As to the argument regarding the exercise of freedom of expression in the private manner of the broadcaster, the Supreme Court added and ruled in paragraph 23 of the judgment that:
"As for the 'private aspect' of freedom of expression, a certain person does not have an unlimited right of time to continue broadcasting a program on public broadcasting. The existence of freedom of expression does not mean that every possible means of exercising freedom of expression is always open to the individual without restriction (The National Census Case, paragraph 19 of my judgment). This law applies to the petitioner's case."
Thus, the case law also dealt with the decision of the management that is applied from here on, and indeed determined that with regard to the broadcast schedule or the content from now on, the station's management has an authority that can be defined as decisive. However, the case law does not make any determination regarding a case in which there is a retroactive dispute regarding this or that statement and the question of whether the station's management is the one to determine whether it is a statement that falls under freedom of expression or whether it violates the rules of regulation, in the framework of the relationship between it and the broadcaster.
- In my view, the language of the contract in the present case, prima facie, indicates that the clause to clause 2.7 and the right of decision given to the station applies to a case in which it is possible to prevent the statement in advance, and not to the question of whether the statement constitutes a breach of the law and the agreement. In addition, I do not believe that the existence of a practice in the specific case has been proven, which expands the scope of the station's absolute discretion and decision. In these circumstances, I do not believe that it is possible to allow - without any anchoring - a draconian determination and accordingly the defendant will have the right to decide whether the broadcaster violated the rules of the regulation and, as a result, whether the agreement between the parties was breached or not.
- Accordingly, contrary to the defendant's argument as detailed in its summaries, the question of whether Zahavi breached the agreement between the parties by his statement, does not begin and end with the station's decision, but there is room to examine whether the statement actually violated the rules of the regulation. The problem is that in light of the defendant's interpretation, according to which it has the right to decide whether or not Zahavi violated the provisions of the regulator - an interpretation that I do not find to accept as detailed - the defendant did not make any claim in its summaries relating to the statement itself. Kerry did not address the question of whether or not this was indeed a statement that constituted a violation of the regulator's instructions. In its summaries, the defendant argued that this was an unacceptable statement, which deviated from the permissible framework, but she did not specify either sexual or some of the provisions of the law that this statement violated and in what exactly it violated the provisions of the regulator. In these circumstances, since I have determined that the defendant's claim should not be accepted, and accordingly the provision of clause 2.6 grants it the exclusive right to decide as to whether the regulation provision was violated or not - and as aforesaid, the defendant did not clarify which provision was violated in the statement - the law of her claim that Zahavi violated the provision of clause 2.6 of the agreement between the parties, since he violated the provisions of the regulator - should be rejected.
- For the sake of completeness, I will note that this conclusion is also supported by the testimonies that were heard in the proceeding, from which it emerges that hearing the statement in its entirety, in its full context, shows that Zehavi did not harm the "Keddoshei Yisrael" or the religious public as a whole. However, in his statement - which was made following a report and according to which 174 elderly people were found dead in their homes - Zahavi criticized the inaction of politicians, who, in Zahavi's view, instead of preaching only to preserve religion, added that they can just as well hang themselves with their tefillin. In this context, in the framework of his testimony, Zehavi testified in lines 23-27 on page 25:
"The witness, Mr. Zehavi: His demand that I apologize I felt that I had nothing to apologize for and he was also taking things out of context, he did not refer to all the things I said because then the context was understandable and made me hateful of Jews and haters of religion, which made me receive threats, get beaten once and again I am careful with my tongue, but he was not a figure with whom I could consult because he was not a professional."