Careful with ‘liking’?

‘Like’ – the symbol of a thumb raised with the words ‘I like it!’ – has revolutionized social media. Expressing emotions on the web has never been as easy as it is now – all you need is just one click. Not surprisingly, the average use of this button on websites is several billion a day and ‘likes’ already has the dimension of an ‘emotional micro-currency’.

Recently there has been another aspect that we may have to pay attention to when ‘liking’, sometimes automatically, other people’s posts.  The question arises as to whether we are liable in the case of liking content that may be unlawful (e.g. content violating personal rights, defamation, insults).

 ‘Liking’ of inappropriate entries is punishable by fine

Until now this question has been quite abstract.  However, just this year we have dealt with two cases in which this issue was of interest to judicial authorities. In May this year the first people were convicted just for liking content published by other people. A Swiss court has recognized the responsibility of a man who defamed Erwin Kessler – a famous Swiss animal advocate – on his Facebook profile. The court found defamation not only in the publication of a post calling Kessler a racist and anti-semitic person, but also in the ‘liking’ were a number of vulgar comments addressed at him. The court found it was enough to impose liability on the matter alone to the fact of ‘liking’ the unrefined content. By clicking ‘like’ people tacitly agreed with the content of these posts and made them public by distributing them on-line. As a consequence the court sentenced the ‘liker’ to pay a fine.

A similar case is also taking place in Italy, where the prosecutor has  indicted seven people who liked a critical text about the activities of a mayor and other officials.

Do we really have anything to fear taking those matters into consideration? Can, the so far innocent, ‘like’ cause us such troubles as in the cases described above?

Indeed it is very common that ‘liked’ content may contain unlawful content – constituting unlawful acts. But does the ‘liking’ of these materials justify the responsibility for the content that he or she liked?

Looking at the ‘liking’ from the perspective of Polish criminal law, it seems the assignment of responsibility for the liking of offensive or hateful post goes way too far. It would be necessary to demonstrate that the person who ‘liked’ something was intending to offend the person, incite hatred, or commit other illegal activities that he or she has ‘liked’. The gesture ‘I like it!’ does not give away such intentions. On the other hand we must bear in mind that article 255 provides criminal liability for ‘public praise’ of criminal offences. In the case of certain posts which have a criminal nature, such as defamation, insults, threats, incitement to hatred or propaganda of the Fascist state, it can not be ruled out that ‘liking’ them will be an act of ‘praising a criminal offence’ within the meaning of the above-mentioned provision.

In addition to the question of criminal liability, it can also be considered that ‘liking’ some content that violates personal rights, such as honour, good name or privacy will also violate these rights. Although the violation of personal rights may not only happen in a verbal way, but also in an implicit one, gesture or symbol, the mere praise of unlawful actions expressed by the click of ‘I like it!’ is not sufficient to recognize there is a violation of personal rights. The issue of ‘sharing’ unlawful content, for example, by posting it on our profile, is different. The possibility of assigning responsibility for violation of personal rights by sharing unlawful information published by another person was pointed out by the Court of Appeal in Gdańsk in the judgement of April 27, 2016 (case No. I ACa 1068/15): “Sharing information published by another entity which violate someone’s personal rights may result in the attribution of liability for infringement of personal rights not only to the author of this information, but also to those who merely process, reproduce, transmit to further potential recipients. Such persons, even though they are not the authors of the source publication, may be liable in the certain circumstances”.

The above-mentioned cases show that communication on the Internet is under more and more strict control of the judiciary. It seems however that ‘liking’ has been treated with excessive rigour, and the possible liability for violations of on-line posts and comments should be borne by the authors. Addressing these claims faces obstacles because of the difficulty in establishing their data especially if the administrators of the sites are non-EU entities. The increasing number of such cases shows however that this is not impossible, and that the anonymity of the network is not absolute.