ECtHR rules that prohibiting linking to defamatory content might be freedom of expression violation: what implications (if any) for copyright?

Kat licknking

Can linking to protected content be considered an infringement of IP rights, at certain conditions? As far as copyright is concerned, this is a question that - further to the decisions of the Court of Justice of the European (CJEU) in cases like Svensson [Katposts here] and GS Media [Katposts here] - has a response in the affirmative in the EU.

But is it possible that envisaging liability for acts of linking might be a violation of the link provider's own human rights, notably freedom of expression under Article 10 of the European Convention of Human Rights (ECHR)?

This is the issue that the European Court of Human Rights (ECtHR) had to consider in Magyar Jeti Zrt v Hungary. 

Today, this court answered the question in the affirmative, at least in relation to linking to defamatory content.

Let's see how the ECtHR reasoned, before turning to the potential implications for IP and, in particular, copyright.

Background

The applicant company, which operates a popular news portal (444.hu), complained under Article 10 ECHR that, by finding it liable for the posting on its own website of a hyperlink leading to defamatory content on YouTube, Hungarian courts had unduly restricted its freedom of expression.

What happened is that in 2013 a group of intoxicated football fans stopped by a school, attended by a majority of Roma pupils. The former disembarked the bus to make racist remarks and threats against the pupils. 

444.hu subsequently published an article which included a link to a YouTube video containing the recording of a telephone call between the leader of the Roma minority local government in Konyár and one of the pupils' parents. The former had indicated that the attackers would be members of a political party, Jobbik.

Jobbik brought defamation proceedings against a number of subjects, including 444.hu. It argued that, by using the term Jobbik to describe the football supporters and by publishing a hyperlink to the YouTube video, the respondents had infringed its right to reputation.

All the domestic courts that heard the case concluded, among other things, that 444.hu was liable for disseminating defamatory statements for conveying the impression that the football supporters would be organizationally linked to the political party. The defamatory act, in the case of 444.hu, consisted of the link to the YouTube video. 

Having thus exhausted the internal remedies, 444.hu sued Hungary before the ECHR for alleged violation of its own freedom of expression, arguing that domestic courts had unduly considered the provision of a link as akin to the posting of actual defamatory information.

444.hu

The judgment

Having reviewed a number of authorities, including the CJEU decision in GS Media, the ECtHR noted that there was no doubt that an interference with the applicant's freedom of expression had occurred and that it was meant to pursue a legitimate aim. The core of the assessment turned to whether it was also 'necessary in a democratic society' (as per Article 10(2) ECHR).

The court recalled that, for journalists, Article 10 protection is conditional upon them acting in good faith and on an an accurate factual basis so to provide “reliable and precise” information in accordance with the ethics of journalism [so, Article 10 does not cover 'fake news']. When third-party rights are at stake, a fair balance must be struck between journalists' Article 10 freedom and other parties' freedoms, including respect for private life under Article 8 ECHR.

With particular regard to the internet, while this has facilitated the dissemination of information, at the same time it has been posing greater challenges to the effective protection of Article 8. It follows that:

Because of the particular nature of the Internet, the “duties and responsibilities” of Internet news portals [which, the Court stressed, are to be treated differently from information society service providers] for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content ... Although Internet news portals are not publishers of third-party comments in the traditional sense, they can assume responsibility under certain circumstances for user-generated content ...

Besides noting that a different treatment might be reserved to the dissemination of third-party content through traditional and online media, the ECtHR stressed the important of the internet to enhancing the public's access to news and information, and held that:

[T]he very purpose of hyperlinks is, by directing to other pages and web resources, to allow Internet‑users to navigate to and from material in a network characterised by the availability of an immense amount of information. Hyperlinks contribute to the smooth operation of the Internet by making information accessible through linking it to each other. Hyperlinks, as a technique of reporting, are essentially different from traditional acts of publication in that, as a general rule, they merely direct users to content available elsewhere on the Internet. They do not present the linked statements to the audience or communicate its content, but only serve to call readers’ attention to the existence of material on another website. A further distinguishing feature of hyperlinks, compared to acts of dissemination of information, is that the person referring to information through a hyperlink does not exercise control over the content of the website to which a hyperlink enables access, and which might be changed after the creation of the link – a natural exception being if the hyperlink points to contents controlled by the same person. Additionally, the content behind the hyperlink has already been made available by the initial publisher on the website to which it leads, providing unrestricted access to the public.

As a result:

the Court cannot agree with the approach of the domestic courts consisting of equating the mere posting of a hyperlink with the dissemination of the defamatory information, automatically entailing liability for the content itself. It rather considers that the issue of whether the posting of a hyperlink may, justifiably from the perspective of Article 10, give rise to such liability requires an individual assessment in each case, regard being had to a number of elements.

The elements required for such an "individual assessment" include:

• did the journalist endorse the impugned content?
• did the journalist repeat the impugned content (without endorsing it)?
• did the journalist merely put an hyperlink to the impugned content (without endorsing or repeating it)?
• did the journalist know or could reasonably have known that the impugned content was defamatory or otherwise unlawful?
• did the journalist act in good faith, respect the ethics of journalism and perform the due diligence expected in responsible journalism?

The court concluded that in the present case the article in question simply mentioned that an interview was to be found on YouTube and provided a means to access it through a hyperlink, without further comments on, or repetition even of parts of, the linked interview itself. No mention was made of the political party at all. As such, the interference with 444.hu's freedom of expression had been contrary to what Article 10 ECHR allows.

Implications for copyright

The ECtHR judgment is an important one, with significant - yet not seemingly life-changing - implications for linking under EU copyright law.

In fact, the Court was careful not to grant a 'blanket licence' to link. It stressed the importance of linking to the functioning of the internet and the dissemination of information. However, it also noted that, among the factors to consider, there is also whether the link provider knew or could have reasonably known that the content linked to was illegal.

In this sense, the reasoning of the ECtHR is in line with the CJEU decision in GS Media. In that case the content linked to was unlincensed (leaked Playboy pictures), and the CJEU stated that:

• Liability would not subsist for link providers who do not pursue a profit-making intention and are unaware that the content linked to is unlicensed;
• Liability could subsist for for-profit link providers who have not acted diligently to make sure that the content linked to is lawful (rebuttable presumption of knowledge);
• Liability could subsist for for-profit link providers who are aware that the content linked to is unlawful.

The findings of the CJEU in GS Media are further summarized in my table below and here [for further materials, see here]:

In its decision, perhaps in more nuanced tones than what Advocate General Wathelet had done in his Opinion [here], the CJEU also stressed the importance of the internet to the functioning of a democratic society. This part of the judgment was actually relied upon by the German Federal Court of Justice (BGH) when it excluded that the GS Media presumption of knowledge would apply to search engines [Katpost here].

In this sense, the CJEU approach to linking (though in the copyright context) and the one adopted by the ECtHR do not appear to substantially diverge, and both courts stressed the centrality of the need for an individual assessment of the specific case at issue. 

In all this, the most important take-home point of the Magyar Jeti decision is that, when it comes to linking, different rights might be at stake and that a careful balancing exercise must be undertaken. This is something that also the CJEU suggested in GS Media, though possibly in more concise tones. In this sense, the ECtHR ruling appears a welcome clarification in the case law on linking.