It was further determined that in cases where the original publication deals with a matter of public importance - the existence of a moral or social obligation to share (the protection of section 15(2) of the Law) will be examined with lenient eyes:
"For we are not dealing with the birth and instruction of defamation, which requires a careful examination of the expression and its balance against the moral and social obligation to publish it, but rather with the sharing of an expression of social importance that is already in the public sphere - with the intention of provoking a discussion or participating in the public debate about it" (ibid., paragraph 57).
See also: Civil Appeal (Jerusalem District) 24734-06-23 Al-Assam v. Tibi, para. 24 (January 15, 2024), where the court assumed that it was justified "to ease the burden imposed on the publisher with regard to the examination of the content in comparison to the burden imposed on the creator of the original content" (in the same matter, it was held that the appellants did not even meet the reduced burden and the checks they carried out prior to the publications were not serious); Civil Veteran in Fast Track Proceedings (Shalom K.S.) 35658-06-18 Dayan v. Hazan, para. 90 (August 13, 2024) where it was held that a "person from the community" who shares a journalistic publication about a public figure in a matter relating to the performance of his position must be protected, and it is determined that he has the protection of good faith in expressing an opinion.
- In the article "Sharing Defamation on Social Networks Following a Civil Appeal 1239/19 Shaul v. Naidly Communications Ltd.", the author of the article, Michal Lavie, proposes to adopt a new model of liability for the online sharer, and to grant immunity from prosecution in situations where it is possible to identify and sue the direct advertising individual who caused the damage. In addition to the aforesaid, Lavie notes that exceptions to the granting of immunity should be recognized: a sharer who adds an expression of opinion or determination, or emphasizes parts of the original post, is in fact creating new content; where the republication involves special effort; When the sharer identifies himself as a journalist, a direct lawsuit against him should be allowed, since the sharing of a piece of information by a journalist may increase its credibility, weight, and the chance that it will be shared further and expand its distribution (Michal Lavi, "Sharing Defamation on Social Networks Following Civil Appeal 1239/19 Shaul Naidli Communications Ltd.", Mishpatim on the website 15 159, 190-191 (2020)). Although this model deals with republications on the Internet, it can also be applied, with the necessary changes, to republications by other means.
- I will now proceed to examine the claims relating to the publications made by defendants 4-6, following the article.
- Advertising on the channel 13
- On January 5, 2022, the day after the article was published on the Politikali website, Channel 13 aired an item on the subject that lasted about 10 minutes. Presenter Eli Rachlin opened the item as follows: "An investigation published on the 'Politikaly Reader' website stirs up the media world." After them, the presenter introduced the editor of Politikali (Defendant 2) who was in the studio and a discussion was held about the investigative report. In this section, the name of the plaintiff is not mentioned. Afterwards, a filmed interview with "Dana" (with face and voice blur) was broadcast about the plaintiff, and was filmed a few hours earlier. Upon its end, the broadcast returned to the studio for the continuation of the interview with defendant 2.
- In the summaries, the plaintiff claims that in the interview, "Dana" made more serious defamatory statements than those attributed to him in the Politikali article. As for defendant 2, who was interviewed before and after the interview with "Dana", it was claimed that in her statements she backed up "Dana's" statements about him, and validated them as being consistent with the findings of her investigation.
- For the purpose of discussion, the item should therefore be divided into two parts. One, the interview that was conducted live in the studio with a political editor; The second, the filmed interview with "Dana". While the interview with "Dana" raises questions in the realm of defamation law, the part of defendant 2's participation is clearly not defamatory. Thus, in the first part of the interview with her the plaintiff is not mentioned at all, while in the second part - after the broadcast of the interview with "Dana" - it is clear that defendant 2 wishes to divert the focus from the plaintiff to the broader phenomenon and to the conduct of the army and the station, while making this explicitly clear in her words. Thus, even when it requires examples, they do not deal with the plaintiff but with other officials at the station (the late Molly Shapira and the late Adi Talmor). Even in the quote attributed to defendant 2 in the plaintiff's summaries (in paragraph 7) in the plaintiff's case, it corroborates the testimony of "Dana" regarding the manner in which the station was handled, and not the acts themselves that were attributed to him. In the summaries of the reply, the plaintiff also notes that if defendants 4 and 5 had been satisfied with covering the article in Politikaly and interviewing defendant 2 in the studio, the lawsuit would not have been filed against them. If so, the argument that defendant No. 2's remarks on Channel 13 constitute defamation against him is rejected.
- I will therefore turn to the arguments of the parties in relation to what was said by "Dana" in an interview with her. In view of my conclusions above, the premise for the hearing is that the defense of the truth of the publication has been proven on the facts presented in the article in Politikali, including that the plaintiff touched the complainant with his shoulders, hair and the inside of his thigh. According to Channel 13 in its summaries, this is a follow-up item on the investigative report, which did not include new factual claims than those directed at the plaintiff in the Politikaly article. According to them, they have the defense of the truth of the publication since it is a matter of re-publication of the matter without verifying or adding to it. The plaintiff, on the other hand, claims that this is not a re-publication, but rather an independent publication that stands on its own, which includes new and more serious defamatory expressions against him.
