"In balancing between two constitutional rights of equal status, the way to go is to adopt a compromising approach with the aim of allowing the two rights to coexist, by proportionately harming one at the expense of the other (see and compare: High Court of Justice 2481/93 Dayan v. Jerusalem District Commander, 48(2) 456,475-474 (1994); Appeal Petition/Administrative Claim 398/07 The Movement for Freedom of Information v. Tax Authority, para. 53 (September 23,2008); Appeal of Petition/Administrative Claim 9341/05 The Movement for Freedom of Purpose v. Government Companies Authority, para. 31 (May 19,2009); Ruth Gavison, "Prohibition of Publication Violating Privacy - The Right to Privacy and the Public's Right to Know" Civil Rights in Israel - A Collection of Articles in Honor of Haim H. Cohen 177,204,219 (1982)) ... In the absence of the possibility of reconciling the rights, one should resort to a binary decision and prefer one right over the other (see: High Court of Justice 1435/03 Anonymous v. The Disciplinary Court of State Employees in Haifa, IsrSC 58(1) 529,537-539 (2003)))."
(Case, paragraph 3)
- The scope of the protection that can be expressed is determined in accordance with the rationales it establishes. The basis of freedom of expression and the public's right to know are three rationales: "Exposing the truth, self-realization of the individual, and strengthening democracy (High Court of Justice 399/85 Kahane v. Broadcasting Authority, IsrSC 41(3) 255, paragraphs 14-16 of the judgment of Justice (as he was then called) A. Barak (1987); Ilana Dayan-Orbach: "The Democratic Model of Freedom The phrase "Iyunei Mishpat 20 377, chapter 1 (1996)" (A Certain Matter, paragraph 4 of the opinion of Justice (as he was then called) S. Jubran).
Thus, for example, in one of the cases in which the Supreme Court dealt with it, it was found that "there is a public interest in maintaining journalistic fairness. The latter interest is also and especially the matter of the press, which seeks to maintain a fruitful reciprocal relationship with its sources. The need to protect all of these dims the light of the 'public interest' in the publication. In this particular case, we are not convinced of the existence of a 'public interest' that justifies the breach of the promise given to the applicant and justifies the violation of his privacy."Civil Appeal Authority 6902/06 Tzadik v. Haaretz Newspaper Publishing Ltd., IsrSC 66(1) 52,61 (2008)).
- Similar to the listed good faith defenses Section 18(2) According to the law, when we come to balance between the right to privacy and the right to freedom of expression, a distinction must be made between Steif and Barkai, Kaneti, Shahar, Elkabetz and Army Radio. The latter did not take part in the production of the information from Naveh's devices. The information in Naveh's case, from which the public interest clearly and clearly arose, was given to them by Shteif. These parties reviewed the materials presented to them by Shteif. They refrained from publishing them in real time, and published parts of them, in accordance with the restrictions set out in the gag order imposed on the affair. Therefore, in view of the intensity of the public interest that I discussed above, and in view of the fact that they became aware of the public interest immediately upon reviewing the material and without being actively involved in obtaining the information, they also have protection Section 18(3) to the Protection of Privacy Law.
- In contrast, Shteif was the instigator and mediator who initiated and promoted the hacking of password-protected devices, by deliberately creating an acquaintance between Hani and Yuli. Shteif's actions have a criminal aspect by virtue of her central role - initiating and confirming the technological hacking of Naveh's phones and extracting information from them. As I have already determined, Even if Steif was not the direct cause of the hacking of Naveh's phones, she is responsible for the wrongful behavior by virtue of Article 12 to the Torts Ordinance.
I am prepared to assume to Steif's credit that the motive for the hacking of Naveh's phones was the background material that she had already collected in connection with the intern's affair. This is sufficient to fulfill the element of public interest required when privacy is violated. However, it does not tip the scales in the matter of the balance between the two rights. I will explain.