Ilana Dayan - Daniel Bar-On - 09022012
Ilana Dayan Photo by Daniel Bar-On
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Limor Edrey
Captain R. Photo by Limor Edrey

In a dramatic reversal of a lower court ruling, the Supreme Court on Wednesday acquitted journalist Ilana Dayan of libeling an Israel Defense Forces officer known as Captain R.

But the justices found that Telad, the television company behind Dayan's "Uvda" ("Fact" ) program, did commit libel via a tendentious promo for the show, and ordered it to pay R., now a major, NIS 100,000 in compensation.

The case began when Dayan broadcast an investigative report about the killing of Iman al-Hams, a 13-year-old Palestinian girl who was shot to death by soldiers at an IDF outpost in the Gaza Strip in October 2004. Inter alia, the report implied that R., who was in command of the outpost, had "confirmed the kill" - meaning he approached al-Hams after she fell and shot her again at close range.

R. was eventually cleared by a military court after the key witness against him, his lieutenant, broke down under cross-examination and admitted to having fabricated the story and lied to investigators. R. then sued Dayan and Telad for libel. He argued that excerpts from recordings of the outpost's communications network were tendentiously selected and often taken out of context; that video footage taken on a different occasion was integrated with the audio clips from the day of al-Hams' death in a way that misled the viewer; and that Dayan's own statements were presented as facts rather than opinions.

In the Jerusalem District Court, R. won a sweeping victory: Judge Noam Sohlberg, who will soon be moving up to the Supreme Court, ruled that Dayan had indeed committed libel, portraying the officer's conduct as "evil and cruel," and awarded him NIS 300,000 in compensation.

On Wednesday, however, Justices Eliezer Rivlin, Uzi Vogelman and Isaac Amit overturned this decision. Dayan was entitled to the defense of having published the truth, they wrote, because her report indeed reflected the facts as they were known at the time, even though the military court proceedings later proved them false. She based her report on serious and reliable sources and made reasonable efforts to verify the information, they added, and she published only after she herself was convinced that it was true.

In his original ruling, Sohlberg had written that "the journalist is the investigator, the judge and sometimes also the hangman," and therefore, journalists must investigate and weigh the facts just as judges do. But the Supreme Court completely rejected this.

"It is hard to imagine that the media should be held to a higher standard than is demanded of the investigative agencies and the prosecution," Amit wrote. "For under normal circumstances, the media do not have the ways and means available to the investigative agencies and the prosecution."

The ruling also greatly expanded the scope of another defense included in the libel law: that the journalist was acting in good faith to do his job as a journalist. That defense has until now been fairly limited, but such a narrow definition is inappropriate to the modern era, the justices wrote.

Until now, the rule was that a report did not benefit from the good-faith defense just because it dealt with an issue of public interest. One of the reasons given for this narrow interpretation in earlier rulings was that if a citizen had a complaint, he ought to take it to the relevant state agency, not the media.

"Today, it is clear to everyone that the role of journalists in a democratic society no longer ends with sending messages to state agencies," wrote Rivlin. "Journalists must expose corruption and criticize the government, as well as private entities active in the economy. Their role is to shed light on any information reaching them that indicates flaws in the conduct of public agencies and to bring it before the public."

Vogelman stressed, however, that the good-faith defense will apply to a media report on a "significant" public issue only if the journalist practiced "responsible journalism" in preparing it - meaning he must have checked the facts, and the report must be fair, reasonable and proportionate.

Rivlin also lambasted Sohlberg's decision to make Dayan publish an apology. As long as a reporter did not act maliciously, and believed in the truth of his report, there is no reason to force him to publish a correction that essentially expresses an opinion he doesn't agree with, Rivlin wrote. "The obligation to publish a correction that is not to the taste of the publisher is like saying that the publisher is forbidden even to think what he thought," Rivlin wrote. Such an obligation would be "a grave and severe blow to freedom of expression and freedom of conscience."

The justices agreed with R. that the editing of the report had been flawed, and at times even in "shockingly bad taste"; they also agreed that some of Dayan's comments were out of place. But while they said Dayan should have exercised greater restraint, given the obvious difficulties in ascertaining the whole story, they did not feel this amounted to libel.

R.'s family responded that the court opted to retroactively change the legal rules in force at the time the report was actually broadcast, and thereby "expanded, in an unprecedented manner, the protection available to journalists in circumstances in which they publish factually false reports."

The ruling "empties the libel law of all content," it added, "and gives expansive, almost absolute, protection to journalists who publish reports on public issues, even if what they publish is factually false."

R. and his family continue to feel that Dayan and Telad did them a great injustice, the statement said, and they are considering asking the court to rehear the case with an expanded panel of justices.