Indeed, these are offensive, defamatory publications, which are naturally not at all pleasant to approve and certainly to the plaintiff. They certainly amount to "defamation" and certainly go beyond expressing an opinion. However, it is difficult to say that they contain a clear rule of falsehood, in the sense that it is possible to present conclusive, and irrefutable counter-proof, which is not true.
In order to understand the ear: Of course, I am not saying, G-d forbid, that the publications are true or that there is any truth in them. Far from it. However, the test set by the case law for the purpose of removing a publication without a judicial order is that what is stated in the publication will be a completely unfounded lie. The plaintiffs did not meet this burden.
Therefore, the plaintiffs did not prove their claim that Google and Meta were obligated to remove the advertisements without a judicial order.
- The plaintiffs argued in paragraphs 7 and 41 of the statement of claim, as well as in paragraphs 34-36 of their summaries, that the fact that a certain publication attributes to a person the commission of criminal offenses is sufficient to impose a duty on the establishment towards him to remove it, and the failure to remove such publication constitutes a breach of the establishment's duty of care towards the victim.
I cannot accept this argument. Its practical significance is that Massad should be obligated to scrutinize the content of the publication, to reach a conclusion as to its "criminality", and to remove it without exercising any discretion. Accepting this position will turn the establishment into a super-censor, and its implementation will create a real chilling effect on freedom of expression. The application of such a test makes the dangers that Prof. Elkin-Koren pointed out in her aforementioned essay real, and in my opinion, it should not be applied as a test that obligates a foundation to remove publications.
Therefore, this argument should be rejected.
- In a parenthetical article, it should be said that the interrogations of the witnesses on behalf of Meta and Google revealed that the relevance of their testimony to the trial was marginal.
Thus, from Gustafson's cross-examination, who testified on behalf of Google, it turned out that in 2020 he did not work at Google at all (pp. 286-287 of the transcript), and that he watched the videos that are the subject of the lawsuit only a month before his testimony, which was given in court on June 11, 2023 (p. 289). In other words, Gustafson did not watch the videos at all before he signed his affidavit of his main testimony, which was submitted to the court on May 16, 2022. When asked whether he had examined the videos themselves, Gustafson replied that at the time he did not do so, but that he was working on a team that implements Google's policy on the matter (p. 297), and that he was not the one who responded to the request "the plaintiffs' notice and removal, but other Google employees (pp. 297-298, and also p. 300, para. 16). According to Gustafson's testimony, the common conclusion of the team that worked on the videos was that there was no clear evidence that they were false, and therefore Google decided not to take any action with respect to them, i.e., not to remove them (p. 305, paras. 7-8, and later on at p. 310 at paras. 10-15).