With regard to the nature of the publication itself, the following parameters must be examined: the manner in which the publication is worded and styled, and whether the advertiser used unequivocal and decisive language; the necessity of the offensive part of the publication; whether the advertiser approached the object of the publication in advance and was given a reasonable and fair opportunity to respond to the publication (Dayan Civil Appeal, 492-493).
- It was held that the tests are not cumulative, so that failure in one of them will not necessarily lead to the denial of the defense (the Regev case, paragraph 112 of the judgment of Justice N. Sohlberg and paragraph 12 of the judgment of Justice (as he was then called) Amit) and that "an examination of the view of the publication as a whole, while examining the general message according to its essence, is also correct for the purpose of defending the 'duty to publish', in light of the tests relating to the publication itself as detailed above" (ibid., in paragraph 14 of the judgment of Justice (as he was then called) Y. Amit).
- In the Regev case, the Honorable Justice (as he was then called) Y. Amit noted that the investigative press "has a particularly appropriate status for the protection of the 'duty to publish', precisely because of its diminishment" and that in light of its characteristics, "investigative journalism is at the core of the protection of freedom of expression and as such is particularly worthy of the protection of responsible journalism [...] Among the various types of journalism, it stands as the "watchdog of democracy", not as a pet poodle, but as someone whose barking and biting have an effective impact on the democratic field" (Regev, paragraph 8 of the judgment of Justice (as he was then called) Y. Amit). In our case, the article meets the definition of "investigative journalism" and therefore the examination of the parameters will be done under its "particularly proper" status, as outlined in the case law. For further details on the defense of responsible journalism and the auxiliary tests formulated in case law, see: Shenhar, 542-568.
VIII(2) From the General to the Individual
- According to the plaintiff in his summaries, defendants 1-3 acted in a biased and one-sided manner out of a feminist agenda and failed to meet all the conditions that entitle them to the defense of good faith and responsible journalism. In my opinion, the conclusion that is reached is different. Since I have determined that there is a true defense in the publication, I will explain this briefly.
- As mentioned, the article dealt with the issue of sexual harassment at the station and the manner in which it was handled incorrectly, with the part dealing with the plaintiff cited as an example of the station's conduct and the way the complainants experienced the handling of the affair. Because of its length, the investigation was published in two parts (two articles), the length of the article in which the plaintiff is mentioned is six pages, and the section dealing with the plaintiff is about half a page (five paragraphs), about halfway through the article.
- The evidence indicates that the preparatory work for the investigation took nearly a year, during which dozens of young men and women who served at the station were interviewed, and the events detailed in the article were included only after two different sources confirmed them. The evidence indicates that during the various interviews, the plaintiff's name came up at the initiative of the interviewees (which we saw separately) and they told their story and what they experienced freely, continuously, and without being presented with deliberate questions (in a manner similar to a principal interrogation) (Exhibit A of the prosecution's exhibits; Paragraph 9 of the affidavit of defendant 2 and paragraph 14 of the affidavit of defendant 3).
- Defendant 2, the editor of Politikali, testified that she was not satisfied with the interviews conducted by the researcher with the complainants and spoke to the complainants herself and asked them to retell the story, without deliberate questions or intervention. In her testimony, she detailed that she held additional background conversations, "We contacted a great many people who worked at Army Radio at the time [...] in connection with the plaintiff's story" (p. 162, paras. 25-27) and that: "When there are background conversations, most of which confirm what I understand from the complaints, and very few background conversations that do not confirm this to me, and two complainants whose story is very coherent and very clear, and this one verifies each other very clearly, Two different testimonies that corroborate each other, the weight is quite clear" (p. 173, paras. 9-12). She testified that during the course of the investigative work, the plaintiff's name came up from other people as well, but they did not rely on this because it was rumors and not direct testimony (p. 194, paras. 7-17), and that they did not encountercontradictory testimonies about the plaintiff (p. 173, s. 22), but rather a gap between the interviewees - some of them were familiar with the allegations in relation to the plaintiff and some were surprised by it (p. 172, S. 29-33). She testified that they did not ignore this, but that "out of all the conversations we made, out of all the testimonies that were seen before me, the testimonies of the girls, the background conversations and the rest of the information cross-references that I made and that Noam made, I came to the conclusion that the testimonies of those two girls are very, very credible and can be published in the investigation" (p. 164, paras. 15-22).
As to the argument that "Dana" should not be trusted due to events from her past that, according to the plaintiff, impair her credibility (Exhibits 8 and 9 of the plaintiff's exhibits) - first, defendant 2 stated in her testimony that she was aware of this and did not believe that they should be given weight after considering the totality. Second, the things attributed to her have nothing to do with the complaints, they did not occur in those years, and I did not find any connection between them. And finally, this does not make her version incorrect and the events she experienced falsely - as stated, she testified before me and I gave credence to her words, which are even supported by a separate and independent testimony by "Sapir" that testified to similar patterns of behavior on the part of the plaintiff.
