The Prohibition of Defamation Law -1965 lists in Clause 13 a range of permitted publications which will not serve as a cause for a criminal or civil trial for libel including announcements that the "announcer is required to undertake by law and according to the instructions of the competent authority duly allowed to do so by permit of the aforementioned authority." The ruling interprets the permitted publications mentioned in Clause 13 of the Prohibition of Defamation Law as if it grants absolute protection to the person being sued for libel.
In other words, even in a situation in which the person committing the libel does so with gross negligence and without any basis in fact, inserted as blatantly as possible, and even if it is announced with malicious intent to the detriment of the subject of the announcement, the announcer still enjoys immunity from prosecution.
The purpose of the instructions of the Law was to protect those with quasi-judicial authority in order to exempt them from the fear that the expressions and announcements they make as part of their work in the competent authority will not expose them to libel suits, and in this way ensure that they can faithfully carry out their work on behalf of the public without fear or prejudice. The Supreme Court ruled on this issue, "that we are talking about a necessary evil that must be accepted and that its justification stems from the aspiration to protect the purity of the quasi-judicial process and enable its conduct in a reasonable manner." In the same ruling, the Supreme Court clarified the borders of the immunity bestowed upon civil servants bearing quasi-judicial authority, and set that, "in those circumstances in which there is a real link between the content of the announcement and the nature of its function and aims, there is no justification in negating the right of the harmed party to sue."
In effect, many defendants have no problems in proving that there is a "real link" between their harmful comments and their role of civil servants, and many libel suits are dismissed because of this aforementioned power of immunity.
A ruling that was recently handed down by the Herzliya Magistrates Court (under Judge Irit-Meni-Gur), once again illustrates the difficulty and complexity contained in complete immunity from the powers of Clause 13 (9) of the Prohibition of Defamation Law.
In the case before the court, a suit was filed by the Chairman of the Municipal Workers Committee against the same city's Legal Advisor for words written by the latter about the conduct of the prosecution. The court gained the impression that the publication put out by the Legal Advisor was a libelous publication but dismissed the suit on the grounds that "the existing ruling practice sets that there is complete protection for comments that are said that are connected to a professional position of an office bearer without examining if there is an irrelevant motivation, if it is done maliciously or negligently, or in a premeditated manner." The magistrates court expressed discomfort about this necessary outcome after they had gained the impression that some of the comments stemmed from irrelevant motives and carried out without due attention. The ruling concluded with the observation that, "It is to be hoped that future legal practice and the legislator will give their opinion to cases such as these," and that enough emphasis will also be given to thoughts of preventing harmful comments that are not necessary.
We think that the issue of immunity from the powers of Clause 13 of the Prohibition of Defamation Law only in cases where it is proved that the harm was necessary will be difficult to implement and may cause a major amount of legal uncertainty.
At the same time, there is certainly room to consider the issue of immunity so that it can be decided that in instances where the plaintiff proves that the publications subject to the suit repeat themselves, with the intention of harming the plaintiff or through the personal motive of the person publishing the information, then complete immunity from the powers of Clause 13 of the Prohibition of Defamation Law will not be applicable for the publisher. Interpretation according to our opinion to the original purpose of the instructions of the Law would maintain the fairness of the quasi-judicial process.