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A-Dura/France-2/Karsenty: depuis l'arrêt de la Cour d'appel du 21 mai 2008

[Al-Dura case] Court Decision: I Would not Like to be Charles Enderlin, R. Landes
25/05/2008

May 25, 2008

Sur le site de l’auteur, The Augean Stables.

Sur les

Here is a rough and rapid translation of the court’s decision (available in PDF in the original French here). It does not contain the first part (in italics in the original) which lay out the issues in the case, but translates the section concerned with the reasoning of the judges. I put it up for the sake of those impatient to read it, and in the hopes that people more experienced in legal French can help me with the mistakes I’ve made.

Generally speaking, I think this is a devastating decision. The judges go out of their way to criticize everyone involved on the side of France2 (including some backhanded swipes at the lower court), but especially to point out the pervasive “incohérences” not only in Enderlin’s initial broadcast, but his subsequent explanations and actions. In particular, after emphasizing the sharpness of both Karsenty’s language and his accusations — which indeed are defamatory and strike at Enderlin’s and France2’s honor and reputation — the judges assert that, given the evidence he had every right to make these statements, in particular given the importance of the case, the damage it did worldwide, and the fact that Enderlin, as a professional of information with a high public profile has to expect to be subjected to this kind of criticism from co-citizens and colleagues.

Enderlin’s initial response to this text indicates just how little of reality he is able to register when his defensive screens are up. The analogies between this and the case of Ocar Wilde a century ago are haunting.

I will make any appropriate corrections to the text that people send in, as well as add my own (and others’) comments in the coming days.

For those who have struggled for years with this case, given the cold shoulder by the MSM, and discouraged by Israel advocates both in Israel and outside, who experienced the stunning let-down of the first decision, this comes as something of a spectacular vindication of our intuition that the emperor was indeed naked. I must confess personally that to see a legal decision that is so “right on”, that so ringingly defends the principles of justice, critical analysis, and the freedom to rebuke public figures, is balm to a troubled soul.

Maybe Europe is not lost. At the moment, French justice just lit a beacon to show the way. Will the public notice?

Considering that from all these claims [the content of PK’s article of 2004] that Philippe KARSENTY, director of the “agence de notation” MEDIA-RATINGS, which he himself created to evaluate the trustworthiness of information disseminated in the news media, questions the work of FRANCE 2 and its Jerusalem correspondent, with the help of the methodological criteria for analyzing the media that he established;

That in his article dated 22 November, 2004, Philippe Karsenty characterizes the reporting of Charles Enderlin as a disgraceful masquerade for public television and a deception that lay at the source of much violence the world over, and invoking the language of the polemic that he sustained for several years between FRANCE2 and the Israeli press agency MENA (“Metula News Agency”), which has accused the French station of broadcasting a fake;

That in terms of the elements which he had at his disposal, the accused affirms that the Paris correspondent in Jerusalem [Enderlin] gave a false report, which he takes apart in focusing on two different issues: on the one hand, the first fifty minutes of the report which consisted in a series of staged scenes that are pure fiction, on the other, the principal scene, of only a few minutes in length, which has major inconsistencies (incohérences) in terms of the commentary of FRANCE2;

That he questions as a result why Charles ENDERLIN who, in this matter, “fools himself and, as a result, fools us,” seeks to “conceal his imposture”;

That the accused author, in his letter of 26 November 2004, imputes to Charles ENDERLIN the act of disseminating a fake news report, by narrating the inconsistent document (i.e., footage of his cameraman, and imputes to the public television station the act of committing a media imposture in diffusing this report on the 30 of September 2000;

Considering the defamatory character of these accusations, which the tribunal (i.e. the first court) justifiably considered that the deed of knowingly fooling and disseminating and/or causing to disseminate a false report containing images that do not reflect reality, in representing a “false death”, even if the author took care to accompany his accusation with a certain number of explanations, unquestionably such an accusation strikes at the honor and reputation of information professionals, and that all the more when the defamatory deed is accentuated by the use of terms like “masquerade,” “imposture,” “deception,” to qualify the attitude of FRANCE2 and “staged scenes,” “pure fiction” to qualify the initial reporting;

