Does Masada's refusal to remove an offensive publication give the victim a cause of action against it by virtue of the Prohibition of Defamation Law?
- As explained above, as a rule, institutions are in the second circle that relates to advertising. In the first circle is the advertiser himself: the one who created the publication and published it on the establishment. The responsibility of the establishment, to the extent that it exists, is ex-post, and relates not to the publication itself, but to its refusal to remove the publication.
Thus, the legal question under discussion is whether Masada's refusal to remove a publication that includes defamation amounts to defamation, and in other words - does Masada's refusal to remove an offensive publication left by a user of the institution make Massadat the person who published that publication?
- In my opinion, the answer is no.
First, the establishment did not take a positive act of publicity. The person who did this was the creator of the content and the person who published it on the Internet, not the establishment.
Section 2 of the Prohibition of Defamation Law places liability for defamation on the person who published the publication - i.e., the direct publisher (Uri Shenhar Defamation Law 96 (1997)). The argument that refusing to remove advertising turns the platform into the publisher of the content raises great difficulty, since the Prohibition of Defamation Law requires, according to its language, a positive act of advertising - and naturally it is clear that Google and Meta did not take such an action in our case.
A similar question arose in rulings issued in foreign countries as well. Thus, in England, it was held that a refusal to remove an offensive publication makes the establishment an actual advertiser, and in this regard, see the judgment of the Court of Appeal in England, in the case of Payam Tamiz v. Google Inc. [2013] EWCA Civ. 68 However, this decision stems from the language of the Defamation Act 1996, which at the time allowed this linguistic interpretation, a linguistic interpretation that the Prohibition of Defamation Law in Israel does not allow.