The expression of discord-inciting opinions spread on social networks can be varied. It is not just an opinion expressed in writing by creating a post on your personal social network account. It can also be comments, clicking the Like button, or another emoji instead of the usual Like, videos, photos, and other forms of expression that can be used to express hate speech.
Considering the concept of social networks, the question could arise: is criminal liability possible for persons who share or retweet hate speech, or press the Like button on a post containing hate speech?
At the time of posting a statement containing hate speech on a social network, it might not instantly reach other users, but, given the permanence and dissemination of the information posted in the virtual space, this post reaches other users of the social network due to the algorithms of the social network or because other users of the social network distribute it.
Distribution, especially in the modern age of technology, is perceived not only in a physical sense. It is also possible in a virtual sense. Distribution in the context of the Internet should be understood as forwarding incriminating content, increasing its spread, which makes this content available to a broader audience. According to the mechanism of how social networks work, both sharing a hate speech post and clicking the Like button on this kind of post or hate comment increase the spread of hate speech.
It is important to emphasize that a social network user who only shares a post of hate speech created by another person should not be prosecuted. Although this hate speech becomes accessible to a broader audience of users, it does not necessarily mean that the person who shared the post agrees with the opinion expressed in it.
Similarly, criminal prosecution should not be initiated against individuals who, along with sharing a hate speech post, add their own comment expressing objection to the content of the shared content. Although the spread of hate speech is again being increased, there is, however, a public expression of disapproval of it.
In the case when a person additionally adds his own comment while sharing a post of hate speech directly or indirectly supporting this hate speech, the assessment could be somewhat different. In this case, the spreader of hate speech self-identifies with the original speaker and, at the same time, becomes the speaker of hate speech. Therefore, such sharing becomes an independent expression of hate speech for which a person could be prosecuted.
When assessing whether criminal liability is possible for clicking Like on a post or comment, it should be taken into account that hate speech as a criminal offense is formal and is considered completed after the comment or post is placed in the social space.
By clicking the Like button or other emoji instead of the usual Like button, the „clicker“ of the button seems to agree with the hate speech expressing that he or she likes the posted opinion.
It is worth mentioning that complicity is an intentional joint agreement between two or more persons to act together. When a social network user clicks the Like button on a discord-inciting opinion, it is unlikely that such agreements exist, it is more likely a spur-of-the-moment reaction. In addition, the very act of increasing reach may have a different meaning than endorsing hate speech, and in some cases, clicking the Like button may be a misclick.
The assessment that with this click, the user of the social network – the „clicker“ – continues to commit the criminal act of hate speech, increasing the spread of a hate comment or post, would mean a different assessment of hate speech as a criminal act in the digital and non-digital space. After all, criminal liability does not arise for a listener attending an event and reacting to the speaker's hate speech by clapping, so why should criminal liability arise if a person reacts in the same way, only virtually? A different assessment of the same act in the electronic and non-electronic space would mean a violation of the principle of proportionality.
In conclusion, it must be noted that, although the reach of hate speech is increased by pressing the Like button or another emoticon on the post instead of the usual Like button, this circumstance alone is not sufficient to impose criminal liability on a person.
Monika Ubavičiūtė, Associate, Assistant Attorney-at-law at Marger law firm.