עוד על "ג'נין ג'נין" – הערה בעקבות פסיקת בית המשפט המחוזי בסיבוב השני בעניין מגנאג'י נ' בכרי

Over the last decade the Film “Jenin Jenin”, directed by Mohammed Bakri, was repeatedly the subject matter of legal deliberations and heated public debates in Israel.The Film, which was financed by the Palestinian Authority, is based on the battle in the refugee camp Jenin during Operation Defensive Shield. This Operation was triggered by the terrorist attack at the Park Hotel in Netanya on the eve of Passover, 27 March2002. A suicide bomber broke into the hotel's dining hall and blew himself up. 30 people were killed and 160 were injured.The filming of “Jenin Jenin” was conducted inside the Jenin Refugee Camp and was comprised of “evidence” given by its Palestinian residents. There were allegations about horrific war crimes, abuse and looting by the IDF soldiers. The Film was widely screened around the globe and won a few artistic awards. It was also screened in a few cinematheques in Israel, and following an approval by the Israeli Supreme Court, which repealed the decision of the Film Review & Plays Council to ban its screening, it was released to be screened in all other formats across the Country.Since the Attorney General refused to act according to his statutory power and prosecute Mohammed Bakri, a group of IDF soldiers who fought in Jenin during Operation Defensive Shield filed a defamation lawsuit against Bakri, claiming damages as well as an injunction. The Court concluded that the allegations made in the Film are deceptive, provocative, fictitious and imaginary, and that the film was edited in an ill faith manner. Nevertheless, the lawsuit was rejected by the Court. The Appeal to the Supreme Court also failed. Both Courts ruled that the soldiers could not show a sound cause of action, neither personally nor as a group. Not any of them could be identified in the Film.The starting point of the second round of the litigation was completely different. Here,the plaintiff, Lieutenant Colonel Megna'gi, who was not a party in the first round of the case, was clearly identifiable. His portrait appeared on the screen for at least 4 minutes.Thus, the District Court could easily decide to rule in his favor and impose tortiousliability on Bakri. Megna'gi was awarded 175,000 NIS as damages. In addition, the Court issued a permanent injunction prohibiting further distribution and screening of the film, except for screening it on YouTube.This paper argues that although the decision to impose liability – and damages – on Bakri is solidly founded, issuing the injunction is problematic for at least 3 reasons: the decision lacks proportionality; the balance between reputation and freedom of (artistic)speech is flawed, especially in light of the Supreme Court's decision on Bakri's plea against the initial decision to ban the film from screening in Israel; and the exclusion of YouTube makes the injunction ineffective and futile.An appeal to the Supreme Court was filed by Mohammed Bakri and has yet to be decided.