You Shared or Liked on Facebook? The Court Claim Against you is En-Route

January 27, 2019
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The article was published in Afik News 275 30.01.2019

A friend shared on Facebook a picture or a post with his opinion on an election candidate. With great enthusiasm and a light hand on the keyboard, you decided to press the “like” button or even share the post. Does this make you responsible to whomever might be hurt by the post?
Every day we are exposed to posts displayed on our Facebook feed. Some of which we agree with, to some we oppose. Sometimes some we respond to such, mark them with a “like,” and in other cases even share them. In each of those cases there is no doubt that we did not create a new post, we did not write it, nor did we re-write it, but as a result of our action we actually caused others to pay attention to the post written by another. When does so with a post that is defaming, not true or inaccurate, are we exposing ourselves to Court claims due to infringement of privacy or defamation? Are we actually in breach of the law when we share a post even when we, in fact, protest against it?
The Israeli Prohibition of Defamation Law deals with the protection of the dignity and reputation of a person by prohibiting the publication of expressions that may humiliate or hurt. The law sets that the publication of defaming materials may constitute a tort liability and may even constitute a criminal offense. In respect of civil liability, remedies may be obtained either under the law and or under the Torts Ordinance, and if a criminal offense is committed, a penalty of up to one year may be imposed. The Protection of Privacy Law establishes similar rules. These laws balance between the freedom of speech and the freedom from speech – the right to dignity and the right to a good name. In addition, each of the laws authorizes the courts to award monetary compensation of tens of thousands of shekels without the need to proof actual damage. Moreover, when the publisher had a real intention to harm, the Court may hold the plaintiff to double those compensations.
In April 2018, the Supreme Court held that the use of Facebook (as well as other social networks) indeed raises complex legal questions, including in the context of defamation. For example, is there infringements of the law by a publication against a Facebook group, a response to a post, a private message, or a publication on someone else’s wall?
In January 2019, the Tel Aviv District Court gave a holding against a person who gave a “like” and shared a post that disgracefully presented a local newspaper. It should be emphasized that this person did not write the post, but only shared another person’s post – an action that many of us do several times a day without thinking about its implications. Despite this, and contrary to previous holdings on the subject, it was held that these actions could be seen as intentionally defaming. Unlike the act of pressing the “like” button, which does not republish offensive things but merely expresses a position on it, the act of sharing actively causes a de-facto publication of the defaming statements already published by others, as a reinforcement of the offensive statements while increasing the circle exposed to the publication. Therefore, it was held that the amount of the compensation will also take into account the manner of sharing: Were other things written by the post sharer (such as words of support or objection), was the post removed and after how much time, and more. In that case, although it was held that the sharing of that post constituted intentional defamation, a procedural agreement between the parties set the compensation at a significantly lower amount.
Although this Court’s holding is precedent, and although this is not a case law of the Supreme Court and may therefore be changed, this indicates the tendency to deter users from an “easy hand on the keyboard” in social networks and to set boundaries in the open network space in order to balance the freedom of speech and the right to a good name. Also because of the lack of legal certainty these days, in any doubt it is important to consult a lawyer experienced in the field in order to minimize potential exposure.