A woman orders a pizza. It is not ready on time. When it is ready, she thinks it is not well-cooked. The woman, from Israel’s northern region, posts about it on Facebook.
Before she knows it, she is shocked to find she has been slapped with a defamation lawsuit that says that her post led to the restaurant’s closure. Even more shocking, the Nazareth Magistrate’s Court in late 2017 declared her post defamatory and fined her NIS 18,000 relating to the NIS 50 pizza she bought.
This may sound like a Twilight Zone fantasy, but it is a real incident, and if anything, it represents a growing trend of individuals, courts and law enforcement using legal tools against people for posts on social media.
Lest you think this happens only in Israel, in December 2018, the Buoys on the Boulevard restaurant in North Myrtle Beach, South Carolina, sued a customer for libel when she posted what it called a false review. It is rarer in the US, with the US Supreme Court recently refusing to even hear a lawsuit against Yelp, a local-search service powered by a crowd-sourced review forum, but lawsuits and threatened lawsuits for reviews are becoming a part of life.
This raises fundamental questions about balancing freedom of speech and the incredible benefits of social media for sharing information with others to improve society, against the massive destructive power of social media when used to defame.
Going beyond the civil sphere, the same kinds of issues have crept into the criminal sphere, in which the stakes for what striking the balance means are different.
Law enforcement may be using social media to preempt and crack down on terrorism and crime while having to avoid chilling speech and criticism in areas of heated debate. These issues are especially poignant regarding social media and the Israeli-Palestinian conflict.
The Magazine spoke to three experts on this new area in which social media, law, security and our fundamental liberties overlap, to try to flesh out where the new trends are taking us.
REGARDING THE pizza case scenario, Hebrew University Department of Communication and Journalism Prof. Nicholas John said that the key word is “amplification.”
“Let’s assume the pizza reviewer was not out to get the pizza restaurant and was just writing colorfully. It is just a review of what felt like a terrible experience. She puts it on Facebook. It has the potential to reach far beyond what the author intended,” he said.
Social media platforms “are alert to engagement, but are pretty much blind to content. They see something is getting traction quickly, that people are sharing and liking it. Whatever that piece of information is, Facebook’s algorithm gets it in front of more users’ eyes.”
Discussing what kinds of posts do well on social media, John said, “A very emotional person might get people to feel emotional. Because emotions are aroused by the post – if it makes you angry or indignant, it can amplify things way beyond what the original poster intended.”
This means that “if someone intends to harm a business owner, then the poster can flag the post and try to make it push people’s buttons. You can try to arouse anger. Research shows that posts shared the most on Facebook are posts that arouse emotion.”
So “off it goes, getting shared wildly. You can really encourage people to spread the word. The potential reach is incomparable to anything that was known from before; that’s how things can go viral,” as opposed to the limited impact of a letter to the local newspaper in the old days.
The positive side of social media? “Big companies in the past could ignore my letter complaining” about an issue, “but if I have a few hundred followers on Twitter and I make public the bad thing that happened to me,” the large company is less likely to ignore it.
“Nowadays, businesses know that if someone with lots of followers retweets, it can be amplified. So they get in touch. They follow mentions on Twitter and Facebook. They’ll try to help resolve the problem.”
On the flip side, “If you are a small business and find what may be a legitimate criticism is amplified way beyond the circle of your potential customers, that’s where this can border on shaming.”
“If as a result of a post, no one goes to the pizza place, then the punishment way exceeds the ‘crime.’ The punishment for one poorly cooked food item should not be that you get shut down. That’s what shaming is about,” stated John.
Regardless of whether it is good or bad, he said, social media in all scenarios comes back to the concept of amplification.
Discussing how to curb some of the negative impact of social media amplification, such as shaming, and whether it should be done by top-down legal or bottom-up social means, he said, “I do not see how you could legislate with something like this.”
“The problem is that there’s a kind of disconnect between the individual’s fleeting act of sharing a piece of information, which to that individual at that moment feels like, ‘Yeah, my friends should see this,’ versus the overall cumulative effect of maybe a million people sharing that piece of information,” he said.
His point was that it was unfair to hold people accountable for decisions they make in that fleeting moment when they post or share. Moreover, he was indicating that people’s behavior would not likely change even in the face of new harsher laws, since their long-term weighing of consequences is at its weakest ebb in that moment. Generally, he was pessimistic about a foolproof solution even with educational/ social campaigns.
One defensive action users can take, however, is report false or slanderous items to Facebook as soon as possible. Accredited fact-checking organizations that work with Facebook will examine reported content and rate it based on its estimated untruthfulness. Then, Facebook users who attempt to share that misinformation will get a notice that a fact-checking group determined it wasn’t true. Moreover, Facebook can torpedo the item’s distribution by marking it for placement much further down in recipients’ news feeds.
