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ECHR examines liability for hyperlinked content

Posted on 15 February 2019 by Alexandra Whiston-Dew & Isabella Piasecka

ECHR examines liability for hyperlinked content

Even breaking news rarely exists in a vacuum; journalists often refer to earlier or related stories to set the scene and give context. But online, it is all too easy – for news editors as well as algorithms – to resurrect content from the archive, or to flag another publisher's content, via hyperlinks. A key question, and one recently considered by the European Court of Human Rights ("ECHR") in the case of Magyar Jeti Zrt v Hungary, is: can journalists and other publishers be held liable for hyperlinked content that is defamatory?

As the court acknowledged, hyperlinks are not a traditional form of publication. In particular, they play havoc with the standard limitation period, which in defamation runs from the date of first publication. Ordinarily, the claimant has one year from that date to issue their claim and, courtesy of the "single publication rule", the one-year period does not restart every time someone clicks through to access the content. Otherwise, online publishers would potentially have endless liability. In theory then, links to content that was first published over 12 months ago should not be actionable because of the time bar.

However, there are pit falls. Section 8 of the Defamation Act 2013, which introduced the rule, makes clear that the clock may in fact restart where the same publisher publishes the same content, but in a way that is "materially different" from the first publication, either because of the "level of prominence" or the "extent of the subsequent publication". If a journalist writing a new piece were to hyperlink to a two-year old article, but repurpose it – for example by giving it a punchier headline and a wider audience – they may end up effectively republishing it, with a fresh limitation period. If the new and old articles are sufficiently closely connected, they may even be treated as a single publication.

Journalists can also be liable if they repeat defamatory allegations by a different publisher, in which case they are as liable as the original publisher. They might also be liable for publication by reference, if it can be successfully argued that they "procured" a publication of the allegation by leading readers to it. So, how do hyperlinks fit into the picture? According to a 2011 case in the Canadian Supreme Court, a hyperlink by itself does not constitute publication of the content to which it refers; it is "content-neutral", unless the linking publisher has adopted or endorsed that content. However, the position under English law, although unclear, pulls in the other direction, suggesting that the linked-to content will be relevant to the defamatory meaning of the linking page.

The Magyar judgment adds to this conflicting patchwork, and supports the Canadian view. The ECHR found that hyperlinks "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". When assessing whether a hyperlinking publisher should be liable, relevant factors include whether the journalist endorsed or repeated the content complained of; whether they merely flagged it without doing either; whether they knew or could reasonably have known that the content was defamatory or unlawful; and whether they acted in good faith and behaved responsibly.

In Magyar, the Hungarian news website in question should not, the ECHR held, have been found strictly liable for hyperlinking, within its own story, to another publisher's defamatory YouTube video. This is where the article did not endorse the underlying content, and the statements that were ultimately found to be defamatory were not clearly unlawful from the outset. The Court found, unanimously, that there had been a violation of the website's rights to freedom of expression under Article 10 of the European Convention on Human Rights. It noted that imposing objective liability on hyperlinking publishers "may 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."

Journalists should also take comfort from the separate, concurring opinion of Judge Pinto de Albuquerque, who cautioned that "It is too burdensome, and in many cases impossible, for people to make a legal determination as to whether each and every hyperlinked content is defamatory or otherwise unlawful. If such a burden were to be imposed automatically on journalists, by way of an objective liability regime, it would stifle the freedom of the press." He added that hyperlinks are "critical to… our continued prosperity" and "need defending".

That said, until the position is tested further under English law, publishers potentially liable in this jurisdiction should use hyperlinks with caution, always review and feel comfortable with any material they are linking to, and never assume that they will escape liability for old or "other" material.

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