Similarly, it has been stated elsewhere that an application under Article 43 The Ordinance "requires the exercise of a separate discretion even before the question of privilege is discussed" (Criminal Appeal Authority 7835/16 Israel News Company Ltd. v. State of Israel [Nevo] (21.11.2016)).
- So it is. Article 43 separately and confidentiality separately. We addressed the question of confidentiality first, since this "floor" was at the center of the arguments of most of the parties in the proceeding before us, but in fact the order of things is the opposite: first we must examine the fulfillment of the conditions for granting an order under Article 43 to the Ordinance, and only after the conditions of the section have been fulfilled, may the privilege be examined on its merits.
Article 43 in the light of freedom of the press
- Article 43 to the order, entitled "Invitation to display an object"states as follows:
If a judge determines that the presentation of an object is necessary or desirable for the purposes of investigation or trial, he may summon any person, who assumes that the object is in his possession or possession, to appear and present the object, or to produce it, at the time and place specified in the order.
It should be clarified that the Ordinance defines an object "including a certificate, Document, PC Material or an animal." As determined in the case law, Article 43 The Ordinance applies at the stage of the investigation, prior to the filing of an indictment, and its main purpose is to advance the needs of the investigation ( El Mamoniain paragraphs 8-9). In order to make use of the section, it was determined that a number of cumulative conditions must be met. First, two prerequisites listed in the language of the section must be met: the presence of the object in the possession of the recipient of the order ("in his possession or possession"); andNecessity object for the purposes of the investigation ("necessary or desirable"). At the same time, it was held that even if the threshold conditions are met, the court has discretion as to whether to grant the order ( Sharon, at p. 764; Interest מקור ראשון, Lev Judgment of the Judge רובינשטיין). In this framework, the court must examine the The Contextual Context between the requested material and the needs of the investigation; as well as the degree of Relevance of this material (Additional Criminal Hearing 5852/10 State of Israel v. Shemesh, IsrSC 65(2) 377,388 (2012) (hereinafter: the Sun)).
- In the matter Sun It was held that "the content tests for the delivery of the material in the proceeding according to the Article 43 The Ordinance is not particularly stringent. As a rule, in the absence of a provision in the law that prevents the investigating authorities from examining this or that material, there will be no impediment to the delivery of the material to the police as long as there is a substantive connection between it and the investigation" (ibid., at p. 388). In other words, the precedent in practice in this court is that, as a rule, during the investigation stages, the police should be allowed to do its job and allow it to receive the materials it needs, and the court's involvement will be done to the extent necessary after the filing of the indictment, which is the "watershed". In practice, the use In section 43 to the Ordinance it is common and ostensibly testifies to the ease with which an order will be issued by virtue of it. Subsequently, it also emerges that the burden placed on the shoulders of the police in the application according to Article 43 The Ordinance, as a rule, is not particularly burdensome. As stated, it is required to show that the following conditions are met: relevance, necessity and substantive connection.
However, the set of considerations is different where there is a conflicting interest, and in particular one that is protected by confidentiality. Already today, the police have found to establish special instructions regarding the investigation or the receipt of materials from which may to raise a claim of privilege against them (even before the interrogee or the subject of the order raised the In practice claim of confidentiality before the investigating authority). Let us turn to, for example, the procedure of the Investigations and Intelligence Division 300.13.280 "Handling the request to remove the privilege of evidence (mental health treatment))" (December 19,2023), which refers to the privilege of a doctor, psychologist and social worker; and to the relevant police procedure in our case, which is titled, as stated, "summoning a journalist for interrogation and conducting a search." Hence, Essenheim's "first floor" argument - according to which the range of protected interests is wider than those that are directly protected by the privilege - has already found some expression in our legal reality.
- Usage In section 43 In many cases, it is done against third parties, but not all third parties are treated the same (see Amit Privileges, at pp. 1091-1111). As for myself, I am of the opinion that the order under Article 43 The ordinance addressed to a journalist, which requires him to provide material that he has collected in the course of his journalistic work, raises unique complexities that justify special treatment. The damage that may be caused to a journalist (and indirectly to the public as a whole) from the provision of information in his possession is inherent to his work, and I discussed this above. Therefore, policy considerations of freedom of the press require that extreme caution be exercised before issuing an order requiring a journalist to provide information he has collected in the course of his work. As stated, the police themselves also recognize that a demand to receive material from a journalist is not a trivial matter, and as proof I will turn to the police procedure, which states in section 1(c)) that "carrying out such investigative actions violates the principle of freedom of expression, freedom of the press and the public's right to know, on which the regime in a democratic state is based, and therefore the police are required to exercise great restraint in exercising its powers under the law and to exercise them only after exhausting all the alternative methods of investigation."
