Enderlin, France 2 v. Karsenty
Working Draft
17th Chamber
Case No. 0433823049
Decision of October 19, 2006
By order of one of the examining magistrates of this court, dated October 20, 2005 and issued following two complaints and the filing of civil actions, the first by the National Television Company France 2, on December 3, 2005, and the second by Charles Enderlin on December 9, 2004 – actions that were subsequently joined – Philippe Karsenty was summoned before this court to answer charges of public defamation of another against both, France 2 and Charles Enderlin. The charges are based on several passages – which will be discussed further below – that appeared in a press release issued on November 26, 2004 by the Media-Ratings company (which Karsenty manages), entitled “France 2: Arlette Chabot and Charles Enderlin should be removed from their positions immediately,” as well as an article of the same title that appeared online on Media-Ratings’ website, www.M-R.fr.
The defendant was summoned on November 16, 2005 for the hearing of December 15, 2005.
On November 25, 2005, Philipe Karsenty served the two plaintiffs with an evidentiary notice listing 14 documents – two of which are on video – and the names of three witnesses.
The Public Ministry, on behalf of the plaintiffs, served an evidentiary notice listing 26 items on November 29.
At the hearing of December 15, 2005, the case was rescheduled for continuance on March 9 and June 8, 2006 and for hearing on September 7, 2006.
On this date, Philippe Karsenty was present, assisted by counsel, while the plaintiffs were represented by counsel.
After having requested that the witnesses present – all of whom had been summoned by the defendant pursuant to his evidentiary notice or who were present on good faith – return to the witnesses’ chambers, the presiding judge read the charges then, the case having been filed before any questions of fact were raised, heard defendant’s counsel’s arguments, the Public Ministry’s conclusions – tending to reject the defendant’s pleadings – and the plaintiff’s reply. Defendant’s counsel addressed the court last.
After due deliberations, the court decided to join the causes of actions and considered the facts, starting, with the parties’ agreement, with the screening of two videos. The first video, submitted by the plaintiffs, consisted of the extracts of France 2’s television news broadcasts at issue; the second video, submitted by the defendant, was a documentary by the Israeli organization MENA, entitled Al Dura: The Investigation.
The court then questioned the defendant and heard the four witnesses for the defense.
Counsel for plaintiffs then argued in support of his written pleadings that Philippe Karsenty be convicted and ordered to pay each plaintiff a symbolic 1 euro in damages and interest, in addition to a sum of 20,000 euros in legal fees above and beyond court costs set by law. The representative of the Public Ministry called for leniency based on the defendant’s good faith, and defendant’s counsel argued for leniency, primarily based on the truth of the facts and, secondly, based on good faith.
After closing arguments, the court adjourned for deliberations and the parties were informed, according to the provisions of article 462, section 2, of the Code of Criminal Procedure, that the judgment would be rendered on this day.
Grounds for the Decision
Interlocutory proceedings
1. Philippe Karsenty argues that service was invalid because the registered letter sent pursuant to article 558 of the Code of Criminal Procedure – according to which the bailiff must notify “without delay” the person to whom it is addressed but who is absent from his domicile, that a copy of the writ had been served on the town council – was sent to him two days late. The writ was served on the town council on November 16, 2005, while the registered letter was sent on November 18, as attested to by the note on the receipt. Consequently, the ten days he should have had to file evidence of the truth of the defamatory statements was reduced by two days.
Speed is indeed vital when it comes to the obligation of a bailiff who serves a writ on a party at his domicile or at the town council to notify the party of the service without delay – that is, immediately – by registered mail, with notice of receipt, since the date of notification alone triggers the ten days that the defendant has to put together and file his evidence. Nevertheless, it is up to the party contesting the validity of service to show injury by specifying how the defect in service prejudiced him, as required by article 565 of the Code of Criminal Procedure.
However, in this case, one notes that the defendant, who claims no prejudice in his written arguments, filed an evidentiary notice listing 14 documents – including two videos – and the names of three witnesses before the last day of the deadline running from the date of notice of service, and he make no mention of any evidence that he might have been prevented from submitting because of the delay. Therefore, under article 55 of the law of July 29, 1881, given the lack of any prejudice to the defendant – and its having been alleged on principle only at the hearing – the argument that service was invalid is rejected.
2. The defendant also argues that the referral order, as well as the summons, omitted one of the contested passages (to wit, the sentence “Charles Enderlin, as it happens, is mistaken and simultaneously misleads us. Why? Is he trying to cover up his fraud?”) Therefore, the defendant claims, the stated cause of action is unclear and, thus, does not meet the criteria of articles 50 and 53 of the law of 29 July 1881. Accordingly, he seeks to quash the referral order and the summons. He also seeks to have the charges as to the omitted passage dropped.
Under article 50 of the law of 29 July 1881, which is only applicable once a civil suit has been filed, it is this act – the filing of a civil suit – that irrevocably determines the issues on which the defendant will have to defend himself, whether before the examining magistrate or before the trial bench. Therefore, the omission in the referral order of one of the passages mentioned in the complaint, and about which the defendant has repeatedly been questioned by the examining magistrate during his investigation, has no bearing on the cause of action, which was definitively set by the complaint.
Besides which, contrary to the assertions of defense counsel, the summons, following the referral order, does not have to lay out the cause of action, given that it has been determined by the complaint; the summons’ only object is to inform the parties of the date on which the case will come to trial.
Finally, the effect of article 65 of the law of 29 July 1881 applies to the action as a whole, and not specifically to each individual issue raised. Any interrupting event that would stay the running of the statute would apply to the entirety of the cause of action pursued, exactly as it has been laid out in the complaint.
Accordingly, the defendant’s argument that the charges related to the passage omitted in the referral order and the summons should therefore be dropped, is rejected.
The Facts
On September 30, 2000, the France 2 television channel broadcast a report during the 8 p.m. news on the renewed violence in Israel and the Palestinian territories since the visit, two days previously, by Ariel Sharon – then leader of the opposition party, the Likud – to the Temple Mount in Jerusalem.
The anchorwoman mentioned the confrontations and “an unprecedented wave of violence that has resulted in 15 dead and 500 wounded Palestinians on Saturday.” Following this was a report narrated by Charles Enderlin, France 2’s permanent correspondent in Israel, who pointed out in particular the exchange of live gun fire at an intersection near the Israeli settlement of Netzarim in the Gaza Strip, during which one sees, a father crouching behind a concrete shaft along a wall, trying to protect his child.
The commentary that accompanied these images, which would appear around the world, was as follows:
“Three p.m. Everything has just erupted near the settlement of Netzarim, in the Gaza Strip. The Palestinians have shot live bullets, the Israelis are responding. Emergency medical technicians, journalists, passersby are caught in the crossfire. Here, Jamal and his son Mohamed are the target of fire from the Israeli positions. Mohamed is twelve, his father is trying to protect him. He is motioning …
“Another burst of fire. Mohamed is dead and his father seriously wounded. A Palestinian policeman and an ambulance driver have also lost their lives in the course of this battle.”
