In the past year, a string of legislation has passed through Israel’s Knesset that chips away at free speech and expression using civil, monetary penalties. First the “Nakba Law” penalized any commemoration of the Palestinian narrative of the 1948 war, from which the State of Israel was born. Soon thereafter, lawmakers passed the “boycott law,” which permits civil suits against anyone boycotting, or advocating a boycott against West Bank settlements.

The latest piece of legislation seeks to modify an already-existing law against slander and libel. Considering recent attacks on independent news media in Israel using the existing law (and threats of using it), journalists are warning that changes made by the new legislation would deal a heavy blow to investigative reporting.

Of course, the targets of critical journalism – who would most benefit from the new law – would like you to think otherwise. The amendment to Israel’s Defamation Law is not a “libel law,” Prime Minister Binyamin Netanyahu quipped to the Knesset Wednesday, “It’s a law to promote the truth.”

Some of the most dangerous laws passed in legislatures around the world sound innocuous and benign when read at face value, or explained by those standing to benefit from them. But to look only at what the law says is to understand it in a vacuum. One must also analyze how the law will be applied, to what or whom it will be applied, and what long-term effects it will have.

By itself, the one-page text (PDF in Hebrew) of the new amendment to the 1965 Defamation Law (Hebrew) sounds reasonable enough. In fact, the law only changes two clauses: a six-fold increase in the prescribed penalty, and a requirement that the plaintiff in a successful defamation trial be given the right to clear his or her name in whatever publication the defamation occurred.

The Defamation Law as it currently stands, particularly the problematic segments highlighted below, was designed to prevent unfounded and malicious attacks on innocent citizens and public figures of good character. In reality, it can be – and often times is – used to silence investigative journalism and prevent the exposure of secrets those in power would rather remain hidden.

There is nothing inherently wrong in increasing the penalty for slander or libel, or giving the victim of defamation the right to clear his or her name. Before doing so, however, the problematic portions of the existing law must be addressed so its protection of innocent individuals does not damage one of journalism’s most important roles in democracy – holding accountable those in power and ensuring transparency.

The following are key points of the 1965 Defamation Law:
Disclaimer: I am not a lawyer.

Burden of proof
As opposed to the United States (but like the United Kingdom), the burden of proof in Israel’s Defamation Law lies on the defendant. The party accused of defaming must prove the allegations they published to be true rather than the plaintiff proving they are false. In the Israeli legal system, everyone is presumed to be of good character until proven otherwise.

This particularly affects journalism. Because information often reaches a reporter from various sources, some of whom cannot be identified, proving an allegation in court can be impossible. Firstly, journalists are ethically obligated to protect their sources, thereby preventing the source from being called to testify in a trial. Secondly, even if called to testify, the anonymous source would likely deny they made the contentious allegation for the very reasons they wished to remain anonymous in the first place – fear of retaliation.

As the penalty is increases, the result is that journalists will be scared away from filing reports based on unnamed sources due to their subsequent inability to prove their allegations if they are sued. Often times the most important stories, those involving public officials, are brought to reporters by people – who by the nature of their positions and the information involved – cannot be named. Thus investigative reporting focused on government or security related matters will become much more dangerous and therefore scarce.

Truth is not a defense against defamation
In a defamation trial, according to the 1965 law: “a good defense exists when the item published was true and the publication was in the public interest” (my emphasis). This means that truth in and of itself is not a defense to defamation; the publication must also have been in the “public interest.”

Putting aside the problematic notion that one can be held liable for publishing a report that is true, there is no definition of “public interest” written into the law. This means courts must – without any guidance from the law – subjectively decide whether it is actually in the public’s interest to know any given fact.

No harm, yes foul
The 1965 Defamation Law allows compensation to be awarded in a defamation trial even when the victim incurred no damage, monetary or otherwise. This departs from wide standard in tort law that holds one must have been harmed in order to seek damages in court.

This significantly lowers the threshold of what constitutes actionable defamation. Even if a defaming statement, spoken or published, does not effectively harm anyone, a court can still award damages to the defamed. Considering that actionable defamation includes verbal statements made to “one or more persons,” the existing threshold is already very low. The proposed higher penalties will only serve to encourage such lawsuits.

Defamation is both a civil and criminal offense
The 1965 Defamation Law defines defamation as both a criminal and civil offense, giving an allegedly defamed party the right to seek civil litigation and criminal prosecution (when malicious intent exists), and in some cases, both.

In a criminal defamation trial, the defendant can be sentenced to up to one year in prison.

Slander, libel and defamation
According to the 1965 legislation, publication of defamation can be oral, written, printed or even a drawing. Unlike most other countries, in Israeli law there is no distinction between slander and libel (spoken and written, respectively).

This means that actionable defamation can include speaking badly of someone, truthfully or not, to one or more persons. Essentially, any gossipy conversation is actionable under the law.