The Israeli law of defamation: a comparative perspective and a sociological analysis.

Abstract

Driven by the observation that social conventions greatly influence the law of defamation, which varies dramatically across jurisdictions, this Article explores and analyzes the central features of this legal field in Israel. The Article's basic finding is that the Israeli legislature and Supreme Court are ideologically divided with respect to the appropriate balance between the competing interests in defamation law; while the former is inclined to emphasize the right to reputation, the latter contemporarily gives preference to the freedom of speech. The apparent reason for this difference in approach, the Article demonstrates, is the fact that Israeli defamation law is essentially an incoherent mixture of principles and perceptions drawn from four legal systems: the legislation is based on English law, German law, and Jewish law, whereas American law heavily inspires the court rulings. The Article finally argues, based on studies that addressed the sociological dimensions of defamation law, that the said jurisprudential choices stem from their perceived suitability to social conceptions prevailing in Israel. As the article explains, the complexity and dynamic nature of Israeli society, in addition to the foreign influences it absorbed, engendered different social conceptions in different times and among different sectors, hence the conflicting legal transplantations.

Examining the contrasting viewpoints that evolved in the Israeli defamation law and placing them in comparative and sociological contexts thus provide a new perspective on processes in Israeli society and politics, on Israel's position in the spectrum of legal systems, on the global impact of various cultures and legal traditions, and even on the phenomenon of defamation law as such.

I.   Introduction                                         737

II.  THE ISRAELI LAW OK DEFAMATION: MAIN CHARACTERISTICS  741
     AND  TRENDS

     A. The Roles of the Legislature and the Courts in    741
     Designing the Law of Defamatiom

     B. The Constitutional Framework of Defamation Law    741

     C. The Balance between the Right to reputation and   746
     the freedom of speech: the Theoretical-Rhetorical
     Level

     D. The Balance between the Right to Reputation and   749
     the Freedom of Speech: The Practical Level

     1. Defamatory Meaning                                750

     a. General.                                          750

     b Defamatory Meaning and Social Controversy          751

     2. The Recognized Victims of Defamation              753

     3. State of Mind Requirements.                       755

     4. Truth and Falsity                                 756

     a. The Propriety of Judicial Determination of Truth  756
     and Falisity

     b. Turth as a Qualidied Defense                      757

     c. The Implication of Post-Publication Occurrences   757

     d. The Burden of Proof                               759

     5. Statements of Opinion,                            759

     6. Additional Defenses and Privileges                761

     7. Remedies                                          763

     a. Damages                                           763

     b. Prohibitory Injunctions                           763

     c. Mandatory Injunctions                             764

     8. Conclusion                                        765

III. THE JURISPRUDENTIAL FOUNDATIONS OF THE ISRAELI       766
     DEFAMATION LAW: DIVERSE LEGAL TRANSPLANTATIONS,
     CONFLICTING SOURCES OF INSPIRATION.

     A. The English Basis of the Defamation Act           767

     B. The Statutory Balancing and Its German            768
     Inspiration

     C. The Moral Effect of Jewish Law                    773

     D. The American Spirit Underlying the Supreme        774
     Court's Jurisprudence

IV.  THE SOCIOLOGICAL UNDERPINNINGS OF THE ISRAELI        778
     DEFAMATION LAW

     A. Defamation Law and Society: the Paradigmatic      779
     German-American Contrast

     B. The Defamation Act and Israeli Communitarianism   782

     C. The Supreme Court's Jurisprudence and             787
     Modern-Day

     D. The Definition of Libel, Social Fragmentation,    790
     and the Extent of Tolerance for Schismatic Views

V.   CONCLUSION                                           795

I. Introduction

Studying the application of defamation laws by any given jurisdiction can reveal much about that jurisdiction. Located at the intersections between private law and public law and between law and society, defamation law is indicative of political culture and core social values. Most enlightening, in this context, is how a legal system achieves balance between the right of reputation and freedom of speech.

The significant influence of domestic society, culture, and ideology on the content of defamation law, which appears to be greater than in most other legal fields, is visible from the well-known comparison between the United States and European countries. Despite the fact that the United States and Europe generally share a Western ideology and commitment to fundamental democratic values, their social and cultural differences create discernable contrast between their defamation laws. That contrast is so sharp that American libel victims increasingly cross the Atlantic Ocean to file suits where the chances of winning are dramatically higher, (1) and U.S. courts routinely deviate from the deeply rooted comity principles and refuse to enforce European defamation judgments. (2) Exploring national defamation laws outside the familiar American and European contexts and positioning them against broader social background could thus yield further scholarly insights.

