Israeli Court Holds Forum Manager Liable For User Content
IBLS Contributor: Attorney Odia Kagan, Tel Aviv, Israel, odia@okaganlaw.com, writes:
In C 032986/03 Moshe Boshmitz v. Anat Aronowitz, Magistrates Court of Tel-Aviv Jaffa, Israeli Judge Shoshana Almagor held that the manager of an online forum may be liable for the content published by the forum users on a theory of negligence.
The defendant, Ms. Aronowitz, was the manager of a forum dealing with the welfare of animals in the popular Israeli website “Walla!” The Claimant, Dr. Boshmitz, a veterinarian and an owner of a farm that breeds monkeys and sells them for research purposes, filed suit against the defendant regarding libelous statements she made against him in the forum as well as statements made by users of the forum. Among the users’ statements were references to him by names which included the word “Auschwitz”, “Dr. Death”, “Dr. Murder”, “Bushmeat” and “he must be eliminated”. Due to the scope of such statements, the hosting website Walla decided to close the website.
The question before the Court was: “Is the forum manager liable for libelous statements made by the users?” The Claimant suggested that she is liable both as an Editor, under the Israeli Libel Law, and for negligence, under Section 35 of the Torts Ordinance. The Court rejected Ms. Aronowitz’ argument that she did not notice the posts in question, and held that she had the ability and the opportunity to delete the messages but refrained from doing so.
As an active manager of the forum, the Court held that Ms. Aronowitz was aware of the problematic nature of the posts, since she repeatedly warned the users to curb their expressions and remain within the boundaries of the law, and reviewed all posts published every day. The time stamps of her entries and activities on the forum, in addition to the fact that she deleted certain problematic posts, proves that she did indeed notice and had the opportunity to delete the posts in question.
The Court held that the forum manager is NOT liable as an editor for the following reasons. Since it is not a printed document, an online forum cannot be a “newspaper” as required by law. Serving as a stage for posts and opinions without a centralized editing mechanism, an online forum is not a “newspaper” as required in the Libel Act. In so holding, the Court mentioned decisions in the Borochov and Sudri cases, which decided these questions. However, the Court held that Ms. Aronowitz, as manager, IS liable due to negligence and must compensate the claimant for the expenses he incurred due to such publications.
The Court held that is it “clear beyond doubt” that a forum manager has “conceptual duty of care” toward the Claimant in that she should have anticipated that harm may come to him due to the messages and is therefore liable for their content. The Court took into consideration (1) the fact that the forum manager has an active role in the forum, different from a service provider, which just provides the stage, (2) the fact that she was well versed in the material, having served as a spokeswoman for an animal rights association and (3) the fact that she had the technical ability to delete such posts which could be and was exercised without the need for considerable resources. In assessing the manager’s liability, the Court applied the criteria set forth in the Mor case, which dealt with the disclosure of anonymous user’s identity, and took into consideration the claimant’s good faith, the nature of the forum, and the scope of time the messages were online.
The determination that the forum manager has a duty of care toward its forum users, to the extent of imposing liability for a failure to delete posts, establishes a greater responsibility for such function and may have a chilling effect on forum managers, who mostly perform this function voluntarily and as a hobby. The Court states that liability as an editor cannot be imposed, because a forum does not have a centralized editing function and is just a stage for opinion. However, by imposing liability for a failure to conduct such editing abilities, it seems that the Court effectively imposed a duty, similar to that imposed on an editor of a newspaper, using the mechanism of the tort of negligence to do so. The tort of “negligence” opens the liability gates wide and the forum managers must be aware of this aspect of their role.
Originally published on Ms. Kagan’s blog e-legal on May 9, 2007 at www.odiakagan.typepad.com
Ms. Kagan specializes in Internet and IT law. Her articles on these subjects are published regularly in professional publications of the American Bar Association and the New York State Bar Association as well as in national Israeli websites. Ms. Kagan authored the Israeli Chapter in the book “Cybercrime and Security” published worldwide by Oceana Publications, a division of Oxford University Press. A graduate of the Law Faculty of Tel Aviv University, Ms. Kagan is a member of the Israel and New York Bars, is qualified as a Solicitor in England & Wales and is also admitted as legal practitioner in New South Wales, Australia. The above is the author’s opinion and does not constitute or replace legal consultation.