The Legal Landscape of Platform Liability in Israel
In recent years, digital platforms operating in Israel have faced increasing legal challenges regarding their liability for content posted by users. From social media networks to e-commerce marketplaces, the central question remains: when does a platform bear legal responsibility for content created by others?
Israeli law is based on principles developed through case law alongside specific legislation in certain areas. Unlike other countries that have developed comprehensive legislative frameworks such as the European DSA or Section 230 in the United States, Israel relies primarily on private law principles and judicial precedent.
The current legal framework is based on a combination of the Tort Ordinance (New Version), 1968, the Prohibition of Defamation Law, 1965, and the Copyright Act, 2007. Each of these laws addresses different aspects of content published on digital platforms.
The Principle of Secondary Liability
The Supreme Court has established that platforms may be considered "facilitators" or "contributors" to the publication of harmful content when they are negligent in removing it after being notified. This principle, developed primarily in the context of defamation, creates a balance between freedom of expression and protection of victims' rights.
Technological innovation often outpaces legal development, and platforms must navigate between evolving legal requirements and the need to maintain an open and creative digital environment.
Platform Liability in Defamation Cases
Defamation constitutes one of the primary sources of lawsuits against digital platforms in Israel. The Prohibition of Defamation Law, 1965, applies to content published on the internet, and courts have developed a detailed approach to platform operator liability.
The Knowledge and Negligence Test
Israeli case law has established that a platform will be liable for defamation published by its users only if two cumulative conditions are met: first, the platform knew or should have known about the existence of the harmful content. Second, the platform acted negligently by failing to remove the content within a reasonable time.
The reasonable time test varies according to the specific circumstances of each case. Courts will examine factors such as the severity of the harm, the scope of distribution of the harmful content, and the platform's technical ability to identify and remove content.
Notice and Takedown Procedures
Platforms develop "Notice and Takedown" mechanisms to protect themselves from liability. These mechanisms allow those who claim to have been harmed by certain content to file a complaint with the platform and demand content removal.
- Receiving a detailed complaint including identification of the harmful content
- Initial review of the claims
- Temporary removal of content in clear cases
- Providing the original poster with an opportunity to file a reasoned objection
- Making a final decision based on a more thorough review
It's important to note that the platform is not required to serve as a judge in the dispute, but must exercise a reasonable standard of care in reviewing complaints and making content removal decisions.
Copyright and the Safe Harbor Principle
In the field of copyright, Israel has adopted principles similar to those existing in American and European law. The Copyright Act, 2007, establishes special provisions regarding liability of internet service providers and digital platforms.
Israeli Safe Harbor Protection
The law provides protection for platforms that function as "service providers" under certain conditions. This protection is essentially similar to the American Safe Harbor principle and the European E-Commerce Directive framework.
To benefit from protection, a platform must meet the following criteria:
- Lack of actual knowledge - The platform did not know about the copyright infringement and was not aware of facts or circumstances from which the infringing activity is apparent
- Absence of financial control - The platform does not receive direct financial benefit from the infringing activity
- Expeditious response to notices - The platform removes infringing content or blocks access to it immediately upon receiving notice of infringement
- Implementation of repeat infringer policy - The platform operates a policy of terminating users who repeatedly infringe copyrights
Israeli DMCA-Style Procedure
Although Israel has not adopted the American DMCA law, Israeli courts recognize similar procedures. A copyright owner can submit a takedown notice including:
- Precise identification of the copyrighted work that was infringed
- Location of the infringing content on the platform
- Good faith statement that the use is not authorized
- Contact details and signature of the rights holder
The original poster is entitled to file a counter-notice if they believe the content was removed by mistake or that they are making fair use of the work.
Content Monitoring and Moderation Obligations
Unlike some European countries, Israeli law does not impose a general obligation on platforms to actively monitor content published on them. However, platforms do bear certain obligations arising from general law and case law.
The Duty to Act Following Notice
Once a platform receives a reasoned notice about harmful content, it has a legal obligation to examine the notice and act accordingly. The level of review required depends on the complexity of the case and the clarity of the claims.
For content whose harm is clear and unambiguous (such as publishing personal documents without permission or intimate images), the platform is expected to remove the content immediately. In more complex cases, the platform may conduct a more thorough review or request additional details from the complainant.
Prevention of Illegal Content Distribution
Platforms are required to take reasonable measures to prevent distribution of content whose publication is absolutely prohibited by law, such as:
- Pornographic content involving minors
- Content inciting violence or terrorist activity
- Content that blatantly infringes copyrights
- Content constituting fraud or commercial deception
Reasonable measures may include using technological tools for content identification (such as PhotoDNA or Content ID), implementing accessible user reporting mechanisms, and training content moderation teams.
Transparency and Fair Processes
Although not explicitly required by law, courts expect platforms to act with transparency and fairness toward their users. This includes providing explanations to users about content removal decisions, the ability to appeal decisions, and publishing statistical data on content moderation activity.