France 2 will recap these events in its broadcast of October 1, announcing “images with commentary from our correspondent Charles Enderlin” in a report on the continuing fighting in Nablus, the deployment of the Israeli army in Netzarim and – specifies Charles Enderlin – the funeral of Mohamed, “a 12-year-old child whose tragic death was filmed by Talal Abu Ramah, France 2’s correspondent in the Gaza Strip,” adding that “officials are reviewing the case” and the Israeli army has issued a statement “regretting the loss of human lives and claiming that it is impossible to determine the origin of the fire.”
On October 2, 2000, the anchorman for the evening news on France 2 again raised the matter by mentioning the scene filmed by Talal Abu Ramah (“Our cameraman, Talal Abu Ramah, was filming the unacceptable”) and announced the coming-up report by “Charles Enderlin and Talal Abu Raah,” which is entirely devoted to the origin of the gun fire that killed little Mohamed. The cameraman’s comment is broadcast (“I am sure that the shots came from the Israeli side”) as well as the statement of the assistant chief of staff of the IDF that it could not rule out that an Israeli soldier, not having seen the father and the son, could have fired in their direction.
On November 27, 2000, France 2 news devoted a report by Charles Enderlin to the preliminary results of the investigation carried out by Gen. Yom Tov Samia, in charge of the Southern Command, according to which, following ballistic studies, “it is more probable that [Mohamed Al Dura] was killed by the Palestinians than by the Israelis.”
The following day, November 28, 2000, a report by Charles Enderlin comments about the controversy aroused by the military investigation’s conclusions, saying that “several points of the Israeli theory conflict with facts collected on site,” such as the testimony of the doctor who examined the child’s body, and he notes that the reconstruction of the scene at a military base in the Negev, for the purpose of ballistic testing, “had been sharply criticized by the Israeli press.”
In March 2002, the German television station ARD broadcasts a 52-minute-long documentary produced by Esther Shapira, entitled Who Killed Mohamed Al Dura? whose point may be summarized by a comment of its author: “While the film shows Mohamed’s death, it does not show who killed him, despite the fact that millions of people are convinced that they know who did.”
This documentary especially emphasizes the lack of a thorough autopsy on young Mohamed’s body by the Palestinian authorities and the complete destruction, eight days after the event, of the intersection where the events occurred (the wall and concrete shaft included), on the order of Gen. Samia – who was in charge of the investigation – so that there was no physical evidence that could be used to determine the origin of the shots, or the nature of the fatal bullets. The journalist noted that, in light of this, the investigation was seriously compromised and henceforth would depend solely on the Israeli investigators or the France 2 team.
She then pointed out the conclusions of the ballistics tests carried out by the Israeli army – according to which Jamal Al Dura and his son Mohamed were protected by the concrete shaft from shots fired from the Israeli positions – and collected the testimony of three anonymous Israeli soldiers who had been present at the scene and who claimed they had never used automatic weapons. She regretted that France 2 had never broadcast the rushes taken by its cameraman, for had it done so, this might have resolved any uncertainty about the origin of the shots.
On October 2, 2002, one thousand people gather before the offices of France Television. During the demonstration, Esther Shapira’s film is shown on a giant screen, and the organizers symbolically award a “Prize for Disinformation” to France 2 and Charles Enderlin.
In November 2002, the French-Israeli press agency Metula News Agency (henceforth, MENA) produces a twenty-minute-long documentary entitled Al Dura – The Investigation that, based largely on comments by Nahum Shahaf, a physicist who participated in the military investigation organized by Gen. Samia, casts doubts as to the authenticity of the scenes filmed by the France 2 cameraman, and concludes it was a “real set up, performed by actors.”
In January 2003, Gerard Huber, MENA’s permanent correspondent in Paris, who acted as a consultant for the production of the film Al Dura –The Investigation, publishes a book, entitled Second Opinion on a Set Up, that propounds the same theory as the documentary.
On October 22, 2004, France 2 and its information director, Arlette Chabot, invite three celebrities who had been critical of Charles Enderlin – Daniel Leconte, of Arte, Denis Jeambar, then editing director at the Express, and Luc Rosenzweig, former chief editor of the daily Le Monde – to view the 27 minutes of rushes taken by the station’s cameraman on September 30, 2000.
On November 18, 2004, France 2 organizes a press conference during which it presents photographs of the wounds suffered by Jamal Al Dura on September 30, 2000.
On November 22, 2004, the Media-Ratings company publishes on its website, www.M-R.fr, an article entitled “France 2: Arlette Chabot and Charles Enderlin must be removed from their positions,” whose content, which was updated in the following days, is as follows, with the passages contested by the national television company France 2 indicated in bold font, and those contested by Charles Enderlin underlined:
France 2: Arlette Chabot and Charles Enderlin should be removed from their positions immediately.
The principles of accuracy, objectivity, transparency and responsibility of the PHILTRE method have been repeatedly violated by France 2 in its broadcast of the faked death of Mohamed Al Dura on September 30, 2000
Preliminary notices:
Arlette Chabot has threatened to file suit against any person who would accuse France 2 of having broadcast a lie on September 30, 2000.
The editorial company Media-Ratings – GETZE SA – is ready to defend its statements in the French courts. We note that our conclusions were submitted to film experts as well as a member of the Conseil supérieur de l’audiovisuel. They have confirmed our conclusions, as well as this article. We add that at least two members of the government of M. Jean-Pierre Raffarin and many journalists are aware that France 2 broadcast a false report on September 30, 2000.
It would be best if they would admit to it, in order to cease this masquerade that is a dishonor to France and to its public television.
For our part, we would donate 10,000 euros to a nonprofit organization designated by France 2 if the station could prove to us, as well as to a panel of independent experts that the report broadcast on 30 September 2000 showing the death of a Palestinian child in his father’s arms was not a fake. Given this pledge, and if France 2 cannot provide this proof, we hope that the Conseil supérieur de l’audiovisuel will demand the immediate resignation of those who have participated in this hoax.
Review of the facts
On 30 September 2000, France 2 broadcast a report showing the death on film of a Palestinian child, Mohamed Al Dura, in the arms of his father, Jamal Al Dura.
These pictures, which were seen around the world, have provoked numerous violent incidents. Since September 2000, this death, the responsibility for which was attributed to the Israeli army, has become the symbol of the war that pits Israelis and Palestinians against each other.
A controversy is raging between France 2 and the Israeli press agency MENA – Metula News Agency – which accuses France 2 of having broadcast a staged event. The controversy has recently grown, following the intervention of a UMP deputy and numerous journalists to get the new director of information at France 2, Arlette Chabot, to call a news conference and offer explanations on Thursday, November 18, 2004. We note that we were not able to attend this press conference because we were refused entry, although no reason for this was given to us.
Media-Rating’s Analysis and Conclusions
Given the evidence in our possession , we maintain that France 2’s correspondent in Jerusalem, Charles Enderlin, did, indeed, broadcast a false report on September 30, 2000.
