Swiss man sued for ‘liking’ Facebook posts that called a convicted racist a racist

Should you be legally liable for liking, sharing and retweeting possibly offensive stuff? The simple answer should be ‘no’, but that doesn’t stop touchy people from filing charges.

In Switzerland, the first trial based on likes on Facebook is currently underway. According to The Local, a 45-year-old from Zurich has been charged with defamation for liking Facebook posts that accused the plaintiff of being anti-Semitic. So basically, a man is being prosecuted for liking something somebody else posted.

The case originates in an online drama within the animal rights community in Switzerland. The heated debate included posts that accused Erwin Kessler, the president of animal protection association Verein gegen Tierfabrieken (VgT), of anti-Semitism and racism.

The defendant liked, not posted, eight posts where Kessler was said to be racist. The posts were published by other animal rights groups who have discouraged cooperation with VgT because of Kessler’s past connection with neo-nazis and holocaust deniers.

Kessler’s lawyers argue that by liking the posts, the defendant made the content more visible to a larger group of people and that he meant harm Kessler without justifiable cause.

Not really any precedents

The case was supposed to go to court on April 3, but was postponed, so we’ll have to wait on how the defendant’s lawyers will refute the accusations and how the courts will react to it.

However, according to Tages Anzeiger, the defense will likely focus on Kessler’s past convictions for racial discrimination — showing that the remarks are justifiable.

What’s weird though is that there’s no mention of the defense addressing the main issue: Should it be possible to prosecute people for liking/linking/retweeting stuff online?

Swiss courts didn’t think so a year ago, when a journalist was acquitted for retweeting offensive remarks. The courts said that the mere redistribution of tweets wasn’t punishable, only the original author could be indicted — which is pretty logical.

You’d think the ruling would be favourable for the 45-year-olds’ case, but unfortunately it cannot be cited as precedent during the trial. The reason is that a distinction is made in Swiss law when it comes to cases of racial discrimination, even though the defendant is not being accused of racist remarks.

The case will therefore go to trial and Swiss laws will be thoroughly tested in regards to internet freedom as Kessler is currently suing eight other people in five other similar cases.

Where should we draw the line?

The trial in Switzerland adds to a larger discussion of who is responsible for online content. It’s fair that the restrictions to free speech (racism, inciting violence, etc.) apply to what we write online, but it’s too harsh to make every single person accountable for what he or she shares.

Some would argue that it’s necessary to fight terrorism, but we always need to question what we’d be giving up for increased security.

This is especially obvious when we look at which governments are currently most active in convicting people for sharing content on social media. The oppressive Putin-regime in Russia has frequently prosecuted people who go against the official narrative on questionable grounds.

In 2015, at least 54 people were imprisoned for sharing and posting ‘hate speech’. Andrei Bubeyev was sentenced to more than two years in prison for sharing undesirable content.

That included a picture of a toothpaste tube his wife took with the caption “Squeeze Russia out of yourself!”. The image reached 12 of his friends.

This comparison might be extreme but it’s important to keep in mind what can happen once online freedoms are infringed.

Switzerland’s trial might seem insignificant but if you can be found guilty for liking stuff online, then most of us are in big trouble.