In the United States, on the other hand, in 1995, the New York State Court ruled in the case of Stratton Oakmont Inc. V. Prodigy Services (NY Sup. Ct. 1995), in which it was held that where the establishment has the ability to edit and delete publications, in a case where it refuses to remove an offensive publication, the language of the Local Defamation Prohibition Law allows it to be considered as having published the publication. However, shortly after this judgment was rendered, Section 230 of the Communication Decency Act of 1996 was enacted in the United States, which grants absolute immunity to establishments in this context, in the sense that an establishment is not liable in torts for offensive material published by a user.
Thus, the answer to the question of whether a refusal to remove a publication makes the establishment an advertiser depends on the language of the local Prohibition of Defamation Law, and in our case, the Prohibition of Defamation Law in Israel does not allow this.
- However, the Prohibition of Defamation Law recognizes two extensions of the liability set forth therein.
The first expansion is in accordance with the provision of section 11(a) of the Prohibition of Defamation Law, which also imposes liability for defamatory publication on the media in which the publication was published. The provision states as follows:
"If defamation is published in the media, they will be held criminally and civilly liable for defamation, the person who brought the defamation to the media and thereby caused its publication, the editor of the media and the person who actually decided on the publication, and the person responsible for the media will also be held liable for civil liability" (my emphases - R.A.).
However, the provision of section 11(c) of the Prohibition of Defamation Law further states that:
"In this law -
"Media" - a newspaper as well as radio and television broadcasts provided to the public;
"Media Editor", in a newspaper - including an actual editor, and in broadcasting - including the editor of the program in which the publication was made;