Litigation enlivened by Facebook "liking"

Gone are the days where defamation cases solely concerned allegations in newspaper articles or remarks on the radio. Now Australian courts are hearing trials over tweets, feuds over Facebook and litigation over Linkedin. But a Swiss court has taken it one step further making a finding of defamation against a Facebook user for liking a post.

A statement from the Zurich district court has revealed that a 45-year old man has been fined for liking what a judge deemed to be defamatory Facebook posts.

The comments accused Erwin Kessler, the president of an animal rights group, of racism and anti-Semitism. The posts arose on Facebook during discussions about which animal activist groups should be allowed to participate in Veganmania Schweiz, a large vegan festival in Switzerland.

The posts claiming that Kessler was racist and that his welfare group was a neo-Nazi association were liked by several Facebook users, including the defendant.

Kessler commenced legal action against several people who contributed and participated in the posts. Several users who posted on during the discussion were found guilty of defamation, but the defendant is believed to be the first person to have been fined for simply “liking” such comments. Court documents reveal that the defendant’s “liking” of the posts were an “affront to [Kessler’s] honour” and was a clear endorsement of the “unseemly content”.

Social media defamation cases are going viral in Australia. Last year a Facebook post insinuating that the plaintiff was a paedophile cost one Facebook user $150,000. Justice Gibson of the NSW District Court, warned social media users that:
The anonymity instantaneous and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of person who see themselves as caped crusaders or whistleblowers, or alternatively want to ‘troll’ other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention”

But the decision of the Swiss court reinforces the need for caution in maintaining a social media presence. While Australian courts have so far restricted finding the requisite ‘publication’ of defamatory remarks to those who post, it may not be long before “liking” results in more than Facebook notifications.

Written by Laura Scotton. If you would like to more about defamation, please contact us.