MAGYAR JETI ZRT v. HUNGARY JUDGMENT - SEPARATE OPINION 35 company liable for the article on the Konyár incident, but specifically for the fact that the journalist Mr Horváth had used a technique of hyperlinking to a video already available online. Oddly enough, the domestic courts’ removal order targeted the hyperlink, but not the other references to the existence of the video in the article. 22. The applicant company claimed that it could not have foreseen that the Hungarian courts would consider hyperlinking to constitute dissemination. Accordingly, the applicant company could not have foreseen that, by including the hyperlink in the article, it would be found liable for defamation and ordered to remove the hyperlink, publish excerpts of the judgment and pay legal costs. The Government conceded that there had been interference with the applicant company’s freedom of expression, but argued that this interference had been lawful and proportionate in the light of the prevailing doctrine of objective liability in this field of law in Hungary. 23. By equating hyperlinking to “dissemination” in four consecutive instances35, the Hungarian courts disregarded the fundamental distinction between content and communicating the existence of content (hyperlinking). The application of objective liability to any form of hyperlinking precluded the balancing of interests required under the Court’s case-law and the individual assessment of the applicant company’s situation, and resulted in truly draconian interference with the applicant company’s Article 10 rights. This criticism of the Hungarian courts is not new. In another case, the Hungarian courts’ application of an objective liability interpretation of Article 78 of the Civil Code was already found to be incompatible with the Convention36. In the present case, the Court reiterates this finding with regard to hyperlinks. 24. As a matter of law, the domestic courts failed to consider that the journalist simply posted the link in his article, without endorsing or even repeating the content to which the hyperlink led, and that the content referred to (namely Mr Gyöngyösi’s comments on the Konyár incident) had not been declared unlawful and had its use prohibited by any court decision prior to the creation of the link. Furthermore, the domestic courts also disregarded the fact that the content in question appeared in the context of a news report on a matter of public interest, as it related to threats against Roma schoolchildren and could be perceived as statements made within the “permissible criticism of political parties”37. 25. Worse still, this case highlights how objective liability for hyperlinking may lead to an infinite regress of liability. In fact, the domestic courts held a website (hvg.hu) liable for hyperlinking to the article on the Paragraphs 14, 16, 19 and 20 of the judgment. Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 89, 2 February 2016. 37 Paragraph 83 of the judgment. 35 36