Sohlberg Taught a Lesson on Press Freedom

Verdict restores freedom of expression to its rightful place in 'the top layer of basic rights.'

Jerusalem District Court Judge Noam Sohlberg, who is soon slated to join the Supreme Court, suffered a cold shower from Wednesday's Supreme Court ruling on a high-profile libel case.

Sohlberg had ordered journalist Ilana Dayan's "Uvda" ("Fact" ) program and the television company behind it, Telad, to pay compensation to one Captain R. for a 2004 broadcast that accused him of "confirming the kill" of a Palestinian girl near an outpost in the Gaza Strip. But Justices Eliezer Rivlin, Uzi Vogelman and Isaac Amit overturned his ruling on Wednesday in a verdict that will long be studied in both law and journalism schools.

Judge Noam Sohlberg
Daniel Bar-On

The verdict restored freedom of expression to its rightful place in "the top layer of basic rights." It also revolutionized the application of libel law to investigative journalists. And in the process, it gave Sohlberg a lesson in freedom of the press.

The justices ruled that Dayan is not obligated to pay any compensation to Captain R. It's true that a military court acquitted him of "confirming the kill" shortly after Dayan's broadcast. Nevertheless, the Supreme Court said, Dayan's report appeared to be "true at the time," and Dayan had acted in good faith to cover an issue of public importance. Therefore, even though the broadcast undoubtedly injured Captain R.'s reputation, Dayan is covered by the defenses included in the libel law.

In contrast, the court ruled that Telad did have to pay NIS 100,000 in compensation, due to a tendentious promo.

Rivlin, who will shortly be retiring, examined Dayan's report in detail. From reading his verdict, it's hard to avoid the impression that he and Sohlberg, the outgoing and incoming justices, are at opposite ends of the spectrum with regard to freedom of the press and the media's role. For instance:

* Sohlberg ruled that once Captain R. had been indicted in a military court, there was no public interest in an investigative media report, because the facts would be clarified in court. Rivlin deemed this approach "unacceptable."

* Sohlberg held "Uvda" to the same standard of factual accuracy as a court. As a magistrate's court judge, he once wrote that "the journalist is the investigator, the judge and also the hangman," and therefore, "as a judge, he must examine and weigh, consider carefully, and be accurate about every finding," so as "not to sentence a person to disproportionate punishment." Rivlin, in contrast, wrote that "under no circumstances should the journalist be required to examine the information that reaches him in the same way it would be examined by a court."

* Sohlberg accused Dayan of tendentious editing, such as combining recordings from the outpost's communications network with video footage taken on a different occasion. Rivlin agreed that some of the editing was in "shockingly bad taste," but nevertheless said editors must be given some room to maneuver. In a clear swipe at Sohlberg, he added that "it isn't the court's job to propose alternative editing."

* Sohlberg drafted a correction and required "Uvda" to air it. Rivlin overturned this demand, saying a journalist must not be forced to publish a correction he doesn't believe to be true.

But even more important than the clash of values between the outgoing and incoming justices was the dramatic revolution the verdict fomented. Ever since the 1969 case of Israel Electric Corporation v. Haaretz, the journalist's obligation to publish information of public interest has been an extremely limited defense against libel. But Vogelman, in his concurring opinion, essentially abolished this earlier ruling - a fact of revolutionary significance to the journalistic profession in Israel.

The Supreme Court ruled that the press has a "mission" to report information of "significant public interest." Therefore, such a report has immunity from libel suits as long as the journalist practiced "responsible journalism" while preparing it.

The court didn't define a "significant public interest," but Vogelman did offer guidance on what constitutes "responsible journalism": The journalist must check all the facts, verify them according to accepted professional standards and present them in a fair and balanced way.

Vogelman's approach, which was influenced by developments in Britain and Canada, will enable journalists to defend themselves against libel suits even when they can't reveal their sources. The Supreme Court thereby also reversed another Sohlberg verdict, in which he ordered a media outlet to pay compensation in a libel suit because it relied on anonymous sources that it refused to reveal.

Nevertheless, Amit's concurrence added a word of caution: The new legal principle, he said, must be applied carefully to prevent "its abuse by the media."

Read this article in Hebrew