MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION 29 5. The above-mentioned principles of universality and decentralisation, which are especially important to the field of journalism, are bolstered by the Court’s view that domestic laws should allow “journalists to use information obtained from the Internet without fear of incurring sanctions”11. As a technique of reporting, hyperlinking facilitates and improves the journalistic process by enabling content to be delivered more swiftly to users and enabling journalists to convey information that is more readily accessible and digestible. It also promotes diversity and pluralism in the media, which is substantively in the public interest, since through hyperlinking large and small media organisations are able to work together in a mutually beneficial manner to provide enriched content to users. Typically, journalists and journalistic organisations are not in a position to reassure themselves as to the legality of the content on any linked pages. Even if it were assumed for the sake of argument that larger media organisations may to a certain extent be able to weather the legal risks attendant on hyperlinking, it is plainly the case that smaller journalistic organisations, with far more limited resources, would have no choice but to abandon hyperlinking. 6. Secondly, as also stressed by the Canadian Supreme Court, inserting a hyperlink gives the author “no control over the content in the secondary article to which he or she has linked”12. The content of the destination can change, even radically so, from the point in time when the hyperlink is first posted, without the hyperlinker having any control over it13. This line of argument is shared by the Court’s reasoning, which nevertheless introduces a caveat: the “natural exception being if the hyperlink points to content controlled by the same person”14. In that case, however, liability is not vicarious15. Furthermore, hyperlinking can often involve limited or no human editorial action, since most modern Web publication services, content management systems and social media applications include tools which enable automated or otherwise machine-assisted hyperlinking. 7. Thirdly, the Court adds that “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”16. In so far as a hyperlink is a mere reference to already existing content, it does not create new content. Since the hyperlink is normally far removed from the actual Editorial Board of Pravoye Delo and Shtekel, cited above, § 64. Crookes v. Newton, [2011] 3 R.C.S. 269, 285. See the references to this argument in both my dissenting opinion and the joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić in the case of Mouvement raëlien suisse, cited above. 13 The Court of Justice of the European Union also addressed this argument in GS Media BV v. Sanoma Media Netherlands BV and Others, Case C-160/15, paragraphs 45-46. 14 Paragraph 75 of the judgment. 15 The argument was also made in point III of the joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić in the case of Mouvement raëlien suisse, cited above. 16 Paragraph 75 of the judgment. 11 12