Between The Lines: When 'absence of malice' isn't enough

There is no doubt that the proposed bill, as flawed as it is, does address a real problem with the way some criminal investigations in this country are covered by the media.

By CALEV BEN-DAVID
Remember the 1981 movie, Absence of Malice, a crackling journalistic thriller starring Paul Newman and Sally Field? If not, go and rent it - especially if you have an interest in the way the interests of media and law enforcement sometimes dubiously intersect for their own purposes. The title refers to the principle of American law that protects journalists from excessive damages in libel cases, by requiring it be proven they deliberately or recklessly set out to injure someone's reputation in publishing false information. It's why Ariel Sharon wasn't awarded damages in his libel suit against Time magazine in the 1980s, despite proving that its reporting of the Kahan Commission findings on his role in Sabra and Shatila had been inaccurate . But Absence of Malice really dealt much more with a different journalistic issue: whether it is legitimate for a media outlet to print the name of a suspect in a criminal investigation who has yet to be charged with a crime. Obviously, this practice can lead to abuses. In the movie, for example, a ruthless prosecutor purposely leaks to a reporter that an innocent acquaintance of a Mafia boss is under investigation, in order to put pressure on him to cough up information. This issue is perennially one of the more controversial aspects of a free press, both here and abroad - and recently moved to the front burner last week when the Knesset Ministerial Legislation Committee passed its first reading of a bill that would completely forbid the publication of the names or any other details about suspects in criminal investigations, prior to the issuing of an indictment, unless specifically permitted by the courts. The proposal for the bill reads: "Freedom of the press and the right of the public to know are supreme values in democratic society but, with that, the right to privacy cannot be ignored and there is a need to balance between these rights. Recently, crime sections of papers have become more similar to gossip sections - and in many cases ... it has become the practice to publish without any restrictions on names. Sometimes, it is a matter of names of people who are completely unassociated with the crime that they allegedly committed, but the damage caused to them and to their reputation is great, and they are entitled to a defense." This proposal has triggered a number of protests, including from the National Press Council, the Association for Civil Rights in Israel, the Movement for Quality Government, and several media outlets, including this one. On the other side, it has won support from the Public Defender's Office. Let me add my own voice to those raised against this particular piece of legislation, which is way too broad and absolute. The true purpose of the bill is all too evident from the fact that it is being proposed by MKs from Israel Beiteinu, whose leader, Avigdor Lieberman, has been the subject of near continuous police inquiry in recent years. It is precisely the fact that it is sometimes in the citizenry's interest to know when a particular politician or public figure is under investigation that this law infringes on essential press freedoms. A bill designed by MKs primarily to protect their own skins from aggressive reportage of possible corruption charges can hardly be said to be in the interest of the general public. If, under certain circumstances, there are compelling reasons for withholding specific information about a criminal investigation, including the names of suspects, either suspects or the police can currently petition the court for a restraining order that forbids or limits publication of these details. THAT BEING said, there is no doubt that the proposed bill, as flawed as it is, does address a real problem with the way some criminal investigations in this country are covered by the media. Way too often there are either leaks of confidential information or material provided to journalists by police and/or prosecutors, and the media will prematurely publish unsubstantiated charges, even against people that hardly qualify as figures of public interest. An all-too-fitting example was provided this week, when the police officially announced the closing of its well-publicized investigation of journalist Adam Shuv on suspicion of sex-related offenses, after concluding there was no basis. Last month, the local papers and television stations gave extensive coverage to the investigation, despite the fact that the former writer for The Marker is barely a public figure, and the evidence against him seemed weak from the outset. "The media sinned in this matter severely," an indignant Shuv commented in a public statement released this week. "Those who published early and unethical allegations even before I was called up for investigation, and those who published allegations, complaints and details that were never even in the police files." The fault here shouldn't be placed entirely on the media's doorstep. As is too often the case, the TV cameras seemed to know exactly when Shuv had to arrive for his police interrogation, and they shadowed his every step on the way to the station. There's no way they could have known this without a police source leaking the information to reporters, a phenomenon that occurs regularly. These kind of police or prosecutorial leaks are rarely investigated, let alone prosecuted, unless they reach such levels as when former Justice Ministry official Liora Glatt-Berkovich tried to influence the 2004 election by leaking information from the investigation of former prime minister Ariel Sharon's role in the Cyril Kern affair. It may sound odd as a journalist to be complaining here about leaks from official sources - which are, after all, an invaluable tool for a free press. But like Shuv, as a citizen I also can't help but be disturbed by the way some members of my profession, in their desire for a juicy headline, or even when motivated by higher principles, occasionally trample on the principle that any suspect is innocent until proven guilty. Rather than trying to limit the freedom of the press through the legislative process, members of a political establishment who are sometimes more than willing to leak damaging personal information for their own purposes, would do better to first put their own house in order - especially when it comes to criminal investigations in which confidentiality is a key to avoiding prosecutorial abuses. As for my follow journalists, in their hunger for a scoop, they sometimes forget their own civic responsibilities. Simple 'absence of malice' is not always a sufficient excuse when a potentially innocent person's reputation is being sullied on the news pages and television screens. And it is surely better for the media to start exercising their own restraint, rather than have it imposed on them by government decree. Let's leave the last word to Adam Shuv, who now knows all too well what it's like being on the other side of the media's merciless glare: "I am definitely doing some personal soul-searching and asking myself if in my past, as a journalist, I was sensitive to the dignity and innocence of the suspects. I hope this matter will be a milestone and a real turning point in the media's handling of cases such as these." Amen. Calev@jpost.com