- Defendant 3, the director of Politikaly, testified that she personally reviewed the article before it was published and listened to the recordings herself and made sure that the researcher did not mention the plaintiff's name in advance, and that "she was not trying to seduce them to say something" "but the two complainants brought up his name on their own initiative: "Both of them independently told us, 'I want to talk about Avner Hofstein'" (Transcript 3, pp. 194, 7-12).
- As for the plaintiff's argument that the two female soldiers should not be seen as different and independent sources - I do not accept it. In real time, the two female soldiers complained together, but the fact that they did so jointly does not make their complaint one. Each of them independently told her story and the events she experienced from the plaintiff personally. Similarly, I do not accept the argument that they coordinated versions prior to the publication of the article (as detailed above in paragraph 106).
- Defendant 2 confirmed that it did not record or make a record of additional conversations made regarding the plaintiff, other than the recordings. The ruling emphasized the importance of documenting investigative activities in order to formulate responsible press protection. One of the reasons for the requirement to ensure that the investigative activities carried out be documented and "documented" is in a case where the sources did not remove their immunity, and then "the responsible journalist is also required to be 'certified' in order to defend himself against defamation lawsuits" (Civil Appeal 9705/11 Berkowitz v. Kara, para. 44). 10.2014); The Regev case, paragraph 17). If so, the degree of importance of documentation and its absence should be examined according to the circumstances of the case. In our case, there is documentation of the interviews conducted with the complainants prior to the article, they waived their immunity and testified in court. In the absence of sources that contradicted their testimony, I did not find that the defense should be denied in this matter, even if it was desirable to document all the conversations that were held with various sources for the purpose of this article.
- As for the publication itself, it describes the events in a balanced manner, with reference to quotes from the complainants' statements, and it is clear that they are saying these things. The article does not draw conclusions, make a determination, or express a political opinion, beyond presenting the complainants' statements about the affair and the station's handling of the matter. Defendant 3 insisted in her cross-examination that they were careful not to add their opinions, nor to draw firm conclusions, but rather to present the complainants' description of them ( 194-195, paras. 32-33, 1-4). In her cross-examination, she confirmed that the claim that the plaintiff's dismissal from the station was politically motivated was familiar to them, and therefore they treated the claims raised in his case with caution. The article also presents the claim that the plaintiff's dismissal from the station was against the background of political pressures (some of which were revealed in the testimonies in Case 4000), while referring to a "tweet" published by the plaintiff on the Twitter network in real time on this matter (p. 196, paras. 23-24).
- As for the plaintiff's claim that they ignored other press publications that supported him, I did not find any substance in it. The fact that one journalist or another "tweeted" his commentary and conclusions does not obligate another journalistic body to "take his words into account" or to talk to him before publication. I found it to be added that defendants 1-3 testified that an unsuccessful attempt was made to obtain the clarification documents from Army Radio and the army (Transcript 3, p. 162, paras. 13-17). These documents were obtained in this proceeding only after an order was issued by the court that obligated the Ministry of Defense and despite the Ministry of Defense's objection to the disclosure.
- As for the plaintiff's claim that there were flaws in the demand to receive a response from the victim prior to publication, a review of the plaintiff's exhibits shows that the request to receive a response from the plaintiff was made via WhatsApp text message at 10:46 a.m., and his response was requested by 17:00 that day (the letter detailed the concrete allegations that arose in relation to him). A few minutes later (at 10:51 a.m.), the plaintiff responded to the call, asking for the identity of the person contacting him, and wrote, "Please indicate there so that I can know where to direct the libel lawsuit. A serious libel suit will be filed for any such statement or hint. The most serious thing you can think of...". In response, defendant 2 identified herself by name, as the editor-in-chief of Politikali, and presented the main points of the article. A minute later (at 10:53 a.m.), the plaintiff wrote: "Hello, the allegations are baseless and have been proven to be false. If things are made public, despite this announcement of mine, I will file a lawsuit for the enormous damage you will try to cause me!" (This response was included in the article in full.) About 40 minutes later, at 11:32 a.m., the plaintiff sent a warning letter from a lawyer.
The plaintiff had the opportunity to present his version in response to the request to him, the plaintiff had the opportunity to present materials that he had in his possession from a real time ago (such as the transcript of the conversation with Shouri and Dekel, and the collection of documents he presented to Birnit Goren), he also had the option of directing the defendants to speak with other people who in his opinion might present a different picture, and he had the option of requesting an additional time to provide a response if he was required - but he did not do so. Rather, he threatened a libel lawsuit and from his response it was clear that he had no intention of responding in a substantive manner and giving a detailed version beyond that.