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Defamation Law in Turbulence: Does Israel Need ‘Libel Reform’?
Published online by Cambridge University Press: 05 March 2013
Abstract
Among the various bills proposing amendments to Israel's Defamation (Prohibition) Law that were presented to the 18th Knesset, the most controversial one is the bill proposing an increase in the caps on statutory damages (without proof of special or general damage). The current NIS 50,000 cap (NIS 100,000 when the publication was intended to cause injury) will be replaced, if the bill is approved, by a NIS 300,000 cap (NIS 600,000 when the publication was intended to cause injury). This proposed massive change has ignited a heated public debate. The bill, according to its proponents, is targeted principally at the media. Its aim is deterrence and even punishment, accomplished by attaching a higher price tag to libellous publications while focusing on remedies and leaving liability tests (including defences) untouched.
I claim that this bill is both unnecessary and detrimental.
Based on case law from the eight-year period 2004–11 on damages awarded by Israeli courts in defamation cases – both damages awarded ‘without proof of damage’ (the plaintiff does not need to prove damage caused by the publication) and damages awarded for ‘general damage’ (some general damage needs to be proved) – I conclude that the spectrum of judicial discretion is sufficiently broad to accommodate any level of deterrence seen fit by the courts in any circumstances. The fact that average damages awards do not reach the statutory caps indicates that, for all practical purposes, legislative intrusion in the manner proposed is erroneous. As to the normative standards the bill strives to convey, I maintain that absent reasonable justifications based on identifiable changes in cultural, social or other circumstances over time, the attempt to change the currently accepted balance between the rights of reputation and freedom of speech in Israeli defamation law in terms of damages awards is also erroneous.
Even if some modification of the current balance between reputation and free speech, as a result of specified changes in circumstances, do indeed appear to be necessary, the particular content, form and measure of this specific bill – which have yet to be examined and assessed – do not seem to provide the right approach to achieve such modifications.
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References
1 Defamation (Prohibition) Law, 1965 (Israel) (Defamation (Prohibition) Law).
2 This was an investigative television film by Miki Rosenthal, broadcast on 28 July 2009. Shakshuka is a special Israeli dish (originally from Morocco), a mixture of eggs and vegetables. The idiom ‘Shakshuka Method’ was coined by one of Israel's leading lawyers to portray the special ‘mixture’ of money, power, politics and media in Israeli society. See Merav Yudilevich, ‘The Ofer Family Sues Miki Rosenthal’, 13 July 2009, http://www.ynet.co.il/articles/0,7340,L-3745939,00.html.
3 See, for example, the threatened defamation claim by one of Israel's television network owners (Sheldon Adelson) that led to a live apology by the network (Channel 10) and the resignation of one of the network's leading anchormen: Ran Boker, ‘Guy Zohar Resigns from Hosting “The Week” Show’, 9 September 2011, http://www.ynet.co.il/articles/0,7340,L-4120113,00.html. See also the defamation suit filed by Prime Minister Netanyahu against an Israeli television network (Channel 10) with regard to his financial affairs: Mark Schon, ‘Bibi Tours: The Prime Minister Files a NIS 2 Million Law Suit against Channel 10 and Ma'ariv’, 29 March 2011, http://www.calcalist.co.il/local/articles/0,7340,L-3513161,00.html.
4 Draft Bill Amending the Defamation (Prohibition) Law (Preventing the Misuse of the Legal Proceedings) (Private Bill) 2010 P/18/2403 (Israel); Draft Bill Amending the Defamation (Prohibition) Law (Uncovering Anonymity) 2010 P/18/2476 (Israel); Draft Bill for the Establishment of the National Fund for Protection of the Public Right for Information (Private Bill) 2011 P/18/3839 (Israel); Draft Bill Amending the Defamation (Prohibition) Law (Defamation of a Group and State Authorities) (Private Bill) 2011 P/18/2937 (Israel); Draft Bill Amending the Defamation (Prohibition) Law (Expansion of the Obligation to Inform regarding Further Development) (Private Bill) 2011 P/18/2872 (Israel); Electronic Commerce Draft Bill (Maintaining Confidentiality in Use of Electronic Documents) (Private Bill) 2011 P/18/3418 (Israel); Draft Bill Amending the Defamation (Prohibition) Law (Effective Date for the Defence of a Truthful Publication) (Private Bill) 2012 P/18/4117 (Israel).
5 The Israeli Defamation (Prohibition) Law and the new bills have attracted international interest as well. See ‘News: Defamation in Israel – Are the Proposed Amendments to the Law Objectionable?’, 3 December 2011, http://inforrm.wordpress.com/2011/12/03/news-defamation-in-israel-the-proposed-amendments-to-the-law/#more-12766. cf Israeli newspapers: Ido Baum, ‘The Silencing Law Will Produce More Rapist Presidents’, 23 November 2011, http://www.themarker.com/news/1.1573375; Zelo Rosenberg, ‘Some Are Worth More Than Others’, 26 November, 2011, http://www.nrg.co.il/online/1/ART2/310/005.html. For a different view see Yedidia Meir, ‘News, Newspapers and Media, Enough of the Bitter Tone, Enough Silencing’, 2 December 2011, http://www.bhol.co.il/Article.aspx?id=35012.
6 Strategic Lawsuits Against Public Participation. See Michael Birnhack, ‘SLAPP 2.0’, 18 July 2011, http://www.the7eye.org.il/DailyColumn/Pages/190711_SLAPP_2_point_0.aspx.
7 Protection of reputation under Israeli law is achieved mainly through the Basic Law: Human Dignity and Freedom, 1992. The tort of negligence is contained within the Civil Wrongs Ordinance, 1947 (Israel) (CWO 1947).
8 Draft Bill Disclosure of User Information on an Electronic Media Network (No 421) 2011 HH 36 (Israel).
9 Electronic Commerce Draft Bill (Private Bill) 2011 P/18/3418 (Israel).
10 Draft Bill Amending the Defamation Law (Amendment No 10) (Expansion of Remedies) (No 415) 2011 HH 22 (Israel).
11 CA 8345/08 Ben Natan v Bachri (not published, judgment delivered on 27 July 2011).
12 Draft Bill Amending the Defamation Law (Additional Remedies and Additional Causes of Action) (Private Bill) 2010 P/2584/18 (Israel): the statutory cap offered here is NIS 300,000 (approximately US$80,437 or £51,264 as at end-January 2013) and twice this sum in malice cases; Draft Defamation Bill (Amendment – Compensation without Proof of Damages) (Private Bill) 2010 P/2332/18 (Israel): introducing the NIS 500,000 cap (approximately US$134,062 or £85,440 as at end-January 2013) and twice the sum in malice cases. The two proposed bills were amalgamated, following the debate in the Knesset held on 10 October 2011, into the Draft Bill Amending the Defamation Law (Amendment No 10) (Expansion of Remedies) (n 10).
13 Approximately US$13,406 or £8,544 (as at end-January 2013).
14 Ashkenazi, Amit, ‘Compensation Without Proof of Damages’ in Birnhack, Michael and Pessach, Guy (eds), Authoring Rights: Reading the Israeli Copyright Act (Nevo Publishing 2009) 573, 583Google Scholar. The author deals with a similar statutory cap in the Copyrights Law, 2007, and contends that the issue of compensation should be examined together with the issues of liability and defences.
15 In New York Bill No A09652B designed to amend the civil practice law and rules in relation to enforceability of certain foreign judgments (‘Rachel's Law’, named after Dr Rachel Ehrenfeld, author of Funding Evil: How Terrorism is Financed; also known as the Libel Terrorism Protection Act). The proposed bill was approved:http://assembly.state.ny.us/leg/?default_fld=&bn=A09652&term=2007&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=. Similar laws have since been passed in California, An Act to Amend ss 1716 & 1717 of the Code of Civil Procedures Relating to Judgments, Senate Bill No 320, ch 579, 2009, http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0301-0350/sb_320_bill_20091011_chaptered.pdf; Tennessee, An Act to Amend the Tennessee Code, House Bill No 3300, Public Ch No 900, Senate Bill No 3589, 2010, http://state.tn.us/sos/acts/106/pub/pc0900.pdf; Utah, Grounds for Nonrecognition of Libel Judgments, Utah Code 78b-5-320, http://www.lawserver.com/law/state/utah/ut-code/utah_code_78B-5-320; Florida, An Act Relating to Grounds for Nonrecognition of Foreign Defamation Judgments amending sec 55.605, House Bill No 949, 2009, http://laws.flrules.org/files/Ch_2009-232.pdf; Illinois, An Act Concerning Civil Law, Public Act 095-0865, 2008, http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=095-0865, and other states. A federal version of Rachel's Law was passed unanimously by Congress and enacted in August 2010, entitled Securing the Protection of Our Enduring and Established Constitutional Heritage Act, Public Law No 111-223, 124 Stat 2480-4 (codified at 28 USC s 4101-05) (Speech Act 2010). The American press welcomed the law. See, for example, Alex Spillius, ‘US Law to Counter “Libel Tourism” in British Courts’, 28 July 2010, http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7915063/US-law-to-counter-libel-tourism-in-British-courts.html, stating that the legislation ‘will prevent US federal courts from recognising or enforcing a foreign judgment for defamation that is inconsistent with the first amendment and will bar foreign parties from targeting the American assets of an American author, journalist, or publisher as part of any damages’. See also ‘Are English Courts Stifling Free Speech Around the World?’, 8 January 2009, http://www.economist.com/node/12903058.
