On November 16, 1965 − 46 years ago this week − the first and, to date, last general strike of the Israeli press took place. Not a single newspaper was printed, and aside from state-run radio, local citizens were left without sources of news and information.
This unique strike was called as a protest against censorship. Not the government’s military censorship, but rather the one that derives from the threat of a libel suit. Through their strike, the journalists attempted in vain to bring about the abolition of the Defamation Law that had been passed earlier that year. As described by Dr. Joshua Rotenstreich, then-head of the Israel Bar Association and subsequently the president of the Israel Press Council, the law engendered the feeling that “a noose was increasingly tightening around the neck of freedom of expression.”
At present a heavy-handed majority in the Knesset seeks to further tighten this noose by means of an amendment to the law that would make it possible to sue a newspaper for libel, not only for commensurate compensation for any tangible damage caused by the publication, but for an additional sum of NIS 300,000 − without having to prove damages!
Of course, it is not only journalists who would suffer from this arbitrary sanction. Former Supreme Court President Meir Shamgar warned many years ago of the danger posed to democracy and to our moral code if a legal option was created to terrorize the media with the threat of libel suits.
That is what Shamgar wrote when, in a minority opinion, he recommended to reject a libel suit submitted by the Israel Electric Corporation and its CEO against Haaretz, and declared, “Affording the possibility of voicing criticism of the actions of the government and of institutions, and their representatives and employees, is an indispensable prerequisite for the maintenance of proper democratic administration. The existence of effective and free criticism of the practices and behavior of public authorities is a critical means of correcting distortions. If the citizen feared that any factual inaccuracy was liable to involve him in legal procedures, he would not dare to protest, and criticism would be stifled.”
The Moshe Katsav affair is an outstanding illustration of the realization of the danger of which Shamgar warned. Many observers are confused − and furious − as to why so many reporters who were in possession of suspicious information about him kept it to themselves for so many years. The explanation, it seems, has to do with the Defamation Law and with fears harbored by the reporters, and particularly by their editors and employers, of libel suits. The heavy price of this fear and the self-censorship that resulted from it was paid, as we now know, not by the journalists but by all of the women whom Katsav continued to exploit and abuse undisturbed − all the way to Israel’s presidential offices.
Should the new amendment be passed, heaven forbid, there would be even less willingness by journalists, and even more reluctance from their employers, to expose crimes or failures of public figures and thus undertake the risk of being served with libel suits. What publisher or shareholder in a media organization would be willing to take on the risk of having to pay NIS 300,000 in compensation? Via this legislation, politicians and their friends basically acquire total immunity from criticism and condemnation. It is obvious why such immunity is good for politicians − and this is also evidently the reason for the support voiced by many of them for the legislative initiative − but the price of unexposed corruption and failures would be paid by the victims and by the entire public.
It should be emphasized that, according to the draconian law against which the journalists struck in 1965, the burden of proof in a defamation case is placed entirely on the journalist. This is a heavy burden, at times too heavy to bear. As Supreme Court Justice Theodor Or once explained, “There is a difficulty in proving the truth when the witnesses who have gathered the information in the newspaper’s possession are not interested in repeating it in a public legal hearing, or wish to remain unnamed. The more sensitive the story, the greater the chance of a potential witness not wanting to get on the stand, and seeking to maintain secrecy.”
Justice Or further commented that if American law were similar to ours, it is almost certain that The Washington Post would never have dared to expose the Watergate affair, as there is no chance at all that its sources, and primarily the famed “Deep Throat,” would have been prepared to testify in court in the paper’s defense.
Yet, to the good fortune of American democracy, and to the bad fortune of corrupt President Richard Nixon, the legal situation in the United States is completely different from that in Israel. There, the burden of proof in a libel suit is placed entirely on the plaintiff and not on the defendant. An American politician who sues an organ of the media that exposes his shameful misdeeds is required to prove that the account published about him is specious, and also that the journalist slandered him either with malice or as a result of criminal negligence. The U.S. Supreme Court has explained this, arguing that discussion of public officials must include, as befits a democracy, criticism and “vehement, caustic and sometimes unpleasantly sharp attacks,” whereas Israeli law demands that the journalist to prove that he spoke the truth. Even if he was not negligent in his fact-checking but nevertheless made an innocent mistake, he will lose the case.
Former secretary general of the Israel Press Council Avi Weinberg was correct, then, when he stated that those parties in Israel that wish to impose the sort of exorbitant compensatory fines that are the norm in America must also pass the burden of proof from the journalist over to the plaintiff − as in America. Except that the chance of his proposal being adopted here is practically nil, of course.
The initiative to amend the Defamation Law is not the only one that threatens to deal a lethal blow to freedom of the press in general and freedom of the investigative press in particular. There are other initiatives that are intended to prevent the public from receiving information concerning suspicions and suspects under police investigation. In the past decade, such initiatives have focused on expanding the authority to issue bans on publication of names of people under investigation. But last summer they set a new high (or perhaps it would be better to say a new low) when the Knesset Constitution, Law and Justice Committee approved for second and third readings an amendment to the law that prohibits revealing the identity of any suspect during the first two days of his or her investigation. Currently, a suspect can request the court to forbid publicizing details of his identity, but according to the amendment, he would no longer have to do so: Instead, the journalist would be required to petition the court and request its permission to publicize such information.
If this bill is enacted, Israel would be the only democracy in the world that would have not only military censorship, but also censorship vis-a-vis criminal investigations. Under the aegis of such censorship it would become easier for high-ranking officials and other individuals to use their connections to disrupt investigations in their early, critical stages. In cases of complaints of sex offenses, the blackout on the identity of the suspect would help him, as it would reduce the chance of additional complainants presenting their cases, and thereby reinforcing the evidence against him (as occurred in the investigations of Yitzhak Mordechai and Katsav). Again, the result would be very good for the suspect, but very bad for his victims and for the public at large.
“Sunlight,” famous Jewish-American Justice Louis Brandeis taught us, “is said to be the best of disinfectants,” but our lawmakers prefer to close the shutters to ward off the disinfecting sun, and let the rot spread.
There is, of course, a common denominator between initiatives related to freedom of the press and those intended to harm the independence of the Supreme Court. In a crippled democracy such as ours, in which there is no complete, rock-hard constitution, the independence of the judicial system, with the High Court of Justice at its head and the free functioning of the investigative press, are the sole guarantees left to us of equality before the law.
The combined blow struck by the legislators to the press and the court are intended, therefore, to enable the parliamentary majority in power to place itself and its benefactors above the law. “Power tends to corrupt,” cautioned Lord Acton, “and absolute power corrupts absolutely.”
Should the aforementioned legislative initiatives be realized, heaven forbid, the power of the ruling majority here would become absolute and it would be difficult to find any other institution with the ability to arrest its tyranny and corruption.
The writer is a legal commentator for Israel Radio and a senior lecturer at Hebrew University. His book, “The Freedom of the Journalist and Freedom of the Press in Israel” was published by Open University Press.
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