MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION 31 11. In addition, the Court refers to three types of subjective standard (mens rea)21: good faith, knowledge that the content to which the hyperlink makes reference is defamatory or otherwise unlawful, and constructive knowledge that it could be so. It is important to underscore that for the Court, as a matter of principle, liability for the use of hyperlinks is always subjective, even in the case of corporate liability. Moreover, the mens rea of the journalist must be determined “in the light of the situation as it presented itself to the author at the material time, rather than with the benefit of hindsight on the basis of the findings of the domestic courts’ judgments”22. This means that the journalist’s knowledge of the defamatory or otherwise unlawful nature of the content to which the hyperlink leads cannot be assessed according to the findings of the domestic courts delivered after the material time. I will return to this point below. 12. In order to impute liability to a journalist who uses hyperlinks it does not suffice to prove positive and actual knowledge (“Did the journalist know ...?”)23 of the unlawfulness of the content to which the hyperlink leads; there must be proof of bad faith on the part of the journalist. The Court’s mentioning of the general clause of “good faith” (“Did the journalist act in good faith ...?”)24 encapsulates an additional ground for exculpation with regard to respect for the ethics of journalism and the performance of the due diligence expected in responsible journalism. As a subjective requirement for liability, bad faith is the obverse of the exculpatory clause of “good faith”. 13. In view of the above, neither the mere use of a hyperlink nor the repetition of its content can be understood as a tacit expression of approval, adoption, ratification, promotion or condoning of the content to which it leads25. In order to impute liability, be it civil or criminal, there must be concrete evidence of endorsement by the journalist, who knowingly assumed the unlawful content as his or her own by means of explicit and unequivocal language. This endorsement corresponds to the publication or dissemination of the defamatory or otherwise unlawful content, which is equated to traditional forms of publication. When such endorsement is the expression of bad faith on the part of the journalist, the use of the hyperlink entails his or her liability, as well as that of his or her media company26. This subjective requirement follows the suggestion made in my dissenting opinion in Mouvement raëlien suisse, cited above. 22 Paragraph 81 of the judgment. 23 Paragraph 77 of the judgment. 24 Ibid. 25 See my separate opinion in Mouvement raëlien suisse, cited above, under the heading “The form of the speech”. 26 Paragraphs 28 and 30 of the judgment. The German Federal Court also held that “it is generally permitted to report on statements that illegally impair third parties’ rights of personality, despite the perpetuation or even amplification of the initial violation by means of the dissemination, if there is a predominant interest in the information and the 21