Sometimes, it seems that the entire world revolves around internet platforms and content creation and many businesses are investing on creating internet content as a way to enhance and develop their business channels. But what if intellectual property rights are breached as a result, and not necessarily because of something the business itself published?
When a person publishes an offensive post on Facebook or Instagram or Twitter, Israeli case law has adopted the European approach (in the absence of Israeli legislation on the matter), under which internet platform operators will not be liable for the defamation by site guests if they did not know about the breach and were careful to remove the offensive publication within a reasonable time from the date they became aware of it. However, what if a user's post on the site infringes on the intellectual property rights of a third party? Here too, in the absence of Israeli legislation, case law adopted the approach anchored in European legislation, based itself on the case law on defamation in order to resolve the issue of infringement on property rights, and developed the doctrine of "contributory liability in copyright".
At the beginning of the 21st century, Court holdings found that Internet platform operators would be held liable for copyright infringement if they contributed to the commission of the infringement by their actions. For example, actively encouraging or assisting copyright infringement as well as providing equipment or a service that enables the infringement, and all on the condition that such contributory liability would only be imposed after finding someone responsible for direct infringement of copyright (i.e.: First, the infringing surfer must be found and held liable, and only then the platform can also be held liable). However, in the Haaretz v. Rotter.net holding from late 2024, the Tel Aviv District Court expanded the liability of platform owners. In that case, it was a platform in which users published newspaper articles copied from other sources. The Court held that the presence of the publication itself on the platform also makes the platform liable for the direct infringement (a fact that removed the obstacle arising from the need to oblige the users themselves in order to set liability on the platform), and that there is justification for imposing direct liability on the platform due to its actions to clearly and actively encourage users to publish infringing publications and that the platform provided them with the technological tools to do so in a simple and easy manner. The Court also noted the large scope of the infringements that constituted most of the content on the site and also imposed personal liability on the platform operators.
The judgment has broad implications, as it indicates the tendency of the Courts to impose liability, whether direct or indirect, on Internet platforms in a manner that obligates website operators to ensure supervision and prevention of copyright infringements through the platforms in content uploaded by users. A website operator can no longer ignore its liability under the argument that the content was uploaded by a third party or by a user, and must take significant steps, including working closely with legal advice, for the purpose of drafting the site's terms of use and user policies, and taking actions that will enable the site to actively and regularly remove infringing content.