If you send a private message on Facebook Messenger that includes some nasty comments about a third party, you could risk being sued for defamation, as was the case in an extraordinary ruling by the Kfar Sava Magistrate’s Court.
Judge Merav Ben-Ari ruled recently that a man who was chatting on Facebook with a relative and referred to a businessman as a “thief,” must pay that businessman 9,000 shekels (about $2,500) in compensation, in addition to court costs totalling an additional 9,000 shekels.
Ben-Ari rejected the defendant’s argument that the correspondence in question was private, and stressed that, “referring to someone as a thief as part of private correspondence with a relative on Facebook is not a trivial matter.”
The 70,000-shekel lawsuit was filed by Nissim Hadas, a businessman and political activist, who was represented by attorney Shlomo Weinberg.
The background to the suit is a book called “Corinna,” which was written by Hadas’ wife and is a biography of her mother. The defendant, Avraham Ashkenazi, was not pleased with how his father was portrayed in the book, and in May 2014 sent a private message to a relative of his, Linda Vakil, complaining that she had in some way allowed the book to be written.
Vakil replied that she hadn’t read the book and had not cooperated with its publication. Ashkenazi then replied again, and in his message referred to “the honorable master, man of many deeds and no small thief: Nissim Hadas, the sponsor of the book” Apparently, Hadas got wind of this correspondence and argued that Ashkenazi’s description constituted defamation.
The first question Judge Ben-Ari addressed was whether the message could be considered a “publication.” (Israel's 1965 Defamation Law cites as defamation “anything the publication of which is likely to degrade a person, make him the object of hatred, contempt or ridicule," etc.) She determined that although the online post was not available to everyone but rather a private message, according to the law, if it’s a message that was intended for someone other than the offended party, and it reached that other person – then it has been “published” in the legal sense.
Ben-Ari also dealt with whether what was written is considered defamatory. She said the test for determining this is an objective one – how society would view what was said in the published remarks in question.
“I would say that the term ‘thief’ is a derogatory term by any opinion,” she wrote in her verdict. “This was not an expression of an opinion or an insult which, under certain circumstances, the law would accept and toward which it would be lenient and not define as defamation – but rather a statement of fact for all intents and purposes.”
The judge added that case law supports this position, and ruled that calling someone a "thief" indeed constitutes defamation.
After establishing that the message constituted publication of defamatory nature, Ben-Ari examined whether it would be possible to apply the legal defenses usually used in such instances – such as citing truth in publication or in good faith.
In his defense Ashkenazi said that given the many insults to his father throughout the book, he felt a need to express his anger and disappointment with regard to those who dealt with its publication. He claimed that he had contacted Vakil because he thought she had helped with the publication, and that he was trying to prevent distribution of the book.
Ben-Ari wasn’t buying this line of thought, and also rejected Ashkenazi’s claim that calling someone “no small thief” is the innocent expression of an opinion about Nissim Hadas’ character and actions. “With all due respect," she said, "calling someone a thief is not expressing an opinion, but stating a fact.”
Nevertheless, the judge added, given that the publication was of limited scope, with no proof that the message was even passed on to others – there was a possible basis for reducing the compensation as well.
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