To the extent that Assenheim's broader argument is not accepted, he is of the opinion that journalistic privilege should be recognized in relation to raw materials that were not included in the finished product. Essenheim insists that the trial court recognized only theoretically the need to expand journalistic privilege, because in the end, after Eisenheim refused the proposed outline (out of a desire to leave the possibility of appealing the rejection of his claims in relation to policy considerations), the trial court rejected the appeal in its entirety and ordered that all the raw materials be transferred to the police. Essenheim reiterates his argument that the privilege should also be extended with respect to the content of the information provided to the journalist, and only then should the tests for removing the privilege be discussed according to the rule Citrine. In addition, Essenheim insists on other interests that, in his view, should tip the scales towards the rejection of requests for an injunction, namely damage to his reputation and infringement of his proprietary rights.
- The police argue that the request should be dismissed out of hand, since a decision on the questions of principle is not required in the present case once the conditions for the removal of the privilege are met in any case. The police insist that the journalist's privilege is the product of case law, and therefore extreme caution must be exercised in determining its scope; and that the Essenheim approach is far-reaching, shifts the weight to the journalist with regard to determining the scope of the privilege, and does not allow judicial review of the journalist's decisions. On the merits of the claims, it is claimed that the interview relates to three criminal affairs that include, inter alia, serious security offenses; that the fact that what was broadcast in the interview is the product of a long relationship between Assenheim and Feldstein highlights the importance of seizing all the raw materials, and on the face of it, all the interview material meets the test of relevance; and that the police have no alternative way of accessing the information other than through Article 43 to the Order, not even by collecting additional testimonies from Feldstein. It was further argued that in this case the interest of confidentiality is reduced - the identity of the "source" is known, and therefore it is more correct to classify him as an "interviewee"; It has not been proven that Feldstein was given the right of veto regarding the publication of the materials or that there were materials that were defined as "not to be quoted", and therefore they do not fall under the obligation of confidentiality in the rules of journalistic ethics; The materials will be handed over to the police, which knows how to deal with sensitive material and specifically in relation to journalistic material, in accordance with the Investigations and Intelligence Division Procedure 300.01.227 "Summoning a Journalist for Investigation and Conducting a Search" (published on November 10,2020) (hereinafter: Police Procedure); And even if Feldstein is to be treated as a source, an implicit waiver of confidentiality should be attributed to him. According to the police's position, it is precisely its position that promotes the democratic values of freedom of information and the public's right to know. It was further argued that although according to the police, there is no need to decide the fundamental question of the applicability of journalistic privilege, the police's principled position is that journalistic confidentiality should not be extended beyond the protection of the identity of the source, and that confidential questions that may arise ad hoc can be dealt with, while examining the concrete circumstances. It was further argued that the holder of the privilege is the source and not the journalist, and that the fear of exerting pressure and manipulation on the source can be dealt with through judicial means in order for him to waive his confidentiality.
- Urich argues, in essence, that the application should be dismissed out of hand in light of the precedent established in the matter Urich According to which, as a rule, there is no right to appeal judicial decisions in the framework of criminal investigations, unless such a right is enumerated in the law - since such a right is not enshrined in respect of an order under Article 43 to the Ordinance. Urich insists that the determinations in the matter Urich willingness even with respect to third parties, even though a decision in their case can "terminate" the specific litigation against them; and in any event, customary practice cannot establish a right of objection that is not enumerated in the law. According to Urich, in the sense of more than necessary, the application should be rejected on its merits. According to him, Essenheim's position is far-reaching and results in absolute confidentiality on the journalist's freedom of editorial and on the journalist's creative discretion, without any condition or balance. In any event, Essenheim's argument with respect to the considerations that must be taken into account in the framework of granting the order relates to the concrete circumstances of the proceeding, and therefore does not justify an appeal in a "third incarnation". Similarly, it was argued that Essenheim's arguments regarding the relevance and necessity of the raw materials, some of which were not argued before the lower courts, should be rejected, and in any event they are rooted in the specific circumstances of the proceeding; and that Essenheim's argument regarding the exhaustion of other investigative avenues should not be accepted, since there is no equivalent alternative to the raw materials from the interview.
