Case Number

CFH 2121/12

Date Decided

9-18-2014

Decision Type

Appellate

Document Type

Summary

Abstract

The translation of this case encompasses portions of President Grunis' majority opinion, Justice Hendel's concurrence, and Justice Rubinstein's dissent.

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: On Nov. 22, 2004, the television program “Uvda [“Fact”] with Ilana Dayan” (hereinafter: Uvda) aired an investigative report (hereinafter: the report) prepared and delivered by Dr. Ilana Dayan-Orbach, Respondent 1 (hereinafter: Dayan). The report was preceded by “promos” by Respondent 2, Telad Studios Jerusalem Ltd., which was the Channel 2 concessionaire at the time (hereinafter: Telad). The report and the promos concerned an incident that occurred in an IDF installation in the Gaza Strip in 2004. On Oct. 5, 2004, a suspicious entity was spotted near the installation, which was at a high state of alert. After the fact, it turned out that it was a thirteen-year-old girl named Iman Al-Hams, a resident of Rafah (hereinafter: the deceased). As a result of shots fired in the course of the event, the deceased was killed.

The report addressed the event, which was termed “the kill confirmation affair”. It described the unfolding of the event from the moment the suspicious entity was identified; the gunfire in her direction; her flight; the assault in her direction by the force led by the Petitioner to “confirm the kill”; the Petitioner’s fire at her; and, ultimately, the removal of the deceased’s corpse from the area. The report made use of recordings from the installation’s communications network, video clips recorded by the installation’s security towers at the time of the incident, and testimony of soldiers serving in the company. Illustrative pictures and videos clips showing company life, recorded by the soldiers in various contexts, were also included.

The report also addressed developments and investigations that followed the incident. It criticized the army’s investigation of the incident, which found that the Petitioner had acted appropriately. It was also reported that an information was filed against the Petitioner in the military court on the day the report was broadcasted.

On July 5, 2005, in an end-of-season review of Uvda, a four-minute summary of the report was broadcasted. It was accompanied by remarks by Dayan at the beginning and the end of the report, in which, inter alia, she presented an update of the developments since the original broadcast (hereinafter: the review report).

On Nov. 15, 2005, the Military Court acquitted the Petitioner on all counts. The Petitioner then filed suit against the Respondents in the District Court, under the Defamation Law, 5765-1965 (hereinafter: the Law, or the Defamation Law).

The Jerusalem District Court found in favor of the Petitioner, in part, holding that the report constituted defamation of the Petitioner, who was presented in a manner that affected his good name. It was held that the Respondents could not claim the plea-of-truth defense under sec. 14 of the Law, nor the plea-of-good-faith defense under sec. 15 of the Law. Therefore, they were ordered to pay damages to the Petitioner in the amount of NIS 300,000, and the court ordered Uvda to correct the impression that the report created. The Respondents were ordered to report the fact of the Petitioner’s acquittal, as well as the main points of the Military Court’s judgment, to explain that the report had conveyed a mistaken impression in regard to the Petitioner and in regard to the incident, and to report the outcome in the District Court. All of the parties appealed the decision.

On Feb. 8, 2012, judgment was handed down on the appeals (hereinafter – the Appeals Decision or the Decision). All of the justices of the panel agreed that the report that was broadcasted constituted defamation of the Petitioner. However, they were of the opinion that liability should not be imputed to Dayan, inasmuch as she enjoyed a defense under the Law. The justices were divided as to which defense applied. Deputy President Rivlin and Justice Amit were of the opinion that the report met the conditions of the plea-of-truth defense under sec. 14 of the Law. Justice Vogelman was of the opinion that Dayan could claim the good-faith defense under sec. 15(2) of the Law, in circumstances in which the relations between the publisher and the audience to which the publication was addressed “imposed on him a legal, moral or social duty to make the publication”.

The result was that Dayan’s appeal was granted. As opposed to that, the Court held that the defenses under the Law did not apply to the program’s promos. That being the case, the Court did not find grounds for intervening in regard to Telad’s liability. As a result, the Court decreased the damages awarded against Telad to NIS 100,000, and rescinded the obligation to publish a correction. Telad’s appeal was granted in part. The Petitioner’s appeal in regard to the damages awarded to him was denied.

Following the Appeals Decision, the Petitioner submitted a petition for a Further Hearing, which was granted.

