Jusletter IT

In the editorial of our TechLawNews 11 we briefly¹ informed about a Facebook user having been sentenced by the County Court of Zurich on 29.5.2017 for «liking» and commenting on a libellous post of another Facebook user.² In the meantime there have been several rulings regarding «liking» and «sharing» on social networks, recently also by the Swiss Federal Court in an appeal³ of (yet another) case by the Supreme Court of the canton of Zurich.⁴

Whereas in 2017 the County Court of Zurich concluded that a user was clearly endorsing the content of a post by «liking» it (if not, the user should remain either silent or write a comment to the contrary) and thereby making the libellous content its own statement, the Federal Court took a differentiated stance on dissemination and endorsement of information via the «like» button on Facebook in its decision of 29.1.2020:⁵

«Liking» and «sharing» on social media platforms enable the (partly viral) dissemination of information. They can lead to better visibility of information and thus to dissemination of the tagged contribution in the social network. The Federal Court partially dissents with the Supreme Court of the canton of Zurich, which qualified «liking» as mixed evaluation. Instead, so the Federal Court, unlike commenting on a post, merely tagging by «liking» or «sharing» is generally without value. While «sharing» is not associated with any evaluation at all, «liking» remains somewhat diffuse despite giving «thumbs up». A user’s «like» can be interpreted in different ways: it can literally mean «I like», but it can also only be a simple acclamation of content, or even just confirmation of relationship to the author.⁶ Furthermore, posts can lead to so-called (ir-) rational herd-like behaviour of the social network community. Hence, in general, unless they are substantiated with an own comment, «liking» and «sharing» only disseminate information, i.e. they do not endorse the content (Cons. 2.2.3–2.2.4). It has also been suggested that a «thumbs up like» merely means «yes, I’ve seen the notice»⁷.

Given that there are dislike («thumbs down» or other mood) icons on certain platforms, e.g. in Facebook’s Messenger, in Threema, or in YouTube, there might indeed be room for mixed evaluation after all as suggested by the Supreme Court of the canton of Zurich: if one can select between a «thumbs up» and a «thumbs down» tag, there must be a difference. These tags cannot have the same «valueless» meaning.

Ultimately, it is a criminal offence actionable by monetary penalty under defamation law to disseminate an accusation against, or casts suspicion on, another person of dishonourable conduct (art. 173 sec. 1 para. 2 Swiss Criminal Code (SCC)).

Thus dissemination of defamatory content (art. 173 sec. 1 para. 2 SCC) requires a differentiated assessment. The offence is only committed if and once not only the defamatory accusation of the author «liked» or «shared» by the user becomes visible to a third party but also has been noticed⁸. This, so the Federal Court, depends in particular on the maintenance of the news feed or the algorithm of the social network service on the one hand, and the personal settings of the users on the other hand.

Finally, if an offence is committed and completed through publication in a medium, then, subject to certain exceptions, only the author is liable to prosecution (art. 28 SCC). In this 2020 decision, the Federal Court would have had an opportunity to clarify whether Facebook qualifies as media pursuant to art. 28 SCC, in which case the person disseminating a third party post by «liking» or «sharing» might benefit from the media privilege (Cons. 3). Unfortunately the court remained silent and missed this opportunity to give an opinion.

Daniel Ronzani