Three trends stand out regarding the nature of the defamation suits that have been filed in the courts in recent years. Their combined effect is creating huge uncertainty for both the lawyers who handle such cases and for the parties to the litigation.
In other areas of litigation, lawyers and clients can make a reasonable assessment of the prospects of their suit and how much they may stand to win or lose if the case goes to trial.
But when it comes to defamation cases, in which the damage is a measure of the harm for untrue things said or written about the plaintiff by the defendant, predicting the outcome it virtually impossible.
The first trend that is apparent in this area of litigation is the rise in the number of suits filed without any legal basis, in an effort by the plaintiff to simply intimidate the defendant.
The second is the increasing amount of damages awarded by the courts.
The third trend is an increasing lack of uniformity in how the courts handle these cases.
Together, the trends could potentially deter citizens from speaking out on issues of public concern, out of fear of exposure to potentially expensive, long-running defamation suits whose outcome is uncertain.
SLAPPing down the critics
The Association for Civil Rights in Israel recently issued a survey of the filing of defamation suits aimed at curbing criticism and freedom of expression on issues of public concern, or SLAPPs − Strategic Lawsuits Against Public Participation. According to the ACRI report, “The Silencer: Libel Litigation as a Threat to Free Speech,” the number of threats to file such suits and actual suits is increasing in Israel.
SLAPP suits are generally filed by individuals or organizations with significant economic power. While the likelihood of obtaining a judgment in their favor in these suits, which are sometimes unfounded, is small, they nevertheless have a chilling effect on criticism from members of the public.
In addition to the effect on the specific target of a suit, the litigation serves to deter others from speaking out on what may be an important public issue.
Sometimes the damage claims specified in the suits are intentionally huge, in order to increase the prohibitive effect.
ACRI argues that the trend has not received the public attention it deserves and has been all but ignored as a problem by the courts. As a result, says ACRI, the public is much more likely to hear the views of individuals and organizations with the means to fund public relations and advertising campaigns than their detractors.
In one recent well-publicized case, members of the Ofer family − which has a huge empire of business interests − sued journalist Miki Rosenthal, who in January was elected to the Knesset as a representative of the Labor Party.
The Ofers sought to prevent the screening of Rosenthal’s documentary “The Shakshuka System,” which cast the family’s activities in a negative light. The Ofers claimed the film was insulting.
While that suit was brought against a veteran journalist, most defamation claims target ordinary citizens and social activists. Judges do not generally single out suits aimed at silencing public criticism, nor do they abbreviate the expensive and lengthy legal process they entail.
Most cases settled out of court
“The number of SLAPP suits in which at the initial evaluation stage the court convinces the plaintiff that it would be better to withdraw his lawsuit immediately is small,” noted the ACRI report, the lead author of which was attorney Avner Pinchuk. “Most cases end with a settlement of some kind between the plaintiff and defendant in a manner that achieves the effect of silencing either the defendant or other critics of the plaintiff.”
As the phenomenon has grown, so has the chilling effect on freedom of speech of even a warning letter, the report noted, adding that such letters are more common than the actual filing of a lawsuit.
The average award to plaintiffs in defamation cases of all types last year was substantially higher than in previous years: NIS 45,000 in 2012, NIS 12,500 more than 2011. The average amount awarded in magistrate’s courts increased from NIS 32,800 in 2010 to NIS 36,100 in 2012.
Attorney Zvi Gelman, head of defamation litigation at Tel Aviv law firm Ariel Shemer & Co., takes a different view. His firm generally represents the plaintiffs in defamation suits, and he is pleased by the increasing amounts the courts have been awarding.
It reflects a recognition by the courts, he says, of the “supreme value” placed by society on a person’s reputation and the “huge damage” caused when it is sullied.