Even the other sentences quoted by the complainant in the interview: "We still couldn't put a finger on the fact that we were attacked. We were there in a situation that was vulnerable, that we had no protection, that we were exposed, that he could do whatever he wanted."I feel abandoned and nothing has changed; "It's clear that I'm in pain and threatened, partly because I'm a woman, but also because now I'm in a situation she's abandoning" - all of which constitute sharing her feelings about the events - both in real time and following the publication of the article in Politikaly. The complainant also explains later in the interview the disappointment and sense of abandonment she feels today at the fact that a number of media people came to the plaintiff's defense after the publication of the article in Politikali. It is therefore an expression of opinion, criticism and sharing of the complainant's subjective feeling, both about the events in real time and about the reactions received following the article.
- In the case of a New Contract Association, Justice N. Sohlberg noted that policy considerations may also influence the decision regarding the classification of expressions and "tip the scales towards the interpretation of the expression at issue as an expression of opinion, which is further from the definition of defamation, and not as a factual description" (ibid., at paragraph 31). In our case, the fear of creating a chilling effect in interviews with complainants constitutes a consideration for determining that this is an expression of opinion and not a fact. To be precise: this does not provide immunity or protection against false complaints or libels, and one must be careful about this. However, in a situation where the facts underlying the matter have been sufficiently established, there are no indications that this is a libel, and there is a logical and proportionate connection between the facts and the feelings - preference should be given to interpreting the phrases as deviating from their linguistic meaning, and as reflecting the complainant's personal feeling and subjective experience (on the way in which victims of sexual offenses experience the characteristics of the institutionalized media's attitude to interviews with them, For the importance they attach to the media's support for their narrative and the fear of creating a chilling effect, see: Hadar Danzing-Rosenberg Anat Peleg, "#I_Too Influence the Trial?The Perspective of Victims of Sexual Offenses on the Question of the Influence of the Established Media and Social Networks on Law", Mishpatim on the website 14, 60, 77-78 (2020)).
- In view of all the totality that has been detailed, I found that the matter should be classified as an expression of opinion and sharing of the complainant's feelings about what she experienced, and not as a determination of fact. However, the classification of expression as an opinion does not exclude the possibility that it will constitute defamation, since even the expression of an opinion can fall within the definition of defamation according to the definition of the law.
- I considered whether in a case where the facts turn out to be true, there is room to determine that the opinions and feelings based on them do not constitute defamation. This is based on the assumption that the ordinary viewer is aware that in an interview with a complainant about events she has experienced, she may express what is on her heart out of a storm of emotions and using harsh expressions. Although the case law recognized the possibility of determining that an expression of an opinion would not be considered defamation even when it was a harsh and poignant expression, the cases in which it was so ruled dealt mainly with political discourse and when the object of the publication was a public official (the New Contract Association case at paragraph 33; Civil Appeal (Tel Aviv District) 26523-09-14 Darzia v. Konik, paragraph 7 (May 7, 2015) where it was held that if the listener understands that what was said in the interview is a subjective opinion of the interviewee, it is not defamation. The court noted that the remarks were made within the framework of freedom of expression in the political sphere by a member of the coalition in relation to a member of the opposition). In our case, it is not necessary to decide on this question, since even if it is determined that the publication amounts to defamation, it is protected defamation. And about that now.
- The "classic" defense available to a media organization is the defense of responsible journalism. As stated above, in the matter of a civil appeal, the judges detailed relevant, but not exhaustive, tests for formulating the standard required for the applicability of the defense. In our case, defendants 4 and 5 did not conduct independent investigations prior to the publication of the article, except for reviewing Politikali's investigative report and conducting a preliminary conversation with "Dana" before the interview with her. According to the Channel 13 version, the researcher on their behalf checked in the preliminary conversation with "Dana" that no new facts emerged, and even after the interview with her, it was made clear that she had not changed the facts and did not add facts about those included in the original article (Transcript 3, p. 200, Question 1; p. 202, paras. 16-18).
- The question of whether, even though no independent examinations were carried out, Channel 13 has responsible press protection is not required to be decided in this case, since the facts underlying Dana's words (touching and caressing against her will) were protected by the truth of the publication, as determined above after hearing the complainants' testimonies. The rest of the things in the interview with her amount to expressing subjective feelings, which cannot be confirmed or refuted (and there is a correspondence between the feelings expressed by her and the facts that have been protected by the truth of the publication).
- The editor of the program explained in her cross-examination that in light of the public importance of the investigation, they asked to cover it, they approached Politikali in order to connect them with one of the personal cases included in the article, and they referred them to "Dana." She clarified in her cross-examination that they did not seek to deal specifically with the plaintiff, but rather with the phenomenon (Transcript 3, p. 200, s. 33; p. 201, paras. 1-10). Indeed, the opinions and feelings expressed by the complainant are difficult, and the question of whether there was room to edit or censor her words may have implications for establishing or negating the required element of good faith. In this regard, the editor of the program explained in her cross-examination: "We don't edit such segments, certainly not of complainants, certainly not in such a sensitive case" (p. 202, question 10) and also: "You yourself say that these are her feelings, that we just gave them space and I don't think it's moral to have a complainant's feelings about sexual harassment whether she feels promiscuouswhether she feels threatened" (p. 202, paras. 29-30); And also: "She said, 'I feel abandoned,' these are her feelings, and I, as stated, will not edit the feelings of an interviewee when the actual facts have already been published in Politikali's investigation" (p. 203, paras. 22-24).