16 See also Draft Defamation Bill, Ministry of Justice Consultation Paper CP3/11, March 2011, http://www.guardian.co.uk/law/interactive/2011/mar/15/draft-defamation-bill-libel-reform (usually referred to as the Libel Reform Bill 2011, followed Lord Lester's Private Member's Bill). See also Rachel McAthy, ‘Lord Lester to Give Evidence on Defamation Bill to New Committee’, 7 April 2011, http://www.journalism.co.uk/news/lord-lester-to-give-evidence-on-defamation-bill-to-new-committee/s2/a543607/. The Draft Defamation Bill resulted from a long and heated public debate, which followed extensive criticism of the phenomenon of ‘libel tourism’ in England. See PA Media Lawyer, ‘Government Libel Reform Bill Set for March 2011’, 15 July 2010, http://www.pressgazette.co.uk/story.asp?storycode=45711; Charlotte Williams, ‘PA Welcomes Libel Reform Bill’, 16 March 2011, http://www.thebookseller.com/news/pa-welcomes-libel-reform-bill.html; Roy Greenslade, ‘Three Cheers for Libel Reform Bill’, 15 March 2011, http://www.guardian.co.uk/media/greenslade/2011/mar/15/medialaw-kenneth-clarke.
17 Lord Justice Leveson was appointed on 13 July 2011 by the British Prime Minister to conduct an Inquiry ‘into the culture, practices and ethics of the press’, which is ‘running in four modules. These are: (a) Module 1: The relationship between the press and the public, and looks at phone-hacking and other potentially illegal behaviour; (b) Module 2: The relationships between the press and police and the extent to which that has operated in the public interest; (c) Module 3: The relationship between press and politicians; and (d) Module 4: Recommendations for a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’. See the Leveson Inquiry site, http://www.levesoninquiry.org.uk/about/. The appointment was made according to the Inquiries Act 2005 (UK), s 12, and promulgated draft Terms of Reference.
18 See the Leveson Report (No 0780 2012–13), published 29 November 2012 on http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp. The report has reignited the public debate. See, for example: Tim Press, ‘The Leveson Report, (Ab)use of Process?’, http://inforrm.wordpress.com/2012/12/05/the-leveson-report-abuse-of-process-tim-press/; Brian Cathcart, ‘An Ugly Stitch-up is Taking Place’, http://inforrm.wordpress.com/2012/12/06/opinion-an-ugly-stitch-up-is-taking-place-brian-cathcart/; Andrew Sparrow, ‘MPs Debate the Leveson Report: Politics Live Blog’, http://www.guardian.co.uk/politics/blog/2012/dec/03/mps-debate-leveson-report-live-blog; See also the BBC site, 5 December 2012, http://www.bbc.co.uk/news/uk-15717764.
19 ‘And the day of death better than the day of birth’, Ecclesiastes Ch 7(1): ‘Tov shem m'shemen tov’ (in Hebrew, translation by Biblegateway), http://www.biblegateway.com/passage/?search=Ecclesiastes+7&version=NIV, Holy Bible, New International Version (NIV).
20 CA 466/83 Shaha v Dardarian 1986 PD 39(4) 734; CC (Beer-Sheva) 711/01 Bank Leumi Ltd v Latinok (not published, judgment delivered on 10 April 2002); CC (Rishon Lezion) 3359/02 Garvitz v Geva (not published, judgment delivered on 19 September 2006).
21 On the multi-faceted nature of respect and dignity in Israeli culture see Kamir, Orit, A Matter of Dignity: On Israelism and Human Dignity (Carmel 2004)Google Scholar; Shultziner, Doron, ‘Human Dignity – Justification, Not a Human Right’ (2006) 21 Hamishpat 23Google Scholar. Kremnitzer, Mordechai and Kramer, Michal, Human Dignity as a Supreme and Absolute Constitutional Value in German Law – In Israel Too? (The Israel Democracy Institute 2011)Google Scholar.
22 Basic Law: Human Dignity and Freedom (Israel), s 7.
23 There is no difference in Israeli law between libel and slander.
24 Civil Wrongs Ordinance, 1968 (Israel) (CWO 1968), s 58: ‘Publication maliciously … of a false statement … concerning the trade, occupation, profession, or the goods or the title to property [of any other person]’.
25 cf with the current popularity of this tort in English law as illustrated in Tesla Motors Ltd v BBC [2011] EWHC 2760 (QB). For an example of group defamation and injurious falsehood, see CA (Tel Aviv) 37333-03-11 Zoer v Zoler (not published, judgment delivered on 24 March 2011).
26 On the overlap of defamation and privacy from a comparative perspective see Gidron, Tamar, ‘Publication of Private Information: An Examination of the Right to Privacy from a Comparative Perspective (Part One)’ (2010) 1 Tydskrif vir die Suid-Afrikaanse Reg (Journal of South African Law) 37Google Scholar; Gidron, Tamar, ‘Publication of Private Information: An Examination of the Right to Privacy from a Comparative Perspective (Part Two)’ (2010) 2 Tydskrif vir die Suid-Afrikaanse Reg 271Google Scholar.
27 Protection of Privacy Act, 1981 (Israel).
28 Copyright Law, 2007 (Israel), ss 46, 52. s 46 protects the integrity of the copyrighted work by prohibiting any falsification, damage or other change that harm the author's honour or reputation. s 52 constitutes tortious liability upon infringement of the moral right of the author: ‘no falsification, damage or other change is made on his work’. Note that s 50 subjects the right to integrity to a standard of reasonability.
29 Commercial Torts Act, 1999 (Israel).
30 The CWO 1947 (n 7), which was enacted in 1944 and came into force in 1947, was a Mandatory Legislation which was maintained in force by Israeli law.
31 According to the Defamation (Prohibition) Law, s 8, either the public prosecutor or the private individual who has been defamed may initiate criminal proceedings if the defamation was made with intent to harm.
32 For an overview of the Israeli law of defamation see Peled, Elad, ‘The Israeli Law of Defamation: A Comparative Perspective and a Sociological Analysis’ (2012) 20 Transnational Law and Contemporary Problems 735Google Scholar.
33 Defamation (Prohibition) Law (n 1) s 1.
34 Shaha (n 20) 740. The Court allowed some subjective criteria into the objective tests. CA 4534/02 Schocken Gou Ltd v Hertzikovitch 2004 PD 58(3) 558.
35 For a different view see Gidron, Tamar, ‘Defamation as a Negligence Action’ (1998) 4 Hamishpat 219 (in Hebrew)Google Scholar. For a different opinion see Zur, Uri, ‘A Defamatory Action as Negligence – Response’ (1998) 4 Hamishpat 239 (in Hebrew)Google Scholar.
36 Gilead, Israel, ‘Tort Law: Israel’, International Encyclopaedia of Law (Kluwer 2003) 97–112Google Scholar.
37 Defamation (Prohibition) Law (n 1) s 1.
38 ibid s 4.
39 ibid s 13: ‘shall not be grounds for criminal or civil action’.
40 According to current case law, ‘substantial truth’ is not enough, yet trivial mistakes do not obstruct the defence of truth. See CrimA 232/55 A-G v Gruenwald 1958 PD 12; CA 8735/96 Bitton v Kop 1998 PD 52(1) 19.
41 Gruenwald, ibid 2063-65. In this case, the defendant had to prove facts that happened during the Holocaust in order to convince the Court that the plaintiff indeed was corroborating with the Nazis.
