There is great uncertainty in online forums: Can a simple “like” under a hurtful comment be as illegal as the comment itself? After all, there have already been initial judgments that indicate a strict line from the courts. But this line is now being crossed in the highest authority: The Supreme Court (OGH) decided for the first time that a like on someone else’s insulting statement was not an insult to one’s honor.
The current case was about a civil dispute, not a criminal one: the plaintiff had published a post on his Facebook profile about a private family celebration and showed a photo of himself and his wife. A user added an insulting comment to the publication. A user responded to this by clicking on the “Like” button.
The plaintiff doesn’t want to accept that. He asked the court for an injunction that would prohibit the user from liking statements that insulted him. The prerequisite for such a ban would be that the thumbs-up sign could be interpreted as an insult to honor. The decisive factor, explains the OGH, is how an average viewer perceives the like placed on a certain content – depending on the specific context such as the liked statement, the course of communication or the cultural environment. What doesn’t matter, however, is what the person who put the like wanted to express.
In the specific case, the Supreme Court assumed that the “like” would be interpreted by average viewers of the profile “as an expression of non-specific antipathy towards the plaintiff or towards his public display of his private marital happiness” (6 Ob26/26f). “But there is no insult to honor in that.” So the plaintiff doesn’t get his preliminary injunction.
Disparaging statements can also be criminally relevant, for example as slander or insults. A similar question may arise as to whether a like expands the circle of perpetrators, so to speak. There have already been decisions by the Vienna Higher Regional Court in which online users were convicted for liking nasty comments. This is what happened, for example, to people who insulted the ex-constitutional protector who was not legally convicted of espionage Egisto Ott or the publicist Sebastian Bohrn Mena had given them a “thumbs up” sign. Incidentally, the same Bohrn Mena was reportedly the plaintiff in the Supreme Court proceedings.
However, the defendants have not yet reached the Supreme Court. The media law expert and constitutional judge explains why Michael Rami told the “Presse”: “Determining the meaning of a statement is a question of fact in criminal law for which the Supreme Court is generally not responsible.” The OGH’s first Like decision is certainly not a carte blanche for all conceivable cases – think, for example, of incitement to hatred or Nazi re-activation. However, lawyer Rami confirms that it can always serve as a strong defense argument in criminal and media law proceedings: “Sure.”
