Civil Case (Tel Aviv) 59951-01-22 Avner Hofstein v. Politikali Reader (R.A.) - part 11

In our case, since the question of the publication of the plaintiff's name is also relevant to the decision on the defense of good faith (the plaintiff raises this argument in the summaries in relation to the protections enumerated in section 15 of the Law and the negation of the presumption of good faith under section 16(b)(3) of the Law), I will discuss this now (without deciding whether there is room to examine this in the framework of determining the public interest in true publications under section 14 of the Law).

66. The plaintiff is correct that the publication as a whole seeks to expose an important social-public phenomenon, and the special issue in it is not the identity of the people, but rather the broader phenomenon (in a case where the court recognized the public importance of the publication, but ruled that there was no room to disclose the name of the plaintiff who was convicted of manslaughter, years after the incident and after his conviction was erased from the criminal record, see: Civil Case (District 10) 172/89 Anonymous v. The Reporter - Anonymous, IsrSC 5799(2), 397, 411-412 (1992)).  However, in the circumstances of this case, even if the main purpose of the article is to criticize the manner in which the station operates, there are reasons that tip the scales to the determination that the decision to publish the plaintiff's name is reasonable.

First, in view of the plaintiff's status as a well-known journalist, who at the time of the events served as a civilian employee of the IDF on a public radio station, he can be viewed as a "public figure" in respect of which the balance with respect to the publication of the name is different from a situation in which he is a private and anonymous person (see: Civil Appeals Authority 3614/97 Avi Yitzhak v.  Israel News Company Ltd.)40, IsrSC 53(1) 26, 78-79 (1998) where it was determined that social and media persons may be recognized as public figures for the purposes of the law).  Second, since the affair was published in real time in the media with the plaintiff's name, it is possible to accept the claim of the publishing body that this fact served as a consideration in deciding whether to publish the name or not.  I am aware of the plaintiff's claim in the summaries of the reply that the things published in the article are more serious, according to him, than what was published in the media in the past, but I do not find any substance in it.  Even if the article presenting the matter from the complainants' point of view has a different nature from the past publications, which were mainly reporting, from the moment it was revealed in the past in the media that complaints were filed against the plaintiff by female soldiers about sexual harassment, it can be seen that the position of the publisher that he considered this as a supporting consideration in the decision to publish the name, as a reasonable position.  Third, presenting the various events without specifying the names of those involved is liable to harm the degree of seriousness and credibility that the public gives to the article (Civil Case (Jerusalem District) 13358-01-17 Hamdani v.  Cohen, paragraph 117 (May 5, 2020) (hereinafter: the Hamdani case).  In our case, not only the name of the plaintiff was published, but the names of seven other employees of the station were published, and it can be assumed that not mentioning names in the article would have reduced the degree of interest and curiosity of the reasonable reader of the article, and as a result, would have harmed the realization of the public purpose of the publication.  Fourth, the publication of the name also realizes the value of giving a voice to the complainants, and this should be given weight in the work of balancing the various values.  To this must be added the concern that the non-publication of the name may lead to the rumor mill and the suspicion of others, and even this consideration constitutes a supporting consideration in the decision to publish the name.

67. As to the basis of the truth of the publication - since the focus of the article (also in the section dealing with the plaintiff) is on the conduct of the station, the decision will be divided into two parts: first the findings that arose in relation to the manner in which the Army Radio station was handled, and then the testimonies relating to the acts attributed to the plaintiff will be analyzed.
68. In addition to the witnesses who testified, the following evidence was submitted from the date of the occurrence of the incident that is the subject of the lawsuit (2016): the transcript of the clarification conversation that Dekel and Shouri had with the plaintiff on February 1, 2016, in relation to the complaints directed against him (the conversation was recorded by the plaintiff and submitted as exhibited on his behalf) (hereinafter: the "Inquiry Conversation"); Dekel's email address to the Advisor to the Chief of Staff for Women's Affairs dated February 24, 2016 (hereinafter: "Dekel's Inquiry"); the response sent by e-mail to Dekel by the Advisor to the Chief of Staff on Women's Affairs (hereinafter: "Response of the Advisor to the Chief of Staff"); Summary of the command conversation that the plaintiff had with the Chief Education Officer on March 1, 2016 (hereinafter: "the summary of the command conversation"). The last three documents were submitted at the request of defendants 4-6 after an order was issued to the state in the matter (see what is stated in paragraph 49 above).
69. Together with the affidavits of defendants 1-3, a transcript of the interviews conducted by a researcher on behalf of Politiki with the complaining soldiers ("Dana" and "Sapir") was submitted prior to the publication of the article (Exhibit 1 of defendants 1-3). The transcript was submitted as a file not through its editor and not by way of an opinion.  In the summaries, the plaintiff petitions to determine that the transcript is inadmissible on the grounds that it is hearsay testimony and a document that lacks any evidentiary value (summaries on behalf of the plaintiff, paragraph 42).  In our case, the transcript was given to the plaintiff even at the stage of discovery of the documents, in accordance with the procedural arrangement reached between the parties (in light of questions of confidentiality of sources that arose at the first pre-trial meeting).  At the evidentiary hearing, counsel for the plaintiff agreed that the transcript "will remain in the file and will serve as evidence of the fact of what was said" and objected to it being used as evidence of the truth of its contents.  The complainants were even questioned about the transcript as part of their cross-examination in court.  If so, in view of the consent given at the hearing, the transcript is admissible and serves as evidence for the very fact of what was said and not for the truth of the content, and the plaintiff's arguments will be taken into account the evidentiary weight of the transcript.

