June 18, 2019

June 18, 2019

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June 17, 2019

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European Court Rules That Merely Hyperlinking Is Not Defamatory

Here is a sentence we don't write very often: A decision this week of the European Court of Human Rights has brought U.S. and European defamation law into greater alignment. Well, at least regarding hyperlinks to defamatory content.

The decision, Case of Magyar Jeti ZRT v. Hungary, concerned an incident in 2013 in which football hooligans attacked a school for Roma children in Konyar, Hungary. Hungarian news outlets, including the website www.444.hu, reported on the incident. As part of the reporting, 444.hu mentioned that a local Roma leader had spoken out against the attack. The article included a hyperlink to a video of the leader's comments but did not describe or repeat them. In the video, the Roma leader claimed that Jobbik, a right-wing Hungarian political party, was responsible for the attack.

Jobbik brought a defamation action against the news site, arguing that it should be held liable for hyperlinking to defamatory content. The Hungarian Supreme Court ultimately agreed, finding that the local Roma leader's accusations were false and defamatory. Linking to a video of those accusations, the court held, constituted "dissemination" of the defamatory statements, for which the website was liable. The decision essentially treated a hyperlink as a republication of contents of the hyperlinked site. The decision caused concern across Europe, being viewed as part of a wider trend in Hungary towards political repression.

Represented by the Medial Legal Defence Initiative and supported by numerous NGOs, the website challenged the Hungarian decision before the European Court of Human Rights, arguing the ruling violated its fundamental right to freedom of expression. On December 4, the court—which is tasked with interpreting the European Convention on Human Rights—unanimously rejected the Hungarian decision. Hyperlinks, the court wrote, "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."

The court also noted that information in a hyperlink can be changed at any time, posing obvious risks. To subject publishers to liability for a hyperlink would "have foreseeable negative consequences on the flow of information on the Internet, impelling article authors and publishers to refrain altogether from hyperlinking to material over whose changeable content they have no control. This may have, directly or indirectly, a chilling effect on freedom of expression on the Internet."

The court recognized that there could be liability if a publisher endorsed or adopted the contents of the hyperlink, or repeated the contents. But simply linking was not enough: The court also re-emphasized that "the limits of acceptable criticism are wider as regards a politician—or a political party—as such than as regards a private individual." In this respect, the court suggested that even if 444.hu had published the Roma leader's statements, it might not have been liable for defamation. The website was reporting on a matter of public importance and the local leader's statements, "although perhaps controversial," were not "clearly unlawful from the outset." The court rebuked the Hungarian court for not giving greater weight to the right to freedom of expression, especially on matters of political and public importance—welcome words, given international concerns about declining press freedoms in the country.

Copyright © by Ballard Spahr LLP


About this Author

Dana R. Green Media Attorney Ballard Spahr Law FIrm

Dana R. Green represents media clients in a wide range of content-related matters. Dana also has experience with international litigation and arbitration. She began her legal career as the First Amendment Fellow in the New York Times Company’s legal department, where she counseled reporters on legal issues and litigated defamation and access cases.

Dana has performed pro bono work for the Media Legal Defence Initiative, assisting journalists in the developing world.

Dana has provided insights on media and entertainment...

Chad Bowman Lawyer Partner Ballard Spahr DC

Chad R. Bowman's practice as a counselor and litigator focuses on working with new and legacy media organizations, as well as other nonprofit and for-profit entities engaged in public advocacy and speech.

As a counselor, Chad regularly advises clients about publication risk, reviewing draft television news scripts, magazine features, newspaper reports, digital media stories, and other content, as well as advising about newsgathering and intellectual property issues. As a litigator, Chad has represented media clients in state and federal courts around the country in contested defamation, privacy, copyright, subpoena, access, Freedom of Information Act (FOIA), marketing, and related First Amendment matters. Chad also provides regular pro bono counseling to several nonprofit advocacy organizations.

Prior to attending law school, Chad worked as reporter at weekly and daily newspapers and at The Bureau of National Affairs, Inc. (BNA), covering a variety of local and national beats.

Chad was a partner at the highly regarded First Amendment boutique law firm Levine Sullivan Koch & Schulz, which merged with Ballard Spahr in October 2017.

Representative Experience

  • Defended the Associated Press against a libel claim brought by a Russian oligarch, Oleg Deripaska, who objected to an AP report detailing his past business relationship with Paul Manafort, one-time manager of President Trump's 2016 presidential campaign. The court granted the AP's motion to dismiss after finding that Deripaska, a billionaire close to Russian President Vladimir Putin, was a public figure who failed to plausibly allege that AP published the report with "actual malice," as the First Amendment requires. The court further found that Deripaska failed to identify anything materially false in the AP report.

  • Successfully defended Gawker Media, LLC, in a defamation suit brought in New Jersey state court by former Major League Baseball pitcher Mitch "Wild Thing" Williams, arising from news reports published on Gawker's Deadspin website about the plaintiff's behavior at a youth baseball tournament. The court dismissed many of the challenged statements as either protected opinion or substantially true and, after extensive discovery, granted summary judgment on the remaining statements following a two-day hearing, concluding that the public figure plaintiff could not demonstrate clear and convincing evidence of "actual malice" fault.

  • Successfully defended The New Yorker and its reporter David Grann in a defamation lawsuit arising out of a profile of Canadian art authenticator Paul Biro. Affirming the trial court's dismissal of the case, the Second Circuit held that Biro, a public figure in the world of art authentication, had failed to allege facts in his complaint that could plausibly demonstrate the defendants acted with actual malice.