I. Facts
The defendant is the editor of the WochenZeitung (WoZ), who retweeted a tweet posted by “NewsMan” (formerly “MusicMän2013”) on 13 July 2012, which referred to Mr Lei as “Hermann ‘Dölf’ Lei”. The defendant published an article in the WoZ of 14 June 2012, which explored the possibility of a connection between plaintiff Hermann Lei and the domain “adolf-hitler.ch”. The tweet by “MusicMän2013” referred to a NZZ article and a letter to the editor, with which plaintiff Hermann Lei responded to an article. The article and the reader’s letter revolved around a documentary film by Schweizer Radio und Fernsehen about the resignation of Philipp Hildebrand. “MusicMän2013” referred to plaintiff Hermann Lei as “Hermann ‘Dölf’ Lei” in this tweet too. As a follower of “MusicMän2013”, the defendant saw the tweet on his Twitter account. He retweeted the post without comment. The defendant filed a complaint for wilful defamation (Article 174 SCC) or an offence against personal honour (Article 175 SCC).
II. Criminal law perspective
A. Wilful defamation/offence against personal honour
Under point 4.1 of Zurich District Court’s ruling, the court simply and concisely states that allegations of sympathising with the Nazi regime are defamatory. However, the issue to be discussed was whether the allegation was raised by the defendant, as claimed by the public prosecutor’s office and the plaintiff.
B. Special regulation for publication in a medium
The possible allegation was raised by the defendant on the social media platform Twitter. The court focused on this issue of whether Twitter has the role of a medium, in which case the media privilege according to Article 28 SCC is applicable.
1. Privilege for a medium
If a criminal offence is committed through publication in a medium and is exhausted in this publication, then the author is solely punishable (Article 28 Paragraph. 1 SCC), subject to the following provisions. If the author cannot be traced, then the responsible editor or the person responsible for the publication is punishable (Article 28 Paragraph 2 SCC).
2. Circle of protected persons
Article 28 SCC is intended to protect people that were not closely related to the published offence from bearing criminal responsibility: Only people listed in Article 28 SCC should therefore be liable to prosecution.
In BGE 128 IV 53 E. 5.e, the Federal Supreme Court ruled that participating parties that only cooperated in the circulation of a criminal offence in a medium would remain exempt from punishment on the basis that they are part of a media product’s production and distribution chain.
For instance, people who put up billposters, shop employees, postal carriers, etc. would regularly fulfil the requirements of circulating a defamatory statement or suspicion. However, Article 28 SCC precludes the criminal punishment of these offences on the basis of media privilege.
C. Twitter as a medium
1. Broad definition of the term “medium”
In Swiss law, there is no legal definition of the term “medium”. In literature, however, it is assumed that a broad definition of the term “medium” must be applied.1 This view is shared by the Jurisdiction of the Supreme Court. In its judgment BGE 136 IV 145, the Federal Supreme Court rules that the comment feature of a website or on a blog is or belongs to a medium.
2. Protection of public debates
In its judgment, the court stated that the narrow restriction of the circle of persons for a criminal offence is intended to protect the free exchange of views, which is protected by both the Swiss Federal Constitution – Article 16 et seqq. Cst. – and the ECHR – Article 10 ECHR.
The effects of Twitter and other social media providers with regard to potentially influencing public debates been especially apparent recently: For instance, demonstrations in Turkey and China were organised via Twitter and, even in Germany and Switzerland, rallies were organised or disseminated via social media channels.
The court then also presented China as an eminent example of the political possibility of Twitter’s influence on public debates. Up to now, China has not permitted free access to Twitter, presumably with the aim of impeding or completely preventing the organisation of oppositional movements.
3. Conclusion
In point 4.3.7, the district court states that Twitter must be recognised as a medium on the basis of the interpretation of Article 28 SCC. This view seems to also correlate with that of the Jurisdiction of the Supreme Court.
D. Typical distribution chain in the media
Art. 28 SCC is intended to only apply if the criminal offence is committed within a typical distribution chain in the media. The contents of this chain are to probably undergo a modern-day re-evaluation, especially in light of online media.
The issue of what the respective medium had originally set as its business model or how it has evolved today is to be discussed in relation to this.
Twitter generally only provides one platform on which it is possible to compose a short message that is then either only showed to a user’s followers or can be seen by the general public (depending on privacy settings). Other users can then also share the message, which they do via a “retweet”.
Twitter – like other social media platforms – generates its sales from both displaying adverts on its pages and selling collected data. It is also possible to purchase adverts, meaning tweets by paying customers are shown to certain user groups.2 Facebook also offers a similar service.3
Twitter is currently financing itself through the fact that the tweets created are shared with followers as this increases the commercial success.
This can probably also explain the specialisation of certain advertising companies to social-media campaigns and the comparison of the dissemination of successful messages with a virus (“it went viral”). These phenomena initially emerged from the focus of services on the public on the spreading of posts and allow certain stakeholders to earn a living through posts that are shared by followers.
The district court then also concluded that “the retweet is part of the typical, customary and operator-desired distribution chain for short messages on Twitter”.
