In my opinion, too, the privilege should apply to journalistic raw materials, even regardless of the question of whether it was explicitly or implicitly agreed that the material was "not for quotation". In other words, not only Confidentiality It is the materials that underlie the confidentiality, but also the manner in which they were obtained Relationship of trust that were forged within the framework of the delicate relationship between the source and the journalist, to the extent that such proof is proven.
- As a rule, we tend to distinguish between a "privileged person", who is the person for whom the privilege was created and who is regarded as a holder of the privilege (holder), and between the "beneficiary of the privilege", which is the person who is entitled to raise claims of confidentiality for the person who is privileged. Thus, for example, in the case of doctor-patient privilege, the assumption is that the patient is the holder of the privilege and the doctor is the beneficiary of the privilege, so that if the doctor is required to provide the medical material in the patient's case, he is entitled to raise a claim of confidentiality for the patient. As a rule, the person with privilege is also entitled to waive it. However, the question of who is the holder of privilege is not always so simple (Amit Privileges, at p. 352). Thus, for example, the confidentiality of the mediation process "is not only intended for the benefit of the parties to the mediation proceeding, but also for the benefit of the mediator, and even for the benefit of the mediation institution in general, in the sense of institutional privilege" (Amit Privileges, at pp. 589-590).
Who is the holder of journalistic privilege? In view of the public importance that should be seen in the disclosure of the information, I believe that, like the confidentiality of the mediation process, journalistic privilege is a triangle with three vertices - it is intended for the benefit of the The Source, of The Journalist, and of The public in general Institutional Confidentiality (institutional privilege). The justification for confidentiality is utilitarian and is intended to preserve the institution of journalism and enable the flow of information from the individual to the public through the journalist as an intermediary (for more on journalistic privilege as institutional privilege, see: Shiran Yaroslavsky Karni and Tehila Schwartz Altshuler Regulating Journalistic Confidentiality 10-11 (Policy Research 104, Israel Democracy Institute, 2015)). Recognition of journalistic privilege as institutional privilege tells us that the scope of the protection it provides is not derived from considerations relating to the source alone, such as the desire that his identity not be revealed or his request that certain information not be published. The scope of the protection is also derived from the public interest that the information will continue to flow on an ongoing basis to the journalist, and from him to the public, by preserving freedom of the press, and from the need for the institution of the press to be maintained as a professional institution, and especially as an independent institution, separate from the state authorities - the Fourth Authority.
- I believe that the journalist's obligation to provide raw materials that remain on the floor of the editing room (outtakes), although not necessarily confidential, can cause real harm to the journalist's ability to gather information, and accordingly, a real violation of the public's right to know. First, to the extent that the disclosure of such information becomes routine, the journalist may be portrayed as a tool in the hands of the investigative authorities, who provide them with information collected by him in the course of his job. "The obligation of a journalist to produce photographic raw material of an interview conducted with his source of information causes the journalist to become a 'witness of a lawsuit' against the interviewee, and such a situation harms the public's trust in the press and the transfer of current and free information from the public to the media."Other Order News Companies, as described in the judge's decision B. Sagi IIOther Appeal Israel News Company). The by-product, as we discussed above, will be a "chilling effect" that will lead to the "drying" of the sources and the cessation of the flow of information to the public. In this regard, the following are appropriate:
"An important condition for maintaining the said relationship lies in the source's knowledge that the journalist with whom he comes into contact does so in order to fulfill his professional role and not to serve other interests, which are external to the relationship between the two. Thus, even if the source did not demand that his identity be kept secret, in passing information to the journalist he entrusted the latter with the decision whether or not to include his name in the final publication. Similarly, even if the source provided information to a journalist without a demand that it not be published, he did so relying on the discretion of the journalist and his editors to decide which part of it would be published through the media in which they operate. He provided information to the journalist and relied on his judgment to see the journalist as an objective professional entity, acting for the realization of freedom of expression and the press, and not as someone who serves as a 'collection of material' for those with external interests or as their 'long arm'. Indeed, it can be assumed that even a source who did not demand confidentiality regarding his identity or the content of information he provided to the journalist - information that had it not been for the contact between the two would not have been transferred at all and it would not have been possible to request disclosure from the journalist - would prefer that the identity and information not be provided to those seeking disclosure in legal or investigative proceedings" (Yisgav Nakdimon , Journalistic Confidentiality 161-162 (2013)).