and(1) The conduct of the Galei Tza station"L in handling complaints

70. The article as a whole presents the harsh reality of young soldiers who complain of harassment by employees - some of whom are many years older, with a reputation and influence in the media - and find themselves exposed, their identities sometimes exposed, and without proper protection and handling of complaints.
71. The testimonies brought in the proceeding support the claim that the manner in which the soldiers' complaints are handled in real time raises a difficulty and reveals a complex picture in relation to the organizational culture that was practiced at the station. These words are said with the necessary degree of caution, and in view of the fact that the State is not a party to this proceeding, and the possibility that the picture that arose in relation to the clarification process is partial and not exhaustive, should not be ruled out.  Under this note, from the testimonies and documents that were presented, the factual picture emerges as detailed below.
72. The complaining soldiers contacted Hadar Schiffer (who served as deputy head of the news department at Army Radio) and Dan Schori (who served as head of the news department), and as a result, a conversation took place between them and Tanya Poliak (who served as the head of the women's affairs station and in charge of sexual harassment). There is no dispute that the complainants asked not to file an official complaint.  The soldiers' version that they feared that filing a complaint would lead to the disclosure of their identities and only asked that a call be made to the plaintiff so that he would cease his actions is supported by both Schiffer's version and Poliak's version.
73. Dekel and Shouri held a clarification call with the plaintiff on February 1, 2016, following which he was transferred from his position as editor of the morning edition to another position, without direct work interfaces with the complainants. In her cross-examination, Poliak confirmed that she went on maternity leave on January 6, 2016 at the latest, and that her conversation with the complainants was prior to that date.  If so, then the complainants filed the complaints at the end of December and at the latest at the beginning of January.  Nevertheless, Dekel and Schori's clarification conversation with the plaintiff was held only about a month later, at the beginning of February 2016.  No satisfactory explanation was given as to why more than a month passed from the date on which the complaints were filed by two female soldiers until the date on which the plaintiff was summoned for an inquiry call, during which time he continued to work with them and alongside them.
74. Moreover, as stated above, Poliak went on maternity leave at the beginning of January, and the material in the file indicates that she was not appointed as a substitute (this point has not been fully clarified, but it is learned from the response of the Chief of Staff's Advisor on Women's Affairs to Dekel). The fact that no replacement was appointed and that the complaints investigation process was conducted mostly without the involvement of the organization's sexual harassment supervisor raises a difficulty.  I will add that in her cross-examination, Poliak often replied that she did not remember, and from the evidence it appears that her involvement was limited mainly to the conversation she had with the complainants and nothing more.
75. The evidence indicates that only after about two months had passed since the soldiers had complained, and after about a month had passed since the station manager's clarification call with the plaintiff, did Dekel turn to the Chief of Staff's advisor on women's affairs. At that time, it was decided to suspend the plaintiff from the station as of February 27, 2016.  On March 1, 2016, the plaintiff had a command conversation with the chief education officer, after which he returned to work at the station and the suspension ended.  Media reports about the affair began on February 28, 2016.
76. This factual basis shows that the sexual harassment supervisor at the station was partially involved in handling the complaints, and that after she went on maternity leave close to the date of filing the complaints, no replacement or replacement was appointed for her. It also turned out that since the complaints were filed by the female soldiers, about a month had passed before the plaintiff was summoned for a clarification call - without an explanation for the long period of time that had passed.  It also became clear that against the wishes of the female soldiers not to file a complaint but to make do with a clarification call to the plaintiff in order for him to cease his actions (a conversation following which the plaintiff was removed from his position), about a month later the handling of the complaint "woke up" again at the initiative of the station, the plaintiff was suspended, the matter was released to the media and the identity of the complainants was revealed.  If so, without any satisfactory explanation, the handling of the affair continued for about two months, in an incontinuous manner, and while revealing the identity of the complainants.  This is against their desire for anonymity and to maintain their privacy.  I found it necessary to add on this point that the continuation of the investigation process and its poor management are liable to cause difficulty and even harm the subject of the complaint (the plaintiff in this case).
