n Articles and Rulings

Liability of Internet Service Providers for Defamation Publications on the Internet: Israeli Practice and Comparative Analysis

Prepared by Sonia Shnyder, Adv. and Keith Shaw, Adv., Zell, Goldberg & Co.

December 2003

In keeping with many other jurisdictions, the law of defamation in Israel, in the form of the Prohibition of Defamation Law – 1965 (“the Law”) attaches liability both to the author of a defamatory statement and the publisher thereof.  However, the statute does not specifically address the dissemination of defamatory statements by way of their publication over the Internet.  This issue, though, has been addressed by Israeli lower courts.  While one can expect the question of  the liability of the authors of defamatory statements published on the Internet to be a fairly straightforward matter, of significantly greater interest is the more complex issue of the liability of Internet service providers (ISPs), including website administrators and forum administrators, who tolerate such publication on their websites – are they publishers, and thus liable, or innocent disseminators, and thus exempt?  The question is of particular interest in light of the differing approaches in recent years adopted in other jurisdictions. 

In this article, we first address the liability of an author of a defamatory statement published on the Internet, and then review the liability of ISPs in such regard, both in foreign jurisdictions and in Israel.

Liability of author publishing defamatory material on the Internet

Publication of defamatory statements incurs civil and criminal liability under the Law[1].  The Law provides a broad definition of what constitutes “publication” for defamation purposes[2], which definition is confirmed by the judicial decisions in the matters of Golan[3] and Borochov[4].  A person publishing defamatory material on the Internet will be liable if his publication is deemed libel and does not fall within the scope of any of the exemptions or defences envisaged by the Law.  Exemptions include such matters as publications, speeches and reports made by members of the government, the Knesset, the state comptroller, judges and other public officials acting in such capacity[5].  A defence important for journalistic activity is the truth and public interest of the published statement[6].  Other defences include publication defending a legitimate personal interest of the publisher or the addressee of the publication, and the publication of an opinion of the conduct of a governmental or public official[7].   

 Liability of Internet Services Provider, including Forum Administrator

It has long been established in common law countries that intermediaries may be liable for defamation.  “Publishers”, such as newspapers, which exercise editorial control over content, are generally liable for the defamatory statements that they publish.  By contrast, “Distributors”, such as bookshops, newsstands or libraries, have virtually no editorial control, and accordingly are entitled to benefit from the “innocent disseminator” defence.[8]  Innocent disseminators are protected from liability for defamation if they did not know of the libellous statement, there were no circumstances that ought to have led them to suppose it contained a libel, and they were not negligent in being ignorant of the libel.  Which are ISPs?

 International practice

United States.  In the United States, ISPs are now statutorily protected from liability for third-party publication made on their websites.  Such provisions of the Communications Decency Act 1996 are explained by the concern with free speech as well as the need to protect ISPs from the onerous duty of conducting strict wholesale censorship.

Before the issue was statutorily resolved, a New York Supreme Court decision in Stratton Oakmont v.  Prodigy Services Company[9] imposed liability on an ISP where the ISP held itself out as exercising editorial control over the content of the messages and thus acted, in the opinion of the court, as a publisher.  By contrast, an earlier New York District Court case, Cubby, Inc.  v.  Compuserve, Inc.[10], had held the ISP to be a distributor similar to a library and thus not subject to liability as a publisher.

Subsequent to these cases, the Communications Decency Act of 1996 was passed.  Section 230 thereof, which provides protections to ISPs that take active steps to block or screen offensive material, was specifically designed to counteract the effect of penalising ISPs who undertake editorial duties.  The underlying principle of the section is that 'Good Samaritans' who undertake editorial duties to remove offensive content should not be penalized for their efforts by being treated as publishers, and hence be subject to liability for defamation or other causes of action.  Section 230 (b) provides that it is the policy of the United States “to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material”.[11]

 Accordingly, section 230(c)(1) states that no provider or user of an interactive computer service will be treated as the publisher of information provided by someone else, and section 230(c)(2) states that no provider or user of an interactive computer service can be held liable for voluntarily restricting access to or availability of objectionable material, or for making available the technical means to restrict access to such material.[12]

Section 230(c)(1) is very broad indeed.  One need not be a 'Good Samaritan' editor to take advantage of section 230(c)(1) – indeed, any service provider is precluded from being treated as a publisher.  In light of this provision, and subsequent decisions which have indicated that the legislation, and the policies behind the legislation, require broad protection of ISPs from liability, it can be asserted that ISPs in the US are immune from liability for content carried on their services.

Applying the Act, the Fourth Circuit Court of Appeals in Zeran v.  America Online, Inc.[13] held that Section 230 of the Act exempts an ISP even if it did not act in a timely manner to remove an offensive posting after the plaintiff’s request.  Some post-legislation court decisions criticise the Zeran interpretation of the Act as too generous in absolving ISPs of all liability whatsoever, or, in effect, granting them immunity from liability for content of publications made through their services[14]; nevertheless, the protection remains.

England.  The English courts, however, have adopted a different approach.  In Godfrey v. Demon Internet Ltd.[15], the defendants, who carried on business as an ISP, received and stored on their news server an article, defamatory of the plaintiff, which had been posted by an unknown person using another service provider.  The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server. The defendants failed to do so and it remained available on the server for some 10 days until its automatic expiry. The plaintiff brought proceedings for libel against the defendants, who relied in their defence on section 1(1) of the Defamation Act 1996, contending that they were not the publisher of the statement complained of, that they had taken reasonable care in relation to its publication, and that they did not know and had no reason to believe that they had caused or contributed to the publication of a defamatory statement.

