The subjective aspect of the good faith element in the defenses of expressing an opinion is studied, inter alia, from the intention of the advertiser and his motives, which are examined alongside his subjective belief regarding the opinion. The objective aspect examines the degree of reasonableness of the publication and the potential for harm, the degree of severity of the offending expression, its language, style, wording, and the extent of the publication's spread. In this framework, it will also examine the way in which the facts on which the opinion relied, the identity of the recipients of the publication and the relative weight of the reference to the plaintiff from the entire publication (Shenhar. at p. 629).
Alongside the element of good faith is another central element, which is the element of expressing an opinion, where a basic condition is that it be understood that the publication is an expression of an opinion.
In Civil Appeal 817/23 New Contract Association v. Zohar (May 30,2023), the Supreme Court noted the distinction between the publication of a fact, and a publication that is an expression of an opinion. As it put it: "As a rule, a fact is concerned with objective data, with a description of a certain reality; it can be true or false, and it can be confirmed or refuted... An opinion, on the other hand, is a subjective impression, and it does not fit into rigid patterns of truth and falsehood. An opinion may be persuasive, reasonable, logical, and vice versa. ...". (Paragraph 19)
The Supreme Court clarified that in order to distinguish between fact and opinion: "The glasses of the 'ordinary person' must be worn: 'What determines the distinction [between opinion and fact] is the manner in which things are perceived by the reasonable person who perceives them: as a personal-subjective conclusion of the advertiser or as a factual fact that describes reality" (para. 21; and the references therein)
According to the case law, a prerequisite is that in addition to expressing the opinion, the advertiser published, correctly and accurately, the facts about which he expresses his opinion, so that it will be possible to distinguish what from the publication are the facts and what is the opinion. (Shenhar. p. 609; Civil Case (Jerusalem District) 13358-01-17 Alon Hamdani v. Barak Cohen (May 5,2020) (hereinafter: "the Alon Hamdani Judgment"), para. 79. Appeal against the judgment rejected by the Supreme Court Other Municipality Applications 20-3858 Barak Haim Cohen v. Alon Hamdani (June 15,2022); Additional Hearing 9/77 Israel Electric Company Ltd. v. Haaretz Newspaper Publication Ltd. (August 27,1978) (hereinafter: "D.N. IEC"); Ben Gvir Civil Appeal Authority, paragraph 13 of the opinion of the Honorable Justice Arbel).