In September 2014, Google won a case in what seemed to be the Tel-Aviv District Court’s rejection of the European “right to be forgotten,” which requires search engines to comply with requests to remove inaccurate information about people.
However, late this June, the Court found both Google and a website owner liable for inaction which it said contributed to the wrongful defamation of attorney Ami Savir, and required the owner and Google jointly to pay 100,000 NIS in damages and expenses.
Shaul Bar-Noi, owner and operator of the website court.org.il, published a decision in which attorney Yoram Lionelo was found guilty of professional misconduct (the “Lionelo” case).
Unfortunately, Bar-Noi must have thought that Savir, who had merely represented Lionelo, was the one found guilty. Bar-Noi, through his SEO efforts, encoded Savir’s name as a tag to the page title, “An Attorney who Was Found Guilty in Five Separate Cases”. As a result, searching Google for Savir’s name provides Bar-Noi’s publication of the Lionelo case as a search result with the same title.
Savir turned to Bar-Noi to correct the misleading tag, and when the latter refused, asked Google to remove the offending search result from its results page. When Google refused to remove the link, and Savir started being asked by people whether he was in fact found guilty, he decided to sue.
In its opinion, the Court rejected Bar-Noi’s argument that his acts do not amount to “publishing slander” because a user could click through the link and find that Savir was clearly not implicated in the case. Rather the Court looked at the totality of the circumstances, the effect of which was the publication of slander. The Court cited Israel’s Prohibition of Slander Law, which says that “publishing” slander includes “[through] illustration…gesture, sound and any other means”. “Any other means”, interpreted the Court, includes using SEO on a website in a manner that leads to the publication of slander on a third party search engine (e.g., Google).
In discussing Google’s responsibility, the Court quoted the Unidown case, which discussed contributory infringement of intellectual property rights. Specifically, the Court noted the common position in which a website operator finds itself when it codes the site in a way that leads to the publication of information, which publication is illegal. While in the Unidown case, the site owner was found liable for enabling users to connect to third party software and illegally download copyrighted media, here, the refusal of both Bar-Noi and Google to remove the SEO coding of Savir’s name led to the publication of slander.
The Court’s most powerful argument went to the core of the Safe Harbor of the DMCA in the U.S. As a search engine and provider of a lawful service, Google benefits from a Safe Harbor—it is not expected to police the web and censor third party sites. Google is expected, however, to comply with requests to remove results which themselves facilitate the infringing activity of third party sites. When it refuses or is unable to do so, it is out of the scope of the Safe Harbor, because it is not just a search engine anymore. Unidown faced a similar analysis. The site’s owner claimed he was operating a search engine, while it was clear that the effect of the “search results” was to facilitate piracy.
The Court did not discuss the European “right to be forgotten”, leaving room to wonder whether people can benefit from the application of that concept to Israeli law and demand that Google remove a result that seems to put them in a falsely negative light. Alternatively, future cases might interpret the case narrowly, forcing reclusive plaintiffs to clear a higher threshold—an objective finding of defamation. At least for now, though, Google might be compelled to heed the requests of Israelis who demand their “right to be forgotten”, as their European counterparts have.
- Asaf Naymark, Associate
Shaked & Co. Law Offices