According to Naveh, a prerequisite for the application of the permanent protections Section 18(2) The law has good faith, which must be examined at the time of the invasion of privacy. According to him, Shteif testified that she understood that Chani was in distress, and took advantage of this to get her hands on Naveh's phones in order to produce "journalistic scoops" from them. In addition, Shteif testified that at the time of the break-in she did not know what was in the mobile phones. This negates the claim of good faith action by Shteif.
With regard to defendants 2-6, Naveh claimed that they knew from the beginning that the information came from Naveh's phones, which were hacked with the involvement of Shteif. This negates the good faith of the defendants. Naveh further argues that defendants 2-6 at least turned their eyes to the fact that the telephones were obtained in connection with the commission of an offense, and in this case, they should also be deprived of the element of good faith required for the purpose of providing protection according to Section 18(2) to the law.
- I am of the opinion that there is room for a distinction between the case of Steif and the case of the other defendants. The reason for this is simple - Steif was the initiator, solicitor and mediator in the matter of the hacking of the telephones, and at least confirmed the matter and made conscious use of the products of the burglary. Article 12 The Torts Ordinance states Tort liability for those who share themselves, assists, advises, seduces, commands, authorizes, or confirms a wrongful act or omission of another person. This provision also applies to torts that are outside the Torts Ordinance and therefore appropriate for our purposes (Civil Appeal 3024/10 Weiner v. Moyal, paragraph 26 (Nevo, April 2,2013)). This conclusion is also applicable to the tort of invasion of privacy, since Section 4 The Protection of Privacy Law states that infringement of privacy is a civil tort and provisions will apply to it The Torts Ordinance. Therefore, Steif has practical and legal responsibility for the hacking of the telephones.
On the other hand, the share of the other defendants was limited to the receipt, review and use of the materials without being aware in real time of the manner in which they were produced. This distinction has implications for the applicability of the defenses that were established Section 18(2) to the law. And I will explain.
- Section 18(2) The law provides protections against criminal, civil or administrative liability for an infringement of privacy committed in good faith in one or more of the circumstances defined in subsections (a)-(f). As for these circumstantial elements, the test is subjective. Thus President E. Barak said: "The question is whether the offender believed, from his own personal point of view, that he was acting lawfully to achieve the objectives set forth in this provision. In this regard, it does not matter what the reasonable person would have thought in the circumstances of the case, or what the offender could have believed, had he not been negligent."The Galam Matter, p. 1164).
As to the burden of proving the element of good faith set forth in the Section 20(a) of the law and required for the application of circumstantial protections Section 18(2), in order for the offender to have the presumption that he committed the injury in good faith, he must prove the existence of two cumulative conditions: the injury was committed in one of the circumstances listed Section 18(2); The injury did not exceed the scope of reasonableness for the same reasons (Protecting Privacy in Israel, p. 467). Regarding the realm of reasonableness, the scholar Dan Chai explained that: "It seems that the court will examine, in the cases before it, the extent to which it was reasonable to infringe on privacy in the relevant circumstances of the subsection of the Section 18(2) of the law, as to its applicability."Protecting Privacy in Israel, pp. 468-469). However, where the violation of privacy was committed in violation of the rules of ethics that apply to the offender or to professionals of which he is a member, the opposite presumption applies, according to which he acted in bad faith (Section 20(c) to the Protection of Privacy Law).
- From the totality of the evidence that was brought before me, it appears that Steif was not a passive figure, but rather served as the instigator and mediator who initiated and promoted the hacking of password-protected phones. She was the one who met with Chani and deliberately recruited Yuli, knowing that he had the ability and willingness to carry out the hacking of the devices without asking questions. She even consciously confirmed the hacking of the phones by Yuli when she met with him at his home. In these circumstances, not only was not proven good faith on the part of Shteif, but the facts indicate active and conscious conduct in the criminal field. This awareness arises both from the way in which she coaxed Yuli to hack the devices - as will be recalled In his testimony to the police, Yuli explained that "Hadas Shteif reminds me again and again that only if I can help her and if I succeed in opening them (the devices - A.S.) In order for her to know if there is material of journalistic value in them, then fine, and if I fail to help her, she asks me to return them to her as they are without involving additional external people" (P/23, paras. 56-60). This awareness is even evident in a meeting held between Shteif and Yuli at the latter's home, where she was shown the information produced from Naveh's phones by means of the computer on a television screen. In view of all this, I determine that Shteif was well aware of the improper manner in which the information was produced from the telephones.
- According to Section 17 of the Code of Professional Ethics of the Press, which deals with "improper means, " journalists will not use improper means to obtain information that may harm the public's trust in journalistic work.
Shteif was involved in the mining of Naveh's personal information from his phones. Shteif even consciously confirmed the wrongful activity in the framework of the meeting at Yuli's home. This action constitutes a deviation from section 17 of the Code of Professional Ethics of the Press, which deals with "improper means". This conclusion is consistent with Dr. Altshuler's testimony before me that active penetration into a person's phone is prohibited, as distinct from receiving information from a journalistic source (par. p. 352, paras. 1-6). Moreover, from Dr. Altshuler's testimony we learn that even assisting a journalist to commit the offense constitutes an offense under section 17 of the Code of Ethics (par. p. 350, paras. 21-24). If so, Steif's conduct, whatever her motives, leads to the conclusion that she does not meet the criteria of a responsible journalist and that she even allegedly violated the rules of ethics. Hence, it applies to her conduct Section 20(c) to the Protection of Privacy Law, which states that "a presumption of a defendant or defendant claiming protection according to the Section 18(2)(b) or (d) who committed the violation of privacy in bad faith, if he committed the violation in violation of the rules or principles of professional ethics that apply to him by virtue of the law or accepted by the professionals of which he is a member;"
- Steif's claim that she had a journalistic duty to do so did not go unnoticed. However, given that Shteif's conduct has a criminal nature (contrary to the Wiretapping Law, the Computers Law, and the Computer Law) To Section 5 the Protection of Privacy Law), no such claim can be heard from it. Thus, in the Gilam case, the Supreme Court (Justice A. Matza) emphasized: "Where the violation of privacy is accompanied by the commission of an offense of criminal thought, which is inherent to the violation of privacy, the offender can no longer be heard claiming that the violation of privacy was committed by him in good faith."The Galam Matter, p. 1162).
Even if we assume that Shteif was not actively involved in the burglary proceeding, it is clear that her conduct at least amounts to turning a blind eye to the commission of a criminal offense. Such conduct completely drops the ground under the pretext of good faith (High Court of Justice 6650/04 Anonymous v. Netanya Regional Rabbinical CourtIsrSC 61(1) 581,609 (2006)).