1 19 L.S.I. 254, as amended 21 L.S.I. 132.

2 For a discussion of this case, published after completion of the present note, see Lederman, , “The Legislative Intent, the ‘Normative Umbrella’ and the Interpretation of Penal Statutes” (1986) 37 HaPraklit 159 Google Scholar. Lederman deals with a different aspect to the one discussed here.

3 Hereinafter, for the sake of simplicity the former test of intention shall be referred to as the knowledge test, and the latter as the actual desire test.

4 The third member of the bench, S. Levin J., merely concurred in the result.

5 [1910] A.C. 20.

6 Id., at 23.

7 See Newstead v. London Express [1940] 1 K.B. 377.

8 See Lee v. Wilson (1934) 51 C.L.R. 276.

9 See Sweet v. Post Publishing Co., 102 N.E. 660 (1913). But cf. Hanson v. Globe Newspaper Co., 34 N.E. 462 (1893). It must be pointed out that the rule can no longer hold in the U.S. following the decision of the Supreme Court in Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974). In this decision the Court held that imposition of civil liability for defamation without fault is inconsistent with the first amendment of the U.S. Constitution.

10 [1929] 2 K.B. 331.

11 SeeNewstead v.London Express, supra n. 7; Hough v.London Express [1940] 2 K.B. 507.

12 See Gatley, , On Libel and Slander (8th ed., 1981) para. 91Google Scholar. It should be noted, however, that under the Defamation Act, 1952, a defendant who publishes defamation “innocently” may have a defence if he offers to make amends: id., chap. 18.

13 I have stressed that the civil liability in both cases is only prima facie liability since the defendant could always raise the defence provided for in sec. 15(1). It seems that this defence would in all probability have failed in the Hulton v. Jones case, as even if the defendants did not actually know of the plaintiff's existence, they should have known of it, since the plaintiff had been a regular contributor to the paper a few years previously and his name was hardly a common one. In the Cassidy case the paper may well have succeeded on the strength of this defence, as it is difficult to believe that they had a duty to find out if the person who presented himself as being engaged to one woman was really married to another. There is no doubt that the defence in sec. 15(1) of the defamation statute greatly weakens the English rule that liability arises even if he defendant did not know of the existence of the defamed person or of extrinsic facts which make his seemingly innocent statement libellous. Admittedly the burden is on the defendant to prove the facts which make up the defence, but the end result is that if the defendant acted in good faith and published a libellous statement about a seemingly fictitious individual, or an apparently innocent statement, which by virtue of extrinsic facts turned out to be libellous, he will not be liable. Nevertheless, the rule still retains some importance. First, the theoretical prima facie liability for such cases still exists. Second, in practice the burden of proof may very well be the major factor in determining the actual outcome of a libel case. Thirdly, as seen above, the outcome in a case like the Hulton case will most probably be the same in Israel and England, in spite of the defence in sec. 15(1). Finally, the defence will fail if the defendant should have known of the plaintiff's existence, or of the extrinsic facts. In other words, negligence destroys the defence. Given the express requirement of intent in the criminal context, negligence is clearly not a basis for liability. Thus, while in the civil field a defendant who was negligent in not finding out about the plaintiff's existence will be liable, in a criminal libel case the defendant's negligence is not a strong enough basis for liability.

14 This was apparently the approach of Sir Wilfred Greene M.R. in Newstead v. London Express, supra n. 7. The defendant newspaper reported that Harold Newstead, a 30-year-old Camberwell man, was jailed for nine months after being convicted of bigamy. There were two people in Camberwell named Harold Newstead, and the second, who had not been charged with bigamy, sued the paper. The Court of Appeal held that the fact that the words were true of another person did not afford the paper a good defence in an action for defamation. Sir Wilfred Greene M.R. stated: “If there is a risk of coincidence, it ought, I think, in reason to be borne not by the innocent party to whom the words were held to refer but by the party who puts them in circulation”. (Id., at 388). This rationale is more difficult to apply in a case like the Cassidy case in which the paper could not be expected to have known that a picture of A and B could be regarded as defamatory of C.

15 See Williams, Glanville L., Criminal Law, The General Part (London, Stevens, 2nd ed., 1961) 38–42 Google Scholar.

16 In examining the meaning of “intent to injure” the perspective adopted here has been a comparison of civil and criminal liability. There is another way to approach this question which may be described as a purely “criminal approach”. Absent any specific requirement of the mental element in a criminal statute, the assumption is that the requirement is ordinary mens rea, i.e., either intent or recklessness: see Williams, supra n. 15, at 64–66. A specific requirement of intent to injure may mean that the liability for recklessness is ruled out. Thus one could state that the aim of the intention requirement in sec. 6 of the defamation statute is not to underline the distinction between civil and criminal liability, but to exclude one of the usual elements of criminal liability.

