Blog Consumer and market practices

24.04.2020 Bart Van den Brande

Liking or sharing a slanderous social media post is punishable

Caution is advised when you like a seemingly “funny” Facebook post about someone else or a negative review about a company or webshop. The Swiss Supreme Court ruled that you could be punished if the content turns out to be slanderous or insulting. So not only the posting of such content is punishable, but also simply liking it…

 

 

Slander, defamations and insults online

Slander and defamation are punishable. Anyone who tells harmful lies in public that might damage someone else’s honour or reputation commits a breach of article 442 of the Belgian Penal Code. This also applies to public insults, in that case article 448 is applicable.

Companies can also be the victim of slanderous or insulting statements. For example in false reviews by vindictive customers or angry competitors. The same applies to slander or insults on social media. After all, social media are usually considered as “generally accessible” or “public” places.

 

Even for a simple like

However, the recent Swiss judgement goes even further. The judge ruled that next to posting slanderous or insulting messages also liking these posts is possibly punishable.

Earlier this year, the Swiss Supreme Court issued a ruling about ‘likes’ and ‘shares’ on Facebook (Decision on defamation posts 6B_1114 / 2018 of 29 January 2020). It ruled that liking and sharing messages could possibly lead to a conviction for slander or insult (or at least their equivalents under Swiss law).

The whole dispute revolved around someone who had liked and shared several messages on Facebook accusing an association and one of its members of antisemitism, national socialism and racism.

The Supreme Court did not answer the question whether antisemitism or racism took place. That question must be dealt with by the competent court. The Supreme Court does rule that liking and sharing such messages can be punishable under article 173 of the Swiss Penal Code, which is the equivalent of the Belgian articles 445 and 448 on defamation, slander and public insults.

 

Why is liking or sharing punishable?

The Swiss Supreme Court finds that liking and sharing social media posts helps them reach a larger audience or even go viral. Therefore, anyone who shares or likes slanderous messages – deliberately – contributes to their distribution. Therefore he or she causes additional damage to the honour of the person whom the slanderous or insulting posts are aimed at. For this reason, the Supreme Court decided that liking and sharing slanderous posts in principle constitute slander under Swiss criminal law.

 

What about Belgian law?

To our best knowledge, there is no Belgian judgment so far ruling that liking or sharing slanderous or insulting posts on Facebook or other social media is punishable.

But in our opinion the logic of the Swiss Supreme Court is also valid in Belgium. Here it’s necessary to publicly, deliberately and maliciously make certain false statements in order for there to be slander and defamation. Insult occurs when someone makes a public accusation with the intention of “damaging that person’s honour”.

So in both cases it’s necessary that the act is done in public and that there is an intention to harm. It is perfectly conceivable under Belgian law that someone intentionally shares or likes a slanderous or insulting article or post. Fully aware that doing so will help spread the message to the public and cause harm to the person in question. After all, within most social media, the purpose of sharing and liking messages is precisely to further spread a message to the public. 

 

What can I do when my company or webshop is the victim of online slander, defamation or insults?

The great difficulty online often turns out to be that the perpetrators cannot be identified. After all, the Internet allows a high degree of anonymity for those who do not want to be identified. So the first task is to find out who the perpetrator is.

Afterward, there are a few steps you can take:

  • You could file a complaint with the social media platform in question. This might lead to the deletion of the message. Popular platforms such as Google and Facebook provide the possibility to report such abuse. Unfortunately they seldom remove content. Therefore, this is often not the most effective measure.
  • Your lawyer could send a notice of default and demand the removal under the threat of legal proceedings.
  • You could file a criminal complaint, after which a criminal investigation will take place and a conviction might follow (but slander and defamation are generally not a priority for our already overburdened criminal courts, so this type of complaint usually leads nowhere).
  • You could start a civil procedure in court yourself. Here you can claim compensation for damages, demand a rectification and/or demand the removal of the message with a penalty payment for every day or hour of delay. If necessary, you can try to obtain a provisional removal in interlocutory proceedings.
  • If you are a company or trader and the perpetrator is too, you might consider a “strike action”. This is a fast-track procedure which works as an interlocutory proceeding. The court can order the cessation of infringements that constitute unfair competition or that do not correspond to the normal behaviour you may expect from a competitor or trading partner.
  • Lastly, privacy law might provide a solution. Based on your “right to be forgotten”, you could demand that the social media platform and/or the major online search engines remove the harmful content.

 

Questions about harmful posts on social media or damaging reviews?

Feel free to call or email us on +32 486 901 931 or bart@siriuslegal.be for a first answer to your question.

09.04.2020 Roeland Lembrechts

Measures against corona in the tourism sector: can the traveller refuse a voucher?

The tourism sector is one of the most affected sectors by the corona virus at the moment. Hotels, bars, restaurants, airlines, tour operators and travel agencies have to cancel their services in great numbers. Every country where the Coronavirus struck is announcing lockdown measures. Ski resorts are closed, hotels no longer allowed to receive guests, meetings become impossible, events banned, etc.

