More about the court hearing: Burden of proof, Lethal Journalism, Planet al Durah

The quality of comment to my last post prompts me to move it here and invite people to address the legal issues, all the while keeping the larger issue of lethal journalism (Durah Journalism).

In a comment, Martin Malliet and E.G. further discuss the trial.

On the burden of proof in the Enderlin vs Karsenty trial

This question is only confusing because the plaintiff is a news agency being accused by the defendant of bringing out an untruthful story.

If we forget about the news agency, it is indeed right that the defendant must “prove his innocence” by proving that his accusation against the plaintiff was founded; it wouldn’t be right to ask the plaintiff to prove a counter-factual, namely that he is NOT what the defendant accused him to be (or to have done or said).

With the plaintiff being a news agency (in the business of bringing out truthful stories it can back up with proof) accused by the defendant of having brought out an untruthful story, the same rule starts to look strange, because it means that the defendant must now “prove his innocence” by proving a counter-factual (that the story is NOT true), whereas it should now be easy for the plaintiff to prove what isn’t a counter-factual anymore (that the story is true and that he can back it up with proof).

Frank Van Dun has two articles on natural law jurisprudence that are relevant, starting with the insight that your reputation or credit isn’t your property (it only exists in the judgment of others):

“Against Libertarian Legalism: a comment on Kinsella and Block” (2003)
“Natural Law and the Jurisprudence of Freedom” (2004)

(Bibliography with links at

PS: The wording in the verdict by the Cour de Cassation “that a court cannot help the accused prove his innocence” is of course very strange, as the whole purpose of justice is to protect the innocent. But in this type of case (libel suit) it makes sense to say that the accused “must prove his innocence”. But that’s not what I remember having read. I remember that the point was that the defendant must prove that he had sufficient ground for making his accusation at the time when he made it, and that evidence obtained after that date was in any case irrelevant. And I think Karsenty himself somewhere said that even if Enderlin today admitted his fraud, theoretically he could still sue Karsenty for libel back in 2004.

This question of what he knew when he wrote seems to be a major focus of the trial. But instead, it should be, as E.G. points out below, about whether a major news agency should be using the technicalities of the court system to shut down criticism.

Dionissis Mitropoulos notes:

But the presumption on the part of the court is that the story is true.

I think that the rationale behind the exemption of plaintiffs from bearing the onus of proof in libel suits rests on considerations unrelated to what you called “counterfactuals” ( maybe it rests on the consideration that the plaintiff should not have to waste resources and time to defend himself against the other party because it was the other party that perturbed the social order by his verbal aggression? And that such behavior should be discouraged by forcing upon hypothetical future slanderers the onus of proof?).

Just playing the devil’s advocate – literally the devil in our case, considering how Israel is treated by the MSM.

and all of these concerns are different if we’re talking about citizens defaming citizens, rather than citizens criticizing public figures whose fitness to fulfill their role depends on their reliability.

MM responds:

You seem to think that making an accusation per se is a disturbance of the social order, but that’s not the case: only making an UNfounded accusation is a disturbance. And that’s why onus of proof and counter-factuals are exact opposites. Making a founded accusation is not a disturbance, it’s very useful for maintaining the social order, and the accused will leave you in peace, because he knows that the accusation is founded and that you will be able to back it up with proof. Just as unfounded accusations are something a rational man will not do, because he knows that the accused knows that the accusation is unfounded and that the accused will sue him successfully for damages. I think ebay credentials work like this, and I suppose the Antwerp diamond trade also relies heavily on that information logic for reputation and credit. It’s not called a ‘natural social order’ for nothing by natural law philosophers, and it’s quite a sophisticated thing to understand, hence the idea that jurisprudence (law) is a science (and not just legislative or bureaucratic management know-how as it is mostly taught in law school). Go back to Frank Van Dun, it’s interesting and eye-opening (and he’s as good a teacher as Richard Landes).

our point should be that a) lethal journalism disturbs the social order, b) when the journalists act like a guild to protect their lethal colleagues, informed citizens are the only ones capable of criticizing them, so c) PK’s critique, which was itself an expression of a larger conversation, is precious to a civil polity committed to public self-criticism. but as Anne-Elisabeth Moutet pointed out to me in the mid-aughts, in France no one can publicly admit error; it’s a sign of weakness, the end of your public life.”

E.G. adds:

Regarding the Ramallah Shoah-denying chief’s treatment of the press, both local and Intl., Khaled Abu Toameh published quite a few articles. Free it isn’t. Nor is it in Hamastan.