42 Defamation (Prohibition) Law (n 1) s 15.
43 LCA 4740/00 Amar v Yoseph 2001 PD 55(5) 510.
44 Barak, Aharon, Cheshin, Mishael and Englard, Itzhak, The Law of Civil Wrongs: The General Part (Tedeschi, Gad, ed) The Magnes Press, The Hebrew University Jerusalem 1976) 566–75Google Scholar. For an overview of Israeli tort law and the underlying values see Israel Gilead, Tort Law: Limits of Liability, Vol 1 (Sacher Institute, Hebrew University of Jerusalem 2012) 51–90.
45 Defamation (Prohibition) Law (n 1) s 7A.
46 Indeed it was the old version of the Copyrights Act which was the first to introduce the idea, yet in a different manner. Today, approximately 30 Israeli Acts include the same provision.
47 Amar (n 43); see also CA 89/04 Nudelman v Sharansky (not published, judgment delivered on 4 August 2008); LCA 3832/11 Fishbein v Bombach (not published, judgment delivered on 18 January 2012).
48 Approximately US$13,406 or £8,544 (as at end-January 2013).
49 Approximately US$80,437 and US$134,062 or £51,264 and £85,440 (as at end-January 2013).
50 Draft Bill Amending the Defamation Law (Amendment No 10) (Expansion of Remedies) (n 10).
51 According to the Harari Committee's decision of 13 June 1950, each Basic Law stands for one chapter in the Constitution. See Gidron, Tamar, ‘Israel’ in Palmer, Vernon V (ed), Mixed Jurisdictions Worldwide: The Third Legal Family (2nd edn, Cambridge University Press 2012)Google Scholar.
52 Basic Law: Human Dignity and Freedom (Israel), s 4.
53 Barak, Aharon, ‘The Constitutional Revolution: Protected Human Rights’ (1992) 1 Mishpat Umimshal 9 (in Hebrew)Google Scholar; Barak-Erez, Daphne and Gilead, Israel, ‘Human Rights in the Laws of Contract and Tort: The Silent Revolution’ (2009) 8 Kiryat Hamishpat 11 (in Hebrew)Google Scholar; Gilead, Israel, ‘Tort Law in Aharon Barak's Adjudication’ in Fassberg, Celia W, Medina, Barak and Zamir, Eyal (eds), The Judicial Legacy of Aharon Barak (Nevo Publishing 2009) 487Google Scholar.
54 CWO 1968 (n 24) s 63. Gidron, Tamar and Ilouz, Roei, ‘Breach of Statutory Duty’ (2012) Mishpat Va'Assakim (forthcoming)Google Scholar.
55 Meaning ‘the esteem in which [a man] is held’. See Bower, George Spencer, A Code of the Law of Actionable Defamation: With a Continuous Commentary and Appendices (2nd edn, Making of Modern Law 2010) 3Google Scholar.
56 For an update summary of the various arguments, see Justice Rivlin's holding in CA 751/10 John Doe v Ilana Dayan (not published, judgment delivered on 8 February 2012), paras 66, 75–78 and Justice Fogelman's holding, para 15. Because of the importance of the Dayan case, the Supreme Court agreed to hold a further hearing before an expanded nine-judge panel: CFH 2121/12 John Doe v Ilana Dayan (not published, decision delivered on 3 October 2012). In the meantime the initial panel's decision remains the law.
57 CFH 7383/08 Ungerfeld v The State of Israel (not published, judgment delivered on 11 July 2011); HCJ 6126/94 Senesz v The Broadcasting Authority 1999 PD 53(3) 817; LCA 10520/03 Ben Gvir v Dankner (not published, judgment delivered on 12 November 2006). Barak, Aharon, ‘Human Dignity as a Constitutional Right’ (1994) 41 Hapraklit 271, 280 (in Hebrew)Google Scholar; Levin, Dov, ‘Freedom of Expression vis-a-vis the Right to Reputation (Balances and Defences)’, Shamgar Book – Life Story, Vol 1 (The Israel Bar Association 2003) 47, 50Google Scholar; Kremnitzer and Kramer (n 21). For a different view regarding the constitutional standing of freedom of expression in the Israeli system see Justice Dorner's holding in CA 4463/94 Golan v Prisons Service 1996 PD 50(4) 136. In Dayan (n 56) Justice Rivlin made an effort to elevate freedom of speech to a higher position than the right to reputation, while Justice Fogelman and Justice Amit did not share this view.
58 The holding of Justice Agranat in HCJ 73/53 Kol Ha'am Company v Minister of the Interior 1953 PD 7(1) 871 is still the leading authority on freedom of expression in Israel. cf with Justice Rivlin in Dayan (n 56).
59 The following are some leading examples of the Israeli Supreme Court's decisions in which it strongly relied on the American notions of freedom of expression: CA 323/98 Sharon v Benziman 2002 PD 56(3) 245, regarding a story about the 1982 war in Israel's northern border; Hertzikovitch (n 34), a famous insult exchange between the press and one of the leading figures in Israeli sports, and CFH 7325/95 Yedioth Ahronoth Ltd v Kraus 1998 PD 52(3) 1, an offensive series about police misconduct, exposing suspicions against a high-ranking police officer. It was clear that the Supreme Court gave precedence to freedom of expression. In the latest case of CC (Jerusalem) 8206/06 Captain R v Dayan (not published, judgment delivered on 7 December 2009), dealing with a documentary television report on a shooting incident by an IDF officer, liability was imposed by the District Court. The Supreme Court (n 56) was led by the Vice-President of the Supreme Court, Justice Rivlin (now retired), who openly and unhesitatingly led the Court to reconsider the balancing process between reputation and freedom of the press. The effect of this decision is yet to be seen. On the other hand, cases like Amar (n 43) in which a publication accused the plaintiff of abandoning her newborn child as a result of her drug addiction, and LCF 9818/01 Bitton v Sultan 2005 PD 59(6) 554, a colourful story featuring accusations of brutal treatment for lice in a kindergarten, illustrate the circumstances under which protection of reputation seems more important.
60 Reichman, Amnon, ‘The Voice of America in Hebrew? The US Influence on Israeli Freedom of Expression Doctrines’ in Birnhack, Michael (ed), Be Quiet, Someone is Speaking! The Legal Culture of Freedom of Speech in Israel (Tel Aviv University Press 2006) 185 (in Hebrew)Google Scholar.
61 On the issue of freedom of expression and the threat of terror in the Israeli context see Daphne Barak-Erez, ‘On Cinematographic Lies and Historic Truth: Between the Voice of the People and “the Voice of the People” Precedent’ in Birnhack (ibid) 141. Artistic content is also protected, see Senesz (n 57), as is commercial content. For a lesser extent see HCJ 606/93 Kidum Ltd v The Broadcasting Authority 1993 PD 48(2) 1. The Israeli Supreme Court had also dealt with pornographic freedom of expression. See HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v Council for Cable TV and Satellite Broadcasting 2003 PD 58(3) 65. For an overview discussion of the commitment of Justice Shimon Agranat, one of the leading legal minds in Israeli history, to freedom of expression see Pnina Lahav, ‘Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy’ 16 Iyunei Mishpat 475 (in Hebrew). For a discussion of human dignity in Israeli law, see Kremnitzer and Kramer (n 21).
62 For a comprehensive survey of freedom of expression in Israeli law see Justice Rivlin's holding in Dayan (n 56). Justice Rivlin's decision praises freedom of expression, explicitly placing this freedom above reputation. Justice Fogelman and Justice Amit disagree.
63 Pessach, Guy, ‘The Theoretical Foundation of the Principle of Freedom of Speech and the Legal Status of the Press’ (2001) 31 Mishpatim 895 (in Hebrew)Google Scholar.
64 The Movement for Freedom of Information in Israel is very active and has already made a few impressive achievements. See, for example, the battle regarding the operational circumstances of some of the leading televisions networks in Israel: Roni Koren-Dinar, ‘In Response to the Movement for Freedom of Information Request, the Second Authority Shall Publish Commitments of Channel 10’, 25 April 2007, http://www.haaretz.co.il/misc/1.1404214. In Administrative Claim Appeal 10845/06 Keshet Broadcasting v The Second Authority of Television and Radio (not published, judgment delivered on 11 November 2008), para 74, Justice Danziger implied that the right forming a special aspect of freedom of speech enjoys some measure of constitutional standing. On the history and nature of Israeli press, see Oz Almog, ‘From Enlisted to Investigating Journalism’, 21 April 2009, http://www.peopleil.org/details.aspx?itemID=7861.
65 Birnhack (n 6).
66 The origin of the title and the rule is explained in Pring, George W and Canan, Penelope, SLAPPs: Getting Sued for Speaking Out (Temple University Press 1996)Google Scholar.
