The hearing in the application
- On April 26,2026, I determined that the request required an answer. I also instructed the parties to submit their arguments in writing, as stated in Regulation 138(a)(2) of the Civil Procedure Regulations.
The parties' arguments
The Applicant's Arguments
- The Applicant argues that the application for leave to appeal raises a fundamental issue dealing with the tension between freedom of political expression and the right of an elected official to a good name and honor. The Applicant emphasizes that the legalization of offensive expressions towards elected officials creates a destructive message that pollutes the public sphere and deters worthy people from joining the public service. The Applicant argues that the District Court erred in reversing the judgment of a trial court, which conducted a full evidentiary proceeding and heard witnesses - even without holding an oral hearing and without giving an unmediated impression of the parties. The Applicant notes that the District Court ignored findings of fact and reliability, including the Magistrate's Court's determination that the Respondent acted maliciously and in bad faith. The Applicant argues that the classification of the Respondent's words as an "expression of opinion" and not as a "determination of fact" was erroneous, all the more so when the Respondent himself tried to prove his words as "truthful" within the framework of the "I spoke the truth" defense. Finally, the Applicant argues that the District Court's judgment contradicts other rulings, in which it was held that setting limits on defamation is necessary in the political arena as well.
The Respondent's Arguments
- The respondent relies on what is stated in the judgment of the District Court. He further argues that the application does not raise a new issue of principle, and therefore there is no justification for holding an appeal "in a third incarnation". According to him, the Applicant is taking advantage of the power disparity between the parties and his status and economic advantage in order to file a baseless "silencing lawsuit", with the aim of silencing public criticism. The Respondent argues that his words are an expression of a legitimate opinion made in good faith, and not a determination of fact, and that they express a personal andsubjective conclusion stemming fromdisgust with the Applicant's activity in connection with the Law for the Elimination of the Ground of Reasonableness, which in his opinion was "unconstitutional". The Respondent emphasizes that freedom of political expression is at the core of the right tofreedom of expression and deserves broad protection, especially as we are dealing with criticism of people who hold public positions in which the public has an interest. The Respondent further argues that the application of Regulation 138(a)(5) of the Civil Procedure Regulations, which allows for the rendering of a judgment on the basis of pleadings only, does not infringe on the right of any of the parties; and that the District Court acted lawfully and gave a reasoned and correct ruling.
Copied from NevoDiscussion and Decision
- The parties placed before us detailed writings, and therefore I am of the opinion that it would be good if we heard the Applicant's application as an appeal and decided the appeal on the basis of these writings, as outlined in Regulations 138(a)(5) and 149(2)(b) of the Civil Procedure Regulations. I will also suggest to my colleagues that the appeal be accepted, that the judgment of the District Court be annulled, and that the judgment of the Magistrate's Court be restored.
- After reviewing the texts and considering the arguments of the parties, I have reached the conclusion that the District Court erred in intervening in the Magistrate's Court's judgment. Words such as "corrupt", "liar", "criminal", etc., sit on a seam that connects statements that fall within the scope of "opinion" to statements of factual significance (hereinafter: "the seam expressions"; and in their case, see the guiding judgment on a parallel issue that arose within the framework of American defamation law: Milkovich v. Lorain Journal Co., 497 U.S. 1,18-21 (1990). See also: Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) (hereinafter: the Bentley case) - a judgment given by the Supreme Court of Texas, which ruled that in ordinary discourse expressions such as "corrupt" are often perceived as referring to facts that include criminal or corrupt acts attributed to the person about whom the remarks were made, and therefore amount to defamation).
- The words of "opinion, " as their name implies, express the subjective opinion of the person who says them, and nothing more. They do not describe reality as it is, and therefore do not fall within the realm of truth or falsehood. As a result, expressions of opinion, which are perceived as such by those who read or hear them, cannot, as a rule, amount to "defamation." This is because, in the legal umbrella we are dealing with, matters are determined through the eyes of a reasonable person - "the people", which is referred to in section 1(1) of the Prohibition of Defamation Law, 5725-1965 (see: Additional Civil Hearing 2121/12 Anonymous v. Dayan-Orbach, IsrSC 67(1) 667,858 (2014)).
- The Supreme Court noted this guiding principle (hereinafter: the principle of separation between opinion and facts or the principle of separation) Other Municipality Applications 334/89 Michaeli v. Almog, IsrSC 46(5) 555 (1992):
"The rationale for the separation between fact and opinion, and for the increased protection of the expression of opinion, is that the reader usually relies on the facts as true, whereas in his reference to opinions, which pretend to be the opinions of the publisher and nothing more, his approach is probably more skeptical, and he will try to form his own opinion about the said facts. In finding the balance between the tendency to ensure freedom of expression on the one hand, and the protection of the good name of the individual on the other hand, there is therefore justification to be more careful with the advertiser with regard to the publication of the alleged facts, and on the other hand to provide him with more liberal protection with regard to the expression of his opinions" (see: ibid., at p. 567).