Following are the inconsistencies in France 2’s document:
From the very beginning of the report presented by France 2, we can see that we are viewing scenes that are being acted out.
In fact, in the sequence introducing the pictures of the child’s death, a man is supposedly injured by a bullet to his right leg. The man is dragged on the ground, on his right leg, but there is not a trace of blood on the ground. An ambulance arrives at the scene to evacuate the man in less than two seconds (this was timed with a stopwatch), which is not believable. Finally, the stretcher bearers who come to evacuate the “wounded” man place him on the stretcher on his right side (the side on which he was allegedly shot) and this doesn’t seem to bother him.
These facts lead us to conclude that this first scene is pure fiction.
Furthermore, MENA also presented images filmed on September 30, 2000, by other photojournalists and cameramen, notably from Reuters, at the same location where Mohamed Al Dura’s faked death was filmed. There was, in fact, a multitude of cameramen at the scene that day, and, rather oddly, none of them filmed the above scene, or the evacuation of the father and the child.
Moreover, a director was on the scene and war scenes, acted out by amateur performers, were being filmed at the same location that same day. Furthermore, in one of the scenes caught on film, the director says, “It’s all ruined. We have to do it all over again,” while waving his arms and coordinating the actors.
We turn now to the principal scene in which the father (Jamal Al Dura) has allegedly been wounded and the child (Mohamed Al Dura) is allegedly killed.
Upon careful study of the images broadcast by France 2 to the entire world, there are obvious unexplainable inconsistencies. The father is supposed to have been hit by eight bullets during the skirmish, including one in the right elbow and one in the right shoulder. However, when looking at the scene carefully, it is apparent that there is no trace of bullets or blood on the father’s body or clothes. The child is supposed to have been killed at the end of the scene shot by France 2. However, the child’s position at the end of the scene is not that of a dead person. In fact, the contractions of the arms, hands, and legs indicate that the child was not dead. Furthermore, one sees that the child, after the allegedly fatal volley, engages in movements that are inconsistent with the movement of a dead body. In deed, while he is supposed to be dead, the child first has his head on his father’s thigh. Later, we find him turned to the side. Then the child raises his elbow and looks into the camera. Finally, he turns onto his stomach and puts his hands over his eyes.
All this, obviously, is inconsistent with the version of the events reported by France 2.
We note also that there seems to be no evidence of bullet wounds on the child’s body or clothing.
To counter these points, at its press conference of November 18, 2000, France 2 presented photographs of the father’s scars. However, there is nothing to allow one to date the wounds that caused the scars. Furthermore, the press agency MENA released the father’s medical records, which tell us that he had previously been injured in the arm and shoulder and thus, consequently, that the scars presented by Mrs. Chabot are actually due to these prior injuries.
Mrs. Chabot has stated (on Canal and on Saturday, November 20, 2004) that the father’s scars that were shown in October 2004 indicate that he really was wounded on September 30, 2000. Then, contrary to all the evidence at hand, she added that this is proof that the child was indeed killed the same day – a conclusion devoid of all logic, an obviously clumsy attempt at justification.
The explanations provided by Charles Enderlin are also contradicted by numerous points. When asked why there was an editing cut in his film between the time when the child does not seem to have been hit, and when he seems to be dead, Charles Enderlin replied that it was because he had not wanted to show the child’s agony. Every person who has had access to all of France 2’s rushes has refuted this claim and stated that the station has no scene showing the child in agony. Charles Enderlin, therefore, must be mistaken and at the same time, misleads us. Why?
Could he be trying to cover up his fraud?
Note that Mr. Enderlin allegedly pressured L’Express, for this magazine wished to publish information that contradicted his version of the events.
Note also that certain media – notably Télérama and L’Humanité – have given France 2’s theories a rather strong endorsement. On the other hand, others, such as Le Monde and Le Nouvel Obs, have presented the controversy between MENA and France 2 in an unbiased fashion. For its part, Le Figaro, (notes by Ivan Riofoul on November 19, 2004) implicitly supported MENA’s position: “This complacency recalls that which allowed the Israeli army to be accused of having killed little Mohamed Al Dura in his father’s arms on September 30, 2000 in Gaza, during crossfire between Palestinians and Israelis, filmed by France 2. The grievous doubts raised as to the scene’s authenticity have not been enough to eradicate the accusation.”
Finally, it is difficult to understand why Daniel Schneldermann, in Libération on Friday, November 26, 2004, feels obliged to lend his support to France 2’s hoax. Specifically, he supports the station, although he has enough evidence (including, among others, the information provided by MENA) to know that what he states in his article is incorrect. Nevertheless, he published it. Could this be a career move? Would he perhaps not want to risk a row with Francetelevisions, the parent company of France 5, where he appears on Sundays?
France 2 has, on many occasions in the course of the last four years, failed to respect the principles of authenticity (exactness of the information), objectivity (does the journalist analyze his source’s assertions), of transparency (auto-criticism, willingness to follow up on mistakes) and responsibility of the PHILTRE method.
We note, finally, that almost all the French editors receive our press releases.
When, on October 25, 2004, we revealed the existence of the third tape of the French hostages 18 days before France 2 ever mentioned it, only the magazine Valeurs Actuelles published our information.
We hope that the French media will inform their readers, listeners, and viewers rapidly of the media fraud France 2 has engaged in for more than four years.
For their part, the Anglo-Saxon media is beginning to show interest in this issue.
On Friday, November 26, 2004, the Wall Street Journal published an article by Stéphane Juffa, editor in chief at MENA, covering the numerous inconsistencies in France 2’s false report. This article is, unfortunately, not available on line, but if you are interested, please let us know by e-mail: “article” WSJ@M-R.fr.
On November 26, 2004, Media-Ratings sent the following press release by e-mail to all the subscribers to its distribution service (the passages at issue in this case appear in bold font):
Press Release
Friday, November 26, 2004
France 2: Arlette Chabot and Charles Enderlin should be removed from their posts immediately
On September 30, 2000, France 2 broadcast a report showing the death on film of a Palestinian child, Mohamed Al Dura, in the arms of his father, Jamal Al Dura.
These images, which were seen around the world, provoked many violent incidents.
This death, the responsibility for which had been attributed to the Israeli army, has since September 2000, become the symbol of the war that pits Israelis and Palestinians against each other.
The controversy has recently grown, following the intervention of a UMP deputy and numerous journalists to get the new director of information at France 2, Arlette Chabot, to call a news conference and offer explanations on Thursday, November 18, 2004.
Given the evidence in our possession , we maintain that France 2’s correspondent in Jerusalem, Charles Enderlin, did, indeed, broadcast a false report on September 30, 2000.
We invite you to learn more about the inconsistencies in France 2’s document, as well as the reactions of certain media to this hoax, on Media-Ratings.
Arlette Chabot has threatened to file suit against any person who would accuse France 2 of having broadcast a lie on September 30, 2000.
The editorial company Media-Ratings – GETZE SA – is ready to defend its statements in the French courts.
