The liability of website owners for defamation in Israel: A challenge yet to be solved?

Abstract

From the end of the twentieth century to the present we have witnessed the effects of technology on the way we consume and distribute information. The print media, which in many ways was the natural product of the printing revolution, has given way to the electronic media with websites providing the new “town squares” in which the public discourse is held on political, economic and social issues among others. The Israeli legal system, like the legal systems in other countries, faces a variety of challenges and complex ethical and legal issues when required to regulate (often retrospectively) the manner and processes through which the discourse will be conducted in the virtual “town hall”. In essence, this article focuses on one of the many questions occupying the Israeli legal system and that is whether website owners should be liable in defamation for speech published by third parties on the Internet (through blogs, tweets on Twitter, posts on Facebook,11As of the date of writing this paper, the Israeli courts have been presented with only a single incident in which the defendant's statement of claim included Facebook Corp. as a potential defendant. The plaintiff, a mayor one of the major municipalities in Israel, sued six citizens for defamation. The court held that users could institute legal proceedings for defamation against Facebook although ultimately the case against Facebook was dismissed due to lack of personal jurisdiction CC 24553-06-12 Oved v. Oved (July 16, 2012), LawData (by subscription) (Isr.). In a recent case heard by the High Court of Northern Ireland, plaintiffs were awarded £35,000 in damages after the defendant posted false and abusive messages and information relating to the plaintiffs on Facebook. The claim against Facebook was dismissed. See AB Ltd. v. Facebook Ireland Ltd. (Feb. 6, 2013) [2013] NIQB 14 http://www.bailii.org/nie/cases/NIHC/QB/2013/14.html (last visited Apr. 6, 2013). Although the defendant was anonymous, his identity was disclosed. See also News: Northern Ireland Judge Awards £35,000, Feb. 9, 2012, http://inforrm.wordpress.com/2013/02/09/news-northern-ireland-judge-awards-35000-damages-for-anonymous-facebook-libels/ (last visited Apr. 6, 2013). In a similar case, a Facebook user created a page entitled “keeping our kids safe from predators” which was designed to warn parents against convicted child sex offenders such as the plaintiff. The plaintiff applied for an order requiring Facebook to monitor the content of the page and immediately remove such publication from the Facebook website. The Court held that the content of the offending Facebook page constituted, unlawful harassment of the plaintiff and further held that the perpetuation of the website created a risk of infringing the plaintiff rights to freedom from inhuman and degrading treatment under Article 3 of the ECHR, together with plaintiff's right to preserve his privacy and family life under Article 8 of the ECHR. See X v. Facebook Ireland Ltd. [2012] NIQB 96 (Ir.). uploaded video clips on YouTube and the like) when no connection exists between the third party and the site owner apart from the fact that the third party has used the website as a platform to publish the offensive speech. The issue of the liability of the website owner has ramifications for the injured party's capacity to institute an action for defamation against the website owner, as often only the latter will be in a position to compensate the injured party (financially) for the offensive speech. The Israeli legal system, which in many ways furnishes a unique and interesting framework for examining the question posed above, as we explain in the body of the article, presents a fascinating example of how the Israeli legislature and the courts have dealt and continue to deal with claims filed against website owners for damage to reputation as a result of speech published by third parties. The article offers a comprehensive review of the status of the right to freedom of speech, anonymity and the right to reputation in Israel, the considerations for and against the imposition of liability on website owners and the latest case law on these questions.