Written by Tal Ron
On October 6, 2022, a judgment was given by the Supreme Court (the Hon. Justice N. Solberg, the Hon. Justice D. Barak Erez, and the Hon. Justice Y. Willner) in a motion for leave to appeal the judgment by the Tel Aviv Jaffa District Court, in Civil Appeal 35127-03-19 (the Hon. Judge J. Shevach – Vice President, the Hon. Judge Y. Ettedgui and the Hon. Judge I. Berkowitz), given on March 23, 2020, which granted an appeal by the Respondent on a judgment of the Tel Aviv Jaffa Magistrate Court in Civil Action 2632-07-14 (the Hon. Judge H. Peled), which was given on February 3, 2019.
The Respondent in the Motion for Leave to Appeal is a doctor of law, lecturer and lawyer, who delivered his lecture on March 11, 2012, as part of a tort law course. During the lecture, the Respondent discussed a ruling in which the question was asked whether the Hebrew nickname ‘kusit‘ constitutes sexual harassment. Later in the lecture, the Respondent dealt with the question of tortious liability in reference to cosmetic surgeries on women’s bodies.
The Applicant felt offended by the statements in the lecture, and therefore filed a complaint with the head of the law school and the supervisor of sexual harassment at the academic institution, who investigated the complaint and decided to reject it. The Applicant protested the rejection of the complaint and began posting publications about the Respondent on several platforms. The Applicant also filed a complaint with the Ethics Committee of the Bar Association (which was rejected). The Applicant filed a lawsuit against the Respondent and the educational institution to the Regional Labor Court in Nazareth on the grounds of sexual harassment (which was denied) and she withdrew the appeal she filed at the recommendation of the National Labor Court.
In addition to the aforementioned legal proceedings, the Applicant published on the social network Facebook, over two years, over 20 publications about the sexual harassment committed by the Respondent, according to her, during the aforementioned lecture. In addition, the Applicant updated the networks on the steps taken by her in connection with the incident in the lesson (the complaints she filed and the procedures initiated), and she even explicitly mentioned the name of the Respondent in some of the publications. The Applicant even attended lectures at the law school wearing shirts with various inscriptions intended to express her protest. At the same time, publications were shared on various media outlets (online news sites, television, radio) in connection with the affair. The Respondent eventually filed a defamation lawsuit against the Applicant, claiming that the publications she had shared caused him damages. The Applicant filed a counterclaim, against the Respondent as well as the academic institution, alleging invasion of privacy. The counterclaim filed by the Applicant was also denied, as was an appeal filed by the Applicant against the decision (Civil Appeal 19949-08-15).
On July 1, 2014, the Respondent filed a lawsuit against the Applicant with the Tel Aviv Jaffa Magistrates Court. For fee purposes, the Respondent assessed the claim amount at NIS 600,000 (Civil Action 2632-07-14) [published in the Nevo database]. The lawsuit was based on the provisions of the law, and focused on over 20 publications made by the Applicant between 2012-2014, which, according to the claim, caused damage to the Respondent’s reputation. The Applicant claimed in her defense that the Respondent’s remarks in the lecture were deliberately aimed at her while denigrating the female body, which amounts to sexual harassment. The Applicant further claimed that the publications she shared do not amount to defamation and that these publications meet the conditions for protections listed in the Defamation Law. The Applicant also denied the Respondent’s claim regarding the damage caused to him by the publications.
The Magistrate’s Court rejected most of the Respondent’s claims, and determined that only two out of twenty-three publications constitute defamation.
The Respondent filed an appeal against the Magistrate’s Court’s verdict to the Central Lod District Court and the Applicant filed a counter-appeal. The District Court ruled in its decision that four publications constitute defamation.
As part of the appeal that the Applicant filed with the Supreme Court, the legal question was asked whether the limitation in Section 7a(d) of the Law on the Defamation Law, according to which compensation cannot be received without proof of damage due to “the same defamation” more than once, precludes the possibility of awarding more than one compensation for a number of publications, related to the same factual basis from which the defamation arises, or whether, under certain circumstances, it is possible to award even more than one compensation without proof of damage, considering the number of publications.
The Supreme Court accepted the appeal in part and ruled as follows:
According to the language of the Law and its purpose, one can accept an interpretation according to which it is possible to award more than one compensation in a defamation claim without proof of damage, in light of the number of publications. Within the framework of Amendment No. 6 to the Defamation Law, it has two purposes: one is the need to deter against injuring parties, and the second is the desire to provide a legal tool that will make it easier for those harmed by defamation to prove their claim. According to the ruling, these purposes lead to the interpretive conclusion reached by the panel. The Supreme Court also considered various rulings and policy considerations. Beyond that, the ruling discussed the growing need to adapt the legal rules to the current technological era, in which expression on social networks is a central pillar of public discourse. Also, in response to the legal question, it was determined that in order to examine whether there is justification to give separate compensation (as depending on the number of publications) one must use three auxiliary tests: (1) examination of the content of the publications and whether there is a similarity between them; (2) the time that passed between the various publications; (3), the identity of the recipients in relation to each of the publications (Justice Barak Erez objected to this test). To the extent that the court reaches the conclusion that the application of these tests will result in it being “the same defamation,” so that there is no justification for awarding separate compensation for each publication, the court will have the option of considering the number of publications in order to decide on the question of the amount of the appropriate compensation. In the present case, in summary, there are three causes of action and three compensations without proof of damage, due to four publications, according to the course set forth by law. According to the amount determined by the District Court – NIS 65,000 for every cause of action – the Supreme Court ordered that the Applicant pay the Respondent a total amount of NIS 195,000.
