Friday, June 28, 2013

Karsenty's Al-Durah Defamation Acquittal Overturned on Technicality -- Revealing Problems In the Media and French Legal System

On Wednesday, a French court found Philippe Karsenty guilty of defamation when he claimed that France 2's Charles Enderlin's video of the death of Mohammed Al Durah, was inaccurate and the death of the boy a hoax.

Typical of the media reporting of the case is the Associated Press report Frenchman convicted of defamation for saying film showing Palestinian boy’s death was faked:
In a report issued in 2004, Philippe Karsenty said the footage was orchestrated and there was no proof that the boy had been killed.

France-2 sued for defamation, and after a long legal battle, a Paris court fined Karsenty 7,000 euros Wednesday. He called the verdict “outrageous.”
The sloppiness of AP report is illustrated by the way it omits the fact that in 2008, Karsenty was actually acquitted of the charge of defamation.
(On the other hand, the AP was able to give the reaction to the verdict from a Hamas terrorist)

Why in fact was Philippe Karsenty acquitted in 2008?

While the court opinion is in French, Richard Landes provides The Court of Appeals Decision: A Professional Translation into English.

Among some of the points raised by the court in explaining its reasoning in the acquitting Karsenty, it notes:
  • It is legitimate for Karsenty, as a member of media watchdog agency Media-Ratings, to investigate the conditions under which Enderlin's report was filmed and broadcast -- to bring his conclusions to the public and submit those conclusions to professionals for examination.

  • Charles Enderlin is a valid target for Karsenty since he is an information professional and correspondent in Israel and the Palestinian territories for FRANCE 2’s televised prime-time news

  • Enderlin told journalists Daniel Lecomte and Denis Jeambar that “I edited out the child’s agony. It was unbearable … It would not have added anything” but after seeing the rushes they saw that “this famous ‘agony’ that Enderlin claims to have edited out of the film does not exist.” Lecomte and Jeambar also testified that the rushes show that at the moment Enderlin declares that Al-Durah was dead, there is in fact nothing to suggest that the boy really is dead -- much less that he was killed by the IDF.

  • "[I]t is apparent that examining, on appeal, the 18 minutes of Talal Abu Ramah's rushes produced by France 2 does not permit dismissing the opinion of the professionals who were heard by the court during the proceedings or who participated in the debates, and the statements procured by the cameraman (counter-evidence exhibit nos. 5 to 10), on the other hand, cannot be found truly credible neither in their presentation nor in their substance" [emphasis added]

  • "Charles Enderlin admitted that the film, which was seen around the world and sparked unprecedented violence in the entire region, perhaps did not correspond to his commentary"

  • Despite the strong and even provocative language he uses, Karsenty is explaining  -- "but without real outrage", why his criticism is deserved, based on his agency’s grading criteria. The court finds that Karsenty's conclusion, where he questions the reasons for “seeking to cover up this hoax,” does not cross the line into defamation because Karsenty
    "broaches the crux of the issue with an intensity of expression that the importance of the debated question must surely allow.
  • In concluding, the court finds that:
    "Philippe Karsenty exercised his right of free criticism in good faith; that, in doing so, he did not overstep the limits of the freedom of expression recognized in article 10 of the European Convention on Human Rights, which applies not only to information or ideas that are met with favor or considered inoffensive or insignificant, but also to those that offend, shock or disturb"
All of this the Associated Press passes over in silence -- choosing to not even inform its readers that Karsenty was at one point acquitted. As a result, the AP also relieves itself of the responsibility of explaining why the original judgement against Karsenty got overturned.

Philippe Karsenty
Philippe Karsenty of Media-Ratings, a French media watchdog.
His original defamation acquittal was overturned on a technicality.
 Credit: Wiki Commons

In the end, the French Supreme Court tossed out the 2008 acquittal and called for another trial. The question -- another one ignored by the Associated Press -- is why?

Elihu D. Stone, a contributor to the Al Durah Project, notes the translation by Joella Klinghoffer of the reasoning of the French Supreme Court concerning the legal principal the first panel of the Appeals Court violated when it subpoenaed the full rushes in the 2008 trial:
"Given Article 29 of the Law of July 29th, 1881;

Whereas in Defamation if the defendant can demonstrate his good faith by the existence of special circumstances, it is he alone who must produce the evidence, without the judges having the power to provoke, complete or perfect its presentation;"
It seems the Appeals Court overstepped its bounds by helping to uncover the truth.

Stone explains what the French Supreme Court is saying and puts the danger of its decision in context:
This apparently forced the exclusion of the exculpatory evidence to prove Karsenty's "good faith", before the second panel of the appellate court. Perhaps the rushes could have been re-introduced to prove the alternative ground -- that Karsenty's statements were true, although that ground might been perceived as a lost cause by Karsenty's counsel, especially given the prior courts' decisions.

This law as applied here by the French Supreme Court is a menace to civil society because (especially) in cases like this where -- despite an incident that was assuredly faked or staged -- it appears impossible to convince a court of journalistic misfeasance on the part of those reporting theater as news, the application of this law to negate (even) the lesser claim of "good faith" creates a clear chilling effect on whistle-blowing. It actually encourages the media to actively hide evidence of its wrongdoing and to use the 'defamation' cause of action as a sword (rather than shield) in order to muzzle valid criticism and avoid all accountability.

The existence of such a law applied in a criminal context (recalling that libel in France is simultaneously a civil and criminal offense) is striking to any American jurist because under the U.S. criminal justice system the prosecution must reveal all exculpatory evidence. (See: the U.S. Supreme Court's landmark case of Brady v. Maryland, #490, 373 U.S. 83 (1963), which established clearly that prosecutors have an affirmative duty, as a matter of constitutional law, to disclose all known exculpatory evidence to the accused in a criminal proceeding.) If the prosecution suppresses evidence favorable to an accused, it violates due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution. Due process is an essential of every substantive proceeding even if the punishment for a crime is a fine and not imprisonment. Subsequent cases made it clear that “exculpatory evidence” includes evidence reflecting on whether witnesses against the accused are credible, which might be used by the defendant’s attorney at trial for purposes of impeachment. Giglio v. United States. 450 U.S. 150 (1972). The prosecution's failure to disclose all known exculpatory evidence is grounds for civil suit. (See sources cited in Civil Liability for Police Failure to Disclose Exculpatory Evidence ) This obligation extends even after the trial and includes the obligation to reveal evidence not even in the hands of the prosecutor, but in the possession of only law enforcement.

In short, if we were dealing with American law in a criminal matter the full footage would have to be revealed. The very notion that its revelation would be deemed illegal cuts against the grain of democratic values and should trigger all sorts of sirens. The fact that the defendant here is an individual and the aggrieved is a state-sponsored institution should significantly raise the volume of the alarm.
Just don't expect that alarm to be sounded by the media, which passed over Karsenty's acquittal in 2008 in near silence. After Wednesday's conviction of Karsenty, the media appears to be relieved to be able to put the questions of the Al Durah incident in general -- and the questions raised about journalistic integrity in particular -- behind them.

Contrary to what the Associated Press and others would have you believe -- Karsenty in fact was not judged guilty. His acquittal was overturned on appeal, all because of an obscure law which the French Supreme Court ruled must exclude the entire video evidence. An obscure law from 1881 was exploited as a technicality to reverse a sound verdict. The people who saw the whole video -- not the edited version foisted on an unsuspecting audience -- found that Karsenty in fact did not defame either Charles Enderlin nor France 2.

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