Is He Libeling The Media?

Not at all.

Excerpts from David Weinberg's Policing the media on the amendment to Israel’s libel law proposed by MKs Yariv Levin (Likud) and Meir Sheetrit (Kadima) which would significantly raise libel penalties and make them easier to achieve, especially if the media publishes defamatory material on individuals without offering them the opportunity to respond fully and in real time:

...the angry media has labeled this a “silencing” bill and an “attack on democracy.” Not at all. In fact, the amendment doesn’t go far enough...Generally, the courts are not quick to rule that the media truly libeled anyone, nor do they rush to impose maximum penalties. Consequently, all the hyperbole about “silencing” and the crushing of free speech is exaggerated.

But [it] does seek to create a chilling effect -- chilling the enthusiasm of the media to blithely and liberally splash into print every juicy, outlandish and nasty bit of information they can possibly get their hands on, without proper fact-checking or allowing the accused a proper possibility to respond.

This is not a bad thing...Israel is one of the most lax journalistic environments in the Western world. Journalism education is weak; the standard of journalistic professionalism is poor; the self-awareness of editors in terms of their responsibilities (both nationally and personally) and their legal obligations (such as avoiding libel) is low; sensationalist stories and gossip journalism get a lot of ink space and air time; tabloid-style “exposes” are highly sought-after, and competition is fierce...The libel law amendment is needed. It could motivate journalists to be a little more careful.

...[however] a number of adjustments are required so that the amendment to the law cannot be too liberally applied. First, the amendment should distinguish between public figures (who deserve less protection from the media in the context of their public activities) and private citizens, who need special protection against the salacious inclinations of the media. Second, not every tin-pot prosecutor should be able to slap journalists with a libel indictment. The amendment should restrict this privilege to senior district attorneys.

What Eli Pollak and I published on the media and libeling (here).

And from the screenplay of The Insider, two relevant scenes:-

[and you can view it here, starting at 48 seconds and at 4:43)

HELEN CAPERELLI (CONT'D)

Alright, I thought we'd get together

because there's a legal concept that has

been getting some new attention recently,

"tortious interference."

(beat)

If two people have an agreement, like a

confidentiality agreement, and one of

them breaks it because they are induced

to do so by a 3rd party, the 3rd party

can be sued for damages for

interfering...hence, "tortious

interference."

DON HEWITT

Interfering? That's what we do.

LOWELL

I think what we're trying to tell you is

that it happens all the time. This is a

news organization. People are always

telling us things they shouldn't. We

have to verify if it's true and in the

public interest... And if it is, we air

it.

MIKE WALLACE

After we corroborate it. That's why

we've never lost a lawsuit and run a

classy show. (impatient, now) Anything else?

HELEN CAPERELLI

And "60 Minutes'" verification is exact.

And precise. And I don't think it would

hurt to make sure you're right...on this

one.

DON HEWITT

Why? You think we have liability?

What's the CBS News' position, Eric?

ERIC KLUSTER

There's a possibility, it's rather

remote...

HELEN CAPERELLI

But one we have to check on, Mike. I've

retained outside counsel to do exactly

that. On a segment, I might add, that's

already rife with problems...

LOWELL

What does that mean? "Rife with -- ?"

HELEN CAPERELLI

I'm told unusual promises were made to

Wigand.

LOWELL

No, only that we would hold the story

until it was safe for him...

HELEN CAPERELLI

(cuts in)

And, I'm told there are questions as to

our "star witness'" veracity.

LOWELL

(trying to control his anger)

His "veracity" was good enough for the

State of Mississippi.

HELEN CAPERELLI

(historic)

Our standards have to be higher than

anyone else's, because we are the

standard...for everyone else...

Whatever that means...

LOWELL

(wry)

Well, as a "standard"...I'll hang with

"is the guy telling the truth?"

HELEN CAPERELLI

Well, with tortious interference, I'm

afraid...the greater the truth, the

greater the damage.

LOWELL

Come again?

HELEN CAPERELLI

They own the information he's disclosing.

The truer it is, the greater the damage

to them. If he lied, he didn't disclose

their information. And the damages are

smaller.

LOWELL

Is this "Alice in Wonderland"?

MIKE WALLACE

You said "on this one." What about "this

one"?

And Lowell hears a changed note in Wallace's voice. After a

beat.

HELEN CAPERELLI

(familiar, seductive)

If this holds up, and it very well may

not, Mike...but, if it did. And we aired

this segment? And CBS was sued by Brown

& Williamson? I think we could be at

grave risk.

MIKE WALLACE

(a beat)

How Grace?

HELEN CAPERELLI

(and she's been waiting for

this)

Well, at the end of the day...because of

your segment...the Brown & Williamson

Tobacco Company...could own CBS.

As if on cue, the alarm on Helen Caperelli's watch beeps.

She glances at it.