The law protects travellers who booked a so-called package holiday. In principle, they will be fully reimbursed for their paid trip as soon as possible and in any case within 14 days after the cancellation. However, tour operators cannot fulfil this obligation in reality due to the large number of cancellations.

 

Crisis management by the government

The Belgian government issued a ministerial decree on the 19th of March 2020 to provide the travel sector with more financial breathing space. This measure is in addition to the support measures for entrepreneurs and the nuisance allowance by the Flanders Innovation & Entrepreneurship Agency. Tour operators can enjoy these measures when exceptional circumstances could jeopardise, in whole or in part, the proper functioning of the economy. The Coronavirus is a typical example of these exceptional circumstances. After all, the travel sector is severely affected by the large number of cancellations for package holidays.

On the 19th of March 2020 they decided that if a package holiday is cancelled due to the corona crisis, either by the tour operator or by the traveller, the tour operator is entitled to give him a voucher worth the amount paid instead of a refund.

In order to apply this arrangement, this voucher must meet 4 conditions:

  • the voucher represents the full value of the amount paid by the traveller;
  • the delivery of the voucher is free of charge;
  • the voucher is valid for at least 1 year;
  • the voucher explicitly states that it was delivered as a result of the Coronacrisis.

According to the decision, the traveller can’t refuse this voucher.

 

Time will tell

So, are you as a tour operator saved by this measure and can you oblige travellers to accept such a voucher?

Unfortunately we are not so sure of this… The measure is temporary and limited to what is strictly necessary. It came into effect on the 20th of March 2020 and will apply for a renewable period of 3 months. Of course, it concerns current travel contracts and will apply immediately. As a result the general economic interest prevails over the legal certainty the traveller and the tour operator had at the conclusion of the package holiday.

The only question is whether this decision also covers package holidays cancelled before the 20th of as a result of the coronavirus (and there will be many of them already). In principle, the measure can’t be applied retroactively. So it is questionable whether these travellers are obliged to accept the voucher and consequently denied the right to claim a full refund. The measure does not go into this, so the verdict must be left to the courts.

In addition, please note that the scope of the measure is up for debate. It says that package holidays can be cancelled during this 3 month period by offering a voucher. Does this mean that cancellations can only be made for package holidays that are carried out during this period? Or is it also applicable to package holidays that need to be carried out after this period, but are already cancelled by the tour operator? Circumstances can vary sufficiently in these cases. In view of the strictly necessary nature of the measure, it would only concern package holidays that have to be carried out during this period. However, it’s clear that this could be a source of discussion.

The European Commission has already reacted to the Belgian measure. It holds the opinion that travellers should have the choice between a voucher or a refund. All other decisions are not in line with the European regulations that aim for strong consumer protection and oblige Member States to guarantee the reimbursement of package holidays. 

In the meantime, the Belgian government has taken note of this and amended its decision.

Concretely, the regulation is now as follows:

  • In addition to reimbursement, as a tour operator you can offer a voucher that is valid for at least 1 year;
  • The traveller is then free to use this voucher for a new package holiday. For the tour operator the voucher is regarded as a means of payment (So you can’t oblige the traveller to exclusively use the voucher and write out that voucher for 1 specific trip);
  • From the moment you have offered the voucher to the traveller, he has 1 year to ask for a refund if he doesn’t want to use the voucher;
  • In the event of a reimbursement request, the tour operator has a period of 6 months to refund the total amount.

However, the effect in time has not been changed so the scope of the measure is still up for debate.
Notwithstanding this regulation and the question of its temporal effect, we still can conclude that the Ministerial Decree is in conflict with the mandatory payment term in the Package Travel Directive and the Package Travel Act, so that this regulation should be considered null and void. In principle the traveler must always have the option to choose between a voucher scheme or a refund within the legally stipulated period.

 

Linked travel arrangements or travel services excluded

Keep in mind that this measure only applies to package holidays as defined by law. A package holiday is not the same as a linked travel arrangement. It’s easy to confuse the one with the other. So you have to look at the specific manner in which the ‘travel product’ was sold. The same applies for the sale of a travel service linked with a limited tourism service.
If it’s not a package holiday, you are not obliged to offer a voucher. In that case, please consult the general terms and conditions and any force majeure clauses. If this is not arranged contractually, we refer you to our article ‘The coronavirus and force majeure’.

 

Conclusion

The government has legitimately taken a Corona measure by allowing tour operators to offer their travellers a voucher instead of a refund. However, this measure raises a number of questions as to its correct application. Pay attention to when the agreement was terminated, what the date of the holiday is and whether you are actually talking about a package holiday.

Would you like to have a concrete legal reflex when handling your cancellations? Feel free to contact Roeland via roeland@siriuslegal.be.

This article was written on March 23 and updated on April 9