Defamation liability for hyperlinking to be considered again by the European Court of Human Rights
Can Yeginsu and Anthony Jones of 4 New Square have been instructed by Media Legal Defence Initiative, Article 19, Electronic Frontier Foundation, Mass Media Defence Centre, and Media Law Resource Centre in the case of Aleksey Navalnyy v Russia before the European Court of Human Rights. The Court will examine the position as a matter of Convention law and in particular the right to freedom of expression where an individual has hyperlinked to allegedly defamatory content available elsewhere online.
The background to the application relates to one of the largest instances of alleged tax fraud in the history of the Russian Federation. A prominent lawyer, Sergei Magnitsky, first exposed brought attention to the alleged fraud when he uncovered an overnight transfer worth 5.4 billion RUB (approximately 75 million GBP) made by the tax authorities at the behest of a company’s request for a tax refund. Mr Magnitsky made several criminal complaints regarding the tax refund but the authorities took no action. Instead, Mr Magnitsky was convicted for alleged tax evasion. While in prison, Mr Magnitsky became seriously ill and eventually succumbed to untreated pancreatitis. Further investigations revealed that he had been subjected to severe beatings and other forms of torture while in prison.
The applicant in the case before the Strasbourg Court, Aleksey Navalnyy, is a prominent Russian political activist and opposition leader who sought to highlight the alleged corruption that Mr Magnitsky had exposed. With this in mind, he posted a link on his LiveJournal blog to a YouTube video reporting on the 5.4 billion RUB tax refund. A Russian court held that the video was defamatory of an individual referred to in the report. The court found Mr Navalnyy liable for statements that were made in the video as if they were his own, and ordered him to pay 100,000 RUB (approximately 1,400 GBP) in damages to the individual.