As we both did, Shteif was actively involved in the production of the materials from Naveh's telephones. This involvement is found in the criminal field and constitutes a serious violation of Naveh's privacy. Shteif's conduct was also flawed on the level of: Proper Conduct The journalist. Dr. Altshuler explained: "... A journalist should not enter a person's phone... When you enter a public figure's phone because it is important to you to investigate something and then you discover things that are related to other people... A phone is the closest thing to our brains, a lot of things are there, entering the phone is an extreme act and sometimes it has a practical justification. No one would want to be done to him" (Par. p. 352, paras. 1-6).
- He did not lose sight of Shteif's main argument, according to which she sought through the investigation to eradicate the menace of corruption that had spread following Naveh's wrongful actions. However, such an ideological motive cannot be a justification for committing an offense or for an active violation of a person's privacy (See a similar defense argument by a journalistic source: Criminal Appeal 8445/11 Kam v. State of Israel, paragraph 18 of the judgment of Justice A. Arbel (December 31,2012)). Moreover, there is also a legal limitation regarding the limits of journalistic privilege (The Essenheim Affair, the opinion of Justice E. Stein and the references cited therein).
The rationale that applies with regard to the limitation of legality in the matter of the protection of a journalistic source and in the matter of the protection of journalistic confidentiality is also true of the issues of the balance between the public interest and the violation of privacy: When it comes to an illegal act (such as an unauthorized intrusion into a mobile phone) that involves a serious violation of privacy, it is not possible to reconcile the right to freedom of expression with the right to privacy, and the right to privacy must be given priority. In other words, a journalist cannot be a journalist Active Partner For a violation of the law that means an invasion of privacy and at the same time to be protected under the protection of Section 18(3) to the law.
- For these reasons, I determine that Steif is not protected under the permanent protection In section 18(3) to the law. Therefore, I find that Shteif severely violated Naveh's privacy by copying electronic messages that were not intended for publication; by making use of information about Naveh's private affairs and passing them on to others; and by publishing personal content from Naveh's mobile phones, even though the matter was obtained by way of invasion of privacy and violation of the law. As for the other defendants (with the exception of Shteif) - they also have a defense Section 18(3).
The tort of negligence
- According to Naveh, defendants 2-6 owe him a conceptual and concrete duty of care, since he was the subject of a "journalistic investigation" at the time. The defendants breached the duty of care and were negligent when they did not stop Steif from moving forward with the investigation in his case. Not only that: the defendants actively "joined" hands with Hadas and made progress in processing the products of the hack, preparing them for broadcast and publishing various "teasers".
- Where the legislature has established a designated arrangement that regulates a specific area, which includes elements of cause, defenses, exemptions, conditions or limitations of liability, it is necessary to examine whether recognition of a parallel cause of negligence would frustrate the purpose of the arrangement and allow the balancing mechanisms established by the legislature to be circumvented. In such circumstances, the court may determine that the tort of the framework of negligence should not be applied in a manner that subordinates or renders the specific statutory arrangement meaningless. In the context of a press release, this means that when most of the alleged damage stems from an invasion of privacy, it is necessary to carefully examine whether the cause of negligence does not constitute an attempt to circumvent the unique arrangement and the balances set forth in the Protection of Privacy Law (see similar reference to the tort of causing breach of contract and the tort of defamation): Civil Appeal 8489/12 Anonymous vs. Anonymous, paragraph 5 (October 29,2013); Civil Appeal 7426/14 Anonymous v. Daniel, paragraph 66 (March 14,2016); Civil Appeal Authority 7205/16 Schwartz v. Zollerparagraphs 5-4 (April 9,2017)).
In the present case, the claim raised against the defendants relates in essence to the violation of privacy, which has been designated and detailed in the Protection of Privacy Law. This law does not suffice with setting a general prohibition, but rather defines the situations that establish liability, establishes conditions and qualifications for its application, and provides the defendants with a series of protections. Therefore, I am of the opinion that there is a difficulty in expanding the boundaries of liability by means of the tort of negligence, which is a framework tort, in a manner that circumvents the conditions, qualifications and protections set forth in the Protection of Privacy Law.
- However, for the sake of completeness of the picture and since the claims concerning some of the defendants deal with an element of supervision, I will note the following: Unlike Steif, which violated the provisions of section 17 of the Code of Ethics regarding the use of improper means and therefore it is possible to accept The claim that she was negligent, defendants 2-6 were not involved in obtaining the information, and in any case did not use improper means to obtain it. These defendants received the materials from Steif when they were printed and processed. In terms of the conduct of Army Radio as an organ of the state, a clear hierarchy of decision-making levels was established in it. Accordingly, Elkabetz convened a professional meeting shortly after receiving the report from Steif regarding the material. I was under the impression that Army Radio was assisted by legal opinions and acted in accordance with the instructions of the Military Advocate General's Corps, followed by the State Attorney's Office. In these circumstances, I determine that defendants 2-6 acted in accordance with the standard of responsible journalism. Therefore, I do not find that defendants 2-6 violated the concrete duty of care towards Naveh.
The tort of breach of statutory duty
- Naveh also petitioned for damages by virtue of the tort of breach of a statutory duty under Article 63 to the Torts Ordinance. According to him, the defendants violated statutory duties enshrined in criminal and civil law when they took his mobile phones, broke into them, and made improper use of their contents. These acts, which, according to him, constitute the use of information obtained through an offense, obligate the wrongdoers to be fully responsible for any damage caused and expected to be caused to him, inter alia by virtue of Article 12 to the Torts Ordinance.
The statutory duties that were breached, according to the plaintiff's claim, include the unlawful penetration of computer material under the Section 4 to the Computers Law, which also applies to mobile phone devices. In addition, it was argued that the intrusion into the devices constitutes a deliberate violation of privacy, which establishes a civil tort and a criminal offense under The Protection of Privacy Law. Finally, Naveh attributed to the defendants a violation of the prohibition on the use and disclosure of knowledge obtained through wiretapping in contravention To Section 2 to the Wiretapping Law.
- Article 63 The Torts Ordinance requires the existence of an obligation by virtue of the statute, that the statute is intended for the benefit or protection of the injured party, breach of duty, causing damage of the type intended by the statute, and the absence of the intention of the statute to deny tort remedy. These are cumulative foundations (see one of many: Civil Appeal 7141/13 Connect Group Ltd. v. Dabush, paragraph 21 (Nevo, November 5,2015)). Let us therefore examine the existence of the elements of wrongdoing.
- In our case, it was found that Shteif was the initiator, the mediator and the partner in transferring the phones to Yuli for the purpose of extracting Naveh's personal information from them. Even if she herself did not hack into Naveh's phones, she still arose responsibility by virtue of Article 12 To the Torts Ordinance As an initiator, mediator, solicitor and ratifier.
All the relevant witnesses (Naveh, Hani and Yuli) confirmed that the phones were protected by some password that prevented free access to the content that was stored in them. Section 4 The Computer Law prohibits unlawful penetration of computer material and also defines penetration as penetration by means of connection, connection, or operation of the computer. The term "intrusion" is interpreted broadly in case law: there is no need for technological hacking or password bypass. It is sufficient to use the computer without the consent of its owner. Thus, even penetration of a device that has been accessed for a limited purpose, but is used to view or copy content that was not included in the authorization, may also be considered unlawful intrusion (Criminal Appeal Authority 8464/14 State of Israel v. Ezra, paragraphs 12-13 (Nevo 15.12.2015)).