6.  The applicant company operates a popular online news portal in Hungary called 444.hu, which averages approximately 250,000 unique users per day. The online news portal has a staff of twenty-four and publishes approximately seventy-five articles per day on a wide range of topics, including politics, technology, sport and popular culture.
7.  On 5 September 2013, a group of apparently intoxicated football supporters stopped at an elementary school in the village of Konyár, Hungary, while travelling by bus to a football match. The students at the school were predominantly Roma. The supporters disembarked from the bus, and proceeded to sing, chant and shout racist remarks and make threats against the students who were outside in the playground. The supporters also waved flags and threw beer bottles, and one of them reportedly urinated in front of the school building. To protect the children, the teachers called the police, took the children inside and made them hide under tables and in the bathroom. The football supporters boarded the bus and left the area only after the police arrived.
8.  On 5 September 2013, J.Gy. the leader of the Roma minority local government in Konyár gave an interview, in the company of a pupil of the elementary school and his mother, to Roma Produkciós Iroda Alapítvány, a media outlet with a focus on Roma issues. While describing the events, and referring to the arrival of the football supporters in Konyár, J.Gy. stated that “Jobbik came in[1]” (Bejött a Jobbik). He added: “They attacked the school, Jobbik attacked it”, and “Members of Jobbik, I add, they were members of Jobbik, they were members of Jobbik for sure.” On the same day the media outlet uploaded the video of the interview to Youtube.
9.   On 6 September 2013 the applicant company published an article on the incident in Konyár on the 444.hu website with the title “Football supporters heading to Romania stopped to threaten gypsy pupils”, written by B.H., a journalist of the Internet news portal. The article contained the following passages:
“By all indications, a bus full of Hungarian football supporters heading to a Romania-Hungary game left a highway in order to threaten mostly Gypsy pupils at a primary school in Konyár, a village close to the Romanian border.
According to our information and witnesses’ statements, the bus arrived in the village Thursday morning. The supporters were inebriated and started insulting Gypsies and threatening the pupils. Teachers working in the building locked the doors and instructed the smallest children to hide under the tables. Mr J.Gy., president of the local gypsy [cigány] municipality, talked to us about the incident. A phone conversation with Mr Gy. and a parent has already been uploaded to Youtube.”
The words “uploaded to Youtube” appeared in green, indicating that they served as anchor text to a hyperlink to the Youtube video. By clicking on the green text, readers could open a new web page leading to the video hosted on the website of Youtube.com.
10.  The article was subsequently updated three times – on 6 and 12 September and 1 October 2016 – to reflect newly available information, including an official response from the police.
11.  The hyperlink to the Youtube video was further reproduced on three other websites, operated by other media outlets.
12.  On 13 October 2013, the political party Jobbik brought defamation proceedings under Article 78 of the Civil Code before the Debrecen High Court against eight defendants, including J.Gy., Roma Produkciós Iroda Alapítvány, the applicant company, and other media outlets who had provided links to the impugned video. It argued that by using the term Jobbik to describe the football supporters and by publishing a hyperlink to the Youtube video, the respondents had infringed its right to reputation.
13.  On 30 March 2014 the High Court upheld the plaintiff’s claim, finding that J.Gy.’s statements falsely conveyed the impression that Jobbik had been involved in the incident in Konyár. It also found it established that the applicant company was objectively liable for disseminating defamatory statements and had infringed the political party’s right to reputation, ordering it to publish excerpts of the judgment on the 444.hu website and to remove the hyperlink to the Youtube video from the online article.
14.  The judgment of the High Court contains the following relevant passages:
“...
The Court established that first defendant J.Gy. violated the plaintiff Jobbik Magyarorszagért Mozgalom’s inherent right of protection against defamation by falsely claiming in his statements given to the second defendant on 5 September 2013 and uploaded to youtube.com, and to the sixth defendant on 7 September and uploaded to haon.hu that the events that had taken place on 5 September 2013 in front of the primary school of Konyár, had been done by the plaintiff party, and that the people who had taken part in it were individuals associated with the plaintiff party. The Court established that the second defendant, Roma Produkcios Iroda Alapitvany; the fourth defendant, I.V., the fifth defendant, Magyar Jeti, the sixth defendant. Inform Média Kft; and the eighth defendant HVG Kiadó Zrt. also violated the plaintiffs inherent right to be protected against defamation as the second defendant uploaded the first defendant’s false statement to youtube.com, and the fourth defendant made it available and disseminated it on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu. and the eighth defendant on hvg.hu.
