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 firstname.lastname@example.org for a first answer to your question.