Thursday, February 09, 2012

The Israeli Supreme Court once again Undermines Democracy and the Rule of Law

The Israeli Supreme Court once again Undermines Democracy and the Rule of Law

The anti-democratic Israeli Supreme Court has now officially
established the definitions and boundaries of freedom of speech and
libel in Israel. They go like this: lying about an Israeli soldier,
falsely accusing him and the army in general of engaging in barbarous
intentional murder, is protected speech. But telling the truth about
an anti-Israel extremist academic is libel.

This week the Supreme Court reversed a lower court opinion in what
has become known as the "Captain R vs. Ilana Dayan" case. Ilana Dayan
runs a TV investigative reporting show in Israel known as "Uvda" or
"Fact." A few years back she did a show that falsely accused an
Israeli army captain in Gaza, Captain R, of intentionally murdering a
school girl who was caught in cross-fire in a firefight with
terrorists in Gaza in 2004. After the broadcast ran, Captain R sued
Dayan and her station for damages in a large libel suit and one. The
presiding judge in than case was Noam Sohlberg, just appointed to
Israel's Supreme Court in the "deal" that also allowed two leftist
Beinisch-clique judicial activists also to join. Sohlberg ruled it
was open and shut libel and ordered damages paid.

The case then went to the Supreme Court, which just ruled that the
fact that the TV broadcast was false is no reason to consider it
libelous and so Captain R gets no compensation for being defamed. The
ruling was written by Deputy Chief Justice Eliezer Rivlin, who retires
from the bench in a few months. After all, says Rivlin, Dayan and her
station THOUGHT the reports about the intentional murder were true AT
THE TIME. So that means what they did was not libel.

This is the same Rivlin who was part of the Supreme Court panel
that refused to overturn the ruling of the Nazareth court in the
Gordon vs Plaut case, and refused to declare that criticizing the
anti-Israel and anti-Semitic political writings of Neve Gordon is
protected speech and not libel. In Israel, treason is always
protected speech while criticism of treason is libelous.

Here is the news report on this week's Supreme Court ruling:

Ilana Dayan acquitted of libeling 'Captain R'

In accepting Dayan's appeal, court found her documentary was correct
at the time of broadcast, so not defamatory.

The Supreme Court acquitted Channel 2 investigative journalist Ilana
Dayan of libel Wednesday over a documentary report on the fatal
shooting of 13-year-old Iman Darweesh Hams by IDF troops in the Gaza
Strip in 2004.

In a 2005 episode of the Uvda ("Fact") news show, Dayan aired an audio
recording of the communications between IDF soldiers at the military
post during the incident. The documentary suggested an IDF commanding
officer, identified only as Captain R., "verified" Darweesh al-Hams's

A military court acquitted Captain R. of all wrongdoing in November 2005.

In 2009, Captain R. successfully sued Dayan and Telad, the former
Channel 2 production company, for libel in the Jerusalem District
Court. In that trial, Judge Noam Sohlberg ruled that Dayan and Telad
had defamed Captain R., and awarded him NIS 300,000 in damages.

Two months later, in February 2010, both Dayan and Telad appealed
against the ruling in the Supreme Court. Captain R. also appealed the
verdict, arguing that the damages the court awarded him were too low.

In Wednesday's ruling, Deputy Supreme Court President Eliezer Rivlin,
Justice Uzi Vogelman and Justice Isaac Amit unanimously accepted
Dayan's appeal, and rejected Captain R.'s. The court also rejected
Telad's appeal, but ordered the production company to compensate
Captain R. with the lesser sum of NIS 100,000.

The panel of justices said that Dayan had not violated the 1965
Defamation Act, because the Uvda documentary included statements that
were correct at the time of their broadcast. The court found that
Dayan had based her story on credible sources and had taken reasonable
steps to verify the facts. The journalist had also been of the belief
that the facts were correct, the court said.

Dayan's documentary focused on an incident that took place in the
morning of October 5, 2004 in a military observation post near the
Philadelphi Route in the southern Gaza strip.

After 13-year-old Hams approached the military post's gate, an
emergency alarm was activated and IDF soldiers opened fire in her

The Supreme Court verdict explains that the 13-year-old girl was shot
as she tried to run away.

Meanwhile, the the post's commander, Captain R., ran towards the gate
to verify that the intruder had been killed. However, at that time,
the commanding officer was not aware of a report stating that the
intruder was "a young girl of around 10 years old," the court said.

In their ruling, the justices noted that the shooting incident had
received considerable media coverage, which included harsh criticism
of Captain R., who was later suspended and indicted in the military

Dayan's documentary was aired on the same day as the the IDF Military
Advocate General served the indictment, which included charges of
obstructing justice, illegal use of firearms, exceeding authority and
conduct unbecoming an officer.

The Supreme Court said the documentary was broadcast at a time when
the military authorities believed Captain R. had committed serious

"The story reflected the truth as the journalist could reasonably
understand it at that time, and facts that were clarified only at a
later stage could not influence the basic truth," the justices said.

The court also found that such a protection – that the facts are
deemed correct at the time of publication – is an essential criterion
of the media's work.

In a statement on Wednesday, Channel 2's Uvda producers said they
welcomed the Supreme Court's verdict, which they added was "founded on
the principles of freedom of speech."

"Ignoring these principles would have been a fatal blow to the vital
role of Israeli investigative journalism," Uvda's statement said.


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