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.

February 8, 2012 18:31
3 minute read.
Israel's Supreme Court

Israeli Supreme Court 311. (photo credit: REUTERS/FILE)


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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 killing.

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 direction.

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 court.

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 offenses.

“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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