The principle of separation between opinion and facts is not boundless and unconditional. Expressing an opinion, like a factual expression, can also amount to defamation in extreme situations. However, within the framework of defamation laws, there is a clear tendency not to regard the expression of an opinion merely as defamation - as distinct from expressions that purport to establish a defamatory fact (see: Civil Appeal Authority 817/23 New Contract Association v. MK Zohar, paragraph 18 [Nevo] (30.5.2023) (hereinafter: Interest New Contract Association); and Khaled Ganaim, Mordechai Kremnitzer and Boaz Schnur Defamation Laws: The Common Law and the Desired Law 97 (Second Edition Extended 2019)).
- In the present case, we are dealing with, as stated, one of the "seam expressions" in relation to which it is not possible to apply the principle of separation as it is. As a result, and due to the prevalence of expressions such as "corrupt" in the public discourse (for better or for worse) - I believe that we are dealing with a legal issue that needs clarification. This issue is important because the decision on it sets boundaries between "defamation" as a prohibited act and freedom of expression. In my opinion, this is the first ground for which we would do well to hear the application before us as an appeal.
- 00The second reason for holding such a hearing - which is no less important than the first - is a legal error that occurred in the judgment of the District Court. In its judgment, the District Court did not explain why the respondent's words are, at most, an "opinion", and why the Magistrate's Court's conclusion is erroneous against the background of the factual context that is the subject of the hearing. The District Court ruled that Asher was a purely legal matter; according to him: "It was not without hesitation that I finally reached an opinion that the value of freedom of expression should be preferred to the right to a good name in the case before us. [...] It seems to me that the appellant's words should be regarded as an expression of opinion and not as a determination of facts" (see: paragraph 10 of the District Court's judgment). His ruling draws a general legal conclusion that "subjective insults", such as "corrupt", will always be classified as an expression of an opinion that cannot be perceived by a "reasonable person" - or by others, as defined in section 1(1) of the Prohibition of Defamation Law - as a factual description that attributes to the victim of that "subjective insult" acts of corruption or criminality. This determination is a legal error, since it assumes in advance - without examining the circumstances of the specific case - that a statement such as "corrupt" always remains a "subjective opinion" that does not refer to the facts, and which, as a rule, does not lead to liability for defamation. This, whereas in defamation law, the examination of the "seam expressions" - "corrupt", "liar", "criminal", etc. - must be done by way of careful treading from case to case, and not in a comprehensive and sweeping manner. This error of the District Court justifies - and in my opinion, even requires - an appellate intervention "in a third incarnation".
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- The third reason for holding such a hearing is related to another important matter: the division of duties between the trial court and the appellate court. Seam expressions like "corrupt, " "liar, " or "criminal" can fall on either side of the seam. In some cases, these expressions will appear to people as factual expressions that amount to defamation, as happened with the phrase "corrupt" in the Bentley case and, for example, in the Silsdorf v. Levine, 449 N.E.2d 716,718-721 (N.Y. 1983). In other cases, such expressions - and in particular, the expression "corrupt" - will be seen by the "reasonable person" as expressing a subjective opinion that does not fall within the scope of defamation (for examples that represent this classification within the framework of a parallel doctrine of American defamation law, see: Lyons v. Heid, 1998 WL 309797 (Conn. Ct. 1998)). Thus, in some contexts, the word "corrupt" can be perceived by people as a specific meaningless insult, which is nothing more than an expression of opinion, whereas in other circumstances, the very same word can be perceived as referring to facts that imply the commission of corrupt acts by the person in question (see: Irizarry v. Zelaya, 244 A.D.3d 591,592-593 (N.Y. App. 2025)). In all of these cases, the trial court plays a central and decisive role in classifying the seamless expressions such as "corrupt", which unfortunately became too common in the discourse that takes place in various public spaces (as Justice Y. Willner commented in the New Contract Association). The trial court is the one that must determine whether we are dealing with defamation, taking into account the totality of the circumstances, which also include the advertiser's state of mind and intentions. The publisher's mood and intentions do not, of course, determine the meaning of the offensive statement in the eyes of others, but malicious intent, lack of good faith, and the desire to harm others increase the probability of "hitting a target" and causing people to think that the person described as "corrupt" is indeed engaging in criminal or other acts of corruption.
- For this reason, in the absence of a clear error in the judgment of the trial court, its determination as to the specific context and circumstances of the expression "corrupt" and similar is a final word, since, as a rule, the appellate court should refrain from intervening in such determinations.
- As I will see right away, in the case before us, the District Court deviated from this principle, interfered in the judgment of the Magistrate's Court and rendered it without any apparent arbitrary reason. This reversal of the judgment, while replacing the concrete rulings of the Magistrate's Court with a general legal statement, which is not derived from the language of the law, amounts to a substantial distortion of the law, which is added to the other reasons calling for our intervention.
- The Magistrate's Court's judgment is based on findings of fact regarding the meaning of the word "corrupt" in the concrete context in which it was written and published, as a word that purported to describe the Applicant's action. These findings were determined on the basis of evidence that was directly impressed by the Magistrate's Court. Intervention in these findings was not justified and in any case was not required for any reason.
- The Magistrate's Court ruled that in mentioning the word "corrupt" in the context of its publication, the respondent sought to express a fact and attribute to the applicant a criminal This conclusion was learned by the court, inter alia, from the testimony of the respondent during the evidentiary hearings:
"The expression 'corrupt' attributes a negative character trait to the plaintiff and presents him as a criminal, and this is also learned from the testimony of the defendant, when he called the plaintiff corrupt and criminal, and thus made a connection between the expression 'corrupt' and the expression 'criminal' as this is also perceived by the public" (see: paragraph 19 of the Magistrate's Court's judgment; emphasis in the original - A.S.).