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Libel And The Shield Of Truth

In Hungary, two men are involved in a trial. One is a renowned American-Israeli Nazi hunter who has spent the past three decades tracking down war criminals. The other is a former Hungarian soldier who escaped charges of mass murder by fleeing to South America after World War II.

The Nazi hunter is the one being tried.

Dr. Efraim Zuroff, director of the Simon Wiesenthal Center’s office in Jerusalem, was sued for defamation after he exposed Dr. Sandor Kepiro’s role in organizing the murders of more than 1,250 Jewish, Serbian and Roma individuals in the city of Novi Sad. On January 23, 1942, a group of Hungarian officers, acting on their own initiative, forced thousands of people to the banks of the Danube River and began to shoot them. The killings ended when officials from Budapest arrived to restore order.

In 1944 Kepiro was convicted of helping to organize the killings, although that conviction was reversed by the Nazis after they invaded Hungary. Kepiro left the country after the war and remained in hiding until, in the summer of 2006, Zuroff found him living in Budapest and notified the authorities. Zuroff later wrote about discovering Kepiro in his book Operation Last Chance: One Man’s Quest to Bring Nazi Criminals to Justice (Palgrave/Macmillan, 2009). Kepiro sued.

I suspect that the case against Zuroff will ultimately fail. But the fact that he is on trial at all emphasizes how differently cases of defamation are treated in other parts of the world. I have already written here about the limitations on freedom of speech in Italy, Britain and Singapore. While other countries skew toward protecting privacy, personal reputations and state secrets, the United States allows a much greater degree of open exchange, giving us more opportunities to speak and learn the truth.

In the United States, a comment is only defamatory if it is 1) false; 2) not an obvious statement of opinion rather than of fact; and 3) of a nature that would expose the subject to hatred, ridicule or ostracism in the eyes of the audience. Here, Zuroff could not be charged with libel or slander if he could prove the charges against Kepiro, which the 1944 court already did. In many other countries, prominently including Singapore (where newspapers occasionally decline to report on court proceedings), a statement can be considered defamatory even if it is substantially true or a matter of opinion.

The United States also has special protections allowing a greater degree of freedom in the discussion of public figures. In the 1964 case of New York Times Co. v. Sullivan, the Supreme Court determined that to be guilty of defaming a public official (expanded in later cases to anyone who is a “public figure”), the offender must act with “actual malice.” This “actual malice” is considered to exist when the person making the statement knows it to be false or acts with reckless disregard of whether it is true. In other countries, the lack of special standards for the discussion of public figures often leads to silencing political debate and dissent. In South Korea, for example, the presidential office filed a libel suit in 2007 against now-President Lee Myung-bak when, as a candidate, he accused the government of trying to politicize the national security and tax branches of the civil service.

In the United States, we also have laws addressing the special circumstances of legal cases and political activity. An accurate report of a court proceeding or a document publicly filed in court is immune from libel action, even if the allegations made in court are false. This allows journalists to report on civil lawsuits and criminal indictments without first having to investigate the factual foundation of the complaints. It also allows lawyers to aggressively present their cases. A defense lawyer can call a prosecution witness a "pathological liar" in court without risking being sued for slander, as he might if he made the same comment outside the courthouse.

Police officers have immunity for statements they make in the course of performing their duties, which allows them to file routine reports without fear of lawsuits. Members of Congress, too, can say anything at all when they’re at work on the floor of the Legislature, without any possibility of legal action being brought.

The United States also has well-crafted laws to deal with the actions of intermediary parties. While publishers who review content are responsible for what they publish, carriers that simply transmit information without reviewing it cannot be held responsible. If I make a defamatory statement over the phone, I can be sued for slander, but the telephone company that carries my phone call cannot. Internet sites receive similar protection when they host user-generated content as long as they are responsive to complaints and are quick to remove offending material.

An Italian court, on the other hand, decided last April to hold several Google executives accountable for content that was posted on Google-owned YouTube without their knowledge. In the United Kingdom, a parenting website was forced to pay damages for defamation based on comments that appeared on the website’s forum.

Our laws on defamation mean that, in the United States, we can have the sort of free, unfettered public exchange that is not possible in other parts of the world. Newspapers and websites here do not have to self-censor out of fear of lawsuits. Individuals with knowledge of others’ criminal or otherwise reprehensible behavior can inform the public, secure in the knowledge that, if they speak truthfully, they will be safe from legal repercussions.

Our rights to free speech are so deeply ingrained in our national consciousness that we often take them for granted. We shouldn’t. Cases like Zuroff’s remind us of that.

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