אמת, שקר ומה שביניהם – התפתחויות בדיני לשון הרע בשנת תשע"ב

תקציר

The main development in Israeli libel law in 2012 took place in the matter of Doe vs. Dayan-Orbach (further hearing pending). In this case a journalist published a journalistic investigation on public matters of whose correctness she was not certain and which was subsequently determined false. The three-judges panel expanded the scope of existing libel defenses. Two justices held that in such cases, publishers may raise the “justification” (truthfulness) defense. All three justices held that journalists have a public obligation to report on public matters and therefore may enjoy “a qualified privilege,” provided that they act according to a responsible journalism standard, that the publication was reasonable, and that their actions were bona fide. The majority opinion creates serious problems. It combines the factual defense of justification with the qualified-privilege defense that rests on a mental and emotional basis; the extent of its applicability is not clear; it deviates from existing Israeli law and is exceptional in comparative law; and, most serious of all – this defense does not attain the goals it aimed at and encourages journalists to publish potentially false publications. The expansion of the qualified-privilege defense as suggested by Justice Fogelman is, therefore, preferable. However, this defense should be applied narrowly so that the press does not use its powers lightly. Alongside this development, whose meaning is the court's preference of freedom of speech at the expense of honor, it appears that the Knesset acted in precisely the opposite direction: This year, the Courts Act was amended to prevent the publication of suspects' names until after they are arraigned before a judge. An attempt was also made to raise the sums of damages for libel. These legislative actions demonstrate the existing gap between the stances of the legislature and court in the matter of proper balance between freedom of speech, and honor and respect.