We note that our conclusions were submitted to film experts as well as a member of the Conseil supérieur de l’audiovisuel. They have confirmed our conclusions, as well as this article.
We add that at least two members of the government of M. Jean-Pierre Raffarin and many journalists are aware that France 2 broadcast a false report on September 30, 2000.
It would be preferable if they would admit it, in order to cease this masquerade that is a dishonor to France and to its public television.
For our part, we would donate 10,000 euros to a nonprofit organization designated by France 2 if the station could prove to us, as well as to a panel of independent experts, that the report it broadcast on September 30, 2000, showing the death of a Palestinian child in his father’s arms, was not a fake.
Given this pledge, and if France 2 cannot provide this proof, we hope that the Conseil supérieur de l’audiovisuel will demand the immediate resignation of those who have participated in this hoax.
We note, finally, that almost all the French editors receive our press releases.
When, on October 25, 2004, we revealed the existence of the third tape of the French hostages 18 days before France 2 ever mentioned it, only the magazine Valeurs Actuelles published our information.
We hope that the French media will inform their readers, listeners, and viewers rapidly of the media fraud France 2 has engaged in for more than four years.
For their part, the Anglo-Saxon media is beginning to show interest in this issue.
On Friday, November 26, 2004, the Wall Street Journal published an article by Stéphane Juffa, editor in chief at MENA, covering the numerous inconsistencies in France 2’s false report. This article is, unfortunately, not available on line, but if you are interested, please let us know by e-mail: “article” WSJ@M-R.fr.
contact@media-ratings.com
On Defamation
Article 29 of the law of July 29, 1881 defines defamation as “any allegation or imputation of a fact that damages a person’s honor or reputation.” The event or fact imputed must be sufficiently clear, independent of a debate on opinions, and distinct from value judgments so that it can, if necessary, be the object of a useful probative debate.
The passages at issue in the press release accuse Charles Enderlin of having produced a false report and the company France 2, which is named several times, of having knowingly broadcast it on September 30, 2000.
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.
The passages at issue of the text posted on line on Media-Ratings’ website repeat, almost word for word, the allegations made in the press release. The scope of the vocabulary (“masquerade,” “fraud,” “hoax”), the reference made to supporting testimony from highly-placed celebrities, or professionals in the information field (“at least two members of the government of M. Jean-Pierre Raffarin and many journalists are aware that France 2 broadcast a false report on September 30, 2000”) and the suggestion that the author has evidence that allows him to “maintain that France 2’s correspondent in Jerusalem, Charles Enderlin, did, indeed, broadcast a false report,” “scenes that are being acted out,” “pure fiction,” also reinforce the impact of slanderous allegations that clearly damage the honor and the reputation of the journalist and of the station that employs him.
On the criteria of publicity, regarding the press release
Philippe Karsenty, who does not deny responsibility for the publication of either text at issue, nevertheless argues that the press release was only distributed by electronic means, as private correspondence, only to persons who had previously and voluntarily subscribed to the web-site’s distribution list, such that the recipients were united by a common interest and the condition of publicity inherent in the crime of public defamation of another is therefore lacking.
While it is undisputed that the text of this “press release” was not posted on Media-Rating’s web site and that it was sent only by e-mail to various correspondents, the content of this missive, as well as its title, indicates that its purpose lacked any element of confidentiality. In fact, not only was this e-mail sent indiscriminately to every one who had subscribed to the web site’s distribution list – subscription being free and operating without any form of control or prior selection, as Philip Karsenty noted at the hearing – but each one of its recipients was informed by the message that “almost all the French editors receive our press releases,” and, furthermore, of the wish that “the French media will inform their readers, listeners, and viewers rapidly of the [denounced] fraud.”
Given these circumstances, this press release could not possibly be considered a confidential correspondence addressed to recipients united by common interests. Accordingly, the criterion of a public act is met.
As to the truth of the defamatory facts
Philippe Karenty has submitted in his defense 14 documents – including two on video – and the names of three witnesses: Luc Rozensweig, Daniel Dayan and Nicole Guedj, the last of whom, although not having been excused, did not appear or testify.
We note that in order to invoke the defense provided by article 35 of the law of July 29, 1881, the proof of the truth of the defamatory facts must be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.
As such, we note that the two pieces of evidence provided on video (exhibit 1 and 2) are contradictory, since the premises they defend are mutually incompatible. The film by MENA alleges that the scene of little Mohamed’s death is acted out, completely fabricated, the child being still alive, and his father never having been wounded, whereas the documentary by Esther Shapira, who at no time ever contests the reality of the child’s death, nor the authenticity of the images broadcast by France 2, endeavors only to question the assertion that the fatal shots came from the Israeli army.
The excerpts of the book by Gerard Huber, Second Opinion on a Set Up, (exhibit 3) do not add to the theses defended by the MENA film, since actually, the sources of information for both are the same, and the author of the book indicates that he is the Paris correspondent for the press agency MENA and that he participated as a consultant in the making of the film, Al Dura: The Investigation, noting in a footnote of his book that “this book is in conjunction with the documentary Al Dura: The Investigation, produced by Metula News Agency.”
Exhibit No.5, the written statement by Daniel Dayan, research director at CNRS and media expert, is very qualified and in no way establishes that the scene filmed by France 2 was staged. In fact, the witness is careful not to adopt the imputations made against Charles Enderlin and France 2, by writing: “I am ready to affirm, not that it was necessarily a set up, but that you are correct in noting the absence of verifying elements that would allow one to determine the veracity of the images.” The ambiguity of such a statement is also apparent several sentences later in the following words: “The images broadcast did not justify the commentary that accompanied their broadcast,” whose effect is limited to the determination that the images, without the accompanying commentary, did not establish the child’s death, nor the father’s injuries, but only the volley of shots (“the images in which we see traces of gun shots on the wall behind the father and the son prove nothing as to the origin of those shots.”)
Exhibit No. 6 is the transcription of an interview of Nahum Shahaf by the MENA press agency, dated September 17, 2002. It does not add anything to the argument presented by MENA’s film, which was entirely based on his statement, nor to Gerard Huber’s book, which reproduces the interview in its entirety. At this stage, however, in order to discuss the issue further in this decision, we note that Nahum Shahaf asserts in the interview that he has “irrefutable proof” that Jamal Al Dura, little Mohamed’s father, “was not wounded at Netzarim,” although the press agency conducting the interview did not ask him the nature of this alleged evidence nor does it indicate having had access to it. The same lack of curiosity on the part of the press agency is apparent when its interviewee states, “I have at your disposal a film on which you can see very clearly that the impact of a bullet that allegedly hit the young man [that is to say, the child] is in fact a piece of red fabric, meant to look like blood, that falls from the young man’s shirt during the film.” The existence and the origin of the film mentioned do not provoke any questions by MENA, despite the fact that it is recognized that only the France 2 cameraman filmed the scene at issue.
In fact, this submitted evidence contains uncorroborated allegations that no official Israeli authority has ever taken into consideration.
Exhibits no. 10, 11, 12, and 14 are news items from the same agency, MENA, respectively dated December 11, 2002, February 16, 2004, November 22, 2004, and September 16, 2003, none of which establishes that the images broadcast by France 2 on September 30, 2000, constituted a complete fabrication, produced with the participation of Palestinian actors.
The new item of December 11, 2002, contains a report that Tala Abu Rahma, Charles Enderlin’s cameraman, faxed the editors of France 2 a statement denying that he had ever told the organization Human Rights in Gaza that Israeli soldiers had intentionally or cold-bloodedly killed Mohamed Al Dura and wounded his father, adding, “What I said in all the interviews that I gave was that, from where I was, I could see that the shot came from the Israeli position.” The rest of the item then formulates an opinion on the impact of this statement, noting, “When a piece of yarn (the original statement) unravels by itself, it raises questions about the whole ball of yarn. One cannot hope to tighten the strings without looking at the smallest details, in the hope of discovering the truth.”
The news item of February 16, 2004 was released by MENA on the occasion of Oliver Mazerolle’s resignation as director of information at France 2 – for reasons having nothing to do with the case at hand. The release blames the station for having never denied what it unequivocally stated in its report of September 30, 2000, as to the origin of the shots that killed the young Mohamed, and states that “a major labor union at France 2, the SNPCA-CGC (the syndicat national des personnels de la communication de l’audiovisiuel) has demanded that the management provide explanations of the matter.” However, the text of the SNPCA-CGC press release is not provided.
The news item of September 16, 2003, blames the broadcast by France 2 of the images of Mohamed Al Dura’s death for the lynching, several days later – on October 12, 2000 – in Ramallah of two Israeli army reservists by Palestinian police. This correlation, which is purely an opinion – well-based or not – actually stresses the impact of the images of Mohamed Al Dura’s death: It does not leave room, in this context, for challenging the authenticity of the images. Besides which, we note that, in his book, Gerard Huber had noted the same correlation when discussing (p. 189 to 192) the psychological reaction of Shahaf, his principal witness, to the event: “It is certain that his reaction to the lynching in Ramallah could only cement his obsession to clarify [the hypothesis that Mohamed Al Dura’s death was a set up] and to prove its validity at all cost.”
Finally, the news item of November 22, 2004, reports the refusal of France 2’s management to allow a journalist from MENA to attend the press conference organized to respond to the accusatory campaign against Charles Enderlin. It proves nothing other than the significantly deteriorated relations between the French public station and the Israeli press agency.
Therefore, as a whole, these new items, which blend information, opinions and commentary, are not probative of the accuracy of the allegations that must be proven.
Exhibit No. 9 is an article that appeared in issue no. 3 of the magazine Confidentiel, dated January/February 2004, which, under the title “Autopsy of a Lie,” devoted four pages to the Al Dura affaire. Entirely based on a viewing of the MENA film (“Together with Gerard Huber, we viewed the documentary produced by Nahum Shahaf and the press agency MENA”) and the latter’s statements – which are really one and the same with the film – this article concludes, on one hand, that “there was no possible line of fire between the Israeli position and that of Jamal and the child,” and that the Palestinian marksmen “shot right next to their heads [those of Jamal and Mohamed Al Dura] in order to give the impression that a battle was going on.” A certain Philippe Moreau, presented as an expert on ballistics, is interviewed and concludes, based on the documents he was provided with, (documents whose nature is not specified), that “the death of the individuals [sic] must be questioned. The faintness of the marks where the shots hit (basically none) tends to support the theory that this was a simulation. The lack of an autopsy and the failure to present any corpses also tend to support this.”
This article, which ends with anonymous comments from a “film-producing journalist,” contains nothing to distinguish it from the one and only source of the theory that this was a set up. According to the evidence submitted, this theory is advocated only by an Israeli press agency, based practically entirely on the sole testimony of Shahaf. It is also not adopted by any official authority, despite the constant efforts of its supporters in propounding the theory for the last four years, through various means – several news items by the same agency, a film, a published book – which all echo one another but feed from the same source. Mere repetition cannot grant it the authority that it intrinsically lacks in order to prove the truth of the defamatory statements.
Exhibit No. 7 (an article that appeared in the Wall Street Journal on November 26, 2004) will not be considered since it post-dates the publications at issue. In any case, the article merely reviews the controversy. Exhibit 13 is an excerpt from the book Media and Society by Francis Balle that looks in general terms at the impact of images and their potential manipulation for propaganda purposes, without bearing directly on the case at hand.
The testimony of Luc Rosenzweig, former editor in chief of Le Monde, does not, alone, nor in conjunction with the exhibits cited above, provide the missing proof of truth.
Indeed, this witness stated he had “been approached” in Tel Aviv by certain parties who had voiced their doubts about Charles Enderlin’s report, and that he had shared these doubts with Denis Jeambar and Daniel Leconte, in whose company he viewed the rushes of France 2’s cameraman. Although he stated being surprised that, of Talul Abu Rahma’s 27 minutes of film, the scenes other than those of little Mohamed’s death (which comprised 23 minutes of the total rushes) had “nothing to do” with those that had been broadcast by the station, and basically consisted of young Palestinians acting out fictitious war scenes, and although he admitted when questioned by the court that “the theory of the set up [of Mohamed Al Dura’s death] has a greater probability of being true than the version presented by France 2,” he refused to express any opinion stronger than this, claiming that “as a journalist, the criteria do not allow [him] to go further than this.”
Given this admission that there was no formal proof to support his opinion, this testimony cannot establish the truth of the facts alleged, namely that the filmed death of little Mohamed Al Dura was acted out.
Furthermore, it is shown that this theory is inconsistent with that expressed in exhibit no. 4, an interview granted to the RCJ by the two other journalists who, with Luc Rosenzweig, saw the France 2 rushes. Indeed, while Daniel Leconte and Denis Jeambar, after having seen the rushes, continue to criticize Charles Enderlin and believe, as does Luc Rosenzweig, that most of the film shows young Palestinians using the presence of cameras an a means of propaganda by simulating combat or pretending to be wounded, these two journalists vehemently deny that the images of Mohamed Al Dura’s death could have resulted from such acting. Denis Jeambar stated, “So yes, there were scenes that were acted out – except for one,” and later, “What we saw, does not at all lead us to say that [it could have been a set up], rather, it leads us to say the opposite.” And Daniel Leconte describes the MENA theory, as “a rather conspirasist theory,” alluding to Thierry Mayssan’s theory of the airplane “crash” into the Pentagon on September 11, 2001, in Washington.
These two journalists reiterated their positions more assertively in an opinion piece published in Le Figaro: “To those who, like MENA, tried to use us to support the theory that the child’s death was staged by the Palestinians, we say they are misleading us and their readers. Not only do we not share this point of view, but we attest that, given our present knowledge of the case, nothing supports that conclusion. In fact, the reverse is true.”
Given that the exhibits submitted are inconsistent with each other and most of them derive from the same source, whose credibility has been publicly questioned, the evidence presented is insufficient to exonerate Phillipe Karsenty of the defamation of which he is accused.