...
The Court obliges the first and second defendants to make the first and second paragraphs of this judgment publicly available within 15 days and for a period of 30 days on youtube.com at their own cost, and for the fourth defendant to make it publicly available on romaclub.hu, the fifth defendant on 444.hu, the sixth defendant on haon.hu, and the eighth defendant on hvg.hu.
It also obliges the fifth defendant to delete the link to the first defendant’s statement uploaded to youtube.com in its article "Supporters on their way to Romania stopped by to threaten gipsy students" published on 6 September 2013, within 15 days.
Defamation can be realised not only by the stating of a falsehood but also by the publication and dissemination of a falsehood that pertains to another person (see Article 78 § 2 of the Civil Code). When establishing the occurrence of an infringement, it does not matter whether the persons concerned acted in good or bad faith, [but] whether the infringement can be imputable to them or not.
With regard to the above mentioned, the Court established that the second, fourth and fifth [the applicant company], sixth and eight defendants also violated the plaintiff’s inherent right to be protected against defamation by publishing and publicly disseminating the first defendant’s defamatory statement.
...
The objective sanctions for the violation of inherent rights:
Pursuant to Paragraph 1 of Section 84 of the Civil Code, a person whose inherent rights have been violated shall have the following options under civil law, depending on the circumstances of the case:
a) demand a court declaration of the occurrence of the infringement;
c) demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure for restitution;
d) demand the termination of the injurious situation and the restoration of the previous state by and at the expense of the perpetrator and, furthermore, to have the effects of the infringement nullified or deprived of their injurious nature.
The above cited sanctions [Article 84 § 1 of the Civil Code] for the violation of inherent rights are objective in nature, [and] therefore are independent from the imputability of the perpetrator or the lack of it. The violation itself forms the basis for the application of an adequate objective sanction. With regard to the above mentioned, the Court established that the defendants violated the plaintiff’s Inherent rights, based on Paragraph 1 a) of Section 84 of the Civil Code.
With regard to the restitution in accordance with Paragraph 1 c) of Section 84 of the Civil Code, the Court ordered the defendants - pertaining to the infringement they have realized by their proceedings - to make public in the affected websites the first and second paragraphs of the judgment that contain the establishment of the infringement and at the same time affect the plaintiff and declare the falseness of the statement that was made publicly available. Just as they did so with the first defendant’s declaration that contained untrue statements. Since the plaintiff’s harm can be repaired in the objective sanctions’ circle with the given provision, the Court rejected that part of the plaintiff’s claim that referred to the public dissemination of a declaration with a different content.
Based on Paragraph 1 d) of Section 84 of the Civil Code, the Court ordered the fifth defendant to deprive its related report of its injurious nature, but it rejected the same claim the plaintiff submitted against the eighth defendant, since it can be established by the facts of the case that the eighth defendant’s report available on hvg.hu merely links to the report that appeared on the website 444.hu maintained by the fifth defendant, therefore the latter’s deprivation of its injurious nature effectively results in the deprivation of the report on hvg.hu of its injurious nature.
The subjective sanctions of violation of inherent rights:
Based on Paragraph 1 e) of Section 84 of the Civil Code, a person whose inherent rights have been violated shall file charges for punitive damages in accordance with the liability regulations under civil law.
Based on Paragraph 1 of Section 339 of the Civil Code, a person who causes damage to another person in violation of the law shall be liable for such damage. He shall be relieved of liability if he is able to prove that he has acted in a manner that can generally be expected in the given situation. Based on Paragraphs 1 and 4 of Section 355 of the Civil Code, the person responsible for the damage shall indemnify the aggrieved party for non-material damages. The four conjunctive conditions of indemnification of non-material damages are; 1) the violation of law in the violation of inherent rights; 2) imputability; 3) non-material disadvantage; 4) causal link between the violation of inherent rights and the non-material disadvantage.
