Case Number

CFH 9/77

Date Decided

8-27-1978

Decision Type

Appellate

Document Type

Full Opinion

Abstract

This is a petition for rehearing of a civil action for defamation. A majority of the panel of five Justices of the Supreme Court reinstated the District Court's judgment in favor of the Plaintiffs. The majority of the Court held -

1. The constitutional right to free speech does not enjoy a status that is superior to the citizen's right to the protection of his good name, rejecting the contrary position taken by the United States Supreme Court in New York Times v. Sullivan. The task is to find the proper accomodation between these interests, when they conflict with each other, rather than to subordinate the one to the other.

2. The correct balance between these conflicting interests is governed in Israeli law by the detailed provisions of the Law Forbidding Defamation, 5725-1965, which should be interpreted according to the plain meaning of its words in their ordinary sense, without any particular tendency to narrow or expand the scope of one interest or the other.

3. For the publisher of defamatory material to enjoy the defense of section 15(4) of the said Law, his publication must distinguish clearly between facts and opinions, so that the ordinary reader can tell what are the facts on which the author bases his opinion and can then judge for himself whether the author's opinion is well taken. If the author mixes facts and opinion in his article, he loses the special protection given by the Law to the expression of opinion on matters of public concern. The Defendants in this case did not separate fact from opinion as required.

Justice Shamgar's dissent acknowledged that the United States Supreme Court decision in New York Times v. Sullivan could not, of course, be binding precedent in Israel. But, he asserted, that decision expresses certain values which can be incorporated into Israeli law in general, even if not in the details of their application. The issue is whether the Law should be interpreted strictly, to give limited scope to the value of free speech that criticizes public officials, or broadly and liberally, to encourage the public to publish its complaints about improper official conduct, which often is the only way that such conduct can be corrected.

Keywords

Constitutional Law -- Freedom of Expression, International Law -- Relevance of foreign law in judicial decisions, Torts -- Defamation

Download

Share

COinS