Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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An Israeli District Court reversed a magistrate’s preliminary opinion and held that Google must remove search results that are clearly defamatory in nature. The case was brought by Ami Savir, an Israeli attorney who was mischaracterized as having committed five acts of unethical legal conduct because of a Google algorithm. Savir had represented the Israel Bar Association in disciplinary proceedings against the liable attorney, the facts of which were misconstrued in search results due to the way a post was tagged.
The court held that any party that knowingly republishes defamatory material is itself liable for defamation. Google was aware that their algorithm defamed the attorney, but did nothing to remedy the algorithm and prevent further dissemination of the defamatory material.
The facts of this case can be traced back to a single blog post and the problems that can occur as a result of adding “tags” to a blog post combined with Google’s “auto-search” function.
In 2005, Ami Savir was appointed to represent the Israel Bar Association in disciplinary proceedings related to another attorney, Yoram Lioneli-Arviv. The misconduct for which Lioneli-Arviv was liable is not clear, but it is clear that this was not the attorney’s first time being disciplined. After his disciplinary proceedings this time around, Lioneli-Arviv sued the the Bar and Savir served in the Bar’s defense. Savir was successful in his representation of the bar, and Lioneli-Arviv’s conviction was upheld in five different cases.
After the conviction was upheld, Shaul Bar-Noi—the owner and operator of the website court.org.il—published an article entitled “An Attorney Was Found Guilty in Five Separate Cases.” As part of the online post, Savir’s name was added as a “tag” to the article.
Unfortunately for Savir, Google’s search algorithm made it appear as if Savir, not Lioneli-Arviv, was the attorney who was convicted. Specifically, when a Google user began to type in Savir’s name, Google’s “auto-search” technology filled in the rest of the search box with the words “is an attorney convicted in five separate cases.” Savir believed both the article, which characterized him as the unethical attorney, and Google, which essentially “re-published” the information, to both be liable for defamation.
Savir pursued numerous remedies before filing suit. First, he approached the site’s owner and operator, Bar-Noi, about removing the misleading tag. Bar-Noi refused. Savir also asked Google to exclude the defamatory search term and search result from its pages. Google similarly refused, and by this point, Savir’s name was associated in legal circles with unethical attorney conduct. As a result, Savir decided to file his lawsuit.
Initially, Magistrate Hannah Yanon found only partially in favor of Savir, holding Bar-Noi and his website was liable for defamation but not Google. In a lengthy advisory opinion, the Magistrate found that the website had damaged Savir by mischaracterizing the article’s title in a way that implied that Savir was the attorney who had been disciplined. Nevertheless, the Magistrate found that Google could not be held liable for merely republishing information from another website.
Savir appealed the Magistrate’s decision, and Justice Avigail Cohen of the Tel Aviv District Court reversed in part and affirmed in part the Magistrate’s decision, this time holding that both defendants—the website and the search engine—were liable for defamation.
Justice Cohen, quick to address many critics of similar decisions, stated that this case was not about censorship. Instead, Savir’s lawsuit was based upon traditional theories of liability associated with defamation; specifically, that any party that knowingly republishes defamatory material is itself liable for defamation.
Here, Google was aware that its search algorithm and search results defamed Savir (because he told the search company) but nevertheless did nothing to prevent further defamation such by, for instance, removing the links. Therefore, Google was also liable for the damaging headlines posted on Bar-Noi’s website.
The court awarded Savir 100,000 Israeli Shekels in damages. As a result of this case, the Israeli Knesset is now reportedly considering legislation that will codify the modes of liability a search engine (such as Google) will face if its search results or algorithms lead to the publication of defamatory material.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the case certainly furthers protections for parties who have been defamed, it does at the same time contract expression for allegedly defamatory speech and any party who publishes it. There seemed to be no dispute that the original publisher of the article defamed Ami Savir by (in all likelihood, unintentionally) referring to him as the attorney that had been disciplined in five separate cases. The more interesting outcome in this case relies on the fact that even a neutral, third-party publisher of defamatory content, such as Google, can also be held liable for defamation. Many electronic media and journalism advocates would characterize this liability as censorship and a severe contraction on expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This decision establishes persuasive precedent within Israel that third-party electronic publishers of defamatory material are both liable for defamation and are now under an obligation to remove defamatory content if notified so by the injured party.
Let us know if you notice errors or if the case analysis needs revision.