Counsel for the defendants sought to see the publication as part of a poignant public debate. According to them, "Viewing the full segment proves that the statement about the plaintiff's military service was made in the context of criticism of media personnel and media outlets that led a line of cessation of hostilities in Gaza, as opposed to the government's policy (which defendant 1 supports) to continue the war. The statement about the plaintiff's military service, in the context in which it was made, is intended to serve, rhetorically, the argument that those media people have no legitimacy to preach an end to the fighting in Gaza" (paragraph 7 of the defendants' summaries); and also "a picturesque and exaggerated expression intended to undermine the plaintiff's criticism of the government..." (Paragraph 17 of the statement of defense).
- As I will elaborate below, counsel for the defendants pointed to various circumstances, which, according to them, strengthen their position that the defendant's words are an 'expression of opinion'.
- At the beginning of the discussion of this defense, I will mention the wording of section 15(4) 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:
[...]
(4) The publication was an expression of an opinion on the conduct of the victim in a [...] official or public position, in public service or in connection with a public matter, or on the character, past, actions or opinions of the victim to the extent that they were discovered in that conduct."
- The distinction between "fact" and "opinion" was formulated, inter alia, in Civil Appeal 817/23 New Contract v. MK Zohar (May 30,2023; hereinafter: "New Contract Matter"):
"As a rule, a fact is concerned with objective data, with a description of a certain reality; it can be true or false, and it can be confirmed or refuted. [...] An opinion, on the other hand, is a subjective impression, and it does not fit into rigid molds of truth and falsehood. An opinion may be persuasive, reasonable, logical, and vice versa [...]."