The media privilege pursuant to article 28 SCC does not apply to individuals who share defamatory posts on Facebook

By Land Law

According to a ruling of the Swiss Federal Supreme Court of November 18, 2020 (6B_440/2019), a Facebook user who shares another person’s defamatory post published on Facebook cannot invoke the media privilege pursuant to article 28 Swiss Criminal Code (SCC), even though the Swiss Federal Supreme Court considered the social media platform Facbook to be a “medium” within the meaning of Article 28 SCC in the relevant context. However, the Swiss Federal Supreme Court ruled that the media privilege in the sense of this legal provision only applies to those persons who are necessarily active within the production and distribution chain typical for the medium which has to be determined in the context of each individual case.