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The traps of social media: to ‘like’ or not to ‘like’

A recent Swiss case reported in the media has raised the spectre of criminal liability and/or defamation for merely ‘liking’ a 3rd party post on Facebook. Whilst this may have been the first time that this specific issue has come up in court it may not be the last! We are all already very aware of the trouble that can result from indulging in posts and tweets on line which may cause offence but until now merely ‘liking’ a post has not, to the author’s knowledge, given rise to any liability.

In this case, the ‘like’ on Facebook related to a post which accused Erwin Kessler, the president of an animal rights group, of anti-Semitism and racism.

The context of the post was discussions online about which animal welfare groups should be able to join in a vegan street festival. The posts referred to Mr Kessler as racist and anti-Semitic and were ‘liked’ by a number of people, including the defendant. Mr Kessler then took action against one of them on the basis that the likes had spread the message out more widely.

The judge indicated that ‘liking it’ was akin to ‘spreading a value judgment and that a ‘like’ had a positive connotation and suggested support of the content.

Here, according to the media reports, as the defendant could not prove that the statements about Mr Kessler were true or that he had a real basis to believe that they were, he was convicted and fined £3,190.

Would/could the same result happen under UK, or indeed Scottish law? Under the law of defamation in the United Kingdom it is no defence to say that you were not the originator of the material but only republished it. However ‘liking’ is not the equivalent of republishing as such, although it may have the effect of spreading the ‘liked’ content further than otherwise might have been the case.

Like by Mizter_x94. CC0 public domain via Pixabay.

However under the Communications Act 2003 (‘the Act’) in the United Kingdom, improper use of a public electronic communications network can be an offence. Such ‘improper use’ includes, for example, if someone sends or causes to be sent by means of a public electronic communications network, a message or other matter that is grossly offensive or of an indecent, obscene, or menacing character.

In addition it is an offence if a message that is known to be false is sent or caused to be sent by means of such a network for the purpose of causing annoyance, inconvenience, or needless anxiety to another.

Whilst it might be debatable if a ‘like’ falls within the scope of the Act as actually causing the message to be sent or is defamation, a retweet or even a ‘share’ of material which is potentially defamatory may well amount to sending it or causing it to be sent and may thus be caught by the Act and/or be defamatory.

Therefore the best approach may be to regard any such likes/shares/retweets as equivalent to actually authoring and publishing the material in the first place as it may be no excuse to say that you were not the primary source.

This is not in reality anything new and does not mean that the floodgates are open to defamation actions and/or criminal prosecutions for such online activities. Firstly the key targets are most likely to be the primary authors as without them the viral spread would not have been possible at all. Secondly there are the practicalities as ever of dealing with identifying the offenders and the sheer numbers that may be involved. But a ‘like’ or ‘share’ can also mean different things in different contexts and may not always be an endorsement of the original message in question. A ‘share’ can also be qualified by its author’s accompanying narrative which could make it clear that the author’s views were very different.

How confident are you that the content you ‘like’ or ‘share’ today might not come back to haunt you now or even in years to come?

Could this principle also result in incurring liability for the purposes of infringement of 3rd party copyright? If material is posted to Facebook for example and infringes 3rd party copyright and it is ‘shared’ or retweeted, there seems no reason why this should not be the case, particularly if the party concerned knew or ought to have known that the material was so infringing.

The message with use of social media has to be, as always, think before you act and click or take the consequences. Whilst ‘liking’ or ‘sharing’ content may not necessarily be considered defamatory in the United Kingdom/Scotland, such endorsement continues to have the potential to be disastrous from a reputational perspective. How confident are you that the content you ‘like’ or ‘share’ today might not come back to haunt you now or even in years to come? One press of a button could get you into very hot water and easy as it is to ‘like’ or ‘share’ or retweet or publicise reactions to 3rd party posted content it will pay to pause and be sure that liability or reputational damage will not follow. Whilst it will be a defence if the material is accurate and not false the problem is heightened as it is increasingly impossible in many cases to trust the sources or factual accuracy of on line content. After all, the fake news phenomenon is on the rise and rise. This recent case, whilst not so surprising in its outcome, highlights the risks participation in social media can pose. Thus it is worth taking care to avoid unwitting endorsement or spreading of potentially libellous/offensive or infringing material and consequent exposure to legal liability.

Featured image credit: Mobile Phone by Geralt. CC0 public domain via Pixabay.

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