Are you thinking what I’m linking? Liability for hyperlinks

December 20th, 2018

Many users of the internet know all too well the hidden dangers of hyperlinks.  Now the European Court of Human Rights has considered the extent to which those posting links are responsible for the third party content being linked to, in Magyar Jeti Zrt v Hungary (Case no. 11257/16).

In 2013, a Hungarian politician drew a link between racist assaults by football fans and Jobbik, a right-wing Hungarian political party.  A recording of his remarks was uploaded to YouTube.  When reporting the story, 444.hu – a news website operated by the applicant company – included a hyperlink to the recording, without repeating the defamatory content in the body of their article.

Jobbik sued successfully for defamation against (inter alia) the politician and the applicant company.  The company was found liable at all levels of the Hungarian court system.  The Kúria (Hungary’s supreme court) held that linking served as an “appendix” to one’s own publication, rendering the linker objectively responsible for the link’s destination.

The ECtHR took a different view, reaffirming the distinct considerations that apply to the internet (as opposed to print and audiovisual media) (at [72]) and noting the key role of hyperlinks in enhancing the public’s access to information online (at [72-73]).

As such, the question of whether posting a hyperlink may give rise to liability required “an individual assessment in each case, regard being had to a number of elements” (at [76]).  Of particular relevance were whether the link was accompanied by a repetition or endorsement of the impugned content, and the linker’s knowledge and good faith (at [77]).

This was, it is submitted, clearly the right approach, and publishers across Europe will breathe a sigh of relief at the Court’s rejection of strict liability for hyperlinks.  The judgment may also have wider implications for users of the internet, where they refer to or direct other users to third party content over which they have no control.  It may be relevant to interactions on social media, and algorithms which suggest or aggregate content.

It is important to note that the judgment does not automatically absolve users from all responsibility.  There will be circumstances in which a link will incur liability for the third party content – and the identity of the poster is likely to be as important a factor as the context and circumstances of the post.  So, in conclusion, one should bear in mind that a post is only as innocent as its weakest link.  Goodbye.

Anya Proops QC represented a number of third party interveners (see [51]), Anya was instructed by Mark Stephens at HKFSI.

Leo Davidson

Tags:

Comments are closed.