In the last months two court decisions dealt with interesting social media related questions. The District Court Zurich had to decide on 26 January 2016 on whether the retweet of a potentially defamatory tweet may be punishable. The Higher Regional Court of Frankfurt decided on 26 November 2015 that the sharing of a content on Facebook does not constitute an endorsement.
District Court Zurich: Retweeting defamatory tweets is not punishable, but infringes personality rights
On 26 January 2016 the District Court Zurich rendered an interesting decision on the retweet of a potentially defamatory tweet. The tweet mentioned a local politician in connection with the name “Dölf”. In Swiss German “Dölf” is the abbreviation of Adolf. The tweet (in connection with other tweets of the same author) associated the politician with Adolf Hitler. The tweet was retweeted by a journalist of the left-wing weekly “Wochenzeitung”.
To the surprise of the interested public the District Court Zurich came in its decision, which is so far only orally rendered, to the conclusion that retweeting is not punishable. It, however, decided that the retweet infringes the personality rights of the local politician. The decision of the District Court Zurich is not final. The State Attorney Office and the Politician posted an appeal.
The decision is a surprise because Media Law specialists in Switzerland were of the opinion that retweets of potentially defamatory tweets may result in legal issues. Article 173 of the Swiss Penal Code does not only sanction libel and defamatory statements itself, but also the further distribution of such statements.
The District Court based its criminal law arguments on Article 28 para. 1 of the Swiss Criminal Code. Article 28 para. 1 contains a privilege for media and sets out the following:
“If an offence is committed and completed through publication in a medium, then, subject to the following provisions, only the author is liable to prosecution.”
The application of Article 28 of the Swiss Criminal Code means that the District Court qualifies Twitter per se as media in the sense of that article, independent on the content of the tweet. Article 28 of the Criminal Code was usually applied on typical (journalistic) media, such as newspapers, television etc.
The District Court concluded that author pursuant to Article 28 para. 1 of the Swiss Criminal Code may only be the author of the initial tweet, but not a retweeter. The criminal conduct is the publication of the tweet. The retweet is pursuant to the District Court a tweet-typical distribution and the retweeter may thus not be qualified as author.
The District Court confirmed in the oral hearing that in its opinion a retweet may never be criminally punishable.
It should be emphasized that other Swiss courts may come to a different conclusion. It should also be noted that the District Court qualified the retweet as infringement of the personality rights of the politician. Victims of a defamatory retweet may therefore ask for legal remedies because of personality right infringements.
OLG Frankfurt: Sharing on Facebook is not an endorsement
In its decision of 26 November 2015 (16 U 64/15) the OLG Frankfurt had to assess a rather complex constellation. The main question was not on whether the sharing of a statement on Facebook may constitute a criminal conduct. The criminal conduct was in the case at hand not committed by the “sharer” of the content, but rather by a third party. The third party was sanctioned because it pretended that a rather aggressive Facebook posting is from the “sharer” even though it was solely a shared content.
An animal protection association shared on its Facebook account an aggressive posting of a Danish animal protection activist. The activist compared in its posting the treatment of Danish dogs with the treatment of Jewish people in the Third Reich. The respondent published the respective posting on his own website and Facebook account, yet in a modified form, and stated that the association compares dogs with Jewish people. Because of the modification by the respondent it was not anymore recognizable that the statement on the Facebook account of the animal protection association was a shared posting and not an own statement of the association. The respondent argued that his modification is not relevant as sharing of content on Facebook must be regarded as endorsement.
The OLG Frankfurt had therefore to deal with the main question on whether a “sharer” endorses the shared content in a way that it can be regarded as his own statement. If sharing is not an endorsement, the statement of the respondent, i.e. that the association compares Danish dogs with Jewish people, is not true. As a consequence, the comment of the respondent would qualify as libel.
The OLG Frankfurt first held that the sharing of content on Facebook cannot be compared with links to other websites. The court held that the respective case law only assessed on whether links may result in a responsibility for the linked content, but not on whether linking constitutes an endorsement and may therefore be a criminal conduct itself.
The court further stated that linking content does generally also not constitute an endorsement. On whether a link should be understood as an endorsement must be assessed based on the context. With respect to the freedom of expression and freedom of press an endorsement should only be accepted restrictively.
Based on these considerations, the Court held that – contrary to the “I like” function – the sharing function does not contain any other significance beyond the mere distribution of content.
The OLG Frankfurt did not assess on whether the sharing of a potentially defamatory content on Facebook may qualify as a criminal conduct. However, the argument that sharing is not an endorsement would most likely lead to the conclusion that sharing may not be punishable. Commentators in Germany indeed came to that conclusion. They further mentioned that the same argument must also apply to retweets, i.e. that retweets are generally not an endorsement.
The arguments rendered by the District Court Zurich and the OLG Frankfurt are not entirely convincing. The argument of the District Court Zurich is not convincing because article 28 of the Swiss Criminal Code shall always apply to tweets or retweets. It is not obvious why article 28 of the Swiss Criminal Code should apply to Twitter messages, independent on the content of the message, but not to general websites and the content thereon. The argument of the OLG Frankfurt is not entirely convincing because it is too absolute regarding the endorsement question. On whether sharing a content is an endorsement or not should be assessed on a case-by-case basis.
Nonetheless, the arguments of the OLG Frankfurt are more coherent. However, they may not be successful in a Swiss criminal proceeding, unless the respective court follows the arguments of the District Court Zurich. As mentioned, article 173 of the Swiss Criminal Code sanctions the mere distribution of a defamatory statement. It is not relevant on whether the distributed content is endorsed. It is sufficient that the distributor knows or must know that the statement is defamatory.
- Martin Steiger: Adolf Hitler-Retweet vor Gericht: “Dölf” als Ehrverletzung?
- OLG Frankfurt: Urteil vom 26. November 2015 – 16 U 64/15
Ansprechpartner: Michael Reinle