MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION 27 CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE 1. European human rights law has developed strongly in favour of including the Internet within the ambit of internationally protected human rights, particularly the rights to free expression and a free press, and has specifically indicated that imposing liability for third-party content published on the Internet can seriously affect these protected rights. The new legal question posed by this case is whether a standard of objective liability for posting hyperlinks is compatible with these rights. The outcome of the present proceedings has implications for the everyday functioning of the Internet, given the importance of hyperlinks. The relevance of this case does not need to be further enhanced. This is the reason why, although in full agreement with the finding of a violation of Article 10 of the Convention, I would like to elaborate on the reasoning of the Court, in order to highlight its underlying principles as regards liability for the use of hyperlinks. The “distinguishing features” of hyperlinks 2. It has been the position of the Court that “the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned”1. The present judgment reaffirms this principle2. But the Court goes a step further in the characterisation of the “distinguishing features”3 of hyperlinks, stating that “[h]yperlinks, as a technique of reporting, are essentially different from traditional acts of publication ...”4. Three convincing reasons are invoked for this conclusion. 3. Firstly, hyperlinking does not convey “the linked statements to the audience or communicate its content”5. Instead, it merely communicates the existence of such information. This is also the position of the German Federal Constitutional Court, the Canadian Supreme Court, in Crookes v. Newton, and the United States Court of Appeals for the Third Circuit, in Philadelphia Newspapers, LLC, whose jurisprudence the Court cites and Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011. Paragraph 72 of the judgment. 3 The expression “distinguishing feature” is used in paragraph 75 of the judgment while the word “particularities” is used in the following paragraph. 4 Paragraph 74 of the judgment. 5 Paragraph 74 of the judgment. The point was also made in my dissenting opinion in Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, ECHR 2012, under the heading “The form of the speech”, as well as in point III of the joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić in the same case. 1 2