My concern is not as much for Karsenty’s honour. I’m far more concerned about MSM having lost it, inter alia due to their incessant demonisation of Israel. The al Durah libel is a nasty means in this campaign, because it’s patently false. And inaccurate. Anyone who went through basic IDF training knows that this kind of shooting is in total contradiction with the IDF spirit and regulations. By extension, it’s un-Israeli. Scoopy may be interested in defending his honour and reputation, but the issue is the facts he distorts, for the sake of whatever agenda or other considerations on his mind.

Enderlin has a different honor-group that he reports back to. He just wants his colleagues to keep the honor-group that should concern him – the Western public that wants to get real news – off his back.

I believe Karsenty’s motives lie with the latter concerns, although he got involved directly by a colleague asking him, the day after Scoopy’s “report” was broadcast “what have you done?!” – a French Jew was being held accountable for the IDF’s “misdeeds”.

I get that often when I speak about al Durah: Jewish school kids asked, “what did your people do?”

Well, it’s another Franco-Israeli Jew, and the state organisation he works for that should be held accountable for such a smear that polluted far too many minds on the Planet.

the most successful icon of hatred in the 21st century.

FYI, Pallywood did not start in 2000, nor did it stop there and then. It’s a cultural thing that was already used (though not in its visual version) during the first Intifada – the 1936-39 “Revolt” and recorded in the Peel commission report (and testimonies).

I think Pallywood as a distinct expression of the larger issue of media-based cognitive warfare comes in the wake of the Palestinian successes in deploying the Commodore Hotel crowd (Arafat’s best battalion), in 1982.

Last but not least, proportionality. According to the UN, some 60,000 Syrians, mostly civilians, have been killed between March 15, 2011, and Nov. 30, 2012. That’s about the number of Arabs, mostly military, killed during nearly 65 years of Israeli-Arab conflict, out of which about 6000 are Arab “Palestinians”. About the same number of refugees have been recorded in 1948/9 and 2011-12, fleeing Mandatory Palestine and Syria, respectively. But “world opinion” was only moved by photos of dead Syrian children recycled as Gaza children victims of IDF “Pillar of Defence” operation.
That’s Israel Double Standard Time.

Just hanging out on rekaB Street, planet al Durah.

3 Responses to More about the court hearing: Burden of proof, Lethal Journalism, Planet al Durah

  1. E.G. says:

    I can see why the “technicality” issue is problematic. Having proved that post hoc knowledge validates the initial “call to resign” is indeed tricky.

    I suppose it’s not too difficult to prove that (a) by Nov. 22nd 2004, Karsenty’s knowledge was necessary and sufficient to publish his “Call to resign” (b) in good faith.
    It’s Karsenty’s right to rely and believe some journalists and experts rather than others, all the more since most are far more prestigious than Scoopy. (Interestingly, Jambar, Lecomte, Rosenzweig, Shapira, Rehov, Juffa, Fallows… have never been sued). Furthermore, given that Karsenty is a citizen of the “Human Rights homeland (Patrie des Droits de l’Homme), exercising his civic rights by casting doubt on a state-funded public institution is only condemnable if it is a defamatory libel. So either journalists are protected or have special rights to criticise their colleagues at will, or the right to criticise is any citizen’s. And the critique indeed casts a heavy shadow on Scoopy’s credibility and the reliability of his report: whose fault is it, the “problematic” report editor/author or the informed citizen calling the report a fake?

  2. E.G. says:


    as Anne-Elisabeth Moutet pointed out to me in the mid-aughts, in France no one can publicly admit error; it’s a sign of weakness, the end of your public life.

    Depends whom and which groups lobby on one’s behalf. Belonging to the “appropriate” side of the political map can do miracles. See for example France’s present FM: the one who coined “résponsable mais pas coupable” after the HIV-contaminated blood scandal on his premiership.

    By refusing to admit he might have erred, Scoopy naturally wants to avoid losing face. The trouble is that it’s absurd to claim one is infallible. All the more as his case rests upon the credence he attributes to his agent and on the overconfidence in his own skills he displays. But since he’s very well “networked” in both Israel and France, and not only in the journo guilds, he should worry as much as he does.

  3. Martin J. Malliet says:

    On integrity, representation and honour

    (It’s the ‘representation’ part that must be worked out much better, so that’s all just for now.)

    Personal integrity -> truthful representation -> public honour = the honourable man in an honourable society.

    Personal corruption -> truthful representation -> public shame = the low-life crook.

    Personal corruption -> untruthful representation -> public honour = the respected and feared power broker (we may think of Scoopy).

    Personal integrity -> truthful representation /untruthful representation (conflict) -> public shame = the honourable man despised by a corrupt society (Socrates)

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