Did you know that you can now be sued, and possibly pay damages, not only for publishing a defamatory post, tweet or comment, but also for sharing one?
In January 2020, Israel’s Supreme Court rejected an appeal against a verdict by the District Court (which was supported by a legal opinion by the Attorney General) that sought to reconcile the principle of freedom of expression with the modern reality of social media.
The Supreme Court found that sharing a post on Facebook carries with it the liability for defamation brought on by the original post, in spite of the fact that no original content is generated. However, if one suffices with just a simple "Like", one is immune.
It all began when a local weekly magazine sued a couple for sharing two posts on Facebook that defamed the magazine. The defendants stated that they had clicked Facebook’s "Share" and "Like" buttons on two posts that included a photo of the magazine thrown into the garbage next to derogatory statements about it.
On the one hand, the Supreme Court emphasized the advantages of the free discourse that takes place online. On the other hand, disadvantages such as the spread of false and misleading information, or abusive and discriminatory information were raised. While "Liking" and "Sharing" do not produce a new message, the court found that they do expose new readers to someone else’s defamatory content. Someone who uses the "Like" button might not necessarily be aware of, or have control over, the increased exposure of the original publication. "Sharing", on the other hand, can be considered an active and intentional transmission of content (requiring two clicks) to an additional audience, the objective being to further broadcast and expose the defamatory content to other people.
As a rule, people other than the sharer will have exposure to the content. "Sharing" a post is a duplication of its publication, and gives readers to understand that the sharer, if not stated otherwise, believes the content to be true and genuine. By contrast, a "Like" does not create a copy of the post and therefore does not constitute a violation of Israel’s defamation laws. The court nevertheless still found the sharer to have less liability than the original content writer.
Later in January 2020, a settlement was reached between Jewish Agency Chairman Isaac Herzog and an Israeli active on social media who shared a defamatory post about Herzog and his mother. Isaac Herzog filed a NIS 360,000 lawsuit for defamation against two people who shared a post stating that he had moved his mother Aura Herzog from her home in Herzliya to a nursing home, and had moved into her home in order to benefit from the allowance to which Israeli presidents are legally entitled after their retirement and which their partners continue to receive when they die (Aura Herzog is the widow of late President Chaim Herzog).
In fact, Aura Herzog lives in her home in Herzliya, while Isaac Herzog and his family still live in their home in Tel Aviv. One of the defendants removed the post and added an apology for the error at the top of her social media feeds, for a period of six months. Failing to fulfill her obligations under the settlement, she will have to pay the full amount of the lawsuit, plus legal expenses and lawyers' fees.
Facebook is a powerful tool; one of the most effective marketing platforms, for good and for ill. Without a doubt these rulings will impact social media users' behavior and cause them to pause before they give in to that fleeting desire to share a funny, creative, or informative post, tweet or comment to ask themselves - could this be an act of defamation?
The author is a Senior Partner and Head of the International Law Department at Gideon Fisher & Co. Law Offices and Notary.
Published by Globes, Israel business news - en.globes.co.il - on February 20, 2020
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