Saturday, March 27, 2010
In Victory for Free Speech Everywhere, Israeli Supreme Court Rules Talkbackers Can't Be Exposed For Libel Suits
This is a victory for anyone who uses the internet and makes comments, whether you are in Israel or not. This Supreme Court decision makes it possible to honestly share your opinions without fear of the government punishing you for doing so.
It also frees the media from the fear of losing their freedom to offer these services. If the Supreme Court had decided to restrict free speech, newspapers and magazines, even blogs, may have had to cancel, restrict, or carefully moderate each and every comment that came in.
If a comment was deemed to libelous, the commenter, as well as the newspaper or blog, could have been sued by any person who felt they were libeled.
This could have been an international can of worms, with different politicians, political groups, and individual citizens threatening to sue for any comments made on a website or blog.
What a mess!
Last update - 02:11 28/03/2010
Israel Supreme Court: Talkbackers needn't be exposed in libel cases
By Nurit Roth
Surfers who post comments on Web sites scored a victory in Israel's Supreme Court last week. The vice president of the country's highest court, Eliezer Rivlin, and Justice Edmond Levy handed down a majority ruling that Internet service providers cannot be forced to disclose the identity of anonymous posters, even at the behest of a person who claims he has suffered damage from the comments.
Justice Elyakim Rubinstein held a minority opinion, that the court did have the power to order the identity of anonymous posters to be revealed.
The ruling ended the appeal by Rami Mor, an alternative medicine practitioner. He wanted to sue surfers who had left derogatory comments on a Ynet news story, for libel. Among other things, unidentified surfers called him a "charlatan" and a "thief." Another wrote, "Rami Mor, you're getting pretty annoying, putting fake messages in every forum - you aren't even a practical nurse."
Since the posters were anonymous, identifying them would have required a court order. Mor therefore motioned the court to order Ynet, and the communications company Barak, to identify the posters (a technical matter involving finding and disclosing their Internet protocol addresses).
The Magistrates Court of Haifa and the Krayot rejected his motion. Mor then motioned the Haifa District Court for permission to appeal.
In April 2007, Judge Isaac Amit (today a High Court justice) ruled that the court could intervene in the case of a libelous comment, if online anonymity had been abused. In a long ruling, Amit said the first test before exposing the identity of an anonymous poster was whether the petitioner could sue the poster if his identity was known.
But Amit added that there had to be "another element" before exposing an anonymous poster's identity, such as good faith on the part of the claimant.
Other questions bore examination, Amit said, such as whether the claimant is a public personality or a private individual, the intensity of the hurtful expression, whether it was a one-off event or methodical, the nature of the forum or Web site, and more.
Amit suggested a number of steps before disclosing a surfer's identity. The claimant had to show that he had tried to obtain the poster's identity by posting a call himself on the Web site where the original hurtful comments appeared. Also, the disclosure would be made in stages: first in court, and only after the surfer had his say would the court decide whether his or her identity should be publicized.
As for Mor personally, Amit said that he did have grounds to sue if the poster had been known. But since that constituted a change in norms, Amit ruled, it wouldn't be fair for the anonymous surfer to be exposed without having been warned first. Thus Amit, too, rejected Mor's motion.
Free to speak one's mind, however crassly
Upon losing his case at the Haifa District Court, Mor tried his luck higher up. He appealed to the Supreme Court, arguing that since Amit had accepted his claim in principle, he shouldn't have rejected his motion. Also, he argued, the process of exposing the surfer was designed to enable him to sue the surfer for libel; without that exposure, he couldn't sue.
But in his ruling, Rivlin wrote that protecting anonymity serves important purposes in respect to freedom of expression. Anonymity is also part of the right to privacy, he said.
Anonymity is all the more important on the Internet, Rivlin elaborated: "Internet is the new town square, which is shared by all. The new medium, virtual space, is everywhere and open to all. The tools it offers, including chat rooms, e-mail, surfing the World Wide Web and social networks, too, enable the information to be received and transferred, enable us to 'hear' other people's opinions and to share our own.
"It is a decidedly democratic means that advances the principle of equality, and places a barrier before government intervention in freedom of expression," Rivlin summed up.
The justice was gentle in tone, though, noting that local culture doesn't always confine itself to refined language. "Many of the posts are vulgar and crass," Rivlin wrote, "and there is a glaring gap between the firmness of the opinions and the factual infrastructure supporting them."
Yet crassness does not delegitimize the constitutional values on which this online dialogue is based, he clarified. "The fact that among the posts are some which are in bad taste, and whose formulation is garbled, certainly does not put them beyond the embrace of the constitutional right to free speech."
Proliferation of dirt
Anonymity comes with a price, Rivlin wrote, and expanded on that price - a proliferation of libelous statements, for one, against which the besmirched party is virtually helpless. With anonymity it is all too easy to let down one's hair and lash out without bearing responsibility.
Yet at the end of the day, it would require legislative change for the court to accept Rami Mor's request to order the third parties, Ynet and Barak, reveal the Internet addresses of surfers, Rivlin ruled. At present Israel has no law that would enable that, and lower courts that did issue such orders had no basis in law to do so, said the justice.
Rivlin did not accept the ruling of his lower court colleague, Amit, who rejected Mor's request on the grounds that surfers needed prior warning that there was a new precedent in town. In Rivlin's eyes, it all comes down to the law, and right now - there's no law on Rami Mor's side.