Ilana Dayan 370.
(photo credit: Wikimedia Commons)
A nine-judge expanded panel of the Supreme Court on Wednesday hinted that it
will uphold Channel 2 reporter Ilana Dayan Urbach’s overall win against the
defamation lawsuit brought against her by “Captain R,” as the plaintiff, an IDF
commander, is referred to under a gag order.
The court also hinted that
despite upholding Dayan’s overall win, it may in the future require reporters to
“update” (as opposed to “correct”) some of their legal-related reports where the
circumstances or expected result changes radically.
In this particular
case, Dayan aired a report on the Uvda
(Fact) TV program that suggested that
Captain R had illegally shot a 13-year-old Palestinian girl, Ayman al-Hams, in
Gaza in October 2004 and then admitted to killing her.
Captain R was
indicted and tried in the IDF military courts. However, ultimately he was
acquitted, and Captain R then turned back on Dayan, suing her and her network
for defaming him.
At the time the report aired, in November 2004, the
case was still pending, and Dayan replied to the defamation case by saying that
her report appeared to be true and accurate at the moment at which it was
In December 2009, Jerusalem District Court Judge Noam Sohlberg
ruled in favor of Captain R and fined Dayan NIS 300,000, requiring her to air an
apology and a correction to her earlier report.
Dayan appealed to the
Supreme Court, which, with a smaller panel of three justices, mostly reversed
the lower court’s ruling, negating most of the defamation allegations, reducing
the fine to NIS 100,000 and eliminating any need for an apology and
Wednesday’s hearing was a rare additional hearing before a
broader Supreme Court panel of nine judges, which is reserved for issues of the
highest constitutional importance.
Most of the hearing revolved around
the balance between the competing values of freedom of speech and freedom of the
press, on the one hand, versus freedom from defamation and requiring truthful
reporting, on the other hand.
On the main claims, the majority of the
court still pushed back hard against the defamation claims, stating that to
ensure a free press and to enable reporters to take risks to get information to
the public, reporters must be secure in the knowledge that if they report “in
good faith,” they could use that good faith as a defense, even if sometimes they
might be wrong.
In that vein, the court asked why reporters should be
held to higher standards than doctors, who have liability for a wrong diagnosis
only if they are negligent, not if an error occurs despite acting in good
But on the issue of corrections, Supreme Court President Asher D.
Grunis and other justices asked why Dayan had not aired a correction after
Captain R was found innocent.
Dayan’s lawyer said the program had been in
its off-season and was not airing shows at the time.
Grunis appeared to
rebuke Dayan’s lawyer for this response, stating, “You really think that is a
justification?” Justice Elyakim Rubinstein added that reporters might write
their reports differently if “they put themselves in the shoes” of the people
they were reporting on, and he expressed alarm at allowing the besmirching of
people’s “good name” and reputation with no consequences.
Arbel asked if interpreting freedom of the press without limits and obligations
to correct or update would “lead to a situation where every reporter will say
that it was true, and no reporters will actually check” the facts, since with an
unbeatable defense in lawsuits, reporters could say to themselves, “Why should I
bother” confirming facts and checking out the truth? These rebukes, along with
other statements by other justices and arguments distinguishing between a
“correction” and an “update” after a court recess, suggested that the court was
moving toward obligating reporters to update their reports on legal issues when
the reports turn out to be substantially wrong.
The distinction between a
correction and an update would still allow reporters to claim that they had
reported the truth as they perceived it at the moment they filed their report,
while requiring an acknowledgement of changed or updated circumstances where
The distinction would also avoid the need for an apology,
which most media outlets fight hard to avoid if possible, as it can cause damage
to the outlet’s credibility.
The court had not rendered a final decision
by press time.