67 ‘Draft Bill Amending Defamation (Prohibition) Law – The Association for Civil Rights’ Approach', 4 October 2011, http://www.acri.org.il/he/?p=16974. James A Wells, ‘Exporting SLAPPs: International Use of the US “Slapp” to Suppress Dissent and Critical Speech’ (1998) 12 Temple International and Comparative Law Journal 457.
68 On US SLAPP legislation see California Code of Civil Procedure (2009), s 425.16 (e)(3) and (e)(4). For legislation in other US states, see California Anti SLAPP Project, http://www.casp.net/. No federal SLAPP legislation exists, but see ‘The Citizen Participation in Government and Society Act of 2009’, 28 May 2009, http://law.wustl.edu/landuselaw/Statutes/Anti-SLAPP%20Legislation.doc. See also Nadarajah, Ramani and Griffin, Renee, ‘The Failure of Defamation Law to Safeguard Against SLAPPs in Ontario’ (2010) 19 Review of European Community and International Environment Law 70CrossRefGoogle Scholar; Ogle, Greg, ‘Anti-SLAPP Law Reform in Australia’ (2010) 19 Review of European Community and International Environment Law 35CrossRefGoogle Scholar. On the European perspective, see Donson, Fiona, ‘Libel Cases and Public Debate – Some Reflections on whether Europe should be Concerned about SLAPPs’ (2010) 19 Review of European Community and International Environment Law 83CrossRefGoogle Scholar. On SLAPP in South Africa, see Franny Rabkin and Sue Blaine, ‘Developers Warned of Using Courts to Silence Critics’, 18 February 2011, http://www.bdlive.co.za/articles/2011/02/18/developers-warned-on-using-courts-to-silence-critics.
69 See, for example, CC (Jerusalem) 10827/09 YD Barazani Assets and Building Co v Yoram (not published, judgment delivered on 6 December 2011); CC (Tel Aviv) 18029-02-11 Or-City Real Estate Ltd v Tabakman (not published, judgment delivered on 7 July 2011). These cases are still pending.
70 Draft Bill for the Establishment of the National Fund for Protection of the Public Right for Information (n 4); Draft Bill Preventing the Misuse of the Legal Proceedings (n 4).
71 The television screening of the ‘Shakshuka Method’ began a massive conflict that ultimately subsided and produced no legal outcomes.
72 Peled (n 32) 741–65, 782–90. On the interplay between the Law and case law in Israel see also Tamar Gidron, ‘World Map of Libel Tourism and Defamation Law in Israel’ (2010) 15 Hamishpat 385 (in Hebrew).
73 Ben Natan (n 11) is a good example. See also Sharansky (n 47); Bombach (n 47).
74 Hertzikovitch (n 34); Senesz (n 57).
75 Peled (n 32).
76 Justice Rivlin in Dayan (n 56). Both Justices Fogelman and Amit refrained from supporting the shift in the standing of free speech in Israeli law.
77 ibid.
78 See, eg, the many changes to the compensation for physical injuries caused by car accidents in the Road Accident Victims Compensation Law, 1975 (Israel) (Amendment No 8) as a response to the Supreme Court's decision in CA 358/83 Shulman v Zion Insurance Co 1988 PD 42(2) 844, which the legislator did not favour.
79 The Ben Natan decision (n 11) by the Supreme Court was almost immediately answered by a private bill recognising group defamation. In addition, the decision in LCA 4447/07 Mor v Barak ITC [1995] – The International Telecommunication Corporation (not published, judgment delivered on 25 March 2010) has produced a bill proposing to limit anonymity on the internet.
80 CC (Tel Aviv) 20174/94 Amsalem v Klein (not published, judgment delivered on 20 June 1995). Klein's appeal was denied: see CA (Tel Aviv) 1145/95 Klein v Amsalem (not published, judgment delivered on 30 March 1997), and the award of NIS 150,000 was upheld by the District Court. The newspaper petitioned a second appeal to the Supreme Court but, following the ‘advice’ of Justice Aharon Barak, revoked its petition. See Viterbo, Hedi, ‘The Crisis of Heterosexuality: The Construction of Sexual Identities in the Israeli Defamation Law’ (2010) 33 Iyunei Mishpat 5, 15 (in Hebrew)Google Scholar.
81 CC (Tel Aviv) 3645/07 Kozover v News 10 Ltd (not published, judgment delivered on 12 May 2009).
82 Viterbo (n 80).
83 In Shaha (n 20) the Supreme Court adopted the subjective test but did not apply it to the circumstances of the case. The plaintiff, an Israeli and Jordanian citizen, was said to have collaborated with Israeli authorities. Since he was an Archihegmon of the Armenian Church, this was an unbearable accusation. Following a long debate, the Court did not impose liability on the Archbishop defendant, although it agreed, in an obiter dictum, that under less sensitive circumstances liability would have been imposed.
84 Ben Natan (n 11).
85 Defamation (Prohibition) Law, s 4, explicitly negates liability in group defamation cases, although the interpretation of a certain publication may lead to the conclusion that not only was a particular group defamed, but so was each of the individuals comprising the group. Yet in Ben Natan (n 11), the Court refused to interpret a film that portrayed a group of IDF soldiers as cold-blooded murderers to amount to defamation of each of the individual soldiers.
86 Hertzikovitch (n 34). Hertzikovitch, a public figure plaintiff, was compared in a publication to a British lord who spends his nights in the stinking gutter, but lost his defamation suit. The celebrated plaintiff in CC (Jerusalem) 5358/09 Federman v The Second Television and Radio Authority (not published, judgment delivered on 20 November 2011) also lost his case. The Court preferred the satirical freedom of speech interest of the popular television show over the reputational right of the plaintiff, who was depicted by the defendants as a political extremist. In the famous case of Ben Gvir (n 57) the Court decided that calling somebody ‘a filthy Nazi’ during a live television show does, in fact, amount to defamation (yet clearly, this decision was influenced by the highly delicate circumstances).
87 3242/02 CA (Jerusalem) Ben Gvir v Dankner (not published, judgment delivered on 21 September 2003); Justice Rivlin in Ben Gvir (n 57) in the Supreme Court; CC (Netanya) 45765-10-10 Zyon Yefet v Daniel Finkelman (not published, judgment delivered on 7 August 2012).
88 Captain R v Dayan (n 59).
89 Dayan (n 56).
90 LCA 1104/07 Hir v Gil (not published, judgment delivered on 19 August 2009). The Court had, in fact, no discretion on the issue because of the explicit language of the Law and the history of this special defence.
91 376 US 254 (1964). cf Nudelman (n 47); Hertzikovitch (n 34); CA 5653/98 Fluss v Halutz 1999 PD 55(5) 865.
92 Justice Rivlin's holding in Dayan (n 56) paras 100–10.
93 ibid, Justice Rivlin's holding. Nudelman (n 47); Sharon (n 59).
94 Kraus (n 59); Sharon (n 59); Dayan (n 56), all three justices agreed on this point.
95 Kraus (n 59). Following this decision the Law was amended and today a publication regarding criminal investigation should be followed up: Defamation (Prohibition) Law, s 25A (Amendment No 7).
96 All three justices agreed on this point.
97 Justice Rivlin's holding in Dayan (n 56) paras 91–92.
98 ibid para 93.
99 On the German origins of ‘good faith’ in the Defamation (Prohibition) Law, see Peled (n 32) 768–73.
100 Jameel v Wall Street Journal Europe [2007] 1 AC 359.
101 All three justices in Dayan (n 56) agreed on this innovation setting aside an old precedent. See FH 9/77 The Israel Electricity Company v Ha'aretz Newspaper Publishing 1978 PD 32(3) 337.
102 LCA 3614/97 Itzhak v Israel Television News Company Ltd 1998 PD 53(1) 26.
103 For a broad look at the current trends adopted by the UK courts during the second half of 2011 see David Leigh, ‘Super Injunction Scores Legal First for Nameless Financier in Libel Action’, 29 March 2011, http://www.guardian.co.uk/law/2011/mar/29/superinjunction-financier-libel-legal-case. For typical examples of the use of injunctions in the UK, see the well known Trafigura saga: Alan Rusbridger, ‘Trafigura: Anatomy of a Super-Injunction’, 20 October 2009, http://www.guardian.co.uk/media/2009/oct/20/trafigura-anatomy-super-injunction. For typical use of injunctions by celebrities in the UK courts, see Terry v Persons Unknown [2010] EWHC 119 (QB). See also ZAM v CFW [2011] EWHC 476 (QB). See Master of the Rolls, Practice Guidance, ‘Interim Non-Disclosure Orders’, http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/practice-guidance-civil-non-disclosure-orders-july2011.pdf. The phenomenon of the popularity of injunctions is constantly linked to libel reform. See ‘The Defamation Act: Not Fit for Purpose’, 24 May 2011, http://super-injunction.blogspot.com/2011/05/defamation-act-not-fit-for-purpose_24.html. cf ‘News: Six Privacy Injunctions Discharged, Anonymity Retained’, 1 August 2012, http://inforrm.wordpress.com/2012/08/01/news-seven-privacy-injunctions-discharged-anonymity-retained/#more-16504. It is worth mentioning that some of the ‘privacy’ cases can also constitute an action for defamation.
