Compensation for Defamation, an Empirical Study

תקציר

In recent years, the protection of personal rights, namely, reputation, privacy, autonomy, the right to personal commercialization (the right to publication) and others, has attracted considerable attention in Israeli society. Alongside the academic debate dealing with ethical issues and analyzing the theoretical basis for each of the personal rights, a fundamental debate is underway in an effort to produce a practical change in the legal rules governing these matters. Actively participating in this discussion are our elected representatives in the legislature, some of whom are working vigorously to strengthen the group of classic personal rights, and in particular the right to reputation, on one side, and the representatives of the "media", the print media and broadcast media, the Press Council and other public bodies on the other side. The growing public discourse, ambivalent case law, political constraints and technological developments in this field combined with reasons ensuing from the lengthy time that has elapsed since the enactment of the Prohibition of Defamation Act, 1965 – have led to an increase in the flow of proposals for amending this law. The arguments and working assumptions used by the parties in this important debate suffer from one significant disadvantage – they lack an adequate factual basis. Both those desiring a harsher legal response to damage to reputation and those who are concerned about the fate of the free investigative press – have failed to present any factual data about how things actually happen "on the ground". In this study we seek to meet the need for empirical data that will paint a factual picture of the relevant Israeli case law and the manner in which the courts perceive the value of reputation and the financial balancing point at which compensation for damage to reputation may be provided on the one hand while safeguarding equally important conflicting interests on the other hand. The purpose of the study is to examine the data relating to awards of compensation for damage to reputation in Israeli law during the last eight years: If the number of defamation suits upheld in recent years where compensation was awarded has increased or decreased; if the amount of compensation awarded today by the courts in Israel in cases where the claim has been upheld on the grounds of breach of the Prohibition of Defamation Act when the defendant has been held responsible for the defamatory publication has increased or decreased; what is the accepted "price tag" for damage to the reputation of an elected official compared to the "price tag" for damage to the reputation of an ordinary person; what is the value accorded to reputation; what is the amount of compensation imposed on the media when it publishes defamation; what does the court regard as a suitable amount of compensation for damage to reputation in general and on what basis is that amount determined. In order to present its findings, the article opens with a review of the principles of compensation – those originating in the law and those derived from case law – for damage to reputation under tort law in general and according to the Prohibition on Defamation Act, in particular. Following this, the article re-introduces the principle of compensation without proof of damage, one of the innovations of the Prohibition on Defamation Act. After this, the article explains the research methodology and presents the findings. Finally, the article offers some general conclusions based on the research findings and identifies other possible approaches for future studies for which this study can provide a platform. The principal importance of this study is to create a broad fund of factual empirical data on which it will be possible to base in the future both more coherent and consistent case law and better founded and more realistic legislation.