"A rule that imposes liability on network service providers may have a 'chilling effect.' This effect derives, first of all, from the incentive created by the legal responsibility for the exercise of self-censorship. When Service Providers are expected to charge for messages transmitted through them, they will seek to significantly limit the messages and content that can be transmitted through the Service. A rule that imposes liability on the various service providers requires continuous monitoring of the users of the network, as well as the examination and filtering of the information they wish to distribute. This surveillance may ultimately limit the public's freedom of access to information.... Legal liability may encourage service providers to take a more active part in selecting and editing the information that will appear online. In addition, service providers are expected to prevent access to unknown or unagreed sources of information, and to reduce or eliminate the interactive services, as these involve risk. A rule imposing liability on service providers will therefore limit not only the public's access to information, but also the accessibility of means of expression and platforms open to participants from the general public. Such a legal rule encourages engagement with professional content providers who can take responsibility for the content they provide. In other words, the result of imposing liability on suppliers could be a cooling of the decentralized public discourse."
Did Google and Meta violate their duty of care towards the plaintiffs?
- There is no doubt that the establishment is the most effective and best preventive means for removing the publication of offensive advertising. In fact, the establishment is the only one that has the power to remove the publication. Given this, it must take reasonable measures with regard to unjust advertising, taking into account the interests described above:
"The duty of the tortfeasor is to take reasonable precautions, and his liability is formed only if he has not taken these measures. The reasonableness of the precautions is determined by objective criteria, embodied in the statement that the tortfeasor must act as a reasonable person would in the circumstances of the case. This reasonable person is none other than the court, which must determine the appropriate level of care. This level of caution is determined by considerations of legal policy. The question is not what means is physically preventing damage, but what is the means that must be required to be taken in the circumstances of the case. The court must strike a balance between the interest of the injured individual and his personal safety, and the interest of the person who caused the damage to freedom of action, and all this against the background of the public interest in the continuation or cessation of that activity. The court must take into account the danger and its gravity. He must take into account the social importance of the action. He must consider the necessary measures to prevent it.... The court must contrast with each other "the benefit derived from the act or omission against the resources and means necessary to prevent the risk" (Justice Shamgar Other Municipality Motions 343/74 [10], at p. 158). It follows that the precautions required are not a fixed factor, but rather a factor, which varies according to the circumstances. They must be in an appropriate proportion to the risk created. The expression "safe" and the expression "dangerous" are relative expressions, which vary according to the nature of the danger factor, the injured party, and the means to prevent the danger. The performance of the obligation, like its fulfillment, is not a technical matter, but rather constitutes a 'legal consideration' in the parallel of forces, which consists of the interests of the potential parties and the needs of the company" (Vaknin, supra, at pp. 131-132).
- In order to deal with offensive publications, the establishments have created the notification and removal tools. In accordance with this tool, an institution that receives a request to remove offensive advertising from the victim may remove it, after examining it.
The test developed by the case law for the purpose of examining the discretion of the establishment regarding the decision to remove or not to remove is the test of clear falsehood or manifest illegality. In accordance with this test, Masada is obligated to remove a publication without a judicial order, when "the publication is unequivocally harmful and prohibited on its face" [Civil Case (Shalom K.S.) 7830/00 Borochov v. Poran [Nevo] (July 14, 2002)]: