Civil Case (Tel Aviv) 12050-12-17 Nirolin Life Sciences Ltd. v. Dr. Manana Dan – Center for Aesthetic Medicine Ltd. - part 23

Siegel: What is a crash? Are they closing the office?

Manana: They will close the office, people were...

...

Manana: Of course they want me not to be here.  Of course.  They have merchandise worth millions here.  If you ask them the millions they bought for me, merchandise worth millions.  Where will millions of dollars of merchandise come here? Three cheaters it's just unbelievable.  How do I slander their name? Look for a job that is better for you.  I'm for everyone's good.  For the benefit of all of you, did you get the salary?

Sigal: Yes.

Manana: Of the month properly? No, you weren't short of sums?

Sigal: No. Shai, were you missing?

Yehoshua: I don't want to be here...

Manana: They'll get you into trouble too."

111. Here, too, it is clear that this is defamation, when Manana describes plaintiffs 2-4 as fraudsters and claims that the business has collapsed or is about to collapse and that it is therefore preferable for the defendant's employees to look for work elsewhere and leave the plaintiff, and also hints in her words that salaries will not be paid and that the plaintiffs will get their employees into trouble.
112. Regarding the aforementioned publications, I found some of them to be protected under the protection of the truth in the publication and others to be imprisoned.
113. Regarding the statement "crashed", I found that the defendants had a defense, since, as stated, according to the testimony of Hodis himself, the plaintiffs or the plaintiff did indeed reach the point of "crushing" and see p. 6, 28 of the par.  of July 17, 2024, where Hodis says , "...  It started with the slander that led to our crushing, sir, that to this day we are in debt within the banks for seven years to pay them..."
114. Hodis did attribute the crash to the defendant's publications, but given the fact that it was not proven by the plaintiffs that the defendant caused their crash, as was already detailed earlier in the judgment and will be detailed below, the defendant's statement to the defendant's employees about the plaintiffs' crash, which was indeed intended to crash for reasons that are not the defendant's fault, should be seen as protected by the defense of truth in advertising.
115. Regarding the statement "the office will be closed" - given the financial collapse of the plaintiffs, it seems that such a statement should not be considered defamation at all, and alternatively, there is a defense of expressing a good faith opinion or defending the truth in publication if it is seen as a falsification of fact.
116. With regard to the statement "fraudsters", which is attributed to plaintiffs 2-4, in the context of the claim of a debt of millions for the goods, a final judgment is issued, which, as stated, also constitutes an act of the court in relation to the claim here, which determines that the debt in respect of the goods has not been proven, I am of the opinion that the defendant has the defense of the truth in the publication with respect to the statement that plaintiffs 2-4 are "cheaters".
117. This statement was made in the context of the plaintiffs' claim that the defendant owed them millions for the goods. However, it turned out that this was not the case, and moreover, despite the cancellation of the transaction, one of the plaintiffs filled the amount of the check with the amount of the debt claimed in respect of goods and in exchange for the concession, when it was clear that they were not entitled to do so in any case, as the Court of Appeal repeatedly explained during the hearing.
118. Therefore, the term "fraudsters" in this context, which indicates dishonest conduct on the part of the plaintiffs in this matter, is protected by the truth in the publication.
119. As for the statement, "Look for a job is better for you," this is not a fact. This is an expression of opinion on the part of the defendant.  The question is whether the opinion was expressed in good faith.
120. It was indeed proven (in the words of Hodis as stated above) that the plaintiff/plaintiffs crashed financially at the time, and it was also proven that, as was already detailed in the previous chapter of the judgment and will be detailed later, that the plaintiffs were the ones who breached the agreements with the defendant and not the other way around.
121. However, I am still of the opinion that the defendant cannot be given a defense in this matter, because an expression of such an opinion, even if it makes sense (in view of the economic situation in which the plaintiff found herself), cannot be regarded as an act committed by the defendant in good faith.
122. The defendant was indeed entitled to update the defendant's employees of its claims against the plaintiff and in general of the economic situation in which the plaintiff found herself, since there was a "public interest" in this information, but from here to giving the employees such recommendations, of leaving their workplace, there is a long way to go.
123. Expressing an opinion of this kind to the defendant's employees, which was in fact not necessary for the purposes of protecting the defendant's interests, is "... An intention to harm to a greater extent than was reasonable for the protection of the values protected under section 15", as detailed in section 16(b)(3) of the Prohibition of Defamation Law, 5725-1965.  Therefore, according to the aforementioned section 16, there is a presumption that this publication was made in bad faith.
124. Regarding the statement, "You got the salary?... of the month properly? No, you weren't short of sums?", which in fact implies that the plaintiff's employees may not receive a salary, the defendants cannot be given the defense of the truth by publication or the expression of an opinion in good faith.
125. The defendants did not prove that there was truth in this publication, i.e., that at the time there was a reasonable and well-founded fear that the employees would not receive their salaries, and incidentally, the defendants also did not prove that in the end the salaries were not paid. Here, therefore, the defendant has no defense.  Even if it appears to be an expression of an opinion, there is no defense when it is an unnecessary statement whose purpose was simply to lash out or to harm the morale of the plaintiff's employees.
126. The same is true of the statement "they will get you into trouble as well" , which implies with a thick hint that what the plaintiffs did to the defendants will also be done to their employees. Here, too, it was not proven that the words were said on the basis of a real factual basis in this matter, and therefore here too the defendant has no defense.  Even as an expression of opinion, one should not be seen as innocent when we are dealing with a statement without any basis.
127. Out of six statements of defamation by the defendant vis-à-vis the plaintiff's employees, I therefore found that there is no defense in relation to the three.
128. Here, too, the plaintiffs sued for ILS 100,000 and claimed an intention to cause harm. Here, too, I find an intention to harm given that the words were said to the plaintiff's employees.
129. After considering the severity of the statements and the circumstances of the publication, including the target audience of the publication, as well as the fact that the plaintiffs' names had already been tarnished prior and that it was not the defendants' fault, a consideration that is significant in my opinion, I decided to set the compensation at ILS 10,000 here as well.
130. With regard to the question of the liability of defendants 1 and 2, here too I found that the claim should be dismissed when we are dealing with statements of defendant 3 and a tort act.

