AP says damages suit for use of Oct. 7 freelancer photo ‘fatal blow’ to press freedom

The Associated Press (AP) and Reuters news agencies have asked the Jerusalem District Court to dismiss a lawsuit seeking NIS 25 million ($6.8 million) in damages from the news organizations for their use of photos taken by controversial photojournalists during the October 7 Hamas invasion and atrocities.

AP argued that accepting the lawsuit would strike “a fatal blow” to freedom of press and freedom of speech, and would limit the freedom of media outlets operating in Israel in the future.

The news agencies made their arguments in defense statements filed on Thursday to the Jerusalem District Court in response to the damages suit submitted to the court in March by parents of five victims of the Supernova Festival Hamas massacre on October 7.

In its defense statement, AP noted that the photojournalists it had purchased photographs from were not AP employees but independent photographers, and that therefore AP did not assign them to cover the Hamas assault.

But it also contended that the photos and videos it published from those photojournalists provided “a better understanding of the nature and extent of the atrocities,” and that a ruling in favor of the damages suit would harm the public’s “right to know and recognize reality, even when it is disturbing and shocking.”

Both AP and Reuters said they sympathized with the plaintiffs and those affected by the October 7 attacks, but rejected the claims in the lawsuit.

Terrorists abduct Yarden Bibas to Gaza after kidnapping him from his home in Nir Oz, a kibbutz in Israel near the Gaza border, on Oct. 7, 2023. His wife Shiri and son Ariel, 4, and baby Kfir, were also abducted. (AP)

In March, the parents of five victims of the Supernova Festival massacre filed a civil suit for damages against AP and Reuters, alleging that photojournalists Hassan Abdel Fattah Eslaiah, Hatem Ali, Mohammed Fayq Abu Mostafa, Ashraf Amra and Ali Mahmoud, who filed photographs of the atrocities being perpetrated by Hamas terrorists, were in fact a component of the attacks themselves, and were not conducting legitimate journalistic work.

Since AP and Reuters posted the photos they received from these journalists as the attacks unfolded, in some cases giving only the agency’s name as photo credit, and continued to make the pictures available for sale on their websites, the suit maintained in a complex legal argument that they had culpability in the death of the plaintiffs’ children.

“The entire lawsuit is built on the (erroneous) basic assumption that the independent photographers who took photos and videos from the October 7, 2023 attack, which AP purchased and published, were employees of AP, or acted in some other way on its behalf and according to its instructions,” asserted AP in its defense statement, which was submitted by attorneys Gideon Weinbaum and Sapir Even-Hen Bahar of Epstein Rosenblum Maoz law firm.

“Therefore, it should be clarified at the outset that these independent photographers were not employees or agents of AP (without detracting from the fact that, even if they were employees or agents, there would be no basis for the lawsuit).”

Reuters similarly insisted that the two photographers it purchased images from, Abu Mostafa and Ashraf, were also never “employed, commissioned or given an assignment by Reuters.”

AP stressed it “did not send and did not control the actions” of the photographers from which it bought pictures, and that neither did it instruct them what to photograph, or where and when to photograph.

“They arrived at the event of their own accord, photographed the images on their own initiative, and sold them to AP after the fact. Among other things, AP is not responsible for the actions and omissions that the Plaintiffs attribute to these photographers.”

AP’s defense statement also noted that the plaintiffs in the suit do not actually claim that the photographers were involved in perpetrating violence against the victims of Hamas’s onslaught, much less claim that those individuals were the ones to harm their children.

A photo taken by photojournalist Hatam Ali and published by the AP news agency of Palestinian terrorists abducting 85-year-old Yaffa Adar from Kibbutz Nir Oz into the Gaza Strip, October 7, 2023. (AP/Hatem Ali)

Despite that, the suit argued that those photojournalists, and by extension AP, should be treated as accomplices in carrying out violent acts, and that AP should be held liable, AP’s defense statement noted, an argument which it said should be firmly rejected.

“There is no dispute that at least some of these photos and videos taken by those independent photographers and purchased by AP and published by it are gruesome images, but despite this, and perhaps precisely because of this, they served exactly that purpose,” AP’s defense statement continued.

“They showed reality. Thanks to those photos and videos, Israeli citizens and media consumers around the world had a better understanding, inter alia, of the nature and extent of the atrocities that occurred that day,” it added, saying that these photos therefore “doomed to failure” efforts to minimize the atrocities committed on October 7 by Hamas.

AP’s attorneys also contended that the court should also bear in mind “the severe harm to freedom of the press and freedom of speech” which would result if the lawsuit was accepted.

Such a step, they argued, “will mean imposing liability on a news agency” for the harm and damages sustained by the victims of the October 7 atrocities and their families, and would also constitute “a fatal blow to freedom of press and freedom of expression,” in Israel.

“It is liable to create a dangerous chilling effect, limiting the freedom of media outlets operating in Israel,” the news organization said.

The lawsuit itself noted the apparent ties of one of the photographers, Hassan Abdel Fattah Eslaiah, to Hamas, pointing to a meeting between him and Hamas leader and October 7 architect Yahya Sinwar in 2020 where Sinwar is seen kissing the photographer on the cheek in a selfie.

It also underlined the activities of photographers Mohammed Fayq Abu Mostafa and Ashram Ashraf, whose photos were used by Reuters and AP, who shot a live video from Ashraf’s Instagram account on his phone and called on his Instagram followers and viewers to join the invasion.

After allegations were first raised against AP and Reuters by the Honest Reporting organization, AP said it was no longer working with Eslaiah.
Reuters said on Thursday that it had “previously stated publicly that it considers unacceptable the behavior in the live video of Mr. Ashraf and Mr. Mostafa from Khan Younis on October 7.”

Added a Reuters spokesperson, “It is the job of news organizations to document important news as it unfolds and to provide a first-hand account of events on the ground. This is the essential role of a free press, and we remain fully committed to providing this coverage both from Israel and Gaza.”