- Respondent No. 3, the Israel Broadcasting Corporation, concurs with Assenheim's position, and adds that the trial court's ruling that the journalistic privilege applies only in relation to statements made "not to be quoted", while retroactively examining the raw materials, harms journalistic work and the relationship of trust between journalists and sources; and that the trial court's ruling retroactively changes the rules of the game with respect to an interview that has already been given, and will lead to defensive journalism and harm to the public interest.
- Respondent 4, the Press and Media Council in Israel, which was joined to the proceeding in the Magistrate's Court as a "friend of the court", agrees with Assenheim's arguments, and adds that it should be determined that the holders of journalistic privilege are the source and the journalist, jointly and severally; and that the scope of its application includes all the raw material and not only "non-quotable" materials. Respondent 4 insists that today, with technological development, the definition of what constitutes "raw material" may be very broad and include many documentation materials, some of which are even unofficial, such as "WhatsApp" correspondence. Respondent 4 refers to the ruling of the European Court of Human Rights, which has consistently expanded journalistic privilege, even in cases where the source itself has been exposed or other investigative methods have not been exhausted. Respondent No. 4 insists on additional reasons for recognizing the privilege, beyond the purpose of freedom of the press, namely the fear of self-incrimination of the interviewee, of a libel lawsuit, of infringement of the privacy of third parties, or of the surrender of other journalistic sources. On the merits of the matter, respondent No. 4 is of the opinion that all other interrogation options have not yet been exhausted, and therefore a disproportionate violation of the journalist's confidentiality should be avoided.
- Respondent 5, the Association of Journalists in Israel, which was also joined to the proceeding in the Magistrate's Court as an "amicus curiae", insists that any information and material held by a journalist has the potential to expose sources, and therefore the information deserves protection within the framework of journalistic confidentiality. It was argued that in the complex daily reality of journalistic work, certainly in the digital age, it is difficult to distinguish between materials that can reveal sources and those that do not; and providing an opening for the delivery of raw material, even when the material is submitted to the court's vault, is capable of causing a "chilling effect" and harming the delicate relationship between the journalist and his sources. Respondent 5 further argues that the right inherent in journalistic confidentiality belongs to the public, and therefore it does not matter that sometimes the source is willing to reveal his identity.
Discussion and Decision
- At the outset, I found it necessary to briefly address questions of procedure, namely, the right of Urich to file a request by virtue of the Article 43 to the Ordinance; and the right of Essenheim to appeal the Magistrate's Court's decision.
- Who is it for? Article 43 To the command: The Magistrate's Court was of the opinion that Urich was not prevented in principle from filing motions under this section. My opinion is different.
In Applications Criminal Miscellaneous 296/18 Anonymous v. State of Israel [Nevo](March 15,2018) (hereinafter: the Matter Anonymous) I insisted that the "watershed" with regard to the discovery of evidence in a criminal trial is the indictment - while after its submission the defendant is entitled to conduct the main proceeding with "open cards", until the indictment is filed, the investigating authority is not obligated to disclose the investigative materials in its possession. I noted that Article 43 The Ordinance is intended for use only by the investigative and prosecution authorities - and that this can be learned in view of the name of the Ordinance and the location of the section in the Ordinance; in view of incidental statements made in case law; and in view of the customary practice whereby the police are the ones who turn by virtue of this section to the judge on duty. Section 5 of the Proposal also The Criminal Procedure Law (Enforcement Powers - Invention, Search and Seizure), 5774-2014, H.H. 867 (hereinafter: Suggestion Kindness) - which is intended to replace the Article 43 to the Ordinance - clarifies that the provision of the law is intended for the exercise of authority by a police officer, and in the explanatory notes It was noted that "the proposed law does not change the existing arrangement in this matter, but rather delimits its goals and boundaries.". It is also worth referring to what I wrote on the matter Anonymous With respect to the defense's ability to file an application under Article 43 to the order after the filing of an indictment, which is also applicable to our case: