"So that everyone knows": the mental element in defamation and the words of attorney Dotan Tzur

Defamation: Mental Element

Must it be proven that a lawyer wanted to cause harm when he shouted "a thief, a fraud and a criminal"? In a civil claim, according to Uri Shenhar's book, The Law of Defamation, the answer is almost always no. In criminal proceedings the answer is yes, and the book lists the signs from which courts infer an intent to harm. This is how those signs look against the transcript of the conversation with Dotan Tzur, attorney, of the Chen Fisher Gabbay law office of Victor Fisher, attorney, Ofer Chen, attorney, and Elad Gabbay, attorney.

The minutes after the hearing

On 13 January 2026 a hearing ended at the Haifa Enforcement and Collection Office in file 515509-06-24, a vehicle pledge file of Mizrahi Tefahot Leasing Ltd. Dotan Tzur, attorney, represented the receiver. During the hearing itself, the creditor's representative, an employee of Bank Mizrahi Tefahot, offered a settlement, a discount or instalments.

At 13:15, according to the transcript of the recording, Dotan Tzur, attorney, turned to the defendant. "Liar, fraud and criminal, that's what you are". And then again and again: "Thief, fraud and criminal". The word "fraud" is heard 19 times in the two pages of the transcript. "The scum of mankind". "Filth".

The defendant tried to address the bank's representative: "Yaniv, listen". The lawyer answered: "Don't talk to him, he'll start telling stories".

The defendant offered: "Let's make peace, let's make peace". The answer: "Don't talk to me, scum".

And then: "Thief, fraud and criminal, so that everyone knows". And later: "I will make sure you never get a settlement in your life because you are a thief, a fraud and a criminal... and so that everyone knows this man is a thief, a fraud and a criminal". And finally: "Until my last day, you will never get out of your debts, scum. I'll make sure of it. Me personally!"

People standing nearby asked: "What happened? Who is this? Is this your lawyer?"

Attorney Dotan Tzur: signature block of a response in civil file 25207-08-26 for "Chen, Fisher, Gabbay law office" (signature redacted) Click the image to open the full-size document (Hebrew).

Attorney Victor Fisher: protocol of 13.1.2026, Haifa Enforcement Office, file 515509-06-24, "counsel for the receiver, Adv. Dotan Tzur of the office of Adv. Victor Fisher" Click the image to open the full-size document (Hebrew).

In brief

In a civil defamation claim, according to the book, no mental element of any kind needs to be proven. The publisher's motives and intentions are irrelevant.
The exception: in an oral publication it must be shown that the words were intended for someone other than the injured person. The transcript says expressly "so that everyone knows".
The criminal offence requires proof of "intent to harm", beyond reasonable doubt. Foreseeing that the words would harm is not enough.
The book lists signs of intent to harm: harsh language, repetition, choosing listeners whose hearing the words is especially damaging, and hostile relations. These documents indicate that all of these signs appear in the transcript.

In a civil claim: what the publisher wanted does not matter

In the book's words: "An important principle in civil defamation claims is that there is no need whatsoever to prove any mental element" (Shenhar, p. 205). The plaintiff need only prove the factual element: that the defendant published defamation that harms him. According to the book, the publisher's motives, his intentions, and even whether he was negligent are irrelevant to the tort. That is why the tort is classified as one of strict liability (pp. 205 to 206).

The book notes that scholars disagreed. Prof. Feller held that awareness is required, and Prof. Gidron held that at least negligence is required. But the law as applied, according to the book, is that the tort does not depend on a mental element (p. 206).

Whether the words are "defamation" is also decided by an objective test. How the publisher himself understood his words does not matter. Even a person who never imagined that his words were defamatory can be held liable (p. 207).

The exception: words spoken orally

In an oral publication the Law requires that the words "were intended for a person other than the injured person" (section 2(b)(1) of the Law). According to the book, liability therefore depends on the publisher intending that the words reach another person, or at least foreseeing it (pp. 206 to 207).

In the transcript this requirement is stated in so many words: "so that everyone knows". The words were spoken loudly ("Why are you shouting?" the defendant asks), near people who asked who the man was, and next to the bank's representative. These documents indicate that the words were not meant for the defendant's ears alone.

In criminal proceedings: "with intent to harm"

Section 6 of the Law provides that the offence is committed only if defamation was published "with intent to harm", to two or more persons other than the injured person (p. 207). According to the book, the Supreme Court held in Biton v. Sultan that the foreseeability rule does not apply to the offence. In other words, it is not enough that the publisher foresaw that the words would harm. It must be proven that he actually intended to harm (p. 215). Also according to the book, the intent to harm may be one of several intentions. The existence of another purpose does not negate it (p. 210).

How intent is proven: the signs in the book against the transcript

A court does not read minds, so, according to the book, the case law adopted two tools: circumstantial evidence, and the "presumption of intent", under which a person intends the natural consequences of his acts. The harsher and more hurtful the publication, the harder it is to rebut the presumption (p. 216).

The book lists signs. This is how they look against the transcript:

Harsh language. "Thief, fraud and criminal", "the scum of mankind", "filth". The book notes that a court examines the expression in its context and that blunt language does not necessarily prove intent (pp. 216 to 217).

Repetition. In the book's words: "repetition of the harmful publication may also indicate intent to harm" (Shenhar, p. 217). In the transcript the phrase "thief, fraud and criminal" is repeated again and again, in both parts of the conversation.

The recipients. According to the book, directing the publication at many recipients, and at recipients whose receiving it especially harms the injured person, may indicate intent to harm (p. 217). In the transcript the words are spoken next to the creditor's representative, who minutes earlier had offered a settlement, together with the announcement "I will make sure you never get a settlement in your life". The lawyer also stops the defendant from speaking to the representative: "Don't talk to him".

Hostile relations. According to the book, intent may also be inferred from hostile relations or rivalry between the parties (p. 217). Here it is counsel for the receiver facing the debtor, on the same day and in the same file.

Attempts at reconciliation. According to the book, a sincere attempt by the publisher to reconcile with the injured person after the publication may indicate the absence of intent to harm (p. 218). In the transcript the offer of reconciliation comes from the other side. The defendant says "Let's make peace", and the answer is "Don't talk to me, scum".

The stated purpose. "So that everyone knows". "I'll make sure of it. Me personally!"

What this means for the others involved

According to the book, in the criminal offence a person whose liability derives from the rules of complicity in the Penal Law is judged by his own mental element (p. 219). This means that an intent to harm on the part of the lawyer who spoke does not pass automatically to Victor Fisher, attorney, Ofer Chen, attorney, or Elad Gabbay, attorney. The civil question, whether the office or the partners are liable, is examined in the article "Is the Chen Fisher Gabbay law office liable for attorney Dotan Tzur's words?".

What this article does not decide

This article does not decide that Dotan Tzur, attorney, committed an offence or a tort. It compares what is written in the transcript with the rules in the book. Whether there was an intent to harm, and whether the words are defamation at all, is for a court to decide. The transcript is the defendant's document and its accuracy has not been tested in any proceeding. The article does not examine defences. The book is summarised in our own words, except for the marked quotations.

Sources

See also: Is the Chen Fisher Gabbay law office liable for attorney Dotan Tzur's words?
See also: Could the Words of Dotan Tzur, Attorney of the Chen Fisher Gabbay Law Office, Amount to Defamatory Publication ?
See also: Are the Receiver and Mizrahi Tefahot Bank Liable for a Publication by Attorney Dotan Tzur ?
Transcript of a conversation of 13.1.2026 at 13:15, provided by the defendant.
Protocol of the hearing of 13.1.2026, Haifa Enforcement Office, file 515509-06-24.
Prohibition of Defamation Law, 5725-1965, sections 2, 6 and 7.
Uri Shenhar, The Law of Defamation, 2nd edition (2024), chapter eleven, "The Mental Element in the Tort and Offence of Defamation", pp. 205 to 220. Case law as cited in the book: Criminal Leave to Appeal 9818/01 Biton v. Sultan, PD 59(6) 554 (2005).