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Legal Commentary

: Balkinization

France 2 v. Karsenty

By Jack M. Balkin

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The Paris Court of Appeal has cleared blogger-media critic, Philippe Karsenty, of defamation charges brought against him by France?s public broadcaster, France 2. The ruling, which France 2 has appealed to France?s Supreme Court, raises significant questions about broadcasters? increasing reliance on local cameramen, stringers, and amateur video clips, partisans? brazen manipulation of media coverage, bloggers? free speech rights to criticize media organizations, and the European media?s anti-Israel bias. Yet, with the notable exception of the Wall Street Journal, which featured an editorial and op-ed about the ruling, the decision has received scant attention in the mainstream media.

The defamation lawsuit centered on Karsenty?s allegation that the scene, which France 2 broadcast in September 2000, of twelve-year old Muhammad al-Dura crouching behind his father in a Gaza intersection, moments before he was reportedly shot and killed by Israeli gunfire, was staged by Palestinians on the street and that France 2 and its Jerusalem bureau chief, Charles Enderlin, are now covering up the hoax.

The France 2 broadcast, filmed by France 2?s Palestinian cameraman, Talal Abu Ramah, with Enderlin?s voiceover stating that the father and son "are the target of fire from the Israeli positions" and that the son was shot dead, helped to fuel the Second Intifada in September 2000 and became an incendiary icon throughout the Middle East and beyond. The incident was memorialized throughout the Arab world, including on postage stamps in a number of countries, and became a symbol of Palestinian martyrdom and purported Israeli trigger-happy killing of children. The inflammatory scene from the France 2 broadcast appears in the video that Daniel Pearl?s killers took of his beheading.

Subsequent investigations have raised serious questions about the source of the gunfire and, indeed, whether Palestinian activists on the scene staged the entire incident in collaboration with the France 2 camera crew. Writing in Atlantic Monthly in 2003, James Fallows concluded that whatever else happened to al-Dura, he was not shot by Israeli soldiers and that the rest remains a mystery.

I recently saw Karsenty present his case, together with outtakes he obtained from the France 2 broadcast, on a panel featuring former CNN senior vice president and general counsel, David Kohler, and former veteran CBS news correspondent, Murray Fromson. Viewing the outtakes, it seemed obvious to my decidedly untrained eyes that the incident was staged. The father and son remain frozen in crouching position, ostensibly to avoid Israeli gunfire, even as others run right past them. Other TV crews are filming just a few feet away from the father and son, directly in the alleged line of fire. And the son changes his position and raises his elbow after he was reportedly killed.

France?s libel law is set forth in a law of July 29, 1881, known as the Freedom of the Press Act. In order to defeat a libel charge, the defendant must prove either that:

1. the alleged facts are true ? and that proof must "be perfect, complete and correlative to the defamatory allegations both in their substance and their impact?, or

2. the defendant made the allegedly libellous statement in ?good faith,? which requires a showing, among other things, the defendant relied on reasonably reliable sources and exhibited a concern for prudence.

The Paris Court of Appeal based its ruling for Karsenty on his showing of good faith. It declined to rule that he had met the high burden of proving, by ?perfect, complete, and correlative? evidence, not just that the event was staged, but that France 2 and Enderlin had covered up the hoax. But the court found that Karsenty had presented a "coherent mass of evidence" showing legitimate doubts about the authenticity of France 2 broadcast. The court also found that the statement submitted by the France 2 cameraman was ?not perfectly credible? and that Enderlin had supplied good reason for Karsenty to suspect a France 2 cover-up. (Enderlin initially claimed to have footage of Mohammad al-Dura?s death throes, but never revealed it. )

The kind of media manipulation to which the al-Dura incident points is all too common in reporting from the region. Recall the initial Palestinian reports in September 2000 of an Israeli massacre of 3,000 Palestinian civilians in Jenin, broadcast without question by CNN, NPR, the BBC, and others, while the truth turned out to be 52 Palestinians killed, most of whom were armed combatants. (See here and here.) More recently, Hamas has staged and Western media reported electricity shortages in Gaza, replete with candles purporting to provide needed light while, as it turned out, screens blocked sunshine from streaming in through the window.

Certainly, some media outlets seem all too eager to give credence to and transmit reports of Israeli atrocities. But the problem, I want to emphasize, is far broader and deeper than that. Both broadcast and print journalists face tremendous pressure to produce under a highly competitive 24/7 news cycle. At the same time, many news organizations have sharply reduced their staff of foreign correspondents. As a result, they are increasingly reliant on local stringers and camera operators to report on local stories. In areas of conflict, it is inevitable that more than a trivial percentage of local reporters will be partisans and that video footage will be designed or doctored to favor one side or the other.

In a recent article in the New York Review of Books, Robert Darnton argues convincingly that news reporting has always been ? and always will be ? riddled with inaccuracy. One hopes, nonetheless, that major news organizations are able and willing to weed out the vast majority of highly questionable reporting ? especially incendiary video, just as CNN refused to broadcast the al-Dura footage. But there are, of course, no guarantees. And fact-checking, like quality original reporting, costs a lot of money, a resource that seems to be in increasingly short supply in journalism.

For their part, bloggers do an admirable job of exposing media failures. The Paris Court of Appeal ruling provides firm support for that media criticism. It affirms the right of citizens to freely criticize the press under the right of free expression guaranteed by the European Convention on Human Rights. And it?s hard to imagine a media organization successfully suing a blogger-critic for libel under U.S. law absent deliberate falsehood. But neither are bloggers a satisfactory solution. Indeed, for better or for worse, the Internet serves as an unfiltered outlet for the stories and footage that media organizations deem insufficiently trustworthy to carry.

Full post as published by Balkinization on June 03, 2008 (boomark / email).