CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 décembre 2018

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HUNGARY   (Application no. 11257/16)                 JUDGMENT     STRASBOURG   4 December 2018     FINAL   04/03/2019     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Magyar Jeti Zrt v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ganna Yudkivska, President,   Paulo Pinto de Albuquerque,   Faris Vehabović,   Egidijus Kūris,   Carlo Ranzoni,   Marko Bošnjak,   Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 4   September   2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 11257/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a private limited company registered under Hungarian law, Magyar Jeti Zrt (“the applicant company”), on 23 February 2016. 2.     The applicant company was represented by Ms V. Vermeer, a lawyer practising in London. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice. 3.     The applicant company complained under Article 10 of the Convention that, by finding it liable for the posting of a hyperlink leading to defamatory content on its website, the domestic courts had unduly restricted its freedom of expression. 4.     On 26 May 2016 the Government were given notice of the application. 5.     On 1 July 2016, under Article 36 § 2 of the Convention and Rule   44 §   3 of the Rules of Court, the Vice-President of the Section granted the European Publishers’ Council, the Media Law Resource Center Inc., the Newspaper Association of America, BuzzFeed, Electronic Frontier Foundation, Index on Censorship, Professor Lorna Woods, Dr Richard Danbury and Dr Nicole Stremlau, jointly; European Information Society Institute; Article 19; the European Roma Rights Centre; the Mozilla Foundation and Mozilla Corporation; and Access Now, the Collaboration on International ICT Policy in East and Southern Africa and European Digital Rights, jointly, leave to intervene as third parties in the proceedings. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant company operates a popular online news portal in Hungary called 444.hu, which averages approximately 250,000 unique users per day. The online news portal has a staff of twenty-four and publishes approximately seventy-five articles per day on a wide range of topics, including politics, technology, sport and popular culture. 7.     On 5 September 2013 a group of apparently intoxicated football supporters stopped at an elementary school in the village of Konyár, Hungary, while travelling by bus to a football match. The students at the school were predominantly Roma. The supporters disembarked from the bus, and proceeded to sing, chant and shout racist remarks and make threats against the students who were outside in the playground. The supporters also waved flags and threw beer bottles, and one of them reportedly urinated in front of the school building. To protect the children, the teachers called the police, took the children inside and made them hide under tables and in the bathroom. The football supporters boarded the bus and left the area only after the police arrived. 8.     On 5 September 2013 J.Gy., the leader of the Roma minority local government in Konyár, gave an interview, in the company of a pupil of the elementary school and his mother, to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues. While describing the events, and referring to the arrival of the football supporters in Konyár, J.Gy. stated that “Jobbik came in [1] ” ( Bejött a Jobbik ). He added: “They attacked the school, Jobbik attacked it”, and “Members of Jobbik, I would add, they were members of Jobbik, they were members of Jobbik for sure.” On the same day the media outlet uploaded the video of the interview to YouTube. 9.     On 6 September 2013 the applicant company published an article on the incident in Konyár on the 444.hu website with the title “Football supporters heading to Romania stopped to threaten Gypsy pupils”, written by B.H., a journalist for the Internet news portal. The article contained the following passages: “By all indications, a bus full of Hungarian football supporters heading to a Romania-Hungary game left a highway in order to threaten mostly Gypsy pupils at a primary school in Konyár, a village close to the Romanian border. According to our information and witnesses’ statements, the bus arrived in the village on Thursday morning. The supporters were inebriated and started insulting Gypsies and threatening the pupils. Teachers working in the building locked the doors and instructed the smallest children to hide under the tables. Mr J.Gy., president of the local Gypsy [ cigány ] municipality, talked to us about the incident. A phone conversation with Mr Gy. and a parent has already been uploaded to YouTube.” The words “uploaded to YouTube” appeared in green, indicating that they served as anchor text to a hyperlink to the YouTube video. By clicking on the green text, readers could open a new web page leading to the video hosted on the youtube.com website. 10.     The article was subsequently updated three times – on 6 and 12   September and 1 October 2016 – to reflect newly available information, including an official response from the police. 11.     The hyperlink to the YouTube video was further reproduced on three other websites, operated by other media outlets. 12.     