Defamation

The Supreme Court

 

CFH 2121/12

 

 

Petitioner:                                  Anonymous

 

                                                            v.

 

Respondents:                          1.  Dr. Ilana Dayan Orbach

                                                2.  Telad Studios Jerusalem Ltd.

 

 

Further Hearing on the judgment of the Supreme Court of Feb. 8, 2012, in CA 751/10, CA 1236/10, and CA 1237/10 (Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit).

 

Before:  President A. Grunis, Deputy President M. Naor, Justice (Emerita) E. Arbel, Justice E. Rubinstein, Justice S. Soubran, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice Y. Amit

 

Judgment

 

President A. Grunis:

 

1.         The underlying tension of defamation law is expressed in full force in this Further Hearing before the Court. On one side stand the dignity and good name of the person harmed by a publication, and on the other side stand freedom of speech and freedom of the press, with all their significance for the individual journalist and the public at large. The legal questions raised in this proceeding go beyond the borders of the particular case that engendered them. Inter alia, we must address questions concerning the nature of “truth” in the legal sphere, the role and duties of the press in a democratic society, and striking a proper balance among the rights and interests concerned in the specific context before us. We will address all of these in this Further Hearing.

 

Factual Background and History of the Proceedings

2.         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. The details of the incident were addressed at length in the prior proceedings, and in additional legal proceedings, and certain aspects continue to be disputed. Therefore, I will suffice with a very brief description of the matter, based upon the findings of the courts that addressed these proceedings. 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 girl named Iman Al-Hams, a resident of Rafah, who was thirteen years and ten months old (hereinafter: the deceased). There was weapons fire from the installation, the alarm was sounded, and the public address system was turned on. The deceased threw down her bag, fled, and took cover behind a sand berm. The commander of the company manning the installation at the time – the Petitioner – was alerted, and he ran toward the entity. It should be noted that at the time of the incident, shots were fired from the vicinity of Rafah in the direction of the Petitioner and his soldiers. The Petitioner fired two shots in the direction of the deceased, and retreated. He then retraced his steps, and fired a burst toward the area to the east of where she lie. As a result of the shots fired in the course of the event, the deceased was killed.

3.         The report, which was some 18 minutes long, addressed the said event, which was termed “the kill confirmation affair”. The report was described in detail in the prior proceedings, and I will, therefore, only summarize its main points. The report described the unfolding of the event from the moment the suspicious entity was identified by the installation; the gunfire in her direction from the installation; 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. Among other things, the report noted that the incident concerned a little girl who was on her way to school. In addition, the report described the identification of the deceased by the installation’s spotters, the soldiers’ conjectures as to her age, as well as in regard to her being hit, and her condition. The report also stated that the installation was in a evident state of security readiness and tension, and that the soldiers, including the Petitioner, thought that they were concerned with a terrorist event. In addition, Dayan pointed out that the recording from the communication network ended “with these words, that for some reason it was urgent for the company commander [the Petitioner – A.G.] to communicate now with the HQ”.  Then the Petitioner was heard stating over the communications network: “This is leader. Anyone that moves in the area, even if it is there years old, has to be killed. Over.” 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. In this context, a video clip was presented that shows a kind of party held by the soldiers in their room, and it was stated that these pictures appeared immediately after the shooting incident on the videotape recorded by the soldiers.

4.         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. In this regard, it mentioned claims by soldiers that they lied in the investigation out of fear of the Petitioner. In addition, the report described the ugly state of affairs in the company. It was noted that “when they [the Petitioner’s soldiers – A.G.] see him shooting at the little girl’s corpse, they are sure that he carried out a kill confirmation”. In this regard, it was stated that “it is not certain that this story would have gotten out were it not for the state of affairs in the company”. It was further noted that the Petitioner was placed under arrest, and that he was interrogated by the Military Police, and video clips of that interrogation were shown in which he explained, among other things, that he acted to neutralize a threat. It was also reported that an information was filed against the Petitioner in the military court on the day of the report was broadcasted. Finally, the responses of the Military Spokesperson and the deceased’s family were shown. It was also stated that the Petitioner had not yet been given permission to be interviewed, although the representatives of Uvda asked to interview him.

5.         In the broadcast of Uvda that was aired a week later, Dayan added a number of clarifications and emphases in regard to the report. Inter alia, it was emphasized that the installation was operating under threat warnings, and the threats under which the soldiers were operating were mentioned. In addition, further clips from the communications network at the time of the incident were aired. Among them were estimates as to the deceased’s age, and it was noted that one of the questions to be answered is who heard that. Dayan emphasized that the report accurately portrayed the events, but clarified that there was one mistake in the report. According to her, the video clip in which a soldier is seen shooting from a position in the installation was not related to the incident. Nevertheless, it was stated that there is no dispute that there was heavy fire from the positions in the installation, which continued for an extended period.

6.         On July 5, 2005, in an end-of-season review of Uvda, a four-minute summary of the report that is the subject of these proceedings 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). The content of the review report will be described at length below. I would already state that the editors of Uvda approached the Petitioner prior to the broadcast of the review report. In response, the Petitioners attorneys claimed that the broadcast was defamatory, and demanded that the review report not be aired, or in the alternative, that their full response be presented.

7.         As noted, on Nov. 22, 2004, an information was filed against the Petitioner in the Military Court on five charges: unlawful use of a firearm, for the two shots fired in the direction of the deceased; unlawful use of a firearm, for the burst he allegedly fired at her; obstruction of justice; deviation from authority creating a life-threatening danger as a result of the rules of engagement that he allegedly issued to his soldiers; and conduct unbecoming. 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 Judgment of the District Court

8.         The Jerusalem District Court (Judge N. Sohlberg) found in favor of the Petitioner, in part (CA 8206/06 of Dec. 7, 2009). It held that the report constituted defamation of the Petitioner, who was presented as having acted in a cruel and evil manner, and the soldiers under his command were presented as having maintained heavy fire at the deceased without regard for the possibility that she might be killed. It was held that this was done in a manner that affected the Petitioner’s good name. In addition, the court ruled that the report gave the impression that the Petitioner forced his soldiers to lie in the military enquiry, that the suspicions against him were whitewashed in the enquiry, and that he feigned innocence in his interrogation and refrained from presenting a consistent version of the events. The District Court held that this, too, constituted defamation of the Petitioner. 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 it was ordered that the Uvda program would correct the impression that the report created. In that context, 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.

 

The Judgment on the Appeals

9.         On Feb. 8, 2012, judgment was handed down on the appeals (CA 751/10, Deputy President E. Rivlin, and Justices U. Vogelman and Y. Amit; 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. They held, pursuant to CFH 7325/95 Yediot Aharonot Ltd. v. Krauss, 52 (3) 1 (1998) (hereinafter: CFH Krauss), that the first condition of this defense – the truth of the publication – was met in the sense that the publication was “true at the time”. Deputy President Rivlin explained that “the picture of reality as portrayed by the report as a whole is not substantially different from the truth as it was known at that time, as best as could be ascertained with the investigative tools available to a reasonable journalist” (para. 97 of his opinion). That was the case, inter alia, considering that the facts grounding the report at the time of the broadcast also served as the grounds for the charges brought against the Petitioner. Justice Amit concurred with Deputy President Rivlin on this point. He emphasized that the media cannot be demanded to meet “an absolute standard of pure truth” (para. 14 of his opinion). He was of the opinion that in this case, the condition of truthful publication was met, inasmuch as the report reflected the truth as it was known to the investigating authorities and the prosecution at the time of the broadcast. Both justices held that the second condition of the truth defense – a public interest in the publication – was also met. Justice Vogelman, however, 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 Appeals Decision held that the time had come to recognize, in the framework of sec. 15(2) of the Law, a broader journalistic obligation than that previously recognized in CA 213/69 Israel Electric Corporation Ltd. v. Haaretz Newspaper Ltd., IsrSC 23 (2) 87 (1969) (hereinafter: the First Haaretz case). This, while establishing appropriate conditions for the application of the defense. Justice Vogelman was of the opinion that such an obligation would arise upon meeting two conditions. The first is the presence of a significant public interest in the publication, and the second, that the publication is the result of careful, responsible journalistic work. Additionally, Justice Vogelman made a non-exhaustive list of auxiliary tests as aids in ascertaining the meeting of these criteria.

10.       The result was that Dayan’s appeal was granted (CA 1236/10), and the judgment of the District Court in her matter was reversed. 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 it to NIS 100,000, and rescinded the obligation to publish a correction. Telad’s appeal (CA 1237/10) was granted in part. The Petitioner’s appeal in regard to the damages awarded to him (CA 751/10) was denied.

 

The Petition for a Further Hearing

11.       Following the Appeals Decision, the Petitioner submitted a petition for a Further Hearing. After considering the petition and the responses of the Respondents, on Oct. 3, 2012, I ordered a Further Hearing on the Appeals Decision, in accordance with my authority under sec. 30(b) of the Courts [Consolidated Version] Law, 5744-1984 (hereinafter: the Courts Law). In my decision of Nov. 25, 2012, the issues that would be addressed in the Further Hearing would be as follows:

(a) Can the phrase “the matter published was true”, in sec. 14 of the Defamation Law, also be construed to mean “true at the time”, and if so, under what conditions?

(b) Can the requirement, under the above sec. 14, that “the publication was in the public interest” not be met when legal proceedings are pending in the matter that is the subject of the publication?

(c) Can a journalist, as a journalist, enjoy the defense under sec. 15(2) of the Defamation Law, 5725-1965, and if so, under what conditions?

Pursuant to that, the parties submitted supplementary pleadings, and a hearing was held before us. Following are the main arguments of the parties.

 

…

 

Justice Rubinstein

…

On Defamation in the Jewish Law Ethos

3.         Before doing so, I would first recall where, in my opinion, the historical ethos of Jewish law stands in this area – as we are a Jewish and democratic state, and Jewish law holds an important place among the sources of Israeli law, see: Aharon Barak, Purposive Interpretation in Law, 452-453 (2003) (Hebrew) [English: Aharon Barak, Purposive Interpretation in Law, (Princeton: Princeton University Press, 2005)]; Aharon Barak, The Judge in a Democracy, 290 (2004) (Hebrew) [English: Aharon Barak, The Judge in a Democracy, (Princeton: Princeton University Press, 2006)]; and see my article, “Malkhut Yisrael Le’umat Dina deMalkhuta,” 22 (2)  Mekhkarei Mishpat 489, 496-498 (Hebrew). No proof is required of the fact that our exposure to various kinds of electronic and virtual communication, including television, radio, internet, in addition to the print media, is tremendous, unforeseen by our predecessors, and continuously growing. What seemed like high waves before the internet age, is now an unfathomable ocean and a rising spring. It is an appropriate time for a brief study of the approach of Jewish law and halakha to defamation, and further on, I will return to the Jewish law approach to the defenses. I would first note that Jewish law served as one of the sources of the Defamation Law, 5725-1965, see the Defamation Bill, 5722-1962, H.H. 504 (5722) 142, 145, 147; and see: LCA 531/88 Avneri v. Shapira, IsrSC 42 (4) 20, 25-26; and see: N. Rakover, Jewish Law in Knesset Legislation, 631-639 (1988) (Hebrew), and the references there. The late Professor Elon noted that “this is an example of a respected halakhic institution that served as inspiration for legislation in the criminal field, not in terms of its details, but rather in terms of its general approach” (M. Elon, Jewish Law: History, Sources, Principles, 1380 (1973) (Hebrew) [English: M. Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 2003)]).

            Indeed, much of what is openly declared in public is protected by Israeli law as part of freedom of expression, or under other defenses provided by the Defamation Law. Even if that does not mean that a person whose reputation is tarnished has no legal remedy – and there are no few possibilities under the Defamation Law – still, especially where the media is concerned, those remedies are becoming fewer and fewer as a result of judicial interpretation. 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. Its rules concerning defamation form a significant chapter, and the District Court addressed this in the matter before us, in the context of “constructive defamation”, as I shall explain.

4.         The Hafetz Hayim, Rabbi Yisrael Meir Hakohen of Radun, a leading Jewish personage in Russo-Poland in the 19^th-20^th centuries, until his death in 1933, and author of the books Hafetz Hayim and Shemirat Halashon placed the subject of lashon hara [literally: “evil speech”, i.e., defamation –trans.] at the center of his toraitic works (he would also write the Mishne Berura, which may be described as the authoritative commentary to the Shulhan Arukh: Orah Hayim, and more) and endeavors. His book Hafetz Hayim (which was initially published anonymously in the early 1870s) presents the rules of lashon hara in comprehensive detail, while his book Shemirat Halashon, which compliments it, and which was published in the latter half of the same decade, provides aggadic [non-halakhic, rabbinic exegetical texts – trans.] sources and moral insights in regard to the prohibition of defamation and rumor mongering. At the beginning of his book Hafetz Hayim, [literally: “Desires Life” – trans.], which draws its name from the verses “Which of you desires life, and covets many days to enjoy good?  Keep your tongue from evil, and your lips from speaking deceit. Depart from evil, and do good; seek peace, and pursue it” (Psalms 34:13-14), the author lists seventeen negative commandments, fourteen positive commandments, and four instances of “cursed be” that a person may transgress in the framework of lashon hara and gossip.  Hafetz Hayim examines the laws of lashon hara and gossip in detail, and provides an accompanying commentary (“Be’er Mayim Hayim”), while Shemirat Halashon [lit. “Guarding the Tongue” – trans.], whose title is a reference to the verse “He who guards his mouth and tongue, guards himself from trouble” (Proverbs 21:23), completes it, thus constituting an indispensable pair of compositions for anyone who seeks to observe the halakha in this area (many summaries have been written over the years, e.g., Ikarei Dinim by Rabbi Shmuel Huminer). The Hafetz Hayim deemed guarding one’s tongue as possible, despite the widespread phenomenon of defamation, or at least of “quasi-defamation” [“avak lashon hara”, literally “dust – i.e., a “tinge” or “trace”— of lashon hara”—trans.] and gossip, on the presumption that the Torah does not impose obligations and prohibitions that cannot be observed.

5.         The primary, direct prohibition in the Torah is to be found in the verse “You shall not go up and down as a talebearer among your people: neither shall you stand against the blood of your neighbor” (Lev. 19:16). Rashi explains (ad loc.): “since all those who instigate disputes and speak lashon hara go into their friends’ houses in order to spy out what evil they can see, or what evil they can hear, to tell in the marketplace”. And as the Hafetz Hayim (Negative Commandments 1) explains, following Maimonides (Hilkhot De’ot 7:2): “Who is a gossiper? One who collects information and goes from person to person, saying: This is what so and so said about you, and this is what I heard that so and so did to you. Even if the statements are true, they bring about the destruction of the world. There is a much more serious sin than this, which is also included in this prohibition, which is lashon hara, that is also comprised by this prohibition, and which is relating deprecating facts about another, even if he speaks the truth. But one who tells a lie, defames his colleague’s good name” (emphasis added – E.R.). And further on (Lashon Hara, Principle 5:2), the Hafetz Hayim states: “And needless to say, if the matter is false or partly true and he exaggerates it more than it is, this is surely a very great sin, which is more severe than plain lashon hara, and it is in the category of defaming a person’s name, because he humiliates his friend by his lies. Even if it is the absolute truth, all the Rishonim [halakhic scholars active in the 11^th-15^th centuries, prior to the publication of Joseph Karo’s Shulhan Arukh – trans.] have established that … it is lashon hara even if it is true”. This is intended to remind us that we are not concerned with a solely moral issue, as one might mistakenly imagine, but rather with a clearly halakhic issue. And note that the Torah compares gossip, which is the lowest level in the laws of defamation, to standing “against the blood”, and no less, and that lashon hara is prohibited even if true, and thus Jewish law is, as noted, more strict than the prevailing Israeli law.

            The Gemara (TB Arakhin 15a-b and 16a-b) addresses lashon hara. The Mishna that is the basis for the discussion (15a) states: “Thus we also find that the judgment against our ancestors in the wilderness was sealed only because of their evil tongues, as it is written: you have tried me these ten times … (Numbers 14:22).” Those words referred to the affair of the ten spies who spoke ill of the Land of Israel, and R. Eliezer b. Perata says (ibid.), “Come and see how great the power of an evil tongue is. Whence do we know? From the spies [the spies that Moses sent, and who spoke ill of the Land of Isral – E.R.]: for if it happens thus to those who bring up an evil report against wood and stones, how much more will it happen to him who brings up an evil report against his neighbor”. We also find there: “Of him who slanders, the Holy One, blessed be He, says: He and I cannot live together in the world” (ibid., 15b). And on the verse “Death and life are in the power of [literally: “in the hand of” – trans.] the tongue” (Proverbs 18:21) the Talmud states (ibid.): “Has the tongue a hand? It tells you that just as the hand can kill, so can the tongue … One might say that just as the hand can kill only one near it, thus also the tongue can kill only one near it, therefore the text states: ‘Their tongue is a sharpened arrow’ (Jeremiah 9:7) [in other words, lashon hara reaches and causes harm even at a distance – E.R.]”.

            The Sages also said that all are guilty of “avak lashon hara” [“the tinge of defamation” – trans.] (TB Bava Batra 165a), in other words, no one (or at least, almost no one) is entirely innocent of lashon hara. Pursuant to the Gemara in Arakhin (ibid.), Maimonides states (Hilkhot De’ot 7:3): “Our Sages said: There are three sins for which retribution is exacted from a person in this world and he is denied a portion in the world to come: idolatry, forbidden sexual relations, and bloodshed, and lashon horah is equivalent to them all … Our Sages also said: Lashon hara kills three, the one who speaks it, the one who listens to it, and the one about whom it is spoken. The one who listens to it more than the one who speaks it.” Maimonides is of the opinion that transgressing this prohibition may lead to bloodshed – “A person who collects gossip about a colleague violates a prohibition, as it says: Do not go around gossiping among your people. And even though this transgression is not punished by lashes, it is a severe sin and can cause the death of many Jews. Therefore, it is placed next to: Do not stand against your neighbor's blood …” (Hilkhot De’ot 7:1; and see: Sefer Mitzvot Gadol (R. Moses b. Jacob of Coucy, France, 13^th cent.) Prohibitions 9). According to Sefer Hahinukh (R. Aaron Halevy of Barcelona, 13^th cent.), the justification for the prohibition is that “God wishes the good of His creations, and instructed us by this that there should be peace among us, because gossip leads to dispute and strife” (ibid., Commandment 236), in other words, preventing arguments and disagreements in society, and see: I. Warhaftig, The Right to Privacy in Jewish Law, 233-235 (2009) (Hebrew); S. Aharoni-Goldenberg, “On-Line Privacy from Jewish Law Perspective,” 52 (1) HaPraklit 151, 162-164 (2013) (Hebrew). On lashon hara, also see my article Bad Reports – On the Continuing Struggle for the Dignity and Good Reputation of Others, Parashat Hashavu’a Bereshit (A. Hacohen & M. Vogoda eds.), 211 (Hebrew), also published in my book Paths of Government and Law, 336 (2003) (Hebrew); N. Sohlberg, On Lashon Hara, “Lashon Tova”, and Damages – Money isn’t Everything, ibid., Vayikra 117 (Hebrew); M. Vigoda, Do Not Stand Upon Your Neighbor’s Blood – The Duty to Rescue and its Limits, ibid., Vayikra 150, 151 (Hebrew); N. Sohlberg. The Right to Reputation – Freedom of Expression and Defamation for a Constructive Purpose, ibid., Bemidbar 59 (Hebrew); M. Vigoda, How Beautiful are Your tents O Jacob – Privacy and Freedom of Expression, ibid., 208 (Hebrew); Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information, (Center for the Application of Jewish Law, Netanaya Academic College, Elul 5774).

6.         In his monograph The Defense of Privacy (2006) (Hebrew), Professor Rakover notes that “anything that can cause a person sorrow falls within the scope of lashon hara, even if it is not denigrating in any way” (p. 31). He adds that “a broad definition of the prohibition of gossip and lashon hara can even comprise a violation of a person’s privacy, inasmuch as every person is sensitive to intrusions into his personal life, and does not consent to his private matters being in the public domain” (ibid., p. 32).

            In his well-known letter, R. Elijah of Vilna wrote that “…as our Sages said (Tosefta Pe’ah 81), the sin of lashon hara in its entirety … ‘and lashon hara is equivalent to them all’, and what need is there for me to elaborate on this sin that is the worst of all transgressions”.

            In his writings, the Hafetz Hayim went above and beyond, and as R. Israel Salanter, one of the founders of the Musar Movement, wrote of him, “he took … one Torah verse, and created an entire Shulhan Arukh around it”. And note that that Hafetz Hayim’s approach did not oppose freedom of expression, but rather sought to combat its abuse, with deep understanding of the complexity of the human experience, but in his view “the prohibition upon lashon hara is so great that the Torah prohibited it even in regard to the truth and in every form …” (Hafetz Hayim, Principle 3:16). Moreover, according to him – and let us think of the media in this regard – “the greater the number of listeners, the greater the sin of the speaker (Hafetz Hayim, Hilkhot Issurei Lashon Hara, Principle B:1). Thus, as noted, Jewish law goes to the extreme.

7.         In a eulogy of the Hafetz Hayim, one of his students said that “his circumspection in speaking was beyond human understanding … and he never made any expression of anger or even avak lashon hara…” (quoted in Rabbi Israel Joseph Bronstein, Hanhagot HaHafetz Hayim, 279 (5767) (Hebrew)). Many stories are told of him, like, for example, that he went so far as to refuse to stay in a home in which he heard lashon hara (ibid., 280-281). His son-in-law, Rabbi Menachem Mendel Zaks, related that “he told me several times, ‘Thank God that I was always careful in regard to avak lashon hara’” (ibid., 280). In other words, the Hafetz Hayim lived as he preached. Rabbi Yehudah Segal of Manchester, one of the most ardent activists for distributing the book Hafetz Hayim, said that a person who is circumspect in his speech acquires the Hafetz Hayim as his advocate. No less.

            Indeed, Jewish history is full of incidents in which lashon hara “killed” people. For example, Rabbi Meir Leibush Wisser, the Malbim (1809-1879), was forced to leave his position as Chief Rabbi of Romania when a public smear campaign depicting him as a dark, boorish character, and the enemy of progress and Jewish integration in general society led to his dismissal. Rabbi Jonathan Sacks (former Chief Rabbi of the United Hebrew Congregations of the Commonwealth) wrote in The Plague of Evil Speech (Metzorah, 5768) [http://rabbisacks.org/covenant-conversation-5768-metsorah-the-plague-of-...

For a people of history, we can be bewilderingly obtuse to the lessons of history … Jews have continued to excoriate, denounce, even excommunicate those whose views they did not understand … Of what were the accusers guilty? Only evil speech. And what, after all, is evil speech? Mere words …Words wound. Insults injure.

            The number of people now studying the Hafetz Hayim’s books Hafetz Hayim and Shemirat Halashon has increased. It would seem to me that even if 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, and so many are harmed for no reason, and only the rare few can succeed,  we may still benefit from its study. In my opinion, contending with this is, in sum, 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.

8.         In addition, the prohibition upon causing embarrassment is another aspect of protecting a person’s reputation. Of this it was said that a person who embarrasses his fellow in public has no place in the world to come (Mishna Avot 3:11), and “when a person who embarrasses his fellow in public, it is as if he has shed blood” (TB Bava Metzia 58b), and it is also said that “It is better for a man that he should cast himself into a fiery furnace rather than that he should put his fellow to shame in public” (TB Berakhot 43b). And see: The Talmudic Encyclopedia, vol. 9, s.v. Halbanat Panim; and see: A. Cohen, Have Everyone withdraw from Me, Parashat Hashavua (5767) 273 (Hebrew). However, despite the great weight and importance attributed to reputation, even the prohibition upon lashon hara in Jewish law is not absolute, and as the Hafetz hayim states in the preface to his book Hafetz Hayim, if the approach were absolutely strict “it would not be possible to live in this world in this regard, without entirely withdrawing from worldly matters”. Even in Jewish law, the laws of defamation do not exist in a vacuum, and there may be cases – exceptions – in which the prohibition upon publishing lashon hara will retreat before other vital interests.

 

On Freedom of Expression in the Jewish Law Ethos

9.         Jewish law indeed recognizes the great importance of freedom of expression against the government, and as Deputy President Elon pointed out: “The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when they evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes” (EA 2/84 Neiman v. Chairman of the Central Elections Committee, IsrSC 39 (2) 225, 294 [English: http://elyon1.court.gov.il/files_eng/84/020/000/Z01/84000020.z01.pdf]; and see CFH 7383/08 Ungerfeld v. State of Israel (2011)), paras. 2-3 of my opinion; A. Cohen, Jewish Law and Freedom of Expression, Parashat Hashavua (5765) 205 (Hebrew); H. Cohn, On Freedom of Opinion and Speech in Jewish Law, Parashat Hashavua (5762) 78 (Hebrew)). Here is but one example from among many. In the first chapter of his book, the prophet Isaiah, incisively criticizing the rulers of Jerusalem, states: “Hear the words of the Lord, you chieftains of Sodom … devote yourselves to justice, aid the wronged, uphold the rights of the orphan, defend the cause of the widow … Your rulers are rogues, and cronies of thieves, every one avid for presents and greedy for gifts; they do not judge the case of the orphan, and the widow’s cause never reaches them” (Isaiah 1:10, 17,23). Harsh criticism, without fear. In LCrimA 10462/03 Harar v. State of Israel, IsrSC 60 (2) 70, 92 (2005), I stated that “the idea of freedom of expression is not, in my opinion, conceptually at odds with the approach expressed in Jewish sources in regard to euphemistic language”. However, 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, to which I will return. Indeed, in our world, refraining from publication is an impractical utopia, but with the help of the courts, it is possible to restrict lashon hara, except when it is constructive, and not broaden it.

…

25.       As noted, the judgment that is the subject of the Further Hearing held that the rule established in the Ha’aretz case should be changed. It was held (para. 26 of the opinion of Justice Vogelman) 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”. It was further stated 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” (emphasis original). This holding was based, as arises from what I stated above, 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” (para. 5 of the opinion of Justice Vogelman), 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 (para. 14). Deputy President Rivlin noted (para. 119) that in view of this conceptual change – in the context of which freedom of expression was recognized as being of constitutional supra-legal status, together with the recognition of the importance of the free press – the Ha’aretz rule has largely become obsolete. In the view of Justice Amit (para. 17 of his opinion), the change of the rule is required in view of the “changing times, and the vicissitudes that have taken place over the last decades, both on the normative-legal plane and in the communications media”. That is, essentially, also the view of the President and those who concur with him in the Further Hearing.

26.       With all due respect, I take a different view. I am of the opinion that even the changes and vicissitudes that have occurred in the world do not justify a change of the Ha’aretz rule, and it would not be superfluous to say that the force of the matter before us – defamation of an IDF officer in a case concerning nothing less than human life – is more serious than the situation in the Ha’aretz case, as described, without taking that affair lightly. I am, as stated, of the opinion that even in the balance between a person’s – any person – right to his good name and freedom of expression, the latter should not be preferred a priori. The grounds for my position are to be found in the exalted value of human dignity, which has been raised to the level of a Basic Law over two decades ago. Human dignity, and a person’s right to his reputation are also related to the approach of Jewish law to lashon hara, as described above. In my opinion, the rule established in the judgment that is the subject of this Further Hearing, and that arises from the opinions of my colleagues in the Further Hearing, may lead – even though this is clearly not the intent – to the trampling of the dignity and reputation of a person, to a “doormat”, as Justice E. Goldberg put it in CFH 7325/95 Yediot Aharonot Ltd. V. Krauss, IsrSC 52 (3) 1, 106 (1998) (hereinafter: CFH Krauss). I will now turn to address the balancing of interests and rights in the Defamation Law – the right to one’s good name on one side, and freedom of expression and freedom of the press on the other. But before proceeding, I would note that in my opinion – absolutely clearly – the Ha’aretz rule should not be viewed as being “archaic”. Is it archaic to hold that in the legal framework of defamation, the purpose of the press, as important as it may be, does not rise to the level of a duty that permits telling a falsehood? My colleagues who are of that opinion surely refer to the strengthening of the status of the media and to developments in the general and legal world. But do values that hold fast to the remnants of reputation and defend human dignity in its plain sense belong in the archives? I do not think so. The justices of the Supreme Court in the sixties and seventies were not conservative dinosaurs that could not see the light. The strengthening of the media does not imply a weakening of the need to insist upon the truth. There are values that are steadfast, for what have not changed at all in the last forty years are the nature and the errors of humanity, which remain as they were since Creation, while the means have become more developed, and what was once available only to the relatively few, now spreads like a brush fire in the electronic and virtual world.

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30.       On the other side of the scales is freedom of expression, the importance of which is undeniable. Freedom of expression is one of the central, most important values of a democratic regime. It has been described as a “superior right” (HCJ 73/53 “Kol Ha’am” Company Ltd. v. Minister of the Interior, IsrSC 7 (2) 871, 878 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]), and as the “apple of democracy’s eye” (CrimA 255/68 State of Israel v. Ben Moshe, IsrSC 22 (2) 427, 435 (1968)). Thus it was prior to the enactment of Basic Law: Human Dignity and Liberty, and so it is thereafter (see, among many, the Szenes case [HCJ 6126/94 Szenes v. Broadcasting Authority, IsrSC 53 (3) 817, [http://versa.cardozo.yu.edu/opinions/szenes-v-matar]], at pp. 828-830, para. 9 of the opinion of Barak P.); the Ben Gvir case [LCA 10520/03 Ben Gvir v. Dankner – trans.], at para. 13 of the opinion of Procaccia J). For my part, I had the opportunity to point out that “freedom of expression is a supreme right of a citizen in a democratic society, in order to free the human spirit, and combat tyranny and silencing opinions, to facilitate public discussion in the marketplace of opinions, to help liberty conquer oppression and totalitarianism” (LCrimA 10462/03, above, at p. 90). Of course, first and foremost is its importance for criticizing government.

31.       Freedom of the press derives from freedom of expression (CA 723/74 Ha’aretz Newspaper v. Israel Electric Corporation, IsrSC 31 (2) 281, 298 (1977) [http://versa.cardozo.yu.edu/opinions/haaretz-daily-newspaper-ltd-v-israe...). This Court has addressed the importance of freedom of the press in many decisions. Thus, for example, in CFH Krauss, at p. 53, Justice Zamir wrote that “a free press is not only a necessary result of democracy, but a necessary condition for democracy. It is a necessary condition for a representative regime, for good, proper governance, and for human rights. In practice, it can serve as a litmus test of democracy: if there is a free press – there is democracy; if there is no free press – there is no democracy. One of the main tasks of the press in a democracy is to continuously and efficiently monitor all of the state institutions, first and foremost the government”. In LCrimA 761/12 State of Israel v. Makor Rishon HaMeuhad (Hatzofe) (2102) [http://versa.cardozo.yu.edu/opinions/state-v-makor-rishon-hameuhad-hatzo... (hereinafter: the Makor Rishon case)), I wrote: “The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society … A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right” (para. 73). However, as I noted in my article Stains in the Press (Hebrew), “The problems in the field of freedom of expression that now face us are different from those we have become accustomed to confronting in the past. Today, the competition is not – primarily – between the right to freedom of expression and governmental interests for which the government wishes to limit that right. Today, we can say that in the relationships between the individual and the government, freedom of expression has attained an established status in our society and legal system. The historical fear of government that tyrannically shuts mouths is no longer – not in the electronic media (ever since the Broadcasting Authority Law), nor in the print media. The power of censorship has been reduced incredibly in the era of Basic Laws, and even enforcement in regard to the exposure of secrets is quite rare” (pp. 199-200). Who can seriously say that there is no freedom of the press in Israel? Indeed, criticism of the government is rooted in our national ethos. As noted, the Prophets of Israel raised their voices against the government, and even with the reservation, i.e. that the Prophets spoke as God’s mouthpiece and not of their own (see: A. Hacohen, On the Principles of Freedom of Expression and its Limits in Jewish Law, Parashat Hashavua Vayikra 137, 136), in any case, criticism of the government is not like criticism of an individual. And as Prof. A. Barak wrote (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, p. 723 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)], “…the scope of the individual’s right of expression against the state is more comprehensive than an individual’s right to freedom of expression against another individual”; and see ibid., 588-599: “an individual’s right too human dignity in regard to the state differs from that individual’s right to human dignity in regard to another individual. Against the state, the individual’s right to human dignity applies in to the full extent of the ideal it is meant to achieve. But against another individual, the individual’s right is subject to a process of balancing and limiting in view of its engagement with other constitutional rights or the public interest”; and see Justice Sohlberg’s opinion in CA 8954/11 Anonymous v. Anonymous (April 4, 2014), para. 122. Indeed, in these contexts, Jewish law, at the very least, sets boundaries for freedom of speech, as A. Hacohen describes in the aforementioned essay, and see the references there.

…

 

40.       Thus, Basic Law: Human Dignity and Liberty expressly established human dignity, including the right to reputation, as a constitutional right, and in my opinion, the time has come to reexamine the balance struck prior to the Basic Law in the Avneri case, so as to reinforce reputation. The clear, express words of Basic Law: Human Dignity and Liberty cannot remain merely declaratory, and remain without practical effect. The Court is required to defend human rights, rights that include the right to one’s good name. It must stand up to the erosion of human dignity not only in respectful, beautiful words. In other words, it must ensure that every woman and man know that a person’s good name is not a doormat. Once the legislature established – in express words, and by all that is holy, and no one can possibly argue that a person’s dignity does not, first and foremost include his reputation – that a person’s right to a good name is a constitutional right, we must give that real, practical content. In my opinion, real content in the context with which we are concerned – the laws of defamation – would mean changing the balance, and returning to the balance rule established in the Further Hearing in the Electric Corporation case, i.e., freedom of expression should not be deemed a superior right that stands above the right to a good name, but on the contrary, where there is doubt, it would be better to err in favor of a good name. I would stress that I have no desire to harm freedom of expression and freedom of the press, which are held undisputedly high in Israeli law and reality. On the contrary, I hold them in high regard. They have a very important role in protecting democratic society, and I am the last who would not contribute to that. However, in my opinion, “freedom of expression is not an unbounded, theoretical concept. The prohibition of defamation is one of the significant boundaries, and the question is how to interpret defenses and licenses in regard to defamation. I believe that Basic Law: Human Dignity and Liberty should play a part in that” (LCA 1104/07 Hir v. Gil (2009), para. 29 of my dissent). “Freedom of the press also applies to biting journalism, but that does not mean that the freedom is unlimited … the basic presumption of freedom of the press is also responsible journalism. A person’s good name is not at forfeit” (the Makor Rishon case, para. 73). The approach protecting a person’s good name is my consistent approach, even when I am in the minority (see my opinion in LCA 4447/07 Mor v. Barak E.T.C. (1995) (hereinafter: Mor v. Barak). A person’s good name is a constitutional right of the highest order, and as such, we are required to accord it its rightful place. This is particularly the case when we are speaking, as in this case, of a suit concerning a story/report that has been published, and not – as was the case in in the Avneri case – a restraining order to prevent publication (on the distinction between preventative relief and retroactive sanctions in these contexts, see CA 409/13 Keshet Broadcasting Ltd. v. Cooper (April 11, 2013) para. 16 of the opinion of Grunis P.). I would reiterate that, in my opinion, freedom of expression, which  is necessary for the oversight of governmental authorities (as see, inter alia, Re’em Segev, Freedom of Expression against Governmental Authorities (Israel Democracy Institute, 2001), is not, as noted, identical – and certainly not necessarily so – to freedom of expression against a person who is not a governmental personage, and see para. 31 above. Indeed, Israeli law protects untrue publications when there is a legal obligation, no less, to publish them (sec. 15(2) of the Defamation Law). Has freedom of journalistic expression attained the level of an obligation that permits untruth and defamation? In my view, it has not. Before explaining why, in my opinion, a journalistic obligation should not be read into sec. 15(2), I will present the Jewish law approach to constructive lashon hara (which, in some cases, may attain the level of an obligation).

 

Constructive Lashon Hara

41.       Indeed, there are possible situations in Jewish law in which refraining from lashon hara may cause harm, and the prohibition upon lashon hara is overridden in such situations due to the attendant benefit: “And know that in interpersonal matters, such as gezel [theft], oshek [exploitation], nezek [damage], tza’ar [suffering], and boshet [shame], and ona’at devarim [verbal deception], one may inform others, and even a pious individual will tell, in order to help the guilty party, and from a devotion to truth” (Sha’arei Teshuva by R. Jonah b. Abraham Gerondi (Spain, 13^th cent.) 3:221); “Along with His [God – E.R.] command against gossip, came the proviso that you shall not stand against your neighbor’s blood, so that if one see that a group wishes to commit murder, he must inform the interested party in order to save his life, and should not think that this is gossip, as if he does not tell his fellow and he is killed, the warning of you shall not stand is abrogated, etc. We can learn from the story of Gedaliah ben Ahikam (Jeremiah 40) who was told, but when he did not heed, what happened (that is, Gedaliah ben Ahikam was warned that he was in danger, but he did not believe the warning, and was ultimately murdered – E.R)]” (and see: Or HaHayim (R. Haim ibn Atar,  a.k.a. Or HaHayim HaKadosh, 17^th-18^th cent.) Vayikra, Kedoshim 19:16 (Hebrew)). It would seem that in such circumstances, the case of Gedaliah ben Ahikam raises the matter to the level of a duty.

42.       The Hafetz Hayim ruled that “if someone witnessed another person harming his fellow, by theft or exploitation, or injury – whether or not the victim of the theft or the harmed person is aware of the damage or theft or not – or by shaming, or causing him suffering, or exploiting him, and the witness knows that the offending party did not return the theft, pay damages, or request forgiveness, etc., even if he was the sole witness, he may discuss the incident with others in order to help the guilty party and also to publicly denounce such evil behavior. However, he must take care that the seven conditions that follow are met” (Hafetz Hayim, Hilkhot Lashon Hara 10:1), that is, conditions were established in order to limit the possibility of unnecessary harm. The Hafetz Hayim warns (ibid., 15): “Now see, my brother, how carefully one must weigh how to relate the matter. For when he speaks he is in grave danger of transgressing the laws of lashon hara, if he is not careful in regard to all the details”. In The Right to Privacy in Jewish Law (p. 244), the learned Dr. Itamar Warhaftig summarizes the Hafetz Hayim’s provisos for permitting lashon hara: the speaker must carefully weigh whether harm may be caused; must not exaggerate, i.e., not make the wrong appear greater than it was; that his intention be only to help; that he must make sure that there is a reasonable possibility that his actions will, indeed, be helpful; that there is no alternative for preventing the harm; that his words will not cause substantive harm to the person about whom he tells lashon hara; and that what he says is in regard to what he has clear knowledge, and not hearsay (in greater detail, see: Hafetz Hayim, Hilkhot Lashon Hara, Principle 10, and Hilkhot Rechilut, Principle 9 (Hebrew)); And see: Rabbi Z. Greenwald, Taharat Halashon – Madrikh Lehilkhot Lashon Hara uRekhilut, 109 (Hebrew) [English: Ze’ev Greenwald, Taharas Halahon – A Guide to the Laws of Lashon Hara and Rechilus (David Landesman, Trans.) (Feldheim, 1994)]. For further reading on the provisos, see N. Sohlberg, A Person’s Right to Good Name, Freedom of Expression and Constructive Lashon Hara, Parashat Hashavua 29 (5761) 29 (Hebrew)). Constructive lashon hara may serve educational purposes, or deterrence from the commission of offenses, under the above conditions (also see: Rabbi Y. Unger & Prof. Y. Sinai, Exposing the Identity of a Suspect before filing an Information (para. 5, above). For my part, I would stress the proviso that permission is granted in a situation in which lashon hara may be constructive, “but if in his estimation it will certainly not be of benefit … even if all the details are verified, it is still forbidden to say anything” Hafetz Hayim, Hilkhot Lashon Hara, Principle 10:4).

43.       The learned Prof. N. Rakover (On Lashon Hara and its Punishment in Jewish Law (5722) (Hebrew)) gives several examples of exceptions to the prohibition of lashon hara for constructive purposes: telling lashon hara in order to save the victim, and lashon hara out of a commitment to truth; telling lashon hara to prevent damage; telling lashon hara by means of a complaint; telling lashon hara about a recidivist offender. According to him, “There are occasions when a person may relate the matters, and may even be obliged to make them public. Such situations also provide the framework for a legal, moral or social obligation to publish lashon hara”; see additional examples in Warhaftig, pp. 244-258, and see Rabbi M. Bareli, Publishing Lashon Hara about Elected Officials, 33 Tehumin 136 (5773) (Hebrew), according to whom there may even be an assumption of forgiveness for the publication of criticism of elected officials, since there would appear to be implied consent on their part, provided that there is benefit in the publication (and see the conflicting view of Dr. I. Warhaftig, ibid., p. 149); on the problematics, also see Rabbi A. Katz, Lashon Hara in Public Databases and Archives, 27 Tehumin 180 (5767) (Hebrew)).

44.       Thus, there may indeed be cases in which permission to convey lashon hara may become an obligation – an obligations of expression. In general, this is the case in which telling lashon hara is necessary to save another person from harm or injury. Maimonides ruled: “Whenever a person can save another person's life, but he fails to do so, he transgresses ‘Do not stand against the blood of your neighbor’. Similarly, when a person sees another drowning at sea or being attacked by robbers or a wild animal, and he can save him himself or can hire others to save him, but does not save him, or he hears gentiles or informers conspiring to harm him or planning to entrap him, and he does not notify him of the danger, or when a person knows of a gentile or a belligerent man who has a complaint against another, and he can appease the aggressor on his behalf but he fails to do so, and in all similar instances, a person who acts thus transgresses the commandment: ‘Do not stand against the blood of your neighbor’” (Maimonides, Mishneh Torah, Hilkhot Rotze’ah uShemirat Hanefesh 1:14). We are not concerned only with saving lives, but also with preventing damage. Thus, the Hafetz Hayim ruled: “If one knows that his friend wishes to do something with someone else, and he believes that his friend would definitely incur some harm by this bad thing, he must inform his friend in order to save him from that harm” (Hafetz Hayim, Hilkhot Rekhilut 9:1), all subject to the aforementioned conditions.

45.       Dr. M. Vigoda summarized the approach of Jewish law in his aforementioned essay “Privacy and Freedom of Expression,” Parashat Hashavua Bemidbar 208, 214-215 (Hebrew):

The scope of freedom of expression in matters concerning other persons is very limited, and exists only in regard to generic matters the exposure of which would not be likely to cause either emotional or monetary harm to the other. Inasmuch as such matters are very rare, it may be concluded that Jewish law severely restricts permission to reveal matters concerning another. As opposed to this, at times, it requires that a person reveal something whose non-disclosure is likely to cause harm to a third party. In such matters, we are not speaking of freedom of expression, but rather of an obligation of expression, inasmuch as in such situations, silence is wrongful.

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On the Absence of Humility and Modesty

60.       Lashon hara has a sister – arrogance. All the justices of the panel in the judgment that is the subject of this Further Hearing, each in his own way, addressed the message conveyed by the television program, which was presented most forcefully and absent any modicum of modesty. Indisputably, the media, printed, virtual, and particularly electronic – television – has tremendous power. “The medium is the message,” said Marshall McLuhan. It is easy for the media to fall into the trap of “my own power and the might of my own hand” (Deut. 8:17), “I am, and there is none but me” (Isaiah 47:8), and the Bible also states (Psalms 36:12) “Let not the foot of the arrogant tread on me”, and our Sages said (Ethics of the Fathers 4:4) “Be exceedingly lowly of spirit”, and see (TB Sota 4b). Every human being is given to arrogance, particularly those whose words travel from one end of the earth to the other in a matter of seconds (“Sin crouches at the door” (Genesis 4:7). The opposite of this in Jewish morality and law is humility. Our Sages said: “What wisdom makes a crown upon its head, humility makes a heel beneath its sole (TJ Shabbat 1:3). In his book of morality Ma’alot Hamidot, R. Yechiel b. R. Yekutiel b. R. Binyamin Harofeh (Italy, 15^th-16^th cent.) devotes a chapter to humility, and quotes the Sages: “What is the quality of humility? One with whom all are at ease, and anyone who is not arrogant towards others…” In his renowned letter, Nahmanides (R. Moses B. Nachman, Spain, 13^th cent.) writes that humility is “the best of all qualities, as it is written: The effect of humility is fear of the Lord (Proverbs 22:4)”. R. Moshe Chaim Luzzatto (the “Ramhal”, 18^th cent.) devotes two chapters of his Mesilat Yesharim to humility, as the opposite of arrogance, writing (chap. 22): “For it is wisdom that has a greater tendency to bring a person to arrogance and pride … while a person of common sense, even if he is a great genius, will observe and contemplate and realize that there is no place for pride and arrogance … This is the examination and contemplation that is proper for every person of common sense …then he will be called truly humble, when he is humble in his heart and being”. Rabbi Yochanan said of God (TB Megilla 31a) “In every place that you find God’s grandeur, you find His humility”. On humility and arrogance in Judaism, see: Beral Wein & Warren Goldstein, The Legacy, 78-80 (2012). At his swearing in ceremony (Feb. 21, 2012), our colleague Justice Zylbertal said: “As part of our duty to conduct ourselves with humility, we must recognize error as inherent to the act of judging. President Barak addressed this in his speech in a ceremony swearing in new judges: ‘Only a judge who admits that he is not the epitome of perfection, but that like every human being, he too may err, can correct his judgement and thus approach perfection. Opposite the truth stands error – not lies – and recognizing error brings one closer to the truth’ (A. Barak, On Law, Judging and Truth, 27 Mishpatim 11 (5756)”.

61.       What is good for judges is also appropriate for the media. Of what relevance is this for the matter before us? I, too, am not of the opinion that the story reflected a lack of good faith. But it did reflect an exaggerated self-confidence that resulted in a lack of appropriate sensitivity for the Petitioner. “What is hateful unto you, do not do to your neighbor,” said Hillel the Elder (TB Shabbat 31a). Respondent 1 should ponder how she would like to be treated herself. And the absence of amends for lashon hara, even after-the-fact, makes the problem worse. The words of the Deputy President in para. 123 of the judgment that is the subject of this Further Hearing are appropriate here, as well: “Indeed, some of Dayan’s statements in the course of the broadcast were gratuitous, to say the least. It would have been better had she adopted a greater degree of self-restraint and modesty in view of the inherent problem in seeing the whole picture prior to the broadcast of the story”. Modesty and humility are appropriate for us all.

62.       In my article Stains in the Press (p. 204) I quoted Walter Cronkite, one of the greatest American television journalists of the last generation, who wrote in A Reporter’s Life (p. 289): “Press freedom is essential to our democracy, but the press must not abuse this license. We must be careful with our power. We must avoid, where possible, publicity circuses that make the right of fair trial a right difficult to uphold … Liberty and, no less, one’s reputation in the community are terribly precious things, and they must not be dealt with lightly or endangered by capricious claims of special privilege.” To which I added (ibid.): “Moderation is a good quality indeed, and it is also good for the press. I believe that there is nothing wrong if, a moment before publishing a story, the reporter and editor take a timeout to consider: Is the report sufficiently grounded to risk the harm that its publication may cause this person?” And further on I wrote (pp. 206-207): “… the duty to report on the basis of reliable, verified information, to report the truth, is a basic requirement that every journalist must observe. The public’s right to know is not the end all, nor unrestricted. Trial by the press can lead to tragedy. This raises the issue of the responsible use of the nearly limitless power of the media. At times, one may observe this in terms of ‘judge not others until you have stood in their place’ (Ethics of the Fathers 2:4), when a journalist or editor is the victim of press reports, and his reaction reflects frustration just like that of any other person, as has happened”.