As to good faith
Defamatory allegations are, legally, assumed to be made with intent to cause damage, but they may be justified when the author can show his good faith, and prove that he had a legitimate purpose, devoid of any personal animosity, and that he followed certain criteria, particularly with respect to the thoroughness of his investigation, as well as the prudence of his expression. These criteria apply differently given the type of written statement at issue and the position of the person expressing himself, but they are particularly stringent when the person accused is engaged in informing the public, or are, as in this case, is a “media watchdog.”
It was incontestably legitimate for a press agency such as Media-Ratings – which Phillipe Karsenty directs – that presents itself as “the leading media watchdog agency” to investigate the conditions in which the images broadcast by France 2 had been filmed and broadcast to the public. The controversy in Israel over the origin of the shots that killed little Mohamed and wounded his father, the official investigation by the IDF, the reactions of the Israeli press, as much to the event itself as to the army’s initial conclusions, the impact that these images had through out the whole world, are all factors that could not escape public scrutiny nor critical analysis.
Given Media-Ratings’ claim of deciphering the news, however, it behooved Karsenty, as an information professional, to exhibit a sharply critical eye on all of the proof that he had access to, equally, and not to prefer one theory over another without having done a thorough investigation that would allow him to draw any conclusions.
In order to convince us of his good faith and to show the thoroughness of his investigation, Philippe Karsenty invokes a jumble of documents and testimony that raise three points of criticism against Charles Enderlin’s report. The three are very different in their objectives and scopes, and only merit all being considered because the accused – who prefers one over the others – has used them indistinctly.
The first theory claims that, by stating in his commentary of the first images that “Jamal and his son Mohamed are the target of shots from the Israeli positions,” and having added a moment later, “A new volley. Mohamed is dead and his father seriously wounded. A Palestinian policeman and an ambulance driver have also lost their lives in the course of this battle,” Charles Enderlin considered the fatal shots – at the time attributed to the Israeli forces – to have been deliberate. Certainly, the ambiguity of the statement, and its forceful use of the present and indicative tenses, do not preclude this interpretation, but one must admit that none of the comments in the report confirmed it. Charles Enderlin had just indicated the origin of the shooting (“The Palestinians have shot live bullets; the Israelis are responding”) and described the situation of the “emergency medical technicians, journalists, passersby [who] are caught in the cross-fire,” which tends to draw attention to the random consequences of this type of fire in war time rather than suggest a deliberate intention by one of the belligerent parties to kill innocent people. Finally, none of the reports subsequently broadcast by France 2, and always with commentary by Charles Enderlin, suggested that the Israeli forces deliberately shot Jamal Al Dura or his son.
The second criticism of the report also focuses on the commentary to the images, but only in as much as it attributed the origin of the shots to the “Israeli positions,” a comment reiterated by the journalist several days later.
Three factors support this argument.
The journalist was first criticized for having commented on events to which he was not an eye-witness as if he had been present at the scene. This, alone, does not necessarily indicate that the event reported was false. In fact, a journalist’s commenting in an “off” voice on the images filmed by a third party does not violate any ethical rules. Moreover, the images at issue had been filmed by his own cameraman who had worked for France 2 for about twenty years and whose professionalism had never been questioned.
As for France 2, at no time did the reports broadcast afterward by the station hide the fact that the only journalist present at the scene was Talal Abu Rahma, since Charles Enderlin stressed in his report of October 1 that the child’s tragic death had been “filmed by Talal Abu Ramah, France 2’s correspondent in Gaza.” The news anchorman further noted the following day, October 2, that “our cameraman Tala Abu Ramah filmed the unacceptable.”
Clearly, the preliminary results of the investigation ordered by the Israeli army, while not decisive, cast doubt on the certainty of what had until then been assumed. These results were, in any case, expressed in extremely prudent terms by the representative of the Israeli army in the Southern zone, on November 28, 2000: “It is more probable that [Mohamed Al Dura] was killed by the Palestinians than by the Israelis.” France 2 reported this statement throughout a report by Charles Enderlin, broadcast the same day, in which he nevertheless emphasized the inconsistencies of these conclusions with the “evidence collected at the scene,” in support of which was cited the written testimony of many journalists who were present at the scene, notably that of Nouredine Saber, a photographer with EPA (Agence Europeenne de la Photo) and formerly a photographer with AFP; Moussa Hatem, an Associated Press photographer, Suhaib Salemin, photographer with the Reuters agency, and Sami Ziara, director of production at ABC News, all of whom claim the shots were fired from the Israeli side.
It is Esther Shapira’s film, broadcast by a German station in March 2002, some 18 months later, that, on the basis of investigative evidence, particularly ballistic evidence collected by the Israeli army, definitively solidified the theory that Mohamed Al Dura’s death was caused by a stray Palestinian bullet and not an Israeli one.
One should note, however, that this film, which undeniably cast a legitimate doubt on the assumed origin of the fatal shots, and which convinced a certain number of journalists, has not been free of critics. Indeed, Gerard Huber recalls in his book, Second Opinion of a Set Up, the sharp criticism of Esther Shapira by Tom Seguev, an Israeli historian, in an article published by Haaretz (“a new documentary on German television tells us more about the media and the failures of the IDF spokesman than about the young boy’s death,” p. 116-117 of the book) and in France, by Denis Sieffert, in an article published in the magazine Politis, dated January 4, 2002, under the title, “Flagrant disinformation about the Middle East,” (p. 118 to 122.)
Nevertheless, whatever the merits or weaknesses of this documentary, it cannot justify the conclusion that the death of Mohamed Al Dura was staged by the Palestinians, since the documentary focuses on the origin of the fatal shots and in no way questions the reality of the drama. Its author, too, explained in the Belgian magazine Regard (a Belgian Jewish magazine) in its issue no. 563 – the plaintiffs’ exhibit No. 3 – that “after having collected testimony from the people involved in this tragedy, I had to conclude that Al Dura had probably been killed by Palestinian shots. I say ‘probably’ as I have no proof to say this for sure,” adding, “I have never doubted the authenticity of the France 2 images.”
This statement echoes that of the Israeli General Giora Eiland in the magazine Strategic Assessment – vol. 4, no. 3, of November 2001 – plaintiff’s exhibit 12: “A day or two after the incident, I guessed, based on the information that we had at the time, that Al Dura had indeed been shot by Israeli fire. After a thorough investigation, which, in my opinion, took far too long, the doubts as to the correctness of that initial opinion kept accumulating, but it was impossible to prove anything with any degree of certainty. All that we can say now, is that it is more likely than before that Al Dura was killed by Palestinian shots.”
As a whole, this evidence indicates that the origin of the shots had been assumed to be certain – and Israeli – at the time of the events of September 30, 2000, and in the days that followed, and this, not only by Charles Enderlin and many witnesses and media professionals – most of them Palestinian – who were present at the scene, but also by the Israeli army itself. To this day, the Israeli army is unsure, since although the theory of a stray Palestinian bullet seems more probable to the Israeli army and to certain journalists who accept the army’s conclusions, it nonetheless leaves room for doubt.