With regard to legal persons, the non-material damage is non-material disadvantage or loss manifested in the assessment of the legal person, and in the adverse changes in its business turnover, in its participation in other relations and in the situation and quality of its existence and operations.
The occurrence of the disadvantage can be established not just on the basis of evidence but by publicly known facts as well, based on Paragraph 3 of Section 163 of the Code of Civil Procedure (BH.2001.178.)
In the case in question, the Court established it as a publicly known fact that the first defendant’s statement, which presented the plaintiff political party as such that committed an aggressive, threatening and racist event, and which was later on publicly disseminated by the other defendants, caused non-material damage in the assessment of the plaintiff political party. This circumstance is rejected and regarded with disdain by a wide layer of society, and it forces the legal person "associated" with such events to explain and clarify its role (or in this case, the lack of its role). In the case of a political party with parliamentary representation, this kind of non-material damage can especially be caused by such violation of inherent rights committed nearly six months prior to the parliamentary elections.
With regard to the first defendant, the Court established the fact of imputability out of the conditions of indemnification for non-material damages....
In the case of the other defendants, the Court did not establish their imputability with regard to the violation of law, and consequently, the Court rejected the plaintiff’s claim for indemnification for non-material damages against the other defendants, as follows:
In their own online news websites maintained by the fifth [the applicant company], sixth and eight defendants, the defendants in question published reports that presented the events of 5 September in the most realistic way, and they used the available information channels and forms of control in the expected manner. They presented contradictory information and opinions in an objective manner, remained true to the information and the given opinions. The fact that the defendants also included [Mr J.Gy.’s statements] does not violate the procedure expected from the staff of the press in such a situation [is] not regarded as a deliberately false publication, and therefore does not call for the establishment of whether the employees of the given defendants failed to examine the veracity of the facts, and in relation to this, failed to act with the precision necessary for the responsible practice of the constitutional right to freedom of expression. In contrast with this, it can explicitly be established based on the content of the testimonies and the submitted reports that the employees of the affected defendants acted with the precision necessary for the responsible practice of their work[:] they examined, exposed and presented the veracity of the facts[;] therefore they acted in a manner that would generally be expected from them in the given situation.
...”
15.  The applicant company appealed arguing that public opinion associated the notion of “Jobbik” not so much with the political party but with anti-Roma ideology, and the name had become a collective noun for anti-Roma organisations. According to the applicant company, the statement had not had an offensive content regarding the political party, since it had been publicly known that Jobbik had been engaged in hatred-inciting activities. The applicant company also emphasised that by making the interview with the first defendant available in the form of a link but not associating the applicant company with the video’s content, it had not repeated the statements and had not disseminated falsehoods.
16.  On 25 September 2014 the Debrecen Court of Appeal upheld the first-instance decision. It held that the statement of J.Gy. had qualified as a statement of facts because it had given the impression to the average audience that the football supporters had been organisationally linked to the political party. The court found that the statement had been injurious to the political party since it had associated the latter with socially reprehensible conduct. As regards the applicant company in particular, it held:
“... With regard to the fifth defendant’s [the applicant company’s] reference in its appeal, the court of first-instance correctly established that making a false statement available through a link, even without identifying with it, qualifies as the dissemination of facts.
Dissemination (or circulation) is the sharing of a piece of news as a content of thought and making it available for others. Contrary to the fifth defendant’s viewpoint expressed in its appeal, the infringement of law by dissemination occurs even if the disseminator does not identify with the statement, and even if their trust in the veracity of the statement is ungrounded. Making lawful content available in any form qualifies as dissemination; and the disseminator bears objective responsibility for sharing another person’s unlawful statement owing to the occurrence of the sharing.
Based on the grammatical and taxonomical interpretation of dissemination defined in Article 78 § 2 of the Civil Code, it occurs by the sharing of information, which makes the given content accessible to anyone. The essence of dissemination is the sharing of information, and owing to the objective legal consequence, it does not matter what the goal of the sharing was, whether the disseminator acted in good or bad faith, nor do the scope of publicity or the gravity of the infringement have any relevance.
