In a decision of the Federal Supreme Court (6B_440/2019), the concept of media privilege was defined in more detail. The case dealt with a Facebook user who shared a post. This post accused a person of anti-Semitism. In addition, the Facebook user made a comment on it. The shared post and the comment were then seen by friends of the Facebook user. As a result, the High Court of the Canton of Bern found the Facebook user guilty of further dissemination of defamation. The defendant then appealed to the Federal Supreme Court.
In its consideration, the Federal Supreme Court went into more detail on the concept of media privilege. According to StGB 28, in the case of a criminal offence committed by publication in a medium, only the author of the contribution is in principle liable to prosecution. According to the Federal Supreme Court, the concept of media in StGB 28 is broadly defined, and thus includes Facebook. This means that Facebook can be described as such a medium in this case.
The Federal Supreme Court further explained that the media privilege only applies to persons who are necessarily active within the typical production and distribution chain of the medium. The Federal Supreme Court further stated that the Facebook user in this case was no longer part of this chain. The post was no longer under the control of the producer once it was published. The Federal Supreme Court thus concluded that the media privilege did not apply in this case.
The Federal Supreme Court further examined the allegations contained in the Facebook article, but this is not directly relevant to this article.
Furthermore, it was stated that in a case such as this, a punishable further dissemination of defamation (StGB 173) would in principle be possible, but this always requires consideration in the individual case.
In its judgement, the Federal Supreme Court partially upheld the complaint of the Facebook user and referred the case back to the lower court for a new assessment.
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