The Foreign Ministry announced on Thursday that Israel would sue The New York Times for defamation, after an op-ed penned by Nicholas Kristof was published that included allegations of serious sexual abuse of Palestinians in Israeli prisons.
The ministry added that Prime Minister Benjamin Netanyahu and Foreign Minister Gideon Sa’ar had “instructed the initiation” of the suit.
Should the process move forward, the procedure - and the chances of success - would depend largely on where the suit is filed.
If Israel files in the United States, the most likely venue would be New York, where the Times is based. US law allows foreign states to bring certain civil lawsuits in federal court against American citizens or companies, provided more than $75,000 is at stake. That could allow Israel to file the case in federal court, but it would not decide the harder question: whether the claim itself can survive under US defamation and free-speech law.
Once filed, however, the case would almost certainly face an early attempt by the Times to have it dismissed.
The paper would be expected to argue that the column was protected speech; that parts of it were opinion or commentary, not factual claims that can be proven false; and that the statements were not aimed at a specific plaintiff in the way defamation law requires.
The harder bar would be the US Supreme Court’s standard in New York Times Co. v. Sullivan. Under that ruling, public officials suing over reporting on their official conduct must show “actual malice.” In practice, that means proving that the publisher either knew the claim was false or published it while seriously doubting its truth.
That means it would not be enough to show that the column was offensive, distorted, hostile, damaging, or even wrong. A plaintiff would need to show that the Times or Kristof published a false factual assertion while knowing it was false, or while consciously disregarding serious doubts about its truth. If the case survived an early dismissal motion, discovery would likely focus on Kristof’s reporting process, sources, editing, fact-checking, internal communications, and what the Times knew before publication.
If the case is filed in Israel, the process would begin with a defamation suit under Israel’s Defamation Prohibition Law. But because the Times is an American company, the first fight would likely be over whether an Israeli court can properly hear the case against it.
Before the court could reach the substance of the article, Israel would have to formally serve the Times with the claim and establish that the case belongs in an Israeli court.
That, in itself, could become the first legal fight. Foreign defendants have often argued at the outset that they were not properly served, or that the case should not be heard at all.
Israeli law limits defamation towards public groups
The Israeli route would also raise a basic question: who exactly was defamed?
Israeli law does not treat a broad claim of defamation against the entire public or a group the same way it treats defamation against a named person or legal entity. The law states that defamation against a public or group that is not a corporation does not create grounds for a civil lawsuit or private criminal complaint. That means a lawsuit framed simply as defamation of “Israel” or “the State of Israel” could run into an early problem. The claim would likely be stronger if brought by a clearly identifiable plaintiff with a recognized legal right to sue.
There is also the question of what happens if Israel wins.
Even if an Israeli court ruled against the Times, enforcing that judgment in the US would be difficult. American law gives strong protection to speech, especially on public and political issues. Under the federal SPEECH Act, US courts generally will not enforce a foreign defamation judgment unless the foreign proceedings gave speech protections similar to the First Amendment, or unless the Times would also have lost under US defamation law.