[Neil Netanel, guest-blogging, May 16, 2008 at 3:25pm] Trackbacks
Blood Libel or Just Libel?

France’s public broadcaster, France 2, has sued blogger-media critic, Philippe Karsenty, for libel. The lawsuit centers 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 Israeli killing of children. The France 2 broadcast appears in the background of the video of Daniel Pearl’s beheading taken by his killers.

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 has 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 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.

Nonetheless, a French trial court ruled in October 2006 that Karsenty had committed libel. It is clear from the decision (I assume the accuracy of an unofficial translation) that French libel law puts a far more onerous burden on the defendant than does US law and contains little of the free speech protections that, as I mentioned in yesterday’s post, US courts have imposed on defamation law to prevent the chilling of speech. The French court required Karsenty to prove the truth of his allegations – not just that the event was staged, but that France 2 and Enderlin are covering up the hoax – and that Karsenty’s proof “be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.” The court also declined to view all the France 2 outtakes. In the United States, France 2 and Enderlin could not prevail unless they established that Karsenty published his claims knowing them to be false or with reckless disregard of the truth.

Karsenty has appealed and the French appellate court is due to issue its ruling on May 21. Karsenty is optomistic, in part because the appellate court did view the France 2 outtakes that, Karsenty believes establish that the al-Dura incident was staged.

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 transmit reports of Israeli atrocities. But the problem 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.

One hopes that major news organizations are able and willing to weed out the vast majority of questionable reporting, just as CNN refused to broadcast the al-Dura footage. But there are, of course, no guarantees. And, as I emphasized in an ealier post, fact-checking, like quality original reporting, costs a lot of money.

For their part, bloggers do an admirable job of exposing media failures. At the same time, 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.