In this context, it should be noted that even if you cease to serve as the group manager, while leaving the group intact, your responsibility for publications in the group will continue to exist, since you have already caused the damage and an attempt to 'escape' without repairing the damage, both in relation to the past and in relation to the future, will not help you.
44.2. To send to the Kibbutzim Seminar, and to all the participants of the workshop in which you made unfounded statements, a written notice, in a form that will be coordinated in advance with the kibbutz and acceptable to it, in which you will announce that you have said things that did not exist and were not created.
44.3. To publish a notice of apology to the kibbutz, in a wording that will be coordinated in advance with the kibbutz and acceptable to it, and in a place and in a manner acceptable to the kibbutz.
44.4. Stop trespassing, stop creating nuisances, stop blocking the kibbutz gate and cease the variety of provocations you carry out at the gate and on the kibbutz grounds, and in general.
44.5. to pay the kibbutz compensation in the amount of ILS 2,500,000 for [approximately] all the injustices you committed. This sum is beyond the letter of the law, for the purposes of compromise only, and is significantly lower than the full compensation that you must pay to the kibbutz."
- The parties disagree as to whether and which of the demands were met by Vaknin. In any event, it is clear that Vaknin did not pay the kibbutz the amount of compensation demanded from him in paragraph 44.5 of the letter, and that even if he took any actions following the letter, those actions did not satisfy or cool the minds of the kibbutz's decision-makers. Therefore, on May 11, 2021, the kibbutz filed the tort claim against Vaknin, which is the basis of the present proceeding. In its lawsuit, the kibbutz reiterated that Vaknin committed the wrongs detailed in the letter, and even detailed a series of 77 libelous publications, for which Vaknin was alleged to be responsible: the vast majority of the publications, about 70 in number, were written by various members of the group, as part of the online discourse that took place there; the rest of the publications, which can be counted on the fingers of two hands, were written by Vaknin himself in the group, or were made by him in various forums in which he spoke (such as the lecture mentioned above, as of October 16, 2022). As for the relief, the kibbutz reiterated the demand for monetary compensation, which it also addressed to Vaknin in the letter, and demanded from him the sum of ILS 2,500,000 (this sum was chosen, according to the kibbutz's explanation, "purely for reasons of efficiency, and for considerations of the chances of collection, [...] even though it is clear that the compensation due to the kibbutz is much higher than the amount claimed"); In contrast, the other demands that the kibbutz addressed to Vaknin in the letter were not mentioned in the statement of claim.
- On July 8, 2021, even before a statement of defense was filed, Vaknin filed a motion to dismiss the lawsuit in limine. In the application, he argued that this is a lawsuit that meets "all the characteristics of a silencing lawsuit. Its main purpose is to impose on [Vaknin] the considerable costs of conducting a proceeding (in time, emotional resources, and real money) and to use the legal process itself to deter [Vaknin] and social activists from public and political activity." Based on these statements, Vaknin argued that this was a "flimsy and troublesome" lawsuit, which constituted an abuse of legal proceedings - reasons that justify, both, dismissal of the lawsuit in limine, in accordance with the provisions of Regulations 41(a)(2) and 42 (respectively) of the Civil Procedure Regulations, 5779-2018 (hereinafter: the Regulations).
- On October 3, 2023, after a variety of unsuccessful attempts to bring the parties to an agreement, the Magistrate's Court rejected the motion for dismissal in limine. The decision first described that "estoppel lawsuits are an expression of abuse of legal proceedings", and from this point of departure the proper attitude towards them was examined. In this context, it was noted that "the doctrine of 'silencing claims' has not yet been fully absorbed into Israeli law," even though "attempts have been made to enact a law on the matter," and the doctrine has even been "addressed in Supreme Court rulings." After presenting the characteristics enumerated by the case law with regard to estoppel claims, and recalling several judgments in which the issue was discussed, the matter was summarized as follows: "It emerges from the case law that in those cases where the court is convinced that it is clearly facing a suit for estoppel and is able to positively determine that it meets all the characteristics required for its classification as a silencing claim, as opposed to an initial impression, and the plaintiff is not likely to be entitled to relief even if he proves his claim, It is possible to use a tool of outright disposal." This is also "in view of the approach of case law regarding the dismissal of claims in limine as a rule, and taking into account the right of access to the courts, its importance and its high status."