…

64.       I, of course, do not deny that there are also many responsible journalists, and I would not cast aspersions on the media in their entirety, which would, itself constitute avak lashon hara if not more than that. However, I am sure that when some members of the media read the majority opinion in this case, they will smile with relief, and express wonder at judicial naiveté.

65.       My colleague Justice Hendel notes in regard to establishing a duty under sec. 15(2), that “if the journalist sets lying or deceiving as an objective, then clearly the good-faith defense will not serve him”(para. 6). Of course, and I too am of the opinion that the press must not be deterred from criticizing the government. But the question arises in those gray areas in which you – the reader – do not know the true story, while the journalist is aware of background that he does not publish, such that the product presented to the public is nothing but a half truth, which is worse than a lie. We should remember the “coddling” of a particular politician – a tactic that a well-known media personality openly recommended – that is, the “obligation” and the attendant truth are set aside in favor of a political interest, such that certain facts may intentionally be blurred so as not to harm a political objective. Are we acting responsibly when we make many presumptions to the benefit of the media, even to the point of an “obligation”, when they are accompanied by an inadequate ability to protect a person’s good name, and it is swept under the rug? Does the life’s breath of democracy justify that the individual, at times, be “knocked to the canvas”?

66.       My colleague Justice Hendel (paras. 2 and 8) calls for developing an independent “Israeli approach”. He does not explain what that might be. I would like to join him, but explain that, in my humble opinion, the ethos and culture of Jewish law argue for greater sensitivity to a good name than that resulting from this decision. Perhaps we should create a “good name à la Israel”, a Jewish and democratic state. At this point, I will briefly state that I was glad to learn from my colleague of additional Jewish law sources in regard to constructive lashon hara, from which he attempts to show that even when journalistic publications comprise lashon hara, they may be beneficial in certain cases. The sources are alluring, but I fear that they are peripheral to the subject, and my colleague is aware that he raises questions that await answers, and in my opinion it would be difficult to attribute what may derive from his arguments to the core of Jewish law. The sources he presents are fascinating, but are peripheral, and I am very fearful of a slippery slope in the overall context. I would add that pursuant to reading my colleague’s opinion, I read Rabbi Ari Shevet’s interesting article Newspapers and News – Obligation or Prohibition (Hebrew), and I very much appreciated the many sources included there, and the lovely breeze – mixed with a positive innocence and “happy are those whose way is blameless” (Psalms 119:1) – that wafts from it in regard to the positive potential of journalism (as in the words of Rabbi Isaac HaKohen Kook that he quotes), and clearly, wise contemporary Torah scholars cannot ignore the media and their importance in our daily lives, although the Hafetz Hayim (in his book Zechor LeMiriam) warned not to waste time reading newspapers (in their then limited form, so what might we say nowadays). But when the author moves from the light to the shadows, his solutions – imposing a duty of care upon journalists – ultimately lead to the statement (para. 5 of the conclusion): “In the current format, it may be that journalists are to be ‘deemed bearers of lashon hara’,  and it is therefore better to listen to the news over the radio”. And further: “Our suggestion is not, by any means, intended to detract from the severity of the prohibition upon gossip, lashon hara, and bearers of lashon hara. We must remember the words of the Pele Yoetz (R. Eliezer Papo, Greece-Bulgaria, 19^th cent. – E.R.) (Pele Yoetz, s.v. Lashon Hara) that it is better to “flee through one hundred gates of permission so as to avoid entering one gate of prohibition”. I am not naïve, and I am well aware of the power and ability of the media, but I do not believe that opening the gate of “obligation” that arises from the majority decision will benefit reputation and basic human dignity, inasmuch as it comprises too many assumptions, as already detailed. It is easy to foresee the dangers, but will we merit “responsible journalism”?

67.       Finally, my colleague Justice Danziger (para. 5) explains the need for distinguishing the expression of opinion and facts in the media. I agree with that distinction, even if our era is characterized by post-modern “narratives” that combine the two, such that it is sometimes difficult to distinguish.

 

 

Justice N. Hendel

…

            An article published several months ago by the Columbia University School of Law addressed the relationship between freedom of speech and the state of mind or intent of the publisher. The question was raised as to the relevance of these to defamation. The author’s answer was that the prohibition of defamatory speech is not meant to be absolute. Therefore, the system does not suffice in examining only the publication, but also examines various subjective aspects of the publisher. Moreover, and this is the important point for our discussion, emphasis was placed upon the chilling effect of over extending the prohibition of defamation. From this perspective, it is not enough to examine what was published, but also what would not be published if the law were more strict with the publisher – including the journalist (Leslie Kendrick, Free Speech and Guilty Minds, 114 Colum. L. Rev. 1255 (2014); for an example that examines the matter empirically, see Eric Barendt, Laurence Lustgarten, Kenneth Norrie & Hugh Stephenson, Libel and the Media: The Chilling Effect (1997)).

            The position according to which the press would be endowed with the crown of a “social obligation” also imposes a duty upon the journalist. It is not a one-way street that benefits only the journalist at the expense of another publisher. A note must be paid on demand. And what is the demand? First, as my colleagues held, that the obligation relates to a publication that is of significant public interest, and not merely any public interest. In addition, legitimacy was given to the demand that a journalist act responsibly – “responsible journalism” in the words of my colleagues. I will address these matters below.

            In this context, I will briefly address the approach of Justice Rubinstein in regard to the relationship between the right to one’s good name and freedom of expression. According to his approach, despite the importance of the latter, it is a lower level on the constitutional scale than the right to one’s good name. For my part, I would add my voice to that of President Shamgar (FH 9/77 Israel Electric Corp. Ltd. v. Ha’aretz Daily Newspaper Ltd., IsrSC 32 (3) 337 (1978) [http://versa.cardozo.yu.edu/opinions/israel-electric-corp-v-haaretz]), and to that of Justice Rivlin in the appeal (para. 77), according to which, despite the importance of the two values, freedom of expression is principal. Both according to the approach of Justice Rubinstein and the opposing view, that does not mean that one of the rights “subsumes” the other in every collision. But the argument is of importance in borderline cases. My colleague is of the opinion that in a borderline case, the scales should tip in favor of protecting reputation. I disagree, and thus join the opinion of Justice Rivlin in the appeal, that “to the extent that there may be doubt in regard to whether disputed speech is protected, it is better to err on the side of freedom of expression and freedom of the press” (para. 79, citing Justice Harlan F. Stone).

            I will permit myself to add that this argument is somewhat abstract. But the matter is neither abstract nor theoretical. Following the enactment of Basic Law: Human Dignity and Liberty over twenty years ago, it is, in my opinion, appropriate both for the development of Israeli constitutional law and practically, that such issues as these be considered. Moreover, as I explained in detail in the judgment in the matter of the Nationality Law, in the United States constitutional rights are categorized into three levels for the purpose of establishing the strictness of the required judicial review (HCJ 466/07 Galon v. Attorney General, para 4 (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). Lastly, the case before us comprises liminal elements, as the President pointed out in his opinion. The general view in regard to the proper balance between freedom of the press and the right to one’s good name may, in my opinion, explain the different positions adopted in this Court and in the District Court. To illustrate the matter, even justice Rubinstein noted in his opinion that “I, too, am not of the opinion that the story reflected a lack of good faith”. Thus, the dispute concerns the legal test – the existence or non-existence of a social obligation – and not the professionalism of the publication.

            As for my position in all that regards the constitutional hierarchy between the right to reputation and freedom of the press, I will suffice with a few comments. Indeed, “a good name is better than fragrant oil” (Ecclesiastes 7:1). But I would not go so far as to say that a good name and human dignity are one and indivisible (paras. 35-36 of the opinion of Justice Rubinstein). We are not speaking of alternative terms, despite the strong bond between them. That is not the main thing. As my colleague pointed out, the two competitors – good name and freedom of expression – do not expressly appear in Basic law: Human Dignity and Liberty. But they may be said to derive from human dignity (Human Dignity: The Constitutional Value and its Daughter Rights, vol. 2, 616, 708 (2014) (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]. I would go one step further and say that freedom of expression – especially journalistic – has been recognized as a supra-legal basic right from the earliest days of our legal system. It was held that this right constitutes the source of other rights (the Kol Ha’am case, ibid.).

…

            In Ireland, as opposed to Israel, freedom of expression appears in a somewhat circumscribed form. Thus, article 40.6.1 of the constitution establishes: “the State shall endeavour to ensure that organs of public opinion shall not be used to undermine public order or morality or the authority of the State”. In Australia, there is no constitutional or statutory provision protecting freedom of expression, and it was the case law that developed the subject was (see, for example, in regard to freedom of political speech: Australian Capital Television v. Commonwealth (1992) 177 CLR 106; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520). As opposed to this, in Canada freedom of expression expressly appears in sec. 2(b) of the Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms: […] (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. This freedom is, of course, subject to the Reasonable Limits Clause (sec. 1). Canadian case law in this regard is most varied. Thus, I would note the Zundel case, which voided sec. 181 of the Canadian Criminal Code that prohibited knowingly publishing a false statement – e.g., denying the Holocaust – because the criminal prohibition improperly violated freedom of speech (R. v. Zundel [1992] 2 S.C.R. 731). Lastly, in South Africa, freedom of expression is expressly anchored in sec. 16 of the constitution. The right is broad. Interestingly, one exception is incitement to imminent violence, and another is advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

            I have presented the matter in a nutshell only to illustrate my view that we must act in accordance with an internal Israeli system, although I agree that examining the situation in foreign legal systems would enrich the discussion. I would add my personal view that much can be learned from the American legal system’s approach to freedom of speech – which is very developed – and the relationship between it and the strength of democracy there is worthy of thought and admiration.

9.         I would make two points in concluding my remarks on the term good faith. The President is of the opinion that in examining a journalist’s good-faith defense, weight should also be given to the motivation for publication – for example, was the motive a desire for increased ratings or to publish a ringing scoop. The President is correct in that it is good that every professional examine his motives so that the desire for success not clash with the sanctity of the work. However, in my opinion, there is a long way between that and finding that considerations of ratings and scoops constitute a legal accessory for ascertaining good faith.

            There is nothing new in saying that a person is a complex being. Often, a person’s motives are mixed: they comprise both the desire to realize some proper, external objective, and the desire for personal success and advancement. The Sages of Jewish law were also aware of this, and observed that “the jealousy of scribes increases wisdom” (TB Bava Batra 22a). “The jealousy of scribes” and the natural desire to succeed more than others were deemed as means or catalysts for increasing Torah scholarship. In that context, Rabbi Mosheh Lichtenstein, Head of the Har Etzion Yeshiva, noted that King Solomon learned how to properly direct his personal ambitions, and devoted his exceptional talent to the building of the Temple (Mosheh Lichtenstein, The Mishkan of God and the Mikdash of Shelomo (http://ftp.vbm-torah.org/en/teruma-mishkan-god-and-mikdash-shelomo).

            Against this background, I am of the opinion that the desire for personal advancement does not, in and of itself, testify to an absence of good faith. However, such an “egotistical interest” may compromise the principle of good faith if expressed in other forms of conduct, for example, not properly checking sources of information. Only then will those other omissions catch the judge’s eye in reaching a decision.

            The other point concerns the disagreement between the President and Justice Vogelman in regard to the “geometric location” of the responsible journalism requirement. I will briefly state that I concur with the approach of the President that it would be better to examine this requirement in the framework of the good faith element, rather than in the framework of the obligation. That is primarily so as not to blur the difference between fulfilling the obligation and the manner of its fulfillment (and see para. 79 of his opinion).

…

E. Jewish Law

11.       A unique characteristic of the Israeli Defamation Law is that it is rooted in Jewish law. Even the name of the tort [lashon hara] reflects this. But we should not suffice with that. Basic Law: Human Dignity and Liberty has achieved primacy in examining basic rights and conflicts between them. It defines Israel as a Jewish and democratic state. My colleague Justice Rubinstein, as is his practice, provided a fine, broad survey of the laws of lashon hara. I can only add my admiration for the range of sources and their clear presentation. For my part, I would like to emphasize a particular aspect of the Jewish law approach: the application of the laws of lashon hara to the press in a democratic society. In my opinion, this aspect requires a broader view for three reasons. First, the precedents of the Torah and the oral law. Second, the exceptions to the prohibition upon lashon hara arising from halakha, including the writings of the Hafetz Hayim. Third, the laws pertaining to the public in general (as opposed to halakhic decisions concerning individuals), and the State of Israel, in particular.

12.       On the basis of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16), Maimonides distinguishes three prohibitions. The first – “Who is a talebearer? One who collects information and goes from person to person, saying: This is what so and so said, and this is what I heard about so and so. Even if he tells the truth, it destroys the world” (Mishne Torah, Sefer Hamada, Hilkhot Deot 7:2). A talebearer is, therefore, one who trades in information, even though it is not disparaging (see the commentary of the Kesef Mishne, a scholar of the Land of Israel of the 15^th cent. [sic] [R. Joseph Karo, 1488-1575 — trans.] ad. loc.), and even of no benefit. The second – lashon hara: “and he speaks deprecatingly of his fellow, even though he speaks the truth” (ibid., 7:2). And third: “but one who tells a lie is called a defamer of his fellow’s good name” (ibid.).  It should be emphasized that gossip [tale bearing] and lashon hara concern “telling the truth”.

            Nahmanides disagrees as to the source of the prohibition. According to him, the prohibition is based upon the conduct of Miriam, and the Torah’s injunction: “Remember what the Lord your God did to Miriam on the journey” (Deut. 24:9). That refers to the story in Numbers: “Miriam and Aaron spoke against Moses because of the Cushite woman he had married” (Numbers 12:1). Miriam challenged her brother Moses as to why he did not maintain family relations with his wife as Aaron did with his wife, and Miriam with her husband.

            Nahmanides’ approach includes two interesting points. One:

In my opinion, this is actually a positive commandment, like “remember the Sabbath day to sanctify it”, “remember this day, on which you went free from Egypt” … which are all commandments. If so, this verse, too, is like those, it being an admonition against speaking lashon hara. He commanded by way of a positive commandment that we remember the great punishment that God imposed upon the righteous prophetess who spoke only about her brother for whom she showed mercy and loved as herself. She said nothing to his face that would shame him, nor in front of others, but only in private, between herself and her holy brother. Yet all her good deeds were of no avail to her. And you, too, if “you are busy maligning your brother, defaming the son of your mother” (Psalms 50:20) you will not be saved… And how is it possible that there is no explicit negative commandment against lashon hara in the Torah, nor even a negative commandment derived from a positive commandment, when it is equated to bloodshed? But this verse comprises a great warning to refrain from it both in public and in private, whether or not to cause harm and shame. And this is one of the 613 commandments (Nahmanides’ commentary on Deuteronomy. 24:9).

Like Maimonides, Nahmanides deems the prohibition upon lashon hara as particularly severe. But he wonders why the matter is related in a story rather than as an explicit command. It should be noted that even according to Maimonides, the explicit Torah prohibition is of gossip, whereas lashon hara is a type of subcategory. One might say that the prohibition is introduced by appending it to a story, contrary to the usual biblical practice, in order to emphasize the uniqueness of the prohibition upon lashon hara as one that arises in the context of social interaction. Moreover, the matter is dependent upon circumstances. From the Bible, it appears that Miriam’s intention was constructive – to help her sister-in-law. She raised the matter, together with Aaron, only before Moses. However, in view of Moses’ humility, as is related further on, she should have been less hasty in judging as she did in presenting the matter to Moses.

            Whatever the case may be, the second point is the one relevant to the matter before us, and is expressed in another of Nahmanides’ insights:

In the matter of Miriam, we were commanded to inform our children and tell it for the generations. And even though it would have been proper to conceal it so as not to deprecate the righteous, Scripture commanded that we make it known and reveal it so that the warning against lashon hara will be in their mouths, because it is a great sin and causes many evils, and people always stumble in its regard (Nahmanides’ commentary to Deuteronomy 25:17).

 

            In other words, if the prohibition is so severe, and those involved were only these three sibling prophets, is not the injunction to remember the incident not itself a form of lashon hara? Is this not something of a contradiction? Nahmanides’ answer is that it is important from an educational perspective to present the matter so that we may learn the about the nature of the prohibition, and that is the source for permitting its publication for posterity. The Bible provides many examples of this approach of not refraining from criticizing the nation’s great leaders – even Abraham, David and Solomon.

            An example of the application of this approach can be found in the Talmud. In the parashat Balak [sic][1] in Numbers, we are told of the gatherer of sticks on the Sabbath who was put to death [Numbers 15:32-36]. His name does not appear in the Bible. Rabbi Akiva teaches us that the man was non other than the father of the five women who requested an inheritance, and their request for non-discrimination against women was accepted. The Talmudic sages were not pleased with Rabbi Akiva’s novel idea. As the Talmud states:

Our Rabbis taught: The gatherer was Zelophehad, and it is said (Numbers 15:32): and while the children of Israel were in the wilderness, they found a man [gathering sticks, etc.], while later it is said (Numbers 27:3): our father died in the wilderness, etc. Just as there it is Zelophehad, so here it is Zelophehad. This is R. Akiva's view. R. Judah b. Batera said to him: Akiva, in either case you will have to give an account. If you are right, the Torah hid him, while you reveal him. And if not, you denigrate a righteous man (TB Shabbat 96b).

            Rabbi Judah b. Batera’s claim is that Rabbi Akiva’s statement is merely a conjecture, and the claim that Zelophehad died in the desert as a result of his sin is not necessarily true. In either case, if Rabbi Akiva told the truth, why did he reveal what the Torah had hidden, and if it was not the truth, why impugn Zelophehad? Nevertheless, and even though neither Rabbi Akiva nor any other rabbis reply to Rabbi Judah b. Batera, the view according to which Zelophehad had sinned has been preserved over the generations. This is not unique to that story. Many midrashic narratives and Torah commentaries are not complimentary to a particular person, and are not necessarily based upon some objective, verifiable truth.

13.       As noted, not only biblical precedent, but the laws of lashon hara, as well, open the door for qualifying the prohibition upon lashon hara.

            The first rule is that of “publicly known”. As stated in the Be’er Mayim Hayim: “No proof can be brought … from what is written in Arvei Pesahim … since this may be publicly known, and lashon hara is not applicable” (commentary of the Hafetz Hayim on his book, Hilkhot Lashon Hara 4:41). In other words: “In any case, everyone saw” (ibid. 5:8). This principle is expressed in a situation of “before three”, regarding which Maimonides ruled: “If such statements were made in the presence of three people, it has already become public knowledge. Thus, if one of the three relates the matter a second time, it is not considered lashon hara” (Mishne Torah, Hilkhot De’ot 7:5). According to this exemption, a private discussion differs from a one that has been made public, even if only partly (three people). This exemption is subject to conditions, but it may be relevant to information that, in any case, is in the public domain.

            To this we can add the exemption in regard to preventing harm, and even more so, to prevent harm to many, on the basis of the commandment “you shall not stand against your neighbor’s blood” that is the continuation of the verse “You shall not go up and down as a talebearer among your people” (Lev. 19:16). As the author of Arukh HaShulhan who lived at the beginning of the 20^th cent. [Rabbi Yechiel Michel Epstein, 1829-1908.—trans.] wrote: “When a person sees another drowning at sea or being attacked by robbers or a wild animal, or other types of evil, and he can save him himself or can hire others to save him, but does not save him, or he hears haters conspiring to harm him, and he does not notify him, or when a person knows of a harmful man who wishes harm his fellow, and he can appease him but he fails to do so, and in all similar instances, transgresses the commandment: ‘Do not stand against the blood of your neighbor’ … and all the more so he is obliged to rescue his fellow from any harm or damage that other seek to cause him, and all the more so he is obliged to prevent harm to the many, and must prevent it if he is able to prevent it” (Hoshen Mishpat 426:1) (emphasis added).

            It should be noted that the prohibition upon telling lashon hara, despite its severity, may retreat before another commandment – “Do not stand against the blood of your neighbor”. Last in this context is lashon hara for a constructive purpose, which I will address below. I would note at this stage that none of the four parts of the Shulhan Arukh – one of the primary legal codices – treats of the laws of lashon hara. This can be explained. Although lashon hara constitutes a legal obligation, it is also viewed in terms of a virtue. That would, therefore, appear to be why Maimonides classified lashon hara under the category of hilkhot de’ot [laws concerning matters of personal development – trans.], and the great moral scholars addressed this in their works (see, e.g., chap. 11, “Details of the Virtue of Cleanliness”, in Mesilat Yesharim  by Rabbi Moshe Chaim Luzzatto (the Ramhal, Italy, 18^th cent.)). The merger between halakha and the duty to distance oneself from vices lead to the situation wherein when the two are in conflict, for example, a negative statement for constructive purpose, the prohibition upon lashon hara may be altered and become permissible and even a mitzvah in the framework of a desire to repair.

14.       Notwithstanding the possibility of developing the laws of defamation on the basis of the halakhic tools cited in the previous section, that it not the heart of the matter. In law, including Jewish law and halakha, a precise definition of the question is essential for an appropriate resolution. The Hazon Ish [Rabbi Abraham Yeshayahu Karelitz, 1878-1953 – trans.] stressed that often the main problem in legal decision making is not knowing the law, but rather recognizing the reality and factual aspect of the decision (Iggerot HaHazon Ish 31 (Bnei Brak, 5737) (Hebrew)); and see Rabbi Yehudah Amital, Not Everything is Halakha, 13 Alon Shevut Bogrim 97-98 (5759) (Hebrew)). The laws of lashon hara are well and good, and they can change the social fabric and the relations among the people living in it. Is suffices to recall the statement that because of baseless hatred and lashon hara “the Temple was destroyed [the Second Temple] and we were exiled from our land” (from the preface to Hafetz Hayim). Still, the question before us does not concern the obligations of individuals, although that is the primary halakhic concern and focus of Hafetz Hayim – Shemirat HaLashon.

            The issue before is different. 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. The consideration of preventing damage is known to all, and the halakhic considerations are given to change. 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. The religious view is that halakha has the power to adapt itself to changing realities.

            We will suffice with a few examples. Rabbi Shaul Yisraeli – a member of the Supreme Rabbinical Court in Jerusalem, rabbi of Kfar Haroeh, and Head of the Mercaz HaRav Yeshiva, who died some 20 years ago – addressed the issue of police activities of the Sabbath. In the course of raising several authorizations, including several types of ongoing activities, Rabbi Yisraeli emphasized the principle that “it would not be at all unreasonable to say that all agree with the basic principle that the harm of many is equivalent to saving the life of an individual … saving the public from harm … is a consideration of saving life” (Amud HaYemini 17).

            Rabbi Yechiel Weinberg – author of Seridei Eish, who died in Switzerland some 50 years ago – was asked by the Chief Rabbi of Israel, Rabbi Yehuda Unterman, for his opinion on performing autopsies for medical purposes in Israel. Rabbi Weinberg stressed the general prohibition, but wrote that he did not think it proper that a rabbi who did not live in Israel should decide the matter for the Chief Rabbi of Israel. Nevertheless, he was willing to state his personal opinion, adding:

In out day, the question of autopsies is a state question, and a question for those living in that state. This question was addressed by the great Noda BiYehuda [Rabbi Yechezkel ben Yehuda Landau, 1713-1793 – trans.] as a private question, and he was thus correct in his instruction. Today, it is a question for the entire nation, and a question of the state and for its status in the greater world that listens attentively to everything that occurs in the Land [of Israel]. Needless to say that the way the civilized word relates to our new state is one of the important factors that preserve our country, and one of the most important conditions for the security of the state and the people who reside in it (published in 12 Tehumin 382, 384 (5752) (Hebrew)).

            Another aspect of the health system in halakha was addressed in a book published this year by Rabbi Re’em HaCohen, Head of the Otniel Yeshiva and community rabbi of Otniel. The book treats entirely of the issue of pikuah nefesh [saving life]. It explains that pikuah nefesh must be addressed in the context of the public – whether in regard to public systems, the removal of corpses on the Sabbath, and in regard to desecrating the Sabbath for the purpose of treating mental health issues in an emergency situation (Responsa Badei Ha’Aron: Responsa on Contemporary Issues – Pikuah Nefesh) (Hebrew)).

            On the basis of the halakha of the public and the state, Rabbi Ben-Zion Meir Hai Uziel, the first Sephardi Chief Rabbi of Israel, was willing to be lenient in regard to the admissibility of the testimony of a person who was not halakhically Jewish.  Chief Rabbi Isaac Halevi Herzog ruled similarly in regard to the halakha if the Pope were to contact the Ministry of Foreign Affairs requesting to join with leaders of other religions in the war declared against communism. The responsum was published in 1950, in answer to a question posed by the rabbi’s son Ya’akov, who then served in the Ministry of Foreign Affairs (Decisions and Writings, vol. 2, Responsa on the Laws of Orah Hayim, 112) (Hebrew)). These examples demonstrate that, in appropriate cases, the question of the law applicable to the public or the state may be addressed differently, with the decisor taking account of broader considerations. The difference is not in the halakha, but rather in a question that may lead to a different answer.

            Can a similar argument not be made in regard to the rules of lashon hara and the press? Would the definition of benefit necessarily be the same from the perspective of the state as opposed to an individual? Let us not forget that the rabbis throughout of each generation recognized the uniqueness of the press. Rabbi Jacob Reischer, who lived in Prague in the 17^th century, noted that the desire to know what is happening in the state and the world is a human need (Responsa Shevut Yaakov, III:23) (Hebrew)). Rabbi Jacob Emden, who lived in Germany in the 18^th century, permitted reading newspapers on the Sabbath both because prohibiting it would cause suffering, and because there is enjoyment in reading them (Reponsa Yaavetz, I:162) (Hebrew)). Rabbi Isaac HaKohen Kook, the first Chief Rabbi of Israel, encouraged the establishing of a daily newspaper, but turned down an offer to serve as editor in chief due to his many responsibilities (Iggerot HaRav Kook, I:185) (Hebrew). As for the appropriate content of newspapers, Rabbi Kook was of the opinion that it should treat of a variety of matters, “and clearly such an organ should not ignore any aspect of life in its entirety, even those that do not directly concern religion” Iggerot, I:277).  Moreover, like the popular Talmudic expression: “Go forth and see how the public are accustomed to act” – nowadays, even hareidi journalism is thriving, and it is not limited to matters of Torah, but deals with “matters of the world” and “matters of the country”. Is it even imaginable that an investigative report about a public figure would receive no coverage until after the conclusion of his trial? Is such a report, which may uncover wrongs and injustice in regard to some group, not of great benefit?

            This may be of consequence for the boundaries of constructive lashon hara. Some of the rules that have been established may be relevant, including the requirement not to increase the wrong beyond what it is, and that the publisher intend benefit (Hafetz Hayim, Hilkhot Lashon Hara, 10:2) (Hebrew). We should note in this regard a ruling by Rabbi Ovadia Yosef according to which a person who knows that an applicant for a driver’s license suffers from some hidden, undisclosed condition, he must inform the Licensing Bureau of what he knows (Yeheve Daat, IV:60). We would similarly recall the ruling of Rabbi Chaim Halevi, Chief Rabbi of Tel Aviv, who died some 15 years ago, that it is not prohibited to work as an informant for the tax authorities, even for pay (Aseh Lekha Rav, I:70). These questions also relate to public aspects of lashon hara.

            I admit that the matters are very complex. At most, I have indicated different directions for questioning, rather than answers. Much has been written of the subject from the halakhic perspective. See, for example, the article published about a year ago by Rabbi Meir Bareli in 33 Tehumin on the subject of publishing lashon hara about elected officials (p. 136). In the author’s opinion, an exemption can be found in certain situations on the basis of the principle that entering the public arena constitutes implied consent – consensual lashon hara in certain circumstances. And see additional halakhic articles (ibid., fn 2; and see the article by Ari Yitzhak Shevet, which I found very helpful both conceptually and for its extensive bibliography – Newspapers and News: Obligation or Prohibition (Hebrew); Steven Oppenheimer, Journalism, Controversy, and Responsibility: Halachic Analysis, 41 Journal of Halakha & Contemporary Society (2001); Rabbi Alfred Cohen, Privacy: A Jewish Perspective, 1 Journal of Halakha & Contemporary Society 53 (1981). However, it would appear that none of these provide a halakhic ruling. It is not my 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. As for the answer, I can only but make recourse to the approach of the Head of the Har Etzion Yeshiva, Rabbi Aharon Lichtenstein, which I have cited in the past in the context of internet theft (CA 9183/09 The Football Association Premier League v. Anonymous (May 13, 2012)). I will state it mutatis mutandis: 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? “The question is posed, the authority exists, and eyes are uplifted. If the great halakhic decisors will succeed in making a decision on the matter”, they will make a real social contribution, “and if they succeed, they will simultaneously contribute to admiration of Torah” (A. Lichtenstein, Lectures of Rabbi Aharon Lichtenstein: Dinei DeGarmei, 200 (5760) (Hebrew)).

            In conclusion, I do not believe that the approach of a good-faith defense for responsible journalism in matters of significant public interest contradicts the principles of Jewish law. In my humble opinion, there is a positive aspect to such an approach.

After these Things

15.       After writing my opinion, I had the opportunity to read the comments of my colleague Justice Rubinstein. I will address them in brief.

            My colleague is of the opinion that the Jewish law sources that I cited are peripheral. I would respond that I am not concerned with the margins but with the core. We are concerned with freedom of journalistic expression on subjects of significant public interest. The issue does not concern a question of private halakha. It is part of state halakha, or more precisely, the halakha of the State of Israel. This is a public issue. I pointed out several examples in areas of importance in Jewish law in which the rabbis of the time found that this is a consideration that defines the answer, and that may lead to different results than those concerning individuals. Can the importance of investigative journalism in a democratic society be denied? I also pointed out that in the framework of the question I present, religious society in all its variety, and with the consent of its rabbis, does not reject reading newspapers, and is even involved in journalism from its own perspectives. That journalism comprises not only Torah subjects, but also news and subjects that have not as yet been resolved and are still under investigation. The solutions for discourse among individuals on the private level are not necessarily identical to those applicable to public discourse. It would seem to me, for example, that the approach cited, inter alia, by my colleague, according to which journalists are deemed bearers of lashon hara, and that it is better to listen to the news on the radio, does not reflect the practice of the religious world, does not express the advantages presented by a free, investigating press, and most of all, does not adequately contend with full variety and complexity of the subject.

            Lastly, my colleague referred to my call for the development of an independent Israeli legal approach to the subject, and notes that I do not explain what it might be. I can only refer to what I wrote in my opinion, above. In my view, an independent Israeli legal approach would recognize the necessity of a responsible press, and that we are concerned with a public duty that grants protection to a journalist, subject to an examination of his good faith. Such a development, proposed by my colleague Justice Vogelman in the judgment under appeal, is appropriate to the present. As for the future, this field is dynamic. It is my hope that the Israeli system will succeed in adopting the positive aspects of the American approach, which has proved its ability to integrate a very robust democratic society and freedom of expression, combined with the approach of Jewish law, along with a serious, thoughtful consideration of the halakha applicable to the state, and its influence upon the laws of defamation. There is much to be done. But that is the present reality, and this is the hope for the future, as is appropriate for the State of Israel as a Jewish and democratic state, in accordance with the Basic Law.

 

 

 

            CA 723/74

"Ha'aretz" Daily Newspaper Ltd. and Others

v.

The Israel Electric Corporation Ltd. and Another

 

 

 

 

The Supreme Court sitting as the Court for Civil Appeal

            [24.2.1977]

Before Berinson J., Shamgar J. and Ben-Porat J.

 

 

 

Editor's synopsis -

                This is an appeal from a judgment for the Respondents, the Plaintiffs in the lower court, in a civil action for defamation, based on an article published in the Defendant newspaper. During a period of national recession, the Plaintiff company, a public government corporation, purchased an expensive luxurious car for the use of its Director General, the second Plaintiff-Respondent, who was close to retirement. After considerable public criticism of the purchase, the Plaintiffs announced that the Director General would continue to use the old car he had previously used and that they would put the new car up for sale.

           

                The article published by the Appellants, the Defendants below, charged that the sale was a sham and that the Plaintiffs did not really intend to sell the car. It stated that the Plaintiffs did not make any serious effort to sell the car, that they turned down offers to purchase the car at a reasonable price and that they actually placed impediments in the way of its sale. The article alleged that the Plaintiffs really sought to gain time so as to weather the storm of public protest until the public furor will have passed, after which the car would be returned to the Director General's use.

           

            Having failed to establish their defense that the allegations contained in the article were true (under Israeli law, the burden of proof in this matter rests on the defense), the Defendants sought to defend the article as an expression of opinion in good faith concerning the injured party's conduct in a public function or in connection with a public matter. The lower court rejected this defense as well, on the ground, among others, that the defamatory contents of the article were primarily statements of fact rather than opinions.

           

                In a divided decision, the Supreme Court reversed the lower court's judgment. Justice Shamgar wrote the majority opinion in which he held:

               

I.       Freedom of expression is a fundamental right recognized as such in Israeli law. The Law Forbidding Defamation, 5725-1965, which is intended to protect persons' reputations from being besmirched, should be interpreted and applied in a manner that does not infringe upon or unduly limit the proper exercise of this right.

 

2.      This point is all the more significant when what is at issue concerns the criticism of a public official or of a public body in connection with its official conduct. Aggressive, even strident criticism should be encouraged in such matters, in the public interest. The law's provisions concerning the defense that the defamatory publication was the expression of an opinion concerning a public matter, made in good faith, should not be whittled down by narrow interpretation and application.

 

3.      Just as the defense of truth is not lost when the defamatory matter contains inaccuracies that are minor in nature and not themselves injurious, so too the defense of good faith expression of opinion in a public matter will not be lost even if some of the factual grounds on which the opinion expressed was based turn out to be erroneous.

 

4.      It is not correct to require that the opinion be correct as a condition of this defense, else it would be unnecessary to relie on this defense, which applies even when the defense of truth fails.

 

5.      The author's criticism of the plaintiffs' conduct need not be the only reasonable conclusion that can be drawn from the underlying facts, in order for this defense to prevail. It certainly should not be required that the author's conclusion comport with that which the judge would have concluded in the circumstances. All that is required by the condition of reasonableness is that there should be a logical connection between the facts and the author's conclusion so that he could have concluded as he did in good faith.

 

                Justice Ben-Porat filed a dissenting opinion. She would have denied the appeal on the grounds, among others, that the factual inaccuracies in the article, on which the author based his conclusions, were not incidental and that the article did not separate clearly facts from conclusions. The broad defense allowed for expressions of opinion in public matters, in her opinion, is conditioned upon the author making such a separation clearly, so that the reader can distinguish between them, can discern how the author reached his conclusion and can reach his own independent conclusions in the matter.

           

            Note - The instant case was reconsidered by a panel of five Justices in Further Hearing 9/77, in which Justice Ben-Porat's dissenting opinion prevailed and the District Court's verdict for the Plaintiffs was reinstated. The opinions in Further Hearing 9/77 are published in this volume, immediately following this case.

           

           

Supreme Court Cases Cited:

[1] C.A. 68/6 Rabinowitz v. Mirlin, 11 P.D. 1224; 30 P. E. 66.

[2] C.A. 534/65 Diab v. Diab, 20(2) P.D. 269.

[3] H.C.73/53, 87/53 Kol Ha'am Co. v. The Minister of the Interior, 7 P.D. 87; 13 P.E. 422.

[4] H.C. 7/76 "Hilron" Agricultural Products Export-Import Company, Ltd. v. The Fruit Production and Marketing Board, 30 (3) P.D. 645.

[5] Cr.A. 24/50 Gorali v. The Attorney General, 5 P.D. 1145; 6 P.E. 3.

[6] H.C. 206/61 The Israel Communist Party v. The Mayor of Jerusalem, 15 P.D. 1723.

[7] C.A. 90/49 Bentov v. Kutik, 5 P.D. 594; 4 P.E. 190.

[8] C.A. 160/70 Hubayshi v. Disenchik, 24(2) P.D. 394.

[9] C.A. 326/68 Assa v. Livneh, 23(2) P.D. 23.

[10] C.A. 382/58 Tax Assessor v. Ziso-Brantel, 12 P.D. 1732; 36 P.E. 384.

[11] H.C. 14/51 The Attorney General v. Rotem, 5 P.D. 1017; 5 P.E. 304.

[12] C.A. 36/62, 92/62 Ozri v. Gilad, 16 P.D. 1553.

[13] C.A. 34/71 Friedman v. Chen, 26(1) P.D. 524.

[14] C.A. 250/69 Modi'in Ltd. v. Chatouka, 23(2) P.D. 135.

[15] C.A. 134/67 Eban v. Disenchik, 21(1) P.D. 527.

[16] Cr.A. 215/58 Ben Avraham  v. The Attorney General, 13 P.D. 393; 38 P.E. 349.

 

English Cases Cited:

[17] Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) 50 T.L.R. 581; sub nom. Princess Alexandrova v. Metro-       Goldwyn-Mayer picturwes, Ltd. 78 Sol. Jo. 617 (C.A).

[18] Scott v. Sampson (1882) 8 Q.B.D. 491; 46 L.T. 412; 46 J.P. 408; 30 W.R. 41 (D.C.).

[19] London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409; (1969) 2 Q.B. 375; sub nom. London Artists v. Littler (and Associated Actions) (1969) 2 All E.R. 193 (C.A.).

[20] Lewis v. Daily Telegraph, Ltd. (1963) 2 All E.R. 151; sub nom. Rubber Improvement Ltd. v. Daily Telegraph, Ltd. (1964) A.C. 234; (1963) 2 W.L.R. 1063; 107 Sol. Jo. 356 (H.L.).

[21] Slim v. Daily Telegraph, Ltd. (1968) 2 Q.B. 157; (1968) 2 W.L.R. 599; 112 Sol. Jo. 97; (1968) 1 All E.R. 497 (C.A.).

[22] Plato Films v. Speidell (1961) A.C. 1090; (1961) 2 W.L.R. 470; 105 Sol. Jo. 230; (1961) 1 All E.R. 876 (H.L.).

[23] Grech v. Odhams Press, Ltd. (1958) 2 Q.B. 275; (1958) 3 W.L.R. 16; 102 Sol. Jo. 453; (1958) 2 All E.R. 462 (C.A.).

[24] Merivale v. Carson (1887) 20 Q.B.D. 275; 58 L.T. 331; 2 J.P. 261; 36 W.R. 231; 4 T.L.R. 124 (C.A.).

[25] Campbell v. Spottiswoode (1863) 3 B. & S. 769; 3 F. & F. 421; 2 New Rep. 20; 32 L.J.Q.B. 185; 8 L.T. 201; 27 J.P. 501; 9 Jur. N.S. 1069; 11 W.R. 569; 122 E.R. 288.

[26] Peter Walker & Son, Ltd. v. Hodgson (1909) 1 K.B. 239; 78 L.J.K.B. 193; 99 L.T. 902; 53 Sol Jo. 81 (C.A.).

[27] Hunt v. Star Newspaper Co., Ltd. (1908) 2 K.B. 309; 77 L.J.K.B. 732; 98 L.T. 629; 24 T.L.R. 452; 52 Sol. Jo. 376; (1908-10) All E.R. Rep. 513 (C.A.).

[28] Turner v. Metro-Goldwyn-Mayer Pictures (1950) 1 All E.R. 449; (1950) W.N. 83; 66 T.L.R. (Pt.1) 342; 94 Sol. Jo. 145 (H.L.).

[29] Thomas v. Bradbury, Agnew & Co., Ltd. (1906) 2 K.B. 627; 75 L.J.K.B. 726; 95 L.T. 23; 54 W.R. 608; 22 T.L.R. 656 (C.A.).

[30] Carr v. Hood (1808) 170 E.R. 983; (1808) 1 Camp. 33.

[31]Popham v. Pickburrn (1862) 18 E.R. 730.

[32] Kemsley v. Foot (1952) 1 All E.R. 501; (1952) A.C. 345; (1952) 1 T.L.R. 532; 96 Sol. Jo. 165 (H.L.).

[33] Watkin v. Hall (1868) L.R. 3 Q.B.D. 396; 9 B. & S. 279; 37 L.J.Q.B. 125; 18 L.T. 561; 32 J.P. 485; 16 W.R. 857.

[34] McQuire v. Western Morning News Co., Ltd. (1903) 2 K.B. 100; 72 L.J.K.B. 612; 88 L.T. 757; 51 W.R. 689; 19 T.L.R. 471; (1900-03) All E.R. Rep. 673 (C.A.).

 

New Zealand Cases Cited:

[35] Gooch v. N.Z. Financial Times (No. 2) (1933) N.Z.L.R. 257.

 

American Cases Cited:

[36] Chaplinsky v. New Hampshire 315 U.S. 568; 62 S.Ct. 766 (1942).

[37] Beauharnais v. Illinois 343 U.S. 250; 72 S.Ct. 725 (1952).

[38] New York Times v. Sullivan 376 U.S. 24; 84 S.Ct. 710 (1964).

[39] Gertz v. Welch Inc. 418 U.S. 323; 94 S.Ct. 2997 (1974).

[40] Roth v. United States 34 U.S. 476; 77 S.Ct. 1304; 1 L.Ed.2d 1498.

[41] Stromberg v. California 283 U.S. 39; 51 S.Ct. 532; 75 L.Ed. 1117.

[42] Sweeney v. Patterson 76 U.S. App. D.C. 23; 128 F.2d 457 (1942).

 

 JUDGMENT

 

            Shamgar J: 1. We have before us an appeal against the judgment of the Tel Aviv District Court in an action for defamation in which the Appellants were ordered to pay compensation in the amount of 10,000 Israeli pounds to the second Respondent and one pound to the first Respondent.

           

            2. The following are the main facts:

           

            (a) On 14.3.67 the following article was published in the Ha'aretz newspaper:

           

"The Electric Corporation Director General's Car, by the 'Ha'aretz' Transport Correspondent.

 

On 26.10.1966, a news item appeared in Ha'aretz to the effect that the Electric Corporation had acquired a 1966 Chevrolet Impala for its Director General, Mr. Yaacov Peled. The price - 33,500 Israeli pounds.

 

After there appeared in the press letters from readers and articles criticizing this 'wasteful practice' by a State company that suffers from deficits, raises prices and is unable to distribute dividends, Mr. Peled reacted as follows, in Ha'aretz of 8.11.66: '... [A]lthough I do not agree with the opinions that relate the replacement of the car to the policy concerning the recession, I have decided to sell the new car and to continue to use the old one – so as to remove any and all cause for criticism, even if it is unjustified.' Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation.

 

More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually. the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

 

It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price.

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering".

 

            Passages from this article served as the basis for the claim, which is the subject of this appeal, in which each of the Respondents sued the newspaper Ha'aretz, its editor, its owner and the correspondent who wrote the article for 50,000 Israeli pounds damages.

           

            (b) The evidence produced before the District Court established the following:

           

            The episode began, as claimed in the article, in 1966, during the period of the recession, when the second Respondent ordered the car described in the article from the Chevrolet agent in Israel, the Leo Goldberg Company (hereinafter the Goldberg agency) for 33,500 Israeli pounds. At that time, the Respondent had at its disposal a car of the same make, which was a 1963 model, and which had already been driven 150,000 kilometers and was beginning to cause problems. Hence the decision to exchange it. This decision was not presented before the Corporation's management institutions for consideration and decision. To the car which was ordered - which was one of the biggest and most luxurious cars on the Israeli roads during that period there were added an electronic antenna, white wheels and power steering, all of which were novel appurtenances at that time.

 

            News of this acquisition, which was published first in the Maariv newspaper, apparently following upon the overture of an employee of the Corporation, aroused public criticism which was expressed in letters to the newspapers and the complaints of at least one of the members of the Corporation's Board, who had not been consulted in advance. As a result, the second Respondent decided to return the car to the Goldberg agency, after he had it for about two months and had driven about 5000 kilometers. The Goldberg agency refused to cancel the sale and return the payment made, but it agreed to handle the sale of the car as a used model. The second Respondent thought, according to his testimony in court, that he was not obliged to call for tenders for the car. On 8.11.1966, the Respondent published a notice in the press announcing its intention to sell the car. It was transferred to the Goldberg agency on 29. 11. 1966 and the article, which is the subject of this action, was published on 14.3.1967.

           

            When the car was brought to the Goldberg agency, the Corporation's representatives did not fix a price for which the Corporation would be prepared to sell the vehicle and did not empower the agency to act within a particular price range as a basis for negotiating the sale to a potential buyer. Instead, the agency was asked to present every offer, without exception, for the Corporation's prior approval. Save for the second Respondent's notice in the press, mentioned above, there was no other public announcement concerning the offer to sell the car. At first, the car was placed in the agency's sales lot, but when time passed and it was not sold, it was decided to keep it in a nearby closed storage place belonging to the agency, for its protection. Naturally, as a result, it was not exposed to the view of potential buyers who visited the agency.

 

            Several offers ranging between 22,000 and 25,000 Israeli pounds were made for the car, but they were all turned down after the person in charge of sales at the agency ascertained the first Respondent's position. The crux of the matter was that because of the cumulative weight of various circumstances - such as the failure to fix a price, the rejection of offers to purchase the car at a price which appeared reasonable in the light of the economic situation and the car's nature, the passage of time and the advanced process of aging of the model in consequence thereof, the Corporation's apathetic and even discouraging attitude whenever a potential buyer contacted it by telephone and the absence of any urgency in the effort to find a buyer the person in charge of sales at the Goldberg agency, Mr. Ben-Ami Amir, received the impression that the Corporation did not really intend to sell the car. According to him, he usually succeeded in selling a used vehicle within several weeks. Mr. Amir said in his testimony in court that:

 

"I received offers. I asked Shagal. He replied in the negative. The offers which I received were 24,0000 Israeli pounds and again 24,000 pounds and 25,000 pounds.... After several offers from agencies and private individuals the reply was that even if there were an offer of 28,000 pounds I should ask again. At that time, the price of 28,000 pounds appeared to me to be a dream and I therefore concluded that the car was not for sale. This was the first time that I was unable to sell a car.... The main basis for my conclusion that the Corporation did not want to sell the car was that I received no reply at first. I have been a sales manager for many years.... Here, for the first time, I did not receive a single satisfactory reply concerning a sale for a certain price. I concluded that they did not intend to sell because no price was fixed for the sale of the car, not at the beginning and not during the course of the weeks that followed ... until I went to Goldberg and told him I would no longer handle the matter...."

 

            According to Mr. Shraga Kantor, who was in charge of the first Respondent's service department and a member of the management, he too had heard the opinions quoted above "which were widespread amongst the Electric Corporation employees who thought that it was all a bluff”. Mr. Amir passed on his impression, as described above, to the fourth Appellant who was, at the time, the first appellant's transport correspondent. He maintained close contact with Mr. Amir who was, as already stated, the sales manager of the Goldberg agency, as well as with those who perform parallel functions in other agencies. Through them he was able to keep up to date with respect to the state of the market for used vehicles. Mr. Amir's statements appeared reliable to him and were corroborated later by one of the potential buyers. After receiving the information and before publishing his article, the first Appellant approached the first Respondent's spokesman, told him what he had heard and asked for his reaction. The spokesman refused to react because, as it appears, of a general directive given him by the second Respondent not to give any information to the Ha'aretz newspaper.

           

            On 21.3.1967, after publication of the article, the late Mr. Leo Goldberg wrote to Ha'aretz seeking to describe the sequence of events and pointing out, among other things, that "we received no offer of 24,000-25,000 pounds" save from several second-hand car dealers. It appeared that what was said in the letter was not consistent with the facts known to Mr. Ben-Ami Amir or with those known to the Corporation: that a certain fruit wholesaler had offered Amir 25,500 pounds for the car and that he had repeated his offer by telephone directly to the Corporation. The Corporation did not propose, as is customary, any counterprice which appeared to it to be more reasonable, and did not even reply to the offer.

