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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  • icon
    Ninja (profile), 31 May 2017 @ 11:49am

    “If the courts want to prosecute people for likes on Facebook, we could easily need to triple the number of judges in this country,”

    And lawyers. So this will generate jobs! Keep up the good work Swiss!

    /sarcasm (in case someone actually agrees)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 12:13pm

    For future record, your honor, I completely dislike this article!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 May 2017 @ 12:15pm

    Yeah ok it's official; the Swiss have completely lost the plot too...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Jun 2017 @ 5:42am

      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/verur teilt-wegen-facebooklike/story/11348335

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

      reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 31 May 2017 @ 12:27pm

    So do any of these judge types use social media?
    If they do then they have just stuck their heads not in the sand but into the gapping maw of a howitzer loaded and ready for firing.
    Wonder what kind of impact they would make then?

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 31 May 2017 @ 12:28pm

    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.

    It can also mean "Thank you for bringing this matter to my attention. Thank you for taking a stand on it."

    WITHOUT meaning "I have researched and confirmed your claim."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2017 @ 8:37am

      Re: diculous fine for Re: diculous charge

      You are hereby prohibited from use of the like button, or like, any like like button

      reply to this | link to this | view in chronology ]

  • identicon
    YetAnotherOneGuy, 31 May 2017 @ 12:28pm

    Where's the like button for Swiss Court being made up of a bunch of mule-munching richard-heads.

    No country, anywhere has a basic right that states
    "You have the right not to be offended!"

    No country, nowhere, no-place...

    Those judges are a bunch of unit-of-wood-measurements!!

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 31 May 2017 @ 12:53pm

    stupid swiss

    They're assuming that a like means like. Was this prior to the multiple buttons? He could probably say he hated it because there was no dislike button at the time.

    I'd appeal this, and also mock the judges until they died.

    reply to this | link to this | view in chronology ]

  • identicon
    Vic, 31 May 2017 @ 1:14pm

    And the logical question to those judges would be "ever heard of satire? dark humor? metaphor? exaggeration?" Because now all that stuff can land a regular Swiss in a lot of financial trouble...

    reply to this | link to this | view in chronology ]

    • identicon
      Jordan Chandler, 31 May 2017 @ 1:25pm

      Re:

      I've liked funeral announcements...it didn't mean I was glad the person was dead. There were no other buttons.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 31 May 2017 @ 3:19pm

        Re: Re:

        Precisely! I've asked for "sad but true" and other buttons HERE any number of times, but all I've got are insightful, laugh-out-loud, and flag. There's many posts where I thought the post was good, but not insightful or funny, but that's all I have, so I just picked one.

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 31 May 2017 @ 3:45pm

    Retweets

    I routinely see people put "Retweets do not imply endorsement" in their Twitter profiles.

    I wonder if that would be enough to rebut a defamation claim under these circumstances.

    reply to this | link to this | view in chronology ]

  • identicon
    @b, 31 May 2017 @ 9:47pm

    1 like = 1 promote

    If you hit like on something you promote it.

    promote (verb):

    1. support or actively encourage (a cause, venture, etc.); further the progress of.

    2. raise (someone) to a higher position or rank.

    3. CHEMISTRY (of an additive) act as a promoter of (a catalyst).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Jun 2017 @ 3:46am

    "we could easily need to triple the number of judges"

    And what government doesn't like to grow?

    reply to this | link to this | view in chronology ]

  • icon
    Seegras (profile), 1 Jun 2017 @ 4:29am

    There's a very good analysis on this here:

    https://steigerlegal.ch/2017/05/30/urteil-facebook-likes/

    It's in German, though.

    reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 1 Jun 2017 @ 9:44am

    "By clicking the like button, “the defendant clearly endorsed the unseemly content and made it his own,” the court statement said.

    Hey Judge, I like your robe (click). Please hand over my robe.

    reply to this | link to this | view in chronology ]


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