E. Limitations of media privilege
Defamation offences are exhausted in the punishable publication. According to the district court, the privilege set out in Article 28 Paragraph 1 SCC can therefore be applied to retweets.
It can therefore be assumed from this that all retweets remain exempt from punishment. The court expresses this in point 4.6 and states that the Federal Supreme Court does not apply Article 28 SCC to racial discrimination, hard pornography or violence.
We believe that a retweet should remain exempt from punishment as a rule and the distribution of content not protected by Article 28 SCC is the exception. Why this distribution is to be protected is not evident either, as the public debate cannot benefit from such extreme views.
F. Acquittal of the retweeter
In light of this, the defendant was acquitted because the sharing of a defamatory statement within a typical distribution chain in the media is not punishable.
III. Zivil claims
A. Defamation is not without consequences
In its judgment in the criminal assessment in consideration 4.3.6, the court had already stated that civil law provides wide-ranging standing to be sued, allowing for protection against defamatory statements.
The plaintiff thus raised a claim for infringement of personality rights according to Article 28 CC, which the Zurich District Court also discussed.
B. Personality as a broad term
The criminal concept of honour only protects the reputation of a person as an honourable person: It is geared towards the morality of a person.4
However, the civil term of personality according to Article 28 CC encompasses all features and characteristics of a person. It protects all actions and human behaviours. A conclusive definition is not possible.5
As stated above, the accusation of being a follower of Nazism is protected by both criminal and civil law. The district court stated this conclusion in its judgment in an extremely concise way as it was not controversial nor did it require explanation.
C. Interpretation of the average target group is key
In the newspaper report in the WoZ of 14 June 2012, the defendant published the findings he had collected about the connection of the plaintiff to the domain name “adolf-hitler.ch”. The court stated that, because of his involvement in the affairs of Hildenbrand, the plaintiff was, at the least, a relatively well-known person in contemporary history. The position may give rise to an overwhelming public interest in learning about certain activities of this person. However, the fact that false reports cannot generally be justified must be taken into account.
The district court then discussed the findings of the defendant and the way in which he published them.6 It stated that the defendant’s research provided no evidence to show that the plaintiff was a follower or belittler of Nazism. The defendant did not want to make this accusation either, but rather only saw the name “Dölf” in his retweet as a reference to the issue with the domain names. The district court states that because of the interval of just over a month between the magazine article and the retweet reaching the defendant’s followers, the details of the article would have already been forgotten and most readers would not have read every article of the magazine they subscribe to either. It must therefore be assumed that the average reader could only still recall that there was a link between the plaintiff and “adolf-hitler.ch”. There is therefore the possibility that “Hermann Lei, the secret neo-Nazi” would have been read. The district court believes that the reduction of the discussion to the length of a retweet (max. 140 characters) and the resulting possibility of a wrong interpretation of the connection gives rise to an infringement of personality rights.
D. Tweet as compensation
Article 28a Paragraph 2 CC provides that the plaintiff, whose personality rights had been infringed, can demand the publication of the judgment or at least a rectification by the infringing party.
Furthermore, the severity of an infringement of personality rights can warrant compensation for the infringed person. As per Article 49 Paragraphs 1 and 2 of the Law of Obligations (OR), this compensation can be made in the form of a sum of money or in another way.
The plaintiff waived the claim for a sum of money and, in its consideration 5.4.1, the court stated that intangible compensation may be a more appropriate punishment for an infringement of personality rights.
The district court obligated the defendant to publish the following tweet: “Zurich District Court: “Hermann ‘Dölf’ Lei” retweet not criminal but rather an infringement of personality rights. Judgment no. GG150250-L.”
IV. Conclusion
The verdict may be extremely surprising in that retweeting messages is essentially exempt from punishment. However, as the Federal Supreme Court had already protected a blog, the opinion of the district court can certainly be seen as a logical conclusion. If public debate is to be protected by media privilege, then all media used for this purpose should be able to benefit from this protection.
In its written reasons for the judgment, the district court points out that media privilege also has limitations when it comes to judging racial discrimination, hard pornography and violence.
Consequently, the defendant is subject to civil law. In its report (The civil responsibility of providers: the most important findings of the Federal Council’s report of 11.12.15), the FDJP states that civil claims exist against providers as participants in defamatory offences7. The fact the user of the respective medium is considered as the next person in a chain in the eyes of the law should be welcomed and also explicitly stated by the legislator8. This is because the defendant’s retweet triggered a misunderstanding among his followers and thus infringed the personality rights of the plaintiff.
Footnotes:
- Franz Zeller, Ba-Komm StGB I, N 41 zu Art. 28; BGE 128 IV 53, E. 5.c.
- https://ads.twitter.com/.
- https://de-de.facebook.com/business/help/.
- Riklin Franz, Ba-Komm StGB II, N7 ff. zu Vor Art. 173 StGB.
- Meili Andreas, Ba-Komm ZGB I, N 5 ff. zu Art. 28 ZGB
- Erwägungen 5.2.
- Erwägung 3.2.2 des Berichtes.
- Art. 28 Abs. 1 ZGB: „… kann zu seinem Schutz gegen jeden, der an der Verletzung mitwirkt…“