Martin Malliet’s Reflections on the Enderlin-Karsenty Case in the Al Durah Affair
January 1, 2013
The article that follows was originally published on January 1, 2013, the Augean Stables blog
In response to the previous post, reader Martin J. Malliet wrote the following about the upcoming trial in Paris. Since this trial, scheduled for hearing on January 6, 2013, represents an important mile-marker in the now-over-twelve-year-long festering problem of al Durah and its profoundly noxious impact on the West, it’s important to become aware of the issues. Here below, Martin’s excellent comments with further reflections by me. Further remarks welcome.
The accusation of ‘bad journalism’ (misrepresenting the facts of the IDF’s responsibility) against France2/Enderlin should have been brought to the court by the IDF themselves. Or otherwise by somebody who could claim to have been unlawfully harmed by the bad journalism, such as an Israeli citizen being harmed by the false depiction of a government that is representing him.
At this point, I think the most valuable person to complain before the courts, including the international court, would be a Muslim who, radicalized into a genocidal Jihadi ideology with the use of the al Durah footage (subject of previous post), could sue France2 and (if the courts rule against Karsenty), the French Courts for the damage done to Muslim culture in France, which is now so far down the Jihadi “slippery slope,” that when Muhammad Merah, to revenge the Palestinian children killed by Israeli soldiers, kills little Jewish school-girls in cold blood, and a significant part of the French Muslim community considers him a hero in the “struggle.”
Now the trial was brought about indrectly by a French citizen (Karsenty): not directly by Karsenty’s complaining about the bad journalism of his French public news agency (France2/Enderlin), but indirectly by France2/Enderlin complaining about a defamatory statement made by Karsenty on the bad journalism of France2/Enderlin.
This indirect strategem was always risky, because it involved a reversal of the burden of proof: the trial wasn’t anymore about the accusation of BAD JOURNALISM (to which the defendent France2/Enderlin would have had to respond by proving that their journalism was not bad), it was about the ACCUSATION of bad journalism by someone who didn’t claim to be harmed by it (to which the defendant Karsenty had to respond by proving that his accusation was legitimate).
From the first court decision one may have the impression that this reversal of the burden of proof was not handled very well by Karsenty and his lawyers:
“The impact of these accusations is reinforced by the use (twice) of the word “fraud” and by the accusation of a “hoax,” which implies, NOT A CULPABLE RECKLESSNESS, BUT THE DELIBERATE INTENT OF MISLEADING OTHERS by broadcasting images that did not reflect reality (“a false report” according to “film experts” who have “confirmed our conclusions.”) Such accusations clearly damage the honor and reputation of their object, even more so when the persons thus described are employed in informing the public, such as in the case of the journalist Charles Enderlin or France 2.”
It would seem to me that if Karsenty had limited his accusation of bad journalism to ‘culpable recklessness’, it would have been strong enough to make his point, and it would not have opened the door for a discussion on his having sufficient proof for the stronger accusation of ‘deliberate intent to mislead’. Or he should at least have argued that ‘culpable recklessness’ on behalf of a professional public news agency is the same as the news agency’s culpable act of misleading itself (or of letting itself be misled by its sources), and thereby in the end of culpably misleading others.
This is more or less what Karsenty wrote in the original article. I am not really in a position to comment on the legal issues. I used to be (thought I was) good at legal issues, but this case has baffled me from the outset. What I would say here in terms of the larger discussion which I think we need to engage in on as large a scale as possible, is that the issues here concern the accusation of “conspiracy theory,” which I think inhibits many from even touching this topic.
If you think arguing it’s staged, is arguing a conspiracy (e.g., CE and Derfner and many), then you believe that the “conspiracy theorists” (e.g., PK and I) think Enderlin did it knowingly, on purpose, and that a wide range of conspirators were necessary to pull off such a coup, to fool “the whole world.” I’d argue that the pathetic aspect of the entire episode is how cheap the fake, how transparent its deliberate deception on the one hand, and how stunningly gullible CE and the rest of the mainstream western news media proved to be. It’s not a conspiracy theory, it’s a pyramid of (misplaced) trust, CE in his cameraman Talal, and everyone else in CE. And if it weren’t so tragically wrong-headed to persist (here’s signs of a conspiracy to keep the lid on, to maintain the “honor” of CE and the French media), it’s actually full of comedy.
Of course, the court is independent. It can always use its independence to cut through the insufficient arguments of the parties and establish the judicial truth as it sees fit. In this case: that Karsenty had sufficient proof of bad journalism against France2/Enderlin to make his somewhat outrageously formulated accusation of ‘France2/Enderlin misleading others by broadcasting images that did not reflect reality’.
I don’t see what is even remotely outrageous about that statement. It seems the very minimum that anyone who’s seen the evidence could state, without even accepting the staged hypothesis. Enderlin had no evidence but the (now obviously malicious) narrative of his cameraman to use the fatal expression “the target of fire coming from the Israeli position.”
But it didn’t.
The appeal court then overturned the first verdict by accepting Karsenty’s accusation as legitimate criticism of France2/Enderlin’s journalism.
The cassation court invalidated that appeal verdict on grounds of insufficient due process (by admitting the evidence of footage that wasn’t available to Karsenty when he made his accusation).
If this exclusion stands, it would be a real shame. Enderlin cut the most obvious example of Pallywood (the scene that inspired the term), and revealing that would be a major step in the direction of realizing how much inappropriate behavior went on in the Augean Stables of Middle East news media coverage at the time al Durah was produced (and still).
Let’s hope that the second appeal trial overturns the verdict a second time.