In this case, while Charles Enderlin might be held responsible for having immediately given an unequivocal version of the incident – although this was at the time also considered the most probable scenario by the Israeli army itself – or of not having thereafter sufficiently qualified the point of view he expressed initially – neither the evidence presented by the defense, nor its oral arguments, support the allegation that Enderlin intentionally distorted reality in his commentary to the inflammatory images.
Moreover, Philippe Karsenty’s accusations against Charles Enderlin and France 2, in fact, have an entirely different focus. They are based on a third argument that derives from the previous two, regardless of any contradictions between them.
It has been pointed out previously that the evidence invoked by the defendant on this point originates from a single source, although it is presented in various avatars. This theory rests essentially on statements by Nahum Shahaf, who was interviewed by MENA in November 2002, who participated in producing the documentary Al Dura: The Investigation, and whose comments largely inspired the book by Gerard Huber – the correspondent for this same press agency – as well as the article in the magazine Confidentiel.
However, it is clear from the evidence that the circumstances of this “investigation,” the bias of its authors, its intrinsic content, as well as the lack of consideration granted to it by the authorities, required the greatest prudence, not to mention elementary standards of critical review by media professionals.
Concerning Nahum Shahaf’s investigation, it must be pointed out from the outset that this was not an official investigation by the IDF chief of staff, but a personal initiative of the commander of the Southern zone, to whom Nahum Shahaf, physicist, and Yosef Doriel, engineer, had spontaneously volunteered their services. According to the daily Haaretz, Shaul Mofaz, chief of staff, had “promised” the Knesset’s Foreign Affaires and Defense Committee “to investigate how the decision to establish that commission of inquiry had been taken, and why it had chosen the particular methods that it used.” Among other things, less than two weeks after the start of this informal mission, Yosef Doriel was forced to resign after having publicly opined that the child’s death was the result a staged scene in which the father had willingly participated. Gerard Huber admitted that Nahum Shahaf, who from that date on continued the investigation on his own, was not an expert in ballistics (p. 104 of Second Opinion.)
This theory assumes that young Palestinians wouldn’t hesitate to exploit the presence of cameras by acting out fictitious battles or pretending to be wounded, and therefore infers that Mohamed Al Dura’s death was the result of such a staged scene.
The theory also relies on France 2’s reluctance to make public the rushes taken that day by Talal Abu Ramah and which would attest to the Palestinians’ propensity for “war games.” The three journalists invited by the station to view the rushes confirmed this. Nevertheless, even assuming this was accurate, one cannot deduce that the images of the gun shots toward the Al Dura father and son were necessarily also staged, something that, in any case, Denis Jeambar and Daniel Leconte vehemently deny.
Undoubtedly Charles Enderlin’s reckless assertion that the images showing young Mohamed’s death-throes had been cut from the film – thus implying that the images filmed but not broadcast would bring a definite end to the controversy – while in fact, the rushes that were viewed, it seems, did not show any images of the child in agony, could only stoke public interest and the suspicion of his detractors. Once proven false, his comment provided fodder to their arguments – but it cannot, alone, justify confusing the issues and extrapolating from it.
Even a cursory review of the points Shahaf stressed to support his theory that little Mohamed’s death was staged shows the theory is built on preemptory statements, is not free of inconsistencies, and in the final analysis, is pure conjecture.
It is first alleged that one of the scenes narrated by Charles Enderlin in the broadcast of September 30, 2000, which shows a Palestinian being wounded in the thigh and immediately being evacuated by ambulance, was staged – “pure fiction” as states the text at issue in this case and posted on the Media-Ratings web site. This is based on three things: no trace of blood is visible in the film, the ambulance appears with suspicious speed, and the stretcher bearers don’t hesitate to lie the man down on his injured leg – implying that the injury itself was fictitious.
However, none of these points are dispositive: the images show that the wounded man is transported by his comrades, his leg held up high, so that the lack of blood on the sidewalk in not surprising; secondly, Shahaf admits later in his film that there were numerous ambulances at the scene, which may explain the rapidity with which the ambulance appeared; finally, stretcher bearers operating under fire, in war time, may conceivably fail to follow the best emergency procedures. One failure to follow correct procedure in such conditions does not logically force the conclusion that the scene was staged. The theory undeniably shows a systemic suspicious bias that the narrated images do not support.
Furthermore, it is alleged that there was no trace of blood visible in the scene of little Mohamed’s death, which is incorrect. MENA itself noted during its interview with Nahum Shahaf that one can see blood stains in the images broadcast by France 2 – exhibit 6.
The MENA film, besides, uses a statement by the father who, when interviewed over the phone by Nahum Shahaf, exclaimed, “My son is alive! My son is alive!” to support the theory that Mohamed’s death was fabricated. MENA thus obviously distorts a statement that is an act of faith on the part of a believer, and that in no way suggests that his son had not been killed at Netzarim, something that even all the other statements in the film do not claim.
It is also disputed that Jamal, the child’s father, was in fact wounded. MENA notes that no one saw his wounds, whereas the fact that the report broadcast by France 2 on October 1 already showed images of the hospitalized father, whom the King of Jordan (whom one is hard pressed to suspect would lend a hand to such deceit), shows this allegation to be incorrect. Furthermore, the testimony of Denis Jeambar and Daniel Leconte was unambiguous on this point (“the father was filmed again practically naked and one can see wounds all over his body that correspond exactly to the injuries, and to the bandages that he has the next day when he is filmed in a Gaza hospital. This much is clear and demands the greatest prudence.” Exhibit no. 4.)
Also, “serious doubts” are cast on the child’s paternity and the identity of the child that was buried the day after the tragedy, but the promised investigation into this point was never carried out, so that the statement raising suspicions of this nature seems unquestionably gratuitous.
The theory that this was a set up relies on unsubstantiated statements, such as those by Nahum Shahaf claiming that he “holds indisputable proof” – never revealed – that Jamal Al Dura, the father of little Mohamed, “was not wounded at Netzarim” or that he “has a film on which one sees very clearly that the impact of the bullet that allegedly hit the young man [that is, the child] is in fact a piece of red fabric, meant to look like blood, and that falls out of his shirt during the scene.” None of these points have been supported nor further developed.
The book by Gerard Huber, who also testified at the hearing in support of the good faith argument, shows the same weakness.
This witness is the MENA correspondent in Paris and participated, as did Nahum Shahaf, in the production of the movie Al Dura: The Inquiry. In his book, he recalls having felt “concerned before the avalanche of rushes” (p. 187) without mentioning the nature or the origin of these clips. Since it is admitted that only the France 2 cameraman, who was then protected by a vehicle, was able to film the scenes at issue and the only other video is that from the Reuters agency, whose cameraman found himself, just for a moment, next to Jamal Al Dura and his son, near the concrete shaft, the description of an “avalanche of rushes” is at the very least deceptive.
The images filmed by Reuters, included in the MENA film, show – just like those of France 2 – that the shots toward the group were real, and even caused the cameraman to flee. The text at issue in this case, however, without any other evidence than that of Shahaf, propounds the theory that, under crossfire between belligerent parties shooting live bullets that, it cannot be denied, were hitting the wall behind which hid many Palestinians who used a passing vehicle to seek cover, a father had the reflex to crouch behind a cement shaft, pretended to be afraid, and his son, aged 12, used a piece of red fabric to fake his own death.
Moreover, besides the intrinsic points that could easily cast doubt on the reliability of this theory, it behooved the director of a “media watchdog” agency to at the very least take into consideration the trust that was placed in him.
The numerous criticisms this theory has drawn, and the fact it has never been suggested or even mentioned by any official Israeli authority, merited even more caution, especially given that the criticisms came from parties that had not refrained from criticizing Charles Enderlin in the past on other issues.
Elisabeth Schemla stated, during an interview with Charles Enderlin posted on line on October 1, 2002 on the web site proche-orient.info that “the accusation against you in this case [the allegation that he had manipulated the images] is groundless.”
In an article that appeared in the magazine Regards (no. 563 dated February 19, 2004) which calls itself a “Jewish Belgian Magazine, Nicolas Zomersztan referred to “the conspiracy theory propounded by MENA and Nahum Shahaf” and its “fanciful conclusions.”
Esther Shapira noted (in the same magazine, Regards, of February 2004) that she had “met [Shahaf] at the start of [her] investigation, but decided not to insert his testimony in [her] documentary,” adding that “what he was suggesting was not convincing,” while Denis Jeambar and Daniel Leconte called it “an attempt at manipulation” on the part of MENA.
Finally, when Yosef Doriel, who with Nahum Shahaf had started the preliminary reconstruction of the shots at issue as part of the informal investigation that Gen. Yom Tov Samia had entrusted to them, filed a defamation suit in the Magistrates’ Court in Tel Aviv, following an article that appeared in Haaretz on November 7, 2000, the court found that “the investigation was superficial and lacking in professionalism;” that the “investigation method is not professional, nor scientific, and is in no way objective,” noting that this was “an investigation by amateurs” and that “the plaintiff, [Yosef Doriel] had first made his conclusion before looking for evidence to support it.” This opinion recalls a point mentioned by Gerard Huber in his book (p. 100), about a member of the Knesset who, when questioning the Israeli army’s chief of staff on November 8, 2000, commented, “One gets the impression that, instead of honestly confronting the incident, the IDF has chosen to cover up the incident with an investigation whose conclusions have been predetermined and whose purpose is to deny its responsibility for Dura’s death.”
Gerard Huber himself did not conceal his apprehensions about Shahaf, describing (p. 129) “the true stakes” of his meeting with the latter in these terms: “I will have to decide if, after this meeting, I will grant some legitimacy to his statement, or deconstruct it as a negationist delusion.” Further on (p. 191) he admits his doubts, “in the face of [Shahaf’s] obsession to delegitimize the child’s image as a true or false martyr,” admitting immediately afterward that he, the author of Second Opinion, “will never have an answer.”
Thus lulled into the author’s confidence by his having shared his doubts, the reader may not realize that the author will, in fact, adopt Shahaf’s theory as his own (“Finally, the Palestinian’s staging of the child’s faked death has been eclipsed by the on-screen condemnation of the Israelis.” p. 222), having, however, basically omitted any support for this conviction, which flies in the face of all evidence, except for the mention by a third party of the red rag that was supposedly used to fake little Mohamed’s blood (p. 208) and a general comment about “special effects.” (p. 211)
Far from supporting the truth of the imputations of which the defendant must defend himself, the evidence on which he relies in order to justify his good faith in accusing Charles Enderlin and France 2 of having manipulated the public by broadcasting the images of a set-up or “staged” scene of young Mohamed Al Dura’s death lacks all coherence or reliability.
The proposed theory derives from only one source – an Israeli press agency – that first raised this accusation belatedly, (almost two years after the report’s broadcast); it is based largely on extrapolations and confusion and nourished by peremptory affirmations to which no official Israeli authority – neither the army (who, after all was the most interested party in the case), nor the courts – have ever granted the slightest credit.
The theory that Mohamed Al Dura’s death was staged is strongly disputed even by those who had, for various reasons, criticized Charles Enderlin. Heedless of evidence to the contrary, it feeds off the legitimate debate over the power of these images and the appropriateness of an on-the-spot commentary to promote a polemic against the authenticity of the images, without any exterior support or reliable justification.
It was undeniably legitimate for Philippe Karsenty to question an event that had such a great media impact throughout the world and to criticize Charles Enderlin’s “under fire” commentary of the images broadcast by France 2 on September 30, 2000. By adopting as his own the theory that Mohamed Al Dura’s death in his father’s arms was staged for propaganda purposes, without keeping any professional distance, nor critically considering his own sources, Karsenty failed to meet the requirement of reliability expected from a professional in the field of information.
By claiming four years after the fact that he held proof of the accusations he had made, while none of it was new, most of it was unreliable, and all of it derived from the same isolated source, to which no official Israeli authority had ever granted the slightest consideration, and by claiming, based on all this, that there had been a “fraud,” a “masquerade,” a “hoax,” the defendant abandoned the most elementary sense of caution.
Philippe Karsenty thus cannot, on these grounds, benefit of the good faith excuse.
Accordingly, the charges against the defendant are upheld.
The Civil Action
Charles Enderlin and the national company France 2 are hereby each awarded their requested 1 euro in damages and interest.
Philippe Karsenty is ordered to pay in equity the amount of 3,000 euros to the plaintiffs, as one, for expenses related to this trial not included in the court costs fixed by law.
THEREFORE
The court ruling publicly on the criminal matter, as the court of first instance, in a judgment rendered in the presence of the parties involved, against Philippe Karsenty, defendant, in favor of the national television company France 2 and Charles Enderlin, plaintiffs, under article 424 of the Code of Criminal Procedure
Rejects defendant’s arguments
Finds Philippe Karsenty guilty of public defamation of another, in this case, Charles Enderlin and the national television company France 2
Sentences him to pay a fine of one thousand euros (1,000 €).
The president of this court gives the guilty party notice that if he pays the full amount of this fine within one month from the date of this decision, the amount will be reduced by 20%, to a maximum reduction of 1500 euros. The president advises the guilty party that payment of the fine does not preclude the exercise of further legal recourse.
In case of an appeal against the criminal conviction, it is up to the guilty party to demand restitution of the amount paid.
The court finds in favor of the national television company France 2 and Charles Enderlin, plaintiffs,
And granting their request,
Orders Philippe Karsenty to pay to each of them individually one euro in damages and interest and, further,
Orders Philippe Karsenty to pay the sum of three thousand euros (3,000 €) to Charles Enderlin and the national television company France 2, together, under article 475-1 of the Code of Criminal Procedure.
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