The defendant further claims that Zahavi breached his duties under this section in a twofold manner - first, by making the extreme statement that violates the provisions of the law and regulations; and second, in its categorical refusal to accept the "directive and decision of the management" and to cooperate in order to correct the violation.
- As to the content of the statement, the defendant begins by pointing out that the event that is the subject of the hearing was not born in a vacuum, but rather that the defendant refers to the previous event that took place in July 2022, in which Zehavi wished fire and death wishes to the residents of the Channel 14 studio. According to the defendant, the statement constituted a crossing of a red line from the point of view of both the station and the regulator. Therefore, in that case, the station was forced to take severe measures, including the suspension of Zahavi - who expressed no objection to the suspension - the publication of a condemnation and at the end of the day an apology by Zahavi when he returned to the broadcast.
It was claimed that months later, Zahavi made the statement that was the subject of the hearing, which was not political criticism, but rather that Zahavi chose to attack a clear religious symbol (tefillin( and associate it with suicide wishes by hanging it. The defendant clarifies that the seriousness of the statement is learned not only from the widespread public outcry it aroused, but also from the position of the regulator, who categorically determined that this was a serious violation of the rules of ethics and imposed a significant fine of ILS 29, 000 on the station (Appendix 23 to Zehavi's affidavit). The defendant further argues that the plaintiff's claim that he directed his remarks only at "public representatives" does not dull the seriousness of the matter and the defendant's duty, which operates by virtue of a public franchise, to prevent the provision of a platform for death and suicide wishes in its broadcasts. It was claimed that under these circumstances, Zahavi violated the rules of regulation by making his statement.
- At the same time, the defendant emphasizes that the proceeding at hand deals with a breach of agreement and not with the question of whether the statement does indeed violate the regulation or is protected by freedom of expression. It was argued that the breach of the agreement focuses on the fact that, as will be detailed below, Zahavi refused to consult with the station's management and accept its decision regarding this statement, in accordance with his undertaking detailed in clause 2.6 of the contract. In this context, the defendant opens by referring to the testimony of Zehavi, in which he testified that Zelkovnik - the station's CEO and editor-in-chief - was the relevant senior management entity. It was argued that support for Zelkovnik's status can also be found in the testimony of Adv. Sommer, who confirmed Zahavi's subordination to the editor-in-chief, also by virtue of the practice in the industry and in radio. According to the defendant, in the present case, the condition in section 2.6 is met, since there was "doubt as to the existence of the laws". This was when the station's management saw Zahavi's statement as an unusual and extreme statement due to death wishes, contrary to Zahavi's position. According to the defendant, in such a case of doubt, Zahavi should have accepted the decision of the management's directive, i.e., Zelkovnik, according to which the statement was illegitimate, and Zahavi should have cooperated with the station in order to appease the opinion of the regulator and the listening public. It was argued that this decision and instruction was refused by Zehavi and that this is the "cornerstone" and the test in the case at hand, according to which the court must examine the question of breach of contract. According to the defendant, not only was it proven that Zahavi refused to accept this instruction and decision, but he even explicitly stated in his affidavit and in his interrogation that he did not consider himself subordinate to the editor-in-chief, and was not subject to the rules of regulation. It was argued that this position constitutes a fundamental breach of the contractual basis in clause 2.6. The defendant further emphasizes in this regard that in the framework of his arguments, Zahavi presented himself as an "employee" when it was convenient for him. It is argued that in light of this, the argument that he cannot wear an employee's hat when it is convenient for him is strengthened without obtaining the authority of his employer - the station, through the editor-in-chief.
It was further argued that Zehavi's breach of the agreement is not limited to the failure to accept the directive and the decision of the editor-in-chief, but also to a distorted conceptual and principled perception according to which the rules of regulation do not apply to him, despite the explicit provisions of clause 2.6. And although in the circumstances at hand, according to the regulator, a violation of the rules of regulation was committed in light of the extreme statement, and therefore a significant fine was even imposed on the station.
- According to the defendant, from all of the above it emerges that Zahavi did not meet his contractual obligations. The defendant further argues - more than necessary - that in any case the claim should be dismissed, since Zehavi did not meet the burden of proof that lies before him. Thus and first, it was argued that Zahavi's claim rested on an alleged breach of the station's commitment to him, which, according to him, sought to terminate his employment due to political considerations. However, according to the defendant, this claim regarding political considerations was made in vain and no evidence was brought to it, and in addition, it is concealed from Zahavi's continued work at the Maariv newspaper, which is owned by the same entity that owns the station.
It was further argued that there is no substance to Zehavi's claim, and accordingly the station is obligated to protect his freedom of expression without reservation, based on the provision of clause 2.7 of the 2007 agreement. This is because, according to the defendant, receiving an interpretation regarding the right to absolute protection would undermine the provision of section 2.6, which subjects Zahavi to the regulation and to the decision and instruction of the radio management. Moreover, it was argued that the language of the provision of section 2.7 indicates that it does not apply to regulatory proceedings. This is since the provision refers to "claims" from third parties, and not to "complaints" or "objections" by the regulator; Since the provision revolves around claims directed against the plaintiffs, this is when the regulator's complaints are directed only to the station; From section 2.7 applies to judgments, when the regulator does not issue rulings; and finally, since the clause is conditional on the broadcaster not preventing the radio from defending itself, it is clear that in a situation where the broadcaster is not sued by the regulator, he cannot prevent the station from dealing with it. It was argued that support for this interpretation can be found in the testimony of Adv. Sommer, who clarified in his testimony why clause 2.7 is not relevant in this case. It was further argued that it should not be inferred from the fact that the station protected Zahavi over the years in front of the regulator in support of the existence of an absolute duty as claimed by Zehavi. This is because, in this case, Zehavi's statement was not acceptable to the editor, and mainly because, unlike previous cases, Zehavi refused to cooperate with the station regarding the extreme statement.