‘Liking’ a Facebook post is tricky legal territory

A recent Swiss court conviction found that “liking” a post on Facebook can be considered defamation in part because it propagates the information in the post. The ruling wades into new and somewhat murky legal waters, says a specialist in internet law.

Mathis Kern is a partner at the Geneva-based law firm Byrne-Sutton Bollen Kern. He explains that Article 173 of the Swiss Criminal Codeforbids making untrue statements about a person that accuse them of dishonourable behaviour, and disseminating such untrue statements made by others. Other Western European countries such as France and Germany have similar legislation, whereas Anglo-Saxon countries tend to distinguish more between libel (written defamation) and slander (verbal).

On Monday, a Zurich court found a Swiss man guilty of defamation in part for “liking” Facebook comments accusing an animal rights activist of racism and anti-Semitism. The court also charged the man with defamation based on having commented on and shared several of the posts.

To Kern, it’s clear that commenting on posts fits under the clause about making untrue statements, and that sharing posts amounts to dissemination. But he finds the act of “liking” a post “difficult to place” within the law.

“I personally feel that it’s a bit of a stretch to say that a mere ‘like’ amounts to the endorsement of a statement,” he said, adding that it’s also not clear whether “liking” a post necessarily disseminates it.

Facebook’s guidelines say that if a user clicks “like” on one of its posts, three things happen: people who see the post will be able to see that the user liked it; a story will be posted to the user’s timeline saying that he or she liked the post; and the person who posted the item will be notified that the user “liked” it.

Kern points out that it’s difficult to understand the Zurich court’s motives without access to the full decision, which has not yet been made public.

“In this case the court probably looked at all of the elements together; I’m not sure the conviction would have gone through just based on Facebook ‘likes’,” he said.

Nevertheless, he urges social media users to be “cautious”, especially until it’s clear whether the decision will be upheld by higher courts.

Although he believes this conviction to be unprecedented in terms of its partial basis on Facebook “likes”, Kern points out that so-called cyber mobbing via Facebook has become one of the most frequent forms of defamation.

“Apparently, people on Facebook tend to have fewer inhibitions than otherwise.”