34 MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION The Court’s principles as regards liability for the use of hyperlinks 20. On the basis of the above-mentioned objective and subjective criteria, the Court’s principles regarding liability for the use of hyperlinks can be summed up as follows: Principle 1: Where a journalist endorses, by means of explicit and unequivocal language, or repeats defamatory or otherwise unlawful content to which the hyperlink leads, the use of the hyperlink is equated to traditional forms of publication. Principle 2: Liability should be imposed only where a journalist knows (actual and positive knowledge) that the content to which the hyperlink leads is unlawful, and acts with bad faith. Exceptionally, liability may also be imposed where the journalist could reasonably have known (constructive knowledge) that the content was unlawful, in the light of professional ethics and the due diligence obligations of responsible journalism. Principle 3: Where a journalist uses a hyperlink and does not endorse or repeat the defamatory or otherwise unlawful content to which it leads, the use of the hyperlink is not equated to traditional forms of publication and does not entail liability, save in the case of non-compliance with a court order declaring such content unlawful and prohibiting its use. Principle 4: All defences available to primary publishers should be available to the journalist if he or she is subject to liability in respect of linked content. The journalist does not have an obligation to distance him or herself from the defamatory or otherwise unlawful content to which the hyperlink leads. Principle 5: The above-mentioned Convention principles require an individual assessment in each case, 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. Principle 6: Any regime of objective or strict liability for the use of hyperlinks is per se contrary to the above-mentioned Convention principles. Principle 7: These principles apply both to natural persons (the journalists) and legal persons (the media companies). Application of the Court’s principles to the case at hand 21. The Hungarian courts held the applicant company liable for defamation for “dissemination” of false statements regarding Jobbik under Article 78 § 2 of the Civil Code. Article 78 § 2 defines defamation as “the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person”. The domestic courts did not find the applicant