104 CA 214/89 Avnery v Shapira 1989 PD 43(3) 840.
105 LCA 10771/04 Reshet Communication and Production (1992) Ltd v Etinger 2004 PD 59(3) 308.
106 See the recent Supreme Court decision in the petition of the State of Israel to restrain a television programme regarding the state's witness in the criminal case against former Israeli Prime Minister, Ehud Olmert, which the Court refused. The facts broadcast can result in both defamation and privacy claims. The Court stressed the fact that most of the information had already been published on the internet: CA 6578/12 The State of Israel v Reshet Noga (not published, judgment delivered on 6 September 2012); see also CC (Kiryat Shmona) 24553-06-12 Oved v Oved (not published, judgment delivered on 16 July 2012).
107 Amar (n 43).
108 This statutory cap was regarded as reasonable by the legislator compared to the average level of compensation (reflecting special and general damages) adopted by courts in 1996–99 case law: see Karniel, Yuval and Barkat, Amiram, ‘Compensation in Defamation: Reputation and Oil’ (2002) 2 Alei Mishpat 205 (in Hebrew)Google Scholar.
109 Gilead (n 44) 311–16.
110 Amar (n 43), Sharansky (n 47).
111 For a survey of the heads of damages in defamation cases, see Chief Justice Barak's comments in Amar (n 43). Justice Barak defines in an obiter dictum the punitive damages that form part of compensatory damages. For punitive damages in defamation actions, see CA 30/72 Friedman v Segal 1973 PD 27(2) 225, relying on Rookes v Barnard [1964] AC 1129 (House of Lords, UK). Note that the large sum awarded in Nudelman (n 47) were regarded as compensatory damages. For contemptuous damages, see the famous decision in Ben Gvir (n 57), in which the plaintiff was awarded 1 NIS (less than 30 US cents). Recently, a very angry Israeli court awarded a plaintiff 10 agorot (which in total amounts to one-tenth NIS, less than 3 US cents) – the smallest sum ever to be awarded in legal proceedings. The Court stressed that this is the smallest coin used in Israel: CC (Herzliya) 8054/06 Hirsh v The State of Israel (not published, judgment delivered on 15 November 2011). cf UK principles and case law in Doley, Cameron and Mullis, Alastair (eds), Carter-Ruck on Libel and Slander (6th edn, Lexis Nexis UK 2010) 475–533Google Scholar.
112 See text accompanying the bill that originally introduced compensation without proof of damages: Draft Defamation Bill (Amendment – Compensation without Proof of Damages) (n 12).
113 Defamation (Prohibition) Law, s 7A, was incorporated into the Defamation (Prohibition) Law in 1998 (Amendment No 6). On the interpretation of s 7A see CC (Tel Aviv) 14716–04–10 Bombach v Fishbein (not published, judgment delivered on 11 April 2011); Fishbein v Bombach (n 47).
114 Approximately US$13,406 or £8,544 (as at end-January 2013).
115 Approximately US$26,812 or £17,088 (as at end-January 2013).
116 Rozenberg, Amir, ‘On Reputation and Monetary Damages’ (2000) 18 The Lawyer 50Google Scholar; Shenhar, Uri, ‘Reputation Damages and the Way by which They Are Proved’ (2001) 21 The Lawyer 54Google Scholar; for an overall survey see Karniel and Barkat (n 108).
117 Ben Gvir (n 57); Nudelman (n 47).
118 Approximately US$11,529 or £7,347 (as at end-January 2013).
119 Karniel and Barkat (n 108) 246.
120 For example, Protection of Privacy Act, 1981 (Israel); Commercial Torts Act, 1999 (Israel); Consumer Protection Act, 1981 (Israel); Prohibition of Sexual Harassment Act, 1998 (Israel).
121 Defamation Bill (Amendment – Compensation without Proof of Damages) (n 12).
122 The list of statutory provisions allowing compensation without proof of damages includes 31 Acts.
123 Both caps, NIS 300,000 and NIS 500,000, were eventually merged into one bill following the Knesset debate.
124 See text accompanying the two bills.
125 Bombach (n 47); CC (Tel Aviv) 58826/07 Post-Primary Teachers Union v Channel 10 Ltd (not published, judgment delivered on 27 February 2011).
126 The representatives of the organisations opposing the bill participated in the debate in the Knesset: see Knesset Constitution, Law and Justice Committee Transcript No 458, 10 October 2011, http://oknesset.org/committee/meeting/4936/ (see especially Member of the Knesset (MK) Meir Shitreet and MK Yariv Levin).
127 On the importance of empirical data see Judith Townend, ‘A Dearth of Data about Defamation Cases in England and Wales’, http://inforrm.wordpress.com/2012/09/25/a-dearth-of-data-about-defamation-cases-in-england-and-wales-judith-townend/#more-17162.
128 The research was originally conducted by Roei Ilouz, Roei Reinzilber and Tamar Gidron. We used the Takdin database. A random sample cross-check with other data bases did not demonstrate meaningful differences. We indexed approximately 500 cases from 2004 to 2011 in which the plaintiffs were awarded compensation. We included only cases in which damages were awarded based on infringement of the Defamation (Prohibition) Law. Cases in which compensation was awarded based on invasion of privacy or negligence were excluded. The starting point – decisions rendered in 2004 – demonstrates the effective influence of the change in the Defamation (Prohibition) Law regarding compensation without proof of damages. While we examined some district court cases as well, case law from magistrates' courts best illustrates the trend of the judiciary.
129 For a comprehensive explanation of ‘general damage(s)’ and ‘special damage(s)’ see Barak, Cheshin and Englard (n 44) 167–69.
130 Karniel and Barkat's study (n 108), published in 2002, helped to clarify the situation. Case law from 2002 to 2003 still reflects the courts' doubts as to the proper interpretation of the statutory caps. See, for example, CC (Jerusalem) 1839/01 Netanyahu v Schocken Group Ltd (not published, judgment delivered on 25 July 2002). CC (Tel Aviv) 101110/00 Shemesh v Surgery, Aesthetics and Laser Ltd (not published, judgment delivered on 11 April 2002). In both cases, as well as in many more, serious doubts remain regarding the true meaning of the statute. Cases from 2004 on, however, are quite clear about the true meaning of the Defamation (Prohibition) Law, s 7A.
131 Amar (n 43); Ben Gvir (n 57). As to the definition of ‘general damages’ see Barak, Cheshin and Englard (n 44) 167–69.
132 Usually unconvincingly. The history of the Sharansky (n 47) case in which the District Court awarded a very high award that was later reduced by the Supreme Court is a good example. The decision of the District Court in Dayan (n 56) is a further example of a case in which it is not clear how the Court assessed the exact award.
133 In 2004, there were 12 successful cases against the media; in 2005, 24; in 2006, 14; in 2007, 22; in 2008, 16; in 2009, 15; in 2010, 4; in 2011, 7. For a comparative look at compensation caps in the UK and in Europe see ‘Libel Reform Debate: Part 2 “Damages Cap and Remedies”’, 14 June 2010, http://inforrm.wordpress.com/2010/06/14/libel-reform-debate-part-2-damages-cap-and-remedies/.