- In applying this legal basis to the facts of the case, the Magistrate's Court found that it was unable to determine that "all the conditions required for the classification of the claim as a silencing claim are met at this stage," and therefore "[and] cannot grant the request for dismissal." This is because even if the claim is characterized by some of the characteristics of silencing claims, other characteristics do not exist in it: it has not been proven that "this is a baseless claim"; nor can it be "determined at this stage that the amount of the claim lacks a basis in law". It was further noted that the decision on the claim requires a factual clarification, which can only be carried out up the road, as to the question of whether or not Vaknin removed and deleted some of the publications before filing the lawsuit. The decision was therefore summarized as follows: "It has not been proven to me that the main motive for filing the lawsuit is to deter [Vaknin] and others from participating in the public debate on the issue of Nahal Hasi. [...] The characteristics of the doctrine require a factual examination in the framework of the investigation of the claim, and as of now, it cannot be determined that we are dealing with a clear silencing lawsuit that was filed through abuse of court proceedings." Therefore, the argument that the claim should be dismissed in limine, due to abuse of legal proceedings, was rejected. For related reasons, the argument that the claim should be dismissed in limine in the absence of a cause of action was also rejected: "It cannot be said that the kibbutz has no cause of action whatsoever and that there is no possibility, even the slightest one, that it will receive the relief sought by it or in part," and therefore, "there is no room for dismissal of the claim in limine on this ground."
- Vaknin did not give in, and filed a request with the District Court for leave to appeal the decision. The application was denied. As a platform for the hearing, the District Court reiterated what was also at the basis of the Magistrate's Court's decision: "We are concerned with a motion for summary dismissal, and as such, the court must exercise great caution due to the right of access to the courts, and strike a good balance between the prima facie existence of a cause of action, and the damage that will be caused to the defendant who will be forced to defend himself against the lawsuit." Against this background, the court raised several doubts regarding some of Vaknin's claims, and noted that the Magistrate's Court was not required to "examine, already at this stage of the litigation, any publication and publication, whether it constitutes defamation or not." This is because "the fact that at least some of the publications constitute alleged defamation, is sufficient to say that the claim must be clarified," when "including [Vaknin]'s defense arguments will obviously also be clarified, even if they do not justify dismissing the claim in limine."
- Hence Vaknin's request for leave to appeal, along with which he also filed a request to stay the hearing in the Magistrate's Court. In my decision of June 10, 2024, I granted, with the consent of the parties, the request for a stay, and ordered that the hearing of the proceeding in the Magistrate's Court be postponed, until a decision is made on the request for leave to appeal.
Summary of the parties' arguments
- According to Vaknin, his case justifies granting leave to appeal, taking into account the very important legal issue that arises in it - the issue of dealing with "silencing lawsuits," in which legal proceedings are used to prevent criticism and public debate. The very conduct of such lawsuits, Vaknin argues, imposes heavy costs on defendants, and therefore may have "severe consequences for freedom of expression, legitimate civil struggles for public interests, and the public's right to know," due to the "chilling effect" that may arise as a result of these lawsuits, which deter many from participating in the public discourse. In this regard, it was further argued that the phenomenon of silencing suits, which has long been recognized in the Sea States and discussed in the literature, is "increasing in Israel as well", and a clear decision by this Court is required in respect of it.
- On the merits, Vaknin argues that "the proceeding here is a textbook case for a silent lawsuit" and an abuse of a legal proceeding, since the lawsuit filed against him follows all the criteria presented in the case law, as characteristic of these claims: the compensation demanded by the kibbutz is extremely excessive, and was not backed up with any explanation or detail that would be satisfactory, when in fact - the kibbutz did not indicate any damage caused to it at all; we are dealing with a debate that arouses great public interest; there are considerable power differences between the corporation, the plaintiff, and the individual defendant; No satisfactory explanation was presented for the choice to sue, but Vaknin, as the group's manager, was replaced by the lawsuit by the direct advertisers of the publications on the agenda. With regard to this last characteristic, it was also argued that the kibbutz's choice to sue Vaknin alone, contradicts the decision of this court, in Civil Appeal Authority 1239/19 Shaul v. Nidley Communications Ltd., paragraphs 48-49, 54 [Nevo] (January 8, 2020) (hereinafter: the Naidli case), according to which in the absence of exceptional reasons, a defamation plaintiff must first sue the direct publishers of the libel publications for which he is suing. While he should not be allowed to be "too selective" with regard to the defendants chosen by him. In view of the aforesaid rule, Vaknin is of the opinion that it should be determined that the kibbutz's claim constitutes an abuse of legal proceedings, and therefore it should be dismissed out of hand, in accordance with Regulation 42 of the Regulations.
