We get our news, share ideas and promote business on these platforms. But the dark side of social media in Israel, can come with consequences.
A Case of the Dark Side
Ariella (not her real name) loves the kids she teaches in the private nursery-school in Herzliya where she works. She is attentive, gentle and takes her responsibilities for their well being and safety very seriously. When I took on her case she had received only accolades from the parents, throughout her career.
In recent years the media has been reporting heartbreaking stories about the treatment of children by their teachers and caregivers. Reports often come with video clips which, frankly, are very hard to watch. The videos have exposed things that fill every parent with dread, and fear for their kids’ wellbeing. Most parents survey their kids’ environments by talking to other parents. And they check in with those responsible for their care, until they are satisfied that all is well.
But others have been gripped by an irrational hysteria in their desperation to know what’s going on when they’re not with their children. It has sometimes resulted in parents stalking the caregivers to ‘catch’ them causing harm. This is where the dark side of social media in Israel reared its head towards Ariella.. A photo of her and the kids in her care, wound up on Facebook and resulted in a lawsuit.
Freedom of Speech
In The First Amendment of the American Constitution, freedom of speech includes the inherent right to voice opinions publicly without fear of censorship or punishment from the government. (It includes freedom of religion, freedom of the press and the right to assemble.) We can be very proud that free speech is a fundamental right here in Israel as well. In 2017, The Democracy Index which measures levels of freedom of speech, ranked Israel in 11th place out of 167 countries.
The first amendment that provides protection from the government preventing free speech is not implicated in the actions of the social media companies like Facebook, Twitter, Instagram etc. The Supreme Court in Israel acknowledges that these have become platforms for free speech. They’ve ruled time and again that the First Amendment protects your right to speak your mind there.
At the same time, these are private companies and no one has a “right” to use them. You know those ‘terms and conditions’ you have to agree to before you sign up for any social media account? If you break the rules that you agreed to, the administrators can remove you temporarily or even permanently if they choose. And it’s all legal.
Defamation By Post
Written defamation is called “libel.” It’s a civil offence, rather than a criminal one. The statement in question must be false and harmful to you or your company’s reputation if it is to be called damaging.
A mother of one of Ariella students was very upset by the videos on the news of caregiver mistreatment. She “decided” Ariella was guilty of neglect because she saw her take the kids out to the yard on a hot day. The mother screamed at her, and photographed the children in the yard (which is against the law, by the way). She posted the picture on a Facebook group made up of about 3,500 parents from the area where the school was located. And in the continuation of the original post the mother commented that the nursery-school needs to be closed. The fallout from this post caused serious damage to the reputations of both Ariella and the school she worked at and they wanted retribution. But who was responsible for the dark side of social media in this case?
The Right to Defend Your Good Name and Reputation
On March 17, 1992, the twelfth Knesset passed the Basic Law of Human Dignity and Liberty. “Human rights in Israel are based on recognition of the value of man, the sanctity of his life and the fact that he is free.”
So, while being able to defend your good name in Israel is accepted as a fundamental right, determining who is responsible for defamation isn’t so clear. In Ariella’s case, was it Facebook for allowing the offending post to be published or the mother who published it along with her demands to close the school?
The dark side of social media has left all of us vulnerable to attacks on our personal reputations and businesses. But federal law in the U.S. has determined that you don’t have much of a chance if you want to sue a social media platform for defamation because these are all private companies who ask that you agree to their policies before signing on. They determine their own definition of free speech by deciding what is slanderous, false, hate speech etc. (Whether or not it is, is for another discussion.)
You can disagree but you have almost no legal recourse if you want to challenge the platform’s decision to leave up a post that is damaging to you. So consequently, if Facebook publishes untrue, negative things about you, said by someone else, you can’t sue them for the damage done to you. But the person who slanders you on the social media platform, is another story.
Who is responsible?
Ariella and the company that owned the nursery-school she taught in, were able to bring suit against the mother for defamation of character. Some interesting questions came up in the course of this trial as in other social media related defamation trials in the last few years.
- Assuming the publisher of the defamatory content is responsible, then who is the publisher? (We’ve already determined that Facebook couldn’t be held legally accountable.)
- Is it the page that accepts the post?
- The person who originally posts?
- If someone shares a defamatory post are they liable?
- And if someone likes a slanderous post can they be sued?
- If you comment on a slanderous post are you defaming someone?
- If it’s an anonymous post does the defamed person have any course of action?
The courts have to apply the existing law to a whole new area and each case breaks new ground. It’s pretty standard now that the person who posts something slanderous is responsible. But until very recently, it was unclear if sharing a defamatory post is considered publishing. That all changed on January 8, 2020, when the Israeli Supreme Court issued a decision in the Nidaily Case. They determined that sharing is indeed like publishing while merely ‘liking’ a defamatory post does not make one libel.
Ariella’s Day In Court
In Ariella’s case the judge determined that the mother’s post and subsequent comments had damaged her good reputation. And in addition the school had suffered. So he appealed to all of them to come to some sort of agreement while he decided the financial extent of the damages. Together they drafted an apology notice for the mother to post on the original Facebook group.
After she posted the apology the mother got some harsh feedback from group members. She felt the pressure to stick by her original accusations and decided to delete the apology. Ariella found out and she immediately notified the court. As a result, the judge brought them all back to address the new developments.
The judge eventually found in favor of the teacher. He concluded that she had suffered from a damaged reputation caused by the original Facebook post and removal of the apology. The mother would have to pay compensation to Ariella for NIS 18,000 plus the NIS 2500 court costs.
What are the Elements of Defamation
My family law practice sees more and more cases of spouses and ex-spouses making false accusations about each other online. This has resulted in us taking on a number of suits for defamation (like Ariella’s) not exclusively related to divorce.
Here are some examples of defamation:
Defamation of Character
You have to show that a false statement published about you on social media, has caused you injury. And that the person making it does not have privilege. (In other words if they were immune from a defamation lawsuit.)
Invasion of Privacy
Someone makes a post that embarrasses you with private information or photos of you without your knowledge or consent.
Breach of Contract
One of your employees breaks the rules and regulations of your company’s policy, pertaining to online conduct.
Someone repeatedly behaves in a manner that you find intrusive or threatening. This includes intimidation and cyberbullying.
If You’re a Victim of the Dark Side of Social Media
Are you concerned about your reputation? If you only suspect that you are a victim of defamation online, there are a few things you can do.
- Contact an attorney who has experience with online defamation to find out how best to protect yourself.
- It’s extremely important that you take screenshots of all the offensive material. Save voice recordings. Copy videos. You can use them as evidence in your case if you eventually decide to bring suit.
- Explain in writing, to the offending person, why their post is untrue. Tell them how it harms you and request they remove it.
- Report the post to the administrators of the page and/or the social media platform itself. Most have options to request removal of offensive material.
One Final Word
I believe we each have to take responsibility for our online communication. Words hurt and can be extremely damaging. It’s incumbent upon all of us to keep clear of the dark side of social media. We have an opportunity to use this incredible technology for good in the world. We all benefit if we do. As Mishlei (Proverbs)18:21 says, “ Death and life are in the power of the tongue and they that love it shall eat the fruit thereof.