HELEN CAPERELLI (CONT'D)

You know, I am sorry. But I'm due

upstairs.

She gets up, gathering her things.

LOWELL

Is CBS corporate telling CBS News do not
go to air with this story?

HELEN CAPERELLI

You're getting ahead of yourself. We're

all in this together. We're all CBS.

We'll find out soon. Thank you,

gentlemen.

And taking up her briefcase, she leaves. Don and Mike rise.

LOWELL

"Tortious interference"? Sounds like a

disease caught by a radio.

DON HEWITT

(to Mike)

Lunch?

MIKE WALLACE

Sure.

(to Lowell)

Don't worry, we call the shots around
here.

Lowell finds himself angry and alone. He crosses to the

window and pulls out his cell phone and goes to work.

DEBBIE DELUCA'S VOICE (OVER)

Hello?

LOWELL

(into phone)

Debbie, it's me. I want you to check

some filings and give me John Wilson's

number at Bear-Stern.

...

LOWELL

So, what happened to Ms. Caperelli's

checking with outside counsel first, all

that crap?

ERIC KLUSTER

That's happening. And, hopefully we

won't have to use the alternate, but we

should have it in the can.

LOWELL

I'm not touching my film...

ERIC KLUSTER

I'm afraid you are.

LOWELL

No, I'm not...

ERIC KLUSTER

We're doing this with or without you,

Lowell. If you like, I can assign

another producer to edit your show...

Lowell's stunned. He looks like he's been hit with a

hammer...

LOWELL

Since when has the paragon of
investigative journalism allowed lawyers
to determine the news content on "60
Minutes"?

DON HEWITT

It's an alternate version. So what if we

have an alternate version? And I don't

think her being cautious is so damned

unreasonable.

ERIC KLUSTER

(wry)

So, now, if you'll excuse me, gentlemen,

Mr. Rather's been complaining about his

chair again.

(laughter)

As they start to leave...

LOWELL

(mild)

Before you go...

And Lowell takes out...

LOWELL (CONT'D)

I discovered this. SEC filing...

(he gets their attention)

For the sale of the CBS Corporation to

Westinghouse Corporation.

MIKE WALLACE

What?

DON HEWITT

Yeah, I heard rumors.

LOWELL

It's not a rumor. It's a sale.

(rhetorical answer)

If Tisch can unload CBS for $81 a share

to Westinghouse and then is suddenly

threatened with a multibillion-dollar

lawsuit from Brown & Williamson, that

could screw up the sale, could it not?

ERIC KLUSTER

(serene)

And what are you implying?

LOWELL

(to Kluster)

I'm not implying. I'm quoting. More

vested interests...

(reading from SEC filing)

"Persons Who Will Profit From This

Merger...

(beat)

Ms. Helen Caperelli, General Counsel of

CBS News, 3.9 million. Mr. Eric Kluster,

President of CBS News, 1.4 million..."

DON HEWITT

Are you suggesting that she and Eric are
influenced by money?

LOWELL

Oh, no, of course they're not influenced
by money. They work for free. And you
are a Volunteer Executive Producer.

DON HEWITT

CBS does not do that. And, you're
questioning our journalistic integrity?!

LOWELL

No, I'm questioning your hearing! You

hear "reasonable" and "tortious

interference." I hear... "Potential

Brown & Williamson lawsuit jeopardizing

the sale of CBS to Westinghouse." I

hear... "Shut the segment down. Cut

Wigand loose. Obey orders. And fuck

off...!" That's what I hear.

DON HEWITT

You're exaggerating!

LOWELL

I am? You pay me to go get guys like
Wigand, to draw him out. To get him to
trust us, to get him to go on television.
I do. I deliver him. He sits. He
talks. He violates his own fucking
confidentiality agreement. And he's only
the key witness in the biggest public
health reform issue, maybe the biggest,
most-expensive corporate-malfeasance case
in U.S. history. And Jeffrey Wigand,
who's out on a limb, does he go on
television and tell the truth? Yes.
Is it newsworthy? Yes. Are we gonna air
it? Of course not. Why? Because he's
not telling the truth? No. Because he
is telling the truth. That's why we're
not going to air it. And the more truth
he tells, the worse it gets!

DON HEWITT

You are a fanatic. An anarchist. You

know that? If we can't have a whole

show, then I want half a show rather than

no show. But oh, no, not you. You won't

be satisfied unless you're putting the

company at risk!

LOWELL

C'mon, what are you? And are you a

businessman? Or are you a newsman?!

Because that happens to be what Mike and

I do for a living...

MIKE WALLACE

Lowell.

LOWELL

(runs on)

"Put the corporation at risk"...? Give

me a fucking break!

MIKE WALLACE

Lowell.

LOWELL

These people are putting our whole reason

for doing what we do...on the line!

MIKE WALLACE

Lowell!

LOWELL

What?

MIKE WALLACE

I'm with Don on this.

^