30 MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION content, a user facing a hyperlink is free to decide whether or not to move to the next website17. If the user does not make the independent choice to follow the link, the content will never be displayed to him or her. This freedom of choice is crucial for media users. Hyperlinking enables users more readily to access and check for themselves the original sources of the journalistic content and to have a large measure of control over how they consume the content: they can either go no further than the journalistic content proffered to them or they can selectively look behind that content as they see fit. Hence, hyperlinking empowers the user in a manner that strongly serves the public interest. The Court’s criteria for assessing liability for the use of hyperlinks 8. In view of these distinguishing features, the Court refers, in general terms, to the relevant criteria for assessing the liability of natural and legal persons for the use of hyperlinks. The criteria are the following: “(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?” 18 9. The first thing to be noted is that the Court sets out to describe exhaustively the objective and subjective criteria for assessing all possible scenarios involving the use of hyperlinks by journalists. Although the Court considers hyperlinks “essentially different from traditional acts of publication”19, it refers to criteria applicable to traditional acts of publication, like the print media, in order to deal also with those scenarios in which the use of hyperlinks equates to acts of publication20. 10. As a matter of fact, the Court identifies three types of conduct (actus reus) on the part of journalists using hyperlinks: hyperlinks with endorsement of the content to which they lead, hyperlinks with repetition of the content to which they lead, and mere hyperlinking without any endorsement or repetition of the linked content. These different factual situations call for different liability principles. The argument comes up also in the joint dissenting opinion of Judges Sajó, Lazarova Trajkovska and Vučinić in the case of Mouvement raëlien suisse, cited above. 18 The Court refers to “a number of elements” in paragraph 76 and to the “following aspects as relevant for its analysis” in paragraph 77. 19 Paragraph 74 of the judgment. 20 For example, paragraph 80 of the judgment, while referring to the liability of the hyperlinker, refers explicitly to the liability criteria set out for the traditional print media in Novaya Gazeta and Milashina v. Russia, no. 45083/06, § 72, 3 October 2017. 17