           

            In May, 1967, after publication of the article and after the action, which is the subject of the appeal, had been brought, the second Respondent contacted the manager of the Hadera Paper Mills and the Chairman of its Board of Directors and persuaded them to buy the car for 28,000 pounds. The deal was closed.

           

            3. The Respondents' claim was brought on 20.3.1967. It was based on a part of the article, beginning with the words, "More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale ..." (the fifth, sixth and seventh paragraphs quoted above), and on the article's concluding sentence: "The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering." The full text of the article was attached to the statement of claim. The Respondents claimed that the above extracts implied that the first Respondent had been guilty of -

 

          "corruption, deceiving the public, mismanagement of its affairs and its business, management by way of manoeuvering, bothering the Leo Goldberg agency and its employees in vain and misleading them."

           

            According to the statement of claim, the article charged the second Respondent with -

           

          "corruption, deceiving the public, lack of integrity in his office, mismanagement of the affairs of the Corporation and conducting the affairs and business of the Corporation by way of manoeuvering."

           

            These matters come within the definition of defamation for which the Respondents claimed the damages referred to above.

           

            The appellants, in their statement of defense, took exception to the Respondents' interpretation of their article, denied that it contained anything defamatory and pointed out that "what was said in the article is true and the publication was in the public interest" (section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law)), and, that they will further contend that the publication is protected by sections 15(2) of the Law (the defense of good faith because of a legal, moral or social duty to publish the matter), 15(4) (expression of an opinion concerning the injured party's conduct in an official or public capacity or in connection with a public matter) and 15(6) (criticism of an act which the injured party performed in public).

           

            In a motion brought before the court of first instance, the Respondents asked that the defense under section 15(2) of the Law be struck out in limine. This application was dismissed by the Registrar and suffered the same fate in their appeal to the District Court. However, the further appeal to the Supreme Court was allowed and this defense was stricken (C.A. 213/69, The Israel Electric Corporation v. Ha'aretz, 23(2) P.D. 87). There remained, therefore, at the opening of the original action, only the defenses under sections 14, 15(4) and 15(6) of the Law.

 

            4. The main issue before the court of first instance was whether to classify the article's contents as being matters in the nature of facts or as expressions of opinions, and this continued to be an issue before us. The Appellants were of the opinion that most of the published matter was of the nature of conclusions and therefore constituted opinions. This matter could not, therefore, be examined under the aegis of section 14 of the Law, and was subject only to the defenses laid down in sections 15 and 16 of the Law.

           

            In its judgment, the District Court broke down the publication into its substantive elements and its drafting and concluded that it consisted entirely of matters of fact, save for the following two short items, which are in the nature of expressions of opinion:

           

"which will never happen" (i.e. - finding a buyer for 28,000 pounds).

 

and -

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The District Court found signs of both opinion and fact in two other extracts. It stated in this regard:

           

"The statement: 'If they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market', could be seen to be a continuation of the matters quoted above concerning the Goldberg agency's clerks' conclusions that the Electric Corporation was not interested in selling the car. It could also be seen as the journalist's statement, to give strength and foundation to the employees' conclusion. If we view these words as those of the employees themselves, that is to say, this is their logic and the reason for their conclusion, then it would be an argument of fact, whereas, according to the other alternative, it is an expression of the author's opinion. The same applies to the following paragraph, concerning the question whether it is easy or difficult to sell a luxury Impala. It could be seen as an expression of the author's opinion concerning the state of the car market and it could be said - and I tend toward this view - that the general state of the market is a matter of fact."

 

            The District Court rejected the Appellant's defense that the article constitutes a "matter of opinion". In its view, expressions of opinion, too, must be grounded in truth. Just as presentation of data which is not true does not benefit from the defense provided in section 14 of the Law, so too, the expression of an opinion not grounded in truth does not benefit from the defense of good faith. According to the court:

           

"Good faith and truth, although not synonymous, are bound together for purposes of the defense against defamation."

 

            Furthermore, expressions of opinion, which may be understood by a reasonable reader to be assertions of fact, will be seen to be and will be classified by the court as factual claims and not as expressions of opinion.

           

            In applying the above principles to the issue under consideration, the District Court noted that in its opinion the Appellants had no factual basis for imputing the serious allegations contained in the article to the Respondents. Only three and a half months had expired from the time that the car was returned, not four, as stated in the article. The incident occurred during a period of recession and for this reason there were no eager buyers of the car. The criticism of the original acquisition of the car was not at all relevant.

           

            The assertion that the car was "supposedly" for sale, implied an intention to mislead from the very beginning. This was without foundation, just as the imputation to the second Respondent of an intent to acquire the car after his retirement was nothing more than speculation by the Appellants. The argument that the end of the model year was imminent was also proved to be incorrect, since the article was written in March of the particular year, and the model year of American cars, unlike that of European cars, is determined by the Gregorian year. The Goldberg agency did not make any effort to sell the car and the conclusion attributed to its clerks was clearly baseless. The Appellants' reliance on Ben-Ami Amir's words does not relieve them of liability because -

 

"by publishing Mr. Ben-Ami's statements, they took defamatory matter conveyed to them privately by Mr. Ben-Ami Amir and multiplied it many thousands of times, as the number of their readers, and gave it credence among all those persons whom the paper reaches, so as to bring the Plaintiffs into disrepute and to sully their names."

 

            There was also no basis for the suspicion that the Respondents had hidden the car, since it was the Goldberg agency that decided to store it in the closed warehouse.

           

            It is true that the Electric Corporation refused to react when asked to do so by the fourth Respondent before publication of the article, but since this refusal was prompted by the bad relations which existed between the newspaper and the Corporation, he should have known that the Corporation's silence was not connected to the merits of the issue but to their relations with the article's author. The writer was not released, therefore, from his duty to check the facts in some other way.

           

            The Appellants' statement that -

           

"if they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market",

 

does not meet the test of reasonableness and, therefore, bears directly on the claim of good faith. Furthermore, the use of the word "maneouvering" was without foundation.

 

            The District Court analysed the events at length to explain that, in its opinion, a completely different conclusion should have been drawn from the facts instead of that which the Appellants drew, and noted that the article contained an element of -

 

            "stigmatizing the Appellants [the Plaintiffs] as liars and not serious people".

           

            This constitutes defamation, as the Supreme Court had already concluded when it allowed the motion to strike out the defense under section 15(2) of the Law (C.A. 213/69, supra).

           

            After the District Court announced its decision that there was defamation and that it dismisses the defense claims, the parties agreed that the court should fix the amount of damages and costs at its discretion, as well as the form which an apology should take, without hearing any further evidence and arguments. The court awarded the second Respondent 10,000 Israeli pounds compensation, since he had suffered the main injury. The Corporation was awarded compensation in the amount of 1 Israeli pound, primarily in consideration of the fact that it had refused to respond to the fourth Appellant's question when he turned to it before the article was published. The court ordered publication of an apology and determined its wording.

           

            5. The appeal before us covers a wide expanse, from minor arguments concerning matters of procedure and evidence to major issues concerning the principles of the law of defamation. We will not fulfil our duty if we do not make special mention of the comprehensive and clear arguments made by both parties who appeared before us, which were of great assistance to us in fixing the bounds of the dispute and determining its essence.

           

            And now to discuss the rules of law which apply to the matter before us and their application to the facts of the case.

           

            6. A. The Respondents' argument was that the article in question imputed to them "dishonesty and hypocrisy" and stigmatized them as "liars and not serious people". Imputing such characteristics, if in fact this was done, would constitute defamation within the meaning of section 1 of the Law. The test applicable to the existence of defamation according to section 1 is not confined to the subjective insult suffered by the individual against whom the verbal or written injurious matter is aimed, but has an objective basis: that is, what is the influence or relationship of the defamatory matter on the specific plaintiff’s estimation in the eyes of others (C.A. 68/56, Rabinowitz v. Mirlin [1], at p. 1226; C.A. 534/65, Diab v. Diab [2], at p. 274). The prohibition against defamation is intended to fix firmly in enacted law the right of every person that his reputation not be demeaned or injured by false statements that denigrate him (Justice Scrutton, in Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) [17], 50 T.L.R. 581, 584, referring to Scott v. Sampson (1882) [18], 8 Q.B.D. 491, 503.

 

          But the issue before us cannot be resolved by merely applying the definition of defamation in section 1 of the Law to a particular expression. The Law frames rules, whose purpose it is to create effective protection of the individual against being injured by the publication of defamatory matter, so that this area resembles the laws of privacy which seek to prevent unlicensed or uncontrolled intrusion into the private domain (see Thomas I. Emerson, The System of Freedom of Expression, 1970, p. 517). The problem that arises in this field of the law is not confined to the need to define the nature of the act in question or of the injury resulting from it, but that both the law forbidding defamation and that protecting privacy, raise the question where should the line be drawn between them and the right of freedom of expression.

         

          B. The relationship between defamation and freedom of expression has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances. There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness (see the words of Justice Murphy in Chaplinsky v. New Hampshire 315 U.S. 568, 571-572 (1942) [36], and of Justice Frankfurter in Beauharnais v. Illinois 343 U.S. 250 (1952) p. 266 [37], according to whom defamatory matter is not protected by the right of freedom of speech).

         

            But the attitude giving exceptional preference to the prohibition against publishing defamatory matter over and above the right to freedom of expression has been abandoned in the United States, for example, with regard to defamatory matter concerning holders of official or public office, and the principle which gives superior status to freedom of expression concerning subjects of public interest connected with holders of official or public office has been entrenched there (see New York Times v. Sullivan (1964) [38] and the subsequent judgments based thereon). The tendency to add constantly to the types of office holders to which this principle applies was restrained lately by the judgment in Gertz v. Welch Inc. (1974) [39], but there was no erosion of the basic approach described above with respect to the mutual relationship between defamation of office holders and freedom of expression.

           

            There is no need to try our hand at describing the tendencies and considerations that lie at the basis of any decision which is required to be made, in the varying circumstances, to resolve the conflict between one party's right to an unsullied name and another party's right, in a free society, to give expression at will to his opinions and ideas. The issue before us is more limited as it concerns a publication about the holder of a public office and relates to a public matter. We can, therefore, confine ourselves to this subject only. The first Respondent is one of the largest government companies with respect to the scope of its operations and the number of its employees; it provides a vital service to the general public, and it has a meaningful and daily relationship with every citizen. The second Respondent is the Director General of the corporation which, as a Government company, is responsible to a Government Ministry (at the time, the Ministry of Development), and because of the nature of its objectives and its economic and public standing, he must be deemed to be the holder of an office in the public service. There is also no disputing the fact that the issue before us, in light of its nature, is also a matter of public interest, for, in Lord Denning's words in London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409, 418 [19]:

           

   "... Whenever a matter is such as to affect people at large so that they may be legitimately interested in or concerned at what is going on ... then it is a matter of public interest on which every one is entitled to make fair comment...."

           

            In light of the nature of the matter before us, as described above, it is therefore sufficient that we direct our discussion only to the leading conceptions and approaches that govern the examination of the question of publications concerning holders of public or official office and the relationship between them and freedom of expression. Afterwards we will examine whether and how these rules have been applied in our enacted law.

           

            7. The absence in Israel of a unitary piece of legislation of preferential legal status that embodies its constitutional principles does not mean that we have no statutes with constitutional content or that constitutional legal principles defining the basic rights of man and the citizen are absent from our system of law. The law in Israel embraces, according to our understanding and concepts, basic rules concerning the existence and protection of the freedoms of the individual, even before the bill Basic Law: Rights of Man and Citizen has become enacted law.

           

            The new draft Basic Law is intended to crystallize principles and to designate their boundary lines; its central task is to fix them firmly in enacted law so as to ensure their protection against the ravages of time. Its purpose is to give expression to values according to which the ordinary citizen should be educated and to block in advance the progress of those who seek to trespass on his rights. But even now basic rights are protected and first and foremost among these, in our basic legal conception, is the freedom of expression, and they are a substantive part of the law of Israel. The integration of these rights into our law is, as is well known, the consequence of the system of government which we so coveted (H.C. 73/53, 87/53, Kol Ha'Am Co. v. The Minister of the Interior [3], at p. 876), but the obligation to honor them is not merely a political or social-moral one; it also has legal status.

 

            Thus far as concerns the existence of the right. Now with regard to its standing in the system of law that applies in the State.

           

            The basic right of freedom of expression is of decisive importance for establishing the nature of the regime that rules in a given political or social framework. Furthermore, it is the fundamental basis of, and a condition precedent for, the existence and faithful preservation of most other basic rights. Without freedom of expression the stability of other basic rights, such as, for example, freedom of religion, is threatened and the danger that they will not be fulfilled increases. In addition, the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words (H.C. 75/76, "Hilron" v. The Council for the Production and Marketing of Fruits, [4], at p. 653). Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice.

 

            The above-described approach is generally accepted by all when one is considering the relationship between freedom of expression and the totality of governmental powers, but the maximal restriction of the powers of official authorities in the fields of criminal and administrative law is but a fraction of the measures whose object is the protection of this foundation of a democratic regime. Despite this, it does happen that the said understanding of the mutual relationship is accepted to a lesser degree when in the circumstances of the case there is a clash between the right of the individual to give expression to his opinions and ideas and the right of an office holder who may feel injured by this expression of opinion. It would be superfluous to emphasize the importance of applying the yardstick described above correctly in these latter circumstances as well, since the right to freedom of expression can easily be diminished if, while direct administrative intervention is stymied, the individual is exposed at the same time to litigation within the framework of the laws forbidding defamation for any critical or negative expression of opinion against a public servant in connection with his official conduct, which hurts his standing in the public eye (section 1(3) of the Law) (see in this matter the words of Justice Brennan (p. 724) and Justice Goldberg (p. 737), with which Justice Douglas concurred in the said Sullivan case [38]). It was to such circumstances that Justice Agranat referred in Cr. A. 24/50, Gorali v. The Attorney General, [5], at p. 1160, when he said:

 

"The law recognizes that in known circumstances and under certain conditions the general good demands - so that the said basic right not be emptied of its content – that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            B. As said, we deal here with matters alleged against a Government company and its employee, concerning matters connected with the use of its funds, the observance of its required pactices and the granting of privileges to its employees.

           

            The possibility and opportunity for political, social and other criticism of the functioning of the government, its institutions, companies, representatives and employees is a sine qua non for the existence of a properly functioning democratic regime, as stated by Justice Sussman in H.C. 206/61, The Israel Communist Party v. The Mayor of Jerusalem, [6], at p. 1728:

           

"True democracy will be judged by whether criticism is published and heard, without which the democratic-parliamentary regime will descend to nothingness."

 

            In this context Justice Brennan commented, in the said Sullivan case [38], which dealt with a libel claim centering on an advertisement which contained incorrect factual data:

           

"... freedom of expression ... 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States 354 U.S. 476, 484, 77 S.Ct. 1304, 1308 [40]. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means ... is a fundamental principle of our constitutional system', Stromberg v. California 283 U.S. 359, 369, 51 S.Ct. 532, 536, [41] ... and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion'.... We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials...." (Id. at p. 721).

 

            Factual error may enter a critical statement, as happened in the Sullivan case [38], as to which Justice Brennan asks:

           

"The question is whether it forfeits that protection [of the right to free expression of opinion - M.S.] by the falsity of some of its factual statements and by its alleged defamation of respondent...." (My emphasis - M.S.)

 

            And he refers in this matter to the words of Judge Edgerton in Sweeney v. Patterson 76 U.S. App. D.C. 23, 24; 128 F.2d 457, 458 (1942) [42] that -

           

"... errors of fact, particularly in regard to a man's mental state and processes are inevitable.... Whatever is added to the field of libel is taken from the field of free debate."

 

            Justice Brennan sums up, one cannot condition the defenses provided by law on the absence of factual errors or inaccuracies. According to him:

           

"A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable 'self-censorship'. Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.... The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

           

            C. Freedom of the press is only one of the specific forms of the right of free expression. Furthermore, this is the central area in which the extent and actual existence of the said right are tested.

           

            I will not enter here into the special question of whether the press has a special duty and status with respect to the provisions of the Law, since this question was already answered with regard to the publication before us in the above C.A. 213/69, when the defense under section 15(2) of the Law was struck out in limine. There is no doubt that this is a very important question, and any further study of it will contribute to its additional clarification (see also in this connection C.A. 90/49, Bentov v. Kutik, [7], at pp. 601, 603). As a tentative thought only, it might perhaps be regrettable that these proceedings were fragmented at the Respondents' initiative on the basis of rule 96 of the Civil Procedure Regulations, 5723-1963, so that there was no opportunity to examine all the defenses simultaneously, that is, after hearing the testimony (cf. C.A. 160/70, Hubaishi v. Disenchik, [8], at p. 395).

           

            There is no room for doubt that adoption of the rules granting special standing to the right of criticism in matters of public interest that concern holders of public office does not permit the media to indulge in unbridled writing or release them from all restraints. Later on, we will discuss the provisions of both parts of section 16 of the Law, which contain the rules that create the necessary balance between that which is permitted and what is prohibited, and that the media will not be able to avail itself of any plea of justification when a publication goes beyond the permitted. But any tendency to add to or further limit this balance creates many hazards: the rules concerning freedom of expression are tested in accordance with their long term general advantage and meaning and they should not be evaluated under the influence of events of the moment. The maintenance of basic rights is not disputed when affairs are conducted peacably and when the various authorities earn only compliments. But the real test of freedom of expression comes when there is confrontation accompanied by decisive and unpleasant criticism. Furthermore, the standing and function of the media in a free society are not measured according to how each of their elements and entities meets the expectations of the balanced and moderate citizen, but mainly in light of the media's mission and general importance in the complex network of factors which contribute to the formation of the citizen's opinion and enable him to exercise free evaluation and choice, with knowledge of what is happening and the ability to evaluate the quality and nature of every event, proposal and criticism.

 

            8. Within the framework of the proceedings before us our attention was drawn by both parties to English precedents in defamation cases. Uncontrolled reliance on such precedents could lead to erroneous conclusions. Even in the Civil Wrongs Ordinance, 1944 - which to a considerable extent adopted the law existent at the time in England - there are differences of terminology from that in the English source: in section 20 of the Ordinance, for example, under the heading of "conditional privilege" are included the defenses of "qualified privilege" and "fair comment", although in the country of origin of these rules there are differences between the two. Since then, not only have sections 16 and 22 of the said Mandatory Ordinance disappeared, but the provisions of section 2 of the Ordinance, which tied interpretation of the Ordinance to the rules of legal interpretation prevailing in England, have also been abrogated (Law Amending the Administration and Law Ordinance (No. 14), 5732-1971). In Britain the Defamation Act was enacted in 1952. The Law which we apply here was enacted in 1965 and these two laws differ in many aspects from each other and from the Mandatory Ordinance (compare, for example, section 20(1)(a) of the Mandatory Ordinance with sections 15(2) and 16(a) of the Law.)

           

            One must, therefore, classify and examine the matter very carefully before relying on quotations from English judgments or

           

 having recourse to English legal literature, some of which is already out of date in England (see, for example, Odgers, A Digest of the Law of Libel & Slander, (191l) 6th ed., p. 161, on which the Respondents relied, in comparison with section 6 of the Defamation Act, 1952). It is superfluous to add that equal care must be taken with regard to reliance on those Israeli precedents that are still anchored in the provisions of the Mandatory Ordinance.

 

            9. A. I am of the opinion that the provisions of our law with respect to defamation and the approach on which they are based are consistent with the principles and the values referred to above.

           

            The protection of the individual's good name is realized in the definition of defamation (section 1 of the Law) and in the provisions laying down that defamation is, depending on the circumstances, a criminal offense or a civil wrong. Protection of freedom of expression is formulated in the provisions of chapter 3 of the Law, which contains a list of permitted publications (section 13) and lays down the scope of the defenses of "truth" (section 14) and "good faith" (section 15). The special defense for criticism in connection with public matters appears in section 15(4) of the Law.

           

            B. When the defense of truth is pleaded, the defendant seeking to make this defense successfully is entitled to try to prove that the matter published was true and that the publication was in the public interest. This defense consists, therefore, of two cumulative components and the presence of one of them without the other will not avail the defendant (incidentally, in Britain the cumulative condition that the publication was in the public interest applies only in criminal actions).

           

            The burden of proof in a plea of "truth" is on the person making it (C.A. 326/68, Assa v. Livneh [9], at p. 25; C.A. 382/58, Tax Assessor v. Ziso-Berenthal, [10], at p. 1735).

           

            C. When the defense of good faith is pleaded, the defendant is entitled to argue that he published the matter concerned in one of the circumstances set out in section 15 of the Law and that the publication did not exceed what was reasonable in those circumstances. In the case of this defense, too, there are two interconnected cumulative components and the defense cannot succeed in the absence of either one.

           

            10. A. Clearly, the heart of any dispute in a defamation case is the meaning of the words which it is claimed are defamatory. When examining the meaning of such words they must be interpreted in accordance with what the reasonable reader or listener would understand from them, and recourse must not be had to the legal interpretations by which a legal document would be examined and its content analyzed. Lord Reid said in this context (in Lewis v. Daily Telegraph (1964) A.C. 234, p. 258 [20]:

           

            "... There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of wordly affairs....

 

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."

 

            That is to say, the natural and ordinary meaning of the words will sometimes be found in their simple literal meaning and sometimes by reading between the lines. The natural and ordinary meaning of the words cannot be gleaned by isolating and severing them from their context. On the contrary, they must be seen against their general background and within the context of the publication in which they appear. So that, for example, when the court examines matters published in a newspaper and attempts to apply the test of the ordinary reasonable person, it must evaluate the significance and meaning of the words in the eyes of the ordinary reader and judge how he would have understood them. There is an additional aspect to this rule that directs us to the ordinary meaning of words: the words must be interpreted within the context of the publication in which they appear, without reference to additional extraneous factors which could change or broaden their meaning, unless it can be proved that these additional factors, as well, are within the ordinary knowledge of those who heard or read the words.

 

            B. When examining the significance of matters in the eyes of the ordinary reasonable reader, the publisher's intention is generally of no importance. That is, subject to the provisions of section 16(b)(3) of the Law, this question is altogether irrelevant (H.C. 14/51, The Attorney General v. "Davar", [11], at p. 1053). No evidence is to be brought in connection with the question of what meaning the ordinary reader, or one or another type of reader, would ascribe to the publication, and there is no need to hear testimony about how the published matters were understood, since it is the court itself which must judge the matter (C.A. 36/62, 92/62, Ozri v. Gilad, [12], at p. 1559). According to Lord Diplock in Slim v. Daily Telegraph (1968) 2 Q.B. 157, 165, 173 [21]:

           

            "What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel."

           

            11. A. The meaning and the sense of the article in question is clear on its face: from its wording it appears that the author concluded from the Respondents' actions and omissions that they intended to misrepresent and to deceive the public: that is, at the same time that the second Respondent declared publicly his desire to sell the vehicle, that had been purchased for what was at that time a great deal of money, the hidden intention that is discerned from the circumstances is the opposite.

           

            This comes within the definition of defamation in section 1 of the Law.

           

            On the other hand, I did not find in the article any explicit or implied allegation that the second Respondent intended to retain the car in the corporation's possession in order to acquire it upon his retirement, as the Respondents contend. This contention was raised in the course of a heated argument in court concerning why the second Respondent's imminent retirement was mentioned in the article, but the reasonable reader could not have learned about these matters from the article itself. In the eyes of one who is not familiar with the hidden ways of public authorities, the reference to the imminent retirement only stressed the absence of any justification for acquiring the car in the first place, that is, as a comment to the effect that if the matter concerns a person who is about to retire, why should he not be patient and complete his final year of service with the car he had. That explains the reference to the Respondent's retirement in connection with the story about the acquisition of the car, and that in any event is how it should be understood. Therefore, the dispute before the lower court, which was repeated before us, whether it was permissible to adduce evidence of precedents concerning acquisition of cars by employees of the corporation who retired on pension, had no relevance to the matter of the publication which is the subject of the proceedings before us.

 

            B. Once we have determined that the article contains defamatory matter, the question arises whether the Appellants can benefit from one of the defenses provided by the Law. The relevant defenses are two:

           

            (a) that the matter published is true;

           

            (b) that the publication was made in good faith.

           

            One plea does not obviate the other and it might be that one would suffice without the other. In this connection the question whether we are talking about facts or expressions of opinion, or both, is significant. We must therefore first classify the published matter according to whether it was factual or an expression of opinion and then decide whether the defenses referred to above apply in the circumstances.

           

            C. When an injured party complains about a certain publication because of its contents, one may not restrict the defendant, in presenting his defense to the particular words in the relevant publication on which the plaintiff bases his claim. The defendant is entitled to have recourse to the entire publication, including those parts not referred to by the plaintiff, in order to justify his defense, whether it be based on "truth" or on one of the alternatives in the plea of good faith. The essence of defamation is injury suffered by a person in the eyes of others and the published writings which were brought to the attention of other persons constitute a single entity. There is no justification to dissect them arbitrarily in order to stress a part of the publication which contains defamatory matter and to prevent the publisher from presenting the entire publication, since it is his right that the court view the matters in their natural light as, it may be assumed, they were seen and read by the ordinary reasonable reader (cf. C.A. 34/71, Friedman v. Chen, [13], at p. 529). This does not mean that the part of the publication containing defamatory matter is purified and cleansed of all contamination by the fact that the rest of the publication contains only truthful statements. The other parts of the publication are relevant for the purpose of presenting a complete picture and to reach a conclusion concerning the author's good faith.

 

            The defendant's said right is especially important when the publication contains several facts, some of which are proved, established and true, and do not constitute a ground for the claim, while a small number, concerning which the plaintiff complains, are not true. The relevancy of the other parts of the publication as providing the basis for the expression of the opinion increases, naturally, in proportion to the measure and extent of the truthful statements contained in the publication and is conditioned on these facts being interwoven and integrated into the expression of opinion which is the subject of the action. The approach common in England, which differs to some extent from ours (see Plato Films v. Speidel (1961), [22]), is substantively unreasonable, and recommendations were recently made aimed at changes in the legal position in England (cf. Report of the Committee on Defamation, H.M. Stationery Office, 1975, Cmnd. 5909, p. 34).

           

            D. The publication at issue before us presents a list of facts, alongside of which, or following upon which, are conclusions and evaluations of the author, that are in the nature of expressions of opinion. In order to judge its nature the publication must be read as a whole, because its factual beginning constitutes the basis for understanding the expressions of opinion contained therein. Furthermore, prima facie, any doubts or disputes concerning the classification of any part or selection of the defamatory matter quoted in the complaint can be dispelled by examining the publication as a whole and in context. This method makes eminently clear the stages of the fourth Appellant's evaluation of the situation, beginning with the factual data and ending in his conclusion that the active intervention of the Ministry of Development was called for.

 

            The court of first instance was therefore correct in considering the article as a whole and the Appellants' complaint in connection therewith is unfounded. On the other hand, I do not accept the lower court's ignoring of the influence which the inception of the incident had on the fourth Appellant's considerations and conclusions, but since this subject comes within the ambit of the defense of good faith, I will return to it when I deal with this distinct problem.

           

            E. I am not satisfied with the conclusions drawn by the lower court concerning the division of the article's contents into facts and opinions. Everyone agrees that the following were of the nature of facts:

           

(a)        the acquisition of the car.

 

(b)   the text of the Director General's reply to the criticism leveled against him.

 

(c)   the impending retirement in October 1967 of Mr. Peled, who was 70 years old, and his resumption of the use of his previous car.

 

(d)   the return of the new car to the Goldberg agency.

 

(e)   the instructions with regard to the price and the sale of the car that were given to the Goldberg agency, except the words "which will never happen".

 

(f)    the selection noting that "it is not easy to sell a luxury Impala" up to the words "above the standard price".

 

            From the evidence brought before the court of first instance, as detailed at the beginning of this judgment, it can be concluded that all the above facts, without exception, were satisfactorily proved and that no one disputes that their publication was in the public interest, as required by section 14 of the Law.

           

            It follows, therefore, that insofar as these facts are concerned, the appellants can enjoy the defense of "truth" based on section 14, even if the facts were defamatory.

           

            12. The remaining parts of the publication whose meaning demands our attention, are the following:

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching."

 

[finding a buyer at the price of 28,000 Israeli pounds] "... will never happen."

 

"From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market."

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            Before expressing our opinion concerning the nature of these selections and their legal classification, I will make several preliminary observations about the meaning of section 15 of the Law in general and of section 15(4) in particular, and its relationship to the presumptions in section 16.

           

            13. A. With regard to the mutual relationship between section 15 and section 16: In their arguments before us, the Respondents sought to set forth the provisions of the Law as creating an absolute divide

           

 between facts, on the one hand, and expressions of opinion, on the other hand. While section 14 of the Law deals exclusively with matters of fact, which must be examined solely according to the yardsticks fixed therein, section 15, according to them, deals exclusively with expressions of opinion. However, if we examine the provisions of sections 15 and 16, which are inter-connected, we will see that this is, in fact, not so. Section 15 does not consist solely, as one solid piece, of subjects that are in the nature of opinions (see, for example, the circumstances described in sections 15(1), 15(2) and 15(10)). It follows, therefore, that the presumptions set forth in section 16, which are linked with all the variegated provisions of section 15, do not apply to expressions of opinion alone.

 

            The issue at stake in every case is whether the defendant made the publication in one of the circumstances provided for in section 15. If so, then, the presumption in section 16(a), that he made the publication in good faith, applies, whether the publication contained facts or matters of opinion (see C.A. 250/69, Modi'in Press v. Chatouka, [14], at p. 137, in which the question of good faith, for purposes of section 16(a), was considered in connection with a publication in a newspaper stating that a certain woman was committed to a hospital because of mental disease and the author of the publication sought the protection of the defense contained in section 15(2) of the Law). A similar approach was adopted in Grech v. Odhams Press, Ltd. (1958), [23] in which a publication containing factual inaccuracies was allowed the defense of fair comment by the court after it was shown that the publication was made in circumstances deemed to be privileged.

           

            B. With regard to the unique nature of section 15(4): The defense provided in section 15(4) refers to a publication in the nature of an expression of opinion on the conduct of the injured party in an official or public capacity, in the public service or in connection with a public matter. That is to say, while some of the subsections of section 15 do, indeed, describe circumstances which create a basis for the defense of section 16(a) with respect to the publication of facts, this does not teach us anything about the remaining elements and paragraphs of section 15, as can be seen from the fact that section 15(4), like section 15(5), deals expressly with expressions of opinion only and cannot be stretched beyond that.

  

          The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described. The integration of all the subsections of section 15 with section 16, with the two types of presumptions contained therein, teaches us that it was not the legislature's intention that the courts should examine the wording of the publication as if with a magnifying glass in order to separate out every fragment of fact and deny it the protection afforded by section 16(a) of the Law.

         

          The approach of the Israeli legislature to this matter can be learned also from section 14: in order to decide whether the matter published was true, regard is had to the fundamental facts which reflect the essence of the publication and not to incidental details as to which any injury caused is secondary (see the last sentence of section 14).

         

          Incidentally, it would be difficult to learn anything for the purposes of the issue before us, as the Respondents sought to do, from the above cited London Artists case [19], in which it was held that the words, "... on the face of it appears to be a plan..." were, in their special context, the determination of a fact rather than an expression of the writer's opinion. I doubt very much if this court would have so understood them. But the main point is that the argument concerning the classification of the publication as an expression of opinion was dismissed in that case, first and foremost, because it was raised for the first time in the midst of the proceedings. In any event, there, too, Judge Denning reached his conclusion about the classification of the publication as a totality of facts on the basis of "... a fair reading of the whole letter ...", that is, on the basis of an examination of the document as a whole.

         

          A similar approach, stamping a publication with its dominant hallmark and deciding its fate in accordance with its classification as an expression of opinion even when it contained some facts, found expression in Justice Brennan's opinion in the Sullivan case [38].

 

            C. With regard to the element of truth in an expression of opinion: Criticism of the functioning of a public authority may be aggressive and determined, uncompromising and overtly expressive of the writer's feelings, and it will be protected even if the writer drew wrong conclusions and made a mistaken evaluation, so long as the circumstances laid down in section 16(b) do not exist, that is:

           

"(l) the matter published is not true and he did not believe it to be true;

 

(2) the matter is not true and he had not, prior to publishing it, taken reasonable steps to ascertain whether it was true or not;

 

(3) he intended to inflict greater injury by the publication than was reasonable in defending the values protected by section 15."

 

            The burden of proof concerning section 16(b) is on the Plaintiff (C.A. 134/67, Eban v. Disenchik [15]; C.A. 250/69, [14]), and if the circumstances set forth in section 15 have been proved and the publication did not go beyond what was reasonable, it would not be sufficient for the Plaintiff to show that the publication was not true in order to overcome the presumption of good faith. In other words, it is not enough that the Plaintiff show, for example, that the expression of opinion concerning the conduct of a director general of a public company was not true, but he must also prove additional elements, collected in subsections (1) to (3) of section 16(b), in order to rebut the presumption of good faith. Therefore, there is no basis for the lower court's opinion that:

           

"the concepts of good faith and truth ... are bound together for purposes of the defense against defamation."

 

            With regard to the connection between expressions of opinion and the truth, we have nothing other than the provisions of section 16(b), according to which the absence of truth per se does not negate the defense of good faith, unless additional elements are present as enumerated in this subsection. The lower court's decision would have the effect of emptying section 16(b) of all meaning.

 

            As indicated in subparagraph B above, publications are classified according to their dominant character, so that even if incidental factual details of minor importance become interwoven with expressions of opinion, this would not affect the classification of the publication for purposes of applying section 15(4) of the Law, even if it transpires that some of the factual details are untrue, so long as there are other truthful elements in the publication upon which the expression of opinion was based.

           

            A similar idea appears in the provisions of section 6 of the English Defamation Act, 1952, which states that when the words about which the plaintiff complains are composed -

           

"... Partly of allegation of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained as are proved."

 

            D. With regard to the matter of reasonableness: A substantial part of the lower court's judgment is devoted to the dispute about the reasonableness of the Appellants' assertions. This, for example, is how the lower court reacted to the Appellants' assertion -

           

"if they [the Respondents] had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car would fetch the proper price in the used car market."

 

The court said:

 

"As stated above, this assertion could be construed as the continuation of the above conclusions of the Goldberg agency employees or it could be construed as an expression of opinion on the part of the author of the article. It is irrelevant which of these is chosen since in any case it does not satisfy the test of reasonableness and reasonableness is a basic element of good faith" (My emphasis - M.S.).

           

            Following upon these words, the lower court set out in detail why it thought the appellants had erred in their conclusion concerning the price of the car and why it was preferable in the circumstances of the case not to have rushed to sell the car but to have continued to search for a buyer who would offer a higher price.

           

            It follows clearly that the lower court was mistaken about the nature of the good faith defense and the element of reasonableness included in it. Section 16(a) provides that the defendant will be presumed to have made the publication in good faith if the following two conditions are met: (a) the publication was made in one of the circumstances referred to in section 15 and (b) it did not exceed what was reasonable in such circumstances. The reasonableness demanded here does not mean that the opinion expressed in the publication must be the only, single and exclusive conclusion which can be drawn from the circumstances by pure logical reasoning. The condition not to exceed what was reasonable in the circumstances does not mean that in order for the publication to be protected it must contain only that one interpretation of the events, among several, which the court selects as the most reasonable. The element of reasonableness dealt with by Section 16(a) means that the publication should not diverge, in its wording and its relationship with the events upon which it is based, from every possible logical connection with the facts, such as if someone is called a robber and thief only because he was one day late in settling a debt. There is no attempt in the Law, even indirectly, to coerce any single uniform line of thought and it should not be interpreted as doing so.

           

            The defense of expression of opinion also does not fail because of the derogatory criticism or absence of objectivity in the publication and that does not derogate from its reasonableness. The fact that the publication's wording may not be to the taste of a moderate balanced person does not make it unreasonable. The court may not impose its taste and its logic on the publisher. It must leave room for the strong expression of opinions. The test is as laid down by Lord Esher:

           

            "Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that...." (Merivale v. Carson 1887, 20 Q.B.D. 275, 291, [24]).

 

Lord Denning commented in similar vein:

 

"These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy.... Another person may only read into them imputations of inconsistency and want of candour.... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was educated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words contained derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.... I stress this because the right of fair comment is one of the essential elements which go to make our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspaper should be free to publish his letter. It is often the only way to get things put right...." (Slim v. Daily Telegraph, Ltd. (1968), 1 All E.R. 497, 503, [21]).

 

            14. In the matter before us - that is, the failure to prove the truth of a defamatory publication containing imputations of dishonorable and corrupt motives - the English precedents are noteworthy for their lack of uniformity and even contradictions. Contrary to the strict approach toward such publications and the tendency to grant a defense only to such publications which are founded in truth (as laid down by Justice Cockburn in Campbell v. Spottiswoode, 3 B. & S. 769, 776, 777, [25] on which my learned colleague, Justice Ben-Porat relied) the view of the law expounded by Justice Buckley in Peter Walker, Ltd. v. Hodgson (1909), [26], which differs to no small extent with the former opinion, is now the more accepted one. According to Justice Buckley:

 

"The defendant may nevertheless succeed upon his defence of fair comment, if he shows that that imputation of political bias, although defamatory, and - although not proved to have been founded in truth -, yet was an imputation in a matter of public interest made fairly and bona fide as the honest expression of the opinion of the defendant held upon the facts truly stated and was in the opinion of the jury warranted by the facts, in the sense that a fair minded man might upon those facts bona fide hold that opinion." (My emphasis - M.S.).

 

            That is to say, for this purpose, it is sufficient that a reasonable person could have reached the defamatory conclusion from the facts contained in the publication and that the facts on which he relied appeared in the body of the publication. In the opinion of the authors of the British Report on Defamation mentioned above, this approach clashes also with what was held in another judgment on which my esteemed colleague Justice Ben-Porat relied, that in Hunt v. Star Newspaper (1908) [27]. The opinion contained in the Walker case [26] was approved by the Commission and was also adopted by Gatley (7th edition, paragraph 728) and apparently is the accepted one today in England (paragraphs 164 and 166 of the Report and the judgments referred to therein).

           

            In light of the lack of uniformity in the judicial precedents, it is not surprising that the British jurists are displeased by the state of unclarity in the law of defamation in their country and that, for example, Lord Diplock (in the Slim case [21] referred to above) should conclude that

           

"... the law of defamation ... has passed beyond redemption by the courts."

 

These words should give us cause for extra thought before we draw upon the English precedents for the purpose of interpreting our own enacted law, whose principles are perfectly clear.

 

            All the less, therefore, is it important that we resolve the dispute between the parties before us whether the said Hunt precedent [27] is still valid and binding. In any event, the said English Commission expressed some doubt about this (paragraph 164 of the Report) and we need not re-examine its opinion.

           

            15. A. As can be gathered from the lower court's judgment, it set true cumulative conditions for allowing the defense contained in section 15 of the Law:

           

(a)        the published matter, both facts and opinions, must be true and

 

(b)   the expression of opinion must be reasonable in the eyes of the court sitting in judgment, with regard both to the considerations on which it is founded and to its logic.

 

            The court thus whittled down the defense under section 15 so critically as to empty it of all content: because, in any event, if the truth of the publication can be proved, then there is no longer any need to resort to the defense under section 15, and the lower court's interpretation of the Law would make this section superfluous. As was said in the above Grech case [23], (at p. 281):

           

"otherwise, it seems to me that the defence of fair comment would be almost valueless; for if the jury found that the words were not defamatory or - being defamatory - were true, then the defence of fair comment would not be needed."

 

            But the legislature did not commit the sin of tautology, as would follow by implication from acceptance of the lower court's theory. The function of the defense under sections 15 and 16 is substantially different from that described by the District Court: as explained above, the purpose is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical. The provisions of sections 15 and 16 do not invest the courts with the power of judicial censorship of truth and logic. They are a set of cumulative conditions whose aim is to deny the defense of good faith only to malicious publications, that is, those made in the knowledge that they were false or in reckless disregard of whether they were false or not.

 

            B. The clear nature and content of the extracts from the publication, quoted above in paragraph 12, which were the subject of the complaint, render them obviously expressions of opinion - that is, they are the author's conclusions founded on a set of factual particulars. This is their dominant characteristic, even if here and there certain factual assertions of secondary importance may have been attached to them. Hence, we must examine these extracts in the light of sections 15(4) and 16.

           

            Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion. Similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of "more than four months" as said in the article. So, too, it is of no importance that it was not "the agency's clerks" who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to convey his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, also shows that there were offers from car dealers "who thought they could get the car at this price," and the price set forth in the letter is "24,000-25,000 Israeli pounds".

           

            C. As stated, these extracts teach us that, save for the factual assertions to which we alluded above, we deal here with the expression of opinion, that is, conclusions drawn from a set of factual particulars, some of which were mentioned in the article and some not. The reasonable reader could not have mistakenly understood that these extracts conveyed factual information about a particular, express decision of the corporation not to sell the car, but it is evidently clear that the author drew conclusions, which seemed reasonable to him, from the facts of the case. If there remains any doubt whatsoever about whether this is anything more than an expression of opinion, then the words

 

          "if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it"

           

emphasize that this was a conclusion and an analogy, even argumentative in style, according to the author's logic, which sought to pinpoint the inconsistency in the acts and omissions of the corporation and its representatives.

 

            D. The claim that the author's conclusion is incorrect does not deprive it of the defense provided in section 16, since once the presumption of good faith arises, the Respondents must prove the existence of one of the circumstances set out in section 16(b), if they wish to rebut this presumption, and in this they did not succeed at all.

           

            With regard to section 16(b)(1): In the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant. The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing of time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

            Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b)(2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information in order to circumvent the barrier he himself created by his refusal.

           

            The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher "had not, prior to publishing it [the matter published], taken reasonable steps to ascertain whether it was true or not". But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b).

 

            I would like to note, incidentally, that I very much doubt whether the spokesman for a public authority may take it upon himself within the scope of his duties to apply sanctions against any section of the media. When an employee of a public authority is entrusted with the task of conducting public relations with the authority's clientele, he cannot behave, in the course of his duties, as though he is in his, or his employer's, own private domain. The justification for establishing such a function lies in the existence of the public's right to receive information about what is happening and it is only proper for the spokesman to behave accordingly.

 

            E. The District Court excluded from its considerations the criticism aimed against the very acquisition of the car. In this, too, I take issue with it. The description of this episode at the beginning of the article was not alleged to be defamatory, but when examining whether facts were presented which furnish a basis for the expression of the doubt and suspicion in the article, these matters should not be taken out of their general context. It is reasonable to assume that it was this very event which first and foremost triggered the doubts about the Respondents' judgments: when office holders in a government company have seen fit to provide themselves with a luxury, eye-gouging car in a period of recession, or before or after one, instead of meticulously observing the rules of modesty, which obligate them, and when they have persisted in denying the justice of criticism, then doubts and even scepticism may arise whether they had any proper sense, in this context, about what is proper and what is not, and about what is permissible and what should not be done. When all the events are links in one chain, it would be artificial if one did not recognize this element, too, as a possible factual basis for the criticism in the article. As already noted above more than once, the author does not have to convince the court of the justice of his evaluation but has only to show a factual foundation for his opinions and suspicions; and even if we might have come to a different conclusion, that is not sufficient in itself to undermine any conclusion about the author's good faith.

 

            F. Finally, the Respondents did not succeed in founding the argument based on section 16(b)(3).

           

            16. The Respondents could have put the Appellants' good faith to an immediate test had they taken action according to the provisions of section 17 of the Law which provides:

           

"(a) Where defamatory matter has been published in a newspaper, the plea of good faith shall not avail the editor of the newspaper, the person responsible for the publication of the defamatory matter or the publisher of the newspaper if, having been asked by the injured party or by one of the injured parties to publish a correction or denial on behalf of the injured party, he has not published the correction or denial in a manner as similar as possible to the publication of the defamatory matter and within a reasonable time from the receipt of the demand, provided that the demand was signed by the injured party, that the correction or denial contained no defamatory or other illegal matter and that the length of the correction or denial was not greater than was reasonable in the circumstances of the case.

 

(b) If the newspaper appeared less frequently than once a week, the correction or denial should also be published, upon demand of the injured person, in a daily newspaper."

 

            It is superfluous to add that section 17 is of the nature of a counter-measure against the burden of proof created by section 16(b) and is an efficient instrument for the immediate correction of the injury caused by a defamatory publication. Action in accord with section 17 in the case under consideration could have led to the immediate presentation of the matter in a true light, without waiting for the completion of legal proceedings, ten years later.

           

            17. The article expressed the author's beliefs and those of his sources of information and imputed to the Respondents an intention which they apparently did not have. But that in itself was not sufficient to deny them the defense of good faith anchored in sections 15(4) and 16(a) of the Law.

           

            These provisions of the Law are expressly designed to protect, also, those expressions of opinion which it transpires afterwards were not the truth, as long as the defense of good faith, bolstered by the presumptions in the Law, is available to the publisher of the defamatory matter. It is our task to maintain this defense, in practice and according to the letter of the Law and its intention and the tendencies that lie at its base. I would, therefore, allow the appeal and dismiss the judgment of the District Court.

           

Berinson J.:

 

            I concur with Justice Shamgar's opinion that the appeal should be allowed. Without entering into the details of his reasons and my own for justifying this result, I would like to clarify, in a few remarks only, my general stand in this matter.

           

            My first remark concerns the supreme value that must be accorded to the freedom of expression of the individual with respect to criticism of the conduct of a public functionary in a matter of public interest. In this matter, I understand there is no difference of opinion between my distinguished colleagues, and I join them. Nonetheless, I must repeat and emphasize what was expressly held by this court in the previous proceeding before it (C.A. 213/69, Electric Corporation v. Ha'aretz), that the press as such has no special standing and privilege vis-a-vis anyone else and it must take equal care not to violate the rules of the game laid down in the Law Forbidding Defamation, In Justice Witkon's words:

           

            "Where the ordinary citizen is entitled to regard himself as obliged to speak in criticism of another, a newspaper is also entitled to do so. Like the one so the other, no more and no less."

           

            My second remark is that one should attach special importance to the fact that the journalist, Mr. Kotler, drew both the information and the conclusion that he presented in his article, from a source which was more competent than any other to judge the Respondents' behavior in connection with the sale of the car - none other than the sales manager of the agency to which the car was given for sale - and the principal matters were given in his name. It is true that repetition of a libel is not forgivable and, on the contrary, repetition of a libel in a newspaper can greatly exacerbate matters. But in the case before us, account should be taken of the fact that the publication was based on information received from a competent person who was well-acquainted with the matter and the author himself, who was the Transport Correspondent for the newspaper, was not a "lightweight" and he had asked for the Corporation's comments on the matter before publication and was snubbed. There is no room for doubt that the publication was made in absolute good faith and without malicious intent, and good faith is the main basis for the defense under section 15 of the Law. Great support for the opinion expressed in the article and for the criticism can be found in the Corporation's employees. According to Mr. Kantor, senior employees of the Electric Corporation also thought that the car was returned for sale in order to deceive the public because of the criticism that had been leveled against its purchase. It is true that Mr. Kotler did not know about this at the time his article was published, but it does strengthen the reasonableness of the publication greatly, so that it may benefit from the presumption contained in section 16(a) of the Law to the effect that it was made in good faith. As Justice Shamgar explained in his judgment, the Respondents did not succeed in rebutting this presumption on the strength of one of the grounds contained in section 16(b) of the Law, and the appellants were accordingly entitled to the defense under sections 15(4) and 16(a) of the Law.

 

            Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation for the conclusions expressed and the criticism contained in it. The criticism itself could be exaggerated and unjustified, and this would not render the publication unreasonable. I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance. In this conection I concur with the words of Lord Denning in Slim v. Daily Telegraph, Ltd. (1968) 1 All E.R. 497, 503, [21] quoted by my colleague, which also reflect my general approach in this matter of expression of opinion in good faith about the conduct, acts or omissions of a public functionary in a matter which, according to all opinions, is of public importance.

