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07 April 2020
The Supreme Court recently issued a judgment concerning 'likes' and 'shares' of defamatory posts on Facebook (Decision 6B_1114/2018 of 29 January 2020). The Supreme Court held that liking and sharing posts can potentially amount to punishable defamation. However, persons accused of defamation have the right to prove that such statements were true or that they could believe in good faith that they were true, which may excuse such actions under the Criminal Code.
The defendant sent an email to the vice president of an association enquiring about the alleged antisemitic ideology of said association. In addition, the defendant had commented, liked and shared several posts from third parties on Facebook in which the association and another person were accused of having an antisemitic, national socialist and racist background and of using racist expressions.
The Zurich Superior Court confirmed a first-instance decision which had considered the defendant's actions to amount to defamation pursuant to Article 173 of the Criminal Code and convicted him accordingly, sentencing him to pay a penalty of Sfr1,800, the court fees and the costs of the proceedings.
The defendant appealed to the Supreme Court.
The Supreme Court held that the content of the defendant's email and Facebook posts, shares and likes was sufficient to have disrespected the addressed persons and could be considered an act of defamation.
However, with respect to the special status of Facebook as a social network rather than a traditional means of publication, the court held that the act of liking or sharing content alone is free of judgement and merely entails a diffuse, tentative meaning. Only if liking or sharing such content makes it accessible to third parties who would otherwise not have retrieved it can the potentially unlawful distribution of defamatory statements occur.
Such distribution thus depends on the account settings and the algorithm used by Facebook. In this regard, the Supreme Court had to rely on the factual findings of the Zurich Superior Court, because the defendant did not specifically argue an error of fact.
Therefore, the Supreme Court was bound by the Zurich Superior Court's assessment, according to which the liked and shared posts had been brought to the attention of third parties. For this reason, the Supreme Court did not decide whether the mere liking or sharing of content would suffice, but rather concluded that the liking and sharing of defamatory posts, together with the defamatory email and comments were in principle suitable to constitute a defamation under Swiss law.
Under the Criminal Code, in a defamation case the accused person may escape criminal liability by proving that the statements in question were true or could be deemed to be true in good faith. In that regard, a distinction is made between defamatory statements of fact (whose content can be proven by evidence) and so-called 'value judgments', which cannot be verified because they constitute a mere expression of disrespect without referring to substantive facts. In the latter case, a justification by proof of the truth is excluded.
In the case at hand, the Supreme Court found that the defendant's enquiry as to whether the association pursued an antisemitic ideology constituted a statement of fact, which can be ascertained. Further, the Supreme Court considered the content of the Facebook posts and the specific expressions to be a mixture of statements of fact and value judgments.
The crucial question was thus whether such a combination could be verified. Unlike the Zurich Superior Court, the Supreme Court concluded that the truth of the posts in question could be ascertained; in other words, that it would be possible to furnish evidence as to whether the concerned persons in fact pursued an antisemitic, national socialist and racist ideology. Thus, the Supreme Court referred the case back to the Zurich Superior Court for further proceedings on this question.
The Supreme Court's decision has addressed – for the first time – a potential defamation by liking or sharing posts on a social network. The Supreme Court confirmed that a liked or shared post can amount to a defamation if such action facilitates the distribution of defamatory statements to third parties. The following points are worth considering in light of this decision.
First, it is somewhat surprising that the Supreme Court attributes only a diffuse, tentative meaning to a 'like'. This English word is used in most, if not all, of Facebook's operating languages and is arguably considered an expression of support for a statement. This is reinforced by the fact that a like entails a thumbs-up pictogram, which is hardly meaningless or diffuse.
Second, the Supreme Court held that the decisive factor is whether the act of liking or sharing enables the distribution of defamatory statements to third parties. In that regard, the privacy settings of the original author, the person liking and sharing the post and the Facebook algorithm are of paramount importance. Arguably, this eventually boils down to a question of evidence: defamation by means of liking or sharing requires proof that third parties (ie, 'friends') of the accused person could access that post. The feasibility of such a proof is doubtful, since the actual accessibility could be proven only by accessing their profiles.
In the case at hand, the sum of alleged defamations was not limited to the liking and sharing of a Facebook post, but included an email and comments written by the defendant. Therefore, it is unclear whether the Supreme Court would have rendered the same decision if it had not been supported by a clearly defamatory email and comments.
Third, the present decision did not confirm any final convictions, but rather held that the defendant had a right to prove the truth of the content of the posts in question. If he succeeded in proving that the person mentioned in the posts had in fact an antisemitic, national socialist and racist mindset as described therein or that the defendant could in good faith deem these statements to be true, his liking and sharing of the posts would be justified and he would be exempted from criminal liability.
Lastly, although the present decision was rendered under the ambit of Facebook, it could likely be transferred to other social networks such as LinkedIn or Instagram.
For more information please contact Dominique Müller or Janine Häsler at Lenz & Staehelin by telephone (+41 58 450 80 00) or email (firstname.lastname@example.org or email@example.com). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
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