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The Nidaily case

Sharing a Facebook Post – "Publication" under Israeli Defamation Law?
Lior Shahar
According to the Israeli Defamation Law (hereinafter: “the Law”),1 two requirements are needed in order to establish the civil wrong of defamation: first, the statements in the alleged publication must constitute "defamation", as such is defined in the Law.2 Second, one must examine whether an instance of "publication" has occurred, as such is defined in the Law.3

Technology raises complex legal questions in various contexts in general, and in the context of defamation in particular, and while Israeli courts have acknowledged that adding a comment to a post on Facebook is an infringement of the Law, the question of pressing the "Like" or "Share" button on Facebook has sparked an interesting debate in the Israeli judicial system. This debate revolved around the analysis of the "publication" element in the Law and its traditional interpretation.

The Nidaily Case
The case of Nidaily Communication Ltd. vs. Shaul,4 involved a young couple who "Shared" one post and "Liked" another one on the social network "Facebook", depicting the local newspaper in their town in a negative way.5 The local newspaper's publishing company - "Nidaily Communication Inc.", filed a lawsuit against the couple, claiming that by their actions of pressing the "Like" and "Share" buttons in the posts mentioned above, they are liable under defamation law.6 Traditionally, Israeli courts have imposed liability under the Law when the publisher of the content was the original creator of the post, for instance, a person writing a Facebook comment. However, in this case the claim was made towards the people who simply pressed the "Like" and "Share" buttons and were not responsible for creating the content, which, as aforementioned, serves as the basis for liability under the Law.7

1 The Defamation law 5725-1965, Article 7. 2 The Defamation law 5725-1965, Article 1. 3 The Defamation law 5725-1965, Article 2. 4 19430-03-14 Nidaily Communication Ltd. Vs. Shaul, (04.08.16). 5 See Nidaily Communication Ltd. VS. Shaul, at §5. One post "Liked" by the couple included a picture of the local newspaper being thrown into a garbage can alongside five lines of text, mainly describing the local newspaper as "Trash"; the second post, which the couple "Shared" presented a picture of a dog defecating with a text calling for a consumer's ban on the local newspaper. 6 Id . at §2. 7 Id . at §1-2.The court of First Instance presumed that the publications were defamatory, stating that the identity of the post publishers remained anonymous until the hearing date.

The focal point of the discussion revolved around the interpretation of the term "publication" under the Law.8 In a judgment given approximately three years ago, the Court of First Instance held that although the posts themselves could be considered defamatory, the actions of liking and sharing the posts did not fall within the scope of the term "publication" under the Law.
The Court ruled that the freedom of expression is a fundamental right of Facebook users and cannot be violated without an explicit provision in the law, in accordance with Israel's Basic Law: Human Dignity and Liberty.9 In that regard, the court stated that the purpose of defamation law is to limit the freedom of expression of the creator of the original posts. Limiting the freedom of expression of other users is therefore forbidden without an explicit provision in the Law permitting it.10

The Attorney General’s opinion
In an appeal to the District Court, an opinion paper was submitted by the Israeli Attorney General’s office (hereinafter: “the Opinion”). It stated that the correct interpretation of the term "Publication" cannot condone a ruling that imposes liability on a person who simply "liked" a post on Facebook. According to the Opinion, a ruling of this sort would have a negative effect on the fundamental right for freedom of expression, in such a way that is not coherent with the purpose of the law.11 Pressing the "Like" button might, in some cases, have an effect on the circulation of content in Facebook, yet this effect is attributable to Facebook's algorithm and not to the control or intention of the user pressing the "Like" button.12 According to the Opinion, the circulation of content which takes place after pressing the "Like" button is therefore just a byproduct of the user expressing his feelings towards the post.13

However, unlike the Court of First Instance's ruling, the Opinion also stated that a user who chooses to share content on Facebook does so knowing that this action has the potential to increase its circulation on the social media platform, thus creating more exposure to its content.14 Therefore, sharing a defamatory post on Facebook may constitute "Publication" according to the definition in the Law, and thus is sufficient to establish liability under the Law.

8 Id . at §20. 9Id. §82; Basic Law: Human Dignity and Liberty 5752-1992, Article 8. 10 See Nidaily Communication Ltd. VS. Shaul, §81. 11 35757-10-16 The Attorney General's Opinion (05.03.19), at §28. 12 Id . at §27. 13 Id . at §27. 14 Id . at §29.

The appeal
On appeal, the Court agreed with the Opinion. It held that one must recognize the different nature of "Liking" and "Sharing" of a Facebook post.15 While the first can be considered as amounting to defamation under the Law, the latter does not. According to the Court, pressing the "Share" button is an active action with the effect of further exposure of the original post to more people on the social network. Moreover, a person who presses the "Share" button has the intention of sharing the post with more people. In contrast, it was stated that a person who presses the "Like" button does not necessarily have the intention of exposing more people to the original post, but only expressing his emotions towards the post; further exposure of the post in this case happens only due to Facebook's algorithm.16 The ruling sided with the Attorney General's Opinion, stating that sharing a defamatory post on Facebook may constitute "Publication" according to the definition in the Law, and thus is sufficient to establish liability under the Law.17 Therefore, the Shaul couple was found liable for sharing the defamatory posts about the local newspaper.
On a separate matter, the Israeli Supreme Court has held that the internet in the digital age has become the new "Town Square",18 meaning that the internet, and in turn, social media platforms such as Facebook, allow us to distribute and process large amounts of information. Indeed, social media platforms allow almost anyone today to become a mini-columnist or a mini-publisher. Therefore, some of the information that we are writing, reading and now sharing, might potentially be deemed defamatory.
Recently, a further appeal was submitted to the Israeli Supreme Court by "Nidaily Communication Ltd.". The Supreme Court ruling was given on January 8th, 2020. The Supreme Court ruled., that the ruling given by the District Court will remain in effect, while highlighting again the different nature of "Liking" and "Sharing" of a Facebook post.19 The Court did point out that the legislator needs to adopt a contemporary point of view in current existing law, in order for it to be more compatible to the growing use and presence of technology in our everyday life.20 We can hope that this ruling will prompt the legislator to address the matter, thus allowing more certainty in our legal landscape with respect to our actions on social media platforms.

15 35757-10-16 Nidaily Communication Ltd. Vs. Shaul (16.01.19), §68. 16 Id . at §57-58. 17 Id . at §68. 18 4447/07 Rami Mor VS. Barack ITC [1995] Bezeq International Telecommunications Services Corp. Ltd. (25.03.10). 19 1239/19 Nidaily Communication Ltd. Vs. Shaul (20.11.19), §45-46 of Justice Barak-Erez’s verdict. 20 Id