The State of Israel seems particularly worthy of such inquiry. The fierce political conflicts involving Israel are the subject of vigorous international public and academic debates, often focusing on the extent to which the State and its various governmental institutions are committed to democratic values and human rights. At the same time, substantial transformations in Israeli society, generating tensions between traditionalism and modernism and between solidarity, individualism, and stratification, raise material questions regarding the gravity and interrelations of the opposing trends. In both matters, which are seldom analyzed through the prism of private law, the features of Israeli defamation law may provide an interesting angle of observation. Another relevant topic is Israel's position on the spectrum of legal systems. Due to various historical and social reasons, Israeli law has been highly open to diverse foreign influences; tracing the inspirational sources of any specific legal field could shed light on the legal system's general tendencies. The following Article aims to address these issues.

The basic finding of this Article is that the Israeli legislature and Supreme Court are ideologically divided with respect to the appropriate balance between the competing interests in defamation law. While the former is inclined to emphasize the right to reputation, the latter contemporarily gives preference to the freedom of speech. The picture is further complicated by the fact that the control over the shape of the law is shared more or less equally between the two institutions. On the one hand, a statute regulates defamation law in its entirety. This statute, for the most part, is not subject to constitutional scrutiny. On the other hand, the Supreme Court, which has the final word in the application of the law, often looks for statutory loopholes that enable the Court to employ discretion or creative interpretations. (3) The Court's judicial activity during the last two decades has indeed changed positive law in many aspects.

When trying to identify the causes for this difference in approach, it first becomes apparent that the Israeli defamation law is essentially an incoherent mixture of principles and perceptions drawn from four different legal systems: the legislation draws from English law, German law, and Jewish law, whereas the court rulings rely on American law. The influence of these laws on the Israeli defamation law is often exposed through explicit statements made by policy-makers. (4) On other occasions one can infer this influence from a comparative examination of the applicable laws, coupled with the concurrent observation that the above legal systems heavily inspire the Israeli law in general.

Theoretically, one might argue that the described phenomenon results from the appreciation of the various policy-makers for the virtues of the foreign defamation laws. However, it can be assumed that deeper reasons underlie their jurisprudential choices. While any law may be the product of a myriad of factors--historical, economical, institutional, political, gender-related and so forth--as indicated by the abundance of analytical approaches to law, this Article will handle the sociological aspects of defamation law. Scholars who explore defamation laws and free speech jurisprudence commonly emphasize this dimension, and more significantly, it seems most relevant to the Israeli case.

The principal social trait dictating the features of defamation law--to which, inter alia, the American-European divide is attributable--is the conventional perception of the relations between individual and community. According to the academic literature, societies characterized by communitarianism and by internal solidarity, which believe that personal identity is derived from membership in the community and link such membership to the esteem of others, attach great significance to the protection of reputation and limit individual choice for that purpose. Conversely, a society marked by individualism, which regards the person as a free-standing entity whose essence precedes any relation with others and emphasizes his liberty of action, is prone to underestimating reputation and to cherishing the freedom of speech.

This sociological theory is applicable to the Israeli defamation law. As this Article will explain, the conflicting reputation-protective and speech-protective elements of the law correspond to communitarian and individualistic trends, respectively, which have prevailed in Israeli society in different times and among different sectors. The legislature enacted the statute, which provides extensive protection for reputation, in an era of considerable communitarianism. (5) And the statute endured because of the persistence of communitarian features in some aspects of social life and in certain segments of society. (6) On the other hand, the court rulings favoring free speech have been rendered in an age of much greater individualism. (7) While individualism is not a pan-social trend, it has pervaded the sectors that are most powerful in all cultural, economic, and professional arenas, including the Supreme Court itself. Importantly, both communitarianism and individualism stem in part from the influence of certain cultures with which Israel is historically, socially, or politically linked; these are the same cultures whose laws inspired the Israeli defamation law.

Apart from the general balance between the right to reputation and the freedom of speech, sociological analysis also seems relevant to the distinct topic of the definition of defamation. Due to the fragmentation of Israeli society into separate sectors that demonstrate increasing antagonism toward each other, (8) the law increasingly has to deal with derogatory utterances directed at individuals and which express repulsion toward an entire social group. (9) The dilemma of whether or not to respect such antagonistic positions elicited, once again, different responses from the legislature and the Supreme Court. (10) While this issue deviates from the general concern of this Article--and thus will not be discussed at length--this Article will demonstrate that both contexts do share some similar themes. Namely, the foreign orientations and sociological perceptions that underlie the principled balancing applied by the legislature and by the Court are essentially the same ones that guide their respective positions regarding the definition of defamation.

