Sometimes, it seems like the entire world revolves around online platforms and content creation, and many businesses are concerned with creating online content as a way to enhance and develop their business channels. But what if intellectual property rights are violated as a result, and not necessarily because of something the business itself published?
When a person publishes an offensive post on Facebook, Instagram, or Twitter, Israeli case law adopted the European approach (in the absence of Israeli legislation on the matter), according to which Internet platform operators will not be liable for the defamation of users if they did not know about the infringement and were careful to remove the offensive publication within a reasonable time from the date they became aware of it . However, what happens when a user’s post on a website infringes the intellectual property rights of a third party? Here too, in the absence of Israeli legislation, the case law adopted the approach anchored in European legislation and in fact based itself on the case law on defamation in order to resolve the issue of infringement of property rights, and developed the doctrine of “contributory liability in copyright” .
At the beginning of the 21st century, rulings were issued that determined that Internet platform operators would be held liable for copyright infringement if they contributed to the infringement by their actions . For example, actively encouraging or assisting copyright infringement as well as providing equipment or a service that enables the infringement, and all on the condition that such contributory liability would only be imposed after finding someone responsible for direct copyright infringement by another party (i.e.: first, the infringing surfer must be found and held liable, and in addition, the platform can also be held liable). However, in the Haaretz v. Roter.net ruling from late 2024, the Tel Aviv District Court expanded the liability of platform owners. In that case, the forum in which surfers published newspaper articles copied from other sources was discussed. The court ruled that the presence of the advertisement itself on the platform also makes the platform liable for the direct infringement (a fact that removed the obstacle arising from the need to oblige the users themselves in order to blame the platform), and that there is justification for imposing direct liability on the platform due to its actions to clearly and actively encourage users to publish infringing advertisements and that the platform provided them with the technological tools to do so in a simple and easy manner. The court also noted the large scope of the infringements that constituted most of the content on the site and also imposed personal liability on the platform operators.
The ruling has broad implications, as it indicates a tendency for courts to impose liability, either directly or indirectly, on Internet platforms in a manner that requires website operators to ensure supervision and prevention of copyright infringements through the platforms in content uploaded by users. A website operator can no longer escape liability under the argument that the content was uploaded by a third party or by a user and must take significant steps, including working closely with legal counsel, to draft website regulations and terms of use and take actions that will enable them to actively and regularly locate and remove infringing content.
Authored by Adi Marcus, Adv.
Published in Legal Channel 432 05.02.2025 Afik & Co. https://he.afiklaw.com/
To read the verdict, Case No. 5734-11-21, Omar Bitar v. Hani Duik
