(1) To humiliate a person in the eyes of others or to make him a target of hatred, contempt or ridicule on their part;
(2) to degrade a person because of acts, behavior, or qualities attributed to him;
(3) To harm a person in his office, whether a public office or any other position, in his business, occupation or profession;
(4) To degrade a person because of his race, origin, religion, place of residence, age, sex, sexual orientation or disability..."
The provision of Section 2 of the Prohibition of Defamation Law states as follows:
")a) Publication, for the purpose of defamation - whether orally or in writing or in print, including a drawing, a figure, movement, sound and any other means.
(b) It is considered to be defamatory publication, without the exception of other means of publication
(1) If it was intended for a person other than the injured party and reached that person or another person other than the victim;
(2) If it was in writing and the writing may, according to the circumstances, reach a person other than the injured party."
- The criterion by which the content of a publication will be determined is humiliating or offensive, within the meaning of the Prohibition of Defamation Law, is objective. In order to objectively determine whether a publication objectively entails harm of the kind discussed in the law, it will be given the public's accepted meaning in accordance with the understanding and opinion of an ordinary reader (Civil Appeal 334/89 Michaeli v. Almog, IsrSC 46(5) 555, 562 (1992)); Civil Appeal 723/74 Haaretz Newspaper Publication in Tax Appeal v. Israel Electric Company Ltd., IsrSC 31(2) 281, 295 (1977)].
- In accordance with case law, when examining whether a publication constitutes defamation, a distinction must be made between a publication that constitutes an expression of an opinion and a publication that is pretended to be a factual determination.
- In Civil Appeal 817/23 New Contract Association v. MK Miki (Machluf) Zohar (published in Nevo, May 30, 2023), it was held that it is necessary to examine how the statement is perceived by the average person, whether it is a personal conclusion of the advertiser or a factual fact that describes reality. This judgment further held that when a person from the community knows that MK Zohar is not a soldier in a criminal organization headed by the Prime Minister, it is an expression of opinion, which is protected by the good faith protection in section 15(4) of the Law. On the other hand, when it comes to posts published on the social network "Facebook", in which the plaintiff was called by various nicknames such as "liar" and "corrupt", it was determined that the use of these nicknames, while attributing acts of a criminal nature to the plaintiff, is capable of damaging his good name, humiliating him, humiliating him, and harming his position.
- There is no dispute that a picture of the plaintiff was displayed alongside text that indicates that the plaintiff had difficulty in the English language and that now, after an English course, her ability has greatly improved. I do not believe that such a publication is liable to be perceived by the "reasonable person" as an expression that portrays the plaintiff in a humiliating, derogatory or ridiculous light. The plaintiff did not prove, as stated, that she is a celebrity or a network influencer, who has many followers, nor that she is required to talk, write or read in English as part of her work. Therefore, the publication of the plaintiff's picture and the text next to it on the website should not be considered defamation, in accordance with the tests set out in section 1 of the Prohibition of Defamation Law.
- In light of the above, and since the plaintiff has not lifted the burden of proof imposed on her, I determine that the lawsuit for defamation should be dismissed.
Violation of copyright law
- The plaintiff claims in the statement of claim as well as in the affidavit filed on her behalf that the use of her photograph, which was made without consent, violated her copyright, among other things. In her summary, the plaintiff abandoned this argument.
- The defendants refer to the plaintiff's claims regarding copyright infringement in paragraphs 21-22 of their summaries.
- Since the plaintiff did not refer to this breach in her summaries, I can only conclude that she abandoned this claim and above necessity I will discuss this breach briefly.
- The copyright in a photograph of a face (portrait) generally belongs to the photographer and not to the person photographed, unless the photograph was commissioned by the photographed person (in which case the ownership belongs to the client). Publishing the photo without the permission of the copyright owner constitutes a violation of the right to copy and make it available to the public, since the photograph is considered an original work that expresses the photographer's artistic choices (angle, lighting, timing). (See, for example, Civil Appeal Authority 7774/09 Weinberg v. Wisa (published in Nevo, August 28, 2012)).
- In his case, the plaintiff did not prove that it was a work. A person's real image is not considered a work protected by copyright law. Therefore, its use without permission is examined through the right of publication and the cause of enrichment, and not in law (Civil Appeal 8483/02 Aloniel in Tax Appeal v. Ariel McDonald (published in Nevo, March 30, 2004).