On 13 October 2013 the political party Jobbik brought defamation proceedings under Article 78 of the Civil Code before the Debrecen High Court against eight defendants, including   J.Gy., Roma Produkciós Iroda Alapítvány, the applicant company, and other media outlets which had provided links to the impugned video. It argued that by using the term “Jobbik” to describe the football supporters and by publishing a hyperlink to the YouTube video, the defendants had infringed its right to reputation. 13.     On 30 March 2014 the High Court upheld the plaintiff’s claim, finding that J.Gy.’s statements falsely conveyed the impression that Jobbik had been involved in the incident in Konyár. It also found it established that the applicant company was objectively liable for disseminating defamatory statements and had infringed the political party’s right to reputation, ordering it to publish excerpts of the judgment on the 444.hu website and to remove the hyperlink to the YouTube video from the online article. 14 .     The judgment of the High Court contains the following relevant passages: “... The Court has established that the first defendant, J.Gy., violated the plaintiff Jobbik Magyarorszagért Mozgalom’s inherent right to protection against defamation by falsely claiming in his statements given to the second defendant on 5   September   2013 and uploaded to youtube.com, and to the sixth defendant on 7   September and uploaded to haon.hu, that the events that had taken place on 5 September 2013 in front of the primary school in Konyár had been carried out by the plaintiff party, and that the people who had taken part in them were individuals associated with the plaintiff party. The Court has established that the second defendant, Roma Produkciós Iroda Alapítvány; the fourth defendant, I.V.; the fifth defendant, Magyar Jeti; the sixth defendant, Inform Média Kft; and the eighth defendant HVG Kiadó Zrt. also violated the plaintiff’s inherent right to be protected against defamation as the second defendant uploaded the first defendant’s false statement to youtube.com, and the fourth defendant made it available and disseminated it on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu and the eighth defendant on hvg.hu. ... The Court obliges the first and second defendants to make the first and second paragraphs of this judgment publicly available within 15 days and for a period of 30   days on youtube.com at their own expense, and for the fourth defendant to make them publicly available on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu, and the eighth defendant on hvg.hu. It also obliges the fifth defendant to delete the link to the first defendant’s statement uploaded to youtube.com in its article ‘Football supporters heading to Romania stopped to threaten Gypsy pupils’, published on 6 September 2013, within 15 days. Defamation can be constituted not only by the stating of a falsehood but also by the publication and dissemination of a falsehood that pertains to another person (see Article 78 § 2 of the Civil Code). When establishing the occurrence of a violation, it does not matter whether the persons concerned acted in good or bad faith, [but] whether the violation can be imputable to them or not. With regard to the foregoing, the Court has established that the second, fourth, fifth [the applicant company], sixth and eighth defendants also violated the plaintiff’s inherent right to be protected against defamation by publishing and publicly disseminating the first defendant’s defamatory statement. ... The objective sanctions for the violation of inherent rights: Pursuant to paragraph 1 of Article 84 of the Civil Code, a person whose inherent rights have been violated has the following options under civil law, depending on the circumstances of the case: (a) demand a court declaration of the occurrence of the violation; (c) demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure by way of restitution; (d) demand the termination of the injurious situation and the restoration of the previous state of affairs by and at the expense of the perpetrator and, furthermore, to have the effects of the violation nullified or deprived of their injurious nature. The above-mentioned sanctions [Article 84 § 1 of the Civil Code] for the violation of inherent rights are objective in nature, [and] therefore are independent from the imputability of fault to the perpetrator or the lack thereof. The violation itself forms the basis for the application of an adequate objective sanction. With regard to the foregoing, the Court has established that the defendants violated the plaintiff’s inherent rights, on the basis of paragraph 1 (a) of Article 84 of the Civil Code. With regard to restitution in accordance with paragraph 1 (c) of Article 84 of the Civil Code, the Court has ordered the defendants – with reference to the violation they have caused through their actions – to make public on the websites concerned the first and second paragraphs of the judgment that contain the establishment of the violation and at the same time concern the plaintiff, and to declare the falseness of the statement that was made publicly available, just as with the first defendant’s declaration that contained untrue statements. Since the harm caused to the plaintiff can be repaired within the framework of objective sanctions under the provision in question, the Court has rejected the part of the plaintiff’s claim that referred to the public dissemination of a declaration with a different content. On the basis of paragraph 1 (d) of Article 84 of the Civil Code, the Court has ordered the fifth defendant to deprive its related report of its injurious nature, but it has rejected the same