Facebook Hosts Beware: Potential Defamation Liability around the Corner
Facebook page owners, hosts and managers are potentially liable for third-party defamatory content that appears on their page.
That is the essence of a recent ruling by an Israeli trial court in Dr. Levin v. TakeAir Israel, Ltd., et. al., Civ. Act. 44048-04-18 (Mag. Ct. Petach Tikvah, Feb. 7, 2020). The case involved defamatory publications against the plaintiff that were published on the defendant's ("TakeAir") Facebook page. The court held that in addition to the defendant company that published the post, the company's shareholder was liable as well. The court found that the defendant's shareholder had control of the company's Facebook page and he had the ability to control the content published by third-parties on the page. Failing to do so, the court held, constituted defamation under Israel's defamation law.
The court found that Facebook pages constitute a "means of communication" for purposes of section 11 of Israel's Defamation Law. Section 11 regulates publications on media channels such as newspapers, radio and television (i.e. "means of communication") and imposes liability on the editor and those generally responsible for the publication. Until recently, section 11 was generally applied to traditional media outlets only, like a written newspaper. Little by little, courts are beginning to impose on the users of these social-media platforms the same rules that were traditionally unique to classical newspapers and communications.
The court also found the shareholder liable under general principles of tort law, i.e. accessory liability.
This finding is a relatively new development in defamation law, both in Israel and around the globe.
The Supreme Court of New South Wales in Voller v. Nationwide News recently came to an identical conclusion and held that media companies could be considered publishers of comments left by third-party users on their public Facebook pages. Click here or here to read more about it.
Courts in Canada also appear to be taking a similar approach. Pritchard v. Van Nes, 2016 BCSC 686. Click here for a Lexology article on the case.
The decision in Levin v. TakeAir is an important and new development in Israeli defamation law. It broadens the scope of those potentially liable for defamatory on-line publications. As Justice Sounders articulated in Pritchard v. Van Nes:
In my view, the potential in the use of Internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases.
The Levin v. TakeAir decision may be appealed and the case may ultimately get to the Israeli Supreme Court. Only time will tell how this new development will be applied by Israeli courts.
However, please note that this decision is not to be confused with the question of whether the actual internet service providers, search engines (Google, Yahoo) or social media platforms (Facebook, Twitter) are liable for the defamatory publications of third-parties. That is a different issue and Israeli courts are most likely to find that these types of entities are immune from liability under Israeli defamation law.
Nevertheless, the decision in Levin v. TakeAir should serve as a warning to those managing/hosting Facebook pages to supervise what is published. Steps should be taken to remove potentially defamatory third-party defamatory publications and failure to do so could result in a lawsuit for libel.