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Israel: Appeal by Journalist Held Liable for Defamation of Netanyahu Rejected

(June 6, 2019) On January 28, 2018, the Tel Aviv District Court rejected an appeal by a journalist against a circuit court decision holding him liable for defamation under Israel’s Prohibition of Defamation Law, and imposing on him compensation in the amount of NIS 60,000 (about US$16,627) for defaming Prime Minister Binyamin Netanyahu and NIS 40,000 (about US$11,085) for defaming the prime minister’s wife. (Prohibition of Defamation Law, 5725-1965, SEFER HAHUKIM [SH, BOOK OF LAWS] (official gazette) 5725 No. 464, p. 240, as amended ; CA (TA) 15267-09-17 Serna v. Binyamin & Sara Netanyahu (decision by Judge Avigail Cohen, Jan. 16, 2019), Nevo Legal Database (in Hebrew, by subscription); Appeal Against Decision in Civil Case (TA) 56211-03-16 Netanyahu v. Serna (decision by Judge Azaria Alkalai, June 11, 2017).)
The appeal centered on a decision rendered on June 11, 2017, by the Tel Aviv Circuit Court accepting a defamation suit filed by Prime Minister Netanyahu and his wife against the appellant—a journalist and a novelist—in connection with the publication of two posts on his Facebook page. (CA (TA) 15267-09-17, para 3.)
In the first post the appellant described the following as “an event that happened”:
…[w]hen at night the heavy prime minister’s convoy stops, four black vehicles and more and more security guards and vehicles, and from it escapes in the dark to Highway 1, shouting, not a young man, who is the cause of everything, because one woman does not want him to stay with her in the car and ridicules all the security and actually the whole country, it’s part of life. Make every possible noise so that we will not hear that everything is going up in flames. Beat the drums. ( Id. (all translations by author).)
The second post depicted a distorted picture of the prime minister, wearing a hoodie, his hand stretched out to get a ride, with the notation “… on the roadside waits a tiny tyrant in the dark to hitchhike. Take him.” ( Id.)
Circuit Court Decision
The circuit (lower) court determined that the appellant had published the posts with the intention of harming the respondents and that there was no reason to apply different rules to Facebook publications than to other types of media. The court held that the first post did not constitute an expression of an opinion but purported to be factual (“an event that happened”). (CA (TA) 15267-09-17 Serna v. Binyamin & Sara Netanyahu para. 5 (summarizing the lower court decision).)
The level of criticism public figures are expected to tolerate, the lower court held, should be higher than that of those who are not public figures. This is not the case, however, when a publication that purports to be factual in relation to such figures is incorrect. ( Id. )
The lower court disagreed with the appellant’s claim that the suit against him should have been rejected because of its chilling effect on the appellant’s or others’ willingness “to engage in public debate, for fear of the material and emotional resources needed for defense against such a suit …” ( Id. para 11.) The circuit court concluded that suits designed to silence the defendant usually involve economic disparity between the plaintiff and the defendant, exaggerated amounts claimed, and baseless accusations, none of which existed under the circumstances. ( Id. )
Appellant’s Claims
The appellant claimed that the respondents’ suit against him was intended to silence him and therefore should be rejected. He further alleged that the two published posts concerned minor issues, reflected general truth, and were published in good faith. Lastly, he claimed that the application of the Defamation Law should vary depending on whether the publication was made in traditional media (in print or by broadcast) or by social media (such as Facebook). ( Id. para. 8.)
Decision on Appeal
District Court Judge Avigail Cohen rejected the appellant’s claim that the suit was designed to silence him and therefore should be rejected. She held that Israeli law does not recognize the term “silencing suit.” Previous attempts to pass legislation in this regard, she noted, had failed. (One bill’s explanatory notes stated that it was inspired by the Anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation adopted in in the United States by 25 states.) The circumstances of the publication that are the subject of the appeal, in Judge Cohen’s opinion, would not qualify for a silencing-suit defense even if such were recognized under the law, because the suit centered on a publication that purported to be factual, not an expression of criticism or an opinion. The amount requested as compensation did not exceed the maximum statutory amount that may be imposed without proof of harm under the law, and there was no factual disagreement that the appellant continued expressing his opinion on the respondents as he did both before and after the publication of the defamatory posts. No additional suits had been filed against him in connection with other publications. ( Id. para. 11.)
According to Judge Cohen the determination of whether an act constitutes the publication of defamatory content under the Defamation Law does not depend on the type of media in which it is published. ( Id.  para. 12.)
Under the Defamation Law, proving that a publication is true or made in good faith may serve as a defense from liability. In this case, however, the truthfulness of the publication had not been proven. As the content of the publication was factual rather than an expression of opinion or criticism, the judge determined, the appellant could not enjoy a defense of good faith. ( Id. para. 15.) The appellant’s claim that the lower court should not have imposed compensation on him because he had no intention of harming the respondents was also rejected. The Court held that
[i]n the notice of appeal, the appellant stated that he wished to end the tenure of the plaintiff as prime minister of Israel and that this wish could not be [considered] an “intent to harm” … . Except that for the purpose of awarding compensation …, we are definitely dealing with a wish that shows a desire to harm the plaintiff – in his public office…
It is a democratic country and one can criticize a prime minister. It is also possible to want to change the government, and the court does not serve as thought police.
However, when we deal with defamation, we examine for the purpose of determining compensation whether the publication was intended to harm the subject of the publication, and indeed, on the basis of the publication’s language and the testimonies of the parties, the factual conclusion that there was intent to harm is the correct conclusion. ( Id. para 16(3).)
The appeal over liability under the Defamation Law as well as the amount of compensation levied was rejected. The District Court held that the posts published by the appellant were defamatory and that the compensation amount determined by the circuit court was not unreasonable when considering the totality of the circumstances. The District Court imposed additional court and legal representation fees on the appellant. ( Id.  para 16(4).)

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