Defamation
Defamation (slander) originates in Jewish law. Prohibition against defamation is one of the “negative commandments” among the 613 commandments of Jewish law. The basis for this is found in Leviticus (Chapter 19, Verse 16) in the phrase, “Do not go about as a talebearer among your people“. Defamation can be sued in small claims court, but some cases exceed the small claims court limit.
This prohibition was enshrined in Israeli law under Section 1 of the Defamation Law, 5725-1965, which provides a broad definition of expressions that may be considered defamatory. Generally, these are expressions that have the potential to humiliate; degrade; make a person the target of hatred; contempt or ridicule; damage their occupation; or disparage them based on race, origin, religion, age, sexual orientation, etc. In short, an expression with the potential to cause any of the aforementioned damages constitutes “defamation” (“slander”).
Section 2 of the Law requires that there be a “publication of the defamation,” meaning the dissemination of the statements. Contrary to popular belief, this does not mean that every statement must be distributed in the news or on billboards. In fact, an expression will be considered published if the defamation was disseminated under circumstances where a person other than the victim could have perceived it. For example: if the defamation is spoken in a private conversation accessible only to two people, no tort is established; only the two heard the statements. However, if one of the two shouts the defamation out of a window, a tort may be established due to the potential for a third party (e.g., a neighbor) to overhear.
Can Defamation Occur Only in Writing or Verbally?
No. Section 2 of the Law lists a very broad range of circumstances that constitute “publication” as the dissemination of defamation. This includes: writing, verbal statements, conduct, drawings, images, movement, sound, and other means.
My Reputation Has Been Defamed—What Can I Claim from the Court?
A. Damages
- Damages without proof of harm (Section 7a(b) of the Defamation Law). Damages without proof of harm can be claimed up to NIS 50,000 for each publication. However, if the plaintiff proves that the publication was intended to harm their reputation, double damages can be claimed for each such publication.
- Damages with proof of harm—according to the amount of damage incurred (Section 7 of the Defamation Law). The statutory cap on damages is intended to simplify matters for a plaintiff who does not wish to prove that harm was indeed suffered. However, a plaintiff may waive this “simplification” and claim damages with proof of harm, without a limit on the amount.
- For example: Yitzhak owns a pizzeria and a defamatory publication was disseminated about him. Since that publication, and in direct connection to it, there has been a drastic decrease in his income, causing damages totaling NIS 200,000. In addition, Yitzhak suffered emotional distress, pain and suffering that incapacitated him completely; impaired his daily functioning and caused him medical expenses. As a result, Yitzhak also incurred non-pecuniary damage in the amount of NIS 50,000. In this case, Yitzhak can file a “regular” damages claim (i.e., not damages without proof of harm) in the amount of NIS 250,000. To support his claim, Yitzhak will prove his pecuniary (NIS 200,000) and non-pecuniary (NIS 50,000) damages.
B. Additional Remedies
- Publication of correction and denial or, alternatively, publication of the judgment or part thereof (Section 9(a)(2) of the Law): The court may issue an order requiring the defendant to publish a text in which the defendant corrects and denies the statements attributed to the plaintiff; or, to order the defendant to publish the judgment, in whole or in part. Note: reality shows that many plaintiffs are not as interested in money as in the actual restoration of their good name—and this is logical: imagine a terrible and false advertisement was published about you in the newspaper. Even if you win and receive money, your good name will not be restored. In contrast, if the newspaper publishes a large notice correcting and denying the defamation or publishes the judgment in which you won, the chance of restoring your name is much greater.
- Interim order (Section 10 of the Law): If the defendant admits that the statements published about the plaintiff constitute defamation or are untrue, the court may (at any stage of the proceedings before judgment), issue an order directing the publication of a correction or denial.
- Deletion (Section 9(a)(1) of the Law): Deletion of the defamatory publications from any place where they were published. For example: if a defamatory publication was disseminated about me on Facebook, the order will instruct the defendant to delete the publication within a specified time.
- Prohibition or confiscation (Section 9(a) of the Law): The court may issue an order prohibiting the dissemination of copies of the publication containing the defamation or ordering the confiscation of such copies.
These are the prominent remedies in the Law. Pursuant to Section 9 of the Law, the court is also empowered to grant any other relevant remedy.
