The plaintiff's second claim for direct damage is in the sum of ILS 250,000, which embodies, according to the plaintiff, the cost of removing the publications that the defendant distributed on the Internet and in general in connection with the plaintiff. This argument also remains vague (paragraph 45 of the plaintiff's affidavit).
This argument is based on a document known as a price quote (Appendix 16 to the plaintiff's affidavit), but a review of that document does not even make it possible to try to estimate the costs of removing the publications in the plaintiff's case. The editor of that document did not testify, an expert opinion on this matter was not submitted, the document in general does not include a specific reference to the plaintiff's case, and the fact is, there is no dispute about this, that the plaintiff did not claim that he had taken even a small amount out of his pocket in order to remove publications that he claimed harmed him.
This second claim of damage caused to the plaintiff was also not proven, and therefore is rejected.
- After it was found that the plaintiff's claims for direct damage caused to him were rejected, the claim for compensation remained without proof of damage. This claim is an alternative to the claim for compensation for direct damage. The plaintiff has the option of claiming compensation without proof of damage as an alternative claim to a claim for compensation for direct damage where he has not been able to prove the direct damage (see, for example: Civil Appeal (Tel Aviv) 9712-12-13 "Kerr" Medical Services in a Tax Appeal v. M.L. American Laser in Tax Appeal [published in Nevo] April 13, 2015, paragraph 27 (and references therein)).
- In accordance with Section 7a(b) of the Prohibition of Defamation Law, the court is authorized to award compensation to the plaintiff without proof of damage in an amount that is updated from time to time and currently stands at approximately ILS 80,000. Section 7a(c) of the Prohibition of Defamation Law states that in a publication made "with the intention of harming", the court is authorized to award the double amount. Similar provisions are found in Section 29A of the Protection of Privacy Law.
- The first question that arises in the context of this argument is the number of publications.
- According to the plaintiff, the defendant should be treated as someone who harmed the plaintiff in many publications and the calculation of the compensation should be made accordingly. The plaintiff counts the number of visits to the defendant's website (280,000 visits according to the plaintiff), the number of records published by the defendant with a link to the book (hundreds of entries in at least 21 groups according to the plaintiff's method), and the enormous exposure that the defendant has, according to his own admission. These facts justify, according to the plaintiff's version, the defendant's obligation to pay the full amount of the claim.
- In accordance with Section 7a(d) of the Prohibition of Defamation Law, "a person shall not receive compensation without proof of damage, according to this section, due to that defamation, more than once." The expression "the same defamation" does not correspond to the expression "the same publication" and therefore it is possible that the same defamation will be expressed in more than one publication, so that the injured party will not be heard claiming that he is entitled to compensation based on the number of publications.
Therefore, the victim indeed has the option of claiming compensation without proof of damage according to the number of publications in situations in which more than one publication was made, provided that it has been proven by examining the totality of the circumstances that these are different publications that are not a single tract.
- Thus, emphasizing that this is not a closed list, the tests applied in such a situation were presented (Justice Noam Sohlberg):
The first test examines the content of the publications, and in particular whether there is a similarity between them. According to this test, when the content of the publications is similar, but not identical, the addition to the new publication will be examined compared to the previous one. If it is found that the addition in the new publication is significant, such that it exacerbates the harm to the injured party, the tendency will be to view the new publication as a separate publication, regarding the statutory track. On the other hand, if it turns out that the new publication does not add anything substantial to what was stated in the previous publication, the tendency will be to view the first publication, and the subsequent publication, as a single publication.