claim submitted by the plaintiff against the eighth defendant, since it can be established from the facts of the case that the eighth defendant’s report available on hvg.hu merely links to the report that appeared on the website 444.hu maintained by the fifth defendant; therefore, depriving the latter of its injurious nature effectively results in depriving the report on hvg.hu of its injurious nature. The subjective sanctions for a violation of inherent rights: In accordance with paragraph 1 (e) of Article 84 of the Civil Code, a person whose inherent rights have been violated should bring an action for punitive damages in accordance with the liability regulations under civil law. Pursuant to paragraph 1 of Article 339 of the Civil Code, a person who causes damage to another person in violation of the law is liable for such damage. He is to be relieved of liability if he is able to prove that he has acted in a manner that can generally be expected in the given situation. Pursuant to paragraphs 1 and 4 of Article 355 of the Civil Code, the person responsible for the damage must compensate the aggrieved party for any non-pecuniary damage. The four conjunctive conditions for compensation for non-pecuniary damage are: (1) the breach of the law through the violation of inherent rights; (2) imputability of fault; (3) non-pecuniary disadvantage; (4) a causal link between the violation of inherent rights and the non-pecuniary disadvantage. With regard to legal entities, non-pecuniary damage is any non-pecuniary disadvantage or loss manifested in the assessment of the legal entity, and in adverse changes in its business turnover, in its participation in other relations and in the situation and quality of its existence and operations. The occurrence of the disadvantage can be established not just on the basis of evidence but by publicly known facts as well, in accordance with paragraph 3 of Article 163 of the Code of Civil Procedure (BH.2001.178.) In the case in question, the Court has established it as a publicly known fact that the first defendant’s statement, which presented the plaintiff political party as having caused an aggressive, threatening and racist event, and which was later publicly disseminated by the other defendants, caused non-pecuniary damage in the assessment of the plaintiff political party. Such events are rejected and regarded with disdain by a wide layer of society, and force the legal entity ‘associated’ with the events to explain and clarify its role (or in this case, its lack of role). In the case of a political party with parliamentary representation, this kind of non-pecuniary damage can especially be caused by such a violation of inherent rights committed nearly six months prior to the parliamentary elections. With regard to the first defendant, the Court has established the fact of imputability out of the conditions for compensation for non-pecuniary damage ... In the case of the other defendants, the Court did not establish any fault with regard to the breach of the law, and consequently the Court has rejected the plaintiff’s claim for compensation for non-pecuniary damage against the other defendants, in the following manner: In their own online news websites maintained by the fifth [the applicant company], sixth and eight defendants, the defendants in question published reports that presented the events of 5 September in the most realistic way, and they used the available information channels and forms of control in the expected manner. They presented contradictory information and opinions in an objective manner, remaining true to the information and the given opinions. The fact that the defendants also included [Mr   J.Gy.’s statements] does not infringe the procedure expected of the staff of press outlets in such a situation, [is] not regarded as a deliberately false publication, and therefore does not call for the establishment of whether the employees of the defendants in question failed to examine the veracity of the facts, and in relation to this, failed to act with the precision necessary for the responsible exercise of the constitutional right to freedom of expression. In contrast with this, it can explicitly be established from the content of the testimonies and the reports submitted that the employees of the defendants concerned acted with the precision necessary for the responsible performance of their work[:] they examined, exposed and presented the veracity of the facts[;] therefore they acted in a manner that would generally be expected of them in the given situation. ...” 15.     The applicant company appealed, arguing that public opinion associated the notion of “Jobbik” not so much with the political party but with anti-Roma ideology, and the name had become a collective noun for anti-Roma organisations. According to the applicant company, the content of the statement had not been offensive towards the political party, since it was publicly known that Jobbik had been engaged in hatred-inciting activities. The applicant company also emphasised that by making the interview with the first defendant available in the form of a link but not associating the applicant company with the video’s content, it had not repeated the statements and had not disseminated falsehoods. 16 .     