Case Number

C.A. 723/74

Date Decided

2-24-1977

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This is an appeal from a judgment for the Respondents, the Plaintiffs in the lower court, in a civil action for defamation, based on an article published in the Defendant newspaper. During a period of national recession, the Plaintiff company, a public government corporation, purchased an expensive luxurious car for the use of its Director General, the second Plaintiff-Respondent, who was close to retirement. After considerable public criticism of the purchase, the Plaintiffs announced that the Director General would continue to use the old car he had previously used and that they would put the new car up for sale.

The article published by the Appellants, the Defendants below, charged that the sale was a sham and that the Plaintiffs did not really intend to sell the car. It stated that the Plaintiffs did not make any serious effort to sell the car, that they turned down offers to purchase the car at a reasonable price and that they actually placed impediments in the way of its sale. The article alleged that the Plaintiffs really sought to gain time so as to weather the storm of public protest until the public furor will have passed, after which the car would be returned to the Director General's use.

Having failed to establish their defense that the allegations contained in the article were true (under Israeli law, the burden of proof in this matter rests on the defense), the Defendants sought to defend the article as an expression of opinion in good faith concerning the injured party's conduct in a public function or in connection with a public matter. The lower court rejected this defense as well, on the ground, among others, that the defamatory contents of the article were primarily statements of fact rather than opinions.

In a divided decision, the Supreme Court reversed the lower court's judgment. Justice Shamgar wrote the majority opinion in which he held:

I. Freedom of expression is a fundamental right recognized as such in Israeli law. The Law Forbidding Defamation, 5725-1965, which is intended to protect persons' reputations from being besmirched, should be interpreted and applied in a manner that does not infringe upon or unduly limit the proper exercise of this right.

2. This point is all the more significant when what is at issue concerns the criticism of a public official or of a public body in connection with its official conduct. Aggressive, even strident criticism should be encouraged in such matters, in the public interest. The law's provisions concerning the defense that the defamatory publication was the expression of an opinion concerning a public matter, made in good faith, should not be whittled down by narrow interpretation and application.

3. Just as the defense of truth is not lost when the defamatory matter contains inaccuracies that are minor in nature and not themselves injurious, so too the defense of good faith expression of opinion in a public matter will not be lost even if some of the factual grounds on which the opinion expressed was based turn out to be erroneous.

4. It is not correct to require that the opinion be correct as a condition of this defense, else it would be unnecessary to relie on this defense, which applies even when the defense of truth fails.

5. The author's criticism of the plaintiffs' conduct need not be the only reasonable conclusion that can be drawn from the underlying facts, in order for this defense to prevail. It certainly should not be required that the author's conclusion comport with that which the judge would have concluded in the circumstances. All that is required by the condition of reasonableness is that there should be a logical connection between the facts and the author's conclusion so that he could have concluded as he did in good faith.

Justice Ben-Porat filed a dissenting opinion. She would have denied the appeal on the grounds, among others, that the factual inaccuracies in the article, on which the author based his conclusions, were not incidental and that the article did not separate clearly facts from conclusions. The broad defense allowed for expressions of opinion in public matters, in her opinion, is conditioned upon the author making such a separation clearly, so that the reader can distinguish between them, can discern how the author reached his conclusion and can reach his own independent conclusions in the matter.

Keywords

Constitutional Law -- Freedom of Expression, Torts -- Defamation

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