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The way we consume news has changed throughout the course of history, from family gatherings around the radio through to today with 64% of Spanish users relying on digital media for their news. It is also increasingly frequent for digital news to include hyperlinks to third-party content. But what happens if that content is defamatory? Should journalists be held liable for providing references to certain content? The European Court of Human Rights (“ECHR”) considered this matter recently in its judgment of December 4, 2018 (Magyar Jeti ZRT v. Hungary).

The matter concerned a popular news portal in Hungary that published an article regarding a dispute in which a group of intoxicated football fans insulted a group of children of the Roma minority outside their school. The article included a hyperlink to a video in YouTube offering interviews with the leader of the Roma community and one of the children’s parents, in which they affirmed that the football fans were members of the Jobbik political party and attributed their actions to the political party. Jobbik sued various media outlets, including the claimant, for defamation.

During the course of the national proceedings, the claimant was considered liable for the content of the video, simply for having included the hyperlink in its article, given that Hungarian legislation establishes a regime of objective liability in such cases. After exhausting all the national remedies, an appeal was brought before the ECHR on the grounds that the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights had been violated. The ECHR upheld the claimant’s argument, considering that Hungarian legislation violated Article 10 of the convention as it could discourage media outlets from using hyperlinks and, therefore, limit the flow of information.

It also held that liability for hyperlinking should be analyzed on a causal basis and established a series of criteria for doing this. Below we indicate the criteria:

  • Whether the journalist merely included a hyperlink to the content or actually endorsed it.
  • Whether the journalist knew or could have reasonably known that the content was defamatory and, therefore, unlawful.
  • Whether the journalist acted in good faith, respecting the ethics of journalism.

In Spain, section 17 of the Information Society Services and Electronic Commerce Act adopts a similar approach to the above judgment, exonerating service providers that hyperlink third-party content when (i) they are unaware of the unlawfulness of the activity or information contained in it, or (ii) they do have such knowledge and act diligently to delete the hyperlink.

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esther.ballesteros@cuatrecasas.com

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