- In light of the above, and since the plaintiff abandoned this claim and in any case did not lift the burden of proof imposed on her, I rule that the claim for this head of damage should be dismissed.
The Unjust Enrichment Law
- In accordance with the provision of Section 1 of the Unlawful Enrichment Law, the receipt of an asset, service or benefit (enrichment) must be proved, that the enrichment came to the beneficiary from the creditor and that the enrichment was "not in accordance with a legal right".
- The courts examine whether the enrichment is "unjust" according to tests of common sense and a sense of conscience.
- In order to establish the cause, it must be proven that the defendant has arisen from the publication. In some cases, if it is not proven that the defendant derived a profit or financial benefit from the photos, the claim on this ground may be rejected. On the other hand, in the commercial use of the figure, the profit may be derived from the very saving of payment for the use.
- According to the plaintiff, as expressed in paragraph 6 of the affidavit submitted on her behalf and in paragraph 32 of her summaries, she is a well-known figure in the networks, a network influencer and a public opinion leader whose main occupation is advertising and marketing in the various media.
- The defendants deny all that is said in this regard and claim that the plaintiff has not proven any of her claims in this context of the Enrichment Law, nor in law.
- A review of the statement of claim, the plaintiff's affidavit and her summaries shows that the plaintiff did not prove that defendants 1 and 3 derived profits from the publication, if any, and did not even offer a way to estimate the advertising value of her photo.
- As stated, the plaintiff did not support her claim that she is an influencer and a network personality in any way. Moreover, when the plaintiff was asked whether she contacted the defendants after she found out about the publication of the photo or if her lawyer contacted her, the plaintiff replied: "... I contacted a lawyer. I work in insurance. Procurement Manager" (p. 1 of the transcript, line 26). Therefore, the plaintiff did not prove that her photograph had commercial proprietary value (see and compare the McDonald's case, in which it was held that the right to publicity (of a celebrity, as opposed to the case before us) was recognized as an economic right to use his name for advertising purposes. It was also determined that this is also a proprietary right; See also Fundacio Gala Salvador Dali VS Marketing (Israel, 2005) in a tax appeal (published in Nevo, August 28, 2016), where it was held that commercial use of an artist's name, without his permission, for the purpose of generating profits constitutes unjust enrichment.
- In light of the above, and since the plaintiff has not lifted the burden of proof is on her, I rule that the lawsuit for this head of damage should be dismissed.
Cause of Damage
- The plaintiff claims that in her case there was a tort of negligence since the defendants did not act as reasonable professionals and they should have checked the data before publishing it, and there is damage and a clear causal connection (paragraph 44 of the plaintiff's summaries).
- The defendants claim that their conduct does not amount to negligence, and beyond that, the plaintiff did not prove her damage and did not attach documents to prove the damage.
- In order to be entitled to compensation by virtue of the tort of negligence (as opposed to statutory damages in the Copyright Law), the plaintiff must prove that he suffered real damage (economic or non-pecuniary damage, such as mental anguish) and that there is a causal connection between the negligence and the damage. If no damage is proven, the claim on the ground of negligence will be dismissed even if negligence is proven (see Civil Case (Shalom Tav) 18825-04-22 Elharar v. Keshet Broadcasting in a Tax Appeal (published in Nevo, June 25, 2023)).
- After examining all the pleadings, the affidavits and their appendices, and the summaries of the parties, I found that the plaintiff did not prove that she suffered actual damage that entitles her to compensation by virtue of the tort of negligence, and therefore I determine that the claim for this head of damage should be dismissed.
Conclusion
- The claim against defendants 1 and 3 is accepted so that defendants 1 and 3 will pay the plaintiff, within 60 days from the date of the judgment, a total of ILS 9,000, together with shekel interest from the date of filing the claim until the date of repayment.
- Taking into account the result I have reached, I determine that the plaintiff and defendants 1 and 3 will each bear their own expenses.
- The claim against defendant 2 is dismissed. The plaintiff will bear the expenses of defendant 2 in the sum of ILS 2,500.
The Secretariat will forward a copy of the judgment to the parties' attorney.