134 Sharansky (n 47); Dayan (n 56).
135 Data from the UK on defamation cases in 2011 was published in ‘Defamation Trials, Summary Determinations and Assessments in 2011’, 11 January 2012, http://inforrm.wordpress.com/2012/01/11/defamation-trials-summary-determinations-and-assessments-in-2011/. The number of first instance hearings was 21. The corresponding number in 2010 was 23. Data for 2010 was published in ‘Defamation Trials, Summary Determinations and Assessments 2010 [updated]’, 1 January 2012, http://inforrm.wordpress.com/2011/01/02/defamation-trials-summary-determinations-and-assessments-2010/. More data on defamation, privacy and contempt in the UK was published in Jude Townend, ‘Media Law Review of the Year 2011: Defamation, Contempt, Privacy and a Public Inquiry’, 30 December 2011, http://inforrm.wordpress.com/2011/12/30/media-law-review-of-the-year-2011-defamation-contempt-privacy-and-a-public-inquiry-jude-townend/. For an update on defamation cases which ended in agreements to pay damages and/or statements in open court, see ‘Defamation Actions in 2011: Statements in Open Court’, 13 January 2012, http://inforrm.wordpress.com/2012/01/13/defamation-actions-statements-in-open-court-and-other-disposals-2011/, in which it is stated that ‘the large majority of these [claims] (21 out of 24) involved the mainstream media’. The data confirms that
[t]he low number of statements in open court in 2011 is another indication of the declining numbers of libel cases before the English courts … statements in open court for each legal year from 1 October 2003 … ranged from 63 (2007 to 2008) to 39 (2004–2005 and 2005–2006). However, in the legal year commencing 1 October 2010 the figure was only 27.
As to the division between ‘old’ and ‘new’ media, it is interesting to note that, whereas the number of claims against the new media is on the increase, the number of cases against the old media is decreasing. Yet, as noted above, no increase is marked in the overall number of cases. The number of cases against the new media increased from 83 to 86 (mostly against bloggers and tweeters); Sweet & Maxwell research reveals ‘News: Online Defamation Cases “Double”, Defamation Claims Decline by 47%’, 26 August 2011, http://inforrm.wordpress.com/2011/08/26/news-online-defamation-cases-double-defamation-claims-decline-by-47/. The issue of ‘old’ versus ‘new’ journalism raises a very interesting additional issue involving the definition of a ‘journalist’. See, for example, a discussion regarding the ‘journalists’ privilege' by Hugh Tomlinson, ‘Should Journalists Have Privilege? Part 2 – Accreditation and Privileged Access’, 7 December 2011, http://inforrm.wordpress.com/2011/12/07/should-journalists-have-privileges-part-2-accreditation-and-privileged-access-hugh-tomlinson-qc/. cf the decision of the Oregon court on whether a law relating to newspapers, magazines and other printed periodicals is applicable to blogs as well in Obsidian Fin Group LLC v Crystal Cox CV-11-57-HZ (D Or 30 November 2011). On the issue of who or what constitutes media, see also Lara Fielden, ‘Future Press Regulation Must Recognise Multi-Platform Content’, 10 December 2011, http://inforrm.wordpress.com/2011/12/10/future-press-regulation-must-recognise-multi-platform-content/. On defamation on the web, see also Ben Dowell, ‘Rise in Defamation Cases Involving Blogs and Twitter’, 26 August 2011, http://www.guardian.co.uk/media/2011/aug/26/defamation-cases-twitter-blogs. Additional comparative data is supplied by Article 19 Organization, http://www.article19.org/. The information supplied by the Media Law Recourse Center (30 years, 600 cases) is also interesting: see Media Law Resource Center, ‘Study of Media Trials Celebrates 30 Years, Analyzes 9 New Trials for 2009: 3 Wins, 6 Losses’, http://www.medialaw.org/Content/NavigationMenu/About_MLRC/News/Damages_2010_press_release.pdf (on file with author).
136 Gilead (n 36) 251–84; Barak, Cheshin and Englard (n 44) 566–84.
137 Justice Gerstl in Fluss (n 91); Karniel and Barkat (n 108).
138 In Sharansky (n 47); Bombach (n 47).
139 Approximately US$241,312 or £153,781 (as at end-January 2013).
140 Approximately US$134,062 or £85,440 (as at end-January 2013).
141 Approximately US$80,437 or £51,264.24 (as at end-January 2013).
142 This decision was later altered by the Supreme Court, with damages of NIS 100,000 being imposed on the television network alone.
143 Approximately US$120,656 or £76,896 (as at end-January 2013).
144 Approximately US$80,437 or £51,264 (as at end-January 2013). CC (Jerusalem) 1624/99 Tichon v The IDF Broadcasting Unit (not published, judgment delivered on 4 September 2003).
145 See, for example, CC (Tel Aviv) 1320/97 Vinshtock v Ha'aretz Daily Newspaper Ltd (not published, judgment delivered on 4 June 2009). The plaintiff, suing three defendant newspapers, was awarded NIS 190,000. The Court emphasised the lack of evidence yet constructed its decisions on precedents; see also CA (Jerusalem) 5452/04 Miller v Cohen (not published, judgment delivered on 2 November 2004). The plaintiff was awarded NIS 300,000 for an injurious publication during election time; CC (Tel Aviv) 1714/97 Nissenkorn v Wilder (not published, judgment delivered on 23 February 2004). The plaintiff, a gynaecologist, was awarded NIS 250,000. The publication accused him of indecent acts. The Court stressed the lack of evidence yet based the outstanding amount of money on the special circumstances of the case. See the recent decision in Bombach (n 47) where, again, the decision of the District Court was altered by the Supreme Court. Compare with the debate regarding the settlement in the McAlpine case on 15 November 2012. The BBC agreed to settle the claim and pay £185,000 plus costs and opened a public debate on the issue of libel damages in Europe and the US: ‘Libel Damages and Lord McAlpine: Did the BBC Pay Too Much?’, http://inform.wordpress.com/2012/11/16/libel-damages-and-lord-mcalpine-did-the-bbc-pay-too-much/#more-18020.
146 Draft Bill Amending the Civil Wrongs Ordinance (Amendment No 10) (Compensation Without Proof of Damages) (Private Bill), 2004 P/2284 (Israel).
147 MK Meir Shitreet speech at the Knesset Constitution, Law and Justice Committee (n 126).
148 ibid. It is clear that as the Civil Code Bill lacks reference to compensation without proof of damage and at the same time it does introduce other forms of special damage, it is not likely that the former bill to amend the CWO will be presented again in the near future.
149 Draft Bill Amending the Defamation Law (Compensation Without Proof of Damage) (Amendment No 6), 1998 (Israel).
150 The ‘anchoring effect’ is a cognitive bias whereby people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Collin Miller, ‘Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions’, 5 September 2010, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1672442; Fariña, Francisca, Arce, Ramón and Novo, Mercedes, ‘Anchoring in Judicial Decision-Making’ (2003) 7 Psychology in Spain 56Google Scholar; Tversky, Amos and Kahneman, Daniel, ‘Judgment under Uncertainty: Heuristics and Biases’ (1974) 185 Science (New Series) 1124CrossRefGoogle ScholarPubMed; Danziger, Shai, Levav, Jonathan and Avnaim-Pesso, Liora, ‘Extraneous Factors in Judicial Decisions’ (2011) 108 Proceedings of the National Academy of Sciences 6889CrossRefGoogle ScholarPubMed; Epstein, Lee and Jacobi, Tonja, ‘The Strategic Analysis of Judicial Decisions’ (2010) 6 Annual Review of Law and Social Science 341CrossRefGoogle Scholar.
151 Bombach (n 47); Amar (n 43); Sharansky (n 47); Vinshtock (n 145).
152 For a different statutory format and outcome in Australia see Matthew Lewis, ‘Capping Libel Damages in Australia: A Closer Look’, 29 May 2011, http://inforrm.wordpress.com/2011/05/29/capping-libel-damages-in-australia-a-closer-look-matthew-lewis/.
153 Peled (n 32).
154 Hertzikovitch (n 34), Bombach (n 47); Dayan (n 56); Fluss (n 91). See also Peled (n 32).
155 Draft Bill Amending the Defamation (Prohibition Act) (Uncovering Anonymity) (n 4).
156 Mor (n 79).
157 Draft Defamation Bill (Amendment – Broadening the Duty to Provide Notice) (n 4).
158 Defamation (Prohibition) Law (n 1) s 25.
159 Kraus (n 59).
160 Ben Natan (n 11).
161 Defamation (Prohibition) Law (n 1) s 4.
162 Class Action Law, 2006 (Israel).
163 Draft Bill Amending the Defamation (Prohibition) Law (Defamation of a Group and State Authorities) (n 4).
164 Draft Bill for the Establishment of the National Fund for Protection of the Public Right for Information (n 4).
165 Draft Bill Amending the Defamation (Prohibition) Law (Defence of a Truthful Publication) (n 4).
166 Dayan (n 56).
167 Draft Defamation Bill (Internet Provider Duty to Provide Internet User Details) (Private Bill) 2011 P/18/ 2816 (Israel).