 

            I therefore agree that the appeal should be allowed.

           

Ben-Porat J.:

 

            On 20.9.1966, the Israel Electric Corporation (the first Respondent) and its ex-Director General, Mr. Y. Peled (the second Respondent) bought a Chevrolet Impala car, model 1966, from the Leo Goldberg Company (the Goldberg agency) for Mr. Peled's use, to replace a similar model 1963 car, which had been in use until then. The price of the car, after a 500 Israeli pound reduction, was 33,500 Israeli pounds.

           

            On 22.10.1966, there appeared an article in the Ha'aretz newspaper which leveled severe criticism against the acquisition of a luxury car with public money during the period of recession which reigned in the country at the time. In light of the public criticism - which is not the subject at issue before us - the Respondent published a notice in the Ha'aretz and Maariv newspapers, on 8.11.1966, in which he sought to justify the purchase on economic grounds because of the condition of the old car, but stated, nevertheless, that:

           

          "I have decided to sell the new car and to continue to use the old one - so as to remove any and all cause for criticism, even if it is unjustified."

           

            On 17. 11. 1966, at a meeting of the Electric Corporation Board of Directors, a majority of the members approved of the Respondent's decision to sell the car and of his notice to the public to that effect. The Chairman even praised the Respondent "for the courage of his decision and the good example he had given which will have a positive response and will improve the Corporation's public image."

           

            On 29.11.1966, the car was transferred to the Goldberg agency to be sold. Before it was transferred, the Corporation offered to return the car to the Goldberg agency at a loss of several thousand pounds, but the agency refused to accept it. Nevertheless, they did agree to accept it for resale, promising to find a suitable buyer. An agreement was reached between Mr. Goldberg and Mr. Shagal, the Corporation's national transport manager, according to which Goldberg would inform Shagal about the price offered by any potential buyer so as to receive his approval.

 

            While the car was at the Goldberg agency, Mr. Yair Kotler, a journalist, published an article in Ha'aretz under the headline "The Electric Corporation Director General's Car". The Respondents had no complaints about the first part of the article, which we will skip over. But they found defamatory matter in the second part of the article (which will be quoted later) on which they based their action in the Tel Aviv District Court against the Ha'aretz newspaper, Messrs. Gershon Schocken and Eliahu Salpeter, and against the journalist, Mr. Yair Kotler (the first three hereinafter "Ha'aretz" and the fourth - Kotler). The action was allowed and hence the appeal before us, which concerns the allowing of the action and not the amount of the damages.

           

            2. At the beginning of the article it was pointed out that the price paid by the Corporation for the car was 33,500 Israeli pounds. After discussing the public criticism of the acquisition of the car and the Respondent's notice of his intention to sell it, the article goes on to say:

           

"Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation."

 

            After this begins the part which the District Court thought condemned the Respondents as liars, not serious and cheaters (paragraph 28 of the judgment):

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten about the incident, the car will be returned to serve the retiring Director General, for it will then be a "used" 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 Israeli pounds for the car. An official in the Electric Corporation's Transport Department refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

…

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The paragraph which was omitted (indicated by the three dots), in which the Respondents found nothing wrong, says:

           

"It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price."

 

            3. The Appellants' learned counsel, Advocate Lieblich, argued before us that the District Court erred in several respects and that it should have accepted one of the two pleas which had been argued in defense: "truth" or "an expression of opinion in good faith". His arguments will be analysed, to the extent required, later. At this stage, I will deal with only one of them:

 

            At a certain stage in the proceedings, the Respondents petitioned the court to strike out one of the Appellants' defense pleas in limine. The issue went as far as the Supreme Court, which in fact ordered it stricken out (in C.A. 213/69). In the judgment the Supreme Court quoted, amongst other things, the following statement by the lower court judge in his judgment (paragraph 8):

           

"The insult which is the subject of the action is the condemning of the Appellants as liars and not serious people. The Appellants did not sue with regard to the first article which criticized the acquisition of an expensive new car during the period of recession. They sued with regard to the second article which imputed to them dishonesty and deceit."

 

            Later on in his judgment, which is the subject of the appeal before us, when discussing the question whether "the publication was 'defamatory' within the meaning of the Law", the District Court judge says (paragraph 27):

           

"After the Supreme Court held as it did in its judgment quoted above and said that the article 'condemned the Appellants [the Plaintiffs] as liars and not serious people', it would appear that I need not say anything further and am not required to decide anything in this matter."

 

            Advocate Lieblich argues that the learned judge was mistaken in regarding himself as bound by some supposed holding of the Supreme Court when in fact that court had merely set forth the Plaintiffs' arguments and nothing more.

           

            There is no doubt that the language of the paragraph quoted above supports this argument. However, not only did the learned judge later interpret the article independently and arrive at the same conclusion, but the Plaintiffs (the Respondents) made it clear in the lower court that they were not claiming that the writing had any special meaning, but were relying on its ordinary, natural meaning. I also have no doubt that if the Director General of a public institution announces publicly that he has decided to sell the car at his disposal, while handing it over for sale only in theory, with the intention of taking it back as soon as the incident will be forgotten, this would be improper, irresponsible conduct, tainted with prevarication and deceit. This would, to the best of my understanding, also be every reasonable reader's interpretation of what was written. As Lord Diplock said in the case of Slim v. Daily Telegraph (1968) 1 All E.R. 497, 501, 507, [21]:

 

            "This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words."

           

            The question is not, therefore, whether what was written imputes to the Respondents the conduct described above, but whether it was permissible for the Appellants to impute such conduct to them, because it is true or because it is an expression of opinion in good faith on a public matter.

           

            4. As is well known, the difference between these true defenses is considerable. As to the defense of truth, section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law) puts the onus on the Defendant to prove that the expressions he used, which besmirch the Plaintiff s good name, reflect reality. The Defendant "established" a fact and he must show that it is true (save in the case of an incidental detail, as provided in the last part of section 14).

           

            On the other hand, the legislature's approach to the expression of opinion in good faith in a matter of public interest is very liberal, since freedom of expression and discussion concerning public matters constitutes one of the basic principles of every advanced society. Every unjustified limitation on freedom of expression necessarily prejudices this sacred principle which must be protected against any infringement.

           

            This defense is similar to the well-known English defense of "fair comment", although we must remember that we have before us an original Israeli law which must be interpreted according to its contents. We can, therefore, have recourse to an English precedent only to the extent that what it says is consistent with the provisions of our law and is acceptable to us as an interpretion of those provisions.

           

            As to the extent of liberality of the "fair comment" defense, I agree with Lord Esher in the well-known case of Merivale v. Carson (1887) 20 Q.B.D. 275, 191, [24]:

           

"Every latitude must be given to opinion and to prejudice and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment.... Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit."

 

The determining question according to him is:

 

"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work [I would add, or conduct] which he criticized?"

 

            This test appeals to me, but subject to Lord Porter's comment in Turner v. Metro-Goldwyn-mayer Pictures (1950) 1 All E.R. 449, 461. [228] that one should exchange the word "fair" to "honest". The exaggeration, the obstinacy and the prejudice of the publisher, which do not necessarily deny the defense to the criticism, are inconsistent with the concept of "fairness", but are not inconsistent with the concept of "good faith", which is nothing other than honesty.

           

            I find support for the test laid down by Lord Esher, on the one hand, with the change suggested by him, on the other hand, on page 38 of the Report of the Committee on Defamation, of March 1975. See also Thomas v. Bradbury, Agnew & Co. (1906) [29], and Lord Attenborough in Carr v. Hood (1808) 170 E.R. 983, 985, [30].

           

            This approach accords with the wording of section 15(4) of the Law, but at the same time attention must be paid to the presumptions concerning the presence or absence of good faith in section 16 - that is, that the publication "did not exceed what was reasonable under such circumstances".

           

            What justifies the great difference between the stringent demand that truth be proved, in section 14 of the Law, and so liberal an attitude toward expressions of opinion in good faith? Why, for example, should a prejudiced critic be protected, even if his criticism be exaggerated and his language biting, only because he honestly believed in the opinion he expressed, whereas someone who made a factual assertion (as opposed to an opinion) will suffer the consequences, even though his error is honest, and even reasonable?

 

            The explanation can be found in very old English judgments to the effect that a person who relies on "the expression of opinion in good faith" must bring the factual basis for his opinion to the reader's attention - and those facts must be true. In this way he enables the reasonable reader to judge for himself whether the opinion is well-founded or not. In the words of Judge Wilde in Popham v. Pickburn (1862) 158 E.R. 730, 733, [31]:

           

"To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated, - there, the writer may, by his opinion, libel himself rather than the subject of his remarks."

 

            A second, logically necessary, demand is that it be made sufficiently clear in the publication what is claimed as fact and what constitutes an expression of opinion. Therefore, if the subject matter of the criticism is a book, an artistic creation, a newspaper and the like - then, since they are available to the interested reader, it is sufficient if the publication refers to that source and it is not expected that it actually produce the creation. As Lord Porter commented in Kemsley v. Foot and Others (1952) 1 All E.R. 501, 505, [32]:

 

"Accordingly, its contents and conduct are open to comment on the ground that the public have - at least - [my emphasis] the opportunity of ascertaining for themselves the subject-matter on which the comment is founded."

 

            The distinguished judge later refers approvingly to Odgers on libel and Slander (5th ed. 1911). Since the passage which he quotes in his judgment is appropriate, in my opinion, to our case, I shall reproduce it here, while emphasizing those words which appear to me of particular importance:

           

            "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well-founded; and therefore, what would otherwise have been an allegation of fact - becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege of truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference - without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment.

 

But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact."

 

            I see no need to take a stand in this case on the question of whether it is necessary to detail all the facts on which the critic's opinion is founded. At least from Lord Oaksey's judgment in the above Kemsley case it follows that there is no such obligation and the same has been understood to be Lord Denning's opinion in London Artists, Ltd. v. Littler (1969) 2 All E.R. 193, 198, [19]. In the absence of any such express demand in the provisions of our Law, I am prepared to assume (without reaching any final decision on the matter) that here, too, there is no obligation to publish all the facts which led the publisher to form the opinion he expressed. However, at the same time, one must always remember the idea that lies at the basis of the substantial difference between the defense of "truth" and that of "expression of opinion in good faith". As explained above, the justification for the broad scope of the latter defense lies in the reasonable possibility afforded the reading public - and the subject is after all of interest to it - to judge for itself if what appears in the facts detailed in the article leads to the opinion founded on those facts. Hence, the double obligation imposed on the person seeking the protection of this defense: first, to reveal at least the main facts on which his opinion is founded; and, second, to make it clear, to a sufficient degree, to the ordinary reading public that what is derogatory to the person's good name is purely an expression of opinion. Therefore, if the general impression made by the publication is that the derogatory part is a determination of fact, or that it is an expression of opinion founded on extrinsic facts within the publisher's knowledge, then the defense of "expression of opinion in good faith" will not be available to the publisher, and only the defense of "truth" (or "permitted publication" within the meaning of section 13 of the Law) will be at his disposal. Concerning an opinion ostensibly founded on extrinsic facts I refer to Judge Fletcher Moulton's judgment in Hunt v. Star Newspaper Corp. (1908), [27] , which is still valid.

 

            The question arises whether the publisher of defamatory matter can resort to the argument that he received his information from a reliable source, or that he relied on rumors whose credibility he believed. The answer is in the negative, although when the court fixes the damages, it may take into consideration, in the defendant's favor, the fact that this was a repetition of something said before and the publisher had indicated the source on which he relied (section 19(1) of the Law).

           

            I emphasized the word "may" because sometimes the very repetition exacerbates the injury. In this connection, I am in accord with the words of Judge Morris in Lewis v. Daily Telegraph Ltd. (1963) 2 All E.R. 11, 161-167, [20]:

           

            "To say that something is rumoured to be the fact is, if the words are defamatory, a republication of the libel. One cannot defend an action for libel by saying that one has been told the libel by someone else, for this might be only to make the libel worse.... Blackburn J. in Watkin v. Hall (1868) L.R. 3 Q.B.D. 396, 401 [33] ."

 

Further on he said:

 

"If one repeats a rumour one adds one's own authority to it, and implies that it is well founded, that is to say that it is true."

 

            At any rate, if the publisher does not make it absolutely clear that he is only repeating what someone else said then it will not even be a consideration for reducing the compensation to be awarded.

           

            Finally, before I analyse the article which is the subject matter of the issue before us, I wish to concur with those who distinguish between expressions of opinion on matters of taste, such as the quality of a work of music, a literary work or some known policy, and an expression of opinion concerning motives or intentions. Although a public functionary exposes himself to the criticism of the public by virtue of his functions, unfounded defamation of him should not be permitted. The classical form of this rule can be found in the words of Cockburn C.J. in the well-known case of Campbell v. Spottiswoode (1863) 122 E.R. 288, 290 [25]:

           

"But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid or wicked motives - unless there is so much ground - - for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements but that his belief was not without foundation. -"

 

            This approach is consistent with the language of section 15(4) of the Law: "the publication was an expression of opinion on the conduct of the injured party ... in connection with a public matter ... as revealed by such conduct". If the motive or intention of the injured party are not "revealed" by such conduct, the publisher's good faith will not avail him (here, too, save with respect to the amount of compensation to be awarded - section 19(2)).

  

                      5. I have examined the article as a whole, based on the above legal analysis, and have reached the conclusion that the Appellants' plea based on the defense of "expression of opinion in good faith" is not acceptable for several reasons:

         

          A. The Respondents' intention to deceive the public was presented in the article as an existing fact and not as the expression of the author's opinion based on facts presented. The words "supposedly" and "actually," which are not qualified in any manner whatsoever, appear in the first paragraph of that part of the article on which the action is based, as part and parcel of the other facts which precede and follow them.

         

          I have no cause for assuming, as a real possibility, that the newspaper's reading public, for whom the article was intended, understood, or could have understood, from a perusal of the whole article that there was any room for doubt about the Respondents' bad intentions. The article in this case is completely different from the letter published by a person lacking any legal education in Slim v. Daily Telegraph, Ltd. (1968) [21]. There, a lawyer who was the legal adviser of a local authority, signed an order prohibiting the passage of vehicles, including motorcycles, on a certain road, and then, after joining a certain company, changed his position and argued that the company was entitled to use the road for its lorries. The Respondent wrote in his letter that in light of the lawyer's conflicting opinions, which varied according to the interests of his clients, one could not disagree with those who view such conduct with a measure of cynicism. The lawyer argued that the readers could interpret these words as referring to conduct unbecoming to his profession. The court held, rightly with all due respect, that the deciding factor was not the interpretation of one particular reader or another but the fact that this was an expression of opinion in good faith in a matter of public interest. Each reader was given the opportunity, on the strength of the conduct described, to judge for himself whether the comment was well-founded or not and the critic could not be held responsible for others' opinions. Furthermore, even if the writer expressed himself in a rough and unsuccessful manner and even if he were prejudiced against lawyers as such, that would still not remove the matter from the defense of criticism in good faith.

         

            The present case is not similar. Rather, it resembles to some extent, despite many differences, the subject matter of the above London Artists case [19]. Four leading actors announced, separately but at the same time and in the same language, that they were resigning their posts. Such an occurrence was unprecedented at that time in the theatrical world and could have led to the termination of the production which the defendant had been presenting very successfully for two years in a prestigious theater. Some time before the letters of resignation were received, the defendant was asked by the management to move the production to another, more modest, theatre, but he refused to do so unless he were offered attractive consideration. The defendant was convinced that the "combined" resignation after his refusal was nothing more than a conspiracy against him in order to effect his departure from the theater. He was so convinced of this that he organized a press conference at which he read his reply to the actors who had resigned. In his letter to one of the actresses (that was quoted in the judgment) he complained that she had not seen fit to come to him

           

            "before being a party to what, on the face of it, appears to be a plan to close the run of 'The Right Honourable Gentleman'...."

 

            Despite the guarded language (at the beginning of the letter), the court decided, upon a reading of the whole letter, that the allegation of a plot was a statement of fact. In the words of Lord Denning:

           

"... on a fair reading of the whole letter, I think the allegation of a plot was a statement of fact. The first paragraph runs in guarded language 'it appears' and the fourth paragraph says 'in other words', but the last paragraph speaks of 'the combined effort'. Reading the letter as a whole, I have no doubt that it stated as a fact that there was a plot ...."

 

            Edmund Davies L.J., as well, regarded the plot as a statement of fact, the fruit of the defendant's invention, and quoted from the above Hunt case [27], as a rule with which he concurred, that an expression of opinion must appear as an expression of opinion and must not be so entangled with facts that the reader cannot distinguish between them.

           

 Incidentally, the very reliance on the Hunt judgment [27] in 1969 undermines the Appellants' counsel's argument that its ruling no longer holds.

 

            In our case, the impression made by the first paragraph described above is not weakened, and is certainly not negated, by a reading of the continuation. On the contrary, even the few facts in the second paragraph (on which I shall tarry later) are connected mainly, if not only, with the paragraph after it:

           

          "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

           

            The words "from this" indicate that the facts in the previous paragraph are what moved those same employees to reach their conclusion.

           

            It follows that the first paragraph - in which there is no hint of reliance on someone else's conclusions - appears as the correspondent's factual finding and, in my opinion, it must therefore be regarded as such despite the fact that he actually relied (as appeared from his testimony) both on the information from, and the conclusion of, the Goldberg agency's sales manager. The repeated reference (later in the article) to the conclusion of the "employees" (in the plural) does not (as should be recalled) relieve Mr. Kotler of his responsibility.

           

            B. Even if I should assume, contrary to my view, that Mr. Kotler's imputation that the Respondents intended to deceive the public is an expression of opinion in good faith, this would not change the conclusion which I reached. The reason is that there must always be some mutual relationship between the facts and the opinion expressed. True, it is not necessary that the court's opinion be more lenient than that contained in the publication. Nor does it matter that different readers could draw different conclusions from a reading of the article. But as was stated in the interesting article, Van Vechten Vieder, Freedom of Public Discussion, (1909) 23 Harv. L. Rev. 412, 424:

           

          "... it must not introduce new and independent defamatory matter, or draw inferences or conclusions wholly irrelevant or out of all proportion to the given facts which supply the basis of comment."

           

            (And see also McQuire v. Western Morning News Co., Ltd. (1903), [34].)

           

            The absence of any such minimal connection converts what is assumed to be an expression of opinion into a fact whose truth has to be proved.

           

            In London Artists [19], there was a fortuitous combination of several unusual events which led the respondent to believe in all honesty that the plaintiffs had plotted against him. If he had been required to prove the truth of his allegation (as he attempted to do initially) his defense would very soon have foundered as, in fact, there was no connection between the events. But when presenting these facts to the reasonable reader, before the circumstances were clarified, some persons might - perhaps - have argued that some of the readers could have suspected a plot, as the respondent did. It should be remembered that in the case of an expression of opinion, the defense will not fail merely because in fact it was not true: Merivale v. Carson (1887) 20 Q.B.D. 275, 281, [24]. Lord Denning held, in the said judgment, that there was not a sufficient mutual relationship between the events and the conclusion concerning a plot, so that the defense of criticism in good faith was not applicable to the case.

           

            All the more is this so in our case. Even if the Respondent erred by conditioning the sale upon its own prior approval and by not accepting the buyer's (singular) offer of 24,000-25,000 Israeli pounds, and by declaring that even an offer of 28,000 pounds would require its approval, this did not provide sufficient grounds for the conclusion that the whole affair was bluff and deception. It is most certainly permissible to criticize the manner in which an institution chooses to sell its vehicle and the fact that it sought an unrealistic price (on the assumption that the price of 28,000 pounds at a time of recession was such), but from this to the conclusion contained in the article is a far cry. Incidentally, the testimony of the experts concerning a realistic price at the time was contradictory (see Orbach at page 237 and Gonen at page 220). It should not be forgotten that the article stated that the car had cost the Respondent 33,500 pounds and that the Respondent had used it for only a very short time and had driven only 6000 kilometers. In the circumstances, since the car was almost new, is the reluctance to lose more than 5,000 or 5,500 pounds, so extraordinary as to justify an imputation of deceit and prevarication? It should also not be forgotten, as was mentioned in the article, that the Respondent had published his decision to sell the car in two newspapers (Ha'aretz and Maariv). Very strong evidence was required in order to refute the sincerity of the Respondent's intention, as appears prima facie from such a notice, to adhere to his public promise. As said in Odgers, 6th ed., at p. 162:

 

"... the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct."

 

            C. It may be noted that there are inaccuracies in the facts detailed in the article whose accumulated weight is not negligible, some of which even raise prima facie doubt as to the author's good faith.

           

            It is well-known that minor inaccuracies do not cause the plea to fail: Gooch v. N.Z. Financial Times (1933), [35], although there is a contrary opinion with which, with all due respect, I do not concur: see Lord Porter in the Kemsley case, [32], at p. 506:

           

"In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence."

 

            It appears to me that just as section 14 of the Law provides that the defense of "truth" shall not be denied by reason only that an incidental detail which is not actually injurious has not been proved, so too should the same rule apply to the defense of "expression of opinion in good faith". Nevertheless, I emphasized the word "only" as it hints at the possibility that inaccuracies might carry some weight which might be combined with other considerations, if there be such, to the disadvantage of that defense. This can be understood also from the judgment in Gooch [35], in which the applicability of the defense of "fair comment" was recognized in circumstances in which

         

   "the errors of fact were of minor importance and the article, which was written in good faith, deserved no condemnation but commendation."

 

            It is apparent from the content of the article referred to there that the minor inaccuracies in that case stood alone.

           

            I shall now consider the inaccuracies (in the article in our case), skipping, naturally, those matters which directly impute to the Respondents the intention to deceive (and which according to my assumption at this stage, in contrast to my opinion, constitute "an expression of opinion"):

           

(a) "More than four months have passed since the car was returned to the Goldberg Agency ... for sale."

 

            As will be recalled, the car was not transferred to the Goldberg agency until 29.11.1966 and from then until the article was published (14.3.67) only three and a half months passed. Mr. Kotler testified that the sole source of his information was Mr. Ben-Ami Amir, the Goldberg agency's sales manager. The latter testified that he had been in charge of the sale of the car from the beginning. It could be thought that Mr. Amir, by virtue of his duties in general and this special mission in particular, knew or at least could have found out, what the real passage of time was. In these circumstances, the very fact of the inaccuracy calls for further explanation, even though, in and of itself, it is of little weight.

           

(b) ("but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will returned to serve the retiring Director General,) for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching." (I quoted in parenthesis the portion referring to the Corporation's intention for purposes of continuity.)

 

            The District Court found in its judgment, on the strength of testimony which the learned judge found credible, that the model year of an American car, as distinguished from a European one, starts at the beginning of the Gregorian year, although a new model car can  already be obtained toward the end of the previous year. For example, a l 967 model can be acquired in December (and in exceptional cases even in November) 1966. This finding contradicts Mr. Kotler's argument that the 1967 model was already being sold in September 1966, when the Respondents received the car. The Goldberg agency deals mainly with the sale of Chevrolets and it is difficult to believe that their sales manager of many years was not aware of this detail. It follows that by the middle of March 1967, less than a quarter of the model year had passed. In light of this fact, the words "since the end of the 1967 model year is approaching" do not, in my view, constitute an incidental detail of little importance, and they even cast additional doubt on Mr. Kotler's good faith, or that of his source of information - Mr. Amir.

 

            (c) The next paragraph states:

           

"After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale."

 

            If we had had to depend on the Appellants' witnesses I would have held without any hesitation - although I did not have the advantage of seeing and hearing the witnesses - that there was no evidentiary basis even for this claim. My reasons for reaching this conclusion are as follows:

           

            The witness Shlomo Yaacobi said that he had been at the time the only bidder (and this actually fits in with the word "buyer" in the singular in the article) and added that at first he offered Goldberg 25,000 Israeli pounds but afterwards raised the price to 25,500 pounds, which he claimed was comparatively higher than the market rate at that time. But he said in his testimony that during the course of negotiations he had telephoned Ha'aretz and told Mr. Kotler that he (Mr. Kotler) was correct in alleging that the car was not for sale. It is clear that the article had already been written at the time of that conversation, and (it must be assumed) that the witness gathered from its contents what the opinion of the author was. And when he was cross-examined on this he said: "it is possible that my first (my emphasis) contact was after 25.3.1967" (p. 11) and that "it is possible that in the light of the fact that the publication concerning the presence of the car with Goldberg was on 14.3.1967, my contact was after that date" (p. 12). It is clear that what is determinative is the state of affairs at the time the article was published and this testimony therefore becomes valueless, particularly since the burden of proof rests on the Defendants.

 

            The witness Yaacov Beckerman related that he was in the habit of getting in touch several times a week with all of the companies dealing with cars, including the Goldberg agency. That way he learned from Mr. Amir that there was an "almost completely new" car. According to him, he had to take the trouble to come no less than three times before he was able to see it, since this required special permission from Mr. Goldberg. He went with Mr. Amir to the warehouse where the car was. "It looked nice, but very dusty." When he asked what the price was he was told that he had to make an offer and this appeared unusual to him. He offered 22,000 pounds and Mr. Amir promised to give him an answer. After this visit, three months passed before he met Mr. Goldberg (p. 51). He again started with an offer of 22,000 pounds and raised it to 24,000 pounds, but he was informed that the Electric Corporation's approval had to be obtained. Up to this point the testimony appears reasonable, but elsewhere (p. 57) he declares, surprisingly, "I told Ben-Ami my offer to buy the car for 22,000 pounds without seeing it, and I saw it for the first time after the article" (my emphases). This did not prevent him from saying in another place (p. 83): "After I saw it I thought to myself that it was worth 22,000 pounds."

           

            The lapse of time of three months between his first visit, when Mr. Amir showed him the car, and his meeting with Mr. Goldberg, also goes up in smoke, as he says later (p. 62), "When I came to Goldberg it was already, as far as I can remember, after I had seen the car on that same day. It seems to me that all this happened at the same time. When I went in to examine the car and had just seen it Ben-Ami told me that it had done 6000 kilometers."

           

            Furthermore: Mr. Amir said in his testimony that the location of the car did not disturb his efforts to sell it, a matter I shall discuss more fully later. In any event, it is clear that Mr. Amir's testimony is not consistent with the great difficulty Mr. Beckerman had when he sought to see the car.

           

            But the Appellants' work was done for them in this matter by Mr. Shagal, the Respondent's transport manager, who said (at p. 273):

           

"From time to time there were offers. I received notice about them from Ben-Ami. There were three offers that I remember: 22,000, 24,000 and, lastly, 25,000-26,000. I do not remember if the last offer (my emphasis) was before or after the article. I remember that I reported it to Mr. Peled in April 1967. I do not remember when the second article appeared."

 

            Since it is known that the article was published on 14.3.1967, it follows that Mr. Shagal received two offers before then, the higher of which was 24,000 pounds. It was therefore not correct to write in the article that there was an offer from a buyer of 24,000-25,000 poounds.

           

            The correct facts alongside those detailed in the article are, therefore, as follows:

           

a.     The car was at the Goldberg agency for three and a half months and not for more than four months, as written;

           

b.    By then, the end of the first quarter of the 1967 model year was approaching and not the end of the model year itself.

           

c.     The offer that was rejected by the Respondent was for 24,000 pounds and not 24,000-25,000 pounds, as was published.

           

            In my opinion these are not inaccuracies whose cumulative weight amounts to "an incidental detail which is not actually injurious" within the meaning of section 14 of the Law which deals with the defense of truth, especially since they do not stand alone, but are in addition to the other considerations because of which the defense of "expression of opinion in good faith" is not available to the Appellants.

           

            For this reason, too, my conclusion is that this plea should be dismissed.

           

            6. But I am prepared to proceed on the assumption (contrary to my opinion) that there is no need to include within the body of the article even a minimal factual foundation so as to enable the reader to decide, for himself, if the opinion expressed has grounds, and that it is possible to content oneself with the facts published, so long the defendant (in our case the Appellants) produces in the course of the proceedings supplementary facts which together provide a proper factual basis. likewise I proceed on the assumption (again contrary to my opinion) that the imputation of an intention to deceive was an expression of opinion and not the establishment of a fact.

 

            On the basis of these assumptions, I will examine what facts, of which Kotler was aware when he published his article, were proved in the course of the action. I have limited myself as emphasized, since the facts of which he had no knowledge could in any case have had no part in the formation of his opinion. See Gatley on Libel and Slander, 7th ed., p. 293, near line 6.

           

            As already noted, Mr. Kotler testified that his information was based on one source only: Mr. Ben-Ami Amir, the Goldberg Company's sales manager (p. 209). According to him, Mr. Amir concluded that the Electric Corporation only wished to gain time based on the consideration "that otherwise it was not possible that they would place a car intended for sale in a warehouse, where it would become covered with dust for four months" (p. 214). During the course of his testimony he returned to the concealment of the car as the central consideration for his conclusion. For example, the following statements made by him appear in the protocol (at the end of p. 210 and the beginning of p. 21l):

           

"He [Ben-Ami Amir] explained to me that the car was brought to the company's warehouse but they hid it from the eyes of the public, that is, they did not want to sell it, because if you want to sell you display it. Ben-Ami Amir told me that in fact they did not wish to sell the car and that is what I wrote.

 

The car was hidden by Goldberg, apparently upon the instructions of the Electric Corporation and that is why I wrote that the car was supposedly put up for sale".

 

            It follows that even in the first paragraph of the part of the article upon which the action was based, Mr. Kotler was not other than Mr. Amir's mouthpiece, but this was not made clear to the readers.

           

            With regard to the importance that Mr. Amir attaches to the concealment of the car, as appears clearly from the above quotation, it is worth noting that this fact is not at all mentioned in the article, and what is still more important - it is not consistent with Mr. Amir's own testimony, in which he said:

           

"It is two that when they brought the car for sale to the Goldberg garage they told me to try and sell it and I really tried to sell it.... I did everything to find a buyer. I don't know why I didn't move the car and place it amongst the used cars that were for sale. I am mostly interested in selling new cars, not old ones.... I don't think that I said that the fact that it stood there was an obstacle. I did not emphasize this. True, it was not visible to people. But this was not an obstacle. The location of the car did not impede its sale".

 

Incidentally, Mr. Shagal testified as follows (pp. 273- 274):

 

"I gave the car to an agent and it was placed in a garage which was in fact a yard. Afterwards, Mr. Peled's driver, who happened to be there in the course of attending to another car and who saw that the car was very neglected, got in touch with me. I then phoned Mr. Ben-Ami and as a result the car was stored in a place where new cars were stored. I was there. Ben-Ami complied with my request unreservedly. The car was in a closed warehouse which served as a place for storing Chevrolets. It is not a basement. It was not deep down. I saw new cars there. The choice was between an open area and this place, because I did not presume to ask him to put the car in the display window since there was room there for only two cars and I saw two new cars there."

 

            In any event, Mr. Amir's testimony is sufficient to refute the main consideration which moved Mr. Kotler to write "supposedly", that is to impute to the Respondent the intention described above. Furthermore, according to him, this was the explanation which he received from Mr. Amir, and if that is the case then they contradict each other.

           

            It should be noted that even the significance of the fact that the Respondent conditioned the sale of the car on its prior approval is lessened, to a not inconsiderable extent, by Mr. Amir's testimony, since he said (p. 37):

           

"Although this is not usual, in any event there is nothing wrong in someone saying that I should receive his approval before I sell a car. The purchase of a used car is sometimes concluded in a minute. There should be a ceiling price. If there is not - then one must call for approval. There is nothing improper in this."

 

            I am aware of the fact that in another part of his testimony he converted this into almost the main consideration for the conclusion concerning the absence of any real intention to sell the car, but, after all, the burden of proof rests on the Defendants.

           

            On this point, too, it is worth turning to Mr. Shagal's testimony, who told Mr. Amir more than once that he was not prepared to lose more than 5,000 pounds. This testimony accords with the figure of 28,000 pounds that appears in the article. And in fact Mr. Shagal added in his testimony that he advised Mr. Peled to accept an offer of this sum if tendered.

           

            The fact that the Corporation did not ask for an assessment of the car by an assessor is not particularly surprising. After all the Respondent had paid 33,500 pounds for the car a short time earlier, after receiving a rebate of 500 pounds. The car had been driven 5,000 kilometers, according to the learned judge (and not 6,000 as written in the article - an inaccuracy with which I do not deal). It was suggested that Mr. Goldberg take it back for 30,000 pounds, but he refused to do so and recommended that the car be left with him to be sold. We speak about a transport manager of a large company with a lot of experience, both in sales and in general, as well as the owner of an agency for selling cars of the same kind. Is it possible that in such circumstances it was not clear what the approximate value of the car was and what price the seller could expect to get for it? So when the offers failed to come in, Mr. Shagal "descended" from 30,000 to a minimum of 28,000 pounds, and according to his testimony (it will be recalled) he informed Mr. Amir that he was not prepared to lose more than 5,000 pounds, and hence, apparently, came the need to receive the Corporation's approval if an offer of 28,000 pounds was made, that is if the loss should amount to a little more than the ceiling he laid down.

 

          The fact that a practically new car was not sold by means of a public tender could, as stated above, perhaps be a subject for public debate and criticism, although this could be seen as an exceptional case requiring unusual treatment. The Respondent's version of events in his testimony, to the effect that in this special case in particular he wished to insist on as small a loss as possible, seems reasonable and I do not intend taking a stand on whether calling for tenders - as the witness Kantor thought should have been done - would have been a more effective way to achieve the desired end.

         

          In any event the judge was correct, in my opinion, in holding that there was no connection between these matters and the subject at issue. Furthermore, I did not find in the testimonies of Messrs. Kotler and Amir any hint that they knew of, or even considered, the standard practices of the corporation, in general, and with regard to sales by tender in particular. There is no need to state once again that a fact which was not considered by the publisher is not available to him on which to base the opinion he expressed.

         

          7. Notwithstanding several doubts arising from the detailed factual inaccuracies, I am prepared to conclude that Mr. Kotler published his article in good faith based on the fact that before doing so he contacted the Respondent in order to get his reactions, but was informed that the latter would have nothing to do with him.

         

          But good faith is not sufficient. The conditions which I enumerated above must be met before the defense of "expression of opinion" becomes available to the publisher: compare the London Artists case above [191. There, too, the defendant's good faith was not in doubt.

         

          8. Mr. Lieblich argued that the judge should not have relied on the letter from Mr. Leo Goldberg, as it was admitted at the time on condition that it would not serve as proof of the truth of its content.

         

          I do not think that this error - if indeed it is an error - is sufficient to change in any way the considerations from which I drew my conclusions. I said "if indeed it is an error" because Mr. Shagal in his testimony said that "what Leo Goldberg says in his letter is right" - an answer which prima facie makes the content of his letter acceptable as evidence.

 

            9. At this stage I had the opportunity to examine Justice Shamgar's opinion and I would like to comment that the judgment in the Campbell case [25], (at the end of paragraph 4 in his judgment) is, to the best of my knowledge, still recognized in England, and is referred to without any reservations in the House of Lords' judgment in Kemsley [32]. With all due respect, I do not think that the judgment in Walker, [26], changes anything, but only adds a further dimension to the existing situation. It is referred to, inter alia, in the London Artists case, [19] on which I in any event relied, and the conditions enumerated there are not present, in my opinion, in our case.

           

            Similarly, I regret to have to dissent from my distinguished colleague Justice Shamgar's description of the facts, which is based on a completely different evaluation of the testimony from that of the District Court judge. I examined very carefully both the evidence and the judgment of the District Court, which is the subject of this appeal, and I could not find any cause for interfering with the judge's factual findings based on his personal impressions of the witnesses who appeared before him.

           

            10. The plea of "truth" was also unfounded - a conclusion which derives directly from an analysis of the evidence and of the facts proved during the course of the action.

           

            There remains for me to consider, in this context, the argument of the Appellants' counsel that the judge should have permitted him to prove the Electric Corporation's practice that a retiring director general receives the car which had been in his use, as part of his retirement conditions.

           

            If they sought to prove an improper practice, then the answer depends on the interpretation of section 22 of the Law, which is intended, in general, to prevent the presentation of evidence, and the examination of witnesses, concerning past objectionable acts on the part of the injured party, save in so far as these particulars are directly relevant to the defamation which is the subject of the action. It is clear that "... one cannot prove intent - which is a matter of the heart - save by drawing conclusions from a complex of facts" (Cr.A. 215/58, [16], at p. 394). The "intent" therefore touches directly on the subject of the action. But what intent? That is to say - the intent to abide by the promise that was announced in the press to sell the particular car, in light of the public criticism of its acquisition. It appears to me that we would breach the dam which the legislator sought to impose in the said section 22 if we were to permit the alleged objectionable promise to be proved as evidence of an intent to break a promise to the public.

           

            In any event, even if we assume - in complete contradiction of the witnesses' answers to the questions of the Appellants' counsel, as noted in the court protocols - that there was such a practice and that evidence of it was admissible, there still would not be a factual basis for the intention imputed to the Respondents. I already pointed out above that the fact that a solemn promise is made publicly constitutes strong prima facie evidence of its sincerity, and this evidence is not rebutted by proof of past sins of the Corporation which employs the maker of the promise, if in fact there were such sins. It is also not conceivable that the Respondents would have dared to use that same car again, as long as the eyes of the media were focussed on their actions.

           

            In so far as the defense of "expression of opinion in good faith" is concerned, this promise has no importance ab initio, as there is no evidence (it will be recalled) that Messrs. Kotler and Amir knew about it and took it into account amongst their other considerations.

           

            11. In light of the above considerations I would dismiss the appeal.

           

            The appeal is allowed, by majority decision, and the judgment of the District Court is dismissed.

           

            The Respondents will bear the Appellants' costs in this Court and in the District Court, including advocates' fees, in the amount of 5,000 Israeli pounds.

           

            Judgment given today, 6 Adar 5737 (24.2.1977).

Deputy President Landau: In this Further Hearing we are required to reexamine the rulings that emerge from the opinions of my esteemed colleagues, Shamgar J and Berinson J, in this Court's C.A. 723/94. In that case, by a majority decision over the dissenting opinion of my esteemed colleague Ben-Porat J, the court accepted the appeal of the Respondents before us, Ha'aretz Newspaper Ltd. and others, against the Petititioners, The Israel Electric Corporation, Ltd. and Yaacov Peled, and rejected the Petititioners' claim for the payment of damages for defamation. (The District Court's judgment was published in District Court Judgments 1975, at page 671, and the judgment in the appeal was published in 31(2) P.D. 281.) Of the two majority Opinions in this case, my esteemed colleague Shamgar J ranged extensively across the issues and rendered novel holdings concerning the law of defamation that have far reaching consequences, while Berinson J based his decision on narrower grounds, limited to the application of the provisions of the Law Forbidding Defamation, 5725-1965, to the facts of the case, without expressing any opinion concerning the questions of principle dealt with in my esteemed colleague's judgment. Therefore, my esteemed colleague's judgment concerning those questions expressed his views only. Nevertheless, it is clear that even as such, because of its extensive intellectual apparatus, this judgment might become accepted in the future as binding and give guidance to many concerning their conduct and their claims, unless we come to different conclusions in this Further Hearing.

 

            After much consideration, I have concluded that I must disagree with my esteemed colleague on the following three issues: First, as concerns the preferred status he attaches to the principle of free speech in our legal system over a person's right to his good reputation. Second, with regard to the manner in which he interprets the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law), especially paragraph 15(4), which provides the defendant a defense for expressing an opinion in good faith. And third - and Berinson J joined my esteemed colleague in this matter - as to the manner in which they construed the article which was the subject of the claim and applied the Law to it. I will set forth my position on these issues in that order.

           

            My esteemed colleague writes as follows at page 240:

           

"The relationship between defamation and freedom of speech has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances."

 

            Immediately thereafter, he refers to the American cases, starting with those earlier decisions in which the judges "regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness", and later, on page 241, the decision of the Federal Supreme Court in New York Times v. Sullivan [18], according to which -

           

"with regard to defamatory matter concerning holders of official or public office, the view that designates the laws forbidding defamation as an exception to free speech and no more, has been abandoned in the United States ... for some considerable time in favor of the principle that gives higher standing to the right of expression of opinion on matters of public interest concerning the holders of official or public office."

 

            That American case held that publishing untrue facts concerning a public office holder is protected, unless it be proved that the defendant knew that the statements were false or was indifferent to the question whether they were true or not. My esteemed colleague adopted this view, and after noting the importance of the principle of the right to free speech, in the spirit of the judgment in Kol Ha'am [1], he said further, on page 243:

           

"The previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status.... Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but, rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it."

 

            I asked myself, from what source did my esteemed colleague draw support for such forceful comments on a matter of greatest constitutional importance, other than the American law in New York Times v. Sullivan [18]. He also mentions the Hilron case [2], which dealt with the proper relationship between a legislative enactment and the principle of freedom of gainful employment. But the views expressed at the particular place referred to in that judgment, page 653, are those of my esteemed colleague which are the minority view. My own opinion, that of the majority, stated on page 650, was that "the labor of interpreting legislation must be done without any particular widening or narrowing tendency...." And in the Further Hearing in that case, (F.H. 27/76 [3]) the majority again agreed with my view and my esteemed colleague Kahan J said, at page 22:

           

"I do not in any way minimize the importance of the basic right to freedom of employment. However, it is well known that the legislator has restricted this right in various enactments and in various ways, based on the view that the public good requires the imposition of these restrictions.... When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent...."

 

            And, closer to our matter, concerning what has been said in our judgments hitherto on the relationship between freedom of speech and defamation, I quote the words of Olshan J, in C.A. 90/49 [4], at page 597:

           

"... So long as a law exists that recognizes a person's right that his good repute not be impugned, it is in the public's interest that this right be honored and not be injured. If someone wishes to enjoy the right to freedom of speech and abuses such freedom, intentionally or otherwise, and in so doing injures another person's right, it is not unjust that he should be responsible toward the person so injured, and there is no ground for complaint that this entails some restriction on the citizen's right of free expression.

 

But each flower has a thorn. Since every publication involves some risk that it might contain something that could injure another person, this is likely to restrain all initiative for criticism or to disseminate information, even when the public good or that of the state require that such criticism be heard and that such information be disseminated.

 

Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

Agranat J said in Cr. A. 24/50 [5], at page 1160:

 

   "Our point of departure is the general assumption of the common law - which also applies in this country as well - that each person has the right to freedom of speech and freedom of expression. The objective of the local criminal law that establishes the offenses of distribution of defamatory material orally and publication of written libel, is to restrict this basic right when a person abuses it.... However, the law recognizes that, in certain conditions, the general good demands - so that the said basic right not be emptied of its content - that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            My esteemed colleague brought the final sentence of this quotation, on page 296, as being on all fours with the New York Times decision [18]. I do not agree: in my opinion, they are on all fours with the previous American precedents that my esteemed colleague summed up in the following words on page 240:

           

            "There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness."

 

            In the Kol Ha'am case itself [l], at page 880, Agranat J explained the relationship between freedom of speech and the necessity to preserve public security in the following words:

           

"The principal cause for this complexity is the competition between two types of interests, each of which is of considerable social and political importance."

 

And earlier, at page 879, he said:

 

"The right of free speech is not absolute and unlimited, but a relative right, which can be restricted and controlled to preserve other important social and political interests which, in certain circumstances, are considered paramount to the interests which are secured by the exercise of the principle of freedom of speech. The fixing of the boundaries of the exercise of the right of freedom of speech and the press is therefore a process of balancing various competing values and choosing among them."

           

            While he thereafter describes the right of free speech as "a supreme right ... that is the condition precedent for the exercise of practically all the other basic freedoms", at page 878, he immediately adds: "One must distinguish between freedom and anarchy" and he recalls at that point his words in the Gorali case [5], and Lord Kenyon's dictum: "Freedom of the press is dear to England but anarchy of the press is an abomination in England".

           

            In my opinion, these arguments remain strong, even after the provisions in the Criminal Law Ordinance and the Civil Wrongs Ordinance concerning defamation have been replaced by the Law Forbidding Defamation, 5725-1965. Accordingly, freedom of speech does not enjoy a superior status as opposed to other basic rights, but in Agranat J's words, it is

           

          "a process of balancing various competing values and choosing among them".

           

            This is not the "vertical" grading of a "superior right" against an ordinary right but the horizontal fixing of the boundaries of rights that have equal status, without any tendency to prefer one particular right as defined by legislation at the expense of its fellow right. From this it follows that one must interpret the statutory right according to its plain meaning in accordance with the legislature's intention, and not place some unwritten right above it.

           

            So far as I am aware, the idea of a superior right that stands above the written law has appeared thus far only once in our decisions, in the separate opinion of Sussman J (as his title was then) in E.A. 1/65 [6], at page 389. Sussman J's inspiration for this was the opinion of the Supreme Court of West Germany, which placed basic constitutional norms above even the written constitution. This view has been subjected to considerable academic criticism (Guberman, Israel's Supra-Constitution (1967) 2 Israel Law Review 445). Agranat P.J. did not follow this path. He interpreted the Knesset Election Laws in the light of the constitutional principles laid down in the Declaration of Independence. In this regard he followed the path he himself had laid down in the Kol Ha'am decision [1], without any tendency to limit the written law by way of interpretation.

 

            To be more precise, what is at stake here is the citizen's freedom as opposed to his right, that is to say, his freedom to say what he wishes and to hear what others wish to say, as opposed to his right not to have his honor and good name impugned. If there is indeed any place for grading the two vis-a-vis each other, I would place the right above the freedom. (On the definition of a right as opposed to a freedom, see H.C. 112/77 [7], at p. 662.) It appears that this is how the draftsmen of the proposed bill, Basic Law: The Rights of Man and the Citizen (Proposed Bills 5733-1972, p. 448), to which my honorable colleague referred, presented the issue. Compare the right to express one's opinion, which appears there as a relative right, which may be restricted, according to section 11(b) "by legislation intended to ensure the existence of the democratic regime ... to protect the rights of others...", with section 3 to the effect that "each person is entitled to the lawful protection of his life, his body, his mind, his honor and his good repute," which apparently cannot be restricted, according to the draftsmen's intent, by any legislation. Placing the right to good repute on the same level as the right to life calls to mind our sages' statement: "Whoever insults his fellow man in the presence of others is considered as if he sheds blood". Today we call this "character assassination". (Concerning the rulings of Jewish law that stress the importance of the dignity of man among the legal values deserving of protection, see the study by Dr. N. Rakover, "The Protection of the Dignity of Man", volume 54 in the series of researches and articles on Jewish Law published by the Ministry of Justice.) Accordingly, if the right of free speech is a "superior right", how should we denominate man's right to the protection of his honor and good name? As for me, this illustrates the problematic aspect of any written declaration of rights. See the example given in Chafee, Free Speech in the United States, p. 31, of a man who was brought before a judge because he had thrown his arms about and struck someone in the nose. He asked the judge if he did not have a right to throw his arms about as he wishes in a free country, to which the judge replied: "Your right to throw your arms about ends precisely at the point at which your fellow man's nose begins".

