(My emphases - R.A.).
- In the circumstances, I do not believe that Google and Meta can be considered as having supported the content of the advertisements. I believe that it has been proven that Google and Meta acted without any mental attitude regarding the content of the advertisements. Their refusal to remove them did not stem from the fact that, according to their view, the content of the publication was true, or that they agreed and approved of what was stated in them, but rather stemmed from their general worldview regarding their role in the virtual world, according to which if they were not presented with proof that the publication contained something clearly false, then they had no obligation whatsoever to remove the This is by virtue of the principles of freedom of expression on the Internet, their aspiration not to serve as "super censor" and to avoid creating a chilling effect on freedom of expression on the Internet. While it is true that it has been proven that Google had an economic interest in advertising, the existence of an economic interest on the part of the establishment should not be viewed as support for the content of the advertising, which is required as a condition for the application of the ratification alternative. These positions do not express an attitude of support for the content of the publications, a attitude which, according to the Supreme Court's ruling, constitutes a condition for imposing liability by virtue of the ratification alternative set forth in section 12 of the Torts Ordinance.
- Thus, the result is that the lawsuit against Google and Meta should be dismissed, on the grounds of defamation, including attributing it to them through the prism of section 12 of the Torts Ordinance.
Were Google and Meta negligent in their refusal to remove the ads?
- The plaintiffs' alternative cause of action against Meta and Google concerns the tort of negligence, in accordance with the provisions of sections 35-36 of the Torts Ordinance. As may be recalled, in paragraph 41 of the statement of claim, the plaintiffs claimed that Meta and Google owe them a duty of care, and that they were negligent in refusing to remove the ads, without reasonable justification. We will examine this argument now.
- The first question that needs to be answered is whether an institution operating in the virtual space has a duty of care towards those who were harmed by the failure to remove publications that were published on the establishment.
In order to decide this question, and in accordance with the rules of liability for negligence, which were determined in other municipal applications 145/80 Vaknin v. Beit Shemesh Local Council, IsrSC 37(1) 113 (1982), the following questions must be answered:
- Is there a conceptual duty of care between establishments that operate in the virtual space and individuals who are the object of publications in relation to offensive publications?
- Is there a concrete duty of care between the plaintiffs and Google and Meta, in relation to the publications in question? In other words, could Google and Meta have foreseen, as reasonable establishments, that as a result of the failure to remove the publications from the establishments they own, damage will occur to the plaintiffs, should a reasonable basis have been, as a matter of policy, anticipated the occurrence of the damage, and are there policy considerations that negate the obligation?
- Did Google and Meta breach their duty to the plaintiffs - that is, did everything that was reasonable to require them to do when the plaintiff approached them with the removal request, in relation to the expected risk to the plaintiffs as a result of the publications and in relation to the means they had in their hands to prevent the risk from occurring?
- If the duty was breached, is there a causal, factual and legal connection between the breach of duty and the damage caused to the plaintiff?
Foundations and Details: A Conceptual Duty of Care for Not Removing Offensive Publications
- Is there a conceptual duty of care between institutions and individuals who are harmed by offensive publications published by users of institutions, about them?
In my opinion, the answer to this question is in the affirmative. This answer is derived from the great power of the Baha'i institutions of the Age, which is derived from their enormous number of users, and their extensive use. Databases, with an emphasis on social networks such as Facebook, and search engines such as Google, are the basis for the transfer and sharing of information, and its consumption, in the modern world. Social networks are a central arena for the exchange of information and opinions, in a very wide circulation, without investment of resources, and without barriers or governmental interference in freedom of expression [(Civil Appeal Authority 1239/19 Shaul v. Nidley Communications in Tax Appeal [Nevo] (2020), paragraph 36 of the judgment of the Honorable Justice D. Barak - Erez)].