Court might uphold Dayan's win against Captain R

Supreme Court may obligate journalists to update legal reports if later proven wrong.

By YONAH JEREMY BOB
Ilana Dayan 370 (photo credit: Wikimedia Commons)
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 aired.
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 correction.
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 faith.
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.
Justice Edna 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 necessary.
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.