The new libel bill

This editorial posits that this bill has caused the most rancour yet the bill doesn’t change the law as to the definition of “defamation” or the defenses permitted thereto. I raises the punitive damages ten fold. It also imposes very large damages on the media if it fails to publish a full response to the libel by the victim. The reason the plaintiff does not have to prove what his damages were is because, how does one quantify them. There are three defenses to a charge of defamation: “(1) truth if the matter was of public interest; (2) publications in “good faith”; and (3) fair reports of official information.”according to the Report linked to below (which is fascinating reading). What is not clear to me is who has the burden of proof. Does the victim have to prove that the facts of defamation are not true or does the defendant have to prove it is true as in the UK.

Essentially this amendment increases the consequences on individuals and the media for not tell the truth. The media is screaming.

Remember that when Kadima was in power Ruth Mater was convicted of “insulting a public official”. This may well have been under a different law. Remember the case of Irving v Lipstadt Remember Legal Battles Between Ehrenfeld and Mahfouz, which resulted in the US passing “Libel Tourism” Law. Remember also the great movie, “The Absence of Malice”.

By JPOST EDITORIAL

If passed in 2nd,3rd readings by Knesset, the legislation would seriously intimidate journalists, editors and publishers.

Dozens of concerned journalists gathered at Tel Aviv’s Cinematheque Sunday to protest what they perceive to be an ominously widespread antagonism against the media. Some of the issues discussed included the government’s declining willingness to come to the aid of the financially-strapped Channel 10, the abrupt shutdown of the joint Palestinian- Israeli Kol Hashalom radio station, policy changes at IBA News – including the firing of Keren Neubach from the investigative news program “Mabat Sheni” and attempts to interfere with radio presenter Yaron Dekel’s “Hakol Diburim.”

But an “anti-libel” bill, approved in the Knesset Constitution, Law and Justice Committee last month and brought for a first reading in the Knesset Monday night aroused the most rancor. And rightly so. If passed in second and third readings by the Knesset, the legislation, a collaborative initiative of MK Meir Sheetrit (Kadima) and coalition MK Yariv Levin (Likud) would seriously intimidate journalists, editors and publishers.

The present limit on compensation for libelous reports would be increased six-fold to NIS 300,000. As is the case at present, the plaintiff would not be required to prove that he or she was damaged in order to collect compensation. And media outlets would be required to pay NIS 1.5 million in compensation to citizens whose full reaction – apparently no matter how long that reaction is – was not published as part of the report that was deemed libelous.

The bill comes at a particularly inopportune time as the Israeli press grapples with economic woes resulting in part from the ongoing transition from print to Internet and falling advertising revenues along with a rise in the influence of various business interests over editorial decision-making.

But even in the best of circumstances, amending the 1965 Defamation (Prohibition) Law – strongly influenced by restrictive British law – to further curtail press freedom is a bad idea.

For decades, our courts have struggled to balance American law, which, tends to tolerate a greater degree of press freedom with English law, which tends to prioritize protection of the reputation and privacy of individuals, organizations and corporations as noted by Attorney Todd Harris Fries in an article entitled The Law of Defamation in Israel: A Comparative Study.

For instance, in Haaretz vs. Israel Electric Corporation in 1977, the daily was sued in the Supreme Court by the director of the IEC for publishing an article condemning the company’s director for allowing the IEC to buy him an expensive luxury company car during a recession. The director said that he would sell the car. But having failed to do so, the paper commented that “in fact, the Electric Corporation is not interested in selling the car,” implying that the director was being deceitful. The Supreme Court ruled in favor of Haaretz.

The Supreme Court, basing itself on New York Times vs. Sullivan, a landmark decision issued in 1964 by a US court, accepted Haaretz’s plea of good faith, even though the defaming opinion included injurious, false statements of fact.

The decision stressed that the democratic nature of Israel required a freer press as a check on those who held power, particularly public figures responsible for tax payers’ money.

However, IEC appealed for a further hearing. And the decision was overturned in IEC’s favor. This time, the court cited the English approach. Allowing criticism of public officials “would tend to deter sensitive and honorable men from seeking public positions of trust and responsibility and leave them open to others who have no respect for their reputation.”

The court argued further that over-protection of speech may endanger democracy. In particular, the court noted that the rise of Nazism was facilitated by the propagation of defamatory falsehoods about the Weimar Republic.

Haaretz vs. Israel Electric Corporation demonstrates nicely how our courts struggle to balance an America style championing of uninhibited, robust, and wide-open freedom of speech with an English conservatism that understands the need to protect the privacy and reputation of all individuals, including public figures.

It would be extremely unwise to upset this delicate balance by introducing legislation that would severely intimidate an already embattled news media.