Media Comment: Fact or fantasy?

Israel’s Supreme Court decided last week to reverse a two-year old decision against media celebrity Dr. Ilana Dayan.

By YISRAEL MEDAD, ELI POLLAK
army radio reporter (photo credit: REUTERS)
army radio reporter
(photo credit: REUTERS)
Israel’s Supreme Court decided last week to reverse a two-year old decision against media celebrity Dr. Ilana Dayan. in 2005, Dayan, on her Channel 2 TV documentary program, Uvda (“Fact”), described how Captain R., while commanding a military outpost in the Gaza Strip, confirmed the death of Iman al-Hams, an 13-year-old Arab schoolgirl who had approached the outpost, by shooting her from close range.
The facts, though, were different.
Captain R. was completely absolved by a military court of any wrongdoing.
Jerusalem District Court judge and soon-to- be Supreme Court Justice Noam Sohlberg found Dayan and the production company Telad guilty of libel and fined them NIS 300,000. However, two months later Dayan filed an appeal against the ruling, which was unanimously granted last week by Justices Eliezer Rivlin, Uzi Fogelman and Isaac Amit, although they ordered Telad to pay NIS 100,000 compensation to Captain R. The fine was for a promotional video which implied that R. had indeed confirmed the killing.
Defamation, libel and slander have engaged society since ancient times. The Talmud deals with the subject in Tractate Erchin 15a, recalling the report of the spies in Numbers 13. Bonnie Docherty notes in the Spring 2000 Harvard Human Rights Journal that American law: “defines defamation as a communication that ‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’” In current Israeli law, the essential element is truth.
Dayan was absolved because, so ruled the justices, her assertions were correct at the time of their broadcast. Captain R.’s acquittal by the military court occurred long after the airing of the Uvda broadcast.
The court accepted Dayan’s claim that she based her story on credible sources and had taken reasonable steps to verify the facts. Her program “...reflected the truth as the journalist could reasonably understand it at that time” and was “founded on the principles of freedom of speech.”
Her production company hailed the decision in a release that claimed that “ignoring these principles would have been a fatal blow to the vital role of Israeli investigative journalism.”
Professor Yaron Ezrahi, a senior fellow emeritus at the Israel Democracy Institute, also applauded the court’s decision.
In a February 12 Ha’aretz op-ed, Ezrahi wrote that “the heat with which some commentators attacked the decision of the Supreme Court... is based on an anachronistic understanding of the concepts of truth, fact and reality... [the] anachronistic concept which was ‘truth at the time’ has collapsed during the past 70 years... just as the lifetime of scientific theory is limited, so is the lifetime of facts. ...Democracy respects the connection between freedom and uncertainty which always leaves space for innocent human judgment.”

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What Ezrahi seems to have forgotten in his post-modernism and relativism is that democracy is supposed to defend the human rights of the individual, especially when these are trampled by strong governmental or social powers such as the media. The judges decided that democracy is a supreme value which precedes other values in Israel’s law book, such as upholding a person’s right to his honor and a good name. The court preferred the means – democracy – to the goal: the protection of the rights of the individual.
The 100-page judgment hides some jewels of constructionist thinking. On page 52, Rivlin admits that the program did not include particulars which could have affected the viewers’ opinion differently.
In plain English, the program was slanted and biased. On page 82, Fogelman describes his worldview as one that considers earlier restraints as inapplicable today. It would seem that he interprets judicial activism as a license for inserting his private ideology into his rulings.
The judges did not let the “little details” get in the way of their own “big picture” which was imposing their values on society, creating a new form of “truth.” They admitted that some of the scenes in the documentary, which accentuated the supposed inhumaneness of Captain R., had nothing to do with his actions. Yet, such falsification, they felt, was acceptable since it dovetailed with the artistic license of the journalist who wants to prove a point and impress an issue upon the public.
The Dayan judgment follows a series of previous controversial decisions by the court. Consider the 2011 opinion of Judges Miriam Naor, Yitzhak Amit and Yoram Danziger on Muhammed Bakri’s Jenin, Jenin film. They admitted that it was “full of things that are not true,” and hurtful. But since the film made reference to the IDF’s operations in Jenin as a whole and not to any specific soldier, they adopted the line that a reasonable person viewing the film would not recognize any slander against any single soldier and rejected the civil suit, as if the five petitioners were not members of the IDF. Here, too, the court disavowed any commitment to the individual.
Many in our media expressed near-joy at the court’s decision, interpreting it as a further step in strengthening and defending investigative journalism as a lifeline of democracy. It would seem that they are unaware that it might just catalyze a backlash which will do the opposite.
Professor Stephen Plaut of Haifa University, who was found guilty of libel by the Supreme Court for associating Professor Neve Gordon of Ben-Gurion University with the Judenrat of World War II infamy, observed that “if the men and women at the helm of Israel’s media outlets steer the recent Supreme Court ruling to a bad place – a place of personal interests, superficiality and one-sidedness – the media’s status will only deteriorate.”
Our columns stress too often that the media does not abide faithfully by its own rules of verifying facts and assuring the credibility of their sources. Dayan’s sources were, among others, senior soldiers who were angry at Captain R. for imposing equal rules on his whole platoon, without giving them any preferential treatment.
Absurdly, the court’s judgment justifies the media’s claim to the mantle of “democracy’s watchdog.” If democracy is interpreted as freedom of speech above all, then Dayan and her Uvda program made an important contribution.
The court’s decision further protects a press which is already too free with society’s safeguards that seek to assure the integrity, accountability and professionalism of the media.
All this could have been avoided. Dr. Dayan could have heeded the advice of Justice Sohlberg. All she had to do was convene a press conference and apologize for her errors. In fact, she can still do that. This very week. And she could perhaps donate the 200,000 NIS the court “saved” her and Telad to a worthy charitable cause recommended by Captain R. and his family.
Dayan may have “won” but she needs to act so that we all do not lose.
The authors are respectively vice chairman and chairman of Israel’s Media Watch, www.imw.org.il.