Court convicts a man of defamation by Facebook like
“What’s on your mind?” used to be the way Facebook would greet you when pressing the status update box. There are various reasons that you should think twice about answering that question honestly, but until recently “you may be sued” was quite near the bottom of the list. But as social media becomes all encompassing, the risks are undoubtedly there: Katie Hopkins recently paid £24,000 for libeling Jack Monroe and Sally Bercow paid undisclosed damages for her use of the phrase “*innocent face*” on Twitter.
But a landmark legal case in Switzerland has shown that you don’t necessarily have to post the content yourself to be guilty of defamation – just publicly agreeing with the sentiment in a way that spreads it can be enough to land you in hot water.
An unnamed 45-year-old man from Zurich was found guilty of defamation after clicking the like button on a number of posts attacking Erwin Kessler, president of an animal rights group. The posts – published in a group debating which animal rights organisations should be invited to the vegan street festival Veganmania Schweiz – allegedly accused Kessler of being racist, anti-semitic, and fascist, while some described his organisation as a neo-Nazi group. Mr Kessler brought the case to court, arguing that by liking the posts, the defendant had spread the accusations by making them visible to a wider audience.
That’s an important part of this case: it wasn’t the act of liking, as such, but the knock-on effect that liking something has within Facebook. Pressing the like button not only expands the reach of a post within your social network, but also boosts the post in Facebook’s internal algorithms. In crude terms, the more something gets liked, the more Facebook shows it, and the more people who will see it.
Judge Catherine Gerwig agreed, stating that liking the posts was “spreading a value judgement”, and that a “like” had positive connotations, meaning the the defendant agreed with the posts’ contents. The court ruled that the defendant could not prove that the statements about Kessler were true or that he had serious reasons” to think that they were.
The Telegraph reports that while Mr Kessler was convicted of a racial discrimination charge in 1998 over his attempts to prevent the lifting of a ban on shechita, that is insufficient for him to be fairly accused of racism nearly 20 years later. As such, the defendant was hit with a suspended fine. Other people have since hit with similar suits in Zurich, Lucerne and Bern according to Swiss newspaper Tages Anzeiger.
So does that mean from now on you should be careful with your Facebook reactions? Not necessarily. As media lawyer Martin Steiger told Tages Anzeiger, “A ‘like’ doesn’t always mean that someone likes the content of a post. If, for instance, there’s an accident, then it also means expressing sympathy. Or that you find it good that someone shares something on Facebook.”
In this instance, however, the defendant made it clear they supported the content and wanted to disseminate it, according to The Telegraph. But what makes me a little uneasy about this is that Facebook doesn’t make it clear that liking a post can spread it beyond its current reach. If you’re a casual user of Facebook, you might well think that liking a post is between you and the person who posted it – it is quite a different species to a retweet, which republishes the content on your page, demonstrably spreading something beyond its original source. Intent has clearly been taken into account in this case however, and hopefully it won’t be lost in translation if it sets a lasting legal precedent.
Still, it doesn’t hurt to be cautious with what you publish online. As Steiger said: “Whoever clicks ‘like’ on content on Facebook should know what they want to mean by it.”