- Indeed, the "item" on Channel 13 was born following the article in Politikali, and it deals with it. The opening remarks of reporter Eli Rachlin make this very clear, and anyone who watches the article understands that this is the overall context. However, since the item not only reviewed the investigative article and quoted from it - but also conducted an independent interview with one of the complainants that dealt with the plaintiff - according to the criteria I reviewed above, this is independent content that stands on its own and is not re-published. In this situation, the media body is responsible for the things said by the interviewee, and for the possibility that they are not true (subject to the protections available to them under the law). This conclusion is strengthened in light of the centrality of Channel 13 as a well-known and leading media outlet, the television advertising platform and the broadcast date (in the evening before the broadcast of the main edition). These characteristics increase the extent of the affair's exposure in the eyes of the public.
- According to the plaintiff, more serious new facts were included in the interview. The plaintiff relates, inter alia, to the following phrases made by the complainant: "valid";Predator"; "Nosy hands and lewd looks." According to Channel 13, this is a description of the complainant's feelings and opinions. As stated above, the starting point for the discussion is that the defense of the truth of the publication in relation to the plaintiff's actions detailed in the article in Politikaly has been proven. If so, the question arises whether the additional things that Dana said in her interview amount to establishing a fact, or whether it is a matter of feeling and expressing an opinion. I will note now that after watching the interview, I came to the conclusion that in the eyes of the "ordinary viewer" the complainant expressed her subjective feelings, and this is how things are understood.
- The issue of the interpretation of the publication, and whether it should be classified as a matter of fact or an expression of opinion, is sometimes not simple (Ganaim, Kremnitzer and Schnur, 88; See also: Civil Appeal 259/89 Modi'in Publishing in Tax Appeal v. Spiro, IsrSC 46(3) 48, 55 (1992)). In Civil Appeal 817/23 New Contract Association v. MK Zohar, paragraphs 19-25 of the judgment of Justice N. Sohlberg (May 30, 2023), the Supreme Court reviewed the guiding principles in classifying publication in defamation law - as an opinion or as a fact. It was held there that as a rule, a fact assumes a description of a certain reality and objective data and can be confirmed or refuted. An opinion, on the other hand, is a subjective impression, not in rigid patterns of truth and falsehood. In its ruling, the Supreme Court insists that it is possible to interpret a publication in a manner that deviates from its dictionary meaning, and that "in order to distinguish between fact and opinion, one must wear the glasses of the 'ordinary person'" and the manner in which he perceives things (ibid., at paragraph 22). It was also determined that:
"The court before which a defamation claim is being investigated is obligated to examine, in appropriate cases, whether the publication in dispute is a publication that a person from the community understands must be removed from the plain meaning of its words and their dictionary meaning. In doing so, the court must consider the question of what message will be absorbed from the publication; And to take into account that it is not desirable that defamation laws exclude from the discourse pictorial forms of expression, even those that are done by way of exaggeration, when they are devoid of pretension to present facts. This examination, in certain cases, may lead to the conclusion that even though we are dealing with a publication with an external factual appearance ('it is the hands of a certain person who spilled the blood', in one of the examples above), it would be correct to view the matter as a departure from the world of hard facts, towards the expression of an opinion about the object of the publication and its functioning" (Regev, at paragraph 25).
- In order to distinguish between opinion and fact, it is necessary to examine the general impression that arises from the "texture of the article" in the eyes of the reasonable reader that he does not "analyze a detailed analysis of each and every statement" (Civil Appeal 3199/93 Kraus v. Yedioth Ahronoth Ltd., IsrSC 49(2) 843, 857 (1995)). In light of the above, it is important to watch the interview itself for the purpose of classifying the publication, because this way it is possible to get an impression of the tone of speech and body language and to wear the glasses of the ordinary person and the way he perceives things. In this case, although the feelings expressed by the complainant in her interview towards the plaintiff are harsh, watching and listening to the words shows that it is clear from her words what the acts attributed to the plaintiff are - "touching the shoulders, the face, the thigh and caressing lessons" and that the other things she says in the interview reflect her feelings as a result of these acts, which are of a personal and subjective nature, and are not understood as verifiable or refutable facts. As a rule, each section of the publication must be interpreted with regard to the publication as a whole, and "a supposedly offensive statement may be perceived as a statement that does not establish liability when it is examined within the overall context and not in the detachment of words or phrases from the publication" (Shenhar, 211-212). I will now move on to the examination of the expressions to which the plaintiff refers (paragraph 6 of the plaintiff's summaries):
"He doesn't scare me. He attacked me and my washcloth for a few weeks. He would touch us on the shoulders, stroke our hair, touch my thigh inside.... And then I saw him on the air doing it to my wife as well and I went crazy" - the beginning of the sentence expresses a personal feeling and emotion and does not amount to a fact. The continuation of the sentence "He attacked me and my overlap for a few weeks" raises more difficulty in classification, since the phrase "valid" may be seen as a fact assertion by the ordinary viewer. However, the rest of the sentence - "He would touch us on the shoulders, stroke our hair, touch the inside of my thigh" - clarifies exactly what concrete acts she attributes to him (which were protected by the truth, as stated above) and what she means by using the word valid" (touches and caresses). Thus, watching the entire passage makes it clear that the word "valid" does not stand on its own, and even if it is a relatively harsh expression, the actions detailed make it very clear what is meant. I am aware of the argument of defendants 4 and 5 that contact with a person without his consent amounts to the definition of assault under the Penal Law, 5737-1997, but since "Dana" clarifies in her words exactly what is meant by this, this is sufficient, and I am not required to define the Penal Law. The use of the word "I went crazy," at the end of this quote, also strengthens the understanding of the matter as a subjective sharing of her feelings and feelings. In this context, it is important to emphasize that in the interview with her, she often uses metaphorical images (more on that later) and the use of the word "freak" is intended to describe the difficult feeling that gripped her, and not in the literal-lexical sense.