- These matters are related to another reason that, according to Vaknin, justifies granting leave to appeal, and then also accepting the appeal: according to him, the rejection of his application will lead to "the conduct of an erroneous proceeding while wasting judicial resources and resources of the parties." This is in view of the aforementioned rule with respect to the kibbutz's claim, and in view of the fact that the need to prevent an erroneous proceeding must be given additional validity on the issue at hand, since "the entire purpose of the doctrine of abuse, in cases of silencing claims, is to prevent the heavy burden, in economic and emotional resources, of dealing with a full legal proceeding."
- The kibbutz, on the other hand, maintains that 'neither its number nor some of it' - in its position, at the present point in time, is only the Magistrate's Court's ruling that it will not dismiss the claim out of hand, because it believed that a factual clarification on certain matters is necessary in order to formulate its position"; this without rejecting "claims [and property] on their merits (for the time being)". In these circumstances, according to the kibbutz, there is no justification for granting leave to appeal. Thus, taking into account the extensive case law, according to which the intervention of the appellate court in decisions regarding the rejection of a motion for dismissal in limine, will be done only in exceptional and rare cases - a ruling that is preferable to "kel ve-chor", according to the kibbutz, where we are dealing with an application for leave to appeal in a "third incarnation".
- As for Vaknin's argument that we are dealing with a suit for estoppel, and abuse of legal proceedings, the kibbutz refers to what was stated in the affidavit of the kibbutz secretary: "The lawsuit is not a 'silencing lawsuit,' not revenge against [Vaknin], and there is no ideological background here, in any way, and so on. We do not want to silence [Vaknin] or harm him in any way." In this regard, it is also noted that "it is sufficient to review a handful of publications" detailed in the statement of claim, and "it is sufficient to understand the number of times [Vaknin] physically came to the kibbutz and created intolerable nuisances and damage, in order to see that the kibbutz's claims are legitimate, detailed, supported by evidence and references," in order to conclude that Vaknin disqualifies in his own momo: "It is precisely [Vaknin] who abuses legal proceedings by filing the motion [for summary dismissal].". In addition to the aforesaid, the kibbutz argues that there is no doctrine of a silencing claim in Israeli law at all, when when the courts nevertheless referred to it, it was emphasized that its purpose was "to protect against a situation in which, on the one hand, a 'baseless or borderline lawsuit' is filed; On the other hand, the lawsuit attacks legitimate publications and the expression of a legitimate opinion or criticism." This is in contrast to "inflammatory and unjust publications of the most serious kind", such as the publications we are dealing with. The amount of the lawsuit is also not excessive, according to the kibbutz, but on the contrary - the highest number of wrongs, committed in various and distinct incidents, shows that "the lawsuit was filed on the lower side, and not on the high side." The kibbutz further argues that "the claim of a 'silencing lawsuit' is not appropriate to turn out to be a threshold claim," but only in the lounges of the proceeding; and that Vaknin did not prove that the direct advertisers of the publications "are people whose identities are known," because "fictitious names and profiles on Facebook are a well-known phenomenon [...]. You can't just assume that these are real profiles, and who is behind them."
- THE KIBBUTZ FURTHER POINTED TO A SERIES OF CASES IN WHICH "ADMINISTRATORS OF FACEBOOK GROUPS AND WEBSITES, IF ONLY BECAUSE THEY DID NOT DELETE DEFAMATORY PUBLICATIONS WRITTEN BY OTHERS" - A MATTER THAT IS SUFFICIENT "TO SHOW THAT THERE IS A VERY PROPER AND WELL-FOUNDED LAWSUIT HERE." The kibbutz also claims that he treated Vaknin fairly, by contacting him with a warning letter early, after which he waited for a period of about six months, during which Vaknin chose "not to do the simplest thing, which is right at his fingertips" - to press the DELETE key on the keyboard and delete all the publications and publications. Only when the kibbutz realized that it was waiting in vain, and that Vaknin, for its part, did not change its ways, "the lawsuit was filed without a choice."
Discussion and Decision
- In accordance with my authority under Regulation 149(2)(b) of the Regulations, I decided to hear the request for leave to appeal as if permission had been granted, and an appeal was filed in accordance with the permission granted. After reviewing the parties' pleadings, their appendices, and the decisions of the Magistrate's Court and the District Court, I have come to the conclusion that the appeal should be dismissed, and thus I will suggest to my colleague that it should be fired. The proceeding at hand raises a significant issue regarding the type of claims known as 'silencing suits' - an issue that has not yet been discussed at length in our case law (the Naidli case, para. 50; see also: Civil Appeals Authority 1688/18 Sarna v. Netanyahu, para. 7 [Nevo] (April 15, 2018) (hereinafter: the Sarna case)); there is room to provide a precedence regarding the methods of identification of such claims, and the appropriate judicial response to them. As will be detailed below, I am of the opinion that the seeds of dealing with the problem have long since been sown, and that the judge sitting on the bench has effective tools to deal with it, especially within the framework of the new Civil Procedure Regulations. Therefore, it is necessary, mainly, to clarify, clarify and outline the road, as the proceeding before us shows, and other similar proceedings; "There is a table, and there is meat, and there is a knife" - all that is left for us is to leave the table, set the table, and "eat" (according to Bavli, Kiddushin 46a). I will get to the work.
