Mashing the Facebook share or like buttons on defamatory content as well as anti-Semitic propaganda or other far-right drivel could amount to a crime in Switzerland as a result of a ruling in Swiss Federal Court this week.
The defendant in the case had liked posts that accused animal rights activist Erwin Kessler of being an anti-Semite and a neo-Nazi, the Local reported, with a Zurich court ruling in 2017 that he must pay a fine for helping spread defamatory content. (Kessler was convicted of racial discrimination in 1998.) According to Bloomberg, the Federal Court upheld the Zurich court’s ruling that liking and sharing content can constitute defamation, writing that “activating both ‘like’ and ‘share’ buttons in Facebook can improve visibility and thereby contribute to the dissemination within the social network of marked content.”
Bloomberg indicated that while the case in question was about accusations of racism (defamation) and not hate speech per se, the Federal Court ruling has implications for anyone trying to spread content prohibited by Swiss law. (Both defamation and many forms of racism are criminal offenses in Switzerland.) If a court determines that the intent of hitting the like or share button on defamatory or hateful post was to disseminate it to a wider audience, the user who did so could be held liable.
Media lawyer Martin Steiger told the Tages Anzeiger in 2017 that the intent element of the case was the crucial factor.
“It always depends on what a ‘like’ means and what someone was aiming to achieve with it,” Steiger told the paper. “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.”
Steiger added that because the defendant had clearly indicated his intent was to spread the content, the ruling was “not necessarily unjustified.”
While the Federal Court upheld the legal logic behind the fine, it also punted the original case back to the Zurich court for do-over on the grounds that it had not properly given the defendant the chance to argue that the posts he liked were actually true, according to Bloomberg. Federal justices wrote that the lower court “had so far wrongly refused the accused the opportunity to prove the reality of the disputed accusations.” Facebook didn’t respond to Bloomberg’s request for comment.