APPROACHING THE issue sociologically, he said that one of the obstacles to fully solving the issue goes to basic characteristics of human nature. He said people’s default assumption when they read something on social media is to assume that it is true until proven otherwise, without necessarily checking the facts.
Additionally, he said, human nature is being egged on because social media encourages this attitude and encourages sharing without necessarily checking information – since when people share, they are almost always “rewarded.”
“When people like us, we feel gratified,” even if we have not checked the information, “so the system is rigged against fact-checking and thinking.”
Asked if nothing can really be done about the issue, he said, “That is a good description of reality. It’s the capitalist system’s fault, not just social media – the ability of good and bad content to spread” in open capitalist societies.
This is not to say that John saw no place for the law. He affirmed the law’s traditional role of permitting defamation lawsuits if someone posts lies against another person.
However, he was noncommittal about imposing additional duties on public figures regarding posting true negative material against smaller businesses.
“If I post that I ate at a specific restaurant and I didn’t enjoy my meal, virtually no one will know, but for public figures like Oprah Winfrey, the impact would be much more powerful. “Should we not allow her to [criticize a restaurant]? I don’t know.”
Moving into the criminal law arena, he expressed doubts about law enforcement and the Shin Bet (Israel Security Agency) using social media to confront or predict criminal conduct.
Qualifying that he was not an expert on criminal matters, he said, “To me it sounds unlikely that they stopped knife attacks by cracking down on social media, but I don’t know.”
Pressed that Israeli law enforcement has produced evidence of social media posts causing attackers to decide to attack from confessions in interrogations, he responded, “Just because someone said that in an interrogation doesn’t mean it is fully true. It doesn’t really fit with what we know about how media affects people.”
He said that unlike persons accepting what they read as true when it is passive absorption of information, when someone tries to recruit a person to act, “We don’t just accept in that kind of a blind way; we have interpretations and filters.”
Also, he said that decades of studies have debunked the idea that people are so easily recruited to act in extreme ways without the groundwork being laid within the person long before the pitch.
“Certain conditions must enable a message to have that kind of effect,” he said.
Criticizing overemphasizing the significance of social media in the criminal sphere, he stated, “Basing arrests on social media posts as a practice to chill the speech of a group of people is not really okay. If someone wrote something that did not break the law, why are the police knocking on their door?”
“One answer is to remind that person and people they know that the police and the security services are watching… If Palestinians in the West Bank and Gaza are under heavy surveillance and the practice is to chill legitimate speech,” then that is problematic. He did qualify this last statement saying, “Then again, who am I” to second-guess the security services.
He concluded, “Filing indictments is legitimate if the law isn’t being implemented selectively, but intimidating through arrests and visits” in which the Shin Bet sometimes issues warnings “is more of a problem.”
ISRAEL DEMOCRACY Institute Media Reform Program and Democracy in the Information Age director Tehilla Shwartz-Altshuler, who holds a doctorate in law, took a different view on many of the issues.
In the civil-defamation-shaming realm, she said that the old legal concept was that online platforms had no responsibility for what is published on them by third parties.
“But we can challenge this,” she said. “Maybe we need to impose more responsibility on platforms whether for defamation or for hate speech.”
Continuing, she said, “Facebook, Google and Twitter remove some things, but usually society is not disturbed by defamation.”
Besides the pizza example and businesses closing, she noted shaming had led to Ariel Roonis, a senior official in the Population, Immigration and Borders Authority, committing suicide in 2015.
“It might not just be pizza, it could be the suicide” of a young person, she said.
Shwartz-Altshuler said, “The courts are starting to understand this in the area of defamation,” and are imposing more liability for social media posts.
She also encouraged “increasing digital literacy, so people realize what they write on Facebook is not private. People read and can share it later,” which creates “an ethical and legal responsibility.”
On the other hand, she said that society must ensure that defamation lawsuits are not used to silence criticism.
“Whoever had power in the old world, also has power on the Internet.” She said that private or public sector power-brokers send threatening letters to less powerful individuals who are usually afraid of the legal wording, which amounts to “‘take down your post, or we will sue you.’”
“Where is the balance? You have a right to tell your opinions to friends, to talk about whether you liked a kind of hummus… the right to free speech is not gone. The ability to give our opinion is part of the essence” of democracy.
But she said that this benefit must be balanced with understanding the poignant power to harm using online posts.
A new kind of legal issue she raised was: whether those posting information need to erase information that is superseded by later events?
