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Liking is Better Than Sharing (or at least, less defamatory)

February 21, 2019

Israeli court rules that Facebook “likes” do not constitute publication for the purposes of defamation, though “shares” might

As reported on the Global Legal Monitor blog, in the recent case of Needaily Telecommunications Ltd. v. Yoel Shaul et al., an Israeli District Court examined the issue of whether “liking” and “sharing” material on Facebook can constitute publication for the purpose of finding defamation. In the case itself, the plaintiff was a local weekly magazine, which sued the respondents in defamation. The respondents admitted having “shared” a post showing a copy of the magazine thrown in the garbage, accompanied by derogatory statements about the magazine. They also had “liked” a post with a photo that showed a dog urinating on the magazine, accompanied by statements regarding a boycott of the magazine.

The court noted that the question of whether either mechanism constituted a “publication” for defamation purposes was one of first instance in Israeli law, and that the matter did not appear settled in the defamation law of other countries, though there was a tendency to treat a “share” as publication but not a “like.” This was the ultimate position of the District Court in the case before it, essentially because “sharing” imports a measure of intention on the part of the user to circulate the content shared to other people. Liking, by contrast, simply triggered a Facebook algorithm that would potentially expose the content to others but without any particular intention on the part of the user who clicked the button, or even knowledge that it would be circulated—and in particular, no control over it. In reaching this conclusion, the court relied on evidence that Facebook itself has created a mechanism for reporting shared material, but not for “likes,” leading to the inference that the corporation itself takes the view that “liking does not constitute a new publication of defamatory content and, accordingly, does not have any existence beyond the original post itself.” The respondent were held liable for the shared material.

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