Just Wrong, or Quacks?

By Adv. Dor Heskia

Published on: TheMarker.com
10.8.2005

The decision in the case of MK Tomy Lapid and the astrologist Elitzur Kadoshi, emphasizes the limits to the right of freedom of expression when touching on a person’s right not to have his reputation disparaged by defamatory statements.

In this lawsuit for defamation, Lapid was ordered to pay Kadoshi NIS 50,000, a sum those paltriness raises question marks over its deterrent effect. Yet the ruling does encourage a more moderate manner of communication.

Criticism or humiliation?
Lapid and the Israeli Broadcasting Authority were sued for NIS 260,000 following Lapid’s remarks in 1996 on the famously fractious television show ’Popolitica’. A number of guests featured in the show, so as to express their opinion and prediction of how the coming new year would unfold.

When Kadoshi started with his account, Lapid turned on him with strong language, asking Kadoshi, "Are you a quack?… Why are we making a mockery of ourselves…I think it is disgraceful…quack…". Lapid subsequently left the studio, whilst the broadcast was still running live. A few days later, during his personal radio show, Lapid has repeated his comments, once again expressing his great distaste of astrologists and their whole profession.

Despite ample opportunity to make amends, Lapid chose to stick to his opinion instead, refusing to apologize for his statements.

The ruling by judge Yitzhak Shimoni of the Magistrates Court in Jerusalem, was rendered on August 3, 2005, after a long legal process. The judge was faced with a difficult examination of pinpointing the right balance between the freedom of expression on the one hand and Kadoshi’s right not to be defamed on the other.

Seeking such balance, the judge stated, “Freedom of expression does not entail a freedom of humiliating others, and it certainly does not imply a freedom to exciting adverse or derogatory feelings against the relevant person in others."

Lapid claimed his statements were ’fair comments’, especially in the context of the so-called ’light entertainment at the end of the show.

Kadoshi claimed, that apart from Lapid’s comments lowering astrologists in the eyes of the ’reasonable viewer’, it also humiliated him personally. Of particular concern to Judge Shimoni was whether the word "quack" constituted a ’defamatory’ statement.

In considering this issue, the court took an objective view from what ’the reasonable viewer’ would consider to be defamatory. The court ruled that it was a humiliating expression, on the verge of a criminal accusation. Whilst the court accepted that the show was centered on critical analysis and discussion and protected by free speech and freedom of the press, it was held that Kadoshi’s right to good repute and esteem held by others were inviolable rights. Lapid’s remarks implied, Kadoshi himself to be a quack – an expression conveying lack of trust and humiliation, and as such constituting defamation of Kadoshi personally.

The Court also stated, that in a case where a defamatory statement is directed at a group of people, each member of the group has a personal cause of action against the person making the statement. Consequently, it could be argued that had Lapid directed his remarks at all of those practicing astrology, a cause of action in defamation would have arisen for all of those in that group.

Law and astrology
Counsel for the defense argued that Lapid’s statements gave rise to the defense of fair comment, which were confirmed by the fact that he stood by his statements linking astrology and fraud. In light of the above, the Court examined legal references and sources on astrology and reviewed expert opinions regarding its scientific credibility. It held that, even if astrology is not considered as a ’science’, it is still a long way from calling saying it was tantamount to fraud. With regards to Kadoshi’s personal claim of defamation being called a quack, the court held it would have to satisfy a higher level of proof.

An analogy was made between astrologists who predict the future and others such as people working on statistics, different commentators and meteorologists, who in different ways all aimed at predicting the future to a certain extent. These people those could not be considered as quacks, just because of mistaken forecasts.

Good faith?
Lapid’s claim that his statements were made in good faith without malice was also rejected. The court did not accept the way in which the remarks were made, even though Lapid was adamant in his opinion that they were truthful.

Even though Lapid’s role on the show was to express an opinion, it was felt that his remarks were given as matters of fact rather than the mere voicing of an opinion.

On logical construction, the judge ruled that equating Kadoshi, a ’quack’ with professors and other ’serious’ professions gave Lapid’s remarks a factual quality. It was a kind of remark which being made during a live broadcast, was hurtful to Kadoshi, lowering and ridiculing him in the eyes of the reasonable viewer.

The claim against the Broadcasting Authority, however, was rejected. Judge Shimoni ruled, that the host of the show, Dan Margalit, had done his best to prevent the incident, especially when considering that it was a live broadcast - which deserves special legal protection, so as to prevent floods of defamation lawsuits and to ensure that live broadcasts are made with the ultimate aim of safeguarding the freedom of expression.

The Price…

The damage to Kadoshi’s reputation, came at a cost of NIS 20,000 to Lapid. In light of the high legal fees, the court ordered payment of an additional NIS 30,000 for legal expenses.

It is hard to say, whether these financial obligations are deterring. Considering the length of the trial and the great expenses, which were incurred, doubts arise over whether it is a wise and right way to deal with such issues.

In spite of these doubts, the interest in this case lies in the fact that it sets clear boundaries to the freedom of expression, which especially where public discussions in Israel contain hard and sometimes even violent language could have far reaching consequences.

A person’s good repute is one of the most precious assets he possesses. Injury to it can be as much or more damaging than loss of wealth or property. Reputation needs to be protected even when criticism is exacted.

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This article and the information above may not be taken as a legal advice whatorever. The writer disclaims responsibility towards the reader and users of this website.

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