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Israel: Court Dismisses Suit Against Facebook and Netanyahu Alleging Fake News

(Jan. 30, 2019) On January 16, 2018, the Tel Aviv District Court dismissed a suit submitted by a Facebook account user against Facebook and Prime Minister Binyamin Netanyahu for posting on the Prime Minister’s Facebook account a link to a newspaper report containing allegedly fraudulent information. (CC (TA) 18962-09-18 Shahar Ben Meir v. Facebook Inc. & Binyamin Netanyahu (decision by Judge Limor Bibi, Jan. 16, 2019), Takdin Legal Database (in Hebrew, by subscription).)
The newspaper article linked from the Prime Minister’s Facebook account was titled “ Iran Admits to Having ‘Worked Closely’ with George Soros Network ” and published by the newspaper Israel Hayom , a free daily newspaper owned by Sheldon and Miriam Adelson. ( See Yonatan Kitain, Miriam Adelson Takes Reins at Israel Hayom , GLOBES (May 17, 2018).)
Plaintiff’s Arguments
The plaintiff argued that Facebook pledged to all its users that it would “fight and act against the phenomenon of fake news.” (Shahar Ben Meir v. Facebook para. 4.) This pledge, according to the petitioner, constituted a contract between Facebook users, including the petitioner himself, and the company. As Facebook had violated its contractual obligation, he was entitled to seek enforcement of the platform’s commitment to limit exposure to fake news. Specifically, the petitioner requested that the court issue a declaratory judgement determining that the Prime Minister’s account had distributed fake news, and a decree ordering Facebook to significantly limit any further exposure to the post and to report to the court on the acts it has done to achieve this goal. ( Id . para. 4.)
Facebook’s Request to Quash the Suit
Facebook claimed that the suit constituted an attack on free press and was intended “to use the courts in order to censure the public’s access to a press report shared by the Prime Minister on Facebook.” ( Id . para. 5.)
Facebook further argued that the suit had become moot, as the Prime Minister had uploaded not less than 166 posts since the article was linked from his account, and that the post that was the subject of the suit was no longer a topic of public interest. Facebook also objected to the plaintiff’s claim that there had been a binding contract between Facebook and its users. According to Facebook, its terms of service and community standards merely constitute a declaration of policy, which does not intend to create a binding contractual obligation. According to section 3(2) of its terms of service, Facebook alleged, it has discretion and “may” act against any content but is not required to do so. Finally, according to Facebook, any claim regarding the alleged fraudulent content of the newspaper article should have been addressed to the publisher, Israel Hayom , and not to Facebook. ( Id .)
The Court’s Decision
Judge Limor Bibi quashed the suit. She first determined that there existed a binding contract between Facebook and its users based on Facebook’s terms of service and community standards. ( Id . para 11.) Under sections 3(2)(1) of Facebook’s terms of service users had a duty not to violate the terms of service and community standards. Facebook, however, had the right but not the obligation to take action against violators of these rules, with section 4(3) of the terms of service stipulating that Facebook is not responsible for any content uploaded by a user. ( Id . para. 12.) Responding to the plaintiff’s reference to Mark Zuckerberg’s alleged statement before the US Senate that Facebook would act to address the phenomenon of fake news, Judge Bibi held that one could also interpret the statement as at most an expression of policy on the part of Facebook to act for the elimination of fake news. ( Id . para. 15.)
Moreover, even if the contract did include an obligation on the part of Facebook to remove or limit exposure to fake news, the judge suggested in an obiter dictum that there does not appear to be a justification to enforce it in the current circumstances because the current case does not involve a publication that is easily identifiable as fraudulent. The imposition of a duty on Facebook to examine the content of the information in this case, according to Judge Bibi, would therefore be unreasonable. ( Id . para. 15.)
In the absence of any cause of action, the suit was quashed, and the plaintiff was, therefore, subject to paying court fees. ( Id . para. 18.)

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