Considering, that the accused gave fourteen pieces of evidence as proof of the truth of these defamatory claims, and requested the hearing of 3 witnesses capable, according to him, of proving that FRANCE2 put on the screen a dubious montage, widely contested at the time of its first broadcast, which permitted him to conclude that a manipulation of the report on these conditions of filming and on the reality of the scenes filmed by his cameraman, in particular concerning the death of Mohamed AL DURA;

But considering that, as the first judges recalled, to produce a exculpating effect provided for by article 35 of the law of 29 July 1881, the proof of the truth of the defamatory claims must be perfect, complete, and corresponding to the defamatory accusations in their materiality and their weight;

That in establishing that his offers of proof would establish “a dubious montage, widely criticized from the initial date of broadcast,” the accused could not pretend to demonstrate the fact that he knowingly diffused a false report, insofar as the first imputation constitutes at best a diminutive of the imputation pursued in court [??];

Considering that in the appeal, PK invokes essentially his good faith to justify the publication of his incriminating claims;

Considering that, if it is true that the criteria of good faith must, as noted by the first judges, be evaluated differently depending on the type of writing, the quality of the author, and notably with a greater rigor when the accused is an information professional or, as in this case, a critic of the media, it is incontestably legitimate for an “agence de notation” of the media, to inquire, whether the cause of the impact of these criticized images in the whole world, on the conditions in which the report in question was filmed and broadcast, and to bring the results of his inquiry to the awareness of the public as well as to submit them to the criticism of professionals;

Whereas Philippe Karsenty takes up subjects of general interest, such as the work methods of the media, and specifically, the public station, the power of images and the relevance of live commentaries, concerning the right of the public to serious information, which gives all its legitimacy to the publication of his research, Charles ENDERLIN can all the less try and avoid the criticism that targets him as a professional of information, correspondent in Israel and the Palestinian territories for the televised news of FRANCE2, broadcasting at hours of peak audience, and as such he exposes himself inevitably and consciously to the most attentive surveillance of his deeds and gestures by both his fellow citizens and his colleagues ;

Considering that, to justify the seriousness of his inquest, Philippe KARSENTY presented, in addition to the testimony of Luc ROZENZWEIG, Gerard HUBER, Frances BALLE and Richard LANDES appearing in the notes of the hearing of the tribunal, the pieces presented in the original hearing, as well as new pieces numbered 43-73, on which the essential, proceeding from the reporting of FRANCE2, concerns not the facts subsequent to the publication of the incriminated comments ; that it is appropriate, in this framework, to appreciate the validity of the inquest of the accused in terms, not of the demonstrative virtue of the truth of his defamatory imputations, but their value and the variety of the sources used, as well as their pertinence and their content ;

Considering that as the tribunal noted, the inquiry of Philippe KARSENTY brings up two major kinds of criticisms about the news report in question, on the one hand that Charles ENDERLIN presented incorrectly that the deadly fire was deliberate and from the Israeli position, on the other that the images of the death of the young Mohamed AL-DURA were fictional and did not correspond to the reality commented on by the journalist ;

That the author of these statements under accusation emphasizes the inexplicable incoherence of the visible images which, according to him, even involves the principal scene, on the absence of any probative value to the wounds of Jamal AL DURA presented by FRANCE2, and finally on the contradictory responses of Charles ENDERLIN to the questioning about his editing cuts of his montage, as well as those of his cameraman on the subject of the sequence of the scenes he filmed and the conditions of filming ;

Considering that it is established that Charles ENDERLIN was not witness to the events that he commented in “off [screen] narration, according to a procedure that is in no way contrary to the journalistic ethics, as long as, as in the case in question, FRANCE2 had indicated to the viewers, on October 1, 2000, that the death of the boy “had been filmed by Talal ABU-RAHMAH, [his] correspondent in Gaza, and October 2, that the cameraman “filmed the unacceptable”, which did not necessarily permit one to deduce that the commentator was not on the scene; that this fact led Philippe KARSENTY, without being able to figure out that the commented event was fake, to wonder about the concordance between the images chosen by the Palestinian cameraman (“I decide what’s important,” we hear him say in one of his interviews), and the commentary on these images by Charles ENDERLIN ;