17 See sec. 13(5), which extends an absolute privilege to statements made in the course of judicial proceedings.

18 The term “express malice” describes an intent to injure the plaintiff: see Gatley, supra. n. 12, at para. 766. Malice and good faith are incompatible.

19 It must be admitted, however, that even under the knowledge test rejected by the Court, one of the situations described in sec. 15 cannot be considered relevant in the criminal context. I am referring to sec. 15(1), which was cited above. If the defendant had knowledge that there was a high probability, amounting almost to certainty, that the defamed person would be harmed, the situation cannot be one in which the defendant did not know, nor was duty-bound to know, of the defamed person's existence or of facts which made the statement libellous. It is one thing, however, to admit that one of the eleven situations dealt with in sec. 15 is not really relevant in the criminal context. It is something else entirely to adopt an interpretation according to which the whole section, which purports to deal with the criminal as well as the civil context, has no application in the former context.

20 The authorities on this point were cited by Barak J. in the first part of his opinion in order to show that intention has been interpreted in two ways: (1985) 39(iii) P.D. at 216.

21 See Azulai v. State of Israel (1983) 37(ii) P.D. 565. In this case the question arose, what state of mind was required in order to convict a journalist of publishing something likely to influence the outcome of an ongoing trial. Barak J. held that there was no need to prove that the journalist knew that there was an ongoing trial: negligence was sufficient. It is difficult to reconcile the attitude of Barak J. to freedom of speech with his attitude in the Borochov case. For a critical discussion of Barak J.'s decision in the Azulai case see Kremnitzer, M., “On Freedom of Press and the Offence of Sub Judice Publication (sec. 41 of the Courts Law)” in Criminal Law, Criminology and Police Science, Orion, G., ed., (Tel Aviv, 1986, in Hebrew) 165 Google Scholar.

22 These misgivings were reflected in the Knesset debate on the bill: see (1965) 43 Divrei HaKnesset 2680 Google Scholar.

23 376 U.S. 254 (1964).

24 See the Additional Hearing in Ha'aretz v. Electric Company (1978) 32(iii) P.D. 337.

25 It must be stressed that this is the situation in Israel and I take no view on the position in other common law jurisdictions. It is worth remembering, however, that the New York Times v. Sullivan rule, which seeks to restrict the threat to freedom of speech posed by the law of defamation, grew out of the peculiar struggle in the U.S. of the 1960s between the liberal northern press and the southern juries. The rule has had a revolutionary effect on the American law of defamation, and by no means all commentators are convinced that this effect was wholly positive: see, e.g., A. Lewis, “New York Times v. Sullivan Reconsidered: Time to Return to ‘The Central Meaning of the First Amendment’” (1983) 83 Colum.L.R. 603. The peculiar context of the said decision, huge jury awards in state courts against northern newspapers critical of pro-segregation state authorities, is irrelevant in the Israeli context.

26 The one important exception was the famous Kastner case: see Attorney-General v. Greenwald( 1958) 12 P.D. 2017. The accused in this case had charged Rudolf Kastner, the leader of Hungarian Jewry during the Holocaust and an Israeli civil servant at the time of the charges, of collaborating with the Nazis in the destruction of Hungarian Jewry. Kastner himself refrained from suing and the Attorney-General pressed criminal charges against Greenwald. The trial turned into a major political trial in which Kastner became the real accused. Kastner was assassinated shortly after the Supreme Court upheld the appeal of the Attorney-General against Greenwald's virtual acquittal. On the prosecution policy of the Attorney-General see Zamir, , “Freedom of Expression versus Defamation and Verbal Violence’, in Sefer Sussmann (Essays in Memory of Justice Yoel Sussmann) (Jerusalem, 1984, in Hebrew) 149 Google Scholar.

27 See sec. 61(a)(2) of the Penal Law, 1977 (L.S.I. Special Volume).

28 See sec. 8 of the Defamation (Prohibition) Law, 1965.

29 In theory the defamed person may bring both a criminal and civil action. However, the Attorney-General retains the right of nolle prosequi even in cases of private prosecutions. One may assume that this right would be exercised if two actions were brought.

30 The main disadvantage relates to the heavier burden of proof. In a libel action the main manifestation of this disadvantage is likely to be when the justification of truth is raised as a defence. In a civil action the defendant will be liable if, on the balance of probabilities test, the defamatory statement is true. In a criminal case it must be established beyond reasonable doubt that the statement was untrue in order to convict the defendant.

31 Supra n. 23.

32 This element has been dealt with in only one reported judgment – the decision of the District Court in the Borochov case: Borochov v. Yefet, (1983) II P.M. 521.