In the Further Hearing, an expanded panel of nine justices of the Supreme Court, ruled:

President A. Grunis, writing the main opinion of the Court (President (Emerita) E. Arbel, and Justices S. Joubran, Y. Danziger, N. Hendel, U. Vogelman and I. Amit concurring, Justice E. Runenstein dissenting), held that in the framework of the truth-of-publication defense the publisher must prove that the published matter was true. The fact that legal proceedings were ongoing in the matter does not itself lead to the conclusion that the condition was not met. In the framework of the duty to publish, it is proper to recognize a duty to publish matters of journalistic interest that are of significant public interest, but only if the publication is made in good faith and in keeping with strict criteria of responsible journalism. No general, comprehensive duty to publish a correction or update should be imposed even when not requested by the injured party. President Grunis was therefore of the opinion that the report and the review report enjoyed the good-faith defense, but that the defense did not apply to the promos. He therefore proposed that there should be no change in the operative outcome of the Appeals Decision.

Justice E. Rubinstein (dissenting) noted that as Israel is a Jewish and democratic state, Jewish law holds an important place among the sources of Israeli law. In view of our increasing exposure to various kinds of electronic and virtual communication, including television, radio, and internet in addition to the print media, it is an appropriate time to study the approach of Jewish law and halakha, which were among the sources of the Defamation Law, to defamation.

Jewish law is meticulous in regard to a person’s dignity – human dignity, and respect for a person in the plain sense – including in regard to one’s reputation, and thus its view of disparagement is more extreme than that of the Defamation Law. In this regard, Justice Rubinstein reviewed the Jewish law and halakhic approach to defamation (lashon hara), with special regard for the writings of the Hafetz Hayim (Rabbi Yisrael Meir Hakohen (Kagan) of Radun, 1839-1933). Justice Rubinstein noted that it is difficult to completely free ourselves of lashon hara in a world like ours in which the possibilities for expressing lashon hara are so great. In his opinion, contending with this is the challenge before the Court in this case as in other defamation cases, and the question is whether or not we will contribute to creating a more decent, moderate society. He further noted that despite the importance that Jewish law attributes to freedom of expression, there is no denying that the default position – when lashon hara is concerned – is refraining from publication, except in exceptional cases in which the lashon hara is intended to be constructive.

Justice Rubinstein noted that the majority held that that “the phrase ‘moral or social duty’ that appears in sec. 15(2) of the Law is an ‘open canvas’ to which the Court must give meaning in accordance with the proper balance among the conflicting rights, values and considerations”, and that the Ha’aretz rule “no longer reflects the proper balance between freedom of expression and freedom of the press, and the right to dignity, reputation and privacy”, and that the proper solution “is protection of good-faith publication by the media that is of a significant public interest, when it is a publication that meets the strict standards of responsible journalism”. Justice Rubinstein explained that this holding was based primarily upon a change in the conception “in regard to the status of freedom of expression in Israeli law, which has been recognized as being of constitutional status”, and the change that has occurred in England and the Common Law countries in regard to the application of the “obligation to publish” in regard to factual publications in the media. Justice Rubinstein was further of the opinion in light of the exalted status of the right to dignity, which was enshrined in Basic Law: Human Dignity and Liberty, that even the changes and vicissitudes that have occurred in the world do not justify a change of the Ha’aretz rule. In striking a balance between a person’s right to a good name and freedom of expression, the latter should not be preferred a priori.

Justice N. Hendel (concurring) disagreed with the approach of Justice Rubinstein in regard to the relationship between the right to one’s good name and freedom of expression, arguing that despite the importance of the two values, freedom of expression is principal.

In regard to Jewish law, Justice Hendel emphasized a particular aspect of the Jewish law approach: the application of the laws of lashon hara to the press in a democratic society, noting that we are concerned with the halakhic limits upon the free press in a democratic society. This is not a question concerning the individual, but the public. In fact, not only the public, but the state. And not just the state, but the State of Israel. Halakha recognized the status of the public as a factor in various connections. This would appear to be particularly true when halakhic scholars address the challenges presented by the State of Israel for the law applicable to the public. Justice Hendel noted that it was not his intention to innovate in this decision, but rather to ask whether it may be possible to consider the issue in broader terms from the perspective of Jewish law. In the changing technological and social reality in which the press achieves growing influence, and bearing in mind the potential advantages of this tool, its importance and contribution to democratic life, and its broad readership, on the one hand, and the unquestionable prohibition upon lashon hara, on the other, what is the proper halakhic balance?

In concluding, Justice Hendel expressed the view that that the approach of a good-faith defense for responsible journalism in matters of significant public interest does not contradict the principles of Jewish law.

Keywords

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

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