77. So far about the official handling of complaints. The evidence and testimonies in the file show that in practice, the station has an internal and "informal" treatment track that is conducted alongside or instead of the official track.  Thus, the evidence shows that even though Hadas Shteif has no official position at the station on the issue of sexual harassment, she contacted one of the complainants ("Dana") on her own initiative in order to conduct an inquiry herself.  When asked how she knew the identity of the complainant, she replied, "They talked about it in the system." When asked who in the editorial board revealed the complainant' s name, she replied: "It could have been Tanya, it could have been the commander of Army Radio himself, I have no idea, someone said that" (Transcript 1, p.  101, question 3).  and confirmed that in real time the station commander and Tanya Polyak spoke with her (ibid., s.  6).  She described her conversation with Poliak as follows: "[..] It wasn't in detail, but I was mainly interested in what the story was, and how I didn't know about it, because usually when there are events of this kind on Army Radio, I know about them [...]." When asked if she didn't think it was problematic to speak with the complainants, the station commander and Poliak while the investigation process was underway, Shteif replied: "[...] Army Radio is a home station, and most of the cases we handle [..] don't reach the police, it's things we solve inside the station (p.  103, paras.  7-9).  When asked about this again, she replied: "That's how Galatz operates, it's a family of a home" (ibid., Sh.  23).  Steif even confirmed in her cross-examination that she had contacted Poliak on her own initiative, even though the complainant did not ask her to do so.
78. Nurit Canetti testified that after the media learned of the affair, "I began to find out, I called someone who always knows these things, and that is Hadas Shteif" (Transcript 1, p. 50, questions 17-18) and added: "I have no role there and there is no reason for me to conduct an official inquiry, it was a gossip conversation" (p.  51, questions 31-32).  According to Canetti' s version, although Steif has no official role at the station in dealing with sexual harassment, the female soldiers turn to her (p.  68, s.  31).  When asked why, then, that Shteif and she were conducting "gossip conversations" and sharing details about complaints of sexual harassment at the station, she replied: "The girls who contacted Hadas Shteif did not tell her not to tell her not to tell her about it and don't disclose it" (p.  69, s.  26).  When asked about it again, she replied: "[...] It's our job to make sure, and we're gossip people, and voila, I'm a journalist, I'm a gossip, I like to know information [...] So if I read in the Yedioth Ahronoth newspaper about something that's happening on Army Radio without a name, then I try to find out, so I turn to people who are friends at the station and I ask, do you know what it's about?".  When Shteif was asked in her cross-examination whether she had asked Dana for permission to discuss the complaint with others, she replied: "It was already known" (p.  120, s.  19); And when asked if it was not worrying that the identity of complainants was so easily revealed on Army Radio, she confirmed that this was the conduct at the station (p.  121, s.  9).
79. Moreover, Canetti confirmed in her cross-examination that Poliak (who, as stated above, served in an official position on the relevant dates) shared details about the affair with her in 2022 (p. 53, s.  28).  Polyak confirmed this in her cross-examination, and justified it by the fact that at that time she was no longer serving in the IDF.  It is clear that the organization's sexual harassment supervisor is not supposed to share information that she received while handling complaints in the framework of her official position - even after she finished her position and even after she retired from the army.
80. From the aforementioned evidentiary totality, it emerges that alongside the official track in dealing with sexual harassment at the station, there are internal and informal treatment mechanisms. It was also found that the station practices an organizational culture of hallway conversations and gossip conversations involving senior officials, without taking care not to reveal the identity of the complainants.
81. In summary, the factual basis that has been proven supports the conclusion that the position presented in the article regarding the manner in which the female soldiers' complaints were handled and their identities revealed is reasonable.

and(2) The events attributed to the plaintiff in the article

82. In a section of the article that discussed the station's conduct in handling complaints filed by the female soldiers against the plaintiff, the following acts (quoted by the female soldiers were attributed to him): disturbing verbal statements; physical contact with various body parts (shoulder, inner thigh, waist, lower back, stroll class); Performing a masturbation motion during a broadcast.
83. I will analyze the evidence that was brought, while dividing each of the types of acts, and determining findings about it. I will do so according to the criteria outlined in the case law, according to which the truth that the site has is the "legal truth" that has been proven by the evidence, taking into account the special evidentiary rules used to analyze the testimonies of complainants of harassment that allow for lenient treatment of contradictions in testimony while looking for a "kernel of truth."
84. Disturbing verbal statements

makes illegitimate comments such as "I'm masturbating to the wall" (from "Dana"); He would talk about masturbation, female ejaculation...  He makes comments out of place (from "Sapir"). 

