AUB leaks: When ‘defamation’ becomes a duty

Al-Akhbar is currently going through a transitional phase whereby the English website is available for Archival purposes only. All new content will be published in Arabic on the main website (www.al-akhbar.com).

Al-Akhbar Management

Illustration by Arcadio Esquivel

Published Friday, November 28, 2014

Many objections have been raised by legal professionals on the court decision issued on November 19, 2014 by the Judge of Urgent Matters in Beirut, Nadim Zwein, ordering Al-Akhbar and colleague Hussein Mahdi to take down a report, published on November 14, 2014, titled “AUB Leaks: Will allegations of corruption at AUB go to US courts?” The verdict came in response to the “unjustified” protection request made by the American University of Beirut (AUB) administration, which is trying to muzzle [the media] and address any reformist demands with an “authoritarian” mentality.

Judge Zwein’s decision to take down a report titled, “AUB Leaks: Will allegations of corruption at AUB go to US courts?” prompted the AUB administration to file another “more serious” request to the same judge, which aims to secure the issuance of a second verdict that prohibits Al-Akhbar from publishing any documents – in its possession or which can be obtained – to prove the presence of corruption at the university.

According to legal professionals, Judge Zwein, in his verdict, disregarded the fact that the documents published by Al-Akhbar are authentic and accurate – as acknowledged by the university administration itself – and they include evidence that justify the prosecution of the parties involved, rather than the prohibition of publishing them and prevention of journalists to exercise their duty to defame [illegal actions] and inform the public about corruption, financial squandering, and the violation of rights and interests of students and patients.

Clear public interest

The files associated with corruption, squandering, mismanagement, and wiretapping at the American University in Beirut (AUB), and the documents containing internal communications between a number of trustees, administrators, employees, and lawyers about these files cannot be subject to the public disclosure protection [law] or dealt with as a case of protection of “privacy,” which the persons whose names were mentioned in the documents should have in their personal lives, not at work.

AUB is not just any institution. It is an educational non-profit organization with close to 8,000 enrolled students, who are paying fees that are classified among the highest in Lebanon. It also has a faculty of hundreds of teachers, hundreds of employees and administrators, in addition to a medical center – the American University of Beirut Medical Center (AUBMC) – which receives hundreds of emergency, medical, and therapeutic cases. Therefore, any file that is linked to this “prestigious” institution affects the interests of all these parties, and any behavior that violates the rights of these groups would harm the public interest, ranging from the disbursement of students’ money (the primary funders of the university), the money and rights of patients, state funds and sponsor institutions, to other issues that fall under the framework of public interest.

Several lawyers, human rights activists, and constitutional and legal experts concurred that the publication of any document involving corruption is a necessary professional duty to safeguard the public interest, and is guaranteed under the constitutional principles and the interpretations of a number of courts.

No immunity for the private sector

In an interview with Al-Akhbar, Information Minister Ramzi Jreij said that media freedom is enshrined in the Lebanese constitution and laws governing the media. According to Jreij, the synonym for freedom is citizens’ right to know [the truth]. The media in Lebanon is “a primary means to expose corruption.” He added that media freedom is “a value that is equivalent to justice, provided that it serves the interest of society. Since the public sector is not granted any immunity regarding corruption exposure, there should not be any differentiation between it and the private sector, and the latter should not be granted immunity of any sort.”

The duty of the press is to publish

On copyright issues, Nader Kasbar, a member of the Lawyers Syndicate in Beirut, said: “As long as the published or to-be published documents – regardless of content or type – are related to public funds or affect the public interest, a journalist has the right to publish them, and it is even their duty and primary mission to do so.” According to the Kasbar, the right of publication cannot be subject to any limitations as long as the journalist is able to prove their hypothesis, and as long as their report does not include any personal opinion, which may be interpreted as defamation against the other party.

Exposure of the corrupt

Antoine Massara, a member of the Constitutional Council and former professor at the Lebanese University, defines corruption as the abuse of power to achieve personal interests. “Therefore, the instigators of corruption, whether in the public or private sector, must be exposed.”

Suppression of freedom of the press

Issam Naaman, former lawyer and minister and a constitutional expert, believes that the right of publication is enshrined under the general constitutional principles, and the press and media have the right to publish news and documents they obtain regardless of the topic, unless the law clearly provides for the prohibition [of publication]. He points out that prohibition of publication is limited to cases related to “national security and the armed forces,” adding that “it is not possible to prevent any party from publishing facts related to cases of corruption, whether in the public or private sector.”

According to Naaman, corrupt [parties] may resort to the Court of Urgent Matters to cover up the corruption case they were found to be involved in, but the judge cannot issue a ruling that suppresses freedom of the press unless the prosecuting party provides documents stating that damage will result to the party. Otherwise, any decision issued by the judge would be either based on “personal” assumptions, or the judge would be “under some kind of pressure” to issue such a ruling.

