Later, in paragraph 41 of the statement of claim, it was argued:
"Israeli law has adopted the doctrine of "notice and removal", according to which an individual who considers himself harmed by advertising on an online platform can contact the owner of the platform and demand that the harm be removed. The victim's request creates liability on the platform owner as the effective harm preventer where the latter refuses to remove without reasonable justification the wrongful publication by virtue of the tort of negligence, and at the same time establishes liability towards the platform owner and he will be considered an aider to the tort , in accordance with the integration of the provisions of section 7 of the Prohibition of Defamation Law, 5725-1965, which applies to the tort of defamation provisions from the Torts Ordinance , including section 12, which deals with liability, sharing and soliciting" (my emphases - R.A.).
- In light of the aforesaid, the plaintiffs petitioned for the court to issue an injunction against Google and Meta as stated in the judgment, and in addition, they petitioned to oblige each of them to pay the plaintiff the sum of ILS 500,000, for the intention to harm him with the unjust publications, and alternatively not for the intention to harm and/or as non-pecuniary damage and/or for the mental anguish, pain and suffering caused to him.
- In addition, the plaintiffs sued the sum of ILS 100,000 each from defendants 4-6, on the grounds of defamation.
טענות גוגל
- Google claims as follows:
- Google is just a platform. It is not the advertiser of the advertisements and is not behind them. The connection between Google and the prosecution stems from the fact that the advertisers used its services for the purpose of advertising them on institutions owned by it.
- The advertisers are the true litigants of the plaintiffs, they are a required party in the lawsuit, and the plaintiffs must exhaust the lawsuit against them. The plaintiffs did not contact the advertisers at all, and their claim that their identity is not known to them is an empty claim, since the plaintiffs have sufficient evidence to enable them to direct their claim against them. Insofar as they do not know their identity but only suspect it, they have enough tools at their disposal to verify those suspicions.
- The advertisements no longer appear in the search engine, and the website was removed from the Internet separately from this procedure and without any connection to it, and without Google's involvement. Therefore, there is no cause whatsoever of the plaintiffs against Google.
- According to court rulings, the determining test for removing a publication is the "blatant lie" test. In accordance with this test, Masadat must remove a publication without a judicial order, only when the person requesting removal is able to present to it unequivocal evidence that the content of a certain publication published on Masada is a clear lie or illegal on the face of it, for which no factual clarification or legal clarification is required. The publications that are the subject of the lawsuit do not meet this test, as this court held in the interim decision given in this case.
Adopting the position of the plaintiffs, who seek to remove a publication even if it did not meet the test of clear falsehood, is liable to open the door to the broad removal of content of a negative nature, and will end up leaving a platform that reflects only positive content, which no one has a complaint about. This is an undesirable situation, among other things, due to the necessary protection of freedom of expression and the rights of Internet users, and is characteristic of countries with undemocratic regimes, of which the State of Israel is not a member.
- The plaintiff is a public figure. When we are dealing with publications against public figures, which establish a significant public interest, it is even more difficult to reach the conclusion that the publications meet the strict threshold of clear illegality, since it is increasingly likely that the publications will be protected by law.
- The removal review was not done automatically. The content was reviewed and observed by Google's human removal teams, and the removal request was denied in accordance with the law. The method of examination of removal is the same in relation to all the content whose removal is requested, and does not change when certain content is sponsored content in relation to which Google has an economic interest, and the threshold of examination in relation to such content is no different or lower than the threshold of the examination carried out in relation to content in respect of which Google has no financial interest.
Meta Claims
- Meta claims as follows:
- The plaintiffs did not prove at all that all the advertisements were published on Facebook.
- The plaintiffs know who the publishers of the advertisements are, and yet they have refrained from taking legal action against them.
- The plaintiffs did not prove that they gave Meta proper notice regarding the content they were seeking to remove or that they reported the posts through the online reporting tools.
- The plaintiffs have no cause of action under the Prohibition of Defamation Law.
- It is not possible to impose liability in torts on Meta for content published by a third party on the platform it owns, especially where the plaintiff is a public figure and therefore the publications receive increased protection.
Defendants' Arguments 4-6
- Defendant 4 claims that his response repeats the original publication and does not constitute a new and independent message, and therefore the plaintiffs have no cause of action against him. Defendant 4 further added that his intention was to present the response by way of a question, but due to a typographical error, the question mark was omitted, and if the response had included a question mark, it would not have amounted to defamation. Defendant 4 further argues that there are good faith defenses in his case, that it is a matter of trivial matters, and alternatively, that he is entitled to relief in accordance with section 19 of the Prohibition of Defamation Law, since he did not intend to offend and apologized.
- Defendant 5 claims that in their application to him, the plaintiffs did not specify the date of publication of the response and therefore did not allow him to properly defend himself against the lawsuit. Moreover, defendant 5 claims that he was not the one who wrote the response that is the subject of the lawsuit against him, and that in the whole case it was trivial.
- Defendant 6 claims that she is a follower of the plaintiff and that she shared only one single video, which was without text. The sharing is done automatically after she has seen the plaintiff's picture, without delving into or being exposed to the content of the video. The content of this single video deals with the fact that the plaintiff is a former secular Jew who was not ordained as a rabbi - facts that are true. And in any case, this sharing did not receive any exposure.
Presentation of the questions that need to be decided (in relation to the lawsuit against Google and Meta)
- The starting point for examining the alleged liability of Google and Meta is that they should not be expected to examine in advance each and every one of the publications uploaded to the platforms they own, by their users. Given the exponential number of publications uploaded to the platforms every day, if only in Israel, this is a task that was imposed on Google and Meta is expected to be extremely onerous and unreasonable, and the plaintiffs did not even make this claim.
The matter of the claim is the legal review that should be applied to Masada's refusal to remove an offensive publication, where it was asked by the object of the publication to do so after the publication - ex post - and the proper scope of this review.