- The press is perceived as the one in charge of collecting information and publishing it to the public, and it is not for nothing that it has been dubbed the "Fourth Authority" or "the watchdog of democracy(More on this see Amit Privileges, at p. 841). Freedom of the press has a public-institutional value: "Freedom of the press [is] a right like many other fundamental rights, as well as liberty like other freedoms; and it is neither a right of the press nor a right of a journalist. It is the right of each and every one of us. is the right of the individual" (emphasis added) (Haim Cohen, "Freedom of Expression and the Rights of the Individual" Journalists' Yearbook 189,189 (Yehuda Gotthelf et al., eds., 1948)). Thus, it was also held that "freedom of the press embodies not only the right of the journalist, but also the right of every individual in society to enjoy the fruits of the work of the press and the public interest in its very existence" (Matter Dayan, at p. 724).
- In the hearing before us, Essenheim insisted that both the police as an investigative authority and the journalist have a common public interest in discovering the truth. However, unlike the police, the toolbox in the hands of the journalist is very limited. He has none but himself. Indeed, the journalist's work relies to a large extent on the relationship of trust he builds with his sources, a delicate relationship that is forged step by step, sometimes for years, until the moment the information is revealed to the public. The image of the journalist, who is perceived as a professional entity who works for the public interest to expose information that should be disclosed, is what opens doors and opportunities for him that are not open for everyone. It is the one that gives him the freedom to be present at the events and to cover them. As mentioned, the public has an interest in having that information see the light of day, and sometimes, this is the only way the information is even exposed.
- It is clear that there is a direct relationship between the scope of the protection afforded to freedom of the press and the ability of journalists to carry out their work faithfully. Infringement of freedom of the press by way of obliging the journalist to provide information that has come to him because of that delicate relationship with his sources, even when the sources are not secret or anonymous, raises a real concern of a "chilling effect." The journalist may not be perceived as the long arm of The public, but as the long arm of The Police, lest "the journalist turn from a reporting entity into a kind of 'police agent.'"צו Other (Shalom Petah Tikva) 40461-06-19 Media Network Ltd. v. Israel Police, paragraph 34[Nevo] (4.8.2019)). A similar concern may arise if the journalist is perceived as an arm of the The Court. If sources fear that information they have given to a journalist will eventually end up in places they did not intend, it is possible that they will not provide the information in the first place. It is possible that the journalist's presence at events will be reduced to non-existent. After all, "a press without sources of information is like a stream of disappointment whose waters have dried up, and the freedom to publish it then becomes meaningless" (Matter Citrine, at p. 364). The public's reluctance to disclose information to journalists will ultimately lead to a violation of the public's right to know, and therefore we must protect. As is well known, one of the legal ways to protect the values and interests that society wishes to preserve and promote is by recognizing confidentiality, and this is what we will now discuss.
Confidentiality of Original Journalists
- Rule Citrine recognized for the first time the existence of journalistic-source privilege. The rationale underlying the privilege is understood and we discussed above - to incentivize sources to provide a journalist with information of public interest, for the purpose of publishing it to the public, without fear that the publication of the information will harm them. This privilege stands alongside the professional privileges in the Evidence Ordinance [New Version], 5731-1971 (hereinafter: The Evidence Ordinance), however, it differs from them. While the other statutory professional privileges are intended to provide the patient or client with a protected space in which he will be able to expose himself and disclose information freely, without fear, for example, of violating his privacy or self-incrimination, the journalistic privilege is actually intended to promote the disclosure of information to the general public.
- Confidentiality, and journalistic privilege in particular, prevails throughout the criminal proceedings. Article 52 of the Evidence Ordinance states that the provisions of the Chapter 3 The Evidence Ordinance, which deals with "confidential evidence", will apply "both to the delivery of evidence before a court and tribunal and to its delivery before an authority, body or person authorized by law to take evidence". Therefore, it was determined that the privilege also applies to the stage of the police investigation and is not limited only to the trial stage. It was also determined that the provision Article 52 The Evidence Ordinance also applies to the journalist's privilege, even though he is the creator of the case law and is not subscribed to the Evidence Ordinance (see the מקור ראשון, paragraph 88 of the judge's judgment א' רובינשטיין). Therefore, even though we are interested in the investigation stage, we are still required to examine whether the journalistic privilege applies in our case.
- More in the Rule Citrine It was held that in contrast to important public interests of freedom of the press, the collection of vital information and its publication to the public, there are other, no less important public interests of the administration of justice and the discovery of the truth. Therefore, it was held that this is a relative privilege that the court may remove (like any privilege created by case law, and similar to most of the privileges in our legal system). In the Rule Citrine A three-pronged test was established for the removal of the privilege, which includes three cumulative conditions that embody the balance that the court is required to strike between the interests of discovering the truth and the public interests of freedom of the press, and the conditions are: Relevance The information requested according to the accepted tests; Necessity the information because there is no other evidence on which to rely; andVitality The information for the administration of justice on a matter is substantial and has material consequences. With regard to the last test, I have seen to clarify that it seems to me that it contains the formula of the balance that is accepted in the relative privileges listed in the Evidence Ordinance, according to which the court will remove the privilege if "it finds that the need to disclose the evidence for the purpose of justice is preferable to the matter that should not be disclosed" (see, for example, Section 50A(a) to the Evidence Ordinance. See similarly Sections 44(a), 45(a), 49(a)-50(a) to the Evidence Ordinance).
