Magyar Jeti Zrt v Hungary (third-party intervention, 2018)
In September 2013, a group of football fans on their way from Hungary to Romania stopped at an elementary school in Hungary whose pupils were mostly Roma. The football fans made racist remarks, waved flags, and one of them allegedly urinated on the building. The head of the local Roma-minority self-government gave a video interview to a Romani media outlet the same day, associating the football fans with the Hungarian political party Jobbik, which, itself, has often been associated with anti-Roma prejudice. The next day, a journalist published an article about the event on the website www.444.hu with a link to the video of the interview on YouTube. Jobbik subsequently sued the website’s owner for damaging its reputation by linking to the video which Jobbik claimed contained defamatory statements, since Jobbik had not been involved in the incident. Jobbik won the case, which the website owner unsuccessfully appealed all the way to Hungary’s Supreme Court. The website owner complained to the European Court of Human Rights that being held liable for an electronic link violated Article 10 of the European Convention on Human Rights (freedom of expression).
The ERRC’s Third-Party Intervention
This is one of the third-party interventions for which we won the 2018 Columbia Global Freedom of Expression Prize in Legal Services.
In our intervention, we made two points.
The first was that when minorities targeted by hate crimes or hate speech associate those acts with the views of particular politicians or political parties, they are engaging in expression for which Article 10 of the European Convention on Human Rights (freedom of expression) provides a high level of protection. We asked the Court to consider the situation of Roma who, as the European Court has frequently recognised, require special protection under the Convention. In addition to living poorer, shorter lives with fewer opportunities, Roma are exposed to high rates of hate crimes and hate speech as well as to comments by politicians and political parties blaming them for a wide range of social problems. It was natural for many Roma to express a link between violent or otherwise extreme manifestations of antigypsyism on the one hand and politicians and political parties that cast their political arguments in racialised terms on the other. We relied on UN and Council of Europe sources that likewise noted the important role politicians play in creating an environment in which racial hatred – including hate crimes – can flourish. Restricting Roma from expressing such a link was, in itself, whether conscious or not, a manifestation of antigypsyism; it silences Roma and so perpetuates historical patterns of exclusion.
Our second point was that exposing online publishers to liability for the content of linked material will unduly burden civil society’s and racial minorities’ efforts to combat racism. We highlighted our own “rapid response” work in providing a rights-based commentary on unfolding events concerning violations of Roma rights through blogs, press releases, Facebook posts, and Twitter. That work was our contribution to the online fight against antigypsyism. We rely extensively on the use of electronic links to materials published online by others. If we had to carry out our online work under the threat of a lawsuit concerning those links, our rapid-response operation would have to change significantly, with a considerable chilling effect. We highlighted that although we operated across Europe, we were a registered foundation in Hungary.
The Court’s Judgment
The Court found a violation of the freedom of expression. At the time the journalist added the hyperlink to the article, that journalist could not have clearly seen that the statement on the video was clearly unlawful. Furthermore, Hungarian law did not allow the Hungarian courts to balance the competing rights. Under Hungarian law, the journalist liable for linking to what was later decided to be a defamatory statement, no matter what. That kind of automatic liability would have a chilling effect on journalists more generally, which was incompatible with the Convention. Judges needed to be able to balance the interests against each other.
Although the Court summarised our third-party intervention in its judgment (as it always does), the Court’s reasoning did not reflect the main point of the invention: that the underlying statement of the head of the local Roma-minority self-government could not be considered defamatory at all.
The Court’s judgment of facts can be found here.
The ERRC’s third-party intervention can be found here.