Portraying the said social processes and contextualizing the Israeli defamation law within them can serve two purposes. First, it would provide the jurist with a better understanding of the development of the law. Second, it might help the social scientist to determine the scope, essence, and nature of the conflicting phenomena and to analyze their interactions.

The first Part of the following Article will be dedicated to a descriptive analysis of the Israeli law of defamation. After a brief overview of the principal normative, structural, and institutional aspects of this legal field, the Article will present in detail the legislative and judicial approaches. That discussion naturally will not be able to encompass all principles and doctrines of the Israeli defamation law. Instead, it will concentrate on the central legal issues. It should also be clarified that the aim of this survey is to present a snapshot of the law as it is today; only incidentally will it refer to historical provisions and rulings that are no longer in force. Part II will demonstrate the tight relationship between the major--and often conflicting--perceptions and principles governing the Israeli defamation law, and the defamation laws of four other legal systems. II will also explain how and why those legal systems have influenced Israeli jurisprudence. Part III will transcend the jurisprudential discourse and assert that the sources of inspiration were chosen because the various policy-makers believed them to suit the conceptions of Israeli society. The complexity and dynamic nature of Israeli society, so it will be contended, led to a divergence of social conceptions, hence the opposing legal transplantations.

II. THE ISRAELI LAW OF DEFAMATION: MAIN CHARACTERISTICS AND TRENDS

A. The Roles of the Legislature and the Courts in Designing the Law of Defamation

The Prohibition of Defamation Law, 5725-1965 ("the Defamation Act" or "the Act") governs Israeli defamation law. (11) The Act replaced chapters in the Civil Wrongs Ordinance, 1944, (12) and in the Criminal Law Ordinance, 1936, (13) which the British originally enacted during their Mandate over Palestine. The Defamation Act defines libel both as a civil wrong and as a criminal misdemeanor. (14) It aims to cover all aspects of liability, namely, the definitions of publication and defamatory content, the defenses, and the remedies, in addition to several procedural rules. Each and every statutory provision reflects a certain balance between the right of reputation and the freedom of speech that the legislature deemed appropriate in its respective context, and the courts are bound by the legislative policy decisions. (15)

Yet, as the Israeli Supreme Court proclaimed, the legal practice raises many questions that may not be resolved by reference to the Defamation Act alone. This is so where the statutory text requires interpretation, and where the Act endows the judge with discretion as to its application. Since, according to the Court, the legislature did not manifestly assign relative weight to the interests at stake and did not prescribe any general, theoretical balance between them, only principled judicial balancing can decide these issues. The Supreme Court has further held that the purpose of the Act as well as the general principles of the Israeli legal system must guide this process of balancing. (16) The interpretations and discretionary guidelines determined by the Supreme Court are binding upon lower courts. (17)

B. The Constitutional Framework of Defamation Law

Israel, like several other countries that inherited the common law tradition, has no formal, full-fledged constitution. Instead, the parliamentary-enacted eleven Basic Laws form the upper layer of the legal system's normative pyramid. While most of them concern the structure of the political regime and determine the composition and competences of the principal branches of government, two anchor the protection of human rights: (18) Basic Law: Freedom of Occupation, (19) which has little, if any, impact on defamation law, and more relevantly for our purposes, Basic Law: Human Dignity and Liberty. (20) Since the said Basic Laws were enacted only in 1992, it is appropriate to discuss separately the legal situation before and after that point.

Until 1992, most fundamental human rights received no explicit statutory protection. (21) However, they were judicially elevated to a semi-constitutional rank. In a long line of judgments the Supreme Court ruled that those rights form a part of the legal system's general array of norms, and as such amount to positive legal principles and bear upon all laws--though they may be trumped by an express provision in primary legislation. (22) The Court placed special emphasis on the freedom of speech, which the Court labeled the "cornerstone of democracy." (23) Beginning with a 1953 landmark decision, the Court often resorted to statutory interpretations that minimized restrictions on the freedom of speech and nullified administrative actions that unduly impinged on it. (24) Freedom of the press, regarded as one manifestation of the freedom of speech, was granted similar treatment. (25) That approach found expression, inter alia, in interpretations of the Defamation Act, which enhanced the protection of the freedom of speech. (26) At the same time, the Court also acknowledged on occasion the fundamentality and preciousness of the right to reputation. (27) That right obtained less attention within the constitutional discourse since, as opposed to the freedom of speech and to other basic rights, it received unequivocal statutory protection under the Defamation Act itself.

