The responsibility of the advertiser and the establishment is fueled by various sources. While the liability of the advertiser derives from the content of the publication itself, and will usually be based on a cause of action by virtue of the Prohibition of Defamation Law, the liability of the institution derives from the failure to remove the publication, and the legal justifications for doing so (and we will discuss the legal sources of liability later on). These are different and distinct circles of responsibility, and each of these circles stands on its own.
In other words, with regard to the legal liability for advertising, the fact that the injured party did not sue the advertiser but only the establishment, does not negate the cause of action against the establishment.
However, I will add that this fact may have significance in terms of damage, especially in cases where it has been proven that the injured party knows who the advertiser is, and nevertheless chose to sue only the establishment for not removing the publication.
- On the merits of the claim. I am of the opinion that it has not been proven at all at the level required in civil law that the plaintiffs clearly know, as claimed, who is behind the publications that are the subject of this action. Meta claimed in its summaries that "the plaintiffs knew, or at least had a real suspicion, about the identity of the parties behind the videos" (paragraph 18 of Meta's summaries).
The problem is that suspicions are separate and knowledge is separate. There is no suspicion, even at a high level, similar to knowledge. The fact that a person suspects that another person has committed a tort against him does not justify or suffice a normative determination that the victim would have been expected to file a lawsuit against the other. Such a determination is valid only if it is proven that the victim has sufficient evidence to prove his claim, even if the suspicion is high.
- In our case, it was claimed that the plaintiffs knew that the person who published the publications was the Hidabrot organization, Rabbis Zamir Cohen and Yigal Cohen, and another person named Nissim Sabag, with whom the plaintiffs are in conflict. In the evidence submitted to the court, it turned out that the plaintiffs filed a complaint with the police, which did not raise anything, and even employed a private investigator named Yoram Doctori (hereinafter: "Doctorary"). In the investigator's report, Doctori stated that:
"A comprehensive investigation was carried out in which we used all the legal investigative tools at our disposal in the cyber field and in cover-up investigations. Since these are impostors, the investigation ended without findings. In our professional assessment, the disseminators of hate content can only be reached through the tools of state agencies such as the Shin Bet and the Cyber Unit of the Israel Police."