Giving the example of someone getting acquitted in a case or from an arrest: “Does the arrest get removed? Do they have the right to be forgotten? Before, you needed to go to the library to find out someone’s criminal past,” but she said that social media has made it much easier to find criminal records.
Shwartz-Altshuler pointed out that the new privacy regulations in Europe, the General Data Protection Regulation (GDPR), are the first to protect “the right to be forgotten.”
Comparing the US and Israel, she said that Israeli courts have made more progress in imposing responsibility for online posts. In contrast, she said that the Communications Decency Act in the US gives an exemption to platforms for anything posted on the platform by third parties.
Further, if in Israel you can win a defamation case against an individual essentially by proving that a person’s reputation was harmed, in the US, she said, you can only win a defamation case if you prove the allegation against you was both false and made deliberately.
CROSSING OVER into the criminal sphere, she said that crime on social media cannot be encapsulated merely by the catch-phrase “incitement,” the most common issue covered in the media. Rather, she said it also included insulting public officials, privacy issues, distributing intimate pictures, sexual crimes as well as significant activity by the military censor monitoring social media.
Giving a broad view, she said that government agencies can now “monitor social media and can shut people off for posts which are antisemitic, anti-Israeli, or for inciting violence or racism.”
On many criminal issues, Shwartz-Altshuler said it was positive that Israeli courts “understand now that social media can be used to promote violence and sex crimes and that law enforcement needs to be there.”
All of that said, she commented, “The big story is not the indictments [for incitement]. It is the monitoring without the indictments.”
She said that it is not only the Shin Bet that monitors online activity, but also the police and the courts. All of them send requests, or instructions, to social media platforms to remove content as part of using” social media for deterrence.
Agreeing with John, she said, “Monitoring is used not just to follow Palestinians’ speech, but also other Arabs… This has a chilling effect on free speech” by scaring and threatening people.
The constantly growing cyber department in the state prosecution is telling Facebook informally to take down posts, without a law to base this on, she stated.
Characterizing this arrangement with Facebook as “unholy,” she said it was problematic because the public does not get to weigh in on what gets removed, just the prosecution.
Moreover, she noted that there had been a proposed bill for regulating content removal, but that law enforcement and Facebook preferred removal to happen “informally so they would not get stuck” with the balancing responsibilities that a law might impose on them.
She said it was disturbing that, with no legal framework, 12,000 posts were removed by Facebook in 2018 at Israel’s request.
It was not that she was opposed to removing posts, but that she said it was important for a transparent debate on the issue leading to a legal framework.
Shwartz-Altshuler mentioned one partial solution being a new research model she was working on of co-regulation by cooperating nations setting standards for what is and is not hate speech regarding Internet companies.
While “this is not easy,” she said that it was important for countries, and not Facebook, to decide such issues to make the ground rules obligatory and transparent.
ILAN JONAS, IDC director of the Clinic for Combatting Hate, also weighed in on social media in the criminal realm. “Hate is like fire. Once someone starts it, it can be multiplied and spread easily,” he told the Magazine.
“Spreading hate is not a new phenomenon, but the social media facilitate the spread of hate far beyond what was known in the past,” he said.
Drawing the line between protecting people from hate speech and protecting free speech “is not a simple matter. It is still hard to identify clear rules of thumb for figuring out what should be allowed and what prohibited.”
“At the end of the day, each case still needs to be evaluated according to its specific circumstances,” he said, suggesting asking three key questions: “1) Was the post written in good faith or were there other interests? 2) Could the post have achieved its purposes with a more moderate tone? 3) How widely was the post shared?”
Jonas said that society must also consider whether the speech in question potentially furthers debate over an issue of public importance or whether it is made to further personal vengeance. He was clear that debates over important public issues would get more protection.
“The rules to defend free speech were not established to protect normative moderate speech, but to allow people to push the envelope and air ideas that might be outside the consensus,” he said in defending allowing robust debate including extreme views.
However, he said that only the attorney-general and top state prosecution officials can define what hate speech is and argued they do not act frequently enough against it.
Another criticism he had was that law enforcement appears to take a more aggressive approach with Arab incitement as opposed to Jewish incitement. This different treatment might come from law enforcement being more ready to tie Palestinian incitement to violence without having fully internalized the extent to which the same can be true with Jews.
Asserted Jonas: “The attorney-general should treat incitement as a major plague the needs to be fought regardless of the background of the inciter.”
There are no easy answers, but from posts about pizzerias to incitement between Israelis and Palestinians, debating and studying the issue seriously is probably only going to become more important as technology injects itself ever deeper into our lives.