The European Court of Human Rights affirmed that hyperlinking is protected free expression. Here’s why we’re applauding.

Two years ago, we wrote about Magyar Jeti Zrt v. Hungary, a case before the European Court of Human Rights (ECHR) which dealt with legal liability for hyperlinking—a practice on which the open internet relies and which many internet users engage in a on a daily basis.

Last week, the ECHR affirmed an important principle: that simply posting a hyperlink should not make a person liable for the content of that link. This is a welcome decision for freedom of expression online. By recognizing that a restriction on hyperlinking is a restriction on speech, the ECHR has shown an understanding about the realities of internet use in Europeans’ daily lives.

The case stems from a lawsuit by a Hungarian political party against a local news portal. The political party claimed that by linking to an allegedly defamatory YouTube interview, the news portal had itself committed defamation. Notably, the news portal did not conduct the interview in question. In fact, the article did not even mention the political party, nor did it repeat any of the interview’s controversial claims. Unfortunately, the Hungarian national courts sided with the political party and found the news portal liable for defamation.

The ECHR agreed to hear the case in 2016, to decide whether the Hungarian courts’ decisions violated Article 10 of the European Convention on Human Rights, which protects Europeans’ right to free expression. On 4 December 2018, the court found that there had in fact been a violation of Article 10. In its decision, the ECHR discusses the realities of internet use, saying, “in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet has played an important role in enhancing the public’s access to news and facilitating the dissemination of information in general.”

As more of our daily activities and communications move online, hyperlinking has played an important role in how we navigate the web. Everyday acts of hyperlinking include activities like sharing a news article with a friend, posting a video link on social media, or adding a citation to Wikipedia. Hyperlinks help us to verify sources, discover new information, and even navigate down ‘rabbit holes.’ The act of hyperlinking is essential to how we learn, collaborate and communicate on the internet, and no one should live in fear that a mere link could get them sued, particularly when they have no way to control any future changes to linked content.

Any law, or court decision, which instills such a fear can create a chilling effect on expression, damaging access to information online. The ECHR recognized this potential chilling effect in its decision, noting that “objective liability 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.”

In addition to facilitating everyday interactions and activities on the web, hyperlinking serves an important function for journalists who use links to document important issues of the day. In his concurrence clarifying the court’s holding, Judge Pinto de Albuquerque recognizes the importance of hyperlinks to journalists:

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. To paraphrase the words of Berners-Lee, hyperlinks are critical not merely to the digital revolution but to our continued prosperity—and even our liberty. Like democracy itself, they need defending.

If reporters can be silenced by being held liable for hyperlinks, journalists ability to make information available will suffer, making it much harder to find sources for free knowledge projects like Wikipedia.

Wikimedia applauds this decision to keep hyperlinking free. Each link on Wikipedia knits us just a little bit closer to our mission for access to knowledge for everyone, everywhere.

Allison Davenport, Technology, Law, and Policy Fellow
Jim Buatti, Legal Counsel
Wikimedia Foundation

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