The third case - things that the defendant said to the manufacturer

131. According to the plaintiffs, the defendant slandered the manufacturer by telling him that the plaintiffs had deceived their customers and that the plaintiff was in financial collapse. In the manufacturer's affidavit, which was not contradicted in his cross-examination, and whose testimony was reliable to me in this matter, it was proven that the defendant said the aforementioned things (see paragraph 15 of his affidavit).
132. It is clear that these are defamatory statements, and therefore the question is whether the defendant has the defense of the truth in the publication in this matter.
133. With regard to the claim of deception of the customers, I am of the opinion that the defendants have the defense of the truth in the publication, and in this regard I refer to the reasons I brought in relation to the identical publication in the framework of the second case, in which the defendant made statements to the plaintiff's employees, where the defendant also referred to the plaintiffs as "fraudsters", because they themselves filled out the check that she gave them for an unagreed sum for goods that according to their claim were supplied to the defendants. While it turned out in the promissory note proceeding that not only did the plaintiffs not have the right to collect payment for the goods, and that this was when they cancelled the transaction, they were also not even able to prove that the goods were supplied and that there was a debt.
134. In the advertisement with the manufacturer, the defendant did indeed attribute the deception to the plaintiffs' relations with the other customers, and not only to it, but I found that even in the plaintiff's relations with the other customers, there is sufficient evidence to prove dishonest conduct, due to the cumulative weight of a number of pieces of evidence as detailed below.
135. First, the very establishment and existence of the WhatsApp group of the plaintiff's clients, whose name is "Nirolin Fraud and Fraud", is, to a certain extent, "there is no smoke without fire". Even if a unilateral action by customers, even if many, does not necessarily mean that the supplier is guilty of everything that is alleged against him or at all, when additional evidence is added to this fact, as will be detailed below, it strengthens the belief that the establishment of the group of customers occurred for nothing.
136. The second evidence is the grievances of another cosmetologist with the clearing company in connection with the collection of checks without the supply of goods, as emerged from the conversation between plaintiff No. 4 and Michal from the clearing company, which I mentioned in relation to the defendant's publications in the first case.
137. As may be recalled, from the aforementioned conversation it turned out that another cosmetologist named Keren Alfasi complained to the clearing company that the plaintiff "disappeared with the products", i.e., took checks and did not deliver the goods, just as the defendant warned in a publication published in the WhatsApp group.
138. The third evidence is the defendant's testimony regarding the plaintiffs' conduct with the other clients, which was reliable to me. The defendant participated in the WhatsApp group and was in contact with other customers, so these are things that she knows, and as stated, her testimony that the plaintiffs used the same method with the other customers is reliable to me.
139. The fourth evidence - the very fact that the plaintiffs were unable to prove even a simple debt of supply of goods in the relationship with the plaintiff in the framework of the promissory note and the fact that despite the cancellation of the transaction, they submitted for execution a check that they themselves filled out without the defendant's consent for the amount of the check and more on a very high sum of approximately ILS 1.6 million, in respect of an alleged debt, which, as stated, was not proven at all, even if it had been proven, The plaintiff had no right to receive it, since she herself cancelled the transaction.
140. Such conduct has implications for the credibility of the plaintiffs in general and strengthens the defendant's testimony regarding the plaintiffs' poor conduct vis-à-vis all the customers, as well as reinforces the conclusion that the customers' WhatsApp group was established for no reason, in the sense that "there is no smoke without fire" and "there were things in the body".
141. Therefore, the defendants have a defense with respect to the accusation of fraud against the plaintiffs before the manufacturer.
142. Even with regard to the statement to the manufacturer that the plaintiff is in an "economic collapse", the defendants have the defense of the truth in the publication, since, as stated, it was proven from the words of Hodis himself that the plaintiffs did indeed reach a state of economic crash, and even here, given that the statement attributes the crash to reasons for which the defendant is not responsible, since it has been proven that the defendant was indeed not at fault in the said economic crash, the defendants have the defense of truth in the publication here as well.
143. Therefore, here the plaintiffs are not entitled to any compensation.

