Defamation: libel and slander

What counts as defamation?

Under section 1 of the Law, defamation is a thing whose publication may:

• Humiliate a person in the eyes of others or make him a target of hatred, contempt or ridicule.
• Disgrace a person because of acts, conduct or traits attributed to him.
• Harm a person in his position, business, occupation or profession.
• Disgrace a person because of his race, origin, religion, place of residence, age, sex, sexual orientation or disability.

A "person" is an individual or a corporation, so a company can also sue. In Hebrew the everyday term for the same wrong is "hotsaat diba". Defamation may also be implied indirectly, from the publication itself or from external circumstances (section 3).

What is "publication"? A group message too

Publication may be oral, written or by any other means (section 2(a)). It is enough that the words were intended for one person other than the injured party and reached him, or were in writing and the writing was likely, in the circumstances, to reach a person other than the injured party (section 2(b)). So a social media post, an online review, a message in the building's WhatsApp group or an email to several recipients can all be publication.

What compensation can be obtained?

• Compensation without proof of damage. The court may order the defendant to pay compensation not exceeding NIS 50,000 without proof of damage (section 7A(b)). The amount is updated by the consumer price index, relative to the September 1998 index (section 7A(e)), so the actual ceiling is higher.
• Double compensation. Where it is proved that the defamation was published with intent to harm, the court may award up to double the amount, without proof of damage (section 7A(c)).
• Compensation for proven damage. A person who proves actual damage, for example loss of customers, can claim it.
• Orders. The court may order a ban on distributing the publication, and publication of a correction or denial at the defendant's expense (section 9).

What defences does the defendant have?

• Truth of the publication (section 14). What was published was true, and there was a public interest in the publication. Both conditions are required together.
• Good faith (section 15). The publication was made in good faith in one of the circumstances the Law lists, for example: a legal, moral or social duty to publish; protection of a legitimate personal interest; expressing an opinion on the injured party's conduct in a public role or in connection with a public matter; a complaint to the authority competent to receive complaints about the injured party.
• Permitted publications (section 13). For example a publication by a litigant, his representative or a witness, made in the course of legal proceedings, and a true and fair report of a public hearing.

A person who proves that he published in one of the circumstances of section 15 and that the publication did not exceed what was reasonable is presumed to have acted in good faith. The presumption is reversed where the thing was not true and the publisher did not believe it was true, or did not take reasonable steps before publication to check whether it was true (section 16). Even where there is no defence, an apology, correction or denial published in the same way can reduce the compensation (section 19).

A demand letter about defamation: why start with it?

A demand letter about defamation requires removal of the publication, publication of an apology and compensation, and gives notice that a claim will be filed if the demand is not met. Sometimes the letter ends the matter without proceedings. Where the publication was in the media, a demand to publish a correction or denial has further significance: if the demand is not met, the editor and the person responsible lose the defence of good faith (section 17).

A person who receives a demand letter should not ignore it, nor rush to apologise. First check exactly what was published, to whom, and which defences are available.

Defamation at work and in the family

Defamation at work. Where the publication was made in connection with employment relations, between employee and employer, the claim is usually heard in the Labour Court. Examples: a dismissal letter circulated to all employees, or a negative reference given to a new employer.

A defamation claim in the family. An offensive publication between family members, usually against the background of a divorce or inheritance dispute, is usually heard in the Family Court, as part of the family dispute.

Note: defamation of a public that is not a corporation, and defamation of a person published after his death, are not grounds for a civil claim (sections 4 and 5).

The process in four stages

1. Documentation. Preserving the publication itself: dated screenshots, links, names of recipients.
2. Assessment. Whether it is defamation, who published it, and which defences are expected.
3. Demand letter or a reply to a letter received.
4. Claim or defence in court, and sometimes mediation.

What to bring to the meeting

• The publication itself, as a screenshot or recording, with the date.
• Details of who published and who was exposed to the publication.
• Evidence of damage: customers who left, messages received.
• A demand letter or statement of claim received, and the date it was received.

Timetable and cost

Timetable: it is worth acting quickly, while the publication is available and it and the extent of its exposure can be documented. The length of the proceeding depends on the court and the scope of the evidence.

Cost: the fee is set in a written fee agreement, after reviewing the publication and the documents. The court fee is paid separately.

Harmed by a publication, or received a demand letter?

You may contact the office to have the publication reviewed and the prospects assessed, before sending a letter or replying to one.