84. The plaintiff denies this. According to him, the entire matter stemmed from a single incident in connection with the broadcast of a blatant television item on the program "London and Kirschenbaum" that dealt with masturbation, and on which he reacted to the television screen and not to the attendees "a spontaneous and amused verbal reaction in light of the vulgarity of the segment that was broadcast" (paragraph 1 of the plaintiff's affidavit).  According to the prosecutor's version, he said: "How do you broadcast the masturbation show of these two women at hours when children are also watching?" According to him, apart from this incident, he never brought up the word "masturbation" in the workplace (paragraph 18 of the plaintiff's affidavit).
85. The complainants, on the other hand, testified in the proceeding, and presented a different version. Sapir testified in the affidavit that "regularly and frequently, Hofstein used to make comments of a sexual nature, embarrassing and disturbing remarks" (paragraph 6 of Sapir's affidavit).  "Dana" testified in an affidavit on her behalf that: "Hofstein used to make comments of a sexually explicit, disturbing and embarrassing nature [...] Thus, for example, Hofstein used to talk a lot about sex, masturbation and female ejaculation near me, as a matter of routine" (paragraph 7 of Dana's affidavit).
86. The complainants were interrogated by a lengthy cross-examination in court. They consistently answered questions and answered in an eloquent and trusting manner.  Sapir testified about a routine of "sexual and explicit comments" (Transcript 2, p.  255, paras.  15-20); and for the existence of "discourse of a sexual nature [...], vulgar jokes" and "that the plaintiff was almost exclusively the only citizen who created such a discourse in a news desk." When asked about the "item" on the "London and Kirschenbaum" program, she replied: "I can say that beyond this specific item, there were a lot of crude jokes, a lot of relatively sleazy, relatively misplaced, rude references, as a 19-year-old soldier, I didn't feel comfortable talking in this atmosphere."' 240, 27-21).  Dana testified that the item in "London and Kirschenbaum" is not the focus of the complaint, but rather "the touches, the dirty talk, the feeling that made us feel uncomfortable while we were soldiers on duty, that's the point" (pp.  263, 24-33).  A similar picture also emerges from the transcript of Dekel and Shouri's clarification conversation with the plaintiff, when they present the complaints to him, they present them as follows: "A., about your language [...] and the second that you often touch." In other words, even Dekel and Shouri did not see the focus in the complaint at the "Item" incident, but rather in the complaints about the plaintiff's style of speech and repeated contact.  Sapir and Dana repeated similar statements in an interview with Politikal that was conducted with them prior to the article.  Sapir said there that the plaintiff "created a sleazy atmosphere," "made comments," "started jokes out of place," "started conversations about masturbation, about female ejaculation." Dana said in an interview about "a lot of illegitimate comments, 'I'm masturbating to the wall..'"
87. Reinforcement for the fact that the female soldiers complained of harassing verbal statements can be found in the affidavit of Schipper's main testimony, which the complainants contacted on their own initiative in real time. According to Shiffer's testimony, the female soldiers complained to him that the plaintiff was "talking dirty" and that "they don't like being near him." In the clarification conversation that the plaintiff had with Shouri and Dekel, they said that they had received complaints from male and female soldiers about the language he used in their presence (pp.  55-56 of the prosecution's exhibits).  A similar picture emerges from Dekel's appeal to the Chief of Staff's advisor regarding complaints of "disrespectful language." A summary of the command conversation that the plaintiff had with the chief education officer shows that the system defined the complaints received against him as "verbal sexual harassment."
88. I do not accept the plaintiff's argument that the evidence from real time supports his version. "Dirty speech" (according to Schiffer), "disrespectful language" (according to Dekel) and "verbal sexual harassment" (according to a document from the Chief Education Officer) are not "familiar" behavior in the workplace, and even more so on the part of someone who served in a senior position at the station and is decades older than the female soldiers.
89. Moreover, the plaintiff's version that apart from an incident that occurred in the course of the item in the "London and Kirschenbaum" program, there were no such things - is not supported by evidence submitted in real time, but quite the opposite. Schiffer's testimony, as well as the transcript of the inquiry and the documents of the inquiry at the Chief Education Officer's office, indicate that the complaints went beyond the single incident to which the plaintiff relates and dealt with a number of different incidents.