The fourth case - things that the defendant said to the clearing company Maxim Capital

144. It was proven that the defendant spoke with a representative of the plaintiff's clearing company, Maxim Capital, and stated to her that the plaintiffs had stolen her checks. This was proven in the transcript of a conversation that was attached as evidence, a conversation between Michal, a representative of the aforementioned clearing company, and plaintiff No. 4.
145. Since in the judgment in the banknote suit there is a conclusive determination that constitutes, as stated, an act of court, according to which the checks were not stolen (see paragraph 15 of the judgment), the defendant here does not have the defense of the truth in the publication.
146. Given the aforesaid and the circumstances of the publication, its severity and to whom it was intended, as well as the fact that the plaintiffs' names were already tarnished at that time due to their conduct and not due to an act or omission of the defendants, as already detailed above, I place the compensation here at ILS 20,000.
147. With regard to the question of the liability of Defendants 1 and 2, here too I found that the claim should be dismissed when we are dealing with statements of defendant 3 and a tortious act.
148. Finally, I will clarify that although some of the publications were similar in content and even published all of them at the time, in my opinion they should not be regarded as "the same publication", within the meaning of section 7a(d) of the Law, since the identity of the recipients of each publication was completely different in each of the publications (cold, customers, employees, the manufacturer and the clearing company).
149. In this regard, I refer to Civil Appeal 2855/20 Anonymous v. Anonymous - Published in Nevo, paragraph 82 of the judgment, where it was stated: "Insofar as it is possible to prove the existence of a difference between the identity of the recipients, from publication to publication, the tendency will be to view each of the publications as a separate publication regarding the statutory track, and vice versa."

ILS 100,000 in compensation without proof of damage under the Commercial Torts Law for false description and unfair interference

150. In their summary, the plaintiffs claim that the defendants' publications, as detailed above in the previous chapter of my judgment, constitute a tort within the meaning of section 2(a) of the Commercial Torts Law, 5759-1999. This section states: "A dealer shall not publish information and shall not cause the publication of information, which he knows or should have known to be incorrect, regarding a business, profession, asset or service, of himself or of another business." The grounds for unfair intervention were apparently abandoned because it was not mentioned in the summaries.
151. The plaintiffs claim that by virtue of section 13 of the law, which deals with "compensation without proof of damage" for a tort, they are entitled to compensation without proof of damage of up to ILS 100,000 for the acts of the defendants described in the lawsuit, and according to the plaintiffs' claims, they were also proven, which constitute the commission of a tort of "false description", according to section 2(a) of the law, but this claim is incorrect, since section 12 of the law explicitly states that "The remedies in sections 13 to 21 will not apply to torts under sections 2 and 3." Section 2 of the Law deals with a false description and Section 3 of the Law deals with "unfair interference".
152. Therefore, and the plaintiffs claim only statutory compensation for "false description" and "unfair interference", and not damage actually caused as a result of these torts, the claim should be dismissed on top of this damage, if only because of it.

ILS 100,000 for unjust enrichment due to appeals to the plaintiff's clients to divert them to work directly with the defendants

153. In the plaintiffs' summaries there is no mention of this head of damage, and therefore it is clear that the head of damage was neglected and therefore the claim is dismissed for this head of damage, if only because of it.
154. More than necessary, I will add that it has not been proven that the defendants enriched themselves as a result of the alleged inquiries to the plaintiff's clients in order to allegedly divert them to work directly with the defendants.  Not a shred of concrete evidence was attached in this matter.

ILS 2,500,000 for loss of sales in 2017 and ILS 1,500,000 for damage to reputation; ILS 10,000,000 for loss of sales for the years 2018-2022 inclusive; Approximately ILS 10,000,000 decrease in the value of the plaintiff (it should be noted that it is not clear from the claim whether the aforementioned three sums are claimed cumulatively or alternatively)

155. In order to prove the sums claimed as detailed in the heading, which are mentioned in paragraphs 123-125 of the lawsuit, and which are claimed to amount to ILS 24,000,000 in total, the plaintiffs submitted an opinion by CPA Roy Carta, dated July 10, 2018. This opinion states that the total damages caused to the plaintiff is ILS 3,989,743.
156. According to the opinion, the direct damage caused to the plaintiff is ILS 2,029,166, which consists of:

ILS 1,429,149 for damage to profitability from 2016 to 2017, consisting of a loss of ILS 600,000 in franchise fees and a loss of gross profit in the amount of ILS 829,149.