What do you Do when you Wake Up in the Morning?

What do you Do when you Wake Up in the Morning?

May 10, 2020

The average person opens his morning with coffee and a newspaper, or, to be precise, with Ynet or other Internet news-site, and a review of his Facebook “feed". If he sees an interesting post, he sometimes responds to it with a "thumbs up" (Like), sometimes even casually sharing it. Ah, ... but wait a minute... What if this simple post-sharing operation may entail legal consequences and possibly result in thousands in damages? Maybe it is worth thinking twice before pressing the "share" button...

Israeli law demands for the prima-facie tort of defamation an "abusive publication" and “publication”. The wording of the law is very broad regarding the means by which the publication may be made (orally or in writing and even through a drawing or gesture) but also requires that the publication is addressed to a third party and reached its destination, and if it was made in writing, it is sufficient that the writing could have reached, given the specific circumstances, such third party. The technological era forced the Courts to adapt the law to "modern" publication means, especially after the 2011 benchmark case of suicide of a teenager due to hate posts on his "wall". Thus, for example, in a 2014 case, it was held that the action of posting on another Facebook page amounts to defamation and in 2017, Israeli Supreme Court even held that commenting in a post might be considered a "publication" and defamation.

In a case decided by the Israeli Supreme Court in January 2020, a couple shared a Facebook defamatory post against a local newspaper and pressed the "Like" button on another, even though they did not know who wrote and published the original posts. Nevertheless, the Court held that the mere act of sharing a post amounts to defamation, but made it clear that the act of pressing "Like" does not. The act of "sharing" creates a "copy" of the offensive publication and is in fact a repetition of the particular publication, which exposes it to other users, who may not have otherwise been exposed to the original publication and thus may contribute to its distribution and resonance (hence helping it become "viral"). On the other hand, it is hard to see a "Like" as a "copy" and repetition. Although the damages awarded were only ILS 5,000 (a tenth of the possible statutory compensation), the Court's decision opened the door to the possibility of suing for posting “shares” on social media (Facebook, but also Youtube, Instagram, Pinterest, Twitter, LinkdIn etc.). With the rules of the game yet unclear this leaves us in a virtual darkness.

So what is the solution? As stated in the immortal song of Shalom Hanoch and Eric Einstein from the album "Shabul" (1970): “What do you do when you get up in the morning? The same things but slowly”. Think before sharing slanderous posts on social media (and business media such as LinkedIn or even public responses on open trade websites such as the Israeli Yad2 or Craigslist, Amazon or Ebay)., and carefully consider whether such actions are necessary, and if the event has already taken place, it is important to consult professional lawyers with expertise in the relevant field so that such may examine possible legal claims or defenses.