C1. Protection of Section 15 of the Prohibition of Defamation Law - Conditions of Good Faith:
- In the present case, the defendant did not prove good faith within the meaning of the Prohibition of Defamation Law in the context of the publication of the subject of the dispute.
- As stated above, the defendant is a veteran media person. As such, he must check the facts he publishes. Failure to check facts prior to publication creates a presumption of bad faith under section 16(b) of the Prohibition of Defamation Law:
"The presumption of [...] The defendant who made the publication in bad faith if one of the following was fulfilled in the publication:
[...]
(2) what was published was not true and he did not take reasonable measures before publication to ascertain whether it was true or not;"
- In the circumstances of the case, the defendant's statements were not true and the defendant did not take any action to check their correctness on the eve of the publication. Therefore, the defendant does not have a presumption of good faith publication, but rather a presumption of bad faith in the publication.
- This presumption of bad faith has not been concealed. The opposite is true. From watching the video clip in which the defendant's words were made, one gets the impression that the defendant sought - by way of a sharp public debate - to personally harm the plaintiff and present him as a dodger from military service ("I think he didn't do it at all, he was discharged after two days"), and that he "enlisted" the harm to the plaintiff ("Show me Guy Peleg") in order to reinforce the messages he wanted to convey to his viewers.
In other words, the defendant diverted a substantive dispute to a personal level and 'harnessed' an ideological argument to personally harm the plaintiff. This conduct is not conduct in good faith.
- Counsel for the defendants argued in the matter of good faith that the 'amendment' (defined above) actually testifies to good faith. In the present case, this argument should not be accepted. The amendment - after the warning letter - was envisioned as a move based on (correct) legal advice and does not attest to good faith on the part of the defendant, certainly not in real time.
- In the absence of good faith (within the meaning of the Prohibition of Defamation Law), the other protections of section 15 of the Prohibition of Defamation Law are not available to the defendant; The discussion below of the defenses of section 15(2), (4), (6) and (10) of the Prohibition of Defamation Law is more than necessary.
C2. Protection of Section 15(2) of the Prohibition of Defamation Law - Legal Obligation to Publish
- Counsel for the defendants argued that the defendant has the protection of section 15(2) of the Prohibition of Defamation Law, which states:
"In a trial [...] civil defamation would be a good defense if [...] the defendant made the publication in good faith in one of the following circumstances: