Killing Israeli democracy slowly

Moshe Gavish

New libel legislation aimed at gagging the press is the latest in a string of measures undermining our freedoms.

1. As early as 1734, in the case of John Peter Zenger, the New York Supreme Court held that truth was an absolute defense against charges of libel. The first amendment to the US constitution of 1791 provides for, among other things, freedom of speech and freedom of the press, while later court decisions make it clear that public officials can win a slander case only if the publisher of the alleged slander had criminal intent or knew that the information was false.

In Israel, some 220 years after the Zenger ruling, the Supreme Court ruled in "The People's Voice" case that freedom of expression was a fundamental right in Israeli law, to be set aside only when there was near certainty of substantial and serious harm to some other protected interest.

In many cases in which someone has considered themselves injured by a report, he or she has demanded, and sometimes received, an apology from the publication concerned. In other cases, people have resorted to the courts under the Libel Law.

This law protects the dignity and reputation of a person in that it stipulates that a report can represent a civil wrong that gives rise to a claim for damages, and sometimes even a criminal offence carrying a prison sentence.

Libel suits are filed in Israel at reasonable levels. Some are upheld, some are dismissed, and some are settled out of court.

The balanced case law, and the generally responsible approach of the press and media, have, over time, led to a fair balance between freedom of speech and the public's right to know on the one hand, and protection of privacy and a person's right to preserve his or her reputation on the other.

2. This balance is about to be upset by a joint effort by members of Knesset from Likud, Kadima, and parties of the right, who are promoting an amendment to the Libel Law, that has already been approved by the Knesset Constitution, Law, and Justice Committee for first reading. Under the bill, the amount of damages payable in a libel suit without proof of damage will rise from NIS 50,000 to NIS 300,000-500,000, and, in certain circumstances, to NIS 1.5 million.

The aim of the bill is clear: to deter the press and media from publishing embarrassing investigative reports. It could be that the timing is not unconnected to a series of investigations recently carried out concerning the prime minister and other senior politicians and wealthy people. There is no empirical evidence to suggest that false reports are a staple of the media, or that existing legislation is insufficient to ensure that the information to which the public is exposed is generally accurate.

The press and media, which as it is publish few investigations, for fear of friction with politicians and tycoons, will now do even less, to the delight of those who don't care to see their deeds exposed. In Knesset discussions, the bill has been opposed not only by representatives of the press, but also by the Ministry of Justice, which made clear that the result of the bill would be to deny the public information in which it had an interest, or possibly the collapse of newspapers or other news channels.

One of the problematic sections of the bill is the requirement to publish a full, unedited response, so that by failing to provide a response, the subject of a report will be able to prevent its publication. The bill sets no restriction on the length of the response that must be published, and the stipulation that it must be published unedited is liable to expose the publisher to a lawsuit from someone whom the response itself libels.

3. While the bill aiming to restrict reporting by the press and media is about to go through the legislative process, a counterbalancing bill "to prevent abuse of legal process" stands a far lower chance of being passed. This bill, sponsored by Shelly Yachimovich, Uri Orbach, and Nitzan Horowitz, is along the lines of anti-SLAPP (strategic lawsuit against public participation) legislation in the US. The conclusion was reached there that many lawsuits are filed solely to wear down the publisher and to deny information to the public, and so the possibility was allowed of dismissing such litigation out of hand, without a long, expensive court hearing.

A trial will take place only if the subject of the publication can prove that the publisher intended to cause him or her harm, and that the lawsuit stands a chance of succeeding.

Under the Israeli bill, the court will be able to strike out a lawsuit filed against someone who reports on a matter that is a subject of public discussion, or of a legislative, administrative, or judicial proceeding. The court will accede to the petition to strike out the lawsuit if it is liable to harm democratic process, if its chances of success are low, and if the public interest in the publication outweighs the public interest in the litigation going ahead.

4. In many cases, publication in the press and media is the only guarantee that public figures and wealthy magnates will adhere to norms of behavior. Even today, the media face many problems in exposing and publishing information, because all the important outlets, printed and electronic, are controlled by the wealthy few or by politicians, directly or indirectly.

Passing a law that means a real economic threat to publishers will strike a mortal blow at the public's right to know. This is a further link in a chain of legislation in recent years that is changing the face of the State of Israel and undermining the democratic principles on which it was founded.

The writer is a lawyer and a former Income Tax Commissioner.

Published by Globes [online], Israel business news - - on October 31, 2011

© Copyright of Globes Publisher Itonut (1983) Ltd. 2011

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