Is An Internet Site A Newspaper?

According to the Tel Aviv Magistrates Court, the answer to the above question is yes. As regards the liability of a publisher pursuant to section 11 of the Defamation Law, 5725-1965, an Internet site is a newspaper, despite the fact that according to that section a newspaper means printed matter reproduced on a printing press (CC 145/00, Eliahu Weissman v. Hagai Golan et al, the decision of Judge Dorit Reich-Shapira of 16th October 2001. The decision appears at in the computer law section).

The decision was made in a private criminal complaint that was brought against the editor of the newspaper, Globes, and the editor of its real estate section in respect of an article that was published in 1999 both in the printed newspaper and on its Internet site. The newspaper's attorney, Adv. Yoram Muskat, applied to strike out the part of the complaint relating to the article's publication on the Internet. He pleaded that an Internet site is not a "communications medium" as defined in section 11(c) of the Defamation Law, 5725-1965, on which the complaint was based and was not included in the definitions contained in the Press Ordinance. Adv. Muskat maintained that since a criminal indictment was involved, the relevant terms ought to be construed in favour of the accused.

Section 11 of the Defamation Law deals with liability for publication in a communications medium. It extends both civil and criminal liability for defamation by providing that when defamation is published in a communications medium, criminal and civil liability will be borne by the person who brought the matter to the communications medium and thereby caused its publication, the editor of the communications medium and the person who actually decided upon the publication, and civil liability will also be borne by the person responsible for the communications medium. Liability for publication as aforesaid is not conditional upon any of those who are responsible knowing that the publication was prohibited (unlike the liability of a distributor, which is dependent upon knowledge, as provided in section 12 of the Law). Section 11(c), around which the trial revolved, defines "communications medium" as meaning "a newspaper within the meaning of the Press Ordinance.... as well as radio and television broadcasts to the public".

Should an Internet site be treated as a "communications medium"? The definition makes it clear that a "communications medium" is not to be given its ordinary meaning. According to the statutory definition, it means a newspaper, radio or television and nothing else.

The Magistrates Court did not deal with the question of whether a site could be construed as radio or television. Had it done so, it would have found that the issue had already been decided in a different context by Judge Michel Hashin, Chairman of the Central Elections Committee, in TBM 16/2001, Shas v. Pines. In that case Judge Hashin held that the prohibitions laid down in the Elections (Modes of Propaganda) Law, 5719-1959 in respect of television and radio should not be applied to the Internet because amongst other things "we cannot read into the Law a prohibition or restriction that was not prescribed in it and we have not seen in the Law a prohibition of Internet propaganda or its limitation in any way... Even if we consider the theory of analogy, we will realise that there is a real difference between the Internet and the radio and television broadcasting media, which difference denies an analogy being drawn between radio or television and the Internet".

At the heart of the controversy in Weissman was therefore the question of whether an Internet site can be construed as a "newspaper" within the meaning of section 11 of the Defamation Law. That section in fact defines a "newspaper" by reference to its definition in the Press Ordinance, which requires a newspaper to be printed matter reproduced on a printing press. The Court found no difficulty of interpretation in holding that an Internet site is a communications medium. The route it chose was as follows - the Law's terminology should be given a meaning that is designed to achieve the purpose of the legislation. The object of the legislature was to preclude the publication of defamation in communications media that are distributed and reach the public at large. Although an Internet site is not expressly included amongst the communications media that the legislature enumerated, the Internet is a communications medium that is widely distributed and reaches the public at large. Having regard to the definition of publication, as provided in section 2 of the Law, which also prohibits publication by "any other means", in addition to the means expressly specified by the Law, "I do not accept the reference that defence counsel made to the Press Ordinance and the narrow meaning that they sought. When enacting section 2 the legislature naturally foresaw that with changing times there might be another method of publication, just as there might be other forms of newspaper... Limiting the prohibition of publication merely to the media mentioned in the Law and ignoring technological innovations is a narrow and improper interpretation that is contrary to the objectives of the legislature, despite the fact that we are dealing with criminal proceedings". Such being the case, "just as an editor is liable if the article is printed in the newspaper, so liability exists when the article is shown on computer screens on the newspaper's official site".