168 Electronic Signature Act, 2001 (Israel).
169 Such as copyright infringement.
170 Draft Bill Prohibiting the Misuse of the Legal Proceedings (n 4). cf Barazani (n 69).
171 See Pring and Canan (n 66).
172 See Tabakman (n 69) and sources accompanying n 67.
173 See, for example, the holding in Mor (n 79). Justice Rivlin urged the legislator to supply tools to combat anonymous defamation on the internet. The same is true for the holding in Cher (n 91) dealing with absolute protection of courtroom defamation according to Defamation (Prohibition) Law, s 13(5).
174 The added force of the proposed duty to publish the response of the defamed person, enforced by liability of up to NIS 1,500,000 in case of breach, again trying to force change, further intensifies the potential ‘overdose’ inherent in the draft. See Draft Bill Amending the Defamation Law (Amendment No 10) (n 10). In fact, this change is included in the same bill that deals with caps on compensation without proof of damage. Indeed, part of the fierce opposition to the bill may be attributed to this proposed change, which infuriated the Israeli press no less than the proposed change in the compensation caps. On prior notification, see Phillipson, Gavin, ‘Max Mosley goes to Strasbourg: Article 8, Claimant Notification and Interim Injunctions’ (2009) 1 Journal of Media Law 73CrossRefGoogle Scholar. Scott, Andrew, ‘Prior Notification in Privacy Cases: A Reply to Professor Phillipson’ (2010) 2 Journal of Media Law 49CrossRefGoogle Scholar.
175 Peled (n 32).
176 ibid.
177 Defamation Bill (HC Bill 5) 2012-2013 (UK).
178 A private member's bill by the Liberal Democrat, Lord Lester: see text at n 15.
179 Draft Defamation Bill (House of Lords and House of Commons: Joint Committee, HL Paper 203 HC 930–I), http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/203.pdf.
180 ‘About Inforrm’, 30 December 2011, http://inforrm.wordpress.com/about/.
181 Coordinating Committee for Media Reform, http://www.mediareform.org.uk/about-us.
182 Goldsmiths, University of London: Department of Media and Communications, http://www.gold.ac.uk/media-communications/.
183 The UK Human Rights Blog is edited by members of the One Crown Office Row Barristers' Chambers, http://www.1cor.com/london.
184 ‘News: Queen's Speech – At Last the Defamation Bill’, 15 May 2012, http://inforrm.wordpress.com/2012/05/15/.
185 Defamation Bill (n 177) cl 5.
186 ibid cl 8, introducing the single publication rule.
187 ibid cl 9, fighting libel tourism.
188 ibid cl 12.
189 Which is sometimes called the ‘killing effect’; cf Mark Lewis in David Clarke, ‘The Chilling Effect of Libel Laws’, 4 April 2010, http://drdavidclarke.blogspot.co.il/2010/04/chilling-effect-of-libel-laws.html.
190 The case of Simon Singh, British Chiropractic Association v Singh [2010] EWCA Civ 350, is probably the most well known example. Ehrenfeld, Rachel, Funding Evil: How Terrorism Is Financed – and How to Stop It (Bonus Books 2003)Google Scholar; cf David Pallister, ‘US Author Mounts “Libel Tourism” Challenge’,15 November 2007, http://www.guardian.co.uk/world/2007/nov/15/books.usa. This case was consequently decided in the US in Rachel Ehrenfeld v Mahfouz 489 F3d 542 (2d Cir, 2007); Lipstadt, Deborah, Denying the Holocaust: The Growing Assault on Truth and Memory (Plume 1994)Google Scholar, was sued by David Irving in the UK in David Irving v Penguin Books Ltd and Deborah Lipstadt [2000] EWHC QB 115. The Ehrenfeld and Lipstadt cases are both of great importance. ‘Conversation with Robert Todd and Gordon Hughes of Ashurst: Insights into the Impact of Social Media on Defamation Law and Legal Practice’, http://www.lawgazette.com.sg/2012-07/471.htm.
191 John Koblin, ‘The End of Libel?’, 9 June 2010, http://www.observer.com/2010/media/end-libel; Alan Dershowitz and Elizabeth Samson, ‘The Chilling Effect of “Lawfare” Litigation’, 9 February 2010, http://www.guardian.co.uk/commentisfree/libertycentral/2010/feb/09/libel-reform-radical-islamic-groups. See Matt Williams, ‘US News Publishers Warn Libel Laws May Stop UK Distribution, Brand Republic’, 9 November 2009, http://www.brandrepublic.com/News/965043/US-newspublishers-warn-libel-laws-m. Christine A Corcos, ‘KinderUSA, Laila Al-Marayati Drop Lawsuit against Yale, Author; Cambridge Agrees to Destroy Unsold Copies of “Alms for Jihad”', 16 August 2007, http://lawprofessors.typepad.com/media_law_prof_blog/2007/week33/index.html.
192 In Dayan (n 56) the English decisions in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and in Jameel (n 101) were imported into Israeli law.
193 Limor, Yehiel and Nossek, Hillel, ‘Unspoken Censorship: Economic Censorship and the Mass Media’ (2001) 29 Kesher 98 (in Hebrew)Google Scholar.
194 See, for example, a comment written by one of the leading partners in a famous Israeli law firm representing Israeli media: Yigal Kava, ‘The Increase of Damages due to Defamation – A Danger to Freedom of Expression’, 25 October 2011, http://www.themarker.com/law/1.1531124. For recent examples, see ‘Censorship in the Media’, http://sites.google.com/site/censorshipcomunication/8.
195 See sources accompanying n 15 regarding the public cry for a change in the UK libel law. See also the US Congressional Research Service Report on the (mostly UK) phenomenon of ‘libel tourism’: ‘The SPEECH Act: The Federal Response to “Libel Tourism”’, 16 September 2010, http://www.fas.org/sgp/crs/misc/R41417.pdf. For further data on additional aspects of freedom of the press, see Karin D Karlekar, ‘Freedom of the Press 2011: Signs of Change Amid Repression’, http://www.freedomhouse.org/report/freedom-press/freedom-press-2011. For an interesting input see Law Council of Australia, ‘Submission to the Ministry of Justice of the United Kingdom on Consultation Paper CP3/11 Draft Defamation Bill’, Media and Communications Committee, May 2011, http://inforrm.files.wordpress.com/2011/07/lca-media-and-communications-committee-submission-on-uk-draft-defamation-bill.pdf. For data on the US position, see the Speech Act 2010 (n 15) provisions. On the problematic balance between free speech and the media in South Africa, see ‘South Africa: Media Freedom's Roller Coaster Ride in 2011 – Pamela Stein and Dario Milo’, 28 December 2011, http://inforrm.wordpress.com/2011/12/28/south-africa-media-freedoms-roller-coaster-ride-in-2011-pamela-stein-and-dario-milo/.
196 Unfortunately, the difficult financial condition of the Israeli media is a factor that should also be noted. The live apology of an Israeli television channel (Channel 10) to Sheldon Adelson, which caused a huge number of angry professional responses and the resignation of one of the leading news editors, is a good example of the consequences: Ophir Bar-Zohar, ‘Due to Apology to Sheldon Adelson: Channel 10 CEO Reudor Benziman Resigns’, 7 September 2011, http://www.themarker.com/advertising/1.1423295.
197 On the danger of going too far see Mullis, Alastair and Scott, Andrew, ‘Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour for Reform of Defamation’ (2009) 14(6) Communications Law 173Google Scholar.
198 Amar (n 43).
199 ‘Comparative Analysis: Damages Awarded in Defamation Claims and Publishing the Response of the Defamed Person’, Knesset Legal Department, 9 January 2012, http://www.knesset.gov.il/LegalDept/heb/docs/Survey090112.pdf.
200 From a comparative perspective, it is important to stress the irrelevance to Israeli practice of the amount of compensation awarded in other jurisdictions. Thus, the comparisons regarding the Israeli proposed caps with the US and UK caps made in ‘News: Defamation in Israel – Are the Proposed Amendments to the Law Objectionable?’ (3 December 2011, http://inforrm.wordpress.com/2011/12/03/news-defamation-in-israel-the-proposed-amendments-to-the-law/) are not persuasive. See the award of damages in Cooper v Turrel [2011] EWHC 3269 (QB). On compensation awards in Australia see Lewis (n 152). These awards are enormous by Israeli standards. On punitive damages in the UK see Doley and Mullis (n 111) 500–08.
201 For a new approach, see Nezar, Amir, ‘Reconciling Punitive Damages with Tort Law's Normative Framework’ (2011) 121 Yale Law Journal 678Google Scholar.
