Defenses Under the Defamation Act: Truth, Good Faith and Opinion
Not every publication that meets the definition of defamation will lead to liability. The Defamation Act, 1965, balances the right to reputation against freedom of expression, and therefore provides a range of defenses to the publisher. Understanding the defenses is essential for both sides: for the defendant — to know whether a defense applies; for the claimant — to assess the prospects. This guide explains the central defenses, the conditions for each, and the burden of proof.
1. Truth of the Publication (Section 14)
The strongest defense is 'truth.' Section 14 provides a defense if the published matter was true and there was public interest in the publication. Both conditions are required cumulatively: both truth and public interest. 'Public interest' is not mere curiosity — the public must have a legitimate interest in the information. This defense is not defeated by an incidental detail that is untrue, if it does not cause real harm. The burden of proving that the publication is true falls on the defendant — so documentation, evidence and source reliability are critical to establishing the defense.
2. The Good-Faith Defense (Section 15)
Section 15 provides a defense where the publication was made in good faith in one of several defined situations: where the publisher had a legal, moral or social duty to publish; where the publication is an expression of opinion on the conduct of the person harmed in a public role or a public matter; criticism of a work the person harmed published; a fair report of a public assembly; and more. Good faith is a central condition — a publication made with intent to harm or without a reasonable basis will not enjoy the defense. The Act even sets presumptions of when a publication is deemed made in bad faith (e.g., if it was untrue and the publisher took no steps to verify).
3. Expression of Opinion vs. Assertion of Fact
One of the most important distinctions is between expression of opinion and assertion of fact. Genuine opinion on a public matter or on a person's conduct in their role enjoys broad protection — even sharp opinion. By contrast, presenting a false fact is not protected as 'opinion.' Courts examine how a reasonable person understands the publication — as a subjective position or a factual claim. Framing as 'in my opinion' does not automatically turn a false fact into protected opinion. This distinction often determines the fate of the claim.
4. Permitted Publications and the Burden of Proof
Section 13 defines permitted publications that do not create liability at all — e.g., publication during a Knesset debate, a judicial proceeding, or an official report. These are broad immunities reflecting a clear public interest. A key point regarding all the defenses: the burden of proof falls on the defendant-publisher. That is, once the claimant has proven that defamation was published, the publisher must prove that a defense applies. Therefore, anyone publishing sensitive information must document their sources and checks in advance — the documentation is what will enable establishing a defense when the time comes.
Checklist
- Check whether the publication is true and of public interest (Section 14 defense)
- Document your information sources and the checks you performed in advance
- Clearly distinguish between expression of opinion and a factual assertion
- Ensure the publication was made in good faith and in one of the Section 15 situations
- Remember that the burden of proving the defense falls on the publisher
- Consult before publishing sensitive information or after receiving a demand letter
Common Pitfalls
- Assuming 'in my opinion' automatically turns a false fact into protected opinion
- Relying on 'truth' without documented evidence to establish it
- Publishing without reasonable checking — undermines the good-faith defense
- Ignoring the 'public interest' requirement alongside truth
- Not understanding that the burden of the defense is on the publisher, not the claimant
שאלות ותשובות
If what I wrote is true — am I protected?
Truth is a strong defense (Section 14), but there must also be public interest in the publication, and the burden of proving truth is on you. So documentation and evidence are critical.
I wrote 'in my opinion' — does that make it protected opinion?
Not automatically. The court examines how a reasonable person understands the publication. Presenting a false fact does not become protected merely because you added 'in my opinion.'
Who has to prove the defense — me or the claimant?
The burden of proving the defenses (truth, good faith) falls on the defendant-publisher. Once defamation is shown to have been published, you must establish the defense.
Is sharp criticism of a public figure protected?
Genuine opinion on a person's conduct in a public role enjoys broad protection, even if sharp — as long as it is opinion and not the presentation of false facts.