The opinion of the court was delivered by: SOFAER
The complaint in this case, brought by General Ariel Sharon, former Minister of Defense of the State of Israel, charges Time, Inc., with libel for a statement published in Time, its mass-circulation weekly. Sharon claims the statement accuses him of knowingly permitting or encouraging the murder of Palestinian refugees at the Sabra and Shatilla camps in West Beirut, Lebanon. Time has moved to dismiss the complaint, arguing that the allegedly objectionable statement is not libelous, that Sharon is libel proof on the issue of his involvement in the Sabra and Shatilla massacre, and that the alleged libel is one that requires Sharon to plead special damages, which he has failed to do.
The statement of which plaintiff complains was made in the course of an article published in the issue of Time dated February 21, 1983, entitled "The Verdict is Guilty." The article describes the findings and recommendations of the Kahan Commission, appointed by the State of Israel to investigate the murders of Palestinians at Sabra and Shatilla.
It contains pictures of the victims and chief protagonists, some background materials, and an analysis of world reaction. It describes the Kahan Report as "a stinging indictment of Defense Minister Ariel Sharon and several military officials." Article at 26, reproduced as Appendix 2, Complaint.It recites that the Commission "asserted flatly" that the atrocities at the camps were committed by Phalangist forces, not Israelis, but that the Commission also found that Sharon and others bore "indirect" responsibility" because the decision to permit the Phalangists to enter the camps "was taken without consideration of the danger . . . that the Phalangists would commit massacres and pogroms against the inhabitants." Article at 26, 28 (quoting Report at l2,13).
The article mentions Sharon several times. First, in describing the events immediately before the massacre, the article states that on September 15, the day after the assassination of Bashir Gemayel, the Phalangists' military leader and Prime Minister-elect of Lebanon, "Sharon arrived in Beirut, conferred with his commanders and paid a condolence call on the Gemayel family." Id. at 28. Then, after describing the Commissions's criticisms of Prime Minister Begin and Foreign Minister Shamir, the article recounts what it terms the Commission's "strongest condemnation":
For Sharon, the commission reserved its strongest condemnation, declaring: "It was the duty of the Defense Minister to take into account all the reasonable considerations for and against having the Phalangists enter the camps, and not to disregard entirely the serious consideration mitigating against such an action, namely that the phalangists were liable to commit atrocities and that it was necessary to forestall this possibility as a humanitarian obligation and also to prevent the political damage it would entail. From the Defense Minister himself, we know that this consideration did not concern him in the least." It should have, concluded the report: "In our view, the Defense Minister made a grave mistake when he ignored the danger of acts of revenge and bloodshed by the Phalangists against the population in the refugee camps. These blunders constitute nonfulfillment of a duty with which [he] was charged." In consequence, Sharon should "draw the appropriate personal conclusions," i.e., resign or be fired by the Prime Minister.
Id. at 29 (quoting Report at 13, 22).
After reviewing the Commission's findings on the responsibility of other, senior military officers, the article continues with the paragraph that contains the only material cited by plaintiff as libelous:
One section of the report, known as Appendix B, was not published at all, mainly for security reasons. That section contains the names of several intelligence agents referred to elsewhere in the report. TIME has learned that it also contains further details about Sharon's visit to the Gemayel family on the day after Bashir Gemayel's assassination. Sharon reportedly told the Gemayels that the Israeli army would be moving into West Beirut and that he expected the Christian forces to go into the Palestinian refugee camps. Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but the details of the conversation are not known.
Time seeks dismissal, first, on the ground that the allegedly libelous statement cannot fairly and reasonably be construed to defame Sharon. The controlling standard is whether the offending words are "reasonably susceptible of a defamatory connotation" when read in the context of the article in which they appear, James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 874, 353 N.E.2d 834 (1976), and with careful attention to "the particular phraseology used in the purported[ly] libelous statement," Tracy v. Newsday, 5 N.Y.2d 134, 136, 182 N.Y.S.2d 1, 4, 155 N.E.2d 853 (1959). The question is one of law, which the court must resolve by means of a "fair," not a "broad" reading." Drug Research Corp. v. Curtis Publishing Co., 7 N.Y.2d 435, 440, 199 N.Y.S.2d 33, 36, 166 N.E.2d 319 (1960). The court may not, however, interfere with the jury's role by treating as nondefamatory a statement that a reasonable juror may fairly read in context as defamatory. Mencher v. Chesley, 297 N.Y. 94, 102, 75 N.E.2d 257, 260 (1947).
The language on which the complaint focuses reads: "Sharon also reportedly discussed with the Gemayels the need for the Phalangists to take revenge for the assassination of Bashir, but the details of the conversation are not known." Time argues that a discussion of the need for revenge, without more, could not expose Sharon to hatred, contempt, or aversion, or harm him in his profession. Yet, Time recognizes that the statement must be read in context. Sharon contends that in light of the entire article the challenged statement may reasonably be read to suggest that he encouraged the Phalangists to perpetrate bloodshed. Thus, Sharon alleges:
The foregoing matter is false and defamatory in that it states that plaintiff discussed with the Gemayels the need for the Phalangists to take revenge against the West Beirut Palestinians and that plaintiff encouraged the Phalangists to perpetrate bloodshed among them. Plaintiff did not make any such ...