"Like" four thousand francs

A resident of Switzerland was sentenced to a fine of 4 thousand Swiss francs in the case of protection of honor and dignity. Among other things, he was imputed with Like, put under the publication on the social network "Facebook". The case will still be considered by a higher court.

A forty -five -year -old man whose name is not called put “like” comments with accusations of racism and anti -Semitism addressed to the head of the Association for the Protection of Animals Erwin Kessler. Kessler sued not only the authors of the comments, but also on those who put Like under them, as Like makes publication visible for more users. According to the decision of Judge Katarina Gervig, the Like implies the approval of the publication, and the defendant thus demonstrated that he agrees with the content of comments recognized by the court insulting and discrediting the honor and dignity of the plaintiff. About twenty years ago, Kessler himself was convicted and sentenced to conclude after he publicly compared the ritual slaughter of animals according to Jewish traditions with the crimes of the German Nazis. But the court found that too much time had passed to continue to suspect Kessler of inciting hatred.

Is it possible to say that censorship on social networks is introduced in Switzerland? This is reflected by the Deputy Chairman of the Council of the Kaliningrad Regional Branch of the Association of Russian Lawyers Alexei Elaev:

- a person was convicted for putting Like. The first thing that comes to mind is that censorship has been established on the Internet in Switzerland. Do you agree with such a question?

We cannot conclude that the production of "like" is an expression of the views of a person

- No, this is not about censorship. In this case, we say that the defendant was found guilty of slander, which was expressed both in some active actions and in the production of "likes" under certain posts on Facebook. "Like" is always double nature. On the one hand, you express support or approval, and on the other hand, the Facebook mechanics are so arranged that you have “likeed” something more than your friends, and their post in the tape rises to a higher level. And thereby, in fact, now, taking into account technology, “likes” is a way of promoting this or that information. Although the court said that this is additionally also a public approval of a case. But in general, it is still partially to agree with the court.

- Partially. And what do you disagree?

- I do not agree that, as it is said, the "incitement of the records", under which the "likes" were set, was an expression of the user's own views. We cannot conclude that the production of the "husky" is an expression of the views of a person, because we cannot look into the head. But we can say that the person supports this message and contributes to its further distribution, helps to increase the recognition of this message, increase its rating under one or another message on a social network. We are gradually entering the information society when we are all on social networks, in social interaction. And if you are somewhere, then you are, and if you are not, then you are not. As political scientist Ekaterina Shulman says, the "era of" likes "came", and we are all fighting for these likes, or put likes, and so on. This court decision is very important, and it would be very interesting to know the decision of the Cantonal Court on this issue.

- How serious is the responsibility in this matter of Facebook itself? Is Facebook obliged, from your point of view, as a lawyer, to inform users that, say, the production of "Like" can serve as the promotion of one or another publication?

The excitement of hatred and enmity is proving, regardless of how it is placed

- Facebook, like a fence, is only a way of public promoting this or that information. It is unlikely that anyone starts an account for their own internal, private goals. This is a public thing that is needed to implement people in external space. And therefore it is clear that the owner of the fence should not warn that, having written something offensive on it, or by subscribing to something offensive, written by another person, you will be brought to one or another type of responsibility. Just now we need to understand that in the information society, even for actions that used to seem some kind of private, as it is becoming more and more public, we will have to bear quite public responsibility. True, I am embarrassed ... The conditional time is understandable, the fine is more or less clear, but the fact that you can actually be sentenced with some real terms for some crimes on the network, it is already necessary to argue here, you need to think. But, on the other hand, the excitement of hatred and enmity is proving, regardless of how it is placed. The question also arises about how in proportion to the punishment of the “like” ... If it were exclusively about the “likes” in this matter, then we could think how many thousands of Swiss francs there are one or another “like”. But the person was judged by aggregate, along with slander, it is difficult to separate the punishment for "likes" from punishment for slander.

Lawyer Alexei Eleev

- How important is the fact that we are talking about a legal dispute between two private individuals, and not the state pursues a person for the spread of defamatory information?

-The dispute between the two private individuals is civil law, when one person requires another refutation from another, and sometimes public law, when a slandered person requires the state to somehow stigmatize this or that person, hold him accountable so that this person does not continue to commit criminal acts. If, for example, we will stand up, and I, as the culprit of the fight, in addition to collecting civil law damage, will bring me to public law in the form of criminal record, this will contribute to a lowering of intensity in society. There is a normalization of freedom of speech on the Internet. That is, we are used to the fact that we have some rules of communication in newspapers, the rules of communication on television, and we have been the Internet for a very long time to some such separate things. But do not forget that the Internet is a type of fence ... There is simply a fence on which they write and see it five people, but there is a fence on which they write and see it millions. And therefore, there should also be its own culture of behavior. In many ways, it will form in the coming years, in the coming decades, because social networks from the privilege of the educated class have become a mass phenomenon. And therefore, the same speech culture will gradually form in them, the same culture of communication as in all other public sources of information. The case of the Swiss court shows: because you wrote on your wall that thousands of people will see, and for the fact that you wrote the same on the wall of your house, which a hundred people will see, the responsibility will be the same.

People need to talk about rights, about what they have the right, what they can, what they cannot, because we live in an information society, and sometimes there are very great superstitions about jurisprudence. To me the process of Usmanov - Navalny seems very peculiar in this regard. We forgot about the burden of proof of Diffamation. If someone said to you certain words, for example, a neighbor said that you are fighting a wife, then it is a neighbor who should prove this fact to the judge. That is, you should not prove that you have never beaten a wife in life, and he must prove that when he said this, he had sufficient reasons to believe that you were hitting his wife, and to give evidence that you had beaten your wife. When you watch football, you know what are the rules of the game in football, but when you observe the trial, and each commentator says that the rules are such, you still need to explain the rules. And the rules are such that Navalny must prove everything that he said. After all, this is not a criminal process, when it is necessary to prove that Navalny, when he said something, he clearly knew that this was not true. This is a civil case when a citizen demands a refutation, and the person who said something is obliged to prove that it was so. Such cases are considered, in contrast to Western justice, where there are very few such processes, because the proceedings are expensive, in Russian courts very often, dozens, daily, that is, this is a very gained practice, a standard procedure. The one who suits the court is obliged to prove that you distributed it. For example, if you wrote something on Facebook, you still need to prove that you did it. But if you said that you did it, or there are other evidence that you used this "Facebook", something else, then this part has already been observed, and already further, if you do not deny that you said this, you must prove that this was exactly the case. This is the burden of proof in all cases of protecting honor and dignity, ”says Alexei Elaev.