- 0024. And to be precise: The fact that privilege is not absolute but relative, None It means "that the privilege is breached by every common spirit" (Miscellaneous Criminal Applications 8252/13 State of Israel v. Shiner, IsrSC 66(3) 442,477 (January 23,2014)). My friend, the judge א' שטיין, has argued in the past that after the court examines the necessity of the classified evidence, and after examining the question of whether the disclosure of the evidence is preferable to the preservation of the protected interest, in the case of a "tie", a decision must be made in favor of the privilege (Alex Stein "Bank-Customer Confidentiality in the Law of Evidence" Law 25:45,60 (5755)). These words were indeed made regarding bank-customer privilege from the perspective of civil law, but in my opinion they reflect the approach according to which once the legislature or the court recognizes the privilege, the values and interests underlying it should be given real weight.
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- It should also be noted that the Civil Appeal 6872/11 Cohen v. Ben David [Nevo] (13.2.2012) The Judge v. Hendel The question of whether the journalistic privilege also applies to the court, so that no court is permitted to review the material. In this framework, the judge Handel Referred to the balancing act that the court is required to carry out between the interest of freedom of the press and the interest of discovering the truth, which requires judicial discretion in the broad sense, and held that the possibility that the court will examine the material is sometimes necessary (see also Regulation 59(b) To the Civil Procedure Regulations, 57792018 - "If a claim of confidentiality is made regarding a question or a document, the court may review the document in order to decide whether there is substance to this claim"). The claimant can claim that if this is the case in civil law, all the more so in criminal law that deals with criminal law.
- As to the scope of the application of the journalistic privilege. In the Citrine It was determined that the privilege applies in relation toSources The journalist's information (ibid., at p. 360), but the court was not directly addressed as to whether this is an exhaustive arrangement or whether the privilege may also apply in relation to other types of information. The question of the scope of the application of the privilege arose in the matter מקור ראשון, where the confidentiality was also requested regarding information collected by the journalist. The Judge רובינשטיין Understand the flavors that support the concealment Information - Sometimes, the information itself can lead to the disclosure of the identity of the source, and therefore, in order to protect sources, information that may lead to identification must also be protected; and the journalist's obligation to disclose the content of the information may lead to the journalist not being exposed to information that should be published and brought to the public's attention. On the other hand, it was held that excessive expansion of the confidentiality would lead to a violation of the disclosure of the truth, may lead to the exploitation of the confidentiality by the flow of selective and tendentious information to journalists, and constitutes an internal contradiction, since journalistic privilege is intended to encourage freedom of expression. At the end of the day, it was determined that the privilege should be expanded to apply to journalists as well. Information that may expose the Identity source, and all subject to the tests set out in the Citrine regarding the removal of confidentiality. It was further held that "In view of the implications of the journalistic privilege, it is appropriate that its scope, as well as its other meanings, develop in accordance with the concrete needs of the Halakha, step by toe" (Matter מקור ראשון, paragraph 81 of the judge's judgment רובינשטיין).
It seems that the time has indeed come to expand the scope of the "heel to thumb" privilege.
- The District Court was of the opinion that the journalistic privilege should also be extended with respect to raw materials that were determined to be "Not to quote" (off the record). The District Court recognized that a source may choose that the content it provides to a journalist be partially disclosed. In this framework, it was determined that in the relationship that develops between the source and the journalist, in the free conversation that develops between the parties, the source may fail to speak his language or to provide personal details or to express a free position without his intention that these things will be disclosed to the general public. The source may also provide information that he wishes to remain in the journalist's possession only. This position views the source as having the privilege, and as such he has the power to condition what can be published and what will remain between him and the journalist. Therefore, it can be argued that this expansion is largely derived from the court's approach in the case law Citrine, which emphasizes the sources of information, and as such is even necessary. This approach is also reflected in the position of the majority opinion in the report of the Maoz Committee, the committee for examining journalistic privilege established in 1993 by the Minister of Justice and the Minister of Police, in an attempt to bring about the regulation of confidentiality in legislation. An expression of this position can also be found in case law (see, for example, Be'er Sheva (Tel Aviv District) 90742/09 News 10 Ltd. v. Katzav [Nevo] (18.10.2009) where the Vice President noted A. Mudrik"For my part, I am of the opinion that the existing confidentiality also includes protection of the content of the information that the journalist promised to keep secret, and not only narrow protection of the identity of the source"). I accept the position of the District Court. In my opinion, the expansion of the scope of the confidentiality as aforesaid is a proper and necessary expansion. Indeed, the time has come to determine that the journalistic privilege also applies in relation to the content of journalistic information that has been determined to be "not for quotation" (see also Amit Privileges, at pp. 853-854).
However, I believe that this is not enough, and that the time has come to take another step in the sense of "heel on the side of the thumb and thumb on the side of the heel", and to expand the scope of the privilege a little beyond the material that is not for reference.
- As stated, it was argued before us that the journalistic privilege should apply to all Raw Material that did not enter into the finished product, and not only about material that the source himself wished to leave out of the protocol. This position can also be mentioned in the case law:
"With regard to the content of the information collected by the journalist in the course of his ongoing journalistic work, it can be said that this is material that was given to the journalist with knowledge and consent that will be published at the journalist's discretion, and accordingly some of it is published and becomes visible to the entire public, and therefore its status is different from that of a source who conditioned the provision of information on maintaining the confidentiality of his identity. [...] Therefore, I am of the opinion that the journalistic privilege also extends to the content of the information collected by the journalist in the course of his ongoing work, which is not likely to lead to the disclosure of the source, but the intensity of this confidentiality is less than the journalistic privilege that applies to the identity of the source. The low intensity means that in order to overcome this confidentiality, the Authority will be required to meet more softened tests than the tests required in order to overcome the confidentiality that protects the identity of the source" [emphasis added] (Other Order (Shalom Tel Aviv) 60775-10-15 The News Companies v. State of Israel [Nevo] (January 6,2016) (hereinafter: the Order of the News Companies)).