Moreover, in his cross-examination, the plaintiff stated that he did not know when the response was published (pp. 179, paras. 1-11, and later on p. 183, paras. 15-17).
Only during the cross-examination of defendant 5 did the plaintiffs' counsel submit P/3, which ostensibly reflects that the response was published on the "Judaism vs. Sects" Facebook page. In paragraph 80 of the plaintiffs' summaries, it is claimed that deceased/3 indicates that the response was published on July 26, 2020. However, this claim was first made in the summaries, and was never previously made in the plaintiff's affidavits or in the statement of claim.
Moreover, the claim is based on a screenshot that, even though it was accepted as evidence, is difficult to base any finding on, and it does not even bear the date of publication of the response.
The fact that defendant 5 admitted in his cross-examination that he often uses derogatory epithets in his responses does not at all strengthen the claim that he was the one who published the response in question. As is well known, users of social networks in many cases, perhaps too many, adopt loose language, but the fact that defendant 5 has acted in this way in the past does not necessarily indicate that he is the publisher of the publication.
- Not only that: In the investigation report, Doctori confirmed that this is a challenging investigation since "there is widespread use of 'bot' fictitious users... They hold such 'generic' nicknames and names, many of which are combined with first and last names, so that the task of locating and identifying is doubly difficult" (p. 20 of the plaintiffs' main witness affidavits), when Doctori himself testified that the name "Mordechai Levy" or "Moti Levy" is a name that is, relatively common, (Doctor's testimony, at pp. 73, para. 25).
- In these circumstances, the version of defendant 5 cannot be ruled out because he was not the one who published the response in question. Indeed, the possibilities raised by defendant 5 for the manner of publication are far-reaching, but they are not unreasonable, and certainly not impossible. There is substance to his claim that the failure to place the response in time, in the statement of claim or at the time of submitting the affidavits, caused him evidentiary damage. The accuracy of the date and location of the publication is of great importance, since only such accuracy allows the defendant to defend, inter alia, on the grounds that he is not the publisher of the publication.
In the end, the primary burden of proving the cause of action rests with the plaintiffs. There is insufficient evidence before me, which has tied defendant 5 to publication in the balance of probabilities. Thus, for example, the position of Facebook, the institution on which the publication was published, was not presented with respect to the question of whether it has data linking defendant 5 to the response in question (and it is not impossible that if orders addressed to Facebook in this matter had been requested, it could have been appropriate in the circumstances of the case to grant them).