    

                   I propose that we not be so captivated by the precedent in the New York Times case [18], which so strongly influenced my esteemed colleague's opinion. As said, it was there decided that one who publishes criticism of a public official concerning a public matter is not liable for slander, even if his statements are false, so long as the publication was made in good faith. Justices Black, Douglas and Goldberg went so far as to say that this also is the case even when the publication was malicious - all this to preserve the principle of freedom of speech and the press contained in the First Amendment to the Constitution, which has become, in the fundamentalist view of Justice Black and his followers, an iron cast rule that cannot be limited in any way. I am certain that had the Bill of Rights in America contained a provision similar to that in section 3 of the proposed Basic Law in this country - and I do not know why one's right to his good repute was not recognized as one of the citizen's rights - the American Supreme Court would not have established such a far reaching rule. Under that ruling one may impugn a public servant with no factual basis, for example, by saying that he accepted a bribe, unless (according to the majority view) the person defamed can prove that the slanderer acted with malice. Another American judge, Judge Friendly, has already commented on this in the Federal Court of Appeals in Pauling v. News Syndicate Co. [19]. He asks: if it is permitted to defame a public official for accepting a bribe, what is the difference between that and defaming a person for giving a bribe to the public official? And what about a person who is not a public official, but he takes part in debate on a matter of public importance during the course of which he defames another person? Is he the next in line to receive immunity for his statements? Indeed, in Rosenbloom v. Metromedia [20], the majority of the Federal Supreme Court expanded the New York - Times rule [18], so that it also includes a private person, provided that the slander relates to a matter of public interest. The truth is that the opinions given there are so varying that it is difficult to discover any clear line. Gertz v. Welch Inc. [21], which my colleague referred to at page 241, constitutes a retreat from that extreme majority view, but the decisions still contain a great deal of inconsistency and confusion.

      

            In the American legal literature, one hears criticism of and disagreement with the New York Times precedent. In an article, "Access to the Press - A New First Amendment Right" (1967) Harvard Law Review 1641, Professor Jerome A. Barron disputes the Supreme Court's decision and sees in its attitude to the First Amendment as assuring "a marketplace of ideas", a "romantic" notion that is totally unrealistic. (See pages 1642 and 1656 et seq.). The press and other mass media, which in our day and age are the main providers of information and opinion to the public, are not a free market, but are in the hands of a small group of monopolists. A realistic view of the First Amendment compels the conclusion that freedom of expression is somewhat slender if it can be exercised only by the grace of those who operate the mass communications media (id., at p. 1648). He therefore proposes to secure by law to any person who is attacked by a newspaper the right of access to the newspaper so that he may bring his position to the notice of the same readers before whom he was defamed (and not just by means of a letter to the editor, which the editor may publish or not as he wishes). If no such right will be recognized, there will be considerable inequality between the owners of a newspaper and the ordinary citizen.

 

            The ruling of the New York Times case [18], was not accepted in other countries where the common law applies. Fleming says on this subject in his "The Law of Torts", 4th edition, at p. 512:

           

          "...Our law does not esteem freedom of speech and of the press even in matters of public concern sufficiently high to clothe false statements of fact with qualified privilege, let alone elevate it to a constitutional guarantee as in the United States."

           

            Gatley on Libel and Slander, 7th edition, p. 223, dismisses the New York Times case [18], with the following comment:

           

          "It is submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility and leave them open to others who have no respect for their reputation."

           

            In his detailed written summations Dr. Goldenberg, counsel for the Petitioners, sets out the laws of other common law countries throughout the world. Not one of these countries has adopted the American ruling. Mr. Lieblich, on behalf of the Respondents, did not deal with this particular matter. He restricted himself in his brief to a discussion of the legal questions that arise in Israeli and English law.

 

            In E.A. 1/65 [6], which was referred to above, Agranat J quoted with approval Witkon J's words in H.C. 253/64 [8], at p. 679:

           

"It is not an isolated phenomenon in the history of states having a well-functioning democratic regime that various fascist and totalitarian movements rose against them and used those very same rights of the freedom of speech, of the press and of association which the state accords them, to conduct their destructive activities under their protection. Those who saw this during the days of the Weimar Republic will not forget the lesson".

 

            It is worth recalling that one of the most effective means used by Hitler and his cronies to bring down the democratic Weimar regime in Germany was by the uncontrolled defamation of the heads of the state, by spreading lies about their conduct, while the courts did not respond approriately in the libel cases that were filed (on this matter see the article by David Riesman, "Democracy and Defamation: Fair Game and Fair Comment", (1942) Columbia Law Review 1085).

           

            This author's opinion is (id., at p. 1090):

           

"Whereas in Germany libel law was one of the cumulative factors in the Nazi triumph, in England there is evidence that the severity and impartiality with which the law of libel is enforced has measurably served to check the rise of demagogic fascism."

 

            These words contain a warning to those who are prepared to give excessive free reign and ignore the dissemination of libellous material against public persons, for fear that the protection of the right of free speech as an absolute value might be harmed. But one must be concerned that history might repeat itself. I have before me a copy of the judgment of the Supreme Court of Illinois, of January 17, 1978, in the matter of The Village of Skokie v. The National Socialist Party, [22]. The court there allowed a march by the National Socialists bearing swastikas in a Chicago suburb with a large Jewish population. The judges felt themselves forced to decide as they did by the First Amendment to the Constitution. This should cause us to ponder the matter.

 

            Thus, one must find the correct point of balance between this principle and the protection of the honor of a public servant who is attacked. I do not propose, heaven forbid, to belittle the importance of the role of a free press to criticize governmental acts and to uncover undesirable public matters and bring them to the public attention. But I deny the assumption that a responsible press cannot carry out these functions unless it is given the freedom to defame persons under the cloak of "fair criticism".

           

            I have propounded these matters concerning the New York Times decision as if the subject before us was tabula rasa, without a solution in statutory law. But, in fact, that is not the case, because we have section 15(4) of the Law which contains a full answer concerning the defense of fair criticism for a publication that expresses an opinion concerning the conduct of a person who acts in a public function or in connection with a public matter. We must interpret this provision, enacted by the legislature, as it is written and in its spirit. Precedents from other countries may assist us in our deliberations, but we should not attribute to them undue weight. My esteemed colleague has interpreted our law narrowly, and in that regard I disagree. In my opinion, we should interpret this section just as any other provision of a statute, first and foremost according to the ordinary meaning of its words. Because of our differing approaches, our resulting interpretations differ, too. My esteemed colleague concludes his opinion by saying (at p. 268) that -

           

            "It is our task to maintain this defense [for expressing an opinion in good faith], in practice and according to the letter of the Law and its intention and the tendencies that lie at its base." (Emphasis added.)

           

            And there is no doubt that the tendency to preserve the "superior standing" of freedom of expression strongly influenced his restrictive interpretation of the protection given to an impugned person against defamatory matters published against him.

           

            I will now turn to the second part of my discussion and will begin by copying the language of section 15(4):

           

          "15. In a criminal or civil action for defamation, it shall be a good defence if the accused or defendant made the publication in good faith under any of the following circumstances:

            …

           

                 (4) the publication was an expression of opinion on the conduct of the injured party in a judicial, official or public capacity, in a public service or in connection with a public matter, or on his character, past actions or opinions, as revealed by such conduct".

           

            I believe that this section together with the matters set out in section 15 give us a proper solution to the problem of balancing the conflicting values of freedom of expression and the protection of a person's honor and good name.

           

            The language of the section teaches us that it provides a "good defense" for two types of expression of opinion.

           

(a) the expression of an opinion concerning the injured party's conduct in a judicial, official or public function, in a public service or in connection with a public matter.

 

(b) the expression of an opinion concerning the injured party's character, past actions or opinions, as revealed by such conduct.

 

            Grammatically, the concluding words "as revealed by such conduct" apply to the second situation only and not to the first. It is clear, however, that the two components are present in the first situation as well: the injured party's conduct (in a judicial. official or public capacity, in a public service or in connection with a public matter) on the one hand, and the expression of an opinion by the defendant, on the other hand. And it is essential that the defendant's opinion relate to the injured party's conduct. From the opening portion of section 15 it is clear that the publication of the expression of opinion must be made in good faith, but it need not be the truth, that is to say, factually accurate. If this were not the case, there would generally be no need for the special defense accorded by section 15(4) and all the other sub-clauses in section 15. Section 14 gives a full defense, in any event, for publication of a truthful opinion, if the publication is a matter of public interest. Only if there is no public interest in the publication does the publisher need the defense provided in section 15, if it is a true opinion.

 

            From the language of section 15(4), therefore, one learns that publications falling within its purview must contain the following true elements:

           

(a) reference to the injured person's conduct in a judicial, official or public capacity, or in connection with a public matter (or to his character, past actions or opinions, as revealed by such conduct) ;

 

(b) the expression of the accused or the defendant's opinion concerning one of the matters mentioned in (a).

 

            There is a basic difference between these true elements, in that element (a) must refer to correct facts, whereas with regard to (b), in certain situations the publisher has a defense against criminal and civil liabilty even if the expression of opinion was not the truth.

           

            As said, with regard to the description of the conduct, the publication must relate to true facts. On this matter there is already established precedent in this court interpreting the provisions of the 1965 law: C.A. 34/71 [9], at p. 528; C.A. 30/72 [l0], at p. 236. I am prepared to restrict this requirement as set forth by my esteemed colleague, Ben-Porat J, in her Opinion in the appeal which is the subject of this Further Hearing (at p. 284), that one must read into section 15 of the Law that portion of section 14 concerning the defense of truth: that the defense should not fail for the sole reason that the defendant was unable to prove the truth of an incidental detail that does not contain substantial injury. I also agree with my esteemed colleague (at p. 278) that the publisher must set forth at least the main facts on which his opinion is based. I would add that the publisher does not have to particularize facts which are in any event publicly known and which, therefore, need not be repeated in the publication which was made. However, I do not agree with my esteemed colleague's statement at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

            I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion. At page 257, he relies upon the words of Justice Brennan in the New York Times case [18]. I have dealt extensively with that judgment. I will now add that in my opinion it is clearly contrary to the correct interpretation (which is not a restrictive construction) of the provisions in our law. I will add also that the New York Times case itself does not speak of the publication's dominant character, but permits the publication of inaccurate facts concerning a public figure without regard to the dominant nature of the publication.

           

            My colleague referred at this point in his Opinion to an inaccurate fact which has been intermingled with the expression of an opinion. I cannot accept this intermingling theory, in principle, because in my opinion any publication seeking the protection of section 15(4) must make a clear separation between the description of the facts and the expression of an opinion concerning those facts. The very mixing of these two elements might make the writing unclear and allow the insertion of libellous and untrue facts into the opinion. The writer must indicate on which facts he is relying, and these facts must be accurate (except for incidental facts that are not substantially harmful), and having set forth the facts, he may then draw his conclusions from them by way of expressing an opinion, provided he clarifies and distinguishes between a fact and an opinion. On this matter, I am prepared, together with my esteemed colleague, to adopt that part of Odger's book which she brings at page 277. If the setting forth of the facts is separated from the expression of opinion by way of conclusion drawn from those facts, it is as if the publisher says to the public that read or hear him: "These are the facts concerning this person's conduct and this is my opinion about that conduct. And now you, the reader, judge if you accept my opinion based on those facts". Such a presentation of matters is not forbidden by section 15(4), and if the opinion is expressed concerning one who fulfills a judicial, official or public function, or a person in the public service or in connection with a public matter, the injured person will have to accept the situation, even a wrong conclusion that the publisher has drawn from those facts, if the expression of opinion by way of drawing conclusions complies with the remaining requirements of the law. The remarks of an Australian judge on this topic, brought by Gatley at page 298, hit the mark:

 

"To state accurately what a man has done, and then to say that (in your opinion) such conduct is dishonourable or disgraceful, is a comment which may do no harm, as everyone can judge for himself, whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself the character of the conduct condemned, nothing but a false picture being presented for judgment." Per Windeyer J. in Christie v. Robertson (1889) 19 N.S.W.L.R. at p. 161 [17].

 

            From what I have just said in relation to the "dominance" theory, it is clear that I disagree not only with my esteemed colleague but also with Berinson J, who said (at p. 269):

           

"Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation the conclusions expressed and the criticism contained in it.... I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance."

           

            I understand from these remarks that Berinson J supports the idea of "dominance" in the publication. I will deal later on with the question whether these inaccuracies, which were intermingled with the opinion and the criticism, were indeed secondary in their importance.

           

            With regard to the defense under section 15(4), the Law does not recognize any distinction between the owner of the newspaper and its editor or any other person who makes a publication. The claim that the owner of a newspaper and its editor have superior standing was rejected in earlier stages of these proceedings, C.A. 213/69 [11], in which this Court struck out the claim of a defense under section 15(2), and held, based on the ruling in C.A. 90/49 [4], that the law applicable to newspapers is the same as that applicable to any other person, with regard to the duty of publication, that is to say, he may not rely on the defense under section 15(2) when such a defense is not available to another person. So, too, C.A. 552/73 [12]. And if a newspaper does not have superior standing with respect to section 15(2), then the same is true with regard to the defense for expression of opinion in good faith under section 15(4).

           

            With regard to the scope of the right to expression of opinion in good faith (as opposed to the presentation of the facts), I am prepared to accept Justice Brennan's remarks in the New York Times case [18], which my colleague cites (at pp. 244-245), that the debate concerning disputed public matters may be "uninhibited, robust and wide open". This is necessary so as not to stifle the free clarification of political and other disputes in which the public has an interest. Here, freedom of expression overrides the policy of protecting the individual's good name. But our law sets limits to this freedom. (a) The opinion must be expressed in good faith (the opening part of section 15) and (b) the publication must not exceed that which is reasonable in the circumstances set forth in section 15(4). And while requirement (b) appears in section 16, which deals with presumptions concerning good faith, one may derive from this a substantive requirement that the opinion expressed must also be reasonable. On this point I agree with the broad language that my esteemed colleague brought from the English cases:

 

"In this regard, it is sufficient that a reasonable man could have reached the defamatory conclusion from the facts set out in the publication, and that the facts upon which he relied were brought in the body of the publication".

 

            But once again, the facts on which the expression of opinion or criticism is based must be correct, and it is not sufficient that the weight of the accurate facts is dominant with regard to the inaccurate facts, in the total picture.

           

            My esteemed colleague said (at p. 262):

           

            "As explained above, the purpose [of sections 15 and 16 of the Law] is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical."

 

            Dr. Goldenberg attacked this statement, but it seems that his criticism was based on a misunderstanding. My esteemed colleague spoke here (and he will certainly correct me if I have misunderstood him) only of the expression of an opinion "that is not grounded in the truth", and he did not intend to say that the facts upon which the opinion or the criticism was based need not be truthful. With that I too agree, provided that the expression of the opinion was honest and reasonable, (but I did not agree, as aforesaid, that it is sufficient if the dominant character of the factual basis for the criticism be truthful).

           

            I have now reached the last part of my Opinion, in which I will examine the publication which is the subject of the Petitioners' claim. The article was brought in its entirety at pages 230-23l and I will not set it out again. No one disputes any longer that the Respondents did not establish the truth of the statement in the article that "actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General...." On the other hand, the Petitioners did not prove that the Respondents published the article's contents in bad faith. In this context it should be remembered especially that the fourth Respondent turned to the first Petitioner's spokesman before the publication occurred and asked for his reaction, but the latter refused to give any reaction (as a result whereof the Petitioner was awarded nominal damages in the amount of one pound only).

 

            Before I examine the contents of the article, I will dispose of Mr. Lieblich's claim that, since the majority judges in the appeal concluded that the article in its entirety was primarily a good faith expression of opinion, this is a finding of fact, and this court's practice is not to intervene in such findings in a Further Hearing, because Further Hearings are not intended to serve such a purpose, while on the other hand, it was proper for the majority judges to contradict the District Court's findings, because the question of classifying the article's contents is a question of law. Mr. Lieblich's claim is self-contradictory. It is correct that the question concerns the application of the law to the facts, and if the law was not interpreted correctly, then its application to the facts may contain a legal defect which can be corrected in an appeal and also in a Further Hearing. In my opinion, this is what happened in this case, because the majority opinion in the appeal contains novel holdings which ought not to be supported and they influenced the majority's interpretation of the provisions of the Law and, as a result thereof, also the way in which the Law was applied to the facts.

 

            I agree with my esteemed colleague that the question here is that of classification of the article's contents. The article charged that the Petitioners intended to mislead the public - to calm down the criticism of the purchase of an expensive car for the second Petitioner during a period of financial cutbacks by means of the fraudulent assertion that the car would be sold, whereas in fact this was merely a subterfuge, because their true intention was that the vehicle would be returned for the second Petitioner's use when the hue and cry will have died down.

Was the attribution of this intention to the Petitioners a factual claim - and a false fact - or was it only the expression of an opinion? My esteemed colleague concluded that based on the dominant character of the article, this was only an expression of opinion and Berinson J thought that the Respondents mixed fact and opinion together, but he did not consider that of any import.

 

            Dr. Goldenberg suggested a standard for distinguishing between determining facts and expressing an opinion (in paragraph 18 of his summations):

           

'"A fact' is not only a primary fact but also a factual conclusion, presented to the reader as a factual datum. 'The expression of an opinion,' by contrast, is the rendering of an expression of value, ('good', 'bad', 'appropriate', 'inappropriate', 'proper', 'improper', and the like), that is to say: the making of a normative value judgment on the facts in their widest sense (including factual conclusions)".

 

            This standard seems to me too narrow, because the attribution of this or that intent to the injured party, too, such as fraudulent intent, can be an expression of opinion by way of drawing a conclusion from the detailed facts, even if it is not a normative judgment. But, as I set out above, in order for the attribution of a particular intention to be the expression of opinion, the publisher must first set forth all the facts upon which he attributes that intent to the injured party. In this way, the expression of an opinion can also be correct or incorrect, true or false, whereas Dr. Goldenberg's standard of making a normative judgment does not state "correct or incorrect", but "appropriate or inappropriate" and the like.

           

            I will illustrate my words by reference to the contents of the article in issue: the attribution of fraudulent intent appears in true places, in the first part of the article and in its second part. The second part states, based on the facts previously brought out:

           

            "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

 

            In other words, the Goldberg agency clerks drew their conclusions from the facts which were set out and the fourth Respondent agrees with this conclusion. If that were all, I would have said that this is expression of an opinion concerning the corporation's intent, which does not necessarily have to be true for the Respondents to enjoy the protection of section 15(4), and all that remains to be done is to see whether the conclusion which was drawn is not unreasonable based on the facts set out. However - and this is the important point - there is also the first part of the article in which the writer states categorically that: "actually, the Electric Corporation is not really interested to get rid of the car". This is a clear finding of fact, that is the article's sting, without any factual foundation having been laid for it in what was said earlier. This part of the article gives the ordinary reader the impression that the writer has information on the basis of which he establishes it as a fact that the Corporation does not intend to sell the car. That is to say, he does not invite the reader to judge, based on facts which he has set out, whether it is reasonable to draw this conclusion, but the writer has already judged for himself, as it were on the basis of evidence which he does not disclose, and he encourages the reader to accept his judgment without exercising his own criticism. Such a presentation of fact is done at the writer's risk and if he is not able to establish its truth, he must bear the consequences. It is true that there also is the second part of the article in which the matters are presented as the conclusion drawn by the clerks at the Goldberg agency, with which the writer agrees, and that one should generally read the article in its entirey in order to discern its nature. But one must also remember that the ordinary reader of the newspaper does not analyze the material presented to him in great detail, but the general impression is what counts, and this impression is very much influenced by the order in which the matters are set forth. If a certain impression is created at the beginning of the article, it will not easily be erased by other matters which appear later. At the very least it may be said that this article mixed factual statements and the expression of opinion in a way that the reader cannot separate them - and this is sufficient ground on which to hold the respondents liable.

 

            On the basis of the above, I would set aside the judgment of the majority in the appeal and I would hold the Respondents liable, as did the District Court in its judgment.

           

            After writing this Opinion, I received a copy of Sir Zelman Cowen's book "Individual liberty and the Law" published by Eastern Law House, Calcutta & Oceana Publications Inc., Dobbs Ferry, New York. This is a collection containing the Tagori Lectures that the author presented at the University of Calcutta. The learned author (who is now the Governor General of Australia) discusses in these lectures the fundamental problem of preserving the individual's right to his good name and privacy as against the freedom of the press. I have no doubt that this book will become a leading book on this subject. I note with some satisfaction that much of what I have said here accords with this authority's opinion. (And as chance would have it, the title for the first part of the book is "The Right to Wave My Arm"). The perusal of the chapters in the book that cite extensive authorities that were not before me has broadened my understanding and deepened my thinking concerning the matters we have dealt with in this Further Hearing. There is no room here to describe even its principal contents. The reader will find there a complete analysis of the American decisions, beginning with New York Times v. Sullivan [18], in a very critical light. The author's conclusion is that the publication of that opinion was no occasion for "dancing in the streets", as one American professor suggested (see pp. 47, 63). After studying this important book, I am reinforced in my view that we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws.

 

            Kahan J: I agree.

           

            Etzioni J: I respectfully concur fully with my esteemed colleague, the Deputy President's judgment, in its entirety. However, in light of the very wide ranging arguments which my esteemed colleagues Shamgar and Ben-Porat JJ have set forth, and of the new and far reaching precedents which were established in C.A. 723/74, as the Deputy President notes, I find it proper to add a few remarks of my own, particularly with regard to the question whether the principle of freedom of expression is superior to the right of a person to his good name, in the hope that I will not detract thereby from the Deputy President's comprehensive remarks.

           

            In C.A. 30/72 [l0], which the Deputy President has referred to, I discussed the strict rules of Jewish law concerning a man's right to the protection of his good repute, as expressed in the well known sentence from the book of Ecclesiastes: "Better a good name than good profits". I also quoted there from Maimonides, Laws Concerning Beliefs, chapter 9, that a person who disparages his friend, even when saying the truth, nevertheless commits an act of speaking with an evil tongue. Still, I set out there that a public person is subject to public criticism and exposure. And in Cr.A. 364/73 [13], I expressed my opinion that the judiciary, too, is not immune from this criticism. In that judgment, which concerned a person who was charged with criminal contempt of a judge, I said:

 

"There is often a clash between two principles in this matter. One is the principle of respecting the judicial system while the other is freedom of expression and criticism, including criticism of the judicial system and the judges".

 

And I added:

 

"It is not always easy to tell which principle to prefer in each case. And if from time to time it turns out that a judge suffers unfair criticism, well this is the unavoidable price of the democracy in which we live. Only in totalitarian countries does the citizen not dare to criticize the regime and the courts."

 

And, further on, I said:

 

"Such criticism must be fair, restrained and based on the issues. Nevertheless, it should not be silenced when from time to time it crosses the bounds of good taste".

 

            I have quoted the above matter so as to show that I am not lightly disposed to limit the citizen's and the press' right of criticism regarding the acts of public figures, including judges themselves, as long as such criticism is within accepted bounds of fairness. As for me, I see no conflict between these two principles of freedom of expression and criticism and the protection of a person's good name.

           

            I expanded on this matter in another case, C.A. 552/73 [12], where the question arose whether the award of high sums of damages for defamation might repress freedom of the press. I allow myself to repeat what I said on that occasion:

           

"I am far from denigrating the importance of the existence of a free press in Israel. However, when is that the case - when this freedom is not abused. When we speak of the freedom of the press, we mean principally the freedom to publish a clear and true account of events that occur in the country and the ability to criticize them freely, without fear of official censureship on political or other grounds. However, this freedom is not a license to issue defamatory material without any factual basis".

 

And I also added there:

 

"If the newspaper crosses the boundary of reasonableness, it can no longer enjoy any privilege by claiming that the imposition of heavy damages could harm freedom of the press."

 

            It is clear, therefore, that there is no ground to prefer the principle of freedom of expression over that of a person's right to his good name.

           

            And if there be any need to cite additional authority beyond that which my esteemed colleague has brought, I find such in the rules of professional ethics that were adopted by the Press Council and were set out in the Annual Book of Journalism, 5738-1978, in an article by Advocate Rotenstreich, "Guarding Freedom of the Press." I quote three of those rules, numbers 1, 3 and 6:

           

"1. Freedom of the press and expression are man's basic rights, a cornerstone of his freedom and his rights in a democratic society. This right achieves its fullest and most comprehensive expression to the extent that journalists remember and take care to preserve their moral duty to truth and accuracy in the collection of information and its distribution - and by considering the acts, the thoughts and the sensibilities of the public."

 

"3. The journalist's and the newspaper's calling is to furnish to the public reliable information and interpretation which accords with the facts."

 

"6. Ridicule, inciting against a person and unfounded accusations - for example, on the basis of personal, national, ethnic, religious or racial background - are serious offenses for journalists. The journalist and the newspaper must respect every person's good name and private and family life.

 

If the publication has injured someone's honor and good name, he should be given the opportunity to publish a reply. The journalist and the newspaper must be particular concerning accuracy and to prevent the reader from drawing wrong conclusions." (Emphasis added - M.E.)

 

            From these provisions we see that even those who are particularly concerned to protect freedom of the press do not adhere to the principle that this freedom has superior status, but take particular care that a journalist who publishes his words to the public will exercise his legitimate and desired right of public criticism without belittling his other duty, to be exacting in preserving the facts that are the basis of such criticism.

           

            As my esteemed colleague the Deputy President has already pointed out, the Respondents in this case did not comply with this duty, and I therefore agree with his opinion, with all due respect.

           

            Ben-Porat J: There remains for me only to concur in the opinion of my esteemed colleague the Deputy President. His remarks complete what I omitted in my own remarks in the original hearing.

           

            I also concur in the remarks made by my esteemed colleague Etzioni J.

           

            Shamgar J: 1. I have read with interest the remarks of my esteemed colleague, the Deputy President, which represent the majority view in this Further Hearing, and out of respect to the position taken by my esteemed colleagues, I have also reexamined my own judgment in C.A. 73/74 (hereinafter - the previous hearing). My conclusion is that I disagree with the views expressed by my esteemed colleagues in this Further Hearing and I do not see my way clear to change the views I expressed in the previous hearing.

           

            2. The text of the article and the facts of the event will not be set out here once again, although their study is, of course, an essential condition for the evaluation of the substance of the publication that is the subject of this case, its connection to the proven facts, the classification of its parts - whether as facts or as the expression of opinion to which section 15(4) of the law applies - and the drawing of conclusions concerning proof of the existence of any of the circumstances specified in section 16(b) of the Law which deal with presumptions of lack of good faith.

           

            It is unnecessary to add that I also will not repeat here in detail my conclusions and my thoughts which were set out extensively in the judgment in the previous hearing, and for the reasons therefore, I refer the reader to what I said in the previous hearing.

           

            Since the inquiry in this Further Hearing has been very widespread, and in order to fix correct bounds, it will not be superfluous, I think, to state that we deal here with a defined segment of the law forbidding defamation, that is - a publication that relates to a matter of public interest and deals with the conduct of an official or public functionary.

           

            3. My esteemed colleague, the Deputy President, disagrees with my stand, as he says, in these three respects:

           

(a) The preferred status granted by our law, in my opinion, to the right of freedom of expression.

 

(b) The meaning of the provisions of the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law) in general and of section 15(4), especially and primarily the manner in which those provisions should be interpreted.

 

(c) The application of the defense set forth in section 15(4) of the Law to the article which is the subject of this litigation.

 

            4.As I have said, the majority of my esteemed colleagues disagree with my basic position, which I set forth in the previous judgment and according to which -

         

   "the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation on the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice" (Emphasis added - M.S.).

 

            It follows that acceptance of this legal point of departure, that recognition of the basic freedoms is an essential part of the law in Israel. entails the conclusion that the basic freedoms are part of the law. as per their name and their purpose, that is to say, as basic rules that guide and give structure to forms of thought and legal interpretation and influence them by their spirit and direction. The result is, among other things, that to the extent that the matter can be reconciled with the written law, one should always prefer the existence of freedom of expression as opposed to its limitation and restraint. It goes without saying that I agree that when a court is called upon to interpret the provisions of a law that has implications for freedom of speech, the court may not declare that the law is void if it contains express and unequivocal provisions that forbid the exercise of that right or establish a specific limitation on it, in particular circumstances. But whenever the legislature's words leave room for interpreting the law one way or another, that is whenever the modes of interpretation allow a choice between a strict interpretation that tips the scales in favor of curtailing freedom of expression and an alternative liberal method, then the second method should be adopted, which will protect and establish freedom of expression to the extent possible.

 

            My esteemed colleague, the Deputy President, is not ready to lend his hand to this approach, and as he hinted, his attitude derives, to a certain extent, from the difficulties inherent, in his opinion, in any written declaration of rights, that is to say, from his doubts concerning the necessity of giving constitutional standing to the basic rights.

           

            In this context, freedom of expression has been called "an unwritten right", but this does not reduce its legal standing in any way. Our Israeli common law has not yet been transformed into written law, and despite legislative efforts to convert unwritten principles into written rules, it should be assumed that there will remain legal precedents that do not find expression in any particular legislative enactment. As is well known, this does not in any way detract from their standing in our system of law.

 

            In taking exception to the standard for interpretation which I set forth in my Opinion, the Deputy President refers, among other things, to the remarks of my esteemed colleague, Kahan J, in F.H. 27/76 [3]:

           

"When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent".

 

            With all due respect, this is not at all the question before us in this case: so long as this court has no power of constitutional review, it is obvious that a clear and unequivocal statutory provision must be interpreted according to its plain import and meaning, even if that law curtails a basic freedom. The standard or the guideline to which I referred above becomes important, as I explained, when the matters are not clear and unequivocal, when the text of the law allows room for judicial discretion and when the question arises in this connection, what is that intention that should be read into the legislature's words.

           

            More particularly, the legislature did not lay down unequivocally that any person who transmits a fact inaccurately, whether slight or serious, important or marginal, substantive or irrelevant, will always be liable for having committed a tortious act, without more. Were that the case, there would be no place for the thesis I have set forth. But that is not the way in which the legislature works. It defined defamation but also set up frameworks to clarify and to classify published matter, it established the importance of good faith and created defenses and mitigations which would apply to different publications, even though they are defamatory. Among other things, the legislature defined those circumstances which will raise a presumption that the publication was not done in good faith and opened the door thereby, that the opposite conclusion will be drawn on certain facts. These special defenses are a clear sign that, in certain circumstances, the legislature chose to prefer freedom of expression even though the publication injures someone's honor.

           

            This reflects a basic approach which, in my opinion, should be extended and applied whenever the court concerns itself with the interpretation of the Law or the meaning of a publication, as for example, when writings that criticize a public authority can be understood both as expressing an opinion and as stating a fact. To sum up my view, I can best refer once again to part of those quotations which were brought by my esteemed colleague in his Opinion from Olshan J (as was his title then) in C.A. 90/49 [4], which include the following selection:

           

            "Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

            So, too, Agranat J's view (as was his title then) in Cr. A. 24/50 [5], at p. 1160:

           

"The law recognizes that, in certain particular circumstances, the public good requires that a person not be punished for distributing defamatory material, so that the above-mentioned basic right [freedom of expression - M.S.] not be emptied of all content, because the danger of harm that would be caused to the public by over-restriction of freedom of speech and writing is given preferred consideration over the injury to one individual."

 

            And in H.C. 73/53 [1], Agranat J called freedom of expression a superior freedom that is a condition precedent to the exercise of almost all the other freedoms.

           

            I do not disagree with my esteemed colleague that one must distinguish between freedom and anarchy and that certain freedoms must be qualified, in given circumstances and conditions, for the public good. However, the question always is where to draw the line and what is the proper guideline for marking the limits. It may not be inferred from my esteemed colleague's remarks, which appear to set up a person's right to his honor and his good name as paramount to the right of freedom of expression, that he believes that it is always forbidden to publish a libel, regardless of the circumstances. For that would render the provisions in the Law that establish defenses when the published words are defamatory empty of all content. So, too, one should not infer from the protected and preferred status given to freedom of expression that it may never be qualified in the slightest.

           

            To sum up, when the law provides defenses whereby, in specified circumstances, things said or written will not be regarded an offense or a tort even though their content is defamatory, the basic approach takes on great importance: whether it is severe, restrictive and guided by a narrowing yardstick, that seeks to impose the fear of the law on marginal cases, such as those which we will deal with shortly, in which insignificant and unimportant inaccuracies have been intermingled in the writing that is essentially the expression of opinion concerning the improper conduct of a public functionary. Or, perhaps we should interpret the writing - to the extent possible - liberally, and perceive the defenses defined in the written law as an expression of a desire not to harm or impede the free expression of criticism concerning public matters, beyond the necessary minimum.

           

            5. The majority Opinion expresses the view that, instead of giving interpretive superior status to the principle of freedom of expression, one should undertake "a process of balancing the competing values on the scales and choosing among them". This does not provide an answer to the question how one should interpret the provisions of a given law. The process of balancing competing values describes the starting line of interpretation, but it does not provide criteria or value weights with which to do the work of interpretation. Furthermore, I fear that the result of comparing values without setting forth criteria for evaluating their respective weights will be that, in each case, the court will apply whatever criterion appears appropriate in the circumstances, according to the best understanding of the particular panel that happens to be sitting. In other words, the decisional framework which contains a guideline of value, namely, the object of maintaining a fundamental freedom, will be exchanged and replaced by an unpredictable paternalistic and arbitrary framework. With all due respect, this is most unsatisfactory, and I am certain that it also will not bring about clear and consistent decisions.

 

            6. For the purpose of emphasis and clarification, my esteemed colleague referred to the German experience, that is to say, the theory that the weakness of the German law of defamation during the period of the democratic Weimar regime that preceded Hitler was used by the enemies of democracy as a very effective weapon to undermine democratic regime. For support, he referred to the article by David Rieisman which was published in the Columbia Law Review in 1942. It seems to me that the long period that has passed since then has given us a wider historical perspective for the understanding of the many and varied factors that led to the rise of the Nazi regime in Germany and I am certain that a broader analysis, today, would disclose that the relative importance of the German libel laws in this context, as opposed to other factors and elements, was not great. However, the principal matter is that one must be cautious when it comes to imposing restraints on freedoms merely because a totalitarian movement of one type or another managed to take advantage of such restraints for its nefarious purposes. Such an approach, itself, can lead to dangerous and far reaching conclusions. It is better to avoid analogies whose relationship and similarity to our political and social realities and our system of law are flimsy and slight, particularly when this very month two foreign journalists were put on trial in Moscow for defaming officials of the Soviet broadcasting authority.

           

            I only repeat what is well known, from the statement of one of the great men of the generation, when I conclude my discussion of this point by saying that the democratic system of government has many weaknesses, one of which undoubtedly is that the freedoms it allows can be used by persons of evil intent. But, at the same time, we accept the fact that we have yet to find any better system of government, be it for the individual, for society as a whole, or for the proper balancing of the needs and the rights of both.

           

            7. I will now proceed to the second question, namely, what is the correct interpretation of the Law. At the beginning of his discussion of this topic, my esteemed colleague refers to the defenses which the Law provides. But it should be emphasized here that we are not talking about defenses for the protection of the injured party, as might be understood from his discussion and his conclusions, since he considers my interpretation to be narrowing. By calling chapter 3 of the Law "Permitted Publications, Defenses and Mitigations", the legislator intended to refer to publications permitted to the publisher and defenses and mitigations for the defendant and not for the plaintiff.

           

            However, the conflict between us does not rest on the question of whether my interpretation is narrowing or widening. All that I sought to express in my Opinion in the previous hearing was that the text of our Law, including section 15(4), is consistent with the basic precepts which I put forward and does not conflict with them, and that it can be interpreted so as to preserve its fundamental purpose, namely, to forbid the publication of defamation while providing proper protection for those publications that are essential to the existence of a free society .

           

            The judgment in the Sullivan case [18], as any other foreign precedent, could not have been cited by myself as a binding precedent and the description of its holdings was a presentation of the views and basic tendencies accepted in this field in the United States, which I proposed be adopted because they are consistent with our own written law. In other words, our legal criterion in this matter is exhausted by sections 15 and 16 of the Law, but it is up to us to decide what content to give to this legislation and what meaning to attribute to it.

           

My esteemed colleague said, among other things that -

 

   "we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws".

 

            With all due respect, I disagree with the assertion that there is a unitary accepted approach to this matter in the common law countries other than the United States. And precisely Sir Zelman Cowen's book, to which the esteemed Deputy President referred, cites the varied tendencies and views, that often contradict each other. (Compare, for example, the conflicting proposals concerning the status of newspapers with regard to the law of libel and the conclusions of the New South Wales Law Reform Commission, 1968, with those of the Shawcross Committee (The Law and the Press, 1965).) But furthermore, I would not incline to give approbation to the English libel laws, which only recently it was stressed require correction (see the report of 1975) and as to which Lord Diplock previously said:

           

          "...the law of defamation... has passed beyond redemption by the courts."

           

            8.         With regard to the interpretation of section 15(4) of the Law, in my opinion, the dispute turns primarily on one issue, namely, the significance of the incorporation of secondary factual allegations within a publication that is primarily (dominantly) the expression of an opinion. Still, I conclude that my esteemed colleague did not see fit to adopt the rest of the lower court's conclusions in this matter, with which I disagreed, viz.:

           

(a) that the concepts good faith and truth are always linked together with regard to the protection against libel, which, in my opinion, contradicts the provisions of section 16(b) of the Law, and

 

(b) it appears from the District Court's analysis of the issues that every expression of opinion must meet the test of reasonableness in the eyes of the court that sits in judgment, that is to say, it is not the departure from the bounds of reasonableness in expressing the opinion in the circumstances of the case that determines, but the general reasonableness of the opinion in the eyes of the court.

 

            My esteemed colleague correctly states with regard to (a) above, that the expression of an opinion need not necessarily be the truth - that is to say, factually correct - else generally there would be no need for the special defense provided by section 15(4) of the Law.

           

            We will not deal with his remarks concerning item (b) above.

           

            On the other hand, he disagrees with the following matters said in the previous judgment at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought? The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

In this context, my esteemed colleague says:

 

"I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion."

 

            According to my scheme, it is not necessity to seek support for this particular point in the words of sections 15 or 16. The yardsticks set forth in section 15 of the Law should be interpreted according to their substance and their clear direction, and in a manner so as not to draw from the text unnecessary strictness. Moreover, the presumptions created by the legislature in section 16 and the imposition of the burden of proof which derives therefrom support the opinion that the legislature intended to relax the publisher's burdens, if he acts without malice. Therefore, the mingling of a factual detail in a publication which is by its dominant nature an expression of opinion need not be interpreted in a limiting fashion, and it would appear from further on in his Opinion that my esteemed colleague treated an ancillary fact in the publication in the same manner, without relying on a specific provision in the written law.

 

            Incidentally, one can find expression of a similar approach in the current opinion in England and, I referred in this context, for the purposes of comparison, to section 6 of the Defamation Act, 1952, and also, to no little extent, to the remarks of Denning J in Slim v. The Daily Telegraph [15], to which I will refer again later on.

           

            I am also pleased that my esteemed colleague agrees that the defense under section 15 is not lost merely because the defendant does not prove the truth of an ancillary fact that is not seriously harmful, even though that section of the Law does not contain an express provision to this effect. Were the Law to be interpreted strictly, on the basis of its express provisions alone, one would have to conclude from the inclusion of such a provision in section 14, on the one hand, and its exclusion from section 15 which concerns us here, that such an ancillary fact would in fact undermine the defense.

           

            It is unnecessary to add that this interpretive difficulty does not arise according to my method.

           

            I incline to conclude that the difference between my esteemed colleague's approach on this particular point and mine is not a conflict of principle but stems from the difference between establishing the principle and applying it.

           

            Essentially, one's basic approach bears on the evaluation of the significance of the intermingling of a factual detail in the expression of an opinion. publications concerning public matters are not always written in the same manner as one would prepare a legal opinion or legislation, and the application to them of a picayune yardstick that demands strict compartmentalization of fact and opinion and judges every slight deviation harshly could impose a heavy burden on freedom of expression. I agree that this strict view was stated expressly in the 1911 edition of Odgers, but I believe that since then we have seen the first signs of a more liberal approach. perhaps it would be correct if I quote once again Denning L.J.'s words in Slim v. Daily Telegraph Ltd. [15], at p. 503:

           

            "...These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy .... Another person may only read into them imputations of inconsistency and want of candour .... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it .... I stress this because the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspapers should be free to publish his letter. It is often the only way to get things put right."

 

            And at page 198 of the judgment in London Artists [16], which I also referred to in my previous judgment, Denning J categorized a particular letter as a combination of facts or as opinion on the basis of -

           

            "... a fair reading of the whole letter ...",

           

a yardstick which I would adopt in the matter before us.

 

            9. I now come to the third topic, the interpretation of the article itself:

           

            With regard to the factual inaccuracies in the article, I can do no more than repeat my previous remarks at page 263 of the original judgment, as follows:

           

"Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion: similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of 'more than four months', as said in the article; so, too, it is of no importance that it was not 'the agency's clerks' who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to communicate his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, shows that there were offers from car dealers, 'who thought they could get the car at this price,' and the price set forth in the letter is 24,000-25,000 Israeli pounds."

 

            Given the light weight of these inaccuracies, the defense of good faith set forth in section 16 of the Law applies to this article, as I said at pages 264-266 of my judgment:

           

"With regard to section 16(b)(1): in the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant.

 

 The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Mr. Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b) (2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information to circumvent the barrier he himself created by his refusal.

 

The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher 'had not, prior to publishing it [the matter published] taken reasonable steps ascertain whether it was true or not'. But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b)."

 

            With regard to section 16(b)(2), my esteemed colleague commented on the fact that the fourth Respondent sought to speak with the first Petitioner's spokesman, but he refused to react and he noted that, as a result thereof, the first Petitioner was awarded damages in the amount of one pound only.

           

            But the proofs in the lower court also indicated that the second Petitioner is the person who gave the order not to reply to the Respondent's approach, but for some reason the lower court did not draw any conclusion in connection with that.

           

            10. The majority Opinion and I disagree whether to categorize a certain sentence in the article as fact or opinion ("actually, the Electric Corporation is not really interested to get rid of the car") and over the significance of mixing finding facts with the expression of opinions. I viewed this sentence as the expression of an opinion, that arises as a conclusion from the facts given in the earlier part of the publication, whereas my esteemed colleagues regard it as a factual claim. As to my view of the matter, I can do no better than to refer once again to what I said at page 264 of my previous decision and to the selection quoted above from the judgment in Slim [15], according to which, the substance of the publication should be judged, among other things, after a fair reading of the whole.

 

            11. To sum up the matter, the stricter standards which my esteemed colleagues have adopted as the test for examining factual inaccuracies and the interpretation with regard to classification of some of the matters set forth above, causes the majority to find fault with the publication at issue.

           

            I regret this for two reasons:

           

            First, I fear that this may be interpreted as a restraint and limitation on the principles concerning freedom of expression which have been crystallized in our legal system ever since the establishment of the State and particularly since the decision in the Kol Ha'am case [1]. Second, the failings which are uncovered from time to time in our public service are not rarities and not infrequently the citizen faces obstinacy, bureaucratic arrogance, indifference, and an unwillingness to practice fiscal economy and even worse. Efficient and free criticism of the conduct of public authorities, including the government companies that provide public services, is an essential means for correcting these improper practices. If the citizen fears that the every factual inaccuracy, no matter how trivial or slight, might involve him in legal proceedings, and that every doubt that arises from his text will be interpreted strictly, he will be in fear of those who control unlimited funds in the public purse to conduct their litigation, he will not dare to protest and the criticism will be stifled before it has been uttered. The yardsticks for the limits of permitted criticism of those holding official or public office which have been adopted in the United States and whose underlying approach - as distinguished from its detailed application - can be adopted in my opinion within the framework of our written law, were not created in a vacuum. They are not the fundamentalistic views of judges of the school of Justices Black and Douglas, because it was not their opinion that prevailed in the Sullilvan case [18]. This conclusion arises from the need to create efficient checks and proper balances in a free society against the development, and even victory, of those who would take wrongful advantage of the powers and authority of public office, because the private citizen dares not to open his mouth. It is unnecessary to add that the public does not only feed on abstract declarations concerning the existence and importance of basic freedoms, but it is also awake to their actual application in practice. The Supreme Court of the United States was aware, therefore, of the risk that arises from the blocking of criticism beyond the extent required by the law, however pure the motives may be. In the words of Sussman J (as his title was then) in H.C. 206/61 [14], at p. 1728:

 

"True democracy will be measured especially by the standard whether criticism will be published and heard, for without that, the regime of parliamentary democracy will fall into an abyss".

 

            What I have said here concerning the essential role of criticism applies, of course, to the bureaucratic system in general, and the fact is that in this case before us, too, the Petitioners altered their original decisions only as a result of the criticism that was expressed in the press. It matters not one iota that they were unwilling to admit at any stage that they had in fact erred. Restraint of criticism based on picayune demands concerning ancillary factual matters may create serious dangers far in excess of those which could result from the mixing of inaccurate ancillary facts into an article whose dominant character is legitimate criticism of the conduct of a public official in the performance of his duties, and which did not exceed the bounds of fair comment in those circumstances.

           

            Accordingly I would dismiss the Petition.

           

            Decided, by majority opinion, to void the judgment of the majority in the Appeal and to hold the Respondents liable as did the District Court. The Respondents are to pay, jointly, to the Petitioners, costs in the sum of IL30,000, in the Appeal and the Further Hearing together.

           

            Judgment given on 24 Av 5738 (August 27, 1978).

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

In the Supreme Court

Sitting As a Court of Civil Appeals

CA 1697/11

 

Before:	His Honor, Justice S. Joubran His Honor, Justice U. Vogelman His Honor, Justice N. Sohlberg
The Appellants:	1.  A. Gottesman Architecture Ltd 2.  Asaf Gottesman
v.
The Respondent:	Arie Vardi

 

Appeal against the judgment of the District Court of Tel Aviv-Jaffa (Her Honor Judge A. Baron) of January 17, 2011 in CF 1222/09

 

On behalf of the Appellants:	Adv. Hillel Ish-Shalom, Adv. Roy Kubovsky, Adv. Guy Lotem
On behalf of the Respondent:	Adv. Eran Presenti

JUDGMENT

Justice U. Vogelman

 

            An architect designed a unique house for a client and asked to photograph it in order to show it on his firm's website. The client refused. The architect published computer simulations of the client's house on the website, without giving details identifying the owner of the house. Does this case give rise to an infringement of privacy? That is the question that faces us.

 

The Main Facts and Proceedings

 

1.         The Second Appellant (hereinafter referred to as "Gottesman") is an architect who heads a firm of architects. At the beginning of the year 2000 the Respondent (hereinafter referred to as "Vardi") commissioned Gottesman's services for the latter to design his residence for him. The parties do not dispute the fact that the project was one of a kind and a house was ultimately built that was exceptional as regards its size, the type of materials used in its construction and its unique design. Despite the extensive scale of the project, no written agreement was ever made between Vardi and Gottesman, either with regard to the commissioning of the architectural work or concerning the possibility of documenting and photographing the building for Gottesman's purposes.

 

2.         Even before the construction was completed, Gottesman asked Vardi to photograph his house, as was his firm's practice. Vardi, for his part, made the photographs conditional upon Gottesman and the intended photographer signing a letter of commitment in respect of the photographs' use. According to the wording proposed by Vardi, Gottesman and the photographer would be obliged to apply to him in writing whenever they wanted to make use of the pictures and obtain his express consent. The two were also required to undertake to pay Vardi agreed damages without proof of loss for any breach of that undertaking: Gottesman - $500,000 and the photographer - $50,000 (hereinafter referred to as "the letter of commitment"). Gottesman asserted that the letter of commitment that Vardi proposed was a new requirement that was contrary to a previous understanding between the parties in respect of photographing the house. Vardi, on the other hand, expressed anger at the fact that Gottesman categorically denied the importance of protecting his privacy. No agreement was ultimately made between the parties and in the absence of any understanding, professional photographs of Vardi's house were not taken.

 

To complete the picture, it should be noted that at the relevant time photographs of Vardi's house were published in two places: firstly, pictures of the house exterior were published in a book that was printed in hundreds of copies, published by Apex Ltd (hereinafter referred to as "Apex"), which had installed windows and shutters in Vardi's house; secondly, pictures were published on the website of the carpenter who had done carpentry work in Vardi's house. Both Apex and the carpenter had signed a letter of commitment in favour of Vardi with regard to using pictures of his house in terms similar to those that Gottesman had been asked to sign.

