H(1) The Normative Basis
- The defenses of good faith, which are listed in section 15 of the Prohibition of Defamation Law, are intended to apply in cases where there is a public interest that justifies protecting the advertiser even in expressions that are not true (Shenhar, 449) for the purpose of providing the defense of good faith, the advertiser must prove that the publication was made by him in good faith and that one of the circumstances specified in the law exists.
- Section 15(2) of the Law grants protection to a person who made a publication in good faith in circumstances in which "the relationship between him and the person to whom the publication was directed imposed on him a legal, moral or social obligation to make that publication." The Supreme Court recognized this provision as establishing a "defense of responsible journalism", which is a defense developed in case law (a matter of additional civil hearing). It was held that in light of the importance of freedom of expression and the existence of an investigative and independent press in a democratic society, "it is appropriate to ensure the existence of responsible journalistic work in order for publications of great value to the public to be published. This is true even where we are dealing with a publication whose truth has not been proven in such a way as to entitle the advertiser to the protection of the truth of the publication" (Matter of Additional Hearing, Civil Dayan, 725). On the special status of the media in defamation law, see: Shenhar, 105)
- The Supreme Court noted the concern of excessive deterrence that would lead to a "chilling effect" and that correct and of public importance would not be published. The Supreme Court also noted that "even an advertiser who acted responsibly and carefully, may discover after publication and in retrospect that he made a mistake and that the publication was in fact not true" and that "in the absence of protection from liability for defamation, a reasonable and rational advertiser may reach the conclusion that the publication of information whose truth has not received legal confirmation constitutes a risk that he is not willing to take upon himself. This is even if the information is examined carefully and carefully" (ibid., 725-726). Accordingly, it was determined that the advertiser would be entitled to protection if he acted carefully and responsibly, even if in retrospect it turns out that the publication is not true.
- In the matter of a civil appeal, the Honorable Justice A. Vogelman (as he was then called) discussed a series of non-exhaustive tests for examining the applicability of the defense (which were adopted in the additional hearing - p. 738). It was determined that the examination would be conducted against the background of the individual circumstances of each case and that the actions of the advertiser and the manner in which the information was published to the general public should be examined.
With regard to the advertiser's actions prior to publication, it was determined that the following parameters should be taken into account: whether the advertiser relied on reliable and serious sources and information. The more sources we are talking about, and the more independent of one another, the greater the credibility of the representation that emerges from them; Whether the advertiser took reasonable measures to verify and clarify the facts of the publication - within the framework of this parameter, it is necessary to examine whether the advertiser requested a prior response prior to publication from someone who may be harmed by it, assuming that he has information that may confirm or contradict the publication; If the advertiser has a subjective belief regarding the correctness and truthfulness of the publication and a belief in the duty to publish ( Civil Appeal Dayan, 491-492).