As for Essenheim's alternative claim that there is journalistic privilege over the raw materials: the District Court insisted that the question of the journalist's right, separately from the source, to claim confidentiality has not yet been decided, but in the literature a position has been expressed that journalistic privilege should be recognized as a kind of institutional privilege intended to protect a broader public interest than the identity of the source. It was also determined that there is room for a "heel to thumb" expansion of journalistic privilege, so that it will also apply to statements "not to quote" (off the record). It was held that this is in fact a form of confidentiality of sources; that even a source who has chosen to be interviewed under a naked identity is entitled to choose that content that he gives to a journalist will be disclosed only partially; that it can be assumed that in an interview that spans long hours, the source may reveal details between him and the journalist he does not wish to be exposed to public, certainly in view of the relationship of trust that has been established between the parties over time; and that the journalistic need and the public interest in providing the information to the public support this expansion of journalistic privilege. It was further clarified that the confidentiality in relation to statements "not to be quoted" is also not absolute confidentiality, and that the court's examination is required in accordance with the rule Citrine with respect to the needs of the investigation, as is also customary with regard to other relative privileges. In view of the above, the trial court proposed to Eisenheim to transfer to him the raw materials relating to the statements "not to be quoted" for examination by the court. It was further held that with respect to the rest of the raw materials, the appeal was dismissed.
- On February 24,2026, after Eisenheim announced that he did not accept the outline proposed by the trial court, the appeal was dismissed in its entirety and it was determined that Essenheim must hand over all the raw materials to the police.
- Essenheim filed an application for leave to appeal to this court, along with a request to delay the execution of the decision that is the subject of the appeal. On February 25,2026, the judge's decision was given D. Barak-Erez According to which the request will be heard before the panel as soon as possible, and that for practical reasons, the decisions of the District Court will be delayed until a different decision is made.
The parties' arguments
- Essenheim argues at the outset that the request for leave to appeal raises fundamental legal questions that have not yet been decided, which justify a hearing in a "third incarnation". On the merits of the matter, Essenheim argues that the conditions for granting an order under Article 43 The Ordinance is not fulfilled - he disagrees that the issuance of a sweeping order with respect to all the raw materials is relevant for the purposes of the investigation; and adds that the burden of proving the relevance rests on the shoulders of the police, which did not meet it, since its request is no more than a fishing expedition for an investigation whose needs are vague. Moreover, the determination that the police should receive all the materials in order to examine which of them are relevant to the investigation, reverses the proper order of examination and will lead to severe and unprecedented harm to the values of freedom of the press. Since the relevance of the materials has not been proven, the condition of necessity, which is an even more stringent condition, is certainly not met. It was further argued that the Authority Criminal Appeal 761/12 State of Israel v. Makor Rishon Hameuhedeh (HaTzofeh) Ltd. [Nevo] (November 29,2012) (hereinafter: the Matter מקור ראשון) It was determined that the use of In section 43 The order will be used as a last resort, but the police have not done the minimum required to exhaust the direction of the investigation, such as conducting a supplementary investigation into Feldstein.
At the heart of Assenheim's argument is the argument that press freedom policy considerations justify a very limited use, only in the rarest of cases, of an order under Article 43 to the Ordinance with regard to journalistic materials. These considerations justify, according to Essenheim, the granting of a restrictive interpretation of the conditions of relevance and necessity and the issuance of such an order only after all other investigative activities have been exhausted. In this regard, Essenheim distinguishes between "two floors" - according to him, considerations of freedom of the press should be taken into account already within the framework of the court's discretion in relation to the granting of an order under Article 43 to the Ordinance ("the first floor"), and this is separate from the claim that the material is protected under journalistic privilege ("the second floor"). It was argued that this is not a claim of absolute confidentiality as the trial court interpreted it, but rather its position is that a concrete examination of each case and its own circumstances should be conducted. Thus, for example, a telephone conversation between a journalist and a source is not similar to hours upon hours of raw material; and the needs of one investigation are not similar to the needs of another investigation. In his view, in the circumstances of the case, policy considerations should lead to the conclusion that the raw materials should not be handed over to the police at all.