 

3.         Since Gottesman had not been permitted to photograph Vardi's house he commissioned the services of a studio that specialised in the creation of computer simulations in order to create an artificial simulation of the architectural work in Vardi's house. Those simulations, which look very similar to actual photographs, were published on the website of Gottesman's firm (hereinafter referred to as "the website"). There were no details identifying the owner of the house or its address alongside the pictures. After Vardi discovered that the computer simulations had found their way onto the website, he filed a lawsuit in the Tel Aviv Magistrates Court against Gottesman and his firm, in which he applied for a permanent injunction restraining them from making any use of photographs or simulations showing his house. At the same time as bringing the action, a motion was also filed for the provisional relief of removing the simulations from the website. An order prohibiting publication of the existence of the legal proceedings, including any identifying detail in respect of any of the parties to the action, was also sought. On November 11, 2008, during a Magistrates Court hearing of the motion for provisional relief, the parties reached an understanding with regard to publicising Vardi's house on the website until the motion for provisional relief is heard on its merit. In that understanding it was provided that the simulations would be removed from the website and other pictures of the house, which had already been published in the Apex book with Vardi's consent, would be published instead (hereinafter referred to as "the procedural arrangement"). On September 24, 2008 the Court (Her Honour Judge Z. Agi) allowed the application for the award of an interim gag order. Nevertheless, the Court ordered the trial to be remitted to the Tel Aviv District Court because it was found that the relief sought in the action was within its residual jurisdiction since it was an application for a permanent mandatory order incapable of financial quantification. Both the procedural arrangement and the gag order remained in force during the trial of the action.

 

The Judgement of the Lower Court

 

4.         The District Court (Her Honour Judge A. Baron), to which the trial was remitted, allowed Vardi's claim and held that his privacy had been infringed as a result of the exposure of his home on the Internet. It was held that although the simulations did not include personal belongings or intimate items, they did make it possible to obtain an impression of the lifestyle in the house, the habits of its occupants and their financial position. On the other hand, the Court dismissed the plea that removing the simulations would infringe the freedom of occupation and intellectual property rights of Gottesman and his firm. Consequently, against the infringement of Vardi's privacy, the Court weighed the harm to the economic interest that Gottesman and his firm would sustain, if they could not use the simulations in order to attract potential clients. In balancing them, the Court held that Vardi's right of privacy outweighed Gottesman's economic interest. Alongside that, the Court held that Vardi had not expressly or impliedly agreed to publication of the pictures or simulations. It was found that even if there had been talk between the parties about publishing pictures of the house in some or other framework, no express agreement had been reached to take and publish photographs. It was also held that there was no implied agreement to publishing the pictures. Amongst other things, the Court declined to treat the working relationship between Gottesman and Vardi or the fact that Gottesman had designed and planned the house as implied consent to the use of the simulations. It was further held that Vardi's agreeing to allow Apex and the carpenter to make certain use of photographs did not constitute implied agreement to similar use by Gottesman. Finally, the Court stated that even had Vardi's agreement been obtained, the agreement was unenforceable by virtue of section 3 of the Contracts (Remedies for Breach of Contract) Law, 5731-1970. A permanent injunction was therefore awarded restraining Gottesman and his firm from making any use of photographs or simulations showing Vardi's house, and the procedural arrangement that the parties had reached was annulled/rescinded. The sweeping gag order in the case was also removed and replaced by a mere prohibition of publishing the evidence.

 

The Parties' Arguments on Appeal

 

5.         In the appeal herein Gottesman and his firm reiterated their assertion that they should be permitted to publish the simulations on the website. At the outset, the Appellants dispute the lower court's finding that showing the computer simulations infringes "the privacy of a person's intimate life", within the meaning of the definition in section 2(11) of the Protection of Privacy Law, 5741-1981 (hereinafter referred to as "the Protection of Privacy Law" or "the Law"). Firstly, it was pleaded that showing the computer simulations of a house without specifying details identifying the owner cannot be construed as an infringement of privacy as defined in the Protection of Privacy Law. According to the Appellants, in order to prove an infringement of privacy as a result of the information published, it has to be shown that a link can be made between the information and a specific "person". In the instant case, it was argued, the computer simulations were shown in a "sterile" state, based on the planning position before the occupants entered the house and while making certain modifications. Alongside that, it was asserted that in any event there was no infringement of "the privacy of a person's intimate life" because the section relates to highly intimate information, such as a person's sexual proclivity or state of health. The same goes all the more so, according to the Appellants, in respect of the simulations that show the outside of the house and the spaces designated for hospitality. In the alternative, the Appellants plead that even if an infringement of privacy was caused, it did not give rise to a cause of action since it is a minor infringement "of no real significance", as defined in section 6 of the Protection of Privacy Law, because the simulations were published anonymously, without specifying personal details.

 

6.         Even if there was an infringement of Vardi's privacy, the Appellants plead that the defence of good faith applies in the circumstances prescribed in the Protection of Privacy Law. In particular, it was pleaded that the Appellants did not imagine that the publication would infringe Vardi's privacy and they are therefore entitled to the defence prescribed in section 18(2)(a) of the Law ("he did not know and need not have known that an infringement of privacy might occur"). It was further pleaded that the publication was intended to serve Gottesman's moral right to obtain fitting credit for his work, which he has by virtue of an architect's copyright in his work (section 4 of the Copyright Law, 5768-2007 (hereinafter referred to as "the Copyright Law")). According to the Appellants, this entitles them to the defence under section 18(2)(c) of the Protection of Privacy Law ("the infringement was committed in defence of a legitimate personal interest of the infringer") because, according to them, the moral right should enable the architect to publish computer simulations of his work.

 

7.         The Appellants further argue that it was inappropriate for the lower court to find that the element of "absence of consent" necessary to establish an infringement of privacy had been fulfilled. The Appellants first protest the finding that Vardi's consent was necessary in this context. Such consent, according to them, would only be necessary if Gottesman had sought to enter Vardi's house and photograph it in the private domain. However, they assert, it is unnecessary to obtain consent when involved is the use of the architectural plans and simulations created on the basis of them. Secondly, they argue, Vardi had originally agreed to the house being photographed and in any event his implied agreement to publishing the simulations could be inferred from the agreement that he had given to publish pictures of the house in the Apex book and on the carpenter's website, and also from the principle agreement to the procedural arrangement. Therefore, the Appellants maintained, Vardi's attempts to procure Gottesman's signature to the letter of commitment should be construed as an attempt contrary to a previous understanding between the parties. Such being the case, it should be held that Gottesman's refusal to sign the said document is irrelevant. Finally, the Appellants argue that it should be presumed that had Vardi wished to limit the use of the work, he would have done so from the outset in an express agreement.

 

8.         Vardi, for his part, endorses the lower court's ruling. According to him, publishing the simulations on the website constitutes an infringement of his and his family's privacy. According to Vardi, the fact that simulations, rather than actual pictures, were published on the website was aimed at circumventing the Protection of Privacy Law because the simulations show the house almost exactly as it really is and it is easy to link them with it. In view of that, Vardi seeks to adopt the District Court's finding that publishing the simulations on the website should be treated as publication of a matter relating to a person's "intimate life", as provided in section 2(11) of the Protection of Privacy Law and it therefore involves an infringement of privacy. According to Vardi, the Appellants cannot benefit from the defences prescribed in the Law: as regards the defence under section 18(2)(a) of the Law, which deals with the absence of knowledge of an infringement of privacy, it is asserted that Vardi emphasised to Gottesman that he jealously guards his privacy, and his attorney also demanded that the Appellants remove the pictures from the website immediately; as regards the defence under section 18(2)(c) of the Law, it was pleaded that the Appellants were not protecting a "legitimate personal interest" by publishing the simulations but merely sought to produce an economic gain. In any event, Vardi argued, the essential requirement of good faith to establish the said defences was not fulfilled in the present case because the Appellants had failed to remove the pictures at his request.

 

9.         Furthermore, according to Vardi, the case herein does not give rise to a clash between copyright law and protection of privacy law. An architect, according to Vardi, has no copyright in a house that was built but at most in the two-dimensional plans of the house and even those, it is argued, cannot be published by the architect without the client's consent. Consequently photographing the house and circulating the photographs, including by way of simulations, is not an inherent right of the architect. Even were copyright involved, Vardi asserts, it is an economic right which does not supersede the right to privacy. In this context, Vardi emphasizes that the lower court was not moved to award relief that would preclude the Appellants from showing the project to customers and in professional circles; instead an injunction restraining publication at large, on the Internet, or in a book or magazine, was sought. Such being the case, according to Vardi, the Appellants' freedom of occupation or copyright was not infringed. Finally, Vardi maintains that the plea of copyright infringement was merely made by Gottesman incidentally and in an unspecified manner at the trial in the lower court and it is therefore a prohibited "amendment of pleadings" on appeal.

 

10.       The parties also took issue with regard to the formation of consent to publish the simulations. Vardi asserts that his agreement to the publication of the simulations was not obtained. According to him, during the years of the relationship between the parties, his confidence in Gottesman had lessened and he had therefore chosen to ask for any understanding in respect of photographing his house and using the pictures to be put in writing. A written undertaking along those lines did not come about and, such being the case, according to Vardi, no agreement was consummated between the parties in respect of publication. In that connection Vardi rejects the Appellants' argument that agreement to publication could be inferred from the procedural arrangement that the parties reached or from the agreement that was given to the carpenter and Apex for publication. According to him, a person is entitled to control his privacy so that consent to waive privacy should be made knowingly and expressly.

 

The Procedural Progression

 

11.       On April 2, 2012 we had an appeal hearing in the presence of the parties before a bench headed by the (now retired) Deputy President, Justice E. Rivlin. At the hearing we believed that it would be best for the dispute between the parties to be resolved in mediation. The parties accepted our proposal and agreed to go to mediation. Unfortunately, the mediation did not prove successful and the parties notified us on July 27, 2012 that they had not reached an overall understanding. Prior thereto, in May 2012, the Deputy President retired and he was replaced by my colleague, Justice N. Solberg (as decided by the President, A. Grunis on August 13, 2012). In view of the change to the bench since the hearing, the parties were permitted to supplement summations in writing. The time for a ruling has now been reached.

 

Discussion and Ruling

 

The Right to Privacy

 

12.       The right to privacy is one of the most important human rights in Israel. It is one of the freedoms that mould the character of the regime in Israel as a democratic one (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, para 8 (May 14, 2006) (hereinafter referred to as "Jane Doe")). Since the Basic Law: Human Dignity and Liberty was passed, it is even vested with constitutional status (section 7 of the Basic Law). Privacy enables a person to develop his selfhood and to determine the degree of society's involvement in his personal behaviour and acts. It is his "proprietary, personal and psychological castle" (Crim. App. 5026/97 Gilam v. State of Israel, para 9 (June 13, 1999) (hereinafter referred to as "Gilam")). The right to privacy therefore extends the line between the private and the public, between self and society. It draws a domain in which the individual is left to himself, to develop his "self", without the involvement of others (HCJ 2481/93 Dayan v. The Jerusalem District Commander, PD 45(2) 456, 471 (1994) (hereinafter referred to as "Dayan"). It "embodies the individual's interest not to be bothered by others in his intimate life" (CA 8825/03 Clalit Health Services v. The Ministry of Defence, para 21 (April 11, 2007)).

 

Infringement of Privacy – Section 2(11) of the Protection of Privacy Law

 

13.       The prohibition of infringing privacy is currently embodied in the Protection of Privacy Law. Section 1 of the Law provides that "no person shall infringe the privacy of another without his consent". As has already been held, the definition of "privacy" is not simple (HCJ 6824/07 Manna v. The Tax Authority, para 34 (December 20, 2010); CA 4963/07 Yediot Aharonot Ltd v. John Doe, para 9 (February 27, 2008) (hereinafter referred to as "Yediot Aharonot")). Section 2 of the Protection of Privacy Law prescribes what an infringement of privacy is. In his claim, Vardi referred to section 2(11) of the Law, which concerns "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain". Of the three alternatives mentioned in the section, the most relevant herein is "publishing any matter relating to a person's intimate life" and also, to some extent, "publishing any matter relating to [a person's] conduct in the private domain". In order to delineate the expression "any matter relating to a person's intimate life", two matters should be clarified: firstly, what is a matter relating to a person's "intimate life"; and secondly, whether the information published indeed makes it possible to identify a "person".

 

(a)       A Person's Intimate Life

 

14.       Firstly, as regards the expression "a person's intimate life": what can fall within that definition? "Intimate life" is also a vague expression, the boundaries of which are unclear (Eli Halm, Protection of Privacy Law, 148 (2003) (hereinafter referred to as "Halm")). It is therefore clear that the answer to the question as to what will be regarded as a matter relating to "a person's intimate life" is not plain and simple and that "like many expressions that we encounter in the law books and ordinary life, their interpretation depends on the context and the purpose for which the interpretation is needed (see and compare the opinion of Justice T. Strasburg-Cohen in CA 439/88, The Registrar of Databases v. Ventura, PD 48(3) 808, 835 (1994) (hereinafter referred to as "Ventura"); also compare the opinion of Justice G. Bach in the same case, p 821). In this respect I would mention that I do not accept the interpretation that a high threshold of intimacy needs to be crossed – for example matters relating to a person's sexual history – in order to establish infringement of "a person's intimate life". That interpretation, which Gottesman propounded, relies on the fact that section 2(11) provides that infringement of privacy is "publishing any matter relating to a person's intimate life, including his sexual history" (emphasis added – UV). However, studying the legislative history of the Protection of Privacy Law indicates that the ending, after the word "including", was added to the section merely to clarify that "a person's sexual history" is also a matter relating to his "intimate life" (see the Explanatory Notes on the Draft Protection of Privacy (Amendment No. 8) (Prohibition of Publishing a Matter of Sexual History) Law, 5766-2005). In that sense the addendum is merely to clarify and elucidate (see ALA 2985/96 Medalsi v. Goni PD 50(2) 81, 86 (1996). See also: Aharon  Barak, Legal Interpretation, Volume II, Legislative Interpretation 137-138 (1993)).

 

15.       Having said all that, the first issue to clarify is whether the phrase "a person's intimate life" also embraces publications concerning a person's home. A person's home is not one of those concrete matters that are mentioned in section 2(11) of the Protection of Privacy Law – "a person's state of health" and "his conduct in the private domain". Nevertheless, information relating to a person's home might certainly fall within the scope of "a person's intimate life". Indeed, a person's home gains a place of honour in the case law relating to privacy. Thus, for example, in Dayan, His Honour the Deputy President (as he then was) A. Barak held that:

 

            "The constitutional right to privacy extends, inter alia […] to a person's right to conduct the lifestyle that he wants in his own home, without interference from outside […] The right to privacy is therefore intended to ensure that a person will not be a prisoner in his own home and will not be forced to expose himself in his own home to interference that he does not want" (ibid, p 470; see also Jane Doe, para 10; Gilam, para 9).

 

Nevertheless, as I see it, these statements are not to be understood literally as relating merely to the physical aspect of the home. As President A. Grunis noted in respect of the statement cited above from Dayan, "it should be understood more broadly, metaphorically, along the lines of the expression coined by Warren & Brandeis, 'the right to be let alone'" (HCJ 8070/98 The Association for Civil Rights in Israel v. Ministry of the Interior PD 58(4) 842, 856 (2004); see also Yediot Aharonot, para 9). It should therefore be said that information relating to a person's home will not necessarily always be included in the scope of the matters concerning a "person's intimate life". For the publication of information relating to a person's home to be construed as an infringement of privacy, as defined in the Law, it is necessary to see whether it is such as to cross that threshold of intimacy, beyond which it may be said that "a person's intimate life" was infringed. In the instant case, reviewing all the circumstances leads to the conclusion that publishing the simulations of Vardi's house interior does indeed involve infringement of "a person's intimate life". The interior of a person's home is his castle and he is entitled to be let alone in it. Inside a person's home he exercises his right to privacy in the clearest form. A person therefore has a reasonable expectation that pictures of the interior of his home will not be published at large without his consent. In the instant case, studying the simulations of Vardi's home as published on the website shows that, despite the fact that they are computer simulations, the impression gained from them is very tangible. In this respect I accept the findings of the trial instance that "since the simulations show Vardi's house as it really is, it matters not whether they are the result of computer work or a camera" (p 13 of the lower court's judgement). And note, although the simulations do show the house in a "sterile" condition, namely without Vardi's personal belongings appearing in them, the items of furniture in them are very similar indeed to the existing furniture; they expose "personal" spaces in the house, like the bedroom and bathroom; and they are such as to attest to Vardi's lifestyle and also demonstrate, in the words of the section, "his conduct in the private domain".

 

16.       The simulations of the house exterior should be treated differently. Ordinarily, the front of a house is exposed to passers-by. It is in the "public eye". Consequently, insofar as the front of a house is visible from the street, it is clear that showing its picture or simulation will not give rise to any infringement of privacy (see also CF (J'lem District) 7236/05 Levin v. Ravid Stones, para 14 (May 15, 2006)). The right of privacy does not extend to information that is already in the possession of the public. Therefore, when certain information is in any event in the public domain, the view that the right of privacy is not howsoever infringed is appropriate. (For similar statements in American law, see Jackson v. Playboy Enterprises, Inc., 547 F. Supp. 10, 13 (S.D. Ohio 1983); Fry v. Ionia Sentinel-Standard, 101 Mich. App. 725, 731 300 N.W. 2d 687 (Mich. Ct. App. 1980); Reece v. Grissom, 154 Ga. App. 194, 196, 267 S.E.2d 839 (Ga. Ct. App. 1980).  See also David A. Elder, Privacy Torts 3-45, 3-44 (2002) (hereinafter referred to as "Elder"); James A. Henderson, Richard N. Pearson and John A. Siliciano, The Torts Process 930-31 (4th ed. 1994).)

 

17.       According to Vardi, a distinction should be made between the situation described above, in which the front of the house as visible from the street is shown, and the simulations published by Gottesman on the website. Vardi asserts that the simulations of the house exterior that Gottesman posted on the website of his firm show the house from an angle that necessitates access to the grounds of the house, from which passers-by cannot obtain an impression of it. In that sense, Vardi pleads, a photograph from "the public domain" is not involved. Even if Vardi is right in that plea, there is no question that portraying the front of a person's house in public does not give rise to an infringement similar in extent to that caused by displaying the interior of his house. Whilst the interior of a person's house is visible only to his invited guests, the front of his house is less "private". The front of a person's house does not have the same "intimacy" that is characteristic of the intimate rooms of his home. In that sense, the simulations of the house exterior are not "information" that is sufficiently close to the nucleus of the interest protected by section 2(11) of the Law. Hence, whilst the simulations that portray the internal spaces of the house might infringe "a person's intimate life", publishing simulations of the house exterior does not give rise to such an infringement.

 

(b)       "A Person's" – the Requirement of Identification

 

18.       The wording of section 2(11) of the Protection of Privacy Law shows us that in order for the publication of a matter to constitute an infringement of privacy, it has to be established that the information published makes it possible to identify a person. When can it be said that information published does indeed make it possible to identify a person so that an infringement of privacy does arise?  Essentially, it appears that the answer is that an infringement of privacy will not arise where the requirement of "identification" is not fulfilled, namely insofar as a reasonable person would be unable to connect the information published with a specific person. On this point I would immediately clarify, ex abundanti cautela, that we might in future come across cases in which it will be possible to consider making that requirement more flexible. Those will be the exceptions in which particularly sensitive information is published to the point that even if it cannot be connected with someone, the very publication will create in the one to whom the information relates a serious sense of his privacy's violation, so that its protection will be justified. We shall leave discussion of such matters for when they arise since that is not the case herein.

 

19.       In order to comprehend the nature of the identification requirement, recourse may be had, by way of analogy, to defamation law that we can use as an aid to interpretation and source of inspiration (see CA 723/74 Haaretz Newspaper Ltd v. The Israel Electric Corporation Ltd, PD 31(2) 281, 293 (1977); Dan Hay, The Protection of Privacy in Israel, 91-97 (2006) (hereinafter referred to as "Hay") and the references there). This is because in many senses an infringement of privacy is similar to the damage caused to reputation as a result of publishing defamatory information. Even before the enactment of the Defamation Law, 5725-1965 (hereinafter referred to as "The Defamation Law"), this Court insisted that in a claim on a cause of defamation it has to be established that the focus of the publication is a specific person. It was therefore held that the plaintiff on such a cause will be obstructed by the fact that he cannot be identified in the picture that was published (CA 68/56 Rabinowitz v. Mirlin PD 11 1224, 1226 (1957)). This requirement was intensified after the Defamation Law was enacted. Indeed, a question similar to that facing us was considered at length in the context of defamation law in CA 8345/08. Ben Nathan v Bachri (July 27, 2011) (hereinafter referred to as "Jenin Jenin "). In that case the Court considered the criteria whereby it could be held that defamation addressed at a group defames its members (ibid, para 18). The Court held in that case that "[…] For cause to arise to take proceedings in respect of the publication of defamation it has to be shown that it relates to an individual or certain individuals and when the proceedings are taken by the injured party, he must show that the statement relates to him" (ibid, para 32. Emphasis added – UV). What is important with respect to the instant case is that the inference was drawn, inter alia, from the fact that the section of the relevant statute (section 1 the Defamation Law) provides – as in the case herein – that the subject of the statement must be a "person" (ibid).

 

20.       By way of comparison, in American law a similar criterion is also accepted in respect of the infringement of privacy. According to the case law there, the requirement of identification has been recognised as an essential one that confronts anyone seeking to assert the infringement of his privacy. Such being the case, where the plaintiff's image or name was not used, the courts in the USA have held that in practice no infringement of privacy arises (see: Branson v Fawcett Publications, 124 F. Supp. 429, 431-32 (E.D. III 1954); Rawls v. Conde Nast Publications, Inc. 446 F. 2d 313, 318 (5th Cir. 1971) (hereinafter referred to as "Rawls"). See also: Elder, pp 3-40). Consequently, as regards publications such as a photo of a person's house, car, dog or more, that are made without mention of some or other person's name, it has been held that they do not constitute an infringement of privacy, even if subjectively a person feels that his privacy has been infringed (Rawls, ibid; Samuel H. Hofstadter and George Horowitz, The Right of Privacy, 44 (1964)).

 

21.       From the aforegoing it prima facie appears that it suffices for the information published to be shown anonymously in order to avoid the possibility of infringing privacy. However, in this respect it should be taken into account that even information that is shown anonymously might establish a connection with a specific person. In other words, even if the name of the person is not expressly mentioned alongside the information, it has to be ensured that he cannot be identified by other means, for example: if in the publication numerous identifying details are given from which it might be possible to deduce with whom the publication is dealing (see: Hay, p 115). If we treat the prohibition as merely the specification of a person's name, "it would make a mockery of the Law because it is enough to mention numerous identifying details in order to make it clear in many cases who is involved" (Zeev Segal, The Right of Privacy against the Right to Know, Iyunei Mishpat  IX 175, 190 (1983) (hereinafter referred to as "Segal)). As held in Jenin Jenin, "the requirement of identification is substantive, rather than technical. The question is not whether the name of a person is expressly mentioned in the statement published […] The requirement of identification will be fulfilled in those cases where what is published is attributable to the individual who asserts damage implied from the publication or as a result of extrinsic circumstances or a combination of the publication and the extrinsic circumstances" (ibid, para 34).

 

22.       In order to analyse whether it is possible to connect a person with particular information, a criterion of "de-anonymising" has been proposed in the literature. According to the criterion, if anyone has a key that will make reverse engineering possible, namely to attribute the information published to a particular person, then it can be said from the outset that the information is identifying (Michael Birnhack, Private Space – Privacy, Law & Technology, 191-193 (2010)). As aforesaid, it is therefore not necessary for a person's name or picture to appear alongside the publication; it suffices for it to be possible by some means to connect the information with a specific person by "reverse engineering". Clearly, such "reverse engineering" is mainly likely to occur when the information published includes clear and unique characteristics (cf: Motschenbacher v RJ Reynolds Tobacco Co., 498 F.2d 821, 827 (9th Cir. 1974)).

 

23.       In the instant case, is the requirement that the publication deal with a "person" fulfilled? To that end it is necessary to substantiate the conclusion that despite the anonymous publication of the simulations on the Gottesman website, they can be linked with Vardi. In the case herein we have reached the conclusion that although Vardi's name is not mentioned in the publication, the simulations' publication is likely to make it possible to identify him by other means in view of those unique characteristics relating to Vardi's house. As the lower court held, Vardi's house is a "project of a unique type". In this connection the lower court described Vardi's house as "spectacular and extraordinary as regards its size, the type of materials used in its construction, its unique design and also as regards the investment in each one of the architectural details that make it up". Gottesman himself attested to the project as a "one-off project" and in his appeal he described the house as "a spectacular, extravagant and extraordinary residence […] one of the largest houses in Israel and the largest designed by the Appellants". On the Gottesman website the unique design of the house is described as including the use of special materials like blue glass, unique metal, illuminated gardens and more. All these constitute distinctive construction characteristics that distinguish Vardi's house from others. These indicate that Vardi's house is unlike any other; it is an extraordinary, unique work of architecture. In view of that, it appears that recourse may be had to the simulations published on the Gottesman website for the purpose of that "reverse engineering" that will make it possible to deduce that the simulations shown on the website in fact simulate Vardi's house.

 

Section 6 of the Protection of Privacy Law –Infringement of No Real Significance

 

24.       Even if the information published does indeed relate to "a person's intimate life", the Protection of Privacy Law requires it to be established that the infringement was not of "no real significance" (section 6 of the Protection of Privacy Law). In this connection, it has to be shown that the infringement of privacy was not done as a "trivial act" because such an infringement vests no right to relief (The Association for Civil Rights, p 863). The intention of the section is to do away with vexatious lawsuits, in respect of which no reasonable person would take the trouble of going to court (cf section 4 of the Civil Wrongs Ordnance [New Version]; see also CF (TA Magistrates) 199509/02 Tzadik v. Haaretz Newspaper Publishing Ltd, para 10 (January 22, 2014); Hay, p 124).

 

25. In the instant case, the publication of the simulations is not "a trivial act". The simulations that appeared on the Gottesman website tangibly show the interior of Vardi's home and in that way enable the public at large to gain an impression of the home owner's lifestyle and manners. There is no doubt that when any clear image of a person's home is made visible, and especially his intimate rooms – the bedroom, bathroom etc. – the publication is likely to give him an intense feeling of discomfort. The nature of those rooms is that they are concealed from the eye, and usually from the eyes of invited guests as well. That is where a person expects more than anything that he will be secluded from the public eye. Such being the case, bringing the lawsuit herein seems to be in good faith on the face of it and it is certainly not a frivolous or vexatious claim. It is such as to express the deep sense of discomfort caused to Vardi by the publication – which to my mind also has objective foundation in the circumstances. However, that is not the case with regard to the publication of the simulations of the front of the house. As I mentioned above, in that connection I tend to believe that even if publication of the simulations of the house exterior might cause some infringement, it is minor and trivial, in respect of which there is no cause for the grant of relief.

 

Defences to a Plea of Privacy Infringement (Section 18 of the Law)

 

26.       Another element necessary for the award of relief on a cause of infringement of privacy is negation of the existence of the circumstances of one of the defences prescribed in section 18 of the Law. Those defences demonstrate that the Protection of Privacy Law does not make the right of privacy an "absolute" one (CA 1928/93 The Securities Authority v. Gibor Sabrina Textile Enterprises Ltd, PD 49(3) 177, 193 (1995)). The defences prescribed in the Law might therefore bar a civil claim or criminal proceedings in respect of the infringement of privacy. Nevertheless, a party seeking to shelter behind those defences must show that he acted in good faith. Good faith is "like a gate and only if it is traversed will the circumstances in which the specific infringement of privacy was committed be examined" (Gilam, para 8). It should be noted that the case law has interpreted this as a requirement of subjective good faith. It is therefore necessary to prove that the person committing the infringement acted in the belief that the infringement was in the scope of the defences prescribed by the Law (Jane Doe, para 24). In order to prove good faith, the defendant or accused can have recourse to the presumption mentioned in section 20(a) of the Protection of Privacy Law, according to which:

 

            "20.     (a)       Where the accused or defendant proves that he committed the infringement of privacy under any of the circumstances referred to in section 18(2) and that it did not exceed the limits reasonable under those circumstances, he shall be presumed to have committed it in good faith."

 

In this connection the court will review "the form, substance and extent of the publication in order to see whether the publisher has fulfilled his duty, for which the defence extends to him, or went beyond that and exceeded the 'limits reasonable' in connection with which the legislative norm was framed" (Segal, p 199).

 

Against that presumption that is available to the defendant or accused, the plaintiff or prosecutor can have recourse to the presumption mentioned in section 20(b) of the Law:

 

            "20.     (b)       The accused or defendant shall be presumed not to have committed the infringement of privacy in good faith if in committing it he knowingly went further than was reasonably necessary for the purposes of the matters protected by the section."

 

In this respect, proving that the publisher knew that he had exceeded the reasonable is equivalent to establishing the absence of the publisher's subjective good faith because it will demonstrate "his indifference to the consequence involving infringement more than  necessary to protect the value recognised by the Law" (Segal, ibid).

 

27.       In his appeal Gottesman relied on two defences – those prescribed in sections 18(2)(a) and (c), which provide as follows:

 

 

            "18.     In any criminal or civil proceedings for infringement of privacy, it shall be a good defence if one of the following is the case:

 

                        […]

 

                        (2)       the defendant or accused committed the infringement in good faith in any of the following circumstances:

 

                                    (a)       he did not know and need not have known that an infringement of privacy might occur;

 

                                    […]

 

                                    (c)       the infringement was committed in defence of a legitimate personal interest of the infringer;

 

                                    […]"

 

28.       We shall therefore review whether the infringing act was committed in one of the circumstances mentioned in section 18(2) – and in our case, the circumstances prescribed in section 18(2)(a) or 18(2)(c)            of the Law. As regards the defence prescribed in section 18(2)(a) of the Law, as the lower court held, before publication Vardi repeatedly emphasised to Gottesman that he jealously guarded his privacy and he was resolute in his refusal to publicise the house or parts of it. Consequently, from such time as Vardi made it perfectly clear to Gottesman that he strongly objected to publication without the latter signing the letter of commitment, it is difficult to conceive that the infringement was committed without Gottesman "knowing […] that an infringement of privacy might occur", as the section requires. Clearly, therefore, the plea with regard to the defence under that section cannot be upheld.

 

29.       We should now examine whether Gottesman has available the defence under section 18(2)(b), which concerns an infringement committed in order to protect a "legitimate personal interest" of the infringer. The section necessitates a balance to be made between the right of privacy and other conflicting values, and the expression "legitimate personal interest" should be construed "by making a balance between the desire to protect the interest of the injured party and safeguard his privacy, on the one hand and the contrary interests of the infringer, on the other hand" (Crim App 1132/96 Hatuha v. State of Israel, para 8 (January 20, 1998)). In the instant case, Gottesman and his firm have a twofold interest in publishing the simulations: both a creative interest and a business interest. It cannot be disputed that Gottesman has the moral right in his architectural work. Such being the case, he is entitled to the work being credited to him, namely to his work being identified with his name. This expresses recognition of the author's personality and the attempt to respect the personal connection between the author and his work (sections 45 and 46 of the Copyright Law; see also: Tony Greenman, The Moral Right – From Droit Moral to Moral Rights, Authoring Rights – Readings on the Copyright Law 439, 439-440 (Michael Birnhack & Guy Pesach, Editors, 2009)). The desire to safeguard the freedom of creative expression means that the transfer of an architect's economic rights in his work will not preclude his expressing himself in the same artistic style and motifs in other works (cf Sara Presenti, Copyright Law, vol. II (3rd edition, 2008)), and in the instant case, that the work can be exposed to other circles. Consequently, on the artistic-creative level, one can understand Gottesman's desire to expose to the public Vardi's house, a work that is unquestionably of unique quality and size. In addition, there is nothing wrong in Gottesman's desire to publicise his work for economic reasons as well because displaying the work might certainly enable its author to establish a reputation and attract clients. Nevertheless, as we have mentioned, in the scope of the defence under section 18(2)(c) a balance needs to be made between the infringement of Vardi's privacy and the legitimate personal interest of Gottesman. As mentioned above, as I see it, showing the interior of Vardi's home gives rise to a considerable infringement of his privacy. On the other hand, the harm to Gottesman's legitimate personal interest is limited. This is because Vardi's request was limited to precluding publication of the simulations on the website and, such being the case, there is nothing to stop Gottesman from making use of simulations for his business purposes, exposing them on a more limited scale, for example by showing them to clients in his office or to professional circles, a matter to which Vardi has himself agreed in writing (paragraph 23 of his summations). In this connection, certain weight should also be given to the fact that Gottesman could have given full expression to his interest in publishing the simulations by making an express agreement in such respect with Vardi in real time. To this should be added the fact – as explained above – that Gottesman can also show the simulations of the house exterior on the website. In the overall balance between the competing rights and interests, the outcome is therefore that it is inappropriate to apply the defence of section 18(2)(c) to publishing simulations of the interior of Vardi's house. Having found that publication of the simulations does not fall within one of the circumstances mentioned in section 18(2) of the Law, we have no need to consider the question of good faith or the application of the presumptions prescribed in section 20 of the Law.

 

Absence of Consent to Infringement of Privacy

 

30.       Having reached the conclusion that that there is an infringement, of real significance, of Vardi's privacy, in respect of which it cannot be said that it is covered by one of the defences prescribed in the Law, we must rule whether Vardi's consent was given to the publication discussed herein. The Protection of Privacy Law provides that an infringement of privacy will not occur where there is consent to the infringement (section 1). Such consent can be expressed or implied (section 3 of the Protection of Privacy Law; Jane Doe, para 20). The reason for that requirement is that "the right of privacy is to protect the individual, and as a rule society cannot protect an adult against his will" (Crim App 4463/93 Birav v. State of Israel, PD 49(5) 447, 458 (1996)). And note, consent is not cause to justify an infringement of the rights of privacy. Consent itself is an inherent part of the right so that if it is given, a right of action does not arise (Halm, p 41). Although consent for the purpose of infringement of privacy can be inferred from a series of cases and modes of behaviour (Hay, p 122), it is best to exercise extreme care in determining that consent to publication has been obtained. "Care should be taken not to apply the justifying force of consent to cases in which it is clear that there is no real consent and the use of the consent is therefore constructive and fictitious" (Ruth Gavison, Prohibiting Publication That Infringes Privacy, Human Rights in Israel – Collection of Articles in Honour of Haim H. Cohn, 177, 199 (1982)). It has been held along these lines that from the fact that an individual agreed to disclose certain particulars to one person or several persons, it cannot be inferred that he is precluded from objecting to the publication of those particulars to the public at large (Ventura, p 822); and that even the existence of a close relationship such as marriage does not per se indicate implied consent to one partner's infringement of the other's privacy (Jane Doe, para 20).

 

31.       From the general to the particular – in the instant case it appears that such consent was not obtained. I would mention at the outset that I do not accept Gottesman's claim that Vardi's consent to the publication was not necessary because all that was published were the simulations based on the architectural plans. Insofar as that publication causes an infringement of privacy, then it is subject to the principle that "no person shall infringe the privacy of another without his consent" (section 1 of the Protection of Privacy Law). In the instant case, it would appear that such consent was not consummated. As the lower court held, the relationship between Vardi and Gottesman was conducted on the basis of oral understandings, without the issue of consent to publication reaching exhaustive discussion between the parties. Vardi's requirement that photographs of his home could only be taken subject to signing the letter of commitment that he proposed therefore did not constitute a departure from a previous understanding between the parties but an unsuccessful attempt to reach an understanding. Since that agreement was not signed, express consent to publication was not obtained. Indeed, as aforesaid, the existence of consent can also be inferred. However, we have not found substance to the plea that Vardi's agreeing to the publication of other pictures of the house infers that implied consent was also given to Gottesman. Actually, the fact that other publications were specifically made subject to signing the said letter of commitment is such as to demonstrate the absence of consent in the instant case. Our conclusion is therefore that consent to the infringement of privacy was not obtained.

 

Conclusion

 

32.       In conclusion, we have found that publishing the simulations showing the front of Vardi's house does not give rise to an infringement of privacy and in any event not an infringement of real significance, as defined in section 6 of the Law. On the other hand, we have reached the conclusion that the simulations showing the interior of Vardi's house do infringe "his intimate life" and that despite their anonymous publication, it is possible to connect them with Vardi. It has also been found that it is not an infringement "of no real significance" and that the defences prescribed in section 18(2) of the Protection of Privacy Law are inapplicable. Because the infringement of Vardi's privacy was made without his consent to the publication, there is no alternative but to find that publication of the simulations of the interior of his home on the website cannot be permitted.

 

I therefore suggest to my colleagues to allow the appeal in part to the effect that the injunction remains in force in respect of publishing the simulations of the house interior on the website. The meaning of this is that there is no bar to simulations of the house exterior being published on the site. In view of that result, I suggest to my colleagues to set aside the liability for costs at first instance and make no order for costs in the current instance.

 

 

 

Justice S. Joubran

 

I concur.

 

 

 

Justice N. Sohlberg

 

I concur with the judgement of my colleague Justice U. Vogelman. The distinction that he made between the front of the house and the house interior, has deep roots in Jewish law. The Torah forbids a creditor to enter his fellow's home in order to collect his debt: "When you make a loan of any kind to your neighbor, do not go into his house to get what he is offering as a pledge.  Stay outside and let the man to whom you are making the loan bring the pledge out to you" (Deuteronomy 24:10-11). Although a lender and borrower, rather than strangers, are involved, the respect of privacy requires that the house not be entered; the homeowner brings the pledge outside. Despite the fact that the borrower has a debt to the lender and the lender's prima facie moral right to enter the borrower's house in order to take steps to secure repayment of the debt, the Torah prohibits entry to the borrower's house. The Torah did not make do with a moral provision but prescribed a legal right for the protection of privacy (see: N. Rakover, The Protection of Privacy (5766-2006) 265).

 

Jewish law protects a person's privacy not only by precluding admittance to the private domain but also by precluding "damage by sight" [hezek reiyah] from outside. As we know, Bilam sought to curse the Children of Israel when he saw them dwelling in the desert according to their tribes but he found himself blessing, instead of cursing, them and he said "How goodly are your tents, O Jacob, your dwelling places, O Israel" (Deuteronomy 24:5). This is interpreted by the Talmud as follows: "What did Bilam see? He saw that the openings of their tents did not exactly face each other, whereupon he exclaimed, worthy are these that the divine presence should rest upon them". That is to say that when Bilam saw that the tents of the Israelites were positioned so that their openings did not face each other and were directed in such a way as to ensure the privacy of everyone, he was filled with admiration and said: "How goodly are your tents, O Jacob, your dwelling places, O Israel!" (N. Rakover, ibid, pp 269-272). The Code of Jewish Law [The Shulchan Aruch] (Choshen Mishpat, 154:3) lays down the rule: "A person shall not open a window onto his neighbour's courtyard. And even one of the people who share the courtyard and has sought to open a window in his house onto the courtyard shall be restrained by his partner because he can see him from it. And if he has opened one, it shall be blocked. And if the people who share the courtyard with him have given him permission to open a window or door, he may, but he shall not open a door opposite a door or a window opposite a window and shall distance them from each other. And if it is to another courtyard, onto which he has been given permission to open a door or window, he should distance it from his neighbour's door or window until he cannot see in it at all". This is not the place for details of the Jewish law (see at length, Rakover, ibid) but merely for the principle of respecting a person's privacy. That is how God [HaKadosh Baruch Hu] acted when he called to Adam from the entrance to the Garden of Eden, from which we shall learn: "A person should never suddenly enter his neighbour's house. And every person shall learn the appropriate mode of behaviour [derech eretz] from God, who stood at the entrance to the Garden of Eden and called upon Adam, as it is said: "But the Lord God called to the man and said 'where are you'?" (Genesis 3:9; Derech Eretz Raba, Chapter 5).

 

We can therefore see the distinction between the interior and exterior back from ancient times. A few years ago I heard the lawsuit of a man and his wife who had built a rounded wall of unique design, made of basalt manufactured by Ravid Stones Ltd, at the front of their house. In order to promote its sales, the company published a photograph of the front of the house in the press, on the Internet and in a catalogue. The plaintiffs asserted infringement of their privacy, amongst other things. I stated there that the list of acts in section 2 of the Protection of Privacy Law, 5741-1981, that involve an infringement of privacy, does not contain "a prohibition against publishing the front of a person's home; and not without reason. A person's home – on the inside – is his castle. The front of it that faces outward is naturally exposed to the whole world. Any person passing by may savour the outer beauty of the house. A photograph of the front of the house from the public domain does not involve an infringement of privacy" (CF (J'lem) 7263/05 Levin v. Ravid Stones, para 14 (May 15, 2006)).

 

I therefore concur with my colleague's judgement, on the basis of its reasoning.

 

 

 

Held as stated in the opinion of Justice U. Vogelman.

 

January 23, 2013

 

 

 

 

 

LCA 6902/06

Menashe Dror Tzadik

v

1.    Haaretz Newspaper Publishing Ltd. et al

             

The Supreme Court sitting as the Court of Civil Appeals

[26 December 2007]

Before Vice-President E. Rivlin and Justices J. Elon, A Grunis

Application for leave to appeal the judgment of the Tel Aviv-Jaffa District Court dated June 29, 2006, of CA 1974/04 by Judges I. Shilo, U. Fogelman and R. Ronen

Legislation cited:

Protection of Privacy Law, 5714-1981

Defamation Law, 5725-1965

 

Israeli Supreme Court cases cited:

[1]          CA 439/88 Database Registry v. Ventura [1994] IsrSC 48(3) 808.

               

For the applicant –          S. Peled, D. Shuv

For the respondents – T. Leiblich, T. Neumann

 

JUDGMENT

Vice-President E. Rivlin

Before us is an application to appeal the judgment of the Tel Aviv-Jaffa District Court (Judges U. Fogelman, R. Ronen and I. S. Shilo), which granted the respondents' appeal of the judgment of the Tel-Aviv Jaffa Magistrates Court (Judge Y. Shevah). It also determined that the respondents are not required to compensate the applicant.

The facts

1. The applicant is a member of the ultra-Orthodox community. One day in January 2002, the applicant set up a stall to distribute religious books near Dizengoff Center in Tel Aviv. It turned out that the stall was situated next to a store in which hung an advertisement that was described by the Magistrates Court as -

… A giant poster, of large proportions, hanging in the window of the shop in front of which the claimant set up his stall, featuring a woman wearing tight little shorts, standing with her legs wide open, with the figure of a man between them, looking at her.

At some point, the applicant noticed that respondent 4, a professional press photographer, was trying to photograph him. In response to the applicant’s strong objections to being photographed, respondent 4 assured him that the pictures were being taken for his personal use only. This promise turned out to be short-lived and unfounded, for the picture was published on February 2, 2002 in respondent 4’s regular column in Haaretz newspaper, published by respondent 1. The applicant filed suit against Haaretz Newspaper Publishing Ltd. (respondent 1), against its editors (respondents 2 and 3) and against the photographer (respondent 4) claiming that the publication of the photograph violated his privacy and constitutes a defamatory publication against him.

The previous proceedings

2. The Magistrates Court ruled that publication of the photograph constituted a violation of privacy under s. 2(4) of the Protection of Privacy Law, 5741-1981 (hereinafter: "Protection of Privacy Law"), because its publication could humiliate the applicant and cause him embarrassment within the ultra-Orthodox community in which he lives. The Court ruled that in this case, none of the defences in the Protection of Privacy Law were applicable. According to the Magistrates Court, the defence provided in s. 18(3) of the Law does not apply to our case because there is no public interest that justifies the violation of privacy. The Magistrates Court also found that contributory fault can be attributed to the applicant in that he “chose” to situate his stall next to the “provocative poster.” The compensation determined by the Magistrates Court, after a reduction of NIS 10,000 for the contributory fault, was set at NIS 20,000. The Magistrates Court rejected the applicant’s claim that publication of the photograph was defamatory, based on the defence prescribed in s. 14 of the Defamation Law, 5725-1965 (hereinafter: "Defamation Law") regarding a true publication that is of public interest.

3. The District Court granted the respondents’ appeal of the Magistrates Court’s judgment. The District Court ruled that even assuming that the publication involved a violation of privacy, the respondents could invoke the defence specified in s. 18(3) of the Protection of Privacy Law. According to the District Court, the applicant “is the one who chose the location of his stall to distribute religious books to the non-religious public, out of free choice and even though he was aware of his surroundings. He saw fit to position himself next to the shop window containing the poster that sparked his wrath.” Therefore, the District Court stated that “this is not a case of protecting someone who wished to be left alone, and the violation of privacy is limited in extent.” Under these circumstances – so it determined – considerations of freedom of expression and the public interest in the publication outweigh the violation of privacy (assuming such a violation does indeed exist). The District Court concurred with the Magistrates Court’s reasons for rejecting the applicant’s suit based on the Defamation Law.

  The applicant filed an application for leave to appeal the judgment of the District Court. Following the hearing held before us, the parties submitted supplementary summations on the question of whether in this case there was a violation of privacy, within the meaning of the provisions of s. 2(8) of the Protection of Privacy Law.

 The Parties’ Claims

 4. The applicant reiterates his arguments that the publication constitutes a violation of privacy and defamation. He especially emphasizes the fact that he “resolutely announced his refusal to have his picture published and he received explicit assurance of such from respondent 4” [emphasis in original - E. R.]. The applicant argues, inter alia, that there is no public interest in the publication of the photograph which would justify the violation of privacy, since he is a private individual and he was not photographed in the context of any public event. He maintains that there is no justification for giving priority to freedom of expression in this case, and that the District Court did not achieve a correct balance between the violation and the public interest.

5. The respondents maintain that leave to appeal should not be granted because the conditions for holding a “third round” of hearings on this matter have not been fulfilled. Essentially, the respondents believe that there has been no violation of privacy within the meaning of the Protection of Privacy Law. In their opinion, publication of the photograph does not “debase” or “humiliate,” and therefore it does not fall within the bounds of the provisions of s. 2(4) of the Law. Similarly, the respondents argue that there has been no violation of privacy in the sense of a “breach of duty of confidentiality regarding a person’s private affairs, by virtue of an explicit or implicit agreement” – in accordance with s. 2(8) of the Law. This is because the published photo is unrelated to the “private affairs” of the applicant, who elected to distribute religious books in the public domain. They further argue that no agreement was made between the parties. The respondents believe that even if the applicant’s privacy was violated, the defence prescribed in s. 18(3) of the Law applies in this case, since the published photo was true and of public interest. The respondents point out in their supplementary summation: “Indeed, respondent 4 may have erred when he told the applicant, out of distress and fear, that the images would be for his personal use only. Perhaps this was wrong. However, this error in no way adds to or detracts from the applicant’s claims.”

We have decided to grant leave to appeal and to treat the application as if an appeal had been filed based on the leave granted. The appeal should be granted.

Breach of a Confidentiality Agreement Regarding a Person’s Private Affairs

6. As we will explain imminently, what makes the circumstances of this case unique is the promise given by respondent 4 to the applicant. S. 2 of the Protection of Privacy Law, which defines “what is a violation of privacy,” includes various situations that constitute a violation of privacy, including the following situation (subsection 2(8)):

'A breach of a duty of confidentiality regarding a person’s private affairs, as determined in an explicit or implicit agreement.'

