In light of all the above, it was claimed that Zahavi did not prove a fundamental breach of the agreement by the station, which entitles him to monetary compensation.
- The defendant further argues that in this situation, in which Zahavi made a serious and dangerous statement and refused to apologize for it, she had the full right to cancel the contract immediately due to a fundamental breach. It was argued that notwithstanding the aforesaid, on November 14, 2022, the defendant made a more proportionate and moderate decision, and accordingly Zehavi was temporarily suspended. It was claimed that this was an "intermediate way" intended to allow Zahavi to come to his senses and fulfill his contractual obligation. According to the defendant, the professional and legal basis for this is anchored first and foremost in the provision of section 2.6, which requires action in accordance with the rules of the regulation. It was argued that when a statement poses a risk to the defendant, the editor-in-chief is required to exercise his authority and reversely freeze the situation, since the station should not be expected to leave the microphone open until the risks have been removed. It was claimed that this tool of suspension was used earlier following Zahavi's statement in the context of Channel 14. Accordingly, it was argued that past conduct shows that the power to suspend is a professional and legitimate tool, without this being considered a breach of the contractual system. It was claimed that during the suspension, the station acted in good faith when it was careful not to download the details of the program from the radio's website, in order not to harm Zahavi and to preserve his dignity. It was also claimed that the station even conducted negotiations in order to find a solution that would return Zahavi to the broadcast and even refrained from publishing an announcement of the final end of the relationship, in the belief that a solution would be found that would bring him back to the air. It was argued that the suspension remedy is a proportionate relief since on the one hand it is not final, but at the same time it allows each of the parties to mutually terminate the suspension by cancelling the agreement. The defendant further argues that insofar as Zehavi believed that this remedy was out of place, he could have announced the cancellation of the agreement himself. In these circumstances, it was argued that Zahavi could not refuse the radio proposals to resolve the crisis and on the other hand not reduce his damages by canceling the contract. The defendant further argues that in any event, the residual relief of the suspension can be dressed as a nullification remedy and it can be regarded as a remedy of de facto cancellation. It was argued that given that it was proven that Zahavi had breached the agreement in any case, even wearing the guise of cancellation on the suspension action would not entitle Zahavi to compensation.
- It was further argued that in a situation in which Zahavi initially evaded any interaction and then allowed his lawyer to argue with the station, without any effort or suggestion; whenhe refuses to accept the rules of the regulation and the authority of the editor-in-chief, sanctions are imposed on the station in considerable sums, then the defendant's demand for guarantees in order to ensure that Zahavi's violations will not be repeated - is reasonable. As for the guarantees, it was argued that - contrary to Zahavi's claims - this is not necessarily a financial guarantee, but rather the creation of a mechanism that will enable Zahavi's return to broadcasting, a mechanism of mutual trust and professional readiness, and a practical and clear commitment that the broadcast will continue to be carried out with the authority of the editor-in-chief and the limitations of the law. However, according to the defendant, not only did Zahavi refuse to apologize or refrain from proposing alternative solutions, but he moved on to a personal attack against Zelkovnik, when he called him a derogatory nickname and thus thwarted the possibility of returning him to broadcast.
- The defendant further argues that the claim of infringement of the plaintiff's moral right should be rejected outright, since the plaintiff did not prove the basic conditions for the existence of the cause. It was argued that the name of the program "Nervous Zahavi" does not constitute a "work" protected by copyright. It was further argued that the defendant was fully entitled to place alternate broadcasters in its broadcast slot during the period of the plaintiff's suspension, in order to maintain a continuous and proper broadcasting schedule. As for the aforementioned broadcast, it was claimed that in any event, during the investigation of Zahavi, it became clear that the broadcasters who broadcast the relevant broadcast strip did not do so under the name "Nervous Zahavi" and that these were well-known broadcasters with an independent reputation who had no connection to Zahavi or his program. It was further claimed that Zahavi changed legal definitions throughout the proceeding according to his convenience - once as a business partner, once as an employee and once as a creator with moral rights - which proves the unreality of this ground. It was argued that since the existence of any objective defect in the work has not been proven, and since the plaintiff has no proprietary or moral right in the station's broadcasting strip, this element in the claim should be dismissed in its entirety.
The defendant further argues that Zahavi's claims regarding "contractual imprisonment" or "imprisonment of his goodwill" should be rejected, and clarifies that these are new factual claims, which constitute an expansion of a prohibited front and suppressed testimony, in contravention of case law. In this context, it was claimed that the defendant acted fairly and with great patience and left the details of the program on its website in order to preserve Zahavi's dignity, to prevent further public harm to him, and out of a genuine hope and sincere intention that the plaintiff would come to his senses, agree to apologize and return to broadcast, and not out of extraneous motives of exploiting the brand. At the same time, as detailed, it was claimed that the defendant never prevented Zahavi from acting to formally terminate the contract, but he chose not to do anything, did not ask to be officially released from the contract, and preferred to leave the situation dimmed, in order to establish an artificial compensation claim worth millions of shekels without performing any actual work.
- In addition, the defendant argues that Zahavi's claim for defamation should be dismissed. As to this, it was argued that Zahavi did not meet the most basic burden of proof required to prove a cause of action, since he did not present any evidence that the defamatory publications in the general media were made by the defendant or on its behalf. It was further argued that in this regard, a complete legal distinction should be made between the official and substantive statement issued by the defendant in real time and independent articles by third media entities, such as the Newzly website (Appendix 42 to the plaintiff's exhibits), over which the defendant has no control or editorial responsibility. Moreover, it was argued that the condemnation notice issued by the defendant constituted a factual, operational and dry report regarding Zehavi's suspension due to his remarks, a request that is the station's duty as a reporting and supervised public body. It was argued that this notice was protected under the protections set forth in the Prohibition of Defamation Law, including the defense of truth in publication and the defense of good faith in the framework of "reasonable action in the circumstances of the case" under section 15(2( of the Law, since the defendant was required to calm the situation and condemn a statement that encourages suicide in its broadcasts.
- Without derogating from all of the above, it was argued that all of the plaintiff's compensation claims should be rejected in the absence of any evidentiary or factual basis - and this is also the possibility of allocating improvements that were given to the plaintiff by the court, which allowed him to submit supplementary affidavits that allowed him to submit supplementary affidavits It was argued that with regard to proving the damage, the plaintiff completely failed to prove the amount of the defendant's monthly consideration in the sum of ILS 50, 000, since he did not attach any evidence indicating that he actually received this payment. Moreover, without derogating from its claim that no payment was proven, the defendant claims that in any event, it became clear in Zehavi's cross-examination that as of June 1, 2018, the monthly consideration was reduced to only ILS 25, 000 as part of an addendum to the lawfully signed agreement (Appendix 9 to the plaintiff's exhibits), and therefore this is the maximum ceiling amount for each calculation.
Moreover, it was claimed that Zahavi had radically failed to fulfill his basic duty to reduce the damage. This was when he explicitly admitted in his cross-examination (page 60, line 25 to page 63, line 11( that he had not approached any alternative media outlet, had not offered his services to any other radio platform, and had not made any attempt to find an alternative source of income as a radio broadcaster since his suspension. It was argued that this complete failure to reduce the damage completely undermines the plaintiffs' entitlement to any compensation and establishes them contributory fault at a rate of 100%. In addition, it was argued that Zahavi's choice not to take any action omits his claim that "the market was blocked to him" and that this too would omit the ground under the demand for payment of compensation for non-payment of the contractual consideration.