- In contrast to a confidentiality arrangement, in which the burden is placed on the person claiming it, and in our case the journalist, the burden is on the journalist, the burden is on the journalist to meet the conditions necessary to obtain an order under Article 43 The order is imposed on Requesting an order by virtue of, i.e., the police. In my opinion, considerations of freedom of the press require the imposition of a real burden on the police in the sense that the court will strictly observe, while being very careful, the fulfillment of the conditions in the framework of an application under Article 43 to the Ordinance. It is not enough to make a vague claim that the journalistic materials are relevant, and it is not enough to claim that the materials are necessary without showing that other investigative actions were exhausted before the order was requested - "As a rule, an application for an order by virtue of Article 43 No place will be submitted where there is an alternative way, the infringement of which is less infringement on the autonomy of the recipient of the order." מקור ראשון, a no-judge's ruling רובינשטיין). Article 43 The ordinance cannot be a means of a "fishing expedition" with a journalist's material, all the more so in view of the importance of maintaining one's role as the long arm of the public.
The introduction of considerations of freedom of the press therefore requires the court to strike a balance between them and the needs of the investigation already within the framework of the interpretation of the conditions for the applicability of the Article 43 to the Ordinance. In this regard, consideration must also be given to the nature of the requested journalistic materials - for example, raw material that includes hours and hours of filmed interview is not the same as raw material that includes a recording of a short telephone conversation. As we discussed during the discussion, sometimes the journalist accompanies the source, the interviewee or the subject of the documentary program for many months, so that the scope of the raw material that remains on the floor of the editing room is necessarily enormous. In addition, the more material that relates to the core of journalistic activity, the stronger the protection of freedom of the press is required, and accordingly, the burden that will be placed on the police to comply with the conditions according to Article 43 The Ordinance will be heavier, and the degree of meticulousness will increase in meeting each of the threshold conditions of relevance and necessity (with regard to the justification for being careful to distinguish between these conditions, despite the possibility of partial overlap between them, see and compare: David McCraw, Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information, 80 Alb. L. Rev. 1297,1318 (2016-2017)).
- If so, I accept Assenheim's argument that the protection of journalistic materials is in fact expressed in a kind of two-stage process. Article 43 Separately and confidentiality separately. First in the framework Article 43 to the Ordinance, by imposing a real burden on the police, to prove the relevance and necessity of the materials in order to be able to fall within the scope of the section. To the extent that the police meet the burden imposed on them, at this stage the journalist enters the picture, who will be able to claim that the materials are protected under journalistic confidentiality, which has also been expanded with respect to the content of the information. In this framework, he will be able to show that, for example, the material is "not to be quoted" or that the source of the materials is in a relationship of trust with the source that justifies protection. We will reiterate that this is a relative privilege that can be removed subject to the tests set out in the ruling Citrine. Because two of the three tests (relevance and necessity) were proven already in the first stage, within the framework of Article 43 According to the Ordinance, in practice, in most cases, at the stage of removing the privilege, the court must address only the third and final test - the vitality test, in which it must examine, as stated, whether the need for disclosure of the evidence in order to do justice is preferable to the interest that should not be disclosed.
From the general to the individual
- And now for our matter. It should be said by now, there is no denying that the circumstances of the case before us give rise to a certain complexity. It cannot be ignored that the requested materials relate to an interview given by a key witness, openly, regarding the affairs for which criminal investigations are being conducted (when the possibility of opening a criminal investigation into the affair of the night meeting following the interview was even explicitly mentioned during the interview itself (see p. 13 of the Magistrate's Court's decision of January 25,2026)). However, even after we have taken these circumstances before our eyes, I am still of the opinion that the police did not meet the burden imposed on it in the framework Article 43 to the Ordinance, for the following reasons.
- It is doubtful whether the police met the burden of proof Necessity The raw materials. Along the way, the police changed the reasons for which the materials were requested in a manner that raises questions. In the hearing before us, the police retracted the argument that the material was necessary for the purpose of examining contradictions between the various versions that Feldstein gave [it should be noted that in this regard I reviewed document B/1, which was mentioned in the Magistrate's Court's decision, and its content did not escape my view]. Instead, it was argued that the raw materials were required in order to understand "the dynamics that led Mr. Feldstein to give the things he said in the interview, which ultimately led to a new criminal investigation against another" (from the police's response to the request for leave to appeal filed on March 27,2026). In these circumstances, the changes in the position of the police in themselves cast a shadow over the strength of the argument regarding the necessity of the materials.
In any event, we are not dealing with the confession of a defendant and the defense's request to receive all the written and filmed material during the interrogations, in order to understand the dynamic between the defendant and the investigator, in order to examine the possibility of raising a minor claim. The dynamic between a journalist and a source is at the core of the protection of freedom of the press - the journalist has only himself and his ability to forge a delicate connection with his sources so that they will rely on him with the information in their possession. And as I stated above, the closer we get to the core of journalistic activity, the heavier the burden on the police to prove the needs of the investigation. I do not intend to determine that such a claim should never be rejected, but in the circumstances of the case before us, I do not believe that the police have succeeded in clarifying and insisting on the need to understand the alleged "dynamics" precisely by examining all the raw materials. In this context, we may refer to the words of the Federal Court in the matter Williams, which addressed a similar argument relating to the dynamics of the journalist-interviewee relationship, and noted the concern that such a claim would be raised again and again (although in that case the court ordered the disclosure of some of the requested material):