But let’s not forget that it would only be a small victory (i.e. Karsenty was right to criticise France2/Enderlin for suspicion of bad journalism), not the victory that would really matter (i.e. France2/Enderlin and their supporters admitting the journalism was indeed bad).
Precisely. That’s our job, one that PK’s trial can contribute to, either in affirming the right of individual citizens to criticize journalists, or in illustrating the folly of a guild-ridden elitist French establishment, in which the judiciary used technicalities to preserve the honor of the (state-owned) news media at the cost of a modern, mature, enlightened, civil society. Dreyfus affair with massive global implications.
At the time of the broadcast, I also believed it to be true, although not in the fashion it was suggested to be true, i.e. the IDF deliberately targeting civilians, but more in the fashion of the unfortunate collateral damage of civilians caught in the cross-fire. The alternative of Pallywood staging never crossed my mind. I only learned about Pallywood when discovering Richard Landes’s blog a few months ago. And I agree entirely with Richard Landes and Philippe Karsenty that it was France2/Enderlin’s job not only to know about Pallywood, but to report on it, at the time of the broadcast.
Glad to know. Welcome in this discussion. I too went through believing it (largely) true, but not all (40 minutes of withering fire? targeting? killing an ambulance driver?). Only when I read Fallows did it dawn on me that it might be staged, and the greatest resistance to the staged hypothesis remains the norm even today (e.g., Fallows himself both in the article – staged is only presented as the claim of Shahaf – and subsequently).
That’s why I did Pallywood first, because staging was/is still so unthinkable. Indeed, the “conspiracy theory” for staging comes from the unexamined assumption that staging would not be possible without a huge conspiracy to pull it off, when it really only took one of dozens of camera crews working Netzarim and other “flash points of resistance” for transparently bad Pallywood footage, the obvious silence of the public, and the obvious cooperation of a few of the hospital staff, and the completely incomprehensible folly of the mainstream news media in not questioning anything, even now (!).
rekaB Street is on Planet Al Durah.
But they still refuse to acknowledge that. It’s shameful.
Although I understand Richard Landes’s misgivings about honour-shame-culture, I sometimes feel that he is putting the accent in the wrong place. Not honour-shame is the problem, but that what triggers it. One would wish that our “Western values” would be translated more readily by those in responsible positions into what is honourable (honest reporting, accepting legitimate criticism) and what is shameful (dishonest reporting, fending off legitimate criticism).
A (the?) key moral dilemma for all human beings is choosing public shame and private integrity over public honor and private guilt. That’s Judah and Tamar, that’s the French Army and Church in the Dreyfus Affair, that’s Muslims, and the Western MSNM in the 21st century. Where you want to use the term honor (self-critically honest), I’d speak of integrity.
How I would plead (if I were Philippe Karsenty):
(1) A news agency is not in the business of fiction, it is in the business of information.
(2) Information means telling a ‘story’ about what happened in reality; contrary to fiction, a story about reality makes a claim to be the truth, and not to be something else.
(3) Those who make a claim to tell the truth must be able to back it up with proof; they cannot simply shift the burden of proof to those who doubt the truth of the story; and they can certainly not expect the doubters of the story, especially when they offer significant arguments to justify that doubt, to simply do more until they can prove the falsehood of the story ‘beyond any doubt’.
(4) It is true that in practice there is not always enough time to collect proofs for a story that go beyond any doubt; so that laying a burden of proof ‘beyond any doubt’ on the news agency would also be exaggerated.
(5) The reason why time is a factor has to do with ‘social causation’, i.e. the story brought out with its claim to be true is intended to have an effect on how other people judge the matter and take action based on that judgment, and for that it must be brought out in time and not too long after the fact; in the case of a news agency the number of people for whom the story is intended can be large and even very large.
And therefore the burden lies on the journalist to defend his honor not in technicalities of PK’s “intent” but on matters of substance.
(6) Although the news agency is not directly responsible for the judgments and actions that other people make or take on the basis of the story, the news agency can to some extent foresee these judgments and actions; this possible anticipation of the consequences of a story burdens the news agency with at least some responsibility for the consequences by ‘social causation’ of its decision to bring out the story, especially when the truth of the story cannot be corroborated ‘beyond any doubt’ for practical reasons.
And so, a fortiori, how much should reconsideration, self-criticism, and retraction follow strong evidence of the astonishing damage such reports – especially if they are false – have on social causation.
(7) It is our contention that the elements of proof for the story, at the time when it was brought out, were so weak that the news agency could not be unaware of that weakness; and that consequently the decision to bring out the story, and even more so the decision not to draw attention to the weakness of its proofs, were both utterly and culpably reckless.
And that is particularly evident in CE’s cutting of scene 6 (“death throes” too painful for the viewer to bear), and, in a sense, his cutting of the Pallywood tapes for the court.
(8) When we accused France2/Enderlin publicly of culpable recklessness, using the arguments (1) to (7), our goal was to persuade France2/Enderlin to engage in public self-criticism; public self-criticism that in our view would have had the healthy effect of both rectifying the truth of the story a posteriori and enhancing a priori the sense of responsibility in news agencies relying on similar news gathering procedures.
And critical to the maintenance of a resilient civil society, especially in a time of growing violence.
(9) If we are here today defending ourselves against the accusation of libelous criticism directed at us by France2/Enderlin, it is only because France2/Enderlin refused entirely to accept, i.e. not even to some extent, our criticism formulated under (1) to (7) and consequently refused to engage in any form of public self-criticism.
(10) Only if the court accepts that France2/Enderlin was entirely justified in taking that maximalist stance, can it conclude that our public criticism of France2/Enderlin was libelous, i.e. maliciously defamatory.