On January 8, 2020, the Israeli Supreme Court issued the long anticipated decision in Shaul v. Nidaily Communications, Ltd., Civ. App. 1239/19 (Sup. Ct., Jan. 8, 2020), finding that sharing = publishing in the defamation context.
Israel's highest court took the position that "sharing" on Facebook constitutes and act of publication for purposes of defamation. In other words, it is now settled law that if someone "shares" a defamatory post, the sharer will be liable for defamation. The Court essentially affirmed the judgment of the District Court (which overturned the ruling of the trial court), finding that while "liking" does not constitute publication, "sharing" does and, hence, is actionable.
As the Court pointed out, statutory interpretation supports this conclusion, as does the purpose and goal for which defamatory law is supposed to realize and fulfill.
What I found interesting, however, was not necessarily the straight forward "sharing = publishing rule", but rather the broader impact this ruling may have on other methods of distributing and disseminating libelous material.
What caught my attention was one of the reasons (out of several) the Court employed in coming to its conclusion. This is what the Court writes in the middle of the judgment (informal translation from the Hebrew):
Recall that in this context, the default in the Law is the imposition of liability on the printer, seller, and distributor of the written defamation, to the extent that they knew or should have known that the publication constitutes defamation [...] See Section 12 of the Law.
In other words, according to the Court, the "sharer" is equivalent to the "distributor" under Section 12 of Israel’s defamation law: Like the “distributor”, the Facebook “sharer” is not the author of the libelous content. Just like the “distributor” is liable for defamation, so too the “sharer”.
However, this seemingly unassuming comparison, may have significant consequences for defamation law in the future. In applying Section 12 in the context of Facebook, the Court essentially opened up the door for litigants to argue that other modes of dissemination of libelous material on Facebook may be actionable.
Recall, Section 12 imposes liability on content distributors, i.e., publishers, distributors and sellers of libelous material, even if they did not actually author the content. If applied to Facebook (as the Court appears to say it does), then the question arises who is considered a “distributor” or “publisher” in the context of Facebook?
Take, for example, a situation where the owner/manager of a Facebook account posts a comment about a certain matter. The post is viewed by the page owner’s friends and followers, who, in turn, begin commenting on the post. One such comment contains defamatory statements about a third party. Should the owner of the page be liable? To make things worse, let's assume that the victim then messages the owner, demanding the he/she remove the defamatory post. In reply, the owner refuses. What about now, should liability attach?
How is the page-manager’s status any different from the “sharer”- both are merely further assisting in the spread of the defamation; both did not provide the content. It is true that the owner of the page did not initially perform any physical act to publish the comment (unlike the "sharer"), but he/she did provide a platform and a stage for the defamation and has the capability to remove the content from his/her Facebook page.
Notably, some other legal systems have addressed this exact issue. In Canada, for example, a court found that a defendant can be liable for the defamatory content posted by third parties on his/her Facebook page:
She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis.
To the best of my knowledge this matter has not been specifically addressed by Israeli courts.. However, the Israeli Supreme Court’s seemingly narrow conclusion concerning “sharing”, actually may have far-reaching implications as to other methods of online secondary distribution, including the type described above. So, “sharing” may not only equal “publishing”, it may also enlarge our notions of what publishing is under defamation law's ever expanding development.