In our opinion, there are material problems with the Magistrates Court's reasoning

Firstly, on reading the decision it seems that the Court too easily skipped over the semantic hurdle posed by the definition of a "newspaper". It was not counsel who referred to the Press Ordinance but the Law. If a "newspaper" is printed matter reproduced on a printing press, an Internet site is far removed from it. The Court was specifically aware of the fact that an Internet site is not included amongst the communications media that the legislature enumerated but it did not hesitate to do what Judge Hashin demonstratively refused to do in Shas, namely to draw an analogy between traditional media and the Internet.

Secondly, the Court concentrated its interpretation on the broad meaning of the expression "publication". That was not the controversy facing it. The controversy was what should be treated as a "communications medium" for the purpose of section 11 of the Law. A communications medium is the arena in which - when there is "publication" in its broad meaning - the legislature extends liability not only to the person who brought the matter for publication but also to the editor, the person who actually decided upon the publication and the person responsible for the communications medium (the publisher).

Thirdly, the Court did not contend with the consequences of its definition. Classifying an Internet site as a "newspaper" within the meaning of the Press Ordinance has consequences that are not simple, especially at a time when the freedom of expression is a supreme constitutional value. For example, every Internet site would be under a duty to obtain a licence from the District Director of the Ministry of the Interior. This is what the Press Ordinance requires of a newspaper. Obtaining a licence from the government in order to express oneself ought to be construed narrowly rather than broadly. The Magistrates Court's decision lacks any reference to such value considerations.

Finally, the Court did not go into the question of whether every Internet site ought to be treated as a newspaper. In the particular case the question did not arise directly. The same news appeared in both the printed newspaper and on the Internet site. In both cases it derived from a press article. In such cases, the underlying assumption (which was not mentioned in the decision) is that the editor has or could have editorial control over the material. Nevertheless, many sites, like discussion groups, provide a stage for expressions by third parties. This stage has given the Internet its special character as the market place of the modern day and age. What is the position when a site publishes defamation that derives from a third party? Should the owners of the Internet site bear the same liability as a newspaper publisher? At least American law has chosen to answer this question firmly in the negative. Bearing in mind the value of freedom of speech and wishing to encourage electronic trade and interactive services, American law has classified the owner of a site as a mere distributor, who does not bear liability for defamation unless he knew of its existence (Cubby v. Compuserve) and it does not treat the owner as a publisher unless he has given public notice that he maintains editorial control over the material (Stratton v. Prodigy). Back in 1996 America enacted the Communication Decency Act, which gave the operator of an interactive computer service absolute privilege in respect of the publication of information deriving from a third party.

The Magistrates Court held in its decision that it did not find it appropriate to consider foreign case law, which could have enriched its findings. It did not make any distinction as regards when a site will and will not be a newspaper, since such a distinction was not called for in the particular circumstances. The result is that it prima facie derives from its decision that a site will always bear liability, independently of knowledge, for infringing content, even if the site merely serves as an arena for third parties' expressions and does not supervise their activity.

Decisions of the Magistrates Court of course have no precedential value. Even ignoring that fact, the decision in Weissman v. Golan cannot be construed as delineating a general principle because it does not howsoever deal with the possible intricacies. This is indeed an area for the legislature to deal with and it is doubtful whether the broad interpretation given to a "communications medium" is desirable without express legislation. Such being the case, the decision should be viewed within the carefully defined limits of the particular case - the publication of a newspaper article in both printed and on-line versions.

A concluding comment - In Shas Judge Hashin declined to treat the Internet as radio or television. Would he have refused to treat the Internet as a newspaper if the facts of Weissman had been before him? It is not certain. In Shas, Judge Hashin said, obiter dictum, that if a radio or television station transmitted its broadcasts over the Internet, the latter would serve merely as a channel and in such event the Internet broadcasts would be subject to the same prohibitions as apply to radio and television. According to this line of thought, if a newspaper uses the Internet as a channel for the publication of its editorial material, it could be argued that it still falls within the definition of a "newspaper", even for the purpose of the Defamation Law.

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