However, the court held that as a service provider who transmitted or facilitated the transmission to any of their newsgroup subscribers of a posting received and stored by them via the Internet, the defendants were a publisher of that posting, and that they were not merely the passive owner of an electronic device through which postings were transmitted but rather actively chose to receive and store the news group exchanges containing the posting which could be accessed by their subscribers, and could have chosen to obliterate the posting complained of, as they later did.  Once they knew of the defamatory content of the posting and chose not to remove it from their news server the defence they relied on was no longer available to them, since it required them to take reasonable care in relation to the publication, and that they did not know and had no reason to believe that what they did caused or contributed to the publication.

The court reviewed all the US cases and statutes referred to above, and concluded that the relevant English statute intended a different approach.  The ISP was accordingly held liable for having failed to remove illegal publications of which he was or should have been aware.

European Union.  According to the European Union’s statutory directive EC/31/2000 Directive on electronic commerce, an ISP is not liable for publications made with the use of his services but, by way of exception, is liable if he had undertaken to filter and edit publications, or if he is aware of the illegality of certain publications and did not remove them.

One can see, therefore, that the current position of the U.S. legislation and judicature favours free speech and free enterprise – in other words, an ISP will not be liable regardless of whether he knew of a defamatory publication and of whether he undertook any editorial or censorship functions.  By contrast, in Europe and England, an ISP can be liable in a situation where it knew of the prohibited character of the publication or undertook editorial or censorship functions. 

The Israeli position

Publication of defamatory statements in mass media (which are defined as newspapers and television and radio broadcasts) triggers liability not only for the author of the statement but also ‘publisher’ liability for the person who transmits the material to the media organ, the editor of the media organ and the person who actually decided on publication[16].  In the current context, therefore, the key question was whether websites should be viewed as mass media. 

The opinions of the lower court judges have diverged as to this question.  In the Golan case, where the issue was the editor’s liability for publication in a newspaper published both on paper and on the Internet, the court held that the website which contained the Internet version of the newspaper was a “newspaper” in the sense of the Law, and that accordingly the editor was liable.  The court held that publication on the Internet was the same as publication in any other forum.

This decision in itself, though, does not cast any light on the position regarding ISPs.  While it did hold that there should be no distinction between publication on the Internet and elsewhere, there can be no doubt that the newspaper exercised editorial control over its own website, and that the question of the “innocent disseminator” would not arise.

The Borochov case concerned the failure by the administrator of an online forum to delete messages which were insulting or damaging to the plaintiff.  The court reviewed the possible categories for imposing liability for defamation according to the Law – as originator, distributor or publisher, and concluded that the type of activity carried out by a forum administrator meant that he could only be liable as an publisher.  The court then noted that the Law limits the liability of publisher to publication in mass media, the definition of which pursuant to the Law is limited to newspapers, radio and television[17].  The court declined to extend this definition to include the Internet.  Indeed, the court disagreed with the decision of the Golan court to equate websites to newspapers, which would entail imposing a broader - ‘publisher’ - liability for publication.

According to the ruling in Borochov, websites and forums in particular are not mass media and therefore rules of editor liability applicable to newspapers, radio and television are not applicable to ISPs.  The court held ISPs to include site administrators and in particular forum administrators and conducted a review of international practice with regard to ISPs’ liability, including reference to all the foreign statutory provisions and cases referred to above.

The Israeli court in Borochov, though, adopted none of the foreign doctrines in its pure form.  Instead, it worked out a triple test designed to balance free speech and the right to reputation. 

According to the Borochov test, an ISP will be liable for a defamatory publication made by a third party only in the event that:

(1)         the injured party complained to the ISP and requested that the defamatory publication be removed; 

(2)         the publication indeed appears to be clearly defamatory and prohibited;

(3)         the ISP has actual means to prevent publication (as in the case of a forum administrator).

Thus the Israeli court requires that the ISP has actual knowledge of the publication and of the allegation that it contains defamation.  Furthermore, the requirement that the publication be clearly defamatory takes into account that the ISP has no means to verify the accuracy of the publication, nor its being prohibited or allowed under law.  An ISP is not a substitute censor or judge other than in extremely grave cases, where the publication on the face of it causes material, clear and unjustified damage.  Thus, an ISP will not be obliged to remove publications merely upon request of a person deeming himself injured, which would constitute serious limitation of free speech on the Internet, but only in extremely grave, obvious cases.

In the Borochov case, the plaintiff did not request the administrator to remove the publication.  Consequently, the first requirement of the test was not met and thus the court was not called upon to decide whether the publication appeared likely to cause material clear unjustified damage – in other words, whether it was a publication prohibited under the Law and not protected by allowed exceptions.

Conclusion

Given that the question of liability for defamation over the Internet has only been discussed by two Israeli courts of first instance, it is clear that Israeli law in this area is only in the early stages of its development.  So far, though, the Israeli courts have chosen to chart a middle ground between the US position, which virtually exempts forum administrators from liability, and the UK and European position, whereby an ISP can be held liable in a situation where it knew of the prohibited character of the publication or undertook editorial or censorship functions.

© Zell, Goldberg & Co 2003

DISCLAIMER: The above memorandum is made available to visitors to our website as a courtesy.  It is not intended as legal advice and should not be relied on as such.  Persons seeking legal advice concerning Israel law should consult with a qualified advocate admitted to practice in Israel under the Chamber of Advocates Law 5721 - 1961.

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