Steif noted in her affidavit that "Dana" shared with her the event in front of television on the "London and Kirschenbaum" program only.  I do not believe that this would impair the credibility of the complainant.  First, Steif turned to "Dana" on her own initiative to "clarify" the affair, as opposed to "Dana" contacting Schiffer on her own initiative.  It can be assumed that Dana chose to contact Schiffer because she trusted him and felt safer to lay things out to him fully, assuming that her dignity and privacy would be preserved.  Even if Dana did not elaborate in full when she responded to Steif's initiated request to her, this is a clear case in which there is no room to draw conclusions about the complainant's duty in the absence of an official role of Steif in handling the complaints and in light of Schiffer's testimony.  Second, Steif testified that she and the plaintiff had been friends for many years (transcript 1, p.  115, question 7), that "the story did not suit him", and that she spoke with the plaintiff in real time and that he was "shocked by the place where the incident unfolded" (testimony of Steif, paragraphs 3 and 8).  Shteif even published a real-time post in which she questioned the publications against the plaintiff.  All of this undermines her objectivity in relation to the affair.  This is in contrast to Saffer, whose testimony was clean, clinging to the facts as he remembers them from a real time, without speculation or reasoning, and without conclusions - and without being able to attribute to him a desire to defend or take a position in relation to the affair, or a special closeness to any of the parties involved in the affair.

90. I am aware that in the interview conducted with the complainants on the eve of the article, in the article and in their testimony in court, examples of concrete expressions that have no written documentation in real time were included. However, once there is written documentation in real time of "complaints of verbal sexual harassment" (as indicated by a document from the Chief Education Officer), this is sufficient to support the complainants' version, which testified in court convincingly and credibly.  This is especially against the background of the plaintiff's sweeping denial that beyond the event on the "London and Kirschenbaum" program, there was nothing.
91. Physical contact with various body parts

"He would put his hand on his lower back, on his thigh, stroke his hair" (from "Dana");Every approach to me always included touch - a hand on the shoulder, the inner thigh, the waist.  It just drove me crazy" (from "Sapir"). 

91. Hofstein's version is that he does not remember touching the complainants, and that if there was indeed touch, it was done with neutral body parts (hand, knee, shoulder, leg), casually and inadvertently, and while performing the routine work and without any sexual intention (Transcript 2, p. 174, s.  10; p.  182, s.  1).
92. On the other hand, the complainants testified in their affidavits about repeated contact on the part of the plaintiff and not about incidental touches, and repeated this in their testimonies in court as well. "Sapir" testified about touches that occurred while they were together at the news desk (Transcript 2, p.  255, paras.  15-20).  "Dana" testified that "a very large number of times he would lay on me and shake his hand on my thigh.  Why? There's no reason, there's no connection.  Did we talk? No, not necessarily.  He would lean over me to edit something on my computer at night instead of editing it on his computer.  He could stroke my hair if he turned to me.  Why? He could have put his hand on my shoulder for a considerable number of seconds, just, there is no connection" (Transcript 2, p.  278, paras.  18-23), and also: "Hofstein involuntarily touched me a very large number of times on various occasions in a way that I did not want, invaded my personal space" (p.  271, s.  29).
93. As for the plaintiff's claim that in the e-mail message that Dekel sent to the office of the Chief Education Officer, it was written in the description of the complaint that he "touched one of them in the knee when he asked her to reach someone on the phone" and that this shows that other than that, there was no allegation of repeated contact against him in real time - I do not accept it.

First, Sapir testified that she did not speak with Dekel herself and that "what was written here by Yaron Dekel has gone through several incarnations and is not first-hand from me" and "it is not a touch of the knee once, it is a touch of the hip and this is a touch of the knee and this is a touch of the hand, it is a touch of the shoulder and in general it is an unpleasant and inappropriate atmosphere.  A 19-year-old soldier who simply couldn't do my job and didn't want to come to the army" (p.  242, paras.  21-28).  And also: "I refer to Yaron Dekel's email and say, he didn't hear the events firsthand from us, he heard from Schuri, he heard from us, let's think that the details are inaccurate and there is no need to compare my version, that my experience is in the first person, and what Yaron Dekel heard from Dan Schori" (pp.  243, 7-10).  "Dana" also replied in her cross-examination that Dekel did not speak to her in real time and that what he wrote did not accurately reflect what he said (p.  268, s.  33).