The 1992 enactment of the human rights Basic Laws brought about what is commonly referred to as the "constitutional revolution." The Supreme Court ruled that the new Basic Laws are normatively equivalent to a constitution, and that primary legislation violating them may thus be invalidated judicially. (28) Insofar as Basic Law: Human Dignity and Liberty is concerned, the competence of nullifying legislation is constrained by an express provision, according to which that Basic Law does not affect the validity of any law in force prior to its commencement. (29) Nevertheless, the Supreme Court held that all legislation ought to be interpreted in view of the Basic Law, while attaching even greater weight than before to the constitutional rights and intensifying their protection inasmuch as the laws permit. (30) Furthermore, although only governmental authorities are required under the Basic Law to respect the constitutional rights, the Court determined that those rights are also applicable in the relations between private persons and entities. They are infused to that realm through judicial interpretation and application of private law legislation and doctrines. (31)

The preceding observations illuminate the potential impact of Basic Law: Human Dignity and Liberty on the law of defamation. On the one hand, the Defamation Act, which was enacted in 1965, is immune from constitutional scrutiny, save for a few minor amendments that were enacted after 1992. On the other hand, the interpretation and application of its provisions may be affected, in principle, by the rights enshrined in the Basic Law. What are these rights, then?

Basic Law: Human Dignity and Liberty bestows constitutional protection upon several enumerated rights and freedoms. These are the right to life, bodily integrity, property and privacy, the right to freely enter and leave the country, freedom from incarceration, arrest and extradition, and human dignity. (32) It is, of course, the latter right--the right to dignity--that is relevant to the interests at stake in defamation law. (33)

As human dignity may be linked rather easily with the interest in maintaining one's honor, the Supreme Court, did not hesitate to hold that the right of reputation now enjoys a constitutional status. (34) That stance also finds solid support in the academic literature. (35) Significantly, the Basic Law not only prohibits the government and all of its subdivisions from infringing on human dignity, but it also demands that they affirmatively protect that right. (36) The latter provision fortifies to an even greater extent the applicability of the constitutional right of reputation to ordinary defamation cases, where the speaker is a private person or entity; apparently, the state is obliged to grant relief, through its court system, to any person whose reputation has been unjustly harmed by another individual. (37)

Deriving the freedom of speech from the Basic Law's provisions required a more sophisticated analysis, but the Supreme Court seemed determined to meet the challenge. As a starting point, the Court declared that human dignity is an "umbrella value" guaranteeing rights that are not explicitly mentioned in the Basic Law. (38) Then, adopting a Kantian view of human dignity, the Court held that the concept encompasses the autonomy of individual will, the freedom of choice, and all inherent aspects of humanness. (39) These values, according to the Court, include one's liberty to speak and to hear others' speech, to develop one's personality, to form ideology, and to achieve self-fulfillment. (40) Thus, in an ever growing number of decisions rendered by various Justices, freedom of speech has been regarded as a part of the constitutional right to dignity. (41) The Court's approach, which has been accepted by parts of the Israeli legal community, has also met with criticism. Thus, given the indisputable fact that the freedom of speech was deliberately omitted from the Basic Law by the parliament, (42) several scholars argued against the Court's blatant disregard of the legislative intent. (43) Critics further contended that the right to dignity, which is intrinsically valuable and individual-oriented, hardly connotes the crucial collectivist and consequentialist aspects of the freedom of speech, and that the Court ignored this matter as well. (44) Yet, for the time being the position of the Court remains unchanged. Though the ultimate application of this position--the invalidation of a statute based on violation of the freedom of speech--has not taken place yet, it is not unreasonable to expect it in the near future.