Privacy and Data Protection Aspects of Content Moderation
Content moderation on digital platforms raises complex questions in the field of privacy protection. The Privacy Protection Law, 1981, as amended by Amendment 13, imposes restrictions on a platform's ability to process personal information of its users for content moderation purposes.
Processing Information for Moderation Purposes
Platforms may process personal information for content moderation purposes based on several legal bases:
- Contract performance - When content moderation is required to fulfill terms of service the user agreed to
- Legitimate interest - Protecting the platform's rights and the rights of other users
- Legal obligation - When law requires the platform to remove certain content
- Public interest - In cases of preventing serious public harm
Data Subject Rights
Users whose content has been removed are entitled to exercise certain privacy protection rights, including the right of access to information about processing of their data, the right to correct inaccurate information, and the right to erasure in certain cases.
Platforms must balance the obligation to respect privacy rights with the need to maintain records of content moderation decisions in case of future legal proceedings.
Information Sharing with Authorities
In certain cases, platforms may be required to share information about content or users with law enforcement authorities. The new amendment to the Privacy Protection Law clarifies that disclosure of information to lawful authorities has a legal basis, but the platform must ensure the request is legal and proportionate.
International Trends and Their Impact on Israeli Law
International regulation of digital platforms is developing rapidly, and these trends influence Israeli law and case law. Three main trends stand out in this context.
The European DSA
The European Digital Services Act (DSA) that came into force in 2024 creates a comprehensive framework for platform regulation. The law distinguishes between different types of platforms and imposes graduated obligations according to their size and influence.
The main features of DSA relevant to Israeli platforms operating in Europe include:
- Obligation to establish accessible reporting and complaint mechanisms
- Transparency requirement in content moderation decisions
- External auditing for large platforms
- Risk assessment and mitigation
- Prohibition on targeted advertising to minors
The American Government Approach
In the United States, the debate over the future of Section 230 continues. This section provided platforms with almost absolute immunity from liability for user content, but in recent years criticism has grown from various sides of the political spectrum.
Individual states in the US are attempting to enact laws limiting platforms' ability to censor content, while other states demand greater transparency in content moderation. These trends have not yet crystallized, but they may influence the Israeli approach.
Impact on Israeli Law
Israel tends to adopt principles from European and American law, adapting them to local conditions. Several trends may influence Israeli regulation in the future:
- Transparency requirements - Increasing pressure on platforms to publish data on moderation decisions
- Enhanced protection for minors - Restrictions on data collection and targeted advertising
- Liability for bot content and automated tools - Expanding liability to content generated by artificial intelligence
- Due diligence obligations - Requiring platforms to take proactive measures to prevent harm
Platforms operating in Israel should prepare for an evolving regulatory reality and ensure they meet the highest standards even today.
Practical Compliance Framework for Digital Platforms
Developing an effective compliance framework for user content liability requires a comprehensive approach including legal, technical, and operational aspects. The following framework provides a practical guide for platforms seeking to minimize legal risks while maintaining quality user experience.
Legal Framework Components
- Terms of Service Design - Terms of service must be clear, detailed, and enforceable. They must precisely define what content is prohibited, what the processes are for dealing with violations, and what possible sanctions exist.
- Coordinated Privacy Policy - The policy should explain how the platform uses personal information for content moderation purposes, including use of automated tools and data retention periods.
- Notice and Takedown Procedures - Clear procedures must be established for receiving complaints, reviewing them, and making decisions. Procedures should include response times, update requirements for complainants, and appeal mechanisms.
- Documentation and Training - All decisions should be documented in a way that enables defense in case of litigation. Service teams need basic legal training.
Recommended Technological Measures
- Automated Content Detection Systems - Using tools like PhotoDNA for identifying illegal images or Content ID for identifying copyright infringements
- Artificial Intelligence for Text Analysis - Tools for identifying hate speech, threats, and spam
- Crowdsourcing Systems - Ability for users to report problematic content easily and efficiently
- Automated Decision Management Systems - Tracking every decision, who made it, and what was the basis for it
Success Metrics and Self-Audit
Platforms should establish metrics for measuring content moderation effectiveness and conduct periodic self-audits:
- Average response times to complaints by type
- Rate of successful appeals on removal decisions
- Number of legal claims and their outcomes
- User feedback on content moderation processes
- Operational costs of content moderation relative to platform size
Preparing for the Regulatory Future
Given international trends, smart platforms will prepare in advance for stricter regulatory requirements. This includes establishing infrastructure for transparent reporting, developing risk assessment capabilities, and preparing to be accountable to regulators for content moderation decisions.
Investment in a comprehensive compliance framework is not just legal protection - it also creates competitive advantage by building trust with users and business partners, and ensures long-term sustainability of the platform in an evolving regulatory environment.
The information contained in this article is general in nature and does not constitute legal advice. For advice tailored to the specific circumstances of your company, we invite you to contact our firm.
