Swiss Court Sanctions Commenter For 'Liking' Defamatory Posts

from the click-it-and-ticket dept

In the era of “retweets ≠ endorsements,” a ruling like this makes no sense. It makes no sense even without this caveat, but welcome to Switzerland’s bizarre take on free speech.

A Swiss court has fined a man for “liking” defamatory comments on Facebook, in what is believed to be the first case of its kind.

According to a statement from the Zurich district court, the 45-year-old defendant accused an animal rights activist, Erwin Kessler, of racism and antisemitism and hit the “like” button under several comments from third parties about Kessler that were deemed inflammatory.

According to the court, you don’t actually have to make defamatory statements to be fined for defamation. All you have to do is show your supposed support by clicking a button. Even if the defendant agreed with the inflammatory comments (information provided in the Guardian’s article suggests Kessler has a distant racist past, which likely prompted the online dogpile), he did not make the statements himself. That people routinely use “like” buttons to flag stuff they want to keep track of and re-post things they don’t agree with apparently wasn’t considered. Or, if it was, it was quickly discarded.

The court said it did not matter that the comments had not originated from the defendant, whose name was not given. By clicking the like button, “the defendant clearly endorsed the unseemly content and made it his own,” the court statement said.

Just as surprising is the fact that several people ended up being fined in relation to this Facebook discussion. Except all the other fines were handed down in response to comments made. This defendant is the only one being punished for his “likes.”

His lawyer raises a very good point:

“If the courts want to prosecute people for likes on Facebook, we could easily need to triple the number of judges in this country,” he said. “This could also obviously easily become an assault on the freedom of expression.”

The small mistake in this statement is there’s no need to use the future tense. The assault on freedom of expression has already begun, where button clicks are treated as publication of defamatory statements.

Considering the court’s extremely disturbing definition of defamatory speech, those fined in connection with this group thread perhaps picked the most inadvertently-hilarious hill to die on:

The comments were made in 2015 during heated discussions on a range of Facebook groups about which animal welfare groups should be permitted to take part in a vegan street festival, the Swiss daily Tages Anzeiger reported.

Somewhere in that sentence is a metaphor about progressives devouring themselves that begins with heated Facebook discussions and ends with someone overturning cars in a Whole Foods parking lot.

Beyond the entertaining mental image of PC’er-than-thou types devolving into defamatory mudslinging is the uncomfortable reality of the Swiss judicial system, where being little more than a bystander in a heated discussion turns you into a legally-culpable participant.

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Comments on “Swiss Court Sanctions Commenter For 'Liking' Defamatory Posts”

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20 Comments
Anonymous Coward says:

Re: Re:

1) Take a look at Kessler’s long history of nasty comments about people’s Jewishness. Yucky and creepy.

https://de.wikipedia.org/wiki/Erwin_Kessler

Mostly a long way back. Does that mean you can’t talk about them?

2) Why do you end the article by talking about PC? This is misuse of libel law and lack of a free speech culture to begin with. Very traditional and anchored in Switzerland: silence is golden. It’s not really PC per se. PC (in this case good PC) would take Kessler to task for his nasty comments. WITHOUT forbidding them or allowing civil actions against them!!

3) Techdirt, where’s the original post with the anti-Kessler statements and comment section? Is it in the court filing? Is it on the net? In the spirit of transparency, I want screenshots!

4) Some local links

http://www.20min.ch/schweiz/news/story/14184016
http://www.tagesanzeiger.ch/zuerich/region/verurteilt-wegen-facebooklike/story/11348335

The person who did the liking is not identified (also not in the Techdirt article unless I overlooked it).

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