That, if it is true that the authors of the two video documents (pieces 1 and 2), one produced by Esther SHAPIRA for the television station AFDD in March of 2002, the other, Al-DURA: the Inquiry, produced the following November by MENA using the declarations of Nahum SHAHAF, the designated director of a commission of inquiry initiated by the commander of the Southern zone, don’t draw the same conclusions from their viewing of the report, since the first favors the hypothesis of a stray Palestinian bullet while the second considers the whole scene staged, it does not matter that these theses are mutually exclusive, since the two documents led the accused, by successive stages, to question the report of FRANCE2 as to the reality of the facts reported by the professionals of information ;

That the thesis of MENA, the subject of a book by Gerard HUBER published in January of 2003 entitled Counter-Expertise of a Staged Scene (piece #3), which infers, from the fact that one sees young Palestinians taking advantage of the presence of cameramen to act out battle scenes and injuries, the fictive character of the death of the young Mohamed AL-DURA, taken up by Philippe KARSENTY, supports itself on the persistent reticence of FRANCE2 to allow the viewing of the rushes of their cameraman, on the imprudent affirmation by Charles ENDERLIN, that he cut out of his montage the images of the agony of the child, and on the declarations made by several journalists who had viewed the rushes ;

That it results from the testimony of Luc ROSENZWEIG, former editor in chief of le MONDE, who, after have met, in May of 2004, some colleagues who communicated to him their doubts about the report of Charles ENDERLIN having contacted subsequently Denis JEAMBAR and Daniel LECONTE, he viewed with these two, the rushes of FRANCE2 on 22 October, 2004, and was surprised to find that, out of the 27 minutes of rushes of Talal ABU RAHMA, more than 23 minutes of the filmed scenes had no relationship to the images broadcast by the station, that is of the scenes of the death of the “petit Mohamed”, and consisted in the playing of false scenes of war by young Palestinians; that the witness concluded his testimony to the first court that he was convinced that there was a greater probability that the scene was staged than the probability that the version presented by FRANCE2 was correct, while acknowledging that, as a journalist, “the criteria for going further were not available.”;

That this testimony was supported by the opinions, not contrary, of Daniel LECOMTE and of Denis JEAMBAR, expressed in the Figaro of 25 January 2005 (piece #16) and an interview broadcast on February 1, 2004 by the station RCJ (piece #4) ;

That the two journalists there declare without ambiguity that they told Arlette CHABOT about their “serious doubts,” but their “readiness to dismiss the accusations of ROSENSWEIG about the staging of the death of the child if the viewing of all the rushes of Talal ABOU RAMA confirms that Charles ANDERLIN declared at two occasions at lest, one of which to Telerama : “I cult the agony of the child. It was unbearable… it didn’t add anything,” and, having seen the rushes, noted that “this famous agony which Enderlin affirms having cut from his report does not exist.” ;

That they also observe that “in the minutes that preceded the gunfire, the Palestinians seems to have organized a staged scene, … playing at war with the Israelis and simulating in most of the cases, imaginary injuries,” and the the viewing of the full rushes demonstrates that at the moment when Charles ENDERLIN declares the boy dead… nothing permitted him to affirm that he was really dead and even less that he was killed by Israeli soldiers.” That according to them, the journalists from FRANCE2 assured them during the session in which they saw the rushes that, “their experts even showed that the boy was his by shrapnel (?) or by bullets that ricocheted off the pavement, bullets that, in any case, did not aim at the father or the son” ;

That it is true, that while they noted that their colleague should re cognize that he “extrapolated from the rushes and the version of events supplied by his cameraman,” and that the commentary on the Israeli barbarism “had nothing to do” with the images that went around the world, Denis JEAMBAR and Daniel LECOMTE effuse to fully adopt the thesis of the staging of the death of the child, that they support this decision of the film that Talal ABU FAMAH presented by FRANCE2 on the 18 of November 2004 to show that his injuries of the father corresponded exactly to the bandaging that he had the next day in the hospital of Gaza, without considering the possibility of a contradiction between the photos that were presented and their own observation in the rushes, that “the father wears a T-shirt on which one sees no trace of blood ;

Considering that Richard LANDES, journalist, professor at the university of Boston, heard as a witness by the first judges declared that, according to him, after having studied the rushes of Reuters and the report of Charles ENDERLIN, with whom he had discussions, that the probability of the death of the child presented by Enderlin was a staged scene were “over 95%” ;