Mute Claims - User Guide (Abuse)
- A well-known and long-standing phenomenon in the world of defamation lawsuits, which was first introduced more than three decades ago, is the phenomenon of silencing suits, or in other words: SLAPP - Strategic Lawsuits Against Public Participation. The first to point out the phenomenon were a pair of American researchers, George Fring and Penelope Kenan, who summarized the fruits of their labor in the book: George W. Pring & Penelope Canan, Slapp's - Getting Sued for Speaking Out (1995). In essence, this is a pattern of action in which powerful and wealthy elements use lawsuits to silence public discourse and criticism directed at them. The "sting" of the aforementioned process is that regardless of the outcome of the lawsuits, the very exposure to the legal proceedings - which will be, in most cases, defamation proceedings - is capable of imposing heavy prices on defendants, and therefore also in order to create a "chilling effect," and to deter the public from taking part in the public discourse and from voicing criticism of "strong actors." Needless to say, there is a danger of real harm to freedom of expression, and to open discourse, which is one of the most important foundations of a democratic state (Naydley case, para. 50; Civil Appeals Authority 4512/20 Mano Shipping Company in Tax Appeal v. Blass, para. 15 [Nevo] (October 14, 2020); Shahar Tal, "The Horror of Libel: The Map of Incentives for Filing SLAPP Claims in Israel," Mishpatim 515, 516 (2016) (hereinafter: Tal); Khaled Ganaim, Mordechai Kremnitzer and Boaz Schnur The Law of Defamation - The Common Law and the Desirable Law 457 (2nd Expanded Edition 2019) (hereinafter: Ganaim, Kremnitzer and Schnur); Rachel Aridor Hershkovitz and Tehila Schwartz Altshuler Launching Claims: Characteristics, Dangers, and Ways of Coping 46 (Israel Democracy Institute - Policy Research 116, 2022) (hereinafter: Aridor Hershkovitz and Schwartz Altshuler)).
- In addition to the above, it was also noted that the harm caused to the litigants in the courts, due to the allocation of judicial resources to those who do not deserve them: "No less important, SLAPP lawsuits create an undesirable and unjustified burden on the judicial system," while the fact that these claims are often rejected in the end only "intensifies the sense of contempt for the judicial system" (Tal, pp. 521-522; see also: Regulation 5 of the Regulations; Issachar Rosen-Zvi The Reform of Civil Procedure: Guide of the Perplexed 288-289, 293 (Second Edition 2023) (hereinafter: Rosen-Zvi)).
- After I have discussed, in a nutshell, the phenomenon of silencing lawsuits and its curses, it remains to give signs in these lawsuits, in order to identify them and provide protection against them. In this context, those engaged in the work pointed out a number of characteristics in which the estoppel claims were "praised", when it is not a list of cumulative conditions, and when naturally, to the extent that it is found that a certain claim is 'tainted' with more characteristics than those listed below, the tendency to classify it as a silencing claim will increase, and vice versa. In general terms, I will note that the characteristics are arranged from heavy to light, on the scale of their potential contribution to the classification of a claim as a silencing claim; "In the great he began, and in the small he became" (Bereishit 44:12) (many of the words that Lekman relies on the Nadeli case, paragraphs 48, 50, and 54; Tal, pp. 536-537; Ganaim, Kremnitzer and Schnur, p. 457; Rosen-Zvi, p. 292; Aridor Hershkovitz and Schwartz Altshuler, pp. 48-52):
(-) Power Differences Between the Parties - A plaintiff who enjoys financial resources and easy access to legal services, often a corporation, where their 'alternatives are in the defendant' (according to Mishna, Avot 5:7), i.e., a private person, or a small corporation that does not operate for profit, and which does not have exceptional economic resources. In this situation, the effects of the legal process on each of the parties are completely different. Hence the plaintiff's willingness to bear the costs of the proceeding, and hence also the reluctance to proceed that will be the lot of the actual defendant, and of other potential defendants.