Israel should be legally protected from defamation

By Ted Belman

Israel is, and has been for decades, subject to a campaign of defamation and deligitamation which greatly harms her. Furthermore, she is subject to a boycott, divestment and sanctions movement that has the potential to cause her great economic damage.

Surely, there ought to be a law that protects Israel from such campaigns .

Defamation is defined as:

Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

In 2011, the Guardian reported that:

Bahrain is to sue the Independent newspaper, accusing it of “orchestrating a defamatory and premeditated media campaign” against the Gulf state and neighbouring Saudi Arabia. It singled out for criticism the newspaper’s award-winning Middle East correspondent, Robert Fisk.

In a subsequent article, The Guardian reported:

If the Bahraini government succeeds in bring a libel action against the Independent to court, it would be going against the well-established principle that governments cannot sue for libel. This principal was laid down by  the House of Lords in the case of Derbyshire county council v Times newspapers in 1993.

Dismissing the appeal, the Lords said:

“It was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation.”

In this Guardian article, David Banks, the co-author of McNae’s Essential Law for Journalists and a media law consultant raised the possibility of an alternate route to get redress.

So if the Bahraini government cannot sue, one or a number of its ministers could do so. That would be a more straightforward action and one to which, presumably, the Independent would mount a stout defence. It may well have the evidence to prove that its statements are true, thus allowing a defence of justification.

Furthermore businesses regularly sue for defamation because their economic interests are often tied to their reputations.

Most jurisdictions have laws which set parameters for lawsuits regarding defamation. These parameters define who can sue, whom they can sue and what must be proved to succeed.

Each state in the USA has different laws regarding defamation; however, generally corporate defamation suits must meet three requirements. An actionable statement must be untrue, it must be made in writing or verbally to a third person, and it must cause the corporation damage.

So how much of a stretch would it be for Israel to be able to sue for defamation.

According to common law, a government does not have the right to sue for defamation nor does a people. But Israel could pass a law allowing the government to sue for defamation requiring all NGO’s or the Palestinian Authority and others to prove each and every false statement they utter. Such a law need not require Israel to prove economic damage.

Similarly each country in the EU or each state in the USA could also pass laws which give Israel a cause of action against defamers.

The Times of Israel reports on the Global Forum for Combating Anti-Semitism which was held in Jerusalem this week.

Among the recommendations for combating anti-Semitism: adopt a formal definition of antisemitism applicable throughout the European Union and its member states under law including reference to attacks on the legitimacy of the State of Israel and its right to exist, and Holocaust denial as forms of antisemitism; apply agreed standardized mechanisms for monitoring and recording incidents of antisemitism in all EU countries; take urgent and sustained steps to assure the physical security of Jewish communities, their members and institutions; and direct education ministries to increase teacher training and adopt pedagogic curricula against antisemitism, and towards religious tolerance and Holocaust remembrance.

Thus “defamation” could include “attacks on the legitimacy of the State of Israel and its right to exist”.

Among the recommendations to Internet providers: to adopt a clear industry standard for defining hate speech and antisemitism; adopt global terms of service prohibiting the posting of such materials; provide an effective complaint process and maintain a timely and professional response capacity; and ban Holocaust denial sites from the Web as a form of egregious hate speech.

Surely, if you can “adopt global terms of service prohibiting the posting of such materials” you can also criminalize the publication or utterances of such antisemitic material