Considering that, if none of the arguments of the accused – neither the conclusions of the inquiry conducted at the personal initiative of General SAMYA (conter-offer of proof #12), nor “the imprudent affirmation” of Charles ENDERLIN already discussed – seemed sufficiently decisive to the first judges to make a judgment about the disputed report, it seems on examination, in the case of the appeal, of the `18 minutes of rushes that Talal Abu RAMAH, communicated by FRANCE2 does not permit one from dismissing the opinion of the professionals heard during the course of the procedure or having given their contributions to the debate, theses attestations produced by the care of the cameraman (counter-proof, #5-10) cannot, on the contrary given their presentation as well as their content, be considered perfectly credible ;

That whereas no principle permits one to refuse without examination or explication any credibility to a document that does not have the authority of an official label or wihich acquires only small credit by the authorities, it is appropriate to note that the first declarations of the Israeli authorities, notably that of General EILAND were made only at the viewing of the FRANCE2 report ; that it is well known as Denis JEAMBAR and Daniel LECOMTE explained, the Israeli army almost never responds to anyting: “it’s their choice of communication.”

Considering that in responding to Denis JEAMBAR and Daniel LECOMTE, in the Figaro of 27 January 2005, that “the image corresponded to the reality of the situion not only in Gaza, but also on the West Bank,” when the definition of a report is supposed to be the testimony of what the journalist heard or saw, Charles ENDERLIN recognized that the film that made the tour of the world and drew in its wake unprecedented violence throughout the region may not have corresponded to the commentary that he gave it, which is equally the opinion given by Daniel DAYAN, director of research at the CNRS and specialist of media, in his attestation (piece #5).

Considering that, on the matter of prudent expression, that it is appropriate to underline that the limits of admissible criticism are all the greater when the subject is of public intrerest and the accusations are laid out on a network of elements of inquiry and all the larger when the ones who are the object of the criticism are, by the function and activities exposed to the public ‘

That it is in this sense that it is appropriate to understand the claims of Francis BALLE, professor at the University of Paris II, specialist in image and information, who declared in front of the tribunal that it did not seem to him that in the exercise of his profession Philippe KARSENTY “crossed the yellow line” in using the incriminated terms to speak of a subject of public interest;

That, in effect, the accused recalls the events, relates the polemic, indicates that the MENA accused the French station of forgery, before giving his own analysis and his conclusions; that, in the context, he qualifies the episode as pure fiction, which is also sustained by several important signatures of the press and information who viewed the rushes in October 2004; that he then exposes, on the subject of the principle scene, in which he observed inexplicable inconsistencies (incohérences) and contradictions in the explanations on the agony of the child given by Charles ENDERLIN, that the latter is mistaken, which comes down to imputing to him a simple error, et “at the same time” leads the public into error, which appears to be a euphemistic formulation ; that in so concluding by a question on the reasons to “seek to cover this imposture,” Philippe KARSENTY takes up the core of the issue with a vivacity of expression that the importance of the question under debate must, nonetheless authorize;

Considering that the personal animosity towards the civil parties is not demonstration by the production of two attestations, one from Rene BACKMANN, the other rom Francois RAIGA-CLEMENCEAU, after the inquiry that Philippe KARSENTY carried out, when the content of the article and the communiqué of the director of the agency of media oversight reveal no personal sentiment of hostility to Charles ENDERLIN or FRANCE2;

Considering that in the state of the elements of the current inquiry, which constitute a factual base sufficient to admit that the litigious claims, often close to a value judgment, could be expressed by the author of the incriminated article and the communiqué to treat subjects of interest as general as the danger of a power – in this case that of the press – in the absence of a counter-weight, and the right of the public to a serious information, there is good reason to decide that Philippe KARSENTY exercised in good faith his right of free criticism; that, in so doing, he did not transgress the limits of the freedom of expression recognized in article 10 of the European Convention of the Rights of Man, which cover not only information or ideasx which are considered inoffensive or indifferent, but also for those that collide, shock, or disquiet;

That the decision of the first court is therefore invalidated, Philippe KARSENTY released from pursuit, and the civil parties denied their demands.

Richard Landes

© The Augean Stables 

 


Mis en ligne le 25 mai 2008, par M.
Macina, sur le site upjf.org