Locating Defendant’s Details by ID and/or Company Name
After filing a small claims lawsuit, the court clerk works to serve the writ on the defendant. This is necessary so that the correct defendant can file a statement of defense. The judiciary has established three details that must be stated in the writ of claim. This is to prevent errors in identification and to allow the clerk to serve the writ on the defendant so they can file a statement of defense.
Read more in the article: Locating Defendant’s Details by ID and/or Locating Company Details.
Can a Small Claims Lawsuit Be Filed for Defamation?
Certainly, and sometimes it is even advisable. While a Small Claims Court is authorized to award monetary compensation up to NIS 38,900 (as of January 2023), it has many advantages besides the limit on the amount: the fee is lower than a “regular” court; the cost of a lawyer can be saved as the parties are unrepresented; there are simplified procedures and rules of evidence; and the process is conducted more quickly. Many plaintiffs prefer the advantages of a small claims lawsuit despite the limit on the amount, and there are two main reasons for this:
- They prefer a faster and cheaper resolution of their claim;
- They know that the case is clear but not serious and prefer to save costs. In other words, the case is clear and simple (such as defamation published in a WhatsApp group); but it is not serious enough to reach the statutory cap on damages (NIS 50,000). Therefore, it is better for them to “give up” in advance on a sum of compensation that they probably wouldn’t receive anyway; and conduct a faster and cheaper process.
For more information on small claims lawsuits for defamation.
Can a Limited Company or Non-Profit Organization File a Defamation Lawsuit?
Yes. Section 1 of the Law defines “defamation” while using the term “person” (“a matter whose publication is likely to humiliate a person in the eyes of the public….”). However, later in the section, it is explained that for this purpose, person = individual or corporation. A limited company is a corporation, and therefore the section applies to it and to other types of corporations, for example: a non-profit organization, a regular company (not a limited company), a partnership, a cooperative, an Ottoman association, a statutory corporation (a corporation established by law).
Can a Court Order a Defendant to Apologize?
According to the prevailing view today—no. Courts are divided on the ability to compel a person to apologize for things they said. This is because an apology is a matter of “the heart”; and as such, it must come voluntarily and wholeheartedly. In addition, the Law has taken care to detail the range of remedies that a plaintiff can request in a defamation lawsuit. As a deliberate negative arrangement, it did not establish apology as one of the remedies. That is to say: if the legislator had wanted such a remedy, he would have explicitly stipulated it. In any case, it should be noted again that the court may order the defendant to publish a correction and denial of the defamatory statements. This is almost the same as publishing an apology (and even stronger), only without the emotional component.
Is a Lie Defamation?
Not necessarily. Imagine that it was published about you on Facebook that you are the world champion in chess. When the truth is that you have at most won a game against a friend from high school in backgammon. So, it is true that a false publication was disseminated about you. But it probably does not have the potential for humiliation or degradation that could harm your reputation. Therefore, this is not defamatory publication.
Are Curses and Insults Defamation?
It depends. The courts have repeatedly ruled that, unfortunately, curses and insults have become commonplace in Israeli discourse. Therefore, not every curse or insult—even harsh ones—will establish a cause of action under the Law. The question that the victim should ask himself is whether there is a potential—real and objective—that the circumstances of such publications will indeed harm their reputation. Even if the answer is “yes,” the victim should ask himself: is there a real justification for burdening the judicial system for these circumstances. Most of the time, the answer will be no.
Someone Sent Me a Private Humiliating and Insulting Message; Is There a Cause of Action Under the Defamation Law?
If only you received the message and, according to the circumstances, no one else besides you will see it—no. After all, the full name of the tort is “publication of defamation”. So, where the message was sent only to the victim, the element of publication is not met; it requires that the humiliating statement reach (by force or in fact) someone other than the victim.
Defamation Published in a WhatsApp Group; Is There a Cause of Action Under the Defamation Law?
If the WhatsApp group contains only two people (the victim and another person)—no. If the WhatsApp group contains additional people—yes. Usually, WhatsApp groups have more than two participants. In this situation, a defamatory message in a WhatsApp group constitutes a tort. This is because a person other than the victim was exposed to the message.
Can Sharing a Facebook Post Constitute Publication of Defamation? Can the Sharer Be Sued?
Yes and yes. Until recently, the views in the case law were divided. There was mainly uncertainty about whether to impose tort liability on a person who did not write the defamatory statements but only shared them. In January 2020, the Supreme Court ruled unequivocally: “sharing” (share) a Facebook post meets the element of publication. This is an independent factual act of publication (the act of clicking the share button itself). So, if the post contains “defamation” as defined in the Law = the tort of publication of defamation. Thus, both the person who wrote the defamatory post and the person who shared it can be sued.
