MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION 33 non-compliance with a domestic court order declaring such content unlawful and prohibiting its use, the journalist can be said to have deliberately contravened the ethics of responsible journalism and acted in bad faith31. 18. The Court accepts that in exceptional cases there may also be liability in a situation of constructive knowledge (“could reasonably have known”)32. For the assessment of constructive knowledge, the Court uses the due diligence obligations of responsible journalism which are based on the rules of ethics of journalism33. It can be said that a journalist could reasonably have known of the defamatory or otherwise unlawful content of the hyperlinked message where he or she did not respect the ethics of journalism and did not comply with the due diligence obligations of responsible journalism. Any lower subjective standard for liability would inevitably lead to self-censorship. 19. Finally, liability must be assessed by reference to the specific facts of the case rather than on a strict, blanket basis. Any regime of objective or strict liability for the use of hyperlinks is per se contrary to the above-mentioned Convention principles34. It could result in an infinite regress of liability whereby authors could be held liable for content on websites that may be accessed through a sequence of hyperlinks beginning with the author’s website. This is not a merely hypothetical scenario, as this case shows. without having obtained any license or permission of the copyright holders, the act of linking cannot by itself facilitate commission of infringement. As such, it shall not be deemed as aiding and abetting an act of copyright infringement” (Decision 2012 DO13748). http://eng.scourt.go.kr/eng/supreme/decisions/NewDecisionsView.work?seq=934&pageInd ex=1&mode=6&searchWord=). 31 Paragraph 28 of the judgment. This standard was also established by the Supreme Court of India in the landmark judgment of Shreya Singhal v. Union of India, where the court ruled that Internet intermediaries should not be required to exercise their own judgment as to whether content was unlawful and that the “actual knowledge” standard of liability could only be triggered after a party received knowledge through the medium of a court order or a notification from the appropriate government agency acting under the law ((2015) 5 SCC 1, at paragraphs 138-140, 180, 181). 32 Paragraph 77 of the judgment. The exceptional character of this subjective ground for liability is made clear in the Court’s reasoning, when paragraph 80 states that “[t]he Court would not rule out the possibility that, in certain particular constellations of circumstances, …”. 33 This is also the case in the traditional print and audiovisual media, since the Court acknowledges that journalists should be protected even in cases where they publish information that is subsequently revealed to be inaccurate, so long as they have made sufficient efforts to confirm the veracity of the information at the time (see Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, §§ 49-52, 21 September 2010). 34 Paragraph 84 of the judgment.