This is the second (here’s the first) in a series about the Israeli judicial system dishonoring the fundamental democratic value, freedom of speech.
Recently, an Israeli district court in Tel Aviv found that a blogger had written posts that defamed various Israeli government officials and senior corporate executives. The judge ordered (this is the English language order) that several specific posts, including eleven web pages from four different websites, which were found libelous be taken down by the web host. There are several issues that make this case interesting. One of them is that the blogs are hosted by WordPress, the largest blog platform in the world (this blog uses the WordPress platform but is not hosted by WordPress, as the Israeli blogs are). The Israeli judge directed the complainant’s attorney to demand that WordPress immediately remove the offending pages.
I’ve tried several times to contact WordPress, whose holding company is called Automattic, to ask how they approach such matters. The “offending” blogs have published a joint response to the judicial decision which unfortunately doesn’t illuminate the original reason the complainant brought the matter to court. But the post claims that WordPress will not remove material from its server at the behest of foreign parties unless they can prove that it violates provisions of U.S. law. In other words, the complainant’s attorney would have to prove that the material didn’t just violate Israeli law, but U.S. law as well.
But I reviewed the Automattic website and found this rather alarming passage:
We aim to promote freedom of expression around the world, and are also mindful of local laws that might impact that expression. When we receive an order to remove content, we may block it in only those jurisdictions where it violates local law, so that it remains accessible in areas where it may not be illegal. For example, if we receive a takedown demand from Russia, we may comply with it by blocking the content at issue only from site visitors with IP addresses originating in Russia.
On another page of the site, it notes that in response to takedown requests:
If we receive a complaint and are not in a position to make a determination (for example whether something is defamatory or not), we defer to the judgment of a court.
So I’m not so sure the respondent in this case is correct in having such confidence in Automattic. He’s very likely to be disappointed. And if Automattic does accede to the Israeli judicial demand, it would prevent Israelis from reading the posts. Though the company makes it appear that the damage is limited by the fact that readers outside Israel could read the posts, since they’re written in Hebrew very few people will read them. This in effect silences the bloggers in question.
As those who know Israeli libel law can tell you, it’s much easier to prove libel in Israel than here. The standards are much lower and are more favorable to complainant than respondent. So despite the blogger’s confidence he will not be censored, it is possible that Automattic might allow Israel’s lax libel law to trump U.S. law. Any Israeli who hosts a blog outside Israel for this very reason, to protect him or herself from having his site held hostage by Israeli courts, now has to fear that this safe foreign harbor has been removed.
A word about the blogs named in this case: I haven’t read them in great detail, but what I have read indicates that they are indeed angry, vituperative, vengeful and even hateful blogs which attack many of family law judges and social welfare officials, as well as local municipal personnel. The main respondent, Yaakov Ben Issachar, runs an NGO, Our Children’s Future, advocating for fathers’ rights in divorce proceedings. It’s likely he bears a grudge against Israeli officialdom for losing his parental rights in a divorce proceedings. Divorce and child custody disputes are among the most contentious of all human conflicts. It’s clear both why someone would write a blog to try to shame those who you felt had wronged you. And it’s clear why those attacked by such blogs would want to defend themselves.
Further, there’s a whole lot of garbage published in the blogs in question. Ben Issachar clearly harbors deep, bitter grudges. He rails, for example, against “feminazi social workers” who take kids away from their dads. This is not a pleasant man. I’d be pissed if he was writing about me.
But the fact of the matter is that sometimes people who harbor such obsessive motivation serve useful purposes in society (I’m not saying Ben Issachar is one of these people). The specific grudge in this decision involves complainant, Yuval Gavish, senior executive vice president of Israel Bank Discount, and head of its banking division. The proximate cause of Ben Issachar’s hate (he calls Gavish “a senior criminal”) is that the bank cooperates with social welfare services to garnish the wages and bank accounts of delinquent fathers. But in the particular post that’s been banned, the blogger also notes that Gavish built a personal fitness center without the required approvals of his neighbors. I don’t know if this claim is true. But if it is true, it does seem that this be considered protected speech in the U.S.
As I wrote a few days ago in another Israeli case involving free speech and libel claims, the venue for resolving these matters shouldn’t be the courts. There are many platforms in which individuals who are wronged may defend and explain themselves, and publicize the misdeeds of their attackers. Indeed, that’s one of the reasons I actively participate in social media like Twitter and Facebook.
Censorship doesn’t work. It only brings more attention to the offending individual and whatever insult or outrage they’ve done. I spoke to Gavish’s attorney, Moshe Yacov, of the powerful Israeli firm, Herzog Fox Neeman. He agreed, but noted that in Google searches for his client’s name, the first result was often the offending posts. This caused potential clients to believe Gavish might actually be a corrupt criminal, as Ben Issachar claimed.
I understand the concern, but I don’t buy it. If an important corporate executive finds negative Google results, his bank employs IT personnel or can hire consultants who can engage in SEO activities which will ensure more favorable results display. Further, I’d like to think that potential clients surfing the web for information about him would be able to distinguish between sites like Bloomberg, Reuters and Business Week, which have written about him, and an obscure Israeli blog.
Yaacov told me that Google has already responded affirmatively to the request to remove Ben Issachar’s posts from its searches. When I asked what his client planned to do if WordPress refused his request to remove the posts, he noted that WordPress has subsidiaries with assets in Israel and that it would be possible to take action against them. Further, he might apply to U.S. courts to recognize the authority in U.S. jurisdictions of the Israeli court order.
This case is even more problematic because the Israeli court has demanded that a U.S. company conduct its business according to Israeli, rather than U.S. law. It’s entirely possible Automattic will agree to do so though they haven’t yet. There are even more disturbing cases involving far more populous and powerful countries than Israel, like China and Russia, which have succeeded (in China’s case) in compelling U.S. companies to give in to similar demands for censorship as the price of doing business.
It’s interesting to note that some of these companies like Facebook and Google break down the number of takedown requests they receive by company and in how many cases they agree with such requests. In half the 111 cases in which Israeli jurisdictions requested that Facebook produce or censor material, it did so. In 15 cases, it removed material that violated Israeli law involving Holocaust denial. Google received 29 such requests. It complied with half of the judicial requests (including this one) and all of the law enforcement requests.
It’s unlikely, after the NSA revelations about the pliancy of U.S. internet companies to government demands, that you harbor any illusions about the robustness of corporate resistance to such intrusions. But if you do, this post proves that the bar for protection of free speech is even lower than you might think. U.S. companies are far more interested in doing the bidding of the nations in which they do business than in defending “abstract” principles like free speech.