"Under a regime of effective defamation laws, a person who tells lies will bear legal responsibility for what he says, and as a result, there will be an increase in the 'price' that accompanies the publication of false statements, compared to truthful statements. For this reason, it is well known that the listeners knew that the speaker before them had a legal incentive to distance themselves from telling a lie, to stick to the truth. This means increasing trust in advertising. As a result, alongside the fear of a chilling effect, which will lead to a reduction in the 'quantity' of expressions in the marketplace of ideas, there is a warming effect, which has the power to create, at least in certain contexts, a counter-vector that 'attracts' an increase in the 'quantity' of expression, so that certain speakers will choose to express themselves, whereas if it were not for the warming effect produced by defamation laws, which increases the trust given to their words and their potential influence, they would have chosen to remain silent" (Civil Appeals Authority 6557/20, Channel 10, supra, in paragraph 56).
- In the matter of Channel 10 Implement Justice Sohlberg This idea in relation to the characteristics of the applicability of the defense, which confers Section 15(2) The Prohibition of Defamation Law for Publications in the Media and is known by its doctrinal name: "Responsible Journalism" (Additional Civil Hearing 2121/12 Anonymous v. Dr. Dayan-OrbachIsrSC 67(1) 667, 721; 732 (2012)). However, I do not see any impediment to applying it with respect to other elements of the Prohibition of Defamation Law, including already In the first section 36. This follows the understanding that from the tip of its head to its toes, the Prohibition of Defamation Law implements the purposes that underlie it, and that the decision, which is called by the first section of the law, must also base itself on these purposes.
This does not mean that any false expression will necessarily be defined as "defamation" under the first section of the law. However, in the interpretation of any of the alternatives in the section that contain the expression of defamation, there may be weight to the fact that the expression is a lie. In the case before us, I am of the opinion that this is particularly true of the third alternative: publication that is liable to "harm a person in his office, whether a public office or another position, in his business, profession or profession." The attribution, whether seriously or jokingly, of a false occupation to a person may, in the eyes of a reasonable person, detract from the status of his real occupation and thus become defamation. This is what happened, in my opinion, in the matter here. Not only did the defendant's publications yield harassment, but the blatantly false element in them contributed to the perfection of the damage to their good name. The desire to promote the two purposes of the Law: the correction of damage to the good name and the improvement of the discourse by reducing false expressions, leads me to the determination that the publications under discussion here fell within the first section of the Law, i.e., they constitute defamation.
- Here a note is required and without it I do not see the analysis I did - Complete. Although according to them, "strong" defamation laws would contribute to the formulation of the warming result and consequently to the improvement of the quality of the discourse, they could not Porat andThe Hemel Commit to the fact that the result will be only good. They recognized the possibility that a strict defamation regime would produce two more unfavorable outcomes. The first, which the authors called the "substitution effect" ("substitution effect"; Hemel & Porat, Supra, at p. 72), will not motivate those who express themselves to necessarily replace the expression of falsehood with that of truth. He is liable to spur them to convert a lie, in which negative things have been said about a person who is likely to respond with a libel suit; In another false expression, the only "virtue" of which is that it is worded in the affirmative, i.e., it does not determine anything negative about another and therefore will not lead to a suit for defamation. Thus, the laws of defamation will contribute nothing to the truth of the discourse, and it will continue to be a discourse of false expressions.
The other bad outcome, which the authors feared, was the domain of those who were harmed by a statement that was made about them. According to common belief, a "strong" defamation regime helps victims get rid of their slanderers and helps to repair the damage done to their name. However, according to Porat andHamel, such a regime may turn out to be a double-edged sword. It may actually exacerbate the harm to those casualties as a result of what the authors called the "intensification effect"; Id, at p. 76). In the short term, if the discourse is perceived, as a rule, to be more credible, false expressions, which have not yet been convicted of liability in torts, will also be perceived as more credible. Second, if for any reason, unrelated to the degree of reliability of the expression used, the victim does not take a defamation action (for example, because he does not have access to the legal or financial resource) or he sues for defamation and loses, the harm to him will be more severe. This is because the false statement that was made about him will then be confirmed as a reliable statement.
- The question, therefore, is how to increase the positive impact of the laws of defamation on the quality of the discourse and reduce the difficulties that may arise. The response, of course, goes beyond the boundaries of this judgment, but it seems to me that from the individual perspective some solution can be found. First, the publications of the defendant before me, by their nature, were not such that the imposition of liability for defamation would lead to their replacement with other false publications. Take away from the publications the element of untruth in them and take away all their vitality. Second, here we are dealing with those who have already filed a defamation lawsuit and even more so, their claim is well known in court. This may not be a solution to the general difficulty, but it seems to me that the imposition of liability for defamation in such circumstances will benefit the victims more than their possible damage.
- "Publicity" of Defamation
- The other element in the tort of defamation is in the second section The law, which requires the making of "advertising", was also discussed here. This does not require the addition of words. Tweets on the social network are, without a doubt, "publicity" within the meaning of the Prohibition of Defamation Law and the purpose of this law: to prevent the public from bringing contemptuous or ridiculous words to another.
- Defenses?
- The Prohibition of Defamation Law also establishes, in its third chapter, a series of defenses, and by virtue of them, liability will not be imposed in defamation even when the elements of the tort have been met. In section 14 The law has the fundamental protection of the truth of publicity. Article 15 Grants protection to a person who published his publication in good faith in one of the circumstances detailed therein, and in particular for the existence of a sufficiently important personal or public interest. Even before these two sections of protections, the law states, In section 13 For him, something is stronger than protection and can be called "immunity" (Civil Case (Shalom Tel Aviv-Yafo) 52516-10-18 Rabbi Havlin v. Adv. Zana, my decision of June 11, 2019 (published in the databases)). In the alternatives, the fixed In section 13 The law does not impose liability for defamation regardless of the advertiser's intention or the objective purpose of the publication. The protection of the good name will be struck down by important interests that are included in it, and their basis is the desire to enable a governmental, judicial, investigative or critical proceeding without restrictions that are not part of the matter..
- I did not find myself required to re-analyze this aspect in depth, since basically what was written above about the defenses of the tort of invasion of privacy is appropriate here. Even in defamation, I did not find any protection from the law that could stand by the defendant and extricate her from liability in this tort. The defendant's publications were not made under any circumstance, in which the law grants immunity to publication. They did not reflect, there can be no dispute about it, truthful words. No "public interest", as required in the sections 14 & 15 The law and its legal definition does not include false business details about the plaintiffs. The publications were not in good faith, as the defendant knew very well that this element of the publications was not true (Section 16(b)(1) to the law). In this case, too, no important personal interest, not even the interest of the public, was presented, which justified making these statements about the plaintiffs. In particular, the publications were not an "expression of opinion on the conduct of the plaintiffs," even in the context of their public protest. Specifically, I will add that the aforementioned Section 15(10) to the law, that is, that "The publication was made only to condemn or deny the defamation previously published", did not take place. Without the need to rule on the defendant's claim that the plaintiffs also libeled her, it is clear that her publications were not a legitimate response even to such an act.
The defendant is therefore not entitled to wear any of the protective helmets on her head, which the Prohibition of Defamation Law proposes in sections 13-15 thereof.