As it can be discerned, the contrast between the legislature and the judiciary, which stands at the center of this Article, is not found only with respect to the specific rules of defamation law, or even regarding the general balance between the interests at stake, which will be discussed below at length. Rather, it is already apparent in the context of a much more fundamental question concerning the very inclusion of the freedom of speech among the legal system's core values. In any case, the Supreme Court's authoritative determinations constitutionalized the freedom of speech, thereby offsetting the indisputable constitutionalization of the right to reputation. Since Basic Law: Human Dignity and Liberty does not provide for any hierarchy between the two constitutional rights (45)--if only because it does not refer to the freedom of speech--the constitutional point of departure for the defamation law analysis is essentially the same as it was prior to 1992. Namely, absent any particular balance between the competing rights dictated by a superior norm, both the legislature and the judiciary consider themselves free to form their own balance in accordance with their ideological perceptions. The former does so by adhering to the 1965 Defamation Act--and also by amending it slightly from time to time--and the latter, by-interpreting it. The following Part examines their respective positions as to the law of defamation.

C. The Balance between the Right to Reputation and the Freedom of Speech: The Theoretical-Rhetorical Level

The collision between the right to reputation and the freedom of speech is at the core of defamation law, and it manifests in each of its sub-areas. Any particular rule or doctrine reflects a certain balance between the two, favoring--at least to some extent--one interest over the other. A systematic design of a jurisdiction's defamation law should therefore commence with a calculated decision as to the appropriate balance. Many legal questions may only be resolved following an ideological, principled determination regarding the relative weight to be attached to the right of reputation on the one hand and to the freedom of speech on the other. Such determination may cover sweepingly the entire law of defamation, or it may be context-specific, in theory, different balancing could apply to the definition of libel, to the defenses, to the burden of proof, and to the remedies, and it might also vary in accordance with the type of plaintiff, the type of defendant, or the subject matter that are concerned.

In the United States, for example, the Supreme Court held that the maintenance of an 'uninhibited, robust, and wide-open" debate concerning public figures is of a far greater normative importance than those individuals' right to reputation; that the former interest is slightly less crucial where private persons involved in public matters are concerned; and that the relative weight of the freedom of speech further decreases where the publication at hand concerns a private person and a private matter. In practice, these principled determinations led the Court to condition the liability for defamation in each of the portrayed scenarios upon a different state of mind requirement--a strict requirement in the first, an intermediate requirement in the second, and a low requirement in the third. (46)

In a similar vein, the practical features of the Israeli defamation law are inevitably the product of the respective lawmakers' ideological positions and principled balancing. While not always explicit, the legislature and the judiciary occasionally declare these positions.

The general notions underlying the Defamation Act are not proclaimed in the statutory text, but an examination of the legislative history might provide some hints about them. The Defamation Law Bill, which the Legislation Department at the Ministry of Justice drafted under the supervision of the Minister of Justice, states in its explanatory notes that it is designed to strengthen the protection provided to defamation victims in comparison with the preexisting legal situation. (47) The Minister of Justice further said, upon introducing the bill to the parliament, that the Act was intended to redress the old law's inadequate protection of reputation. (48) The approval of the Act in 1965 by a majority of the parliament members presumably reflects their agreement with the said rationale.

The Supreme Court, on its part, has sought to form its own principled balancing, for the purpose of statutory interpretation and employment of judicial discretion, independently of the legislative approach. Throughout the years the position of the Court has shifted sharply at least twice.

The first major discussion of the appropriate balance between the right to reputation and the freedom of speech was conducted within the Electric Company affair, in the late 1970s. At first, a three-Justice panel of the Supreme Court, in a 2-1 majority opinion, took the view that the freedom of speech is of paramount status in the Israeli legal system, and that it is consequently superior to the right of reputation, especially when criticism of public officials is concerned. (49) The Court then held an exceptional Further Hearing procedure. Four of the five Justices who composed the special panel rejected the theoretical approach dominating the first judgment. Justice Landau, writing for the majority, ruled than neither of the competing values should be attributed special weight vis-a-vis the other. He remarked that if he had to define a hierarchy between them, he would place the right of reputation at a higher rank, emphasizing the societal dangers of defamation. (50)

A decade later, the tone of the Supreme Court changed again. In the 1989 Auneri decision, a three-Justice panel led by Justice Barak declared unanimously that the public interest in the free exchange of information on public figures and public affairs is to be given greater weight than the right of reputation. (51) The Court added that when in doubt, it is better to err on the side of free speech. (52) In taking this view, so it is commonly believed, the Court reversed its previous Electric Company ruling. (53) However, one must regard the particular facts of that case and the nuances of the judgment. The plaintiff requested the Court in Avneri to enjoin the publication of allegedly defamatory material, which is arguably the most far-reaching remedy available in defamation law. (54) Moreover, the plaintiff sought …