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Israel: Court Distinguishes Between Facebook’s “Share” and “Like” For Defamation Lawsuit

(Feb. 5, 2019) On January 16, 2018, the Tel Aviv District Court partially accepted an appeal over a decision of the Tel Aviv Circuit Court rejecting a suit under the Prohibition on Defamation Law. (CC (TA) 35757-10-16 Needaily Telecommunications Ltd. v. Yoel Shaul et al. (decision by Judge Yashayau Shanler with Kobi Vardi and Enat Ravid concurring, Jan. 16, 2019), Takdin Legal Database (in Hebrew, by subscription); Prohibition on Defamation Law, 5725-1965, SEFER HAHUKIM (official gazette) 5725 No. 464, p. 240, as amended (the Defamation Law).)
Facts
The appellant is a corporation that publishes a weekly local magazine. It sued the respondents claiming that they had created and published two defamatory posts against the magazine on Facebook. The original publisher of the posts was unknown. ( Id. paras. 2–3.)
The respondents admitted to having clicked Facebook’s “share” button on one post that included a photo of the magazine thrown into the garbage, next to derogatory statements against the magazine. The respondents also admitted to having clicked the “like” button on a photo showing a dog urinating on the magazine, next to a statement declaring that local residents have decided to boycott the magazine. ( Id. para 3.)
Circuit Court’s Decision
The appellants appealed the Circuit Court’s decision that determined that although the original posts were defamatory, the respondents’ actions by liking and sharing them on Facebook were not. According to the Circuit Court, these actions did not meet the requirements of “publication” under section 2 of the Defamation Law, which include disseminating defamatory content “orally or in writing or in print, including [through] paintings, figures, movements, sounds and any other means.” (Defamation Law § 2.) “Publication” also includes situations when the material disseminated was intended for a person other than the injured person, and reached the intended person or a person other than the victim; and situations when the disseminated material was written and under the circumstances might have reached a person other than the victim. ( Id. )
The issue before the District Court, thus, was whether a click on the “Like” or “Share” button in Facebook qualified as “publication” for the purpose of liability under section 2 of the Defamation Law.
District Court’s Decision

Legal Basis

Judge Shanler recognized that when a Facebook user selects “Comment,” “Like,” or “Share” in connection with a post, the user’s selection might, under certain circumstances, further disseminate the selected content in accordance with Facebook’s algorithm and expose others to it. (Needaily Telecommunications Ltd. v. Yoel Shaul para. 33.)
Shanler determined that the Defamation Law in its current text does not provide a clear answer on the issue of whether using “Like” and “Share” options constitutes “publication” for the purpose of establishment of defamation. ( Id . para. 51.) On the basis of his review of related comparative law, Shanler concluded that other legal systems likewise do not provide a definitive answer on the subject. ( Id . paras. 36–46.) Shanler noted, however, that there existed “a tendency to recognize sharing as publication that constitutes defamation and that liking is not sufficient to constitute a publication by itself.” (Id . para. 53.)

Like vs. Share

The “Like” function is composed of two parts: the first is the act of liking the original publication so that the original publisher and all his/her friends see that the publication is liked. The second part is when the act of liking and the original post are published for the friends of the person who activated the liking option. According to Shanler, whereas in the first part it is clear that all the friends of the original publisher have already been exposed to the original publication, in the second part the liking might in some cases and according to the algorithm of the social network result in exposing other users to the original publication. The person who uses the “Like” button thus might not necessarily be aware of or have control over the increasing exposure of the original publication. ( Id . paras. 57–58.)
Shanler held that unlike the act of liking, sharing is actually the intentional transmission of content to an additional audience, the objective of which is to further transmit content to other people. The act of sharing will always result in the content appearing in the personal profile of the sharer and, as a rule, users other than the sharer will be exposed to the content. Unlike in sharing, exposing friends of the users to the original post by the act of liking is executed by the algorithm of the social network and cannot be attributed to the users themselves. ( Id . paras. 59–61.)
A review of Facebook’s community standards prohibitions on bullying (section 9), hate speech (section 12), and fake news (section 18) further indicated, according to Shanler, that while it is possible to report an act of sharing on Facebook on potentially violating content, it is not possible to report on liking. He held that “in this, Facebook’s managers have expressed their opinion that liking does not constitute a new publication of defamatory content and, accordingly, does not have any existence beyond the original post itself.” ( Id . paras. 65–66.)

Application of the Defamation Law

Republication of defamatory content, according to Shanler, is subject to the same rules that apply to an original publication. Under section 2 of the Defamation law, dissemination of defamatory content is considered a “publication” if it was intended for a specific person other than the actual injured person and was in fact delivered to the other person. Unlike in sharing, liking, according to Shanler, does not require the intention to republish and therefore does not constitute defamation under the Defamation Law. ( Id . paras. 69–74.)
Verdict
The appeal was accepted with regard to the sharing of one of the publications and rejected with regard to the liking of the other, and the respondents were ordered to pay compensation to the appellants for the sharing of the defamatory publication.

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