To all of the above, we must add the latest development of technology, artificial intelligence (AI), which, along with the great benefit that can be derived from it, cannot be ignored from its negative aspects.
Given the easy hand on the keyboard, the anonymity of the network, the ease of use of the apps, the accessibility and the enormous distribution of the platforms we are dealing with, the damage that may be caused by defamatory advertising on the networks may be enormous.
To this we will add the obvious: the right to be forgotten, which was embodied in the sentence "Today's newspapers wrap tomorrow's fish," simply no longer exists in the virtual space.
The Honorable Justice Y. Willner noted this in paragraph 5 of the judgment in the aforementioned Nadeli case:
"Defamation of a person's name on social media has the potential for damage with unique characteristics, sometimes more severe than the damage caused by defamation by traditional means."
Later, the Honorable Justice Willner detailed five reasons for this normative determination: the easement, accessibility and wide distribution that characterize expression on social networks; the scope of the publication which is not limited and may also be distributed to the direct members, family and community of the subject of the publication; The age-wide use of social networks, which causes the advertisers to be teenagers who are naturally not fully aware of the consequences of their actions, and on the other hand, are more vulnerable than others due to their age; Publishers' lack of subordination to the rules of journalistic ethics or to the criticism of an editor or publisher; The eternity of the content, and the fact that defamation on social networks is liable to cause a person whose name has been slandered to disconnect from these arenas and refrain from taking part in the discussion taking place there, thus violating his right to freedom of expression and participation in major arenas of discourse in the current era.
- Thus, defamatory advertising on social platforms and networks has the potential to harm a high and irreversible intensity. The damage lies in the development of the institutions, in which the publication is published and distributed. Given the central public place of institutions in the modern world, I am of the opinion that it should be determined that institutions are liable for a conceptual duty of care towards individuals who have been harmed by the failure to remove offensive publications published in the institutions, even though the institutions are merely content intermediaries, and not the creators of the advertising.
The Plaintiffs and Google and Meta: A Concrete Duty of Care
- Proof of a concrete duty of care is contingent on two cumulative conditions: the first is the existence of a relationship of "neighborliness" or "closeness" between the tortfeasor and the injured party, and the second is that there are no other policy considerations that justify the denial of the duty of care. The test of neighborliness is summarized in the question of whether the injured party is in a close circle with the tortfeasor in order to justify the demand that the tortfeasor take the damage caused to the injured party as a consideration in his actions [(Civil Appeal 8664/06 Havat Sabari Orly in Tax Appeal v. State of Israel, paragraph 66 of the [Nevo] judgment (2012), Civil Appeal 10078/03 Shatil v. State of Israel, IsrSC 62 (1) 803 (2007)].
- In view of the aforesaid in relation to the existence of a conceptual duty of care, it seems that the existence of proximity and proximity between Google and Meta and the plaintiffs is almost necessary. I believe that there is a judicial opinion according to which the search engine Google, the foundation of YouTube and the social network Facebook are among the largest and most common institutions in the world. As appears from the material before me, the publications that are the subject of this action have received many shares and many responses. Moreover, it turns out that Meta derived a considerable income from the promotion of the advertisements in the total amount of ILS 30,605 (P/1, answer to question No. 8). Therefore, Google and Meta could and should have expected that as a result of not removing the publications from the establishments they own, the plaintiffs' reputation would be damaged.
- Since it was found that Google and Meta owe a concrete duty of care to the plaintiffs, the question arises whether there are policy considerations that negate the duty?
The answer is that such considerations may certainly exist. Counsel for the defendants noted in their learned summaries the chilling effect that the imposition of a duty to remove publications may have, the limitation of the establishments to only positive publications, their transformation into censorship, and the restrictions that the imposition of the duty may impose on freedom of expression and political rights. This was discussed by N. Elkin Koren in her essay "The New Brokers in the Virtual Market Square," Law and Government 6, 381, 391 (2003):