Freedom of expression includes the freedom to link – Diff

Freedom of expression includes the freedom to link – Diff
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The European Court of Human Rights in Strasbourg, France.
Photo
by CherryX,
CC BY-SA 3.0
You have probably never worried that you could be sued for posting a
hyperlink
to a video or article.  But under a ruling by Hungarian national courts, it could be possible.
The
European Court of Human Rights
is currently reviewing
Magyar Jeti Zrt v. Hungary
, a case in which a Hungarian court found a news website liable for posting a hyperlink after that site was sued by a political party. Although this case has largely flown under the radar
until recently
, the Foundation believes that the Court’s forthcoming decision could have serious implications for freedom of expression.
The case began when 444.hu, a Hungarian news website, posted an article about an alleged incident of harassment of
Roma
students at a school in
Konyár, Hungary
. The article contained a link to a YouTube video of an interview with a local official who discussed
Jobbik
, a right-wing Hungarian political party. In response,
Jobbik
sued both the local official and 444.hu in Hungarian domestic court.
Jobbik
argued, among other things, that 444.hu had disseminated
defamatory
statements by posting the hyperlink, even though 444.hu itself had not mentioned
Jobbik
in the article. The Hungarian lower courts and Supreme Court (the
Kúria
) both agreed, and found 444.hu liable for defamation.
In May of this year, the international court sent notice to the Hungarian government that it intended to review the
Kúria’s
decision. At issue is whether it violates
Article 10
of the
European Convention of Human Rights
—which protects Europeans’ rights to free expression—to hold someone legally responsible for the content of a hyperlink that they post. We believe that the Court was right to take the case, and that it should reverse the Hungarian courts’ rulings.
Hyperlinks are prerequisite to a free and open internet, enabling collaboration and access to knowledge for all. They are similarly essential to the continued thriving of the Wikimedia projects. Links often serve as
references
that help to ensure the accuracy and
verifiability
of content on Wikipedia. They are also frequently used to link within and between Wikimedia projects, or as supporting evidence in collaborative discussions on
talk pages
or
user pages
. Any given Wikimedia project page is likely to contain many hyperlinks, each of which may link to a page containing dozens more.
Expanding liability for hyperlinking opens the door for all kinds of problems. First, it would likely create a
chilling effect
for the global communities of contributors to the Wikimedia projects. Treating users as if they wrote the material that they link to will undoubtedly make users afraid to post necessary links, such as
reliable sources
on Wikipedia, thus leading to less information being made available on the Wikimedia projects. This undermines the Wikimedia movement’s vision of freely sharing the sum of all knowledge. In addition, just like Wikipedia, the Web is a dynamic medium and content on websites may change over time. Creating liability for hyperlinks places a prohibitively large burden on internet users who cannot be expected to regularly monitor what they link to.
The Hungarian
Kúria’s
decision also has troubling implications for freedom of expression, a
core Wikimedia value
. Links aren’t just a way of of connecting and building upon information, they are also part of the linkers’ rights to express themselves, to hear others, and to discuss issues that matter to them. Limiting their use would inevitably sweep up a great deal of such expression. This is especially problematic where the government’s rules would silence journalists who are reporting on important issues of the day. Their ability to provide information to the public would be damaged. This would cause the Wikimedia projects to suffer, as well. For example, contributors rely heavily on journalists as a font of reliable sources for Wikipedia articles.
Curiously, the
Kúria’s
decision may even stifle criticism of defamation. Online posters often use hyperlinks to reference content that they disagree with
in order to criticize that content
. The
Kúria’s
decision would, perversely, appear to punish this behavior by treating vocal critics as if they had supported and disseminated the very speech they disagreed with.
This is not the first time a court in Europe has dealt with the issue of liability for hyperlinking.
Just recently
, the
European Court of Justice
ruled that, under EU law, a person who links to
copyright-infringing
material can themselves be held liable under certain circumstances. In
Magyar Jeti Zrt v. Hungary
, the European Court of Human Rights now has the opportunity to defend the special role of hyperlinks and their importance to free expression, as protected by the European Convention of Human Rights, which was signed by 47 states (more than the
European Union’s
current 28 members).
Hyperlinks are the synapses that keep the internet awake and alive, especially the Wikimedia projects. Without the ability to link to news articles, blog posts, government reports, academic journals, and a host of other material, the Wikimedia projects could not exist. Creating liability for linking to allegedly defamatory material will chill freedom of speech and hinder access to information. We applaud the Court for reviewing this case, and we encourage it  to recognize  these important values and to protect the interconnected nature of the Web and of collaborative projects like Wikipedia.
Jim Buatti
, Legal Fellow
Jan Gerlach
, Public Policy Manager
Wikimedia Foundation
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