On 25 September 2014 the Debrecen Court of Appeal upheld the first-instance decision. It held that the statement by J.Gy. had qualified as a statement of fact because it had given the impression to the average audience that the football supporters had been organisationally linked to the political party. The court found that the statement had been injurious to the political party since it had associated the latter with socially reprehensible conduct. As regards the applicant company in particular, it held: “... With regard to the fifth defendant’s [the applicant company’s] reference in its appeal, the court of first-instance correctly established that making a false statement available through a link, even without identifying with it, qualified as dissemination of facts. Dissemination (or circulation) is the sharing of a piece of news as thought-based content and making it available for others. Contrary to the fifth defendant’s viewpoint as expressed in its appeal, an infringement of the law by dissemination occurs even if the disseminator does not identify with the statement, and even if the disseminator’s trust in the veracity of the statement is ungrounded. Making lawful content available in any form qualifies as dissemination; and the disseminator bears objective responsibility for sharing another person’s unlawful statement owing to the occurrence of the sharing. Based on the grammatical and taxonomical interpretation of dissemination as defined in Article 78 § 2 of the Civil Code, it occurs by means of the sharing of information, which makes the content in question accessible to anyone. The essence of dissemination is the sharing of information, and owing to the objective legal consequence, it does not matter what the goal of the sharing was, or whether the disseminator acted in good or bad faith; nor do the scope of publicity or the gravity of the infringement have any relevance. ...” 17.     On 1   December 2014 the applicant company lodged a constitutional complaint under Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”), arguing in essence that under the Civil Code, media outlets assumed objective liability for dissemination of false information, which according to judicial practice meant that media outlets were held liable for the veracity of statements that clearly emanated from third parties. Thus, even if a media organ prepared a balanced and unbiased article on a matter of public interest, it could still be found to be in violation of the law. This would result in an undue burden for publishers, since they could only publish information whose veracity they had established beyond any doubt, making reporting on controversial matters impossible. The applicant company argued that the judicial practice was unconstitutional since it did not examine whether a publisher’s conduct had been in compliance with the ethical and professional rules of journalism, but only whether it had disseminated an untrue statement. In the area of the Internet, where the news value of information was very short-lived, there was simply no time to verify the truthfulness of every statement. 18.     Two of the defendants also lodged a petition for review with the Kúria . The applicant company argued that the second-instance judgment restricted the freedom of the press in a disproportionate manner, as the company had only reported on an important issue of public concern, in compliance with its journalistic duties. It emphasised that, as established by the lower-level courts, its report on the issue had been balanced. It further maintained that the statement of J.Gy. qualified as an opinion rather than a fact. In any event, the company had not been engaged in dissemination but had merely fulfilled its journalistic obligation of reporting. 19.     The Kúria upheld the second-instance judgment in a judgment of 10   June   2015 (served on the applicant company on 4 September 2015), reiterating that J.Gy.’s statements were statements of fact and that the defendants had failed to prove their veracity. Although the term jobbikos was used in colloquial language, in the case at issue J.Gy. had explicitly referred to the political party and its role in the incident. As regards the question of whether the applicant company’s activity constituted dissemination of information, the Kúria found: “Both in criminal law and other cases of civil law, the Kúria has taken the legal standpoint ... that dissemination is carried out by sharing or making public any information, as a result of which anyone can have access to the given content. The Internet is only one possible alternative for publishing; it is a forum for dissemination, meaning that information and facts are shared through a computer network. An Internet link to one’s own publication serves as an appendix; it becomes accessible and readable with a single click. The Civil Code has established objective liability for dissemination, irrespective of the good or bad faith of the disseminator. In the Kúria ’s view, requiring media outlets not to make injurious statements accessible does not constitute a restriction of freedom of the press or freedom of expression; nor is it an obligation on them which in practice cannot be satisfied.” 20.     On 19 December 2017 the Constitutional Court dismissed the applicant company’s constitutional complaint. It emphasised the second-instance court’s finding that providing a hyperlink to content qualified as dissemination of facts. Furthermore, dissemination was unlawful even if the disseminator had not identified itself with the content of the third party’s statement and even if it had wrongly trusted the truthfulness of the statement. 21 .     