Can a Facebook ‘like’ Make You a Criminal?

The Supreme Court of the Philippines has been debating whether ‘liking’ a defamatory comment on Facebook makes you guilty of libel.

To date, no one has been prosecuted specifically for ‘liking’ a statement, link or photograph posted by someone else. Last year, a judge in Virginia ruled that ‘liking’ was not covered by the first amendment (guaranteeing freedom of speech), but the case dealt with unfair dismissal rather than libel.

It may sound absurd that something as trivial and instantaneous as ‘liking’ could be a criminal offence, but in reality it’s surprising that the Philippines is the first place to discuss the question seriously.

According to UK law, a statement is defamatory if “it tends to lower the person in the estimation of right-thinking members of society.” To succeed in a defamation action the claimant must prove three things:

• the statement was defamatory
• the statement referred to the claimant
• the statement was published

It is the last of these which is important here: by ‘liking’ a Facebook status, are you publishing it?

There is currently a new defamation bill going through parliament, however, it refers back to the existing 1996 defamation act which states:

“In defamation proceedings a person has a defence if he shows that he was not the author, editor or publisher of the statement […]

 For this purpose “author”, “editor” and “publisher” have the following meanings:

‘author’ means the originator of the statement, but does not include a person who did not intend that his statement be published at all;

‘editor’ means a person having editorial or equivalent responsibility for the content of that statement or the decision to publish it; and

‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

Because ‘liking’ doesn’t reissue the story (i.e. it doesn’t come up on your timeline as well) it is arguable that you have not republished it. In this sense, it is different from re-tweeting. On the other hand, your ‘like’ improves the statement’s edge ranking making it more likely to be seen by others.

You might be said to be an editor because your ‘like’ can materially add or change the way the story is perceived. If, for example, a famous or influential person endorses it, then the statement carries much more weight.

Like everything in law, it’s debatable but there is potential for a libel action to be launched on these grounds. With so many Facebook users, it may occur sooner rather than later.

Perhaps the most important part of this issue is not the legal technicalities. Rather, it is the general point that social networking sites make it incredibly easy to commit serious, criminal offences yet do not provide any guidance or warning.

Journalists know that what you write on Twitter and Facebook constitutes publication, but most other users don’t and end up saying things they shouldn’t.

There probably is a warning buried somewhere amongst Facebook’s terms and conditions but I’ve never seen it.

Henry Vane

Website

Full time banana enthusiast. Part time subversive

This author does not have any more posts.