRT v. HUNGARY JUDGMENT
creation of the link – a natural exception being if the hyperlink points to
content controlled by the same person. Additionally, the content behind the
hyperlink has already been made available by the initial publisher on the
website to which it leads, providing unrestricted access to the public.
76. Consequently, given the particularities of hyperlinks, the Court
cannot agree with the domestic courts’ approach equating the mere posting
of a hyperlink with the dissemination of defamatory information,
automatically entailing liability for the content itself. Instead, it considers
that the issue of whether the posting of a hyperlink may justifiably, from the
perspective of Article 10, give rise to such liability requires an individual
assessment in each case, regard being had to a number of elements.
77. The Court identifies in particular the following aspects as relevant
for its analysis of the liability of the applicant company as publisher of a
hyperlink: (i) did the journalist endorse the impugned content; (ii) did the
journalist repeat the impugned content (without endorsing it); (iii) did the
journalist merely include a hyperlink to the impugned content (without
endorsing or repeating it); (iv) did the journalist know or could he or she
reasonably have known that the impugned content was defamatory or
otherwise unlawful; (v) did the journalist act in good faith, respect the ethics
of journalism and perform the due diligence expected in responsible
journalism?
78. In the present case the Court notes that the article in question simply
mentioned that an interview conducted with J.Gy. was to be found on
YouTube and provided a means to access it through a hyperlink, without
further comments on, or repetition even of parts of, the linked interview
itself. No mention was made of the political party at all.
79. The Court observes that nowhere in the article did the author imply
in any way that the statements accessible through the hyperlink were true or
that he approved of the hyperlinked material or accepted responsibility for
it. Neither did he use the hyperlink in a context that, in itself, conveyed a
defamatory meaning. It can thus be concluded that the impugned article did
not amount to an endorsement of the impugned content.
80. In connection with the question of repetition, the Court reiterates that
“punishment of a journalist for assisting in the dissemination of statements
made by another person in an interview would seriously hamper the
contribution of the press to discussion of matters of public interest and
should not be envisaged unless there are particularly strong reasons for
doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A
no. 298; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III § 62;
and Novaya Gazeta and Milashina v. Russia, no. 45083/06, § 71, 3 October
2017). A general requirement for journalists systematically and formally to
distance themselves from the content of a quotation that might insult or
provoke others or damage their reputation is not reconcilable with the
press’s role of providing information on current events, opinions and ideas
(see Thoma, cited above § 64). With these principles in mind, the Court
would not rule out the possibility that, in certain particular constellations of
circumstances, even the mere repetition of a statement, for example in