...”
17.  The applicant company lodged a constitutional complaint under Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) on 1 December 2014, arguing in essence that under the Civil Code, media outlets had objective liability for dissemination of false information, which according to judicial practice meant that media outlets were held liable for the veracity of statements that clearly emanated from third parties. Thus, even if a media organ prepared a balanced and unbiased article on a matter of public interest, it could still be found to be in violation of the law. This would result in an undue burden for publishers, since they could only publish information whose veracity they had established beyond any doubt, making reporting on controversial matters impossible. It argued that the judicial practice was unconstitutional since it did not examine whether a publisher’s conduct had been in compliance with the ethical and professional rules of journalism, but only whether it had disseminated an untrue statement. In the area of the Internet where the news value of information was very short, there was simply no time to verify the truthfulness of every statement.
18.   Two of the defendants also lodged a petition for review with the Kúria. The applicant company argued that the second-instance judgment restricted the freedom of the press in a disproportionate manner, as it had only reported on an important issue of public concern, in compliance with its journalistic tasks. It emphasised that, as established by the lower-level courts, its report on the issue had been balanced. It further maintained that the statement of J.Gy. qualified as an opinion rather than a fact. In any event, it had not been engaged in the dissemination but had merely fulfilled its journalistic obligation of reporting.
19.  The Kúria upheld the second-instance judgment on 10 June 2015 (served on the applicant company on 4 September 2015), reiterating that J.Gy.’s statements were statement of facts and that the defendants had failed to prove their veracity. Although the term jobbikos was used in colloquial language, in the case at issue J.Gy. had explicitly referred to the political party and its role in the incident. As regards the question of whether the applicant company’s activity constituted dissemination of information the Kúria found:
“Both in criminal law and other cases of civil law, the Kúria has taken the legal standpoint ... that dissemination is carried out by sharing or making public any information, as a result of which anyone can have access to the given content. The Internet is only one possible alternative for publishing, it is the forum of dissemination, meaning that information and facts are shared through a computer network. Internet link to one’s own publication serves an appendix; it becomes accessible and readable with a single click. The Civil Code established objective responsibility for the dissemination, irrespective of the good or bad faith of the disseminator. In the Kúria’s view, requiring media outlets not to make injurious statements accessible does not constitute a restriction of freedom of the press or freedom of expression, nor was it an obligation on them which cannot in practice be met.”
20.  On 19 December 2017 the Constitutional Court dismissed the constitutional complaint. It emphasised the second-instance court’s finding that providing a hyperlink to content qualified as dissemination of facts. Furthermore, dissemination was unlawful even if the disseminator had not identified itself with the content of the third-party’s statement and even if it had wrongly trusted the truthfulness of the statement.
21.  The Constitutional Court also reiterated its previous case-law concerning reporting about public figures’ press conferences, stating that such conduct did not qualify as dissemination if the report was unbiased and objective, the statement concerned a matter of public interest, the publisher provided the source of the statement and gave the opportunity to the person concerned by the potentially injurious statement a possibility to react. In such cases, according to the Constitutional Court, journalists neither made their own statements nor did they intend to influence public opinion with their own thoughts. Therefore, the liability of the press for falsehoods was to be distinguished from situations where the media content was merely defined by the own choices and decisions of the editors and journalists. Specifically, in these situations the aim of a publication was neither to enrich nor to influence public debate with the journalists’ own arguments, but to provide an up-to-date and credible report on the statements of third‑parties participating in public debates. The interest of a public debate required accurate reporting about press conferences.
22.  Concerning the present case, the Constitutional Court found that the dissemination of a falsehood did not concern a statement expressed at a press conference. The statement in question had related to a media report about an event which the press had presented according to its own assessment. The press report had summarised information concerning an event of public interest. A press report fell outside the definition of dissemination only if the aim of the publication was to provide a credible and up-to-date presentation of statements of third parties of a public debate. However, in the present case the Kúria found that the aim of the publication had not been the presentation of J.Gy.’s statements, but the presentation of the contradictory information concerning the event. Thus the press report qualified as dissemination.