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Israel: Defamation of IDF Soldiers as a Group Not a Ground for Civil Action

(Aug. 3, 2011) On July 27, 2011, the Supreme Court of Israel rejected an appeal of the Tel Aviv District Court's earlier rejection of a defamation suit for the wrong portrayal of Israel Defense Forces' actions in the movie Jenin-Jenin. The movie was directed and produced by Muhammad Bachri. According to the Court, it included false “testimonials” about the 2002 military operation Defensive Shield in the West Bank town of Jenin. The movie's release in 2003 had been the subject of prior litigation when the Supreme Court, sitting as a High Court of Justice, ordered the Israeli Committee for Review of Films to allow its screening.

The current suit was filed by five individual IDF soldiers who were interviewed by the media and depicted in another film in connection with the 2002 operation. They sued Bachri for compensation based on their identification in media interviews as belonging to the IDF soldiers' unit that took part in the operation and who, based on this association, were falsely depicted as belonging to a unit that had participated in war crimes. The Tel Aviv District Court determined that Bachri attempted to present a documentary film, but that in fact many defamatory scenes in the movie were choreographed and portrayed events that did not take place in reality. Additionally, the court held, the translation into English of statements made by persons appearing in the movie was intentionally inaccurate. The court further held that Bachri had not presented any evidence or witnesses to support his claim of the truth of his film as a defense against the defamation suit.

In spite of its determination that the depiction of IDF activities in Jenin was false, the Tel Aviv District Court rejected the soldiers' suit. The court determined that in accordance with section 4 of the Defamation Law, 5725-1965, as amended, the defamation of a group of persons will not be a ground for a civil action.

The soldiers' appeal to the Supreme Court of this decision was rejected on similar grounds. According to Justice Yoram Danziger, the revelation of the identity of the appellants in various media publications did not tie them individually to any of the actions portrayed in Bachri's movie. Agreeing with Justice Danziger, the other two justices, Yitshak Amit and Miriam Naor, held that although the issue involved a powerful false statement about IDF soldiers who participated in the operation, the statement was directed at an unspecified group of persons and therefore did not constitute a ground for a civil action. (Tel Aviv District Court, 1255/03 Ofer Ben Natan v. Muhammad Bachri (Aug. 2, 2004), NEVO TAKDIN legal database (by subscription); CA 8345/08 Ofer Ben Natan v. Muhammad Bachri, the State of Israel (July 27, 2011), The Judicial Authority website; Yuval Yoaz, The Supreme Court: Muhammad Bachri Will Not Compensate IDF Soldiers for”Jenin Jenin” [in Hebrew], GLOBES (July 27, 2011); Prohibition of Defamation Law, 5725-1965, 19 LAWS OF THE STATE OF ISRAEL 264 (1964/65), as amended.)