Arrur Makka Re’eyhu B’Galui – The “Gift” of Sharing

We all know that the Internet can be a very dangerous place. Fortunate is the Jew who has no need for it and can stay far away. This post is for the rest of us.

In past writings, I have referred to the Internet as one of many Parah Adumahs. Parah Adumah is a euphemism for something that can be both very helpful and very harmful. ימין מקרב ושמאל דוחה. In theory, the Internet is a very useful, if not indispensable, tool. I think we can itemize the functions of the Internet into four basic “elements” (i.e., categories):

·         News and Information – Online newspapers and magazines, weather, online encyclopedias and dictionaries, translation utilities, currency exchange, etc.

·         Communication - Email, SMS, Chat, Messenger, Twitter, VoIP, Skype, etc.

·         Online Marketing and Commerce – Online retailers (eBay, Amazon), travel services, banks and financial services, advertising and fund raising, etc.

·         Entertainment and Gaming – Lots of worthless, time-wasting (and naughty) stuff.

Basically, the fourth category is where the major problems are. If not for this group, we wouldn't need all of those filters and Rabbinic sanctions. The other sections are very useful when we need them.

You may have noticed that I made no mention of social media. I don’t see social media as a fundamental element but rather as a compound comprising the above elements. Social media is merely a portal by which to access one or more of the above functions.

Thus, YouTube would be seen as a cross between News and Information – since many of the clips are how-tos, newscasts, interviews and documentaries – and Entertainment. Serious blogs and podcasts would go primarily into the News and Information category, but some may be commercial (Online Marketing and Commerce) or they could be dedicated to humor or sleaze (Entertainment) and, if there is interactive commenting, then some Communication is involved, as well. Chat forums are primarily Communication but the theme of the forum links it to at least one of the other elemental categories.

And, at last, we arrive at the social networking sites which are totally dominated by Facebook. Facebook has it all.

It has always been possible for anybody to upload whatever they want onto the Internet, but before sites like My Space or Facebook and Twitter came around, one needed to be computer literate to some extent. Even to manage a blog, and certainly a podcast, one needs to know what they are doing. So blogs and podcasts are used by people who have some level of intelligence and with it they may also have some common sense and, with that, comes the capacity to determine what should and shouldn’t be written in public.

Not so Facebook, Twitter, chat rooms and forums, and the like. These are designed expressly for the המון עם – the “man in the street” – אשר לא ידע בין ימינו לשמאלו ובהמה רבה. One need not have more than a third-grade education and a kindergarten mentality to post on these sites.

In some previous posts, I mentioned that posting opinionated material onto the internet in any forum can be risky business. This is both from a Halachic perspective and from a legal one. In terms of Halacha, in today’s world we live in an honor system. Even if it counts as bona fide Lashon Hara or, even worse, Motzi shem rah, there is not much anybody can do to you…in this world.

From a personal standpoint, I must admit that I put a lot of weight on the well-known Chazal that says (Erachin 16a): כל מילתא דמיתאמרי באפי תלתא לית בה משום לישנא בישא. Any thing that was said in the presence of three people, there is no longer an issue of lashon hara [to relay this]. And why?

The gemara explains that this is because your friend has a friend and his friend has a friend. Word gets around.

Social networking!

Hence, I try as best I can only to discuss material that is already exposed on the same forum that I use (i.e., the Internet). If there is something that I happen to know but is not already public knowledge, I will not reveal it unless there is an important reason to do so.

All this is the halachic perspective. But there is also a secular legal world with secular courts that can call one to task for posting defamatory and/or damaging material. As I wrote in this post, it is quite advisable to know the rules. The interesting thing is that the rules are constantly changing.

Over the past decade, there have been copious news articles discussing an upsurge of defamation suits that are due to social media. Facebook has been sued all over the world zillions of times. Courts are being overwhelmed with defamation cases and many lawyers are taking it on as a specialty. It has become an industry unto itself.

As of late, it has only gotten worse. This is because most of the recent rulings have expanded the scope of “actionable” defamation scenarios as opposed to reducing it. The more types of communication that can be considered legally “actionable”, the more legal action there will be. This will certainly keep the courts and many lawyers very, very busy.

It appears that many courts in the westernized world do not want to concur with the gemara in Erachin that states that once three or more people already know the sordid facts, there can no longer be claims of defamation. It looks like the opposite is true. The more people who “spread the wealth” (or sling the mud), the more who are liable to be sued (and thus forfeit their “wealth”).

Noam Schreiber, a Jerusalem based attorney who specializes in defamation cases, maintains a blog that “lays down the law”. He calls his blog Ohev Yamim. Recent posts of his have covered a number of methods of disseminating defamatory material.

The first question is, if somebody merely clicks a “Like” button on a defamatory post, would this make the user who “liked’ an accessory to the defamation?

On this question, the Israeli court ruled that this is not sufficient to claim defamation. The basic reasoning is that “Liking” a post does not spread the defamation so the one who clicked cannot be seen as a “distributor” (and he is certainly not the “publisher”).

But what if you “share” a defamatory post on to your page that was written by somebody else and originally posted elsewhere?

A ruling issued by the Israel Supreme Court on January 8, 2020 upheld a district court ruling that the one who “shares” is considered a “distributor” of defamatory material and can be held liable for it as if he is the “publisher”. This is despite the fact that the material is already on display somewhere else in the Internet. Apparently, the court did not acknowledge the gemara in Erachin 16a.

Uh-oh!

Now, how about this: If Dave is running a Facebook site (or a blog or something similar) and he doesn’t write anything that is by itself defamatory. But now Sol comes and writes in the comments section on Dave's page something that is clearly defamatory, can Dave be sued for hosting the material? Can he be called a “publisher” and/or “distributor”?

This question has been adjudicated in a number of places throughout the world. Both in Canada and in, of all places, Australia, there have been recent high-profile rulings that assess liability to the host of the site. Until very recently, there had not been a documented ruling here in Israel.

This may have changed as, on February 7, 2020, the Petach Tikva Magistrate Court ruled that a majority shareholder of a company was liable for defamatory comments that were posted by other people on the company’s Facebook page. Though it’s not clear whether he personally managed the Facebook page, since he had the authority to take down the material and he was named a defendant in the suit, the court found him liable.

This case could yet be appealed but it is a current precedent. The implication from Mr. Schreiber is that there are other cases of this “third party” complaint currently being litigated in Israeli courts.

All told, with the Corona virus going around, we learn that “sharing” is not always a good thing. 

The word “gift” is a funny word. In English it means “a present”. This is something beneficial. But in German and Yiddish it means “poison”. This is something quite harmful. When you “share” on Facebook or on any Internet site that is yours, make sure you are sharing a gift (English) and not a gift (Yiddish).

But, even more, if you run an opinionated blog like I do or a chat forum or a Facebook page dedicated to tracking the status or activities of other folks, and your blog/forum/Facebook page is open to comments from outside people, it is not enough to make sure that what you write yourself is done in “good faith”. You must make sure that what other people post on your site is strictly Kosher. Because you are responsible for it. Especially if it looks like you inspired it and agree with it.

Maybe I should thank G-d that hardly anybody comments on my blog site instead of complaining about it. I have seen quite few well meaning blogs and Facebook pages and not to mention some malicious ones that are lawsuits waiting to happen.

Most of the time these comments are not written by one's “enemies”. They are written by one's friends. You know what they say: Keep your enemies close and your friends closer.

The ogmas nefesh (grief) that you save may be your own!