As to the argument regarding the sending of the warning letter signed by an attorney prior to publication - there is no dispute that the object of the publication is entitled to act in this way (although I myself am of the opinion that a substantive and detailed response is preferable). In any event, accepting the position that publication should be stopped upon receipt of a letter from a lawyer is liable to cause a chilling effect, multiply lawsuits, and harm to freedom of the press and freedom of expression, especially in investigative journalism - and I do not accept it.
As for the plaintiff's claim as to the location of the response, the decision on where to place the response is at the discretion of the editor. In this case, the decision to place all the responses received together at the end of the article is reasonable and I have not found that there are reasons to determine that the defense is denied for this reason. Nor did I find any flaw in the claim that there was a flaw in the fact that in the framework of the response on his behalf quoted in the article, things that were written in the warning letter sent by his counsel were not included (his response to the publication as conveyed in a text message to the editor of Politikaly was fully integrated, and the warning letter did not include a positive version or a concrete reference to the allegations against him).
- As for the plaintiff's claims that the publication of his name negates the presumption of good faith. See the above on the question of the public interest in the publication of the plaintiff's name. It should be added that the decision to publish the name in the circumstances of this case can be viewed as a failure in the editorial space that should be left to the media, since "as is well known, the requirement of good faith sets a standard of reasonableness and not of completeness" (Hamdani case, paragraph 118, where the District Court noted the space that should be left to journalists, especially with regard to editorial considerations, and the fear of a deterioration that would lead to a chilling effect). Defendant 2 was asked about this in her cross-examination, and clarified that the question of publication of the name had been considered by them (as well as in relation to the disclosure of the names of the other media persons who came up in the article) (Transcript 3, p. 181). The considerations that were considered and the decision made are within the scope of the editor's discretion in the circumstances of this case, and there is no reason to interfere with them and deny the defense, even if it was possible to reach a different decision.
- I will now proceed to examine whether defendants 1-3 have the defense of good faith in relation to the subheading - as stated, at the beginning of the section dealing with the plaintiff appears the subheading "I masturbate to the wall". This is a quote from "Dana" in the preliminary interview that was conducted with her, and it was not formulated by defendants 1-3. I am aware that it was said only by "Dana", but from the moment the two complainants presented a similar version of the use of vulgar and disturbing language, the fact that only "Dana" mentioned this phrase in her preliminary interview does not make the decision to use it in the article unreasonable. However, of all the expressions that appear in the article by the complainants, this is undoubtedly one of the harshest and most blatant expressions. The question arises, therefore, whether these circumstances justify intervening in the choice of the title, in a manner that negates the defense of good faith for the defendants. After some deliberation, I came to the conclusion that the answer to this is no.
The courts have often insisted that "even if the court believes that things could have been edited differently, one must guard against legal interference in the journalistic work and the autonomy of the editor, except in those cases in which the court is impressed by a tendentious-manipulative-distorted editing to the point of distorting things" (Dayan Civil Appeals, 518)). In the Hamdani case, the court insisted that broad discretion should be given to the media in matters of editing, since being too stringent raises a concern that the media will adopt "self-censorship" (ibid., para. 118). See also: Civil Appeal 7380/06 Heter-Yishai v. Gilat, paragraphs 40-41 (March 2, 2011), where it was held that even if the editor and the publisher could have chosen a different word to use in the title (instead of the word "gang"), it was a question of good taste and not defamation, and that "It is not the role of the court to choose one way or another for the advertiser."