The judge erred

Maharat Foundation, an organisation promoting freedom of expression, condemned the ruling issued by Judge Zwein. Attorney Tony Mikhael believes that the verdict “is not reasonable in terms of the justification of the request to remove the report and its annexes, and the judge did not make an connection between what was mentioned in his argument and the final verdict.”

By justification of the verdict, Mikhael means Judge Zwein’s conviction that Al-Akhbar has breached the laws relating to libel and the publication of secret documents. Mikhael notes that there is a discrepancy concerning the judge’s authorities, in reference to the second paragraph of Article 579, which supports the powers of the judge of urgent matters (it allows the judge to eliminate clear infringement on the prosecutor if proven). Some judges, including Judge Zwein, are trying to interpret this paragraph separately from the full article. The penalties for slander and exposure of secrets cited by Judge Zwein in his verdict are mainly financial fines. In this case, Judge Zwein will have expanded his powers in an unjustified manner, and the university’s request could have been filed at the Court of Publications – instead of the Court of Urgent Matters – which would have taken urgent action if it deems it necessary.

Mikhael believes that perhaps the only positive aspect of Judge Zwein’s verdict is its reference to the public interest as a justification for publication, but surprisingly, he used the term “extraordinary public interest.” Legally, public interest is “public interest,” and cannot be characterized as extraordinary, or regular, or major... According to Michael, even if the case transferred to Judge Zwein was within his powers, his intervention would be to prevent the occurrence of damage (based on the allegations of the prosecuting party) or its exacerbation.

Since the documents – before their removal – were available to the public, and were shared on several websites and by people, the judge’s decision is questionable because it did not prevent the damage alleged by the university, and thus his intervention in this case is unnecessary.

Mikhael says that Judge Zwein took the wrong decision because the documents published by Al-Akhbar contain enough data to be considered as a matter affecting the public interest, especially since there is no explicit provision in the penal code or Publications Law that prohibits the publication of this type of documents.

Pressure from the university

The Samir Kassir Foundation denounced the Judge Zwein's decision, saying that pressure was exerted by the university and senior staff on the Lebanese judiciary, specifically on Judge Zwein who issued the decision. Firas Talhouk, a researcher at the foundation, expressed surprise that a major, prestigious institution like AUB would adopt such a method to suppress freedom of the press and prevent the publication of documents related to ongoing corruption. He says that if the university believes that erroneous information was reported by Al-Akhbar, it should have filed a lawsuit at the Court of Publications, rather than suppress freedom of the media and deny citizens the right to access information.

(Al-Akhbar)

This article is an edited translation from the Arabic Edition.

Comments

These documents were given to Al Akhbar freely & consensually.
The documents did not belong to the AUB at any time.
The documents were not stolen property.
The body that compiled the report / documents was legitimate.
The facts in the documents are true & correct & can be corroborated.
If all this is true then the Judge has erred in her judgement.
* I have a friend who was a journalist for The Age news paper....at least once a week there was a message on his answering machine "Ben - contact the office immediately - you have really done it this time"
Ben Hills.

The question is, will you guys take down requested publications? I really hope you stand up for justice and keep all information up and running and republish it over again. This judge is corrupt and has for sure been bribed by AUB and you should take legal action against him that he is sacked and can leave Lebanon and move to his condo and live and spend the bribe money he got from AUB.

JH

I think al-Akhbar is taking the wrong approach on AUB. While I do not doubt that AUB is possibly a corrupt institution riddled with mismanagement, I read the published documents, and couldn't find any real incriminating evidence. In any case it is only a small part of the problem. The real ugliness of AUB is not in its corruption, but in its obscene elitism, and its complete detachment from local society.

It is a closed space reserved for the super-rich. It's tuition fees are designed to keep it inaccessible to the majority of this region's population. Those who are not of the super-rich class, who are lucky enough to make it into AUB, are forced to take burdensome loans from private banks and remain in debt for many years after graduation.

This is to say nothing of the destructive neoliberal policies that its business school encourages, or of its obsession with hiring Western professors and administrators at the expense of some of the best local minds. Isn't it strange that in its 150 years of existence AUB has had only two Arab presidents (and I think both of them were only acting presidents).

So yeah. Fuck AUB, but al-Akhbar is focusing on all the wrong reasons.

You are absolutely spot on about what is the core problem with AUB...elitist, obscene, detached.Unfortunately, these are not illegal things to be...if only they were.

I disagree, though, that Al-Akhbar, of which I have no association with, is focusing on all the wrong reasons. I think that the AUBleaks demonstrate the symptoms of the core problems and they are legitimate issues that must be aired and discussed publicly. I believe this is contextualised in Akhbar's public position regarding, which is clear when you review all they have written regarding AUB and its potentially corrupt behaviours and practices.

The judge, in my opinion, has definitely failed the 'public interest'. And where laws do so, or where the judiciary interprets the laws against the public interest, then they must be defied.

I hope Al Akhbar takes a stand against this decision and maintains the pressure on AUB. The need for accountability, particularly in Lebanon, must trump all else, particularly intellectual property laws.

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