202 Robinette, Christopher J, ‘Peace: A Public Purpose for Punitive Damages?, Symposium: Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams’ (2008) 2 Charleston Law Review 327Google Scholar; Cooper Indus Inc v Leatherman Tool Grp 532 US 424 (2001); Rustad, Michael L, ‘The Uncert-Worthiness of the Court's Unmaking of Punitive Damages’ (2008) 2 Charleston Law Review 459Google Scholar; Philip Morris v Mayola Williams 549 US 346 (2007); BMW of N America, Inc v Gore 517 US 559 (1996); State Farm Mutual Automobile Insurance Company v Campbell 538 US 408 (2003); Exxon Shipping Co v Baker 554 US 471 (2008); Perry, Ronen, ‘The Deepwater Horizon Oil Spill and the Limits of Civil Liability’ (2011) 86 Washington Law Review 1Google Scholar; Gash, Jim, ‘The End of an Era: The Supreme Court (Finally) Butts Out of Punitive Damages for Good’ (2011) 63 Florida Law Review 525Google Scholar. Theodore Eisenberg, Michael Heise and Martin T Wells, ‘Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court's Decision in Exxon Shipping Co v Baker’, Cornell Legal Studies Research Paper 09-011, 20 April 2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392438. Trickett, Rachel D, ‘Punitive Damages: The Controversy Continues’ (2011) 89 Oregon Law Review 1475Google Scholar. For a summary of the English case law see Doley and Mullis (n 111) 500–08.
203 For the distinction between aggravated and punitive damages see the Law Commission report, ‘Aggravated, Exemplary and Restitutionary Damages (Item 2 of the Sixth Programme of Law Reform: Damages)’, http://lawcommission.justice.gov.uk/docs/lc247_aggravated_exemplary_and_restitutionary_damages.pdf.
204 Apart from the now pending Civil Code Bill that refers to punitive damages in cases where the harm was caused intentionally, no reference to punitive damages is made in Israeli law. For punitive damages in Israeli case law see CA 3806/06 John Doe v Jane Doe (not published, judgment delivered on 26 May 2009). See also Chief Justice Barak's holding in Amar (n 43). See also Janke, Benjamin W and Licari, François-Xavier, ‘Enforcing Punitive Damage Awards in France After Fountaine Pajot’ (2012) 60 American Journal of Comparative Law 775CrossRefGoogle Scholar.
205 The proposed Israeli Private Law Codification, s 461, http://www.knesset.gov.il/committees/heb/material/data/H06-07-2011_11-33-01_595.pdf. See the explanatory notes with regard to the requirement of malice. A bill proposing to introduce punitive damages into the Civil Wrongs Ordinance (Amendment No 10) 2004 was eventually abandoned by the Ministry of Justice.
206 See the statutory caps, inter alia, in the following Israeli Acts: Protection of Privacy Act, 1981; Commercial Torts Act, 1999; Consumer Protection Act, 1981; and Prohibition of Sexual Harassment Act, 1998.
207 Approximately US$5,362 or £3,417 (as at end-January 2013).
208 Approximately US$53,625 or £34,176 (as at end-January 2013).
209 See Constitution, Law and Justice Committee transcript (n 126).
210 See, for example, a case relating to tort/contract based liability in family matters (with no defamation component), in which the Court stressed that the Defamation (Prohibition) Law's statutory cap should be applied: FC (Tveria) 10541-03-11 MZ v AZ (not published, judgment delivered on 30 January 2012).
211 Gidron (n 26).
212 Civil Wrongs Ordinance (New Version), ss 35–36.
213 Civil Wrongs Ordinance, ss 35–36, explicitly names damage as one of the elements of liability, whereas Defamation (Prohibition) Law, s 1, presumes damage when publication of the defamatory material has been proved.
214 Karniel and Barkat (n 108). Judge Gerstl's holding in Fluss (n 91).
215 Draft Bill Amending the Civil Wrongs Ordinance (Compensation Without Proof of Damages) (n 146).
216 Such amendment to the CWO is in practice unnecessary: Karniel and Barkat (n 108), Justice Gerstl in Fluss (n 91), just as Defamation (Prohibition) Law, s 7A was originally unnecessary.
217 Defamation Bill (n 177).
218 For the background to the libel tourism phenomenon and some details on the current inquiry into the optimal changes in values as well as the rules of liability, see Mullis and Scott (n 197); One Brick Court, ‘Libel Tourism in England: Now the Welcome is even Warmer’, http://www.onebrickcourt.com/files/Libel_Tourism_in_England_95156.pdf. See also ‘Libel Tourism: Hearing before the Subcommittee on Commercial and Administrative Law of the Committee of the Judiciary’, 111th Congress 4 (2009).
219 Jones, Barbara M, ‘Libel Tourism: Why Librarians Should Care’ (2009) 40(11) American Libraries 40Google Scholar; Rachel Ehrenfeld, ‘Rescue Writers from Scourge of Libel Tourism’, 7 October 2009, http://www.nydailynews.com/opinion/rescue-writers-scourge-libel-tourism-article-1.383190; Balin, Robert, Handman, Laura and Reid, Erin, ‘Libel Tourism and the Duke's Manservant – An American Perspective’ (2009) 3 European Human Rights Law Review 303Google Scholar.
220 See text at n 15.
221 See the official site of the Leveson Inquiry, ‘Culture, Practice and Ethics of the Press’ (n 17). See also the Leveson Report (n 18).
222 Defamation Bill (HL Bill 3) 2010– 2011 (UK) (introduced on 26 May 2010), details and progress can be traced at the official site, http://services.parliament.uk/bills/2010-12/defamationhl.html.
223 Draft Defamation Bill, Ministry of Justice Consultation Paper CP3/11, March 2011, http://www.guardian.co.uk/law/interactive/2011/mar/15/draft-defamation-bill-libel-reform.
224 The Joint Committee Report on the Draft Defamation Bill, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtdefam/203/20302.htm. For a summary of the Joint Committee's recommendations see ‘Joint Committee Publishes Report on Draft Defamation Bills’, 19 October 2011, http://www.parliament.uk/business/committees/committees-a-z/former-committees/joint-select/draft-defamation-bill1/news/publication-report/.
225 See Libel Reform Campaign response to the Joint Scrutiny Committee report, ‘Scrutiny Committee of the Draft Defamation Bill Report Today’, undated, http://www.libelreform.org/news/510-scrutiny-committee-of-the-draft-defamation-bill-report-today. See also ‘The Government's Response to the Joint Scrutiny Committee on the Draft Defamation Bill Report’, February 2012, http://www.parliament.uk/documents/joint-committees/Draft%20Defamation%20Bill/Government%20Response%20CM%208295.pdf.
226 Index: The Voice of Free Expression, http://www.indexoncensorship.org/about-index-on-censorship/; English PEN, http://www.englishpen.org/; Sense about Science, http://www.senseaboutscience.org/pages/keep-libel-laws-out-of-science.html.
227 Following California's Code of Civil Procedure s 425.17 (2009), other states had adopted various types of anti-SLAPP law. The Citizen Participation Act of 2009, HR 4364, 111th Congress (2009) was introduced in the US Congress. See also Donson (n 68); Nadarajah and Griffin (n 68); Brown, Samantha and Goldowitz, Mark, ‘The Public Participation Act: A Comprehensive Model Approach to End Strategic Lawsuits Against Public Participation in USA’ (2010) 19 Review of European Community and International Environment Law 3CrossRefGoogle Scholar; Ogle (n 68). See also the official site of the California Anti-SLAPP Project, http://www.casp.net/.
228 ‘Australian Independent Inquiry into the Media: Issues Paper Published’, 10 May 2012, http://inforrm.wordpress.com/2011/10/05/australian-independent-inquiry-into-the-media-issues-paper-published/. French, Robert, ‘Protecting Human Rights Without a Bill of Rights’ (2010) 43 John Marshall Law Review 769Google Scholar.
229 Quan v Cusson [2009] SCC 62.
230 Iain Overton, ‘New Defamation Bill “To Protect Freedom of Speech”’, 9 May 2012, http://www.thebureauinvestigates.com/2012/05/09/new-defamation-bill-to-protect-freedom-of-speech; Rachit Buch, ‘Comment: How Will the Defamation Bill Protect Free Speech?’, 20 May 2012, http://ukhumanrightsblog.com/2012/05/20/comment-how-will-the-defamation-bill-protect-free-speech.
231 Rendleman, Doug, ‘Collecting a Libel Tourist's Defamation Judgment?’ (2010) 67 Washington and Lee Law Review 467Google Scholar; McFarland, Robert L, ‘Please Do Not Publish This Article in England: A Jurisdictional Response to Libel Tourism’ (2010) 79 Mississippi Law Journal 617Google Scholar.