(2) If the employee committed the act in the course of his work;
However -
- [...]
(b) An act is deemed to have been done in the course of an employee's work, if he did it as an employee and when he performs the normal functions of his work and which are involved in it, even though the employee's act was an improper performance of an act authorized by the employer; however, an act performed by the employee for his own purposes and not for the employer's purpose shall not be regarded as such.
- In this context, Army Radio relied on the fact that Shteif committed acts that constituted a violation of the law. According to her, on the basis of the precedent established by other municipal requests 8027/14 Shorosh v. Shalian (29.11.2015) (hereinafter: The Root Matter) should not be held responsible for Steif's actions.
In the Shorush case, Judge (as he was then called) Y. Amit set a triple test for non-imposition of vicarious liability in the event of improper performance of the act:
"When determining whether the employee's actions were carried out in the course of his or her duties, or whether they deviate from the employer's authorization to such an extent that the employer can be exempted from vicarious liability, a number of indications can be used, including: the purpose that guides the employee, including whether the employee's purpose was to commit an offense; a criminal conviction and the nature of the conviction; as well as legal policy considerations."
(The Root Matter, paragraph 14)
- As for the guiding purpose test, the main question is whether the criminal result is incidental or whether the criminal purpose was the motive for the act? Did the employee act for a purpose that is foreign to the employer's interest ((Civil Appeal 338/60 State of Israel v. Madar, IsrSC 15 1569,1584 (1961) