Environmental activist found guilty of libel after criticizing container-collection company; lawyer calls ruling ‘grave blow to freedom of speech.’
By Zafrir Rinat | Oct.11, 2012

A recent court ruling is liable to have environmental activists cautious in the future about the criticism they sling at government authorities and corporations.

The Jerusalem Magistrate’s Court has found activist Dani Morgenstern guilty of two charges of libel against a company dealing in collecting and recycling beverage containers, and has ordered him to pay NIS 90,000 in damages. Morgenstern plans to file an appeal.

Morgenstern – who works as an environmental adviser and has been active in green initiatives for many years – has been sharply critical of the company responsible for implementing a law governing beverage container deposits. He has claimed the company did not create an appropriate infrastructure for collecting the used containers and thus misused consumers’ money.

Three years ago, in the wake of various allegations by Morgenstern, the container collection company decided to sue him for libel. Morgenstern apologized and promised not to repeat the allegations. But after he made claims against the company once again, a new lawsuit was filed against him in the Jerusalem Magistrate’s Court.

The court reviewed five of the defendant’s published statements and determined that two involved libel. In one of the statements, which aired on a radio show, Morgenstern said: “I think that they are committing an unconscionable act – to put it mildly. They are simply robbing the underprivileged consumer.”

Judge Miriam Lifschitz-Prives ruled that Morgenstern’s comments were libelous and she set out to examine whether there was any truth to his claims – if so, he might be protected under the law even if the company’s reputation had been harmed. She concluded that Morgenstern did not provide evidence that the company had indeed acted unconscionably (a statement that implies corrupt practices ). Furthermore, she noted that his claim that the company is not properly managed is not proof that it acted illegally or robbed consumers.

In another instance, Morgenstern accused the company during a television broadcast of paying the polling and consumer research firm Emun Hatzibur to present conclusions finding that the costs of the law outweigh its benefits. Judge Lifschitz-Prives found the claim that the company paid a private research firm to produce “tailor-made” conclusions to be libelous. She stated that no evidence was produced to show that the company did in fact pay for the research results. She ordered Morgenstern to pay a total of NIS 90,000 in compensation for both cases of libel, and to publish a correction or retraction in one daily newspaper.

Nehama Ronen, the CEO of the container collection company, says the case has a message for all environmental activists.

“The verdict is important,” claims Ronen, “because it says that criticism, even in the service of a worthy goal, has to abide by certain limitations. The ruling states that while you can criticize, you may not lie, even about environmental conservation issues. This means that, in the future, no matter how harsh the criticism, it will have to rely on facts and not on emotions and baseless assumptions. The work of the environmental organizations is immensely important, but there are rules of right and wrong.”

Nirit Lotan – a lawyer for the Environmental Justice Clinic at Tel Aviv University who began to represent Morgenstern after the verdict, and who plans to file an appeal with the Jerusalem District Court – has a different take on the matter.

“This lawsuit,” argues Lotan, “is a perfect example of the way in which a powerful company can forcefully silence uncomfortable criticism, especially when it faces a determined lone environmental activist who does not have that kind of wherewithal and economic power. The court’s ruling is a grave blow, not only to freedom of speech, but to environmental preservation, and it should concern every person who cares about these issues. We hope and trust the district court will correct it.”

Morgenstern has published a notice in the ultra-Orthodox newspaper Yated Ne’eman, stating that he is retracting the claims he made against the company, in accordance with the court’s ruling. At the end of the notice, he states his intention to file an appeal.

Meanwhile, Lotan has asked the company to allow her client to pay the damages in installments.

But the container collection company says it does not believe that Morgenstern’s notice in an ultra-Orthodox newspaper fulfills the conditions of the ruling, and its lawyers have consequently brought the matter to the court. They request that the verdict be amended to state that the notice has to be published in a newspaper that addresses the general population, and not in one intended for a limited sector of the public which has not even been exposed to the libelous claims. In addition, the company argues that the notice should explicitly state that Morgenstern’s allegations were false.

Arguing that Morgenstern’s published retraction has made a mockery of the court’s ruling, the company’s layers have informed Lotan that they will not let Morgenstern spread out his payments. The company rejects Morgenstern’s claim that he is unable to pay, and says it has data showing the contrary.

Moreover, the company was not convinced by Lotan’s claim that it is unreasonable and unnecessary that the company, given its many assets, should have to be paid this particular money urgently and in one installment.