Defamation Defense & Defendant Representation · Legal briefing
Defending Shares, Likes & WhatsApp Allegations
By Adv. Yechiel Rachamim Menahemov & Adv. Assaf ShpigelPublished:
The digital action changes the legal analysis
A social-media claim requires a distinction between the original author, a sharer, a commenter and a group administrator. Identify the publication attributed to each defendant, its exact content, identification and recipients. ‘I only sent it to friends’ is not itself a defence: a closed WhatsApp group may include additional recipients within section 2. Equally, liability cannot be inferred from a technical action without examining its actual effect.
Shaul: a share differs from a like
In LCA 1239/19, Shaul v Nayadli Communications Ltd, decided on 8 January 2020, the Supreme Court held that a Facebook share may constitute publication, whereas a like alone was not publication under the analysis considered. This distinction does not make every sharer liable: the remaining elements and defences still require examination. A written comment accompanying a like may constitute an independent publication. Full Supreme Court judgment — LCA 1239/19
WhatsApp: forwarding, screenshots and context
Facebook’s interface should not be mechanically treated as the legal model for every platform. Examine the forwarded content, recipients, identification and accompanying message. A screenshot may reveal identifiers omitted from the original. Preserve the thread, sending date and available distribution information without creating additional circulation merely to document it, and without treating a group rumour as proof of its truth.
Group administrators: no automatic rule
Shaul concerned sharing and liking; it did not establish blanket immunity or absolute liability for administrators. A claim against an administrator requires examination of involvement in publication or dissemination, relevant control, conduct after notification and the pleaded cause of action. The role alone is insufficient. Review relevant decisions and facts before reaching a conclusion; group policies and recorded notifications may assist the inquiry but do not guarantee exemption.
A sharer must also establish any defence
A familiar source or news-site report does not automatically protect the sharer. Assess truth and public interest under section 14, or statutory circumstances and good faith under sections 15 and 16, as applicable. Accusatory commentary added to a share may change its meaning and enlarge the dispute. Distinguish sincere reliance relevant to mitigation from sufficient evidence establishing a complete defence.
Section 19: mitigation without extinguishing the claim
The court may consider attributed repetition, belief in truth, lack of intention concerning the claimant, and apology, correction or distribution-limiting steps under the statutory conditions. Shaul discussed how some mitigating factors may apply to sharing, including removal of the defendant’s own share. This is a contextual assessment, not a fixed percentage discount. A defence excluding liability must be distinguished from mitigation of the amount awarded.
Removal and correction: preserve evidence first
Removal may limit circulation but does not necessarily extinguish liability for material already received. Preserve original content and reach information before changing it. An apology or clarification needs careful drafting to avoid additional publication or an unintended admission. Neither refusal to delete nor removal establishes the legal conclusion alone; the decision depends on the claim, evidence and relief sought.
Documents for the defence consultation
Bring the claim or demand, complete links and screenshots, a record of authors and sharers, reach information, corrections and removal correspondence. An administrator should also provide policies and relevant handling records. Counsel can assess publication, defences, interim relief and damages together; likes, shares and forwards are neither identical actions nor invariably protected.