The Constitutional Court also reiterated its previous case-law concerning reporting about public figures’ press conferences, stating that such conduct did not qualify as dissemination if the report was unbiased and objective, the statement concerned a matter of public interest, and the publisher provided the source of the statement and gave the person concerned by the potentially injurious statement the opportunity to react. In such cases, according to the Constitutional Court, journalists neither made their own statements, nor did they intend to influence public opinion with their own thoughts. Therefore, the liability of the press for falsehoods was to be distinguished from situations where media content was merely defined by the editors’ and journalists’ own choices and decisions. Specifically, in these situations the aim of a publication was neither to enrich nor to influence public debate with the journalists’ own arguments, but to provide an up-to-date and credible report on the statements of third parties participating in public debates. The interest in a public debate required accurate reporting about press conferences. 22.     Concerning the present case, the Constitutional Court found that the dissemination of a falsehood did not concern a statement expressed at a press conference. The statement in question had related to a media report about an event which the press had presented according to its own assessment. The press report had summarised information concerning an event of public interest. A press report fell outside the definition of dissemination only if the aim of the publication was to provide a credible and up-to-date presentation of statements by third parties in a public debate. However, in the present case the Kúria found that the aim of the publication had not been to present J.Gy.’s statements, but to present contradictory information concerning the event. Thus, the press report qualified as dissemination. II.     RELEVANT DOMESTIC LAW 23.     The relevant provisions of the Fundamental Law read as follows: Article VI “(1)     Everyone has the right to have his or her private and family life, home, communications and reputation respected. ...” Article IX “(1)     Everyone shall have the right to freely express his or her opinion. (2)     Hungary shall recognise and protect the freedom and pluralism of the press, and ensure the conditions for freedom of information necessary for the formation of democratic public opinion.” 24 .     The Constitutional Court Act provides as follows: Section 27 “Any individual or organisation involved in a case may lodge a constitutional complaint with the Constitutional Court against a court decision which is contrary to the Fundamental Law within the meaning of Article 24 § 2 (d) of the Fundamental Law, if the ruling on the merits or another decision terminating the court proceedings (a) violates the complainant’s rights enshrined in the Fundamental Law, and (b) the complainant has already exhausted the available legal remedies or no legal remedy is available. ...” Section 29 “The Constitutional Court shall admit constitutional complaints if a conflict with the Fundamental Law significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance. ...” 17.     Legal consequences of the decisions of the Constitutional Court Section 39 “(1)     Unless provided for otherwise by this Act, the decisions of the Constitutional Court are binding on everyone. (2)     There shall be no remedy against the decisions of the Constitutional Court. (3)     The Constitutional Court shall itself establish the applicable legal consequences within the framework of the Fundamental Law and of this Act.” Section 43 “(1)     If the Constitutional Court, in the course of proceedings before it as specified in section 27 and on the basis of a constitutional complaint, declares that a judicial decision is contrary to the Fundamental Law, it shall annul the decision. (2)     For the procedural legal consequences of the Constitutional Court’s decision annulling a judicial decision, the provisions of the codes on court procedures shall be applicable. (3)     In court proceedings following the annulment of a judicial decision by the Constitutional Court, the decision of the Constitutional Court shall be binding as regards the issue of constitutionality. (4)     The Constitutional Court, when annulling a judicial decision, may also annul judicial decisions or the decisions of other authorities which were reviewed by the decision in question. ...” 25.     Act no. IV of 1959 on the Civil Code, as in force at the material time, provides: Article 75 “(1)     Personality rights shall be respected by everyone. Personality rights are protected under this Act. (2)     The rules governing the protection of personality rights are also applicable to legal personalities, except in cases where such protection can, owing to its character, only apply to private individuals. (3)     Personality rights shall not be violated by conduct to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void.” Article 78 “(1)     The protection of personality rights shall also include the protection of reputation. (2)     In particular, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation.” III.     RELEVANT INTERNATIONAL LAW AND PRACTICE 26.     Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet was summarised as follows in Editorial Board of Pravoye Delo and Shtekel v. Ukraine (no.   33014/05, ECHR 2011 (extracts)): “29.     At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people’s significant reliance on the Internet as a tool for communication. 30.     