- I find this approach to reasoning in the circumstances of this case, in which there is a congruence between the feelings expressed by the complainant and the facts on which they were based. In another hearing 9/77 Israel Electric Company in Tax Appeal v. Haaretz Newspaper Publishing Ltd., IsrSC 32(3) 337, 349-352 (1978), it was held that the expression of an opinion does not have to be factually correct, provided that a reasonable person could have deduced the expression of the defamatory opinion from the correct facts on which the opinion was based. In the Ben Gvir case, the logic of this requirement was explained, according to which when the listener or reader knows that the advertiser is expressing an opinion, his attitude toward its content is more cautious and he is aware that it is possible to disagree with the statements and question their validity and correctness (ibid., 107). In our case, the metaphorical expressions used and based on Dana' s subjective feelings, even if they are sharp and unpleasant to the ear, do not deviate from the bounds of reasonableness in relation to the facts that have been proven. Therefore, it is necessary to conclude that an ordinary viewer who watched the interview understood that these were only subjective descriptions and feelings of Dana, which were presented separately from the acts attributed to the plaintiff and proven, and he was not denied the possibility of disagreeing with and criticizing them.
- Moreover, in this case, beyond the editor's decision not to edit and censor the complainant's words in her interview, the rest of the editorial choices were "cautious" and moderate. Thus, there is no mention, reference, caption or quote of the more blunt phrases that came up in the article in Politikali. Similarly, during the interview with "Dana", the caption "Run" at the bottom of the screen reads: "A senior editor touched me and my friend in the thigh and back several times" without the plaintiff's name being written. The wording of the caption running on the screen, without mentioning the plaintiff's name, and in a manner that adheres to the facts only (without emphasizing the harsher expressions in which "Dana" used to describe her feelings) shows that Channel 13 has adopted editorial considerations that seek to balance the value of giving a voice to the complainant and her feelings without editing and without "censorship", and minimizing the harm to the plaintiff. And this is how the editor explained the editorial considerations in this case: "We let her speak her feelings, I don't think it's moral to edit a complainant of sexual harassment, she didn't change anything in the facts, [...] It is important for me to say that many of the things that were said were not included in us, such as the title [...], of the very blunt things that he is, they claim that he did and said that we did not include in our case" (Transcript 3, p. 203, paras. 28-33).
- This conduct as a whole shows that the balance made by the program's editors is reasonable and meets the requirement of "good faith" under section 16(a) of the Law. Similarly, there are no circumstances for its revocation under section 16(b) of the Law. The fact that the expressions were classified as an expression of opinion also tipped the scales to the determination that "we are not dealing with an intention and potential harm that is beyond reasonable, so that they will lead to the negation of good faith" (New Contract Association, paragraph 39, where Justice N. Sohlberg noted that "the considerations used in relation to the interpretation and classification of the publication are also applicable to the question of the applicability of the protections of the law" and that when it comes to expressing an opinion, the potential for harm is less).
- As for the plaintiff's claims that no preliminary examination was carried out on "Dana" and its reliability. See what is stated in the analysis regarding defendants 1-3, and the lack of relevance to this.
- As for the claim of flaws in the demand to receive the victim's response prior to publication, the evidence indicates that a representative of Channel 13 contacted the plaintiff on WhatsApp at 14:37 on the day of the broadcast in order to receive his response in the following version: "Following the investigation into the sexual harassment on Army Radio, we will discuss the issue today on the 19:00 edition and will talk specifically about your case. It's important for us to get your response." A few minutes later (at 2:42 p.m.), the plaintiff replied as follows: "... As I have already said, these are lies that have been refuted in real time. I recommend not getting caught up in slanderous statements and lies [...]" (Exhibit 5 to the affidavits of defendants 4 and 5). Thus, it appears from the aforesaid that the plaintiff knew that his case would be discussed specifically, and even responded to the request immediately. In his response, he did not present a detailed version, did not ask for additional time, and did not even ask to speak with them before publication, but recommended that they "get caught up in lies and slander." If so, and in view of the aforesaid, in the circumstances of this case, it seems that the response time given to him is sufficient.
As for the claim that Channel 13 deliberately refrained from informing the plaintiff that an interview with one of the complainants would be held in his case, I did not find any substance in it. As part of the appeal to him, it was made clear to him that they would speak specifically about his case, and that this would meet the required requirement for detail (especially at the time the article in Politikaly included extensive quotes from the complainants). When the show's editor was asked in her cross-examination why the plaintiff was not invited to be interviewed on the return broadcast as well: "... This is a man who worked in the media, including at Channel 10, and if he wanted to, he would pick up the phone and come for an interview, I would never have told him "I'm not ready"... If a person wants to come, gladly, it is not implied by his answer" (Transcript 3, p. 206, paras. 6-12). I find to add that a perusal of the summaries of the reply shows that even if the plaintiff had been told that "Dana" was going to be interviewed, and even if he had been invited to the interview, this would not have changed him as far as he was concerned, and in fact it seems that apart from not broadcasting the interview with her, any other action is not possible or reasonable in his view.
- Before concluding this section, I would like to add, in the margins and beyond what is necessary, that if I had determined that the article published in Politikaly does not enjoy the protection of the truth of the publication, a difficult question would have arisen as to whether the standard of responsible journalism protection is met for defendants 4 and 5, who admit that they relied mainly on the investigative report and did not conduct independent investigations.
As a rule, failure to comply with the requirement to take action that bases the publication on reliable sources and verifies the facts in the publication may negate the recognition of the protection of responsible journalism. In the case of a re-publication or a publication that reviews a previous publication, the balance between the tests may be different. This question was not clarified in the case law regarding re-publication (in the Shaul case, which dealt with sharing on social networks, an approach was expressed according to which the more serious and in-depth the original publication is predicted to be, and the person behind it is an entity or person with credibility and expertise in its field and is known to do so (such as a serious media outlet, a renowned academic institution, etc.), it may be protected in favor of the sharer).