Does Filing a False Police Complaint Establish a Cause of Action?
In principle—yes, but the courts are reluctant to accede to such claims. This is out of fear of creating a chilling effect that would deter complainants from filing complaints with the police because they fear that inaccuracies will expose them to a lawsuit.
It is important to note: in recent years, the discourse calling for the eradication of the phenomenon of false complaints has expanded. The source of this is the field of family law (usually about violence or threats or sexual harassment). Many spouses who are going through a divorce use the filing of the complaint as a tool to strike the other spouse, in order to improve their status in the marital dispute. The discourse arose not only because of the injustice done to the party against whom they complained; but also because this creates a “wolf, wolf” effect. This effect leads to contempt or suspicion of genuine complaints from victims who really need protection.
Does Defamatory Publication During Legal Proceedings Establish a Cause of Action?
As a rule, no. Section 13(5) of the Law states: as a general rule, statements disseminated during legal proceedings by a party, judicial authority, legal counsel (lawyer) or witness, will not establish a cause of action. It should be emphasized that the expression “during legal proceedings” also covers pleadings, requests, responses, interim hearings, and the like. That is, the defamation does not need to be published only during the physical hearing in the courtroom; the “immunity” will also apply to publications within pleadings. The rationale: a desire to allow smooth litigation as much as possible. Otherwise, there would be a fear that every word or sentence would put the speaker at risk of a defamation lawsuit; and the proceedings would be hampered accordingly.
To illustrate: the statement of defense states that the plaintiff is a murderer and a convicted criminal (and the plaintiff is not). Even if this is a clearly harsh statement, it does not establish a cause of action for publication of defamation. Another example: a social worker gave a report in a divorce case and wrote lies there about one or both of the spouses. It will not be possible to file a defamation lawsuit against her.
Can a Defamation Lawsuit Be Filed Against Someone Who Has Passed Away?
Yes, under two conditions: 1. The defamation was published while the deceased was alive; 2. The deceased’s heirs filed the lawsuit within 6 months of the death.
How Much Time Is There to File a Defamation Lawsuit (Is There a Statute of Limitations)?
The statute of limitations for a civil lawsuit for publication of defamation is as stipulated in the Limitations Law: in general, within 7 years from the date of publication. It should be noted that the Limitations Law lists exceptions that sometimes extend the statute of limitations. However, in civil law, there is avoidance of “delay”. That is, it may be that a claim has not become statute-barred, but it suffers from significant delay. And in exceptional cases, a claim can even be dismissed solely on this basis. What is the logic? Well: over the years, memory fades, evidence is lost, and it is more difficult for the defendant to defend himself. Civil law wants to encourage plaintiffs to stand up for their rights while the iron is hot, and provides a supplementary tool to the statute of limitations – delay. Therefore, it is advisable to file the civil lawsuit as soon as possible after the events underlying it occur.
Can a Class Action Lawsuit Be Filed for Defamation?
No. The Class Actions Law stipulates that class action lawsuits can only be filed according to a closed list of causes of action in the second appendix to the Law. The Defamation Law is not included in the aforementioned list, and therefore a class action cannot be filed under it.
Can a Defamation Lawsuit Be Filed for Publication About a Specific Group (e.g., Soldiers, People of a Certain Religion, People of a Certain Ethnicity, etc.)?
No. Section 4 of the Law stipulates that a defamation lawsuit cannot be filed against a group of people or a public. For example: if a person published a racist post about Jews, it is not possible to file a civil lawsuit against him for publication of defamation. Note: the Attorney General has the authority to authorize the filing of an indictment against a person/corporation that publishes defamation about a group or a group of people; that is, to authorize the initiation of criminal proceedings. However, cases in which this actually happens are rare.
Can Criminal Proceedings Be Initiated for Publication of Defamation?
Yes. Section 6 of the Law stipulates that publication of defamation to two or more people constitutes a criminal offense. In principle, the body authorized to initiate criminal proceedings is a body on behalf of the state, for example: the prosecution, tax authorities, municipalities, etc. However, according to the Defamation Law, a private person or corporation may initiate criminal proceedings themselves (called a “complaint”). This is a rare, exceptional and extreme step that courts rarely accede to.