It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings. 31.     The Ministers’ Deputies adopted recommendations to the Council of Europe’s member states with regard to the governance of the Internet. These included a recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.” 27.     Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on a new notion of media (adopted on 21 September 2011) reads as follows: “... The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states: – adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents; – review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people’s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship; – apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society; ... Appendix to Recommendation CM/Rec(2011)7 Criteria for identifying media and guidance for a graduated and differentiated response Introduction 7.     A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe. ...” 28 .     The Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, states the following: “No one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.” 29.     In Case C-160/15 GS Media BV v. Sanoma Media Netherlands BV, Playboy Entreprises International Inc., Britt Geertruida Dekker the Court of Justice of the European Union (“the CJEU”) considered whether, and in what circumstances, posting on a website a hyperlink to protected works, which were freely available on another website without the consent of the copyright holder, constituted a “communication to the public” within the meaning of Article 3 § 1 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. The CJEU found: “45.     In that regard, it should be noted that the internet is in fact of particular importance to freedom of expression and of information, safeguarded by Article 11 of the Charter, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterised by the availability of immense amounts of information. ... 47.     For the purposes of the individualised assessment of the existence of a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is accordingly necessary, when the posting of a hyperlink to a work freely available on another website is carried out by a person who, in so doing, does not pursue a profit, to take account of the fact that that person does not know and cannot reasonably know, that that work had been published on the internet without the consent of the copyright holder. 48.     Indeed, such a person, by making that work available to the public by providing other internet users with direct access to it (see, to that effect, judgment of 13   February 2014, Svensson and Others , C‑466/12, EU:C:2014:76, paragraphs 18 to   23) does not, as a general rule, intervene in full knowledge of the consequences of his conduct in order to give customers access to a work illegally posted on the internet. In addition, where the work in question was already available with unrestricted access on the website to which the hyperlink provides access, all internet users could, in principle, already have access to it even the absence of that intervention. 49.     In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” 30.     In judgment no. 1 BvR 1248/11 of 15 December 2011 the German Federal Constitutional Court pointed out that the provision of a link in an online article was protected under the German Basic Law. The discussion process necessary for the formation of opinion, protected by the Basic Law, included private and public information about third-party statements, and also therefore the purely technical distribution of such statements, regardless of any associated expression of opinion by the distributor itself. The Federal Constitutional Court stressed that by placing a hyperlink leading to another website, the person or organisation doing so did not automatically make the content of the website its own opinion. Lastly, it pointed out that the German Federal Court had correctly balanced the conflicting rights when it had found that the placing of the link did not further encroach on the rights of others (that is to say the claimant’s copyright) since a website with the unlawful content could very easily be found via an Internet search engine anyway. 31.     In Crookes v. Newton (2011, SCC 47, [2011] 3.S.C.R. 269) the Supreme Court of Canada considered the issue of whether creating a hyperlink to defamatory material constituted publication of the defamatory statements. It held that a person could not defame someone merely by publishing a hyperlink to a third-party website or document containing defamatory material. It stated, in particular: “Hyperlinks are in essence references, which are fundamentally different from other acts of ‘publication’. Hyperlinks and references both communicate that something exists, but do not themselves communicate its content. ... A hyperlink, by itself should never be seen as ‘publication’ of the content to which it refers. ... Only when the person or organisation doing so presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be ‘published’ by that person or organisation.” 32.     On 26 July 2012 the United States Court of Appeals for the Third Circuit held in Philadelphia Newspapers, LLC (No. 11-3257, 2012   U.S. App. L EXIS 15419 (3d Cir. July 26, 2012) (precedential)) “that providing a link on a website to an allegedly defamatory article [was] not republication for purposes of the single publication rule or the statute of limitations”. Rather, the court found that the principles of traditional publication, according to which a mere reference to an article did not republish the material, as long as it did not restate the defamatory statement, were also applicable to Internet publication. It held that “[t]aken together, though a link and reference m[ight] bring readers’ attention to the existence of an article, they d[id] not republish the article”. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 33.     The applicant company complained that the rulings of the Hungarian courts establishing objective liability on the part of its Internet news portal for the content it had referred to via a hyperlink had amounted to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Admissibility 34.     The Government argued that the applicant company had failed to exhaust domestic remedies since it had not challenged the final judgment before the Constitutional Court. 35.     The applicant company argued that it had exhausted all available remedies. 36.     The Court notes that on 15 January 2018 the applicant company’s representative submitted to it the Constitutional Court’s decision of 19   December 2017 (no. 3002/2018.(I.10.)AB) (see paragraph 20 above). The Court is therefore satisfied that the applicant company has in fact demonstrated that it availed itself of the remedy alluded to by the Government. 37.     The Court accordingly concludes that the applicant company has complied with the obligation to exhaust domestic remedies and that the Government’s objection must be dismissed. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant company 38.     The applicant company argued that the interference with its freedom of expression had not been prescribed by law. It submitted that although Article   78 § 2 of the Civil Code had established liability for dissemination of injurious falsehoods, there had been no legislation or case-law stating that hyperlinking was to be considered dissemination of information. 39.     In its view, the Hungarian courts’ decisions had failed to account for the specific features of hyperlinks and had applied to its case the standards of more traditional forms of sharing actual content, which had not been reasonably foreseeable. It explained that hyperlinking in itself did not convey or communicate any information but merely pointed to its existence. Furthermore, the standard applied by the domestic courts would have entailed its liability even if the owner of the hyperlinked website had modified the web page to include defamatory material that had originally not been present. 40.     The applicant company disputed that the protection of the reputation of a political party could serve as a legitimate aim for the interference. Relying on the Court’s case-law, it maintained that the limits of acceptable public scrutiny were wider in relation to politicians, who had to have a greater degree of tolerance to criticism. 41.     In the applicant company’s submission, the interference had not been necessary in a democratic society. It argued that the objective liability standard as applied by the domestic courts had excluded any balancing between the two protected values. Amongst other actions, by the application of the objective liability rule, the domestic courts had not been able to consider whether the applicant company had acted in good or bad faith or what the purpose of the dissemination had been.   In any event, the objective liability standard was incompatible with the Court’s case-law. 42.     The applicant company argued that had the domestic courts undertaken a proper balancing exercise, they would have concluded that its right to freedom of expression should have prevailed over Jobbik’s right to reputation. 43.     Firstly, the hyperlink had appeared in a balanced news report on a matter of public interest. In its view, including the hyperlink in the article in question had been a technique of reporting that the press should remain free to opt for. Moreover, it had been established by the domestic courts that the journalist who had written the article including the hyperlink had acted in accordance with his professional obligations, among other things, by verifying the information available on YouTube. The applicant company also pointed out that Jobbik had had the option of bringing a claim against the author of the comments. Lastly, while providing access to the YouTube video through a hyperlink had not had a significant impact on Jobbik’s reputation, the domestic court judgment finding the applicant company liable for third-party statements had had far-reaching implications for the press when producing online journalistic content. Concerning this latter aspect, the applicant company noted that given the chilling effect caused by automatic liability for defamation based on the use of hyperlinks, journalists and online news portals would refrain from including hyperlinks in their publications, restricting the cross-referential structure of the Internet and users’ access to information. (b)     The Government 44.     The Government conceded that there had been an interference with the applicant company’s right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had also acted within their margin of appreciation. 45.     Firstly, under Article 75 § 1 and Article 78 §§ 1 and 2 of the Civil Code, the statement or dissemination of an injurious falsehood concerning another person, or the presentation with untrue implications of a fact relating to another person, constituted defamation. Furthermore, the protection of the personality rights of others, th