This subsection lists three elements: an explicit or implicit agreement; the agreement creates a duty of confidentiality regarding the person’s private affairs; a breach of that duty. The element of "agreement" is present in our case. Respondent 4 assured the applicant that the photographs were intended for his personal use only. He admits this, and even says that he “may have erred” in doing so. This is an agreement whereby respondent 4 undertook not to publish his photographs of the applicant against the background of the said poster on the wall. This is a “duty of confidentiality” – as specified by the Law. The fact that the agreement was given verbally, in the street, does not detract from its validity – this is a street agreement, contracted in real time when street photos were being taken. Furthermore, according to the wording of the Law, the existence of an implied agreement is sufficient to fulfill the conditions of the section. It was respondent 4 who chose to promise what he promised. He took the commitment upon himself. No circumstances that void his commitment have been proven to exist in our case. The element of a “breach of a duty of confidentiality” also exists in our case – it was breached when the photograph of the applicant was published in the newspaper.

7.  Does the duty of confidentiality in the agreement relate to the applicant’s “private affairs”? This question must be answered in the affirmative. The Protection of Privacy Law does not define the term “private affairs.” The interpretation of the term was discussed in CA 439/88 Registrar of Databases v. Ventura [1], at p. 808: the question there related to whether the creation of a database of people and corporations who had provided checks without coverage constituted a violation of privacy under s. 2(9), which deals with the situation in which use has been made of information relating to a person's "private affairs" for a purpose other than the purpose for which it was divulged. In that case Justice Bach adopted a broad interpretation of the term “private affairs” and determined that –

 '[t]he natural and normal meaning of the words a person’s ‘private affairs’ is any information related to that person’s private life, including his name, address, phone number, workplace, his friends, his relationship with this wife and other family members, etc.'

Justice Strasberg-Cohen interpreted the term more narrowly and opined that its interpretation should be dependant on the particular context and circumstances of the case:

'The answer to the question of what are a person’s private affairs is not unequivocal, and as with many other expressions that we encounter in law books and in every day life, their interpretation depends on their context and the purpose that this interpretation must serve.'

 According to Justice Strasberg-Cohen, “it may be that each separate detail does not constitute a person’s ‘private affairs’, whereas the combination of several details and the information derived from them might constitute such affairs.”

8.            The scholar Eli Halm, in his book Privacy Law (2003)121-126, provides support for ascribing a broad interpretation to the term “private affairs.” In his opinion, we must distinguish between information relating to a person's "intimacy" and a broader framework of information that falls into the category of a “person’s private affairs.” This distinction is based on the fact that the Protection of Privacy Law does not prohibit everyone from publishing information related to a person’s “private affairs,” but rather,  it imposes this prohibition on a particular, defined group of people who have a “special relationship” with the informants: one who by virtue of the law is obligated to refrain from publicizing (s. 2(7)); one who by virtue of an agreement is obligated to refrain from publicizing (s. 2(8)); one who makes use of information for a purpose other than the purpose for which the information was divulged to them (s. 2(9)). These special relationships – according to Halm – impose a greater duty on the person receiving information not to expose details related to the privacy of the informant. Therefore, information belonging to the “outer circle” of a person’s privacy – such as identifying details and contact information, as well as personal and particular details – should be included under the heading of “a person’s private affairs.”   

9. The conclusion that the applicant’s photograph constitutes a part of his “private affairs” is derived from the application of each of these approaches described above. According to the broad interpretation that Justice Bach assigned to the term, a photograph exposing the identity of the applicant and, in our case, his occupation at that time, certainly involves the applicant’s “private affairs.” According to Halm’s approach, it would appear that a person’s photograph is included in the applicant’s “private affairs,” since it includes identifying details and details particular to him, and the prohibition on their publication is justified in light of the “special relationship” that exists in our case, i.e. the photographer’s promise not to publish the photograph. Even the application of the more limited approach, that is conditioned by the actual context and circumstances, will not yield a different outcome. According to this approach, assuming that a person’s photograph does not necessarily constitute a part of his “private affairs” in every case, the photograph in the case before us – by means of which it is possible to identify the applicant, his communal affiliation, his location and his activities at that time – constitutes a combination of details that constitute a “private affair” in this specific context.

In our case, therefore, the elements listed in s. 2(8) of the Protection of Privacy Law are all present. Having reached the conclusion that the applicant’s privacy was violated, we must now examine whether the defence claimed by the respondents – which appears in s. 18(3) of the Law – applies in this case.

The defence in s.18(3) of the Protection of Privacy Law

10.          Under s. 18(3) of the Protection of Privacy Law, a valid defence requires that -

'There was a public interest that justified the violation in the circumstances of the case, provided that if the violation was by publication –the publication was not false.'

The parties disagree on the question of whether there was “a public interest that justified the violation in the circumstances of the case.” The District Court answered this question in the affirmative, after considering the balance between freedom of expression coupled with the public’s interest in the publication, and the right to privacy. The problem with this mode of analysis lies in the fact that it does not attribute sufficient weight to the central issue that makes the case before us distinct – the existence of a promise on the part of respondent 4 that he would not publish the photograph. Even though this promise does not automatically negate the applicability of the defence, it certainly has implications for the nature of the public interests involved and for the appropriate balancing point. First, the public's interest in upholding the principle that “a promise must be kept” does exist. Secondly, there is a public interest in the maintenance of journalistic integrity. This second interest is also, and especially, in the interest of newspapers wishing to maintain fruitful reciprocal relations with their sources.  The need to protect all these interests certainly dims the “public interest” in the publication of the photo. We have not been convinced that in this particular case, a “public interest” exists that would justify the violation of a promise given to the applicant and the violation of his privacy. The more that this protection is extended to situations such as the one before us, the more s. 2(8) of the Law will lose its meaning. This was not the legislature’s intention in prescribing the defence in s. 18(3). This was not the purpose of the Law (regarding this defence, see also: Halm, ibid., pp. 213-236; Database Registry v. Ventura [1], at pp. 825-827).

As an aside we will mention that the question of whether there was deception in the published photo in this case is not a simple one. The “displacement” of the applicant, who belongs to the ultra-Orthodox world, from his usual surroundings and the capturing of his figure, identifiable by clothes distinctive to his community, against the background of a revealing picture of a young woman, draws a prejudicial connection between him and a world that he and the members of his community view as illicit. The question raised here is whether the photograph reflects the truth or a distortion of reality created by a coincidence. This question could arise in another similar, if not identical situation, for example where a camera captures a politician just as a huge advertisement for the opposing party pasted to the side of a bus passes by. This question was not discussed in the lower court, nor will we address it now.

11.          Having arrived at this conclusion, we have not found it necessary to decide on the applicant’s claim that his privacy was also violated under s. 2(4). Regarding the claims related to the Defamation Law, we have not found any reason to interfere with the conclusion reached by the earlier courts. This is because we have not been convinced that the publication of the photograph harms the applicant to a degree that constitutes grounds for a suit under the Defamation Law. Needless to say, in such matters each case must be examined based on the particular circumstances.  It must be said that if not for the violation of the promise to the applicant, in my view the applicant would not have had a case. Were it not for that promise, I think that freedom of expression would prevail over violation of privacy, as well as any damage to the applicant’s good name.

The remedy

12.          The Magistrates Court set the amount of compensation payable to the applicant at NIS 30,000. The Magistrates Court deducted NIS 10,000 from this amount due to the “contributory fault” that it assigned to the applicant, since he had chosen to situate his stall near the “provocative poster.” Indeed, the stall was situated near the shop where the advertisement hung inside; however, this “contributory fault” is irrelevant to the issue of the agreement made between the applicant and respondent 4. Therefore, in light of the reasoning at the basis of our ruling today, there is no reason to reduce the compensation and it should be set at NIS 30,000.

The appeal is granted as stated. The District Court’s judgment is voided. The judgment of the Magistrates Court, with the aforesaid amendment, is reinstated. The respondents will bear the applicant’s court costs and lawyers’ fees in the amount of NIS 10,000.

Justice J. Elon

I agree.

Justice A. Grunis:

I agree with my colleague, Vice-President Eliyahu Rivlin, that in this case, the applicant’s privacy was violated, as stated in s. 2(8) of the Protection of Privacy Law, 5741-1981. I also agree that in light of the promise made by respondent 4 to the applicant and following its violation, the defence prescribed in s. 18(3) of the Law does not apply to our case.

   Therefore, I see no need to express an opinion about what conclusion would have been drawn were it not for the violation of the promise made to the applicant.

 

Decided as per the judgment of Vice-President E. Rivlin

12 Av 5768

13August 2008

 

 

 

 

 

Justice M. Cheshin

He was born on March 25, 1992. When he was two years old, we improved his appearance and gave him understanding. Today he is about seven and a half. Long may he live. I am, of course, referring to the Basic Law: Human Dignity and Liberty, the law enacted in honor of human dignity and liberty. Human dignity is this central pillar of this law. The law is infused with human dignity. Human dignity gives it life. I had hoped that the petition before us would drive a stake deep into the bedrock of our law and that, above ground, this stake would be a mast, flying the flag of human dignity. All would know – all over the land – that the beginning, the middle and the end are human dignity. That in the absence of human dignity there is neither man nor society. This was my hope; this was my expectation. I am sorry that we missed this opportunity. We will not despair; we wait for tomorrow.

The Facts

2.    Our case concerns a screenplay written by the playwright Motty Lerner. It is called “The Kastner Trial.” Israel Television was scheduled to broadcast, and did broadcast, the screenplay in three parts, beginning on November 7, 1994 – the 50th anniversary of Chana Szenes’ murder by the Gestapo. The screenplay is rooted in the actual events that occurred in Hungary during the Second World War, in 1944, and during the Kastner trial, which took place in Israel from 1953 through 1958.

3.    First, there was the terrible tragedy that befell the Jews of Hungary during the Second World War – the murder of these Jews by the Nazis and the attempts made to rescue some of them from this inferno. This tragedy was the background to the indictment filed by the Attorney-General of Israel against Malchiel Greenwald, charging him with defaming Dr. Yisrael Kastner. In 1944, Dr. Kastner was one of the leaders of Hungarian Jewry. Greenwald distributed a pamphlet in which he publicly accused Dr. Kastner of being guilty of the following four charges, in the words of the court:

(a) Collaboration with the Nazis;

(b) The “indirect murder” or “preparing the ground for the murder” of Hungarian Jewry;

(c) Profiteering with a Nazi war criminal [S.S. Commander Kurt Bacher];

(d) Helping that criminal evade punishment after the war.

Greenwald’s trial was conducted in the Jerusalem District Court, with President B. Halevi presiding. Ultimately, President Halevi decided to acquit Greenwald of three of the four counts of defamation. Greenwald was only convicted on the third count. In recognition of his acquittal on all the other counts, he was fined the token sum of one Israeli Lira. DC (Jer) 124/53 Attorney General v. Greenwald [55].

The Attorney-General appealed the district court’s judgment. In a panel of five judges, the Supreme Court accepted the main part of the appeal. Greenwald was convicted of charges (a) and (b). With respect to charge (a), he was convicted by a majority opinion of four against one. His acquittal on charge (d), however, remained intact. See CrimA 232/55 Attorney-General v. Greenwald [47].

4. Motty Lerner’s screenplay is the third floor of the story, built on the two floors underneath. The first floor is the tragedy that struck Hungarian Jewry in 1944. The second floor is the drama played out in the Jerusalem District Court during the Greenwald trial, the trial known as the “Kastner Trial.” The third floor is the drama on stage – Motty Lerner’s screenplay “The Kastner Trial.” Whoever saw the play on television – and I saw it – knows that the playwright is particularly gifted. And we know that the play’s impact on viewers is directly proportional to the talent of the playwright and the power of the play.

5. One paragraph in the play particularly troubles the petitioners here. We refer to the part where Mrs. Catherine Szenes, the mother of Chana Szenes, is cross-examined. Mrs. Szenes appeared as a witness in the trial and was cross-examined by Greenwald’s attorney. During her testimony, Dr. Kastner repeatedly interrupts her, until the climax in which he accuses Chana Szenes of betraying her comrades to the Gestapo. The script reads as follows:

“Kastner

(angrily, at Catherine Szenes):

How dare you criticize me? Who even asked your daughter to come to Budapest? What did she think she would do? Due to her own recklessness, and the arrogance of those who sent her, she crossed the border like a new recruit and was captured five minutes later. And I will tell you who told the Hungarian police that Palgi and Goldstein were on their way to me. It was her! Your daughter, Chana Szenes, the heroine! She broke under interrogation and revealed everything. I can imagine the sort of tortures she underwent. Nobody could have withstood such torture. But it was not because of me that Palgi and Goldstein were arrested, but because of her!

Catherine Szenes:

Not true!!! “

These lines formed the basis of the petitioners’ claim. The petitioners request that the paragraph be deleted from the play. They claim that the statement that Chana Szenes betrayed her two comrades, Peretz Goldstein and Yoel Palgi, to the Gestapo, is a lie, and that this will irreparably defame Chana Szenes. In fact, they claim, Chana Szenes bravely endured severe torture at the hands of the Gestapo and did not divulge secrets to her torturers. This was the case with Goldstein and Palgi, and it was also the case regarding the secret code that she had for British intelligence transmissions, which the Nazis wanted in order to transmit disinformation.

6.    Petitioners submitted evidence to prove their claim. In fact, it is undisputed that Kastner’s statement in the play was false. There is not even a shred of evidence that Chana Szenes betrayed her comrades to the Gestapo. Thus, we may dispense with the first floor, the events that occurred in Hungary in 1944. Proceeding to the second floor – the trial itself – all agree that, at Greenwald’s trial, Kastner never made the allegation attributed to him by Lerner. In other words: Kastner’s words in the play, as cited above, have no basis in reality and are no more than a figment of the playwright’s imagination.

7.    Motty Lerner and the Broadcasting Authority were obviously aware of the sensitivity of televising the play. Thus, each segment was prefaced by the following paragraph:

The events depicted in this film were inspired by the Kastner-Greenwald trial. Nonetheless, the movie should not be regarded as a recreation of these events, but rather as a drama of historical fiction.

Furthermore, the play was shown at the Tel‑Aviv Cinematheque. At the time of the screening, an explanatory sheet was distributed to the audience, entitled “The Author’s Apology.” The following is Motty Lerner’s explanation of the screenplay:

The film ‘The Kastner Trial’ is a fictional drama inspired by events that actually occurred. The drama strives to integrate these historical events with the behavioral patterns of dramatic characters. Casting events in this manner obviously necessitated divergence from how the events actually occurred and, as such, posed a difficult dilemma concerning the degree of historic accuracy required in an artistic creation.

This dilemma may be avoided by responding that the film is merely an artistic creation, not a historical document. As such, it must be assessed according to artistic standards, as opposed to historical ones. Even so, there is no escaping the fact that the script offers an interpretation of events which are the subject of sharp controversy; clearly many viewers will choose to see it as interference with the historical record, rather than simply as an artistic creation. Given that, while writing the script, I wavered between these two approaches. As such, I think that I should clarify some of the rules that I set for myself.

As a rule, I strove to be as accurate as possible. Even so, and specifically with respect to scenes that took place behind closed doors, where I was unable to discover what had actually happened, I assumed poetic license to recreate events with my own imagination, with the reservation that the events must be consistent with the historic reality. I did my best to utilize this freedom in order to give the characters depth, and to put the events that actually occurred into a sharper focus. My working principle was that I would not facilitate my task by deleting events that contradicted my own political, historical world-view. This was not just because I wanted to act with artistic and intellectual integrity, but also because it was precisely those events that challenged my political views that created a more authentic, penetrating and moving drama.

I hope that I have succeeded in finding the optimal balance between the historical imperatives, the need to express my own personal worldview, and my commitment to the quality of the artistic creation.

Motty Lerner (emphasis added).

About ten days before the first showing, on October 28, 1994, an article appeared in the weekend section of the newspaper Yediot Aharonot, entitled “Did She Break?”

A huge controversy is liable to erupt following the new television series, which will accuse the paratrooper Chana Szenes, who was sent to the aid of Hungarian Jewry during the Holocaust, of breaking under interrogation and betraying her comrade paratroopers to the Fascist police. The accusation comes from the mouth of Yisrael Kastner, the organizer of the rescue train from Budapest and the man “who sold his soul to Satan.” Author Aharon Meged: “this is a travesty and lies.”

Ms. Aspa Peled, the author of the article, interviewed Mr. Lerner:

[Peled:] “... Motty Lerner, is the legend a lie?

[Lerner:] I see myself as someone disclosing the subjective truth of Kastner and the members of the Rescue Commission, who were trapped in a web of mythology and myth, one which they could not escape. Perhaps they were even afraid to do so. It seems to me that today we have the maturity to understand that Chana Szenes was indeed a great heroine, even though she may have broken under interrogation. In the final analysis, how many of the Israeli soldiers who fell prisoner to the Egyptians or the Syrians did not break under interrogation? In my view, this in no way detracts from her bravery.

[Peled:] So was she a traitor or not?

[Lerner] I was not present at the interrogation and I do not know. What is clear is that Chana crossed the border and she had one contact address that she had to reach – Kastner. Three days later, Goldstein and Palgi reached Kastner without him even knowing that they were on their way to him. I have no tools with which to examine the matter and so in the film, I present it as Kastner’s opinion.

[Peled:] But Kastner never said that.

[Lerner:] Kastner was convinced that Chana had turned the paratroopers in. This I know from hints in his writings.

In reaction to Mr. Lerner’s last comments regarding the “hints” in Dr. Kastner’s letters, we note that this argument, nor anything similar to it, was ever raised at the trial before us, neither directly or even by implication. All agree that the words attributed to Dr. Kastner in the play are false, both in that cursed year 1944 in Hungary, and in Greenwald’s trial. There is not a shred of evidence that Chana betrayed her comrades to the Gestapo. Quite the opposite. Furthermore, Dr. Kastner never made the statements attributed to him by the screenplay’s author. In plain language, it may be said that the accusation leveled at Chana Szenes by Dr. Kastner in the play is defamatory.

This completes our review of the facts, some of which we shall revisit during the course of our comments.

The Broadcasting Authority’s Duty and Our Authority to Disallow the Broadcast

8.    Prior to entering the chamber of values and truth, we will say a few words regarding our authority to order the Broadcasting Authority to comply with the petitioners’ request. No one questions our authority to prevent the Broadcasting Authority from televising the disputed paragraph. The Broadcasting Authority was entitled to refuse to broadcast “The Kastner Trial,” either in its entirety or in part, and its decision to reject the petitioners’ request to delete the paragraph in question is subject to our judicial review. The question is not whether this is the sort of matter that the High Court of Justice can review and reverse. Up to this point, my colleagues and I agree. But from here on, our ways part. My colleagues argue that the petitioners did not succeed in crossing the threshold; in my opinion they indeed crossed it, and with room to spare.

The Issue in Dispute

9.    These are the two forces, each pulling in different directions. On one end, Motty Lerner’s freedom of expression and artistic creation and, on the other, human dignity. The dignity of Chana Szenes, a young woman murdered by the Gestapo, who is unable to come and defend her dignity. Shall we accede to the petitioners’ request and enjoin the Broadcasting Authority from broadcasting that paragraph, about one minute long, since it violates Chana Szenes’ dignity? Or, in recognition of the creative author’s freedom of expression and creation, shall we refuse to grant their request?

For the purpose of examining the matter, let us position all the leading actors on stage, present them individually, and listen to their monologues. All being assembled on the stage, we will allow them to converse among themselves and we will then know whose rights prevail. We shall divide our comments in this respect into three sections. First, we shall discuss freedom of expression and the right to reputation, as concepts and legal principles. We shall then examine the hierarchical status of freedom of expression and the right to reputation. Finally, we will have them confront one another, so that we can measure the power of one against the other.

We will begin our discussion by examining the freedom of expression and creation, and thereafter we shall proceed to human dignity.

Freedom of Expression and Artistic Creation

10. Freedom of expression and artistic creation have deep roots in Israeli law. We need not recap their origin; this has been explained on many occasions. I have expressed my own opinion regarding certain aspects of the freedom of expression and the conflict between freedom of expression and other values, occasionally at length, in at least three places. They are, in chronological order, HCJ 606/93 Kiddum [28] at 17; HCJ 4804/94 Station Film [12] at 688 {55}; FH 7325/95 Yediot Acharonot v. Krauss [48]. In these three decisions, as in this case, I was in the minority. My opinion has not changed. While I obviously do not contest the basic right of freedom of expression and artistic creation, I nonetheless feel that my colleagues have gone too far in the protection they grant freedom of expression, in the process curtailing other, extremely important rights.

11. I will not repeat what I wrote and will limit my comments to the issue at hand. Freedom of expression is not a single unit. It is a federation, a federation of rights and interests. There is the chronicle and the speech, the polemic article, fiction and poetry, criticism of the government and commercial advertising. There is the procession and the demonstration, the play and the film. Each of these modes of expression reflects a particular value, and one interest is not identical to the other. Commercial advertising does not benefit, nor should it, from the same protection granted to a chronicle. Instead of referring to freedom of expression in the abstract, we must pick out the particular component relevant for our purposes. Obviously, our concern is not merely with labels – fiction, non‑fiction, poetry or demonstration. It is incumbent upon us to conduct a deep investigation in an attempt to understand the interest requiring protection, its substance and the substantive content of the right presented before the Court. It was in this context that I wrote in Station Film [12] at 689 {56-57}:

In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech will wage the battle, each with its own intensity. Freedom of expression is not an idol, before which we should prostrate ourselves wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression – an expression that finds shelter under the wings of the broader principle – we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of molecularization - dividing the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there are films, there is theatre and then there is television, there is radio and then there is the stage. 

In the same vein I also wrote:

[P]eople often try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue in a manner compatible with the issue being discussed before it ‑ an issue forming one of the pillars of the democratic regime.

Id. At 689 {57-58}.

See also Id. at 688-91; Kiddum [28] at 25‑28; Krauss [46] at 78-80.

12.  Let us return to our case. Which kind of freedom of expression are we referring to? If you will, what is the interest that freedom of expression, in this case, places against other conflicting interests? We are dealing with a screenplay, but not one that is the fruit of the playwright’s imagination from beginning to end. Our concern is with a special kind of play known as a docudrama. In other words – a creation including both drama and documentation. Facts based on reality interpolated with dramatic foundations. The veneer is dramatic, but actual events, which all or at least some of the spectators have heard of and are familiar with, are inseparably woven into the drama. Needless to say, in this kaleidoscope of life and imagination, each docudrama is different. There is no fixed degree of imagination or historical facts; it is entirely up to the creator, who may broaden or narrow either.

13.  “The Kastner Trial” is deeply rooted in historical facts. The plot is basically true, taken from “real life,” and the heroes of the play appear with their own names. Thus, the judge is Judge Binyamin Halevi, the prosecutor is the Attorney-General, Haim Cohen. The attorney for the defense is Shmuel Tamir. The accused is Malchiel Greenwald. Ms. Catherine Szenes, Ms. Hanz Brand, Yoel Palgi and, most importantly, Chana Szenes, also appear in the play. Motty Lerner, the playwright, took specific real life events and cast them into dramatic format. The innocent viewer, as well as the informed viewer, do not know which parts of the play are true and which are false. Did Kastner really say the words attributed to him? Is there any factual basis for Kastner’s allegations against Chana Szenes, or perhaps Kastner is not telling the truth? The viewer does not know.

This is the artistic creation before us; it contains elements of both life and drama. Given what we know about the play, I reject Lerner’s statement that the play is “a fictional drama inspired by events that actually occurred.” The drama is by no means fictitious and the “events that actually occurred” were not just a source of “inspiration” for the author. They are an integral, indistinguishable part of the creation. Nor can I concur that “the script offers an interpretation of events which are the subject of sharp controversy”. The issue before us is not disputed – all agree that Chana Szenes did not betray her comrades to the Gestapo. I also find it difficult to accept Lerner’s statement that “I strove to be as accurate as possible.” His intentions may have been commendable, but his actions were not. In the disputed paragraph Motty Lerner was not just inaccurate – he spoke untruthfully. This is not a question of “poetic license,” as Motty Lerner claims. Motty Lerner did not even comply with his own commitment that “the result of the events must be consistent with the historic reality.” Kastner did not say the words that Lerner attributed to him. Nor are the words substantively correct. Motty Lerner thought that Kastner’s outrageous words in the play would raise the dramatic tension; this indeed is their effect. I am, indeed, at a loss to find any other reason for the scene in which the actor portraying Dr. Kastner lashes out at Chana Szenes. The actor playing Dr. Kastner was Sasson Gabbai; his performance was superb and moving and anyone who saw Dr. Kastner in the play making his accusation against Chana Szenes could not fail to be convinced that his words were true. I find it difficult to accept the claim that “The Kastner Trial” is a “fictional drama.” The drama is far from being “fictional.”

14. This cocktail of imagination and reality situates the play somewhere between a documentary‑chronicle and a dramatic creation. As its name indicates, it is a docudrama, with the primary emphasis being on the documentary‑chronicle component. Chana Szenes was imprisoned and tortured by the Nazis. Yoel Palgi and Peretz Goldstein were captured by the Nazis. Chana Szenes was executed by the Nazis. All of these are historical facts, and they are all woven around Dr. Kastner’s outrageous accusation thrown at Chana Szenes’ mother. If all of the surrounding facts are true, then wouldn’t the innocent viewer believe that statement to be equally accurate? Why wouldn’t one believe that Dr. Kastner had actually said those words and why wouldn’t he believe that Kastner knew, or believed, that Chana Szenes had betrayed her friends to the Nazis? It would have been different had Kastner stood up in the middle of Catherine Szenes’ testimony, attempted to open his mouth and then begun to float around the room, like a character out of one of Marquez’s books. But this was not the case.

Personally, it seems to me that the playwright cannot hide behind the label of a “fictional drama,” nor would it be appropriate for us to allow him or her to do so. The words attributed to Dr. Kastner regarding Chana Szenes are clearly perceived as part of the docudrama’s documentary aspect. In any event, we certainly cannot see this as belonging to the dramatic part of the play, distinct from the reality being displayed on stage. If we imagine the documentary and dramatic parts of the play as celestial objects with their own individual gravitational pull, then Dr. Kastner’s fabricated statement revolves in a “figure 8” around these two bodies. In other words, Dr. Kastner’s fabricated statement purports to have a little of this and a little of that: a description of the reality, as it supposedly was – in Hungary of 1944 and in the Jerusalem Court – and dramatic elements. The viewer does not know whether he or she is viewing reality or a figment of the playwright’s imagination.

15. Freedom of speech and of creative expression have therefore produced a sort of hybrid creation, a documentary presenting the truth as it (supposedly) was, as well as drama which is the product of the playwright’s imagination.

16. Until now we have discussed freedom of speech and artistic creation. We shall now proceed to examine a person’s right to his or her good name.

Human Dignity –One’s Right to One’s Good Name

17. A person’s deep, psychological need for a good reputation, a natural yearning, has long been legally recognized. Our nation has been escorted by rabbinic dictums such as “whoever publicly shames his neighbour is deemed to have shed blood” Babylonian Talmud, Tractate Baba Metzia 58b [78]. Similarly, “all who descend into Gehenna reascend, except for three persons who descend and do not reascend... he who publicly shames his neighbour…”Id. [78]. Indeed, “a person’s good name and dignity may be dearer to him or her than any other asset” CA 214/89 Avneri [16] at 856 (Barak, J.) A person’s dignity and reputation are at least as dear to that person as his or her body. Just as a person has a right to bodily integrity, so too is a person entitled to protect his or her dignity and good name. Maligning a person’s dignity and reputation can be likened to rape or an indecent act performed on a person’s body. The difference between both forms of damage is only that, in the case of rape, one first damages the body and only after the soul. In the case of a person’s dignity and reputation, it is the soul that is initially damaged, which may lead to the body being harmed as well.

18.  A person can look to two legal sources for recognition of his or her right to reputation: namely, the Basic Law: Human Dignity and Liberty and the Defamation Law, 1965. We shall discuss the Basic Law at a later juncture. Infra. paras. 28 and 29. For now, we shall turn to the Defamation Law.

19.  The Defamation Law expressly and specifically sets out the rights a person has to his or her good name. The law itself balances between a person’s reputation and his fellow’s freedom of expression. If Chana Szenes were with us today, I do not have the slightest doubt that she would have a claim, under the Defamation Law, against the playwright and against the Broadcasting Authority. As defined in section 1(1) of the Defamation Law, defamation is anything the publication of which may “lower a person in the estimation of others, or make him or her the object of hatred, contempt, or ridicule on their part.” Defamation Law, 1; or a publication which may “bring a person into disrepute because of acts, conduct or qualities attributed to him or her.” Sec. 1(2) of the Law. As such, the statement of Dr. Kastner in the screenplay constitutes defamation. There are those who will claim that it is not for us to pass judgment on one who suffered and, in his pain, revealed such secrets. As our rabbis said: “Do not judge thy neighbour until you are in his place” Mishnah, Ethics of our Fathers, 2:4 [80]. One could even claim that, as such, neither the playwright nor the Broadcasting Authority defamed Chana Szenes. Even having cited the words of our rabbis, however, it would seem that there are few who would dispute that the words uttered by Dr. Kastner constitute defamation.

Were Chana Szenes with us today – seventy-eight years old – she would be able to petition this Court to enjoin the statement attributed to Dr. Kastner. Chana Szenes, however, returned her soul to God in suffering, after being tortured and murdered, on November 7, 1944, at the age of twenty-three. Chana Szenes is no longer with us, and the question is only whether there is another who can file suit to reclaim her dignity. The following people have claimed to represent Chana Szenes’ dignity: In HCJ 6126/94 the petitioners are her brother, Giora Szenes, his two sons Eitan Szenes and Dr. David Szenes, as well as Reuven Dafni, the chairman of Yad Vashem, who, in 1944, parachuted into Yugoslavia with Chana Szenes. In HCJ 6143/94 the petitioners are Ms. Nadia Matar and the Women’s Association for the future of Israel (“Women in Green”).

What is the law regarding the defamation of the dead?

20. It turns out that the law has changed in this matter. Initially, at the time of its enactment, the Defamation Law provided:

Defamation of a          Deceased          Person

5.  Where defamatory matter is published after a person’s death, it shall be treated as the defamation of a living person. The spouse, children, parents, brothers and sisters of the deceased shall be regarded as persons injured by the defamation.

This is to say, defamation of the deceased was the same as defamation of the living, except that the right to file for judicial redress was exclusively reserved to the deceased’s spouse, children, parents, brothers and sisters. Under this law, Chana Szenes’ brother, Giora Szenes, was fully entitled to demand that the disputed paragraph be expunged from the play. This was in contrast to the previous law. See section 6 of the draft proposal for the Defamation Law-1962.

The law, however, was amended in 1967, see Defamation Law (Amended Version), 1967, and the right to file suit for the defamation of a deceased was curtailed. The following is the current language of section 5 of the Defamation Law:

Defamation of a Deceased  Person

5.  Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person, but do not constitute cause for a civil claim or a private criminal complaint, and no indictment shall be submitted for an offense under this section unless it is requested by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters.

This amended Defamation Law contains three principles. The first is that defamatory matter regarding a dead person “does not constitute cause for a civil claim or a private criminal complaint.” The second is that charges may be laid for defamatory statements regarding the deceased, after a request by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters. The third principle is that, subject to the first two principles, defamation of the dead shall be treated as defamation of the living. We regard this third principle as constituting the heart of the law: essentially, defamation of the dead is the same as defamation of the living, even though, procedurally speaking, the law imposes restrictions on the ability to seek legal redress, either in a civil claim or in a criminal indictment.

To complete the picture, we will also mention section 25 of the law, which deals with the institution of legal proceedings by one of the deceased’s relatives, within a limited period after the death of the deceased. It also deals with the continuation of defamation proceedings begun by the deceased, if he or she passed away prior to the termination of such proceeding.

21. What does all of the above tell us? We see that defamation of the deceased is subject to the same law as defamation of the living. This is the credo of the law and its message. This is the version of human dignity presented by the Defamation Law. Defamation of the deceased does not constitute grounds for a civil claim or a private criminal complaint, but sealing off the road to the Court does not detract from the substantive prohibition against publishing material defamatory of the dead and does not lessen the statutory moral‑legal condemnation of such defamation.

Defamation of the dead does not provide grounds for a civil claim – a claim for damages, an injunction or a declaratory judgment within the framework of the civil law. However, I am unable to see any good reason why a person should not be able to file suit within the framework of public law, provided that the issue concerns a body or person subject to public law. The Broadcasting Authority is indeed exempt from the yoke of private law with respect to defamation of the dead, as is any other person or body operating within the realm of private law. However, as a body which is also subject to public law, it must be held legally accountable within the parameters of that law.

22. Thus, the Defamation Law does not prevent the petitioners from petitioning the High Court of Justice for a public law remedy against the Broadcasting Authority. Granted, the petition of the brother, Giora Szenes, is not equivalent to the petition filed by the Women in Green. By its very nature, the latter is a public petition, relating to the collective interest. As such, it raises the issue of the public interest regarding the publication of a statement defaming Chana Szenes. In other words, in this petition, the defamation of Chana Szenes does not appear as an independent and exclusive basis for the legal claim, but rather as a component of the public interest in the wider sense of that concept. The public interest includes many other elements besides the protection of a person’s good name, including the freedom of expression and the playwright’s freedom of artistic creation. In this petition, the right to one’s good name must battle all the other components of the public interest. It is only then, if it finds itself victorious in this battle, that the right to a good name can wage its war against the freedom of expression and of artistic creation.

Giora Szenes’ petition, for its part, is different. It is, by its very essence, a private petition, one that raises the interest of the individual. I would go a step further and say that it is an intimate petition. Should we be surprised when a son or daughter comes to protect the honor of his or her mother or father? Does it astonish us when a brother battles for his sister’s dignity, or when a sister fights for her brother’s dignity? Surely, a father and mother would protect their children in the same way. While Giora Szenes refers to his sister as “the soldier-poet who sacrificed her life on the altar of human dignity and liberty,” he makes it equally clear that his petition is focused on the “maligning of the dignity of Chana, of blessed memory, and that of her family,” and that the injury “is further intensified by the series being scheduled on the fiftieth anniversary of her execution.” It is no wonder that, in his affidavit, Giora Szenes speaks of “my sister” and states that, “since becoming aware of the scheduled broadcast, I feel as though my world has fallen apart and that I am powerless.” This is the statement of a brother afflicted.

As such, the petition of Giora Szenes raises the issue of defamation in its purest sense, as a right to reputation standing on its own, as though Chana Szenes herself had petitioned the Court. This is not the nature of the petition of the Women in Green, which seeks to protect the right to a good name as a component of the public interest. Giora Szenes carries the sword of reputation, not the sword of the public interest. It is with this sword that he sets out to battle.

Giora Szenes brings a private claim in the realm of the public law. Chana Szenes is unable to file suit to reclaim her dignity, and her brother does so in her stead. Here, Giora Szenes and Chana Szenes are one and the same. The same applies to the other relatives in section 5 of the Defamation law.

23. A question: are the relatives named in section 5 of the Defamation Law the only ones who possess a “private right” in the public law realm? I would not restrict the right to these relatives exclusively. There are situations in which a friend is like a brother to the deceased and if “spouse” means a husband and wife who are legally married, then it would seem that even those who are not legally married, but who are also a couple, have a private right within the public law realm. However, we need not decide this question, since it is Giora Szenes, Chana Szenes’ brother, who has come to protect the dignity of his sister.

24. A final word: “Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person.” Does this apply to everyone that has lived since the dawn of mankind? Can one defame Abraham? Moses? Miriam? Yael, the wife of the Keni? Samson? King David? Jeremiah? Judah the Maccabee? Hillel the Elder? Bar-Kochba? Maimonides? Spinoza? Does the defamation of any of these figures confer rights under public law?

It could be argued that the question is whether all of these, our nation’s historical figures, are included in the definition of “person” as provide by the law. It could further be claimed that a distinction must be made between a “person” and a “historical figure.” The law intended to protect a “person” and not a “figure.” All of the above are “figures,” not “persons,” as defined by the law. When then does a person become a “historical figure”? Is Ben Gurion a “figure” or a “person”? The question is far from simple and at this stage we shall be satisfied with the tentative determination that a “person,” within the meaning of the Defamation Law, is someone whose family members, as specified in section 5, bring a claim of defamation. The determination of those entitled to file suit establishes the confines of the right and delineates the border between a “person” and a “figure.”

Another criterion for defining a dead “person,” for the purposes of defamation, is whether there are people alive who knew him or her personally. For as long as there are people living who knew the deceased, he or she continues to live as a “person.” As the poet Chanoch Levin wrote in “When My Eyes Shall Grow Dark,” in his book The Lives of the Dead (1999):

When my eyes shall grow dark

Draw my dead eyes

Towards your open eyes

And welcome my lifeless image into your embrace,

…

…draw my eyes

my dead eyes towards your eyes

there I will live a little longer

I will see through your living, seeing eyes

I will see the world that I cannot see

The world I so loved, and now

It is lost to me, and I am no more,

Only my dead eyes peering through your seeing eyes

In your living eyes, my dead eyes

live a little more, so long

as you will live

I too live, so long

as you will remember,

so long.

In this context we cannot but refer to the wonderful legend of Choni the Circle Maker who was overtaken by slumber and slept for seventy years. When he woke up there was no one that knew him, and he knew no one, as his generation had already passed away. “His resolve was weakened, begged for mercy ‑ and died.” Babylonian Talmud, Tractate Taanit, 23a [81]. And so it is in every generation. “And Joseph died, and all his brethren and all that generation” (Exodus, 1:6 [82]); and immediately following: “Now there arose a new king over Egypt who knew not Joseph.” Id. Thus it was in the days of the prophets: “And Joshua the son of Nun, servant of the Lord died, being an hundred and ten years old ... And also all that generation was gathered to its fathers; and there arose another generation after it which knew not the Lord nor yet the work which He had done for Israel.” Judges 2:8, 2:10 [83].

Needless to say, this question does not arise in the case at bar. Chana Szenes’ brother, her own flesh and blood, stands before us, and demands that his sister’s dignity be restored. These being the circumstances, is it possible or appropriate that we refer to her as a “figure”? There can be no doubt – Chana Szenes is a national heroine, a historical figure. We were educated through her heritage and sang her songs. This is the Chana Szenes of the petition of the Women in Green. However, this is not the case in the private, personal petition of Giora Szenes.

Intermediate Summary

25.  Up to this point we have addressed the freedom of expression and a person’s right to reputation as substantive legal concepts. They are independent principles in their own right, which grant rights to some and obligate others. They also serve as foundations for the interpretation of statutes and case law. They are interpretative principles both in the narrow sense and in the creative sense. However, the examination of the essence of the rights is not sufficient. Given our awareness that these two rights will come into direct conflict, we must further examine their hierarchical status in the legal system and whether one of the two has prevalence over the other in the legal hierarchy, or whether they share the same status in the legal pyramid. Deciding this question is a prior condition for preparing the rights for the struggle in which they are to engage. We will therefore examine the legal hierarchy of the rights, and we will begin with freedom of expression.

Human Dignity – Freedom of Expression’s Hierarchical Status

26.  Until the enactment of the Basic Law: Human Dignity and Liberty, the right to reputation and the right to freedom of expression possessed equal legal status. The right to reputation was already enshrined in statute – in the Defamation Law, as well as in preceding case law. Freedom of expression, in contrast, was exclusively a product of case law. Of course, that case law had the status of law. In other words, with the exception of the internal balancing tests within the parameters of the law itself, all of which defined the scope of freedom of expression, it was an accepted presumption that freedom of expression could only be curtailed or circumscribed by force of Knesset legislation. See e.g., CrimFH 537/95 Ganimat v. State of Israel [24] at 400, and citations there. As with other basic rights, freedom of expression had the status of law. This was so until the enactment of the Basic Law Human Dignity and Liberty. Since the promulgation of the Basic Law, there has been some confusion as to the exact state of the law.

27. The right to freedom of expression was not specifically recognized in the Basic Law: Human Dignity and Liberty, or in any other Basic Law. Even so, there are those who maintain that the concept of human dignity in the Basic Law also includes the freedom of speech, which they see as one of the derivatives of human dignity. According to this view, “Human Dignity” is an overflowing fountain, nourishing all those human rights that may possibly derive from it, or that are implicit therein. One of these basic rights is the right to freedom of expression. On the other hand, there are those who maintain that human dignity is human dignity and in the Basic Law: Human Dignity and Liberty, human dignity does not include freedom of expression. This, they claimed, is particularly true in the case of this specific Basic Law and its legislative history. Between these two extremes there are a number of variations on this theme. See e.g., H. Sommer, Hazchuyot Habilti Minuyot Vihekefa shel Hamahapacha Hachukatit, 28 Mishpatim, 259-61 (1997) [68]; A. Barak, Zchuyot Adam Muganot: Hahekef Vihahagbala, [69], 253; Y. Karp, Mikztat Shielot Al Kvod Haadam lifi Chok Hayesod: Kvod Haadam Vicheruto, [70]; A. Barak, Interpretation in Law [65] at 413. Judges too are occasionally tempted to speculate, in obiter dictum, regarding the nature and scope of the concept of human dignity.

We will not take that path and will not reveal our inner-most thoughts. For our purposes, without ruling upon the matter, we shall agree that freedom of expression is a derivative of human dignity in the Basic Law: Human Dignity and Liberty. We shall therefore presume, without ruling upon the matter, that since the enactment of the Basic Law: Human Dignity and Liberty, freedom of speech has ascended the legal hierarchy and today reigns supreme on the throne of rights set out in the Basic Law: Human Dignity and Liberty.

An Aside

In his opinion, my colleague, the President, distinguishes between the scope of freedom of expression and the protection that the law should grant that expression. That is to say, there are times when a person has freedom of expression even though the law may not extend its protection to him or her. Thus, for instance, a lie will find shelter under the wings of free speech, even if it will not be protected. This statement requires further examination, but, given that there is no need to decide the matter, I have not discussed it.

Human Dignity – The Hierarchical Status of the Right to Reputation

28. Since the enactment of the Basic Law: Human Dignity and Liberty we all know, including those who were previously ignorant, that human dignity is the crown jewel. The concept of “human dignity” is expressly referred to four times in the Basic Law, and once by implication. First, in the law’s title – The Basic Law: Human Dignity and Liberty. Second, section 1(a) of the law provides that “[t]he purpose of this Basic Law is to protect human dignity and liberty.” Third, section 2 of the law provides that “[t]here shall be no violation of the life, body or dignity of any person as such.” Fourth, section 4 of the law establishes that “[a]ll persons are entitled to the protection of their life, body and dignity.” In addition to these, section 1 of the law specifies the “basic principles” according to which “[b]asic human rights in Israel are founded upon recognition of the value of the human being.” The “value of the human being,” as is self-evident, includes human dignity.

And so, one must conclude that human dignity is the fundamental pillar of the Basic Law: Human Dignity and Liberty. Further on in our remarks, we will address the force of a person’s right to dignity. Here we have merely noted its centrality in the system of basic rights.

29. Be the territory covered by “Human Dignity,” as distinct from the freedom of expression, what it may, it is unanimously agreed that human dignity includes a person’s reputation. Human dignity has a number of progeny, but it is clear that one’s good name – or perhaps we should say one’s very name, it being one’s own name – is one’s first-born child. For if human dignity does not include a person’s good name, what then is human dignity? Seeing as how our concern is with human dignity, we need not pursue our search for other basic rights implicit in the concept of human dignity. Furthermore, a person retains his or her dignity both in life and after death. This is the specific stipulation of section 5 of the Defamation Law. Case law further added expressly and definitively that the human dignity in the Basic Law: Human Dignity and Liberty also extends to the dignity of the deceased. See e.g., CA 506/88 Shefer v. State of Israel [50] at 102 {184}; CA 105/92 [10] at 201; CA 1482/92 Hagar v. Hagar [51] at 801; HCJ 294/91 [18] at 523; HCJ 5688/92 [19] at 820, 827-28; FH 3299/93 [20] at 201, 205, 208, 211; HCJ 3933/92 Barachat v. C.O.S. Central Command [52] at 6; A. Barak Interpretation in Law [65] at 437-38; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society [53].

A person’s good name has therefore been directly recognized and protected by the Basic Law: Human Dignity and Liberty.

The Hierarchical Status of the Right to Freedom of Expression and the Right to Reputation – A Summary

30. It appears to us, therefore, that both the right to freedom of expression and the right to one’s reputation are protected on two levels. One level is that of the law. With respect to freedom of expression, we are dealing with case law that has the status of statutory law. The higher level is that of the Basic Law: Human Dignity and Liberty. Chana Szenes, too, has the right to her good name – some will say the right of the living to maintain the good name of Chana Szenes. This right, as well as the freedom of expression of the playwright and the Broadcasting Authority, enjoys the status of basic rights, or supreme rights. It is these two supreme rights that are locked in a duel. Which of them will prevail?

We cannot decide between the two rights on the basis of their fundamental essence. They are both deeply rooted rights – rights without which our democratic society could not survive. Nor can we decide between them according to their hierarchical status in the legal system, for both are of royal stature. We must therefore search for an appropriate criterion for deciding between the rival rights. Such a criterion can be found by a deeper examination of the essence of the rights. We will not refer to each of the rights purely as principles, or by reference to their respective proximity to the apex of the pyramid of rights. Instead, by way of metaphor, we will use a geiger-meter, to measure the internal power of each of the rights claiming supremacy. We will measure the internal power of the right to freedom of expression of the playwright and the Broadcasting Authority and we will then measure the internal power of Chana Szenes’ right to her good name, as it is carried on the petitioners’ shoulders. Finally we will compare their respective powers. The right which has more power, its internal light shining brighter, is the right which will prevail in the case before us.

We will now examine the internal power of each of the rights before us.

The Right to Freedom of Expression and the Right to a Good Name

31. We will begin with freedom of expression and artistic creation. As we saw, we cannot be satisfied with the examination of the right of freedom of expression in the general sense. It is incumbent upon us to further examine that particular thread of freedom of expression presenting itself before us. Its internal power must be evaluated in order to assess its strength in the confrontation with other basic rights that it attempts to curtail.

32. In fact, we already examined the aspects of freedom of expression relevant for our purposes. We found that we are dealing with part fiction and part drama. As indicated by its name, it is a “docudrama.” To the extent that the dramatic element is involved, we have no quarrel with either the playwright or the Broadcasting Authority. Furthermore, even if, for dramatic effect, the playwright occasionally diverges from the truth, we would not take issue with the matter. The dramatic element of the play is the life-breath of the docudrama’s author. It forms that creation’s soul and we would dare not damage it.

This is not the case with the other element, that of the chronicle. Indeed, here too we will not be overly meticulous, nor can we be, for the author is a playwright, not a historian. Thus, for example, regarding the crossing of the border from Yugoslavia to Hungary: Chana Szenes crossed the border on the night between the 9th and 10th of June in 1944 and was caught after two hours. Yoel Palgi and Peretz Goldstein crossed the border two weeks later, on June 23rd. Chana did not know when they were to cross the border, and the two of them crossed the border about 100 kilometers away from where Chana herself crossed the border (see the affidavit of Reuven Dafni, who, as their leader, was responsible for the group of paratroopers in Yugoslavia). Diverging from this fact, Yoel Palgi in the play says – as does the playwright in his interview with Yediot Aharonot, supra para. 7 – that he crossed the border three days after Chana Szenes. By distorting their respective dates of crossing the border, reducing the period between crossings from two weeks to three days, the playwright sows the seeds that give rise to Kastner’s accusation that Chana betrayed both Palgi and Goldstein to the Nazis. The proximity of the dates could indicate that Chana knew the date when Palgi and Goldstein would arrive. Had this been the total extent of the divergence from the truth, no one would have criticized the playwright. The same applies to other similar divergences. However the divergence in the case before us is different. For it is not only a divergence from the truth; while diverging from the truth it viciously damages a person’s good name.

33. Freedom of expression regarding actions or events that occurred is of the highest importance. The freedom and right to report events and actions, especially events and actions about which the public must know, is not just a right. When speaking of the media, the right goes hand in hand with the obligation. There is a public duty on those reporting, to report that which should be reported. It is for this reason that the reporter has the defense of “truth of publication” under section 14 of the Defamation Law. I dwelt at length upon the defense of truth in my opinion in the Krauss [48] and will not deal with it here (In that decision, my opinion was the minority view, but not with respect to the defense of truth).

The freedom of expression with regard to the publication of a chronicle, as well as the defense of truth, also subject the reporter to a special duty to restrict himself or herself to the truth and not to report untruths – even if unintentionally and unwittingly. Certainly this is the case when the reporter knowingly or recklessly reports untruths. In any event, even if we say that the freedom of expression includes falsehood – and we express no opinion on this point – I am at a loss to understand why the law should protect falsehood with the same protection granted to freedom of expression. I cannot see what the protected interest is. Just as my right to lift my hands on either side terminates when I reach another person’s nose, so too, the freedom of expression terminates upon encountering a person’s good name. One way or another, regarding a false report, I find no interest capable of supporting the right to freedom of expression in its battle with another person’s right to his good name.

All of this relates to the power of the rights of the playwright and the Broadcasting Authority to freedom of expression and artistic creation.

34. With respect to Chana Szenes’ right to dignity and her good name, as they are borne on the petitioners’ shoulders, I find it difficult to find a more noble right. Regarding human dignity, I said the following in Krauss [48] at 74:

With respect to human dignity, truth be told, we will find it exceedingly difficult to distinguish between a person and his or her dignity. A person and his or her dignity enter this world intertwined. One is one’s dignity, and one’s dignity is oneself. “A person and his or her dignity emerged together from the mother’s womb, and the two become one. A person is his or her dignity, and that dignity is the person.” CA 3077/90 A. v. B. at 592. One who lost one’s dignity is merely the shell of a person, if you will: the shadow of a person.

Thus, a person and his or her dignity are identical, and a person without dignity is but nothing more than the shell of a person. To quote the sublime words of Shakespeare in Richard the Second:

The Purest Treasure mortal times afford

Is spotless reputation; that away,

Men are but gilded loam or painted clay.

…

Mine honour is my life, both grow in one,

Take honour from me and my life is done”

See William Shakespeare, Richard II, act I, sc. I.

In our own sources, human dignity is reserved a place of honor in the Temple of basic rights. The reason, we are taught, is that man was created in God’s image: “So God created man in His own image, in the image of God created He him.” Genesis 1:27 [84]. And Rabbi Akiva taught us “Beloved is man, who was created in the image of God.” Mishnah, Ethics of our Fathers 3:14 [85] To this the Court added, in Krauss [48] at 75:

Those who are believers and observe the commandments derive the dignity of man from the honor of The Holy One, Blessed be He. In so doing, they elevate human dignity to supreme heights. And what will those say who do not believe and who do not observe? They will say: why should we anchor our recognition of the noble value of human dignity in God? Isn’t a person qua person sufficient reason for protecting one’s dignity? For a person is his or her dignity, and that dignity is the person. Nor can we forget the Basic Law: Human Dignity and Liberty, the basic law that engraved human dignity both in its name and content, establishing it in the Israeli legal system.

From all of the above, we know that the power emanating from Chana Szenes’ right to dignity is unparalleled. Regarding Chana Szenes, we can further say that her dignity and good name are larger than life itself, for as much as she was tortured, until she was murdered, she did not divulge her secret. To be precise, our concern is with Chana Szenes’ refined and pure right to her dignity and reputation, both of these having been carried by Giora Szenes from the battlefield and presented to us.

35. Chana Szenes’ right to dignity and reputation are laid before us in all their grandeur. We no longer need to examine the claims of the “Women in Green,” who present Chana Szenes’ interest as part of the public interest. The private, immediate interest of the brother Giora is sufficient, and we need not discuss the collective interest of the Women in Green. Nonetheless, it bears mentioning that all of the judgments cited by my colleague, the President, in support of his opinion, deal with freedom of expression conflicting with the collective interest and not with freedom of expression conflicting with an individual interest. In referring to an individual interest our intention is to a particular person cited by name and description. The only exception is the ruling in Avneri [16] with regard to which we have two comments. First, the issue there concerned a temporary injunction, in circumstances that were not entirely clear. Second, in any event, the rule established in that case warrants renewed examination for since then the Basic Law: Human Dignity and Liberty has been enacted. My colleague, the President, also agrees with this. In his own words in Ganimat supra [49] at 418:

The new status for the right to a good name, part of the right to human dignity, may justify a renewed examination of the exercise of judicial discretion in granting temporary injunctions against publications which are allegedly defamatory.

Compare CA 214/89 Avneri v. Shapira. See also A. Bendor, Chofesh Lishhon-Hara, 20 Mishpatim 561 (1990-1991) [71].

36. Here we must add and understand the need to peel off the label of “freedom of expression” from the group of interests to which it attaches, and to further examine the nature and texture of the particular component of the specific interest. Having peeled off the label, we now know that even if we state that human dignity encompasses freedom of expression – and we take no position either way on the matter – the dignity of Motty Lerner confronts the dignity of Chana Szenes. This being the case, we can further ask: could anyone dare to claim that Motty Lerner’s dignity prevails over that of Chana Szenes? Motty Lerner’s dignity is indeed dignity and he is worthy of it, but we will not agree to his dignity being constructed over that of Chana Szenes, or to his dignity dismissing the dignity of Chana Szenes. As the verse says: “for them that honor me, I will honor.” I Samuel, 2:30 [86].

37. The results of the confrontation between the rights are clear. Our concern is not with rights of equal standing. We are dealing with a right of dimensions struggling against a smaller right. The dignity and reputation of Chana easily prevail over the rights of the playwright and the Broadcasting Authority.

In HCJ 1/81 supra [39] at 378, Justice Shamgar wrote:

In order for this Court to prohibit an individual, responsible for public broadcasting and advertising, from publishing a particular broadcast, there must exist extreme circumstances, posing a tangible and near certain danger to the public welfare at large… or a clear and obvious illegality (emphasis added).

In the paragraph that the petitioners requested be deleted, there is a “clear and obvious illegality.”

Epilogue

38. Soon after turning twenty-three, Chana Szenes returned her soul, in all its purity, to God. Chana Szenes cannot come to claim her dignity. It is incumbent upon us to restore her dignity to her. In CA 1182/90 Shacham v. Rothman [54] at 347, the Court decided to honor a person’s wishes expressed in his will, and I concluded my opinion there with the following words:

I am happy with the result that I have reached, which in my opinion is the fulfillment of the deceased’s wishes. A person’s will is his or her dignity; it is human dignity. But the dead are unable to realize their wishes and preserve their dignity. We have therefore acted for the fulfillment of the deceased’s wish and the preservation of the deceased’s dignity.

Chana Szenes was a soldier-poet, or perhaps we could say poet‑soldier. She was a poet, a soldier, and a dreamer. Chana loved life. And when Chana wandered barefoot on the golden sands of Caesarea, a young girl, twenty years old, she prayed to God:

O Lord, my God

I pray that these never end

the sand and the sea,

the rush of the water,

the flash of the heaven,

the prayer of man.

In those days that were blacker than black, redder than blood, before she entered the inferno, Chana sang of the rebellion, of death and dignity. This was Chana’s song in Serditza, Yugoslavia:

Happy…

Happy is the match that burnt and ignited the flames

Happy is the flame that burnt in the recesses of hearts

Happy are the hearts that knew to extinguish in dignity…

Happy is the match that burnt and ignited flames.

Chana Szenes’ heart knew how to extinguish in dignity. Whether by words or by action, the dignity and good name of Chana Szenes cannot be taken away.

Chana Szenes

11 Tammuz 5781 – 28 Cheshvan 5805

July 17, 1921 – November 7, 1944

******

The case was decided in accordance with the majority opinion, as per the opinion of President A. Barak, with Justice Mazza concurring and against the dissenting opinion of Justice M. Cheshin.

July 26th, 1999.

 

 

LCA 4740/00

1.  Limor Amar

2.  Naftali Amar

v

1.  Orna Yoseph

2.  Ya’acov Schlesinger

3.  Yediot Tikshoret Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[14 August 2001]

Before President A. Barak, Vice President S. Levin and Justice T. Or

 

Appeal by leave on the judgment of the Nazereth District Court (President Y. Abramowitz, Vice President M. Ben David and Justice N. Mamen) dated 1 June 2000 in CC 272/99, in which the Court overruled the judgment of the Magistrates Court in Nazereth (Justice A.  Abraham) from 2 June 1999.

 

Facts: The appellants are a couple who had a baby girl born whom they did not take home from the hospital.  She was born with birth defects.  The respondents were involved in the publication of two articles on the matter of the girl.  In one article details of her birth were given and it was written that she was abandoned by her parents.  It was written in the subtitle of the article that the mother of the baby is a drug addict.  In the other article the birth defects of the daughter and the abandonment were published.  The appellants sued the respondents on the basis of the Defamation Law 5725-1965 for these publications.  The suit was filed for the amount of 100,000 NIS for reasons related to filing fees.  The Magistrates Court (Justice A. Abraham) determined as to what was written in the first article that the mother was a drug addict that this constituted defamation and the respondents did not fulfill the requirements for the defenses of truthfulness or good faith.  The Magistrates Court awarded the appellants 100,000 NIS in compensation and also ordered the respondents to pay 15,000 NIS in court fees.  The respondents appealed to the District Court which reduced the compensation to 40,000 NIS, the District Court also reduced the award of court fees and set it at 6,000 NIS, and determined that the compensation award would only be in favor of the appellant.  The appellants were granted leave to appeal and appealed this decision.

 

Held: The Court determined that the non-economic damage had been proven in this case, including: damage to the appellant’s reputation in that it was written about her that she is a drug addict; and severe injury to her feelings during her difficult times as it was hinted that the daughter was born with a birth defect due to the mother’s drug addiction.  Furthermore, the respondents did not minimize the damage by publishing a correction and increased the damage by continuing to claim the truthfulness of the publication though they knew that there was a mistake in the publication.  In this situation the compensation that was determined in the Magistrates Court (100,000 NIS) was proper.  Also, for the purposes of this appeal, the Court rejected the stance of the defendant that Amendment no. 6 of Prohibition of Defamation Law, in adding section 7A(b) to the law, established a maximum threshold for compensation without proof of damages. The Court overturned the District Court’s decision, reinstated the Magistrates Court award of 100,000 in compensation and ordered the respondents to pay the appellants’ attorneys’ fees in the amount of 30,000 NIS, as well as court fees.

 

Legislation cited:

Prohibition of Defamation Law 5726-1965 – ss. 1, 2, 6, 7, 7a(b), 9(a)(2), 14, 15, 16, 19.

Prohibition of Defamation Law (Amendment no. 6) 5759-1998.

Torts Ordinance [New Version] ss. 2, 71, 76, chapter 5.

Civil Torts Ordinance, 1944, ss. 2(2)-15, 55B, 58-61, 60, 63-68A.

 

Regulations cited:

Civil Procedure Regulations, 5744-1984, r. 513.

 

Israeli Supreme Court cases cited:

[1]      CA 214/89 Avneri v. Shapira IsrSC 43(3) 840.

[2]      HCJ 6126/94 Senesh v. Broadcast Authority IsrSC 53(3) 817.

[3]      FHC 7325/95 Yediot Ahronot Ltd. v. Kraus IsrSC 52(3) 1.

[4]      HCJ 153/83 Levi v. Southern Command Commander of Israel Police IsrSC 38(2) 393.

[5]      CrimA 255/68 State of Israel v. Ben Moshe IsrSC 22(2) 427.

[6]      HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board IsrSC 50 (5) 661.

[7]      PPA 4463/94 Golan v. Prison Authority IsrSC 50(4) 136.

[8]      HCJ 2481/93 Dayan v. Jerusalem District Commander IsrSC 48(2) 456.

[9]      FH 9/77 Israel Electric Company Ltd. v. ‘Ha’aretz’ Newspaper Publication Ltd.  IsrSC 35(2) 457.

[10]    CA 348/85 BenZion v. Modiin Publication Ltd.  IsrSC 42(1) 797.

[11]    HCJ 6658/93 Am K’Lavi v. Jerusalem Police Captain IsrSC 48(4) 793.

[12]    CA 670/79 ‘Ha’aretz’ Newspaper Publication Ltd. v. Mizrahi IsrSC 41(2) 169.

[13]    CA 30/72 Freedman v. Segel IsrSC 27(2) 225.

[14]    CA 802/87 Nof v. Avneri IsrSC 45(2) 489.

[15]    CA 1370/91 Mashour v. Habibi IsrSC 47(1) 535.

[16]    FH 15/88 Melekh v. Kornhauser IsrSC 44(2) 89.

[17]    CA 295/94 Modiin Publication Ltd. v. Spiro IsrSC 46(3) 48.

[18]    CA 5610/93 Zeleski v. Local Committee for Construction and Planning, Rishon L’Zion IsrSC 51(1) 68.

[19]    CA 1977/97 Barzani v. Bezeq Israeli Communication Company IsrSC 55(4) 584.

[20]    CA 22/49 Levi v. Mussaf IsrSC 4 558.

[21]    CA 70/52 Grossman v. Rot IsrSC 6 1242.

[22]    CA 467/77 Horowitz v. Port Authority in Israel IsrSC 33(2) 256.

[23]    CA 357/80 Naim v. Barda IsrSC 36 (3) 762.

[24]    CA 930/90 Municipality of Netanyah v. Zimmerman (unreported).

[25]    CA 541/63 Reches v. Hertzberg IsrSC 18(2)120.

[26]    CA 2055/99 Ploni v. Harav Ze’ev IsrSC 55(5) 241.

[27]    CA 492/89 Slonim v. ‘Davar’ Ltd. IsrSC 46(3) 827.

[28]    CA 552/73 Rosenblum v. Katz IsrSC 30(1) 589.

.

American cases cited:

[29]    Sweeney v. Patterson 128 F. 2d 457 (1942).

[30]    New York Times v. Sullivan 376 U.S. 254 (1964).

[31]    Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974).

 

Australian cases cited:

[32]    Theophanous v. Herald & Weekly Times Ltd. (1993-1994) 182 C.L.R. 104.

[33]    Stephens v. West Australian Newspapers Ltd. (1993-1994) 182 C.L.R. 211.

 

English cases cited:

[34]    Derbyshire County Council v. Times Newspaper [1993] A.C. 534.

[35]    John v. M.G.N. Ltd. [1996] 3 W.L.R. 593 (C.A.).

 

Canadian cases cited:

[36]    Hill v. Church of Scientology [1995] 2 S.C.R. 1130.

 

Israeli books cited:

[37]    A. Shinhar Slander Laws (1997)

 

Israeli articles cited:

[38]    H. H. Cohn, ‘The Values of a Jewish and Democratic State – Studies in the Basic Law: Human Dignity and liberty’, HaPraklit – Jubilee Volume, 1994.

[39]    A. Barak, ‘The Tradition of Freedom of Expression in Israel and its Problems’ Mishpatim 27 (1996-1997) 223.

[40]    A. Barak, ‘Assessing Damages in Bodily Injury: The Desired Law and the Current Law’ Iyunei Mishpat 9 (1983) 243.

 

Foreign books cited:

[41]    I. Englard The Philosophy of Tort Law (Cambridge, London, 1993).

[42]    J.C.C. Gatley On Libel and Slander (London, 9th ed., by P. Milmo, W.V.H. Rogers, 1998).

[43]    J.G. Fleming The Law of Torts (Sydney, 8th ed., 1992).

 

Foreign articles cited:

[44]    R.C. Post ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ 74 Cal. L. Rev. (1986) 691.          

[45]       J.G. Fleming ‘Libel and Constitutional Free Speech’ Essays for Patrick Atiyah (1991) 333.

[46]    G.C. Cook ‘Reconciling the first Amendment With the Individual’s Reputation: The Declaratory Judgment as an Option for Libel Suits’ 93 Dick. L. Rev. (1989) 265.

 

For the appellant – Ephraim Cohen

For the respondent – Zvi Shtoirman

 

 

 

JUDGMENT

 

President A. Barak

What are the criteria for determining compensation in a suit for defamation – that is the question before us in this appeal.

The Facts

1.  The appellants are a young couple that live in Tiberias.  Their daughter was born (on 6 October 1994) with a rare syndrome.  She suffers, among other things from severe distortions in her limbs and head.  The appellants refused to take their daughter home.  She was left in the hospital.  The medical staff took care of her for many months.  Respondent no. 1 is a reporter for respondent no. 3.  It is a local paper distributed in Tiberias and the northern part of the country.  The newspaper’s editor is respondent no. 2.  Two articles were published on the matter of the girl.  In the first article (from 25 November, 1994) the details of her birth were given and it was noted that she was abandoned by her parents.  In the subtitle of the article it was written that the mother of the baby is a drug addict.  In the second article (from 25 August 1995) the birth defects of the daughter and the abandonment were published.  The appellants sued the respondents on the basis of the Defamation Law 5725-1965 [hereinafter: ‘the law’] for these publications.  For reasons related to the filing fee they filed their suit for the amount of 100,000 NIS.

The Magistrates Court

2. The Magistrates Court (Justice A. Abraham) determined that what was said in the articles constitutes defamation (as stated in section 1 of the law).  It was determined that the publications in the local paper led to the identification of the appellants as the parents of the baby.  They damaged their reputation, humiliated them and degraded them before other persons.  However, it was determined that the details in the two articles as to the physical condition of the girl and her abandonment were true, and there was an interest to the public in their publication.  Therefore, the respondents had a defense from liability (see section 14 of the law).  As to the publication of these details, the suit was dismissed.  The Court examined whether the defendants had a good defense as to the publication in the first article, that the mother was a drug addict.  In this matter it was determined that the mother does not take drugs, and is not a drug addict.  The publication in this matter constitutes defamation of the appellants without them having the defense of ‘I spoke the truth’.  So too it was established that the defendants did not have the defense of ‘good faith’ (as stated in section 15 and 16 of the law).

3.  As for the appellants damages as a result of the publication in the first article as to the mother being a drug addict it was determined, that indeed what was said in the article spread throughout the neighborhood where the appellants lived.  The publication poured salt on their wounds, as in addition to their difficult situation in the fact of the birth defect that befell their daughter, their pain was increased by the description of the mother as a drug addict, from which it one might understand that the mother brought the tragedy on her daughter and on herself for taking drugs.  Proof was also brought that due to this publication the appellant’s employer was forced to fire her, since a customer in the store where the appellant worked identified her as the one who gave birth to a daughter with birth defects because she was a drug addict.  As to the conduct of the respondents it was determined that they did not undertake any reasonable effort to check before the publication whether the mother was a drug addict.  Despite this they did not initiate any correction of the first article.  Quite the opposite, during the course of the trial they did all that they could – including an attempt to reveal the guardianship file of the baby – in order to prove that the mother was in fact a drug addict, even though already in the pre-trial hearing respondent no. 1 admitted that there was a mistake in the article as to this matter.  Finally, the Court noted that in the newspaper ‘Ma’ariv’ (on 27 September 1995) an article was published at the initiative of the appellants in which they told their story.  It was determined that this did not reduce the compensation to which the appellants were entitled.  It was also determined that this publication did not add to or detract from the publication of the respondents as to the appellant being a drug addict.

4.  The Magistrates Court determined that that primary damage to the appellants was the damage to their reputation, their feelings and their spirit.  It added that it was of the opinion that economic damage could also have been caused to the appellants, and in fact may possibly have been caused.  It was determined that ‘the totality of the considerations which surround the matter, and in particular the fact, that the erroneous publication was made when the plaintiffs were in a difficult emotional situation due to their eldest daughter being born with a birth defect, due to which they left the girl in the hospital, can increase the damage to the plaintiff, and from this is derived the amount of damages that the defendants are to be held liable for’ (paragraph 33).  The amount of damages was set at 100,000 NIS.  The respondents were also ordered to pay 15,000 NIS in court fees.  The Court emphasized that the respondents conducted a war of attrition to prove that the appellants was a drug addict, when they knew all along that this publication was erroneous.

The District Court

5.  The defendants appealed to the District Court.  The appeal revolved around both the matter of the liability and the matter of the compensation.  The District Court (President Y. Abramowitz, Vice President M. Ben David and Justice N. Mamen) dismissed the appeal as to liability.  The appeal on the amount of compensation was granted.   It was determined that the Magistrates Court was excessive in the amount of compensation when it awarded the full amount of the suit without giving weight to the fact that additional arguments of the appellants (before us) were dismissed.  The District Court set the amount of compensation at 40,000 NIS.  In determining this sum the District Court took into account that the circle of people who might identify the appellant as a drug addict, soon after publication, was fairly limited.  So too, the District Court reduced the award of court fees and set it at 6,000 NIS.  Finally, it was determined that the compensation award would be in favor of the appellant only and not her partner. 

The Arguments before Us

6.  The appellants applied for and were granted leave to appeal.  They argued before us that it was not appropriate to intervene in the determination of compensation.  According to their claim, the amount of compensation must reflect the importance of a person’s reputation.  The amount of compensation must clarify that a person’s reputation is not ‘cheap’.  Harmful publication which is motivated by the journalistic goal of ‘grabbing a headline’ without prior fact checking is to be deterred.  The appellants turned our attention to the fact that after the judgment of the Magistrates Court the Prohibition of Defamation Law (Amendment no.6) 5759-1998 (hereinafter: ‘Amendment no. 6) was passed, according to which in a trial for a civil tort of defamation the court may require the defendant to pay compensation not to exceed 50,000 NIS without proving damages (section 7A(b)).  According to the appellants’ claim, against the background of this provision – which does not apply in our case – the amount that the Court awarded was not excessive.  Finally, it was emphasized that the Magistrates Court did not award the full amount they asked for, as the amount of compensation in the petition was reduced to 100,000 NIS due to the economic hardship in paying the filing fee.  According to the appellants claim, the re-evaluated amount of the suit at the time of the decision in the Magistrates Court stood at 150,000 NIS.

2.  The respondents sought to leave the decision of the District Court standing.   According to their claim, the Magistrates Court was excessive in the amount of compensation it awarded them.  Amendment no. 6 establishes a ceiling on general damages of 50,000 NIS, and this can indirectly also impact the case before us.  The respondents emphasized that they acted in good faith while seeking to assist in the adoption process of the minor.  They also noted that the Magistrates Court accepted the stance of the respondents on the matter of the publications, apart from the appellant being a drug addict.  This should also be reflected in the amount of compensation awarded.

The Prohibition on Defamation as a Balance between Conflicting Constitutional Rights

8.  The laws as to the prohibition on defamation constitute a delicate balance among human rights central to every democracy: the right to one’s good name and privacy on the one hand and the right to freedom of expression on the other.  A liberty seeking society is not to exist without protection of the reputation of each one of the society’s members (see CA 214/89 Avneri v. Shapira [1] (hereinafter: the Avneri case at p. 856).  I explained this in one of the cases when I stated:

‘One who steals my property may compensate me with money.  One who steals my reputation steals my reason for existing.  A person’s reputation determines the way he relates to himself and the way his friends relate to him.  It determines the attitude of society to him.  The only asset that the multitude has – whether they serve in the governmental authorities or whether they operate in the private sector – is their reputation.  It is as dear to them as life itself’ (HCJ 6126/94 Senesh  v. Broadcast Authority (hereinafter: ‘the Senesh  case’ [2], at p. 832).

Indeed, a democratic regime that protects the liberty of each of its individuals is permitted and must protect not only the body of the individual but also his spirit and reputation.  In Israel the protection of one’s reputation is also derived from the protection of human dignity.  (See FHC 7325/95 Yediot Ahronot Ltd. v. Kraus [3] at p. 74; H. H. Cohn, ‘The Values of a Jewish and Democratic State  –  Studies in the Basic Law: Human Dignity and liberty’, HaPraklit  –  Jubilee Volume [38] at p. 40 as well as Hill v. Church of Scientology [1995] 2 S.C.R. 1130 [36] at p. 1175.  So too it is possible occasionally to anchor the defense of one’s reputation in the right to privacy, as a publication that is defamatory more than once violates a person’s privacy and personal life.

9.  Freedom of expression is a central component in every democratic regime.  It has a ‘... a place of dignity in the hall of basic human rights’ (HCJ 153/83 Levi v. Southern Command Commander of Israel Police [4] at p. 398).  It constitutes the ‘... life breath of democracy’ (Justice Agranat in CrimA 255/68 State of Israel v. Ben Moshe IsrSC 22(2) 427 [5], at p. 435.  See also [39]).  A democratic regime should not exist without freedom of expression being ensured.  In Israel this protection of freedom of expression is also derived from the constitutional protection of human dignity (see HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board [6], at p. 675; PPA 4463/94 Golan v. Prison Authority [7] at pp. 156-157; HCJ 2481/93 Dayan v. Jerusalem District Commander [8] at p. 468, and compare to the Senesh case [2] at pp. 864-865).

10.  This being so, one’s reputation and freedom of expression are derived from the same ‘mother’ right itself, from human dignity.  These two twins – one’s reputation and freedom of expression – toss about in the bowels of democracy.  At times they complete each other.  At times they clash with each other.  The freedom of expression of one damages the reputation of the other.  ‘... the liberty of the citizen stands against the right of the citizen, meaning, his liberty to sound out what is in his heart and to hear what others have to express, against his right not to be injured in his dignity and reputation...’  (Stand-in President Justice Landau in FH 9/77 Israel Electric Company Ltd. v. ‘Ha’aretz’ Newspaper Publication Ltd (hereinafter: ‘the Electric Company Case’ [9] at p. 343).  It was rightly noted that anything that is added to the laws prohibiting defamation is detracted from freedom of expression (See Sweeney v. Patterson (1942) [29] at p. 458).  Every legal system seeks to balance between the two clashing liberties.  ‘The balance is to be found between these contradictory social interests by a value-based choice, which gives the proper weight to each of these in the relevant context...’ (Justice Netanyahu in CA 348/85 BenZion v. Modiin Publication Ltd.  [10], at p. 800)  It is necessary to have (horizontal) balance in which each one of the liberties will retreat in order to fulfill the primary aspects of the other liberty.  (Compare: HCJ 2481/93 supra [8]; the Senesh case [2], at p. 834; HCJ 6658/93 Am K’Lavi v. Jerusalem Police Commander [11]).  This balance found its expression in Israel in the Defamation Prohibition law.  This law establishes that exercise of freedom of expression which contains publication of defamation (as defined in sections 1 and 2 of the law) is a criminal prohibition (section 6 of the law) and a civil tort (section 7), as long as the publication is not truthful and does not have any public interest (section 14 of the law) and the publisher does not have the defense of good faith which is established in the law (section 15).  In this way the border is established between protected expression and expression that is not protected; between protection of reputation and the denial of this defense.  This border draws from the constitutional rights as to freedom of expression, reputation and privacy (see CA 670/79 ‘Ha’aretz’ Newspaper Publication Ltd. v. Mizrahi [12] at p. 199).  The legality of this border is determined by the constitutional balance among these values (see the Electric Company case [9], and also (New York Times v. Sullivan (1964) [30]; Gertz v. Robert Welch, Inc. (1974) [31]; Derbyshire County Council v. Times Newspaper (1993) [34]; Theophanous v. Herald & Weekly Times Ltd. (1994) [32]; Stephens v. West Australian Newspapers Ltd. (1994) [33]; Hill, supra [36]).  Indeed, our constitutional balance reflects the approach that both the right to one’s good name and to privacy and the right to freedom of expression are not absolute.  Each of the rights is relative in its character, when each one ‘concedes’ to the next one while creating a delicate balance between the conflicting values.  (See R.C. Post ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ [44]; J.G. Fleming ‘Libel and Constitutional Free Speech’ [45]).  More than once criticism has been directed at this balance but the discussion of it deviates from the framework of our decision.  (See I. Englard The Philosophy of Tort Law [41] at p. 135.)

11.  The constitutional balance between the right to one’s good name and privacy and the right to freedom of expression extends both to establishing liability (both in Torts and in Criminal Law) for defamation and to the determination of the remedies when the liability exists.  Therefore, this constitutional balance also extends over the civil remedies which the legal system establishes for violation of the (civil) prohibition of publication of defamation.  From here stems the approach that the natural remedy for prohibited injury to one’s reputation is the remedy of compensation (J.C.C. Gatley On Libel and Slander [42], at p. 200; hereinafter ‘Gatley’).  In general this remedy is preferable to the prior restraint as it prevents violation of freedom of expression before the question has been settled whether there is liability for defamation (see the Avneri case (1) at p. 864).  In light of the constitutional aspects, it is problematic to award compensation, for example, where defamation was caused with the intent to do harm.  As is known, Israeli case law has recognized this remedy in suitable cases (See: CA 30/72 Freedman v. Segel [13]; CA 670/79 supra [12], at p. 205; CA 802/87 Nof v. Avneri [14], at p. 494; CA 1370/91 Mashour v. Habibi [15]).  In the framework of this appeal we do not need to examine this issue (see J.G. Fleming The Law of Torts [43], at p. 596).  On the other hand the remedy of a declaratory judgment can at times be an appropriate remedy (see G.C. Cook ‘Reconciling the first Amendment with the Individual’s Reputation: The Declaratory Judgment as an Option for Libel Suits’ [46]).  Similarly, the remedy of publication of a correction which undoes the outcomes of defamation is appropriate, as it can provide a remedy (if only partial) to defamation without violating freedom of speech (see section 9A(2) of the law).  In the appeal before us we are dealing with the remedy of compensation.  We will therefore look more closely at this remedy.

Compensation

12.  The law establishes (in section 7) that publication of defamation ‘… will be a civil tort, and subject to the provisions of this law the provisions of sections 2(2) to 15, 55B, 58-61, and 63-68A of the Civil Torts Ordinance, 1944 will apply to it’.  This reference also includes, inter alia, reference to the provisions in the Torts Ordinance [New Version], which deal with compensation (section 60 of the Civil Torts Ordinance, 1944, which today constitutes section 76 of the Torts Ordinance [New Version]; (hereinafter: ‘the ordinance’).  These provisions are found in chapter 5 of the ordinance that deals with ‘remedies to torts’.  It is established in it that compensation constitutes remedies for a tort (section 71 of the ordinance), that:

‘Compensation may be given on its own or in addition to an order or in its place, however if –

(1)  the plaintiff suffered damage, compensation will be given just for that damage which may occur in a natural manner in the normal course of events and which comes directly from the defendant’s tort;

(2)  the plaintiff suffered economic damage, he will not be given compensation for the damage unless he gave details as to it in the petition or attached to it.

In this context the ordinance defines ‘damage’ in this language (section 2):

‘‘Damage’ – loss of life, an asset, comfort, physical welfare or reputation, or their absence, and any loss or absence and the like.’

This definition also applies as to compensation for defamation.  It is possible to learn from it that the compensation for defamation is given not just for the economic damage that defamation causes but also for non-economic damage.

13.  This legislative regulation as to compensation for a tort is meager.  It does not contain the necessary detail for a thorough and comprehensive regulation of the compensation laws.  It does not have rules as to quantification of the damage.  These rules were established by the case law.  Indeed, the great majority of the compensation laws for a tort are the fruit of case law.  However, the legislative direction is important.  It is established in it that the injured is entitled to compensation (compensation in the original text).  What are the criteria for determining compensation?  This question cannot be answered without determining the objective of the compensation.  This objective cannot be determined without determining the objective of tort law, in general and of defamation law, specifically.  Indeed, the interpretation of the provision in the ordinance as to ‘compensation’ must take place in the framework of the purpose which is at the foundation of tort laws and defamation laws.  And yet, there is no consensus as to this purpose.  From an historical perspective tort laws have fulfilled various functions, including a remedy function, a deterrent (or educational) function and a punitive function (see FH 15/88 Melekh v. Kornhauser [16] at p. 95; CA 295/94 Modiin Publication  Ltd. v. Spiro [17], at p. 57; CA 1370/91 supra [15] at p. 538).  Similar purposes were laid at the foundation of compensation for defamation.  Justice D. Levin writes:

‘The compensation which the court is authorized to award to one who was injured by the tort of defamation has a dual end; first, to give satisfaction to the injured, both by him being able to know that it is recognized that a tort has been committed against him in that his reputation was damaged without justification, and by the fact that the amount of the compensation that will be paid to him could somewhat improve his situation and bring him closer to the extent possible – to the extent that money can contribute to this – to the situation that he was in prior to the occurrence of the tort.

Second – as has already been said in the decisions of this Court – the compensation determined for the tort of defamation was also intended to ‘educate the audience and introduce into its consciousness that a person’s reputation, whether he is a private person, or whether he is a public figure, is not a free-for-all, and there is substance in what has been said in the book of Ecclesiastes ‘a name is better than a good oil’... meaning: compensation, which when awarded has a punitive end and an educational deterrent end as one...’ (CA 802/87 supra [14] at pp. 493-494).

In a similar vein Justice Bach noted:

‘... one of the objectives of compensation in defamation cases is to educate the public and introduce into its consciousness that a person’s reputation is not a free-for-all.  In determining compensation there is a punitive end and an educational deterrent end as one’ (CA 259/89 supra [17] at p. 57).

In the framework of the appeal before us there is no need to examine the punitive function, as punitive damages were not claimed in the appeal before us.  In the appeal before us remedial damages were sought, and we will now turn to the criteria for determining these.

14.  It is universally agreed, that one of the main objectives of compensation in tort law is remedial.  Compensation was intended to remove the damage and better it.  It comes to undo the results of the tort.  It is directed at placing the injured in the same position in which he would have been had the tort not occurred.  My colleague Justice Or explained this, in noting:

‘The starting point of the discussion of the compensation to which the appellants are entitled to is embodied in the general objective of compensation in tort law.  This objective is, first and foremost, to repair the damage caused by the tort...  therefore, the broad rule as to compensation in torts is that one is to award the injured that compensation which would place him in the same position in which he would have been had he not been subject to the tort.

...

As such, tort compensation was intended to restore the status quo that would have been were it not for the tort...’ (CA 5610/93 Zeleski v. Local Committee for Construction and Planning, Rishon L’Zion [18] at pp. 80-81).

And in a similar vein I noted in one of the cases:

‘From the essence of the term compensation, it stems, that this remedy was intended to remove the damage and improve it...  the purpose of the compensation is to place the injured, to the extent possible, in the same position in which he was at the time of the occurrence of the tort had the tort not occurred...’  (CA 1977/97 Barzani v. Bezeq Israeli Communication Company [19]       at p. 619).

Indeed, the principle that the objective of compensation is to restore the original situation (restitution in integrum) runs like a common thread through the laws of compensation in torts.  (See: CA 22/49   Levi v. Mussaf [20] at p. 564; CA 70/52   Grossman v. Rot [21] at p. 1253; CA 467/77 Horowitz v. Port Authority in Israel [22] at p. 262; CA 357/80 Naim v. Barda [23] at p. At p. 775; CA 930/90 Municipality of Netanyah v. Zimmerman [24] and many others).  This approach also applies in compensation for defamation (see A. Shinhar Defamation Laws [37] at p. 369).  Indeed the compensation for defamation was intended to place the injured in the same position in which he would be in were it not for publication of the defamation (see CA 802/87 supra [14] at p. 493).  In achieving this objective the proper balance is found between the right to one’s good name and freedom of expression.  The infringement on the right to one’s good name – like the violation of a constitutional right to liberty and bodily wholeness – justifies remedial compensation which returns the situation to its original state.  Such compensation is consistent with the proper protection of freedom of expression.  Indeed, the law of liability in torts establishes (horizontal) balance between the conflicting legal rights.  It expresses the relativity of the various rights and the need to balance between them while preserving their core elements.  So too, generally with the (horizontal) conflict between the autonomy of the personal will of the tortfeasor and the bodily and property wholeness of the injured.  Once liability has been established, the tort laws come to actualize it.  The remedial compensation brings about optimal actualization of the balance established by the laws of liability.  This actualization is optimal, as the purpose of the remedial compensation is return of the situation to its original state.  This ‘return’ places the two parties in the same situation they were in prior to the tort.  Compensation which goes beyond remedial compensation – whether it is nominal compensation or punitive compensation – requires special justification.  The high road of the compensation – which is derived from the proper balance between the conflicting constitutional rights in the realm of liability – is the remedial compensation.  It preserves the constitutional balance in the realm of liability and fulfills it.  Indeed, the nominal compensation operates beyond the remedial compensation.  It places on the one end one’s reputation, and on the other side the public interest in realizing freedom of expression.  This is vertical balancing which operates beyond the bounds of the remedial compensation.  It requires separate justification and separate examination.  So too the law with punitive compensation.  It too operates beyond the remedial compensation.  It places freedom of expression on the one hand and on the other hand the public interest in preserving one’s reputation.  This too is a vertical balancing that operates beyond the bounds of the remedial compensation.  It requires separate justification and separate examination Not so the remedial compensation.  This compensation reflects the horizontal balancing between rights of equal status which compete among themselves, while it returns the two parties to the situation they would have been in prior to commission of the tort.

15.  This purpose of returning the situation to its original status does not raise special difficulties when the damage that is caused to the one injured by the defamation is economic damage, such as loss of wages or expenses.  Assessment of this damage in the framework of the tort of defamation is not different from the assessment of this damage in a tort which causes bodily harm.  The special difficulties arise in all those cases – and they are the majority of cases – in which defamation causes non-economic damage.  These damages touch upon harm to a person’s reputation, his status in society and his self-image.  Justice Cory rightly noted in the Hill case supra [36], that:

‘A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime’ (at p. 1196).

How can these damages be assessed?  How can the situation be returned to its original state?  This problem is not new to us.  It arises in every case of non-economic damage with bodily damage (see A. Barak, ‘Assessing Damages in Bodily Injury: The Desired Law and the Current Law’ [40]) ‘No money in the world will compensate for tortures of body and soul, on the reduced chances to start a family, or on the loss of the basic enjoyments of normal life’ (Justice Berinson in CA 541/63 Reches v. Hertzberg [25] at p. 126).  ‘How is it possible to assess, exactly or even approximately, in money or in monetary value the pain and the suffering or the sorrow and shame of a person whose arm or leg was cut off, or who walks but the worry eats away at his heart that his days are numbered?...’ (Justice S.Z. Cheshin in CA 70/52 supra, at p. 1254).  Despite this the Court makes an effort and tries as best it can to assess the damage and determine the compensation.  In assessing the damage occasionally attempts are made at standardization which distances the compensation from the real damage.  The Court has come out against these tendencies more than once.  Indeed, the non-economic damage is compensable.  Occasionally this damage is significant, and the injured is entitled to real compensation and not just comfort compensation (see recently CA 2055/99 Ploni v. Harav Ze’ev [26]).  The same is the rule with compensation when the non-economic damage is to one’s reputation.  The court must make an effort while examining each case on its merits, to assess the extent of the damage to reputation and determine that compensation that is capable, to the extent possible, of putting the injured in the situation he would have been in had the defamation not been published.  And note, I am not of the view that the case law that applies in compensation for the non-economic damage in bodily damage can also be automatically applied as to the non-economic damages in damage to one’s reputation.  Bodily injury is not the same as injury to one’s reputation.  However, comparison is possible and it must be done in suitable instances  (see John v. M.G.N. Ltd. (1996) [35]).

16.  The remedial compensation for defamation is intended to achieve three ends: consolution of the injured who suffered injury from the defamation; repair of the damage to his reputation; vindication of his right to his good name which was harmed due to the defamation (see Gatley, ibid [42] at p. 201).  In order to achieve these remedial objectives one is not to be satisfied with symbolic compensation, but also not award compensation which goes above the amount of damage that was caused.  The remedial compensation was not intended to just declare the injury.  It also was not intended to enrich the injured.  The remedial compensation was intended to award full compensation for the damage that was caused – no more and no less (compare CA 357/80 supra [23]).  Only in this way will it be possible – within the bounds of remedial compensation – to fulfill the proper (horizontal) balance between freedom of expression on the one hand and one’s reputation and privacy on the other.  And note, this symbolic compensation can serve as tool for declaration of the commission of the tort, but not as an expression of remedial compensation. Compensation which goes beyond the damage can be justified as punitive compensation, but not as remedial compensation.  It is also not to be said at all that the court must award a ‘high’ compensation in order to protect ones’ reputation.  The court must award full compensation which reflects the full extent of the damage – economic and non-economic–which is caused to the injured.  (See CA 492/89   Slonim v. ‘Davar’ Ltd. [27] at p. 835).

In awarding damages for defamation the court will consider, inter alia, the extent of the injury, the status of the injured in his community, the humiliation he experienced, the pain and suffering that were his lot and expected results of all these in the future.  The examination is individual.  ‘Rates’ are not to be set.  In each case the quality of the publication, its extent, its credibility, the degree of injury and the behavior of the parties are to be considered.  Indeed, the behavior of the injured before the publication and following it may constitute a means with the help of which his injury may be assessed.  Similarly the behavior of the tortfeasor may also impact the degree of compensation and its assessment.  Thus, for example, an apology for the defamatory words may reduce the damage they caused and thereby impact the degree of compensation (see section 19 of the law).  The severity of the injury to the feelings of the injured and his reputation is occasionally measured by the severity of the actions and expressions of the tortfeasor.  And note, this does not constitute punitive compensation.  These are aggravated damages which lead to increased compensation due to the behavior of the tortfeasor.  Thus, for example, a tortfeasor who knows that his words are not true and who makes every effort in court to prove their truthfulness, may cause aggravation of the damage to the injured and thereby increase the compensation he is entitled to.

18.  Does compensation for defamation fulfill a deterrent and educational role?  There is no simple answer to this question.  It returns us to the basic question as to the role of tort law.  Struggling with this question is beyond the scope of this judgment.  It will suffice if I state that even if the laws of compensation for defamation have an educational and deterrent role, this role is not sufficient to cause the remedial compensation to increase beyond its natural dimensions.  Indeed the educational and deterrent aspect make find a place of honor in the bounds of punitive compensation, but where there is not applicability to punitive compensation – as is the case before us – it is not within the power of the educational and deterrent aspect to increase the amount of compensation that would be received according to the rules as to returning the situation to its original state.  Within the remedial compensation the deterrent aspect and the educational aspect find expression in the very imposition of the duty of compensation, in the determination of the degree of compensation according to real criteria of returning the situation to its original state and in increasing the compensation where the behavior of the tortfeasor increases the damage.  Increasing the compensation for deterrent and education reasons beyond that which is necessary to return the situation to its original state will undermine the proper balance between the constitutional rights which are battling for supremacy in the framework of defamation laws.

19.  Frequently it is the media such as newspaper, radio or television which defame.  In this situation there is generally an exacerbation both in the damage to reputation (due to the circulation of the newspaper) and in the violation of freedom of expression (due to the newspaper being a forum and spokesperson as one).  These mutual ‘exacerbations’ balance themselves in the framework of the laws of defamation.  From here the approach that the newspaper as a tortfeasor does not have special status in assessing the compensation for defamation.  Justice Berinson discussed this in one of the cases, in noting:

‘I do not see a contradiction between protection of the individual’s reputation by awarding fair compensation for publication of defamation in the newspaper and ensuring freedom of the press. . .  The law draws reasonable and fair boundaries as to the permitted in this area of publication of defamation...  one who deviates from these areas must suffer the consequences.  And as to this a newspaper has no special status.  I would say the opposite.  Because of the large circulation of the news media and its great power to do damage is needs extra reining in. 

If there is sufficient self limitation – all the better; if not the court must bring this about by awarding appropriate compensation.  In the situation existing in this country, where at times the newspapers get caught up in sensationalism and then do not always check the means and deviate from the realm of the permitted according to the law, award of appropriate compensation is perhaps the most tested and certain way to brake this tendency.’  (CA 552/73 Rosenblum v. Katz [28] at p. 596).

Indeed, when the newspaper defames it must pay full compensation for the damage (economic and non-economic) that it causes.  The greater the circulation, the greater the damage might be, and the greater the compensation.  The behavior of the newspaper may increase the damages and the compensation.  However – apart from the question of exemplary damages – which does not arise in this appeal – it is not appropriate to establish special laws for when the tortfeasor is a newspaper.  The general law will apply in this case as well.  The educational and deterrent value – outside of the bounds of the punitive compensation – finds expression in the very imposition of liability on the newspaper and obligating it to pay full remedial compensation while increasing the compensation when the inappropriate behavior of the newspaper exaggerates the damages.

20.  Amendment no. 6 established (in adding section 7A (b) to the law) that:

‘In a trial for a civil tort according to this law the court is entitled to order the defendant to pay to the injured compensation which will not be greater than 50,000 NIS, without proof of damages.’

Both parties relied on this provision in their arguments.  This provision was passed after the incidents the subject of this appeal, and it does not apply to them.  Examining this provision therefore deviates from the bounds of this appeal.  It raises questions about interpretation and validity which are not simple.  It will suffice for us to say, for the purposes of this appeal, that the stance of the defendant is not to be accepted, according to which this provision establishes a maximum threshold for compensation without proof of damages.  The purpose of this provision is to establish a minimum threshold which relieves the injured from the need to prove his damage.

From the General to the Specific

21.  What is the remedial compensation to which the appellants are entitled?  In the episode before us the non-economic damage has been proven.  Damage to the appellant’s reputation in that it was written about her that she is a drug addict; severe injury to her feelings during her difficult times was proven, as it was hinted that the daughter was born with a birth defect due to the mother’s drug addiction.  The respondents refrained from minimizing the damage by publishing a correction.  They increased the damage by continuing to claim the truth of the publication when they knew, and even declared in the pre-trial hearing, that there was a mistake in the publication.  In this situation the compensation that was determined in  the Magistrates Court (100,000 NIS) is not high at all.  It was not appropriate to reduce it in the District Court.

The result is that we accept the appeal, overturn the decision of the District Court and reinstate the decision of the Magistrates Court.  The respondents will pay the appellants’ attorneys’ fees in the amount of 30,000 NIS, and will pay court fees – to be assessed by the registrar, as established in regulation 513 of the Civil Procedure Regulations 5744-1984.

 

 

Justice T. Or

I agree with the decision of the President.

 

 

Vice President S. Levin

1. I agree that the appeal should be granted, as stated in the decision of my distinguished colleague, the President.

2.  In my opinion the rule set out in CA 214/89 has a flipside to it: the limitation on the power of the Court to grant a remedy in order to prevent in advance the publication of allegedly defamatory material, requires that once it has been proven, in retrospect, that in fact we are dealing with defamation, the publisher will bear all the consequences which stem from the publication, meaning: the full measure of compensation for the violation of the privacy of the injured person, the humiliation he experienced, his pain and his good name.  I am of the view that the standards that have been acceptable until now in Israel for assessing the compensation in defamation suits do not reflect the desired law, and that subject to the detailed circumstances of each case, the level of compensation is to be very significantly increased.  In my opinion, this is even more so where the publication is in the media: Indeed, as a rule, one is not to prevent in advance the publication of a notice in the media outlets which merely might be defamatory, and this – based on general principles of freedom of expression.  Nonetheless, the raising of the appropriate standards for assessment of damages, where it turns out, in retrospect, that we are indeed dealing with defamation, serves to show the publishers the need to conduct a thorough examination before publication in order to avoid, as much as possible, damaging the reputation of the subject of the publication and his privacy.  Indeed, subject to the individual circumstances of every case, the level of compensation should reflect, on the one hand, the great weight that our society attributes to a person’s reputation, and also, on the other hand, the benefit to the publisher from a sensational publication that, after the fact, turns out to be defamatory, so that the violator will not end up benefitting.

3.  In the case before us, the petition was already filed, from the start, for an amount that does not deviate from the range of previous case law as to amount of damages, and I agree with my esteemed colleague, the President, that the amount awarded in the Magistrate’s Court is not at all high.  In light of what was already said above, I would not have intervened in the amount of damages even if in the case before us an amount that was significantly greater than the amount of 100,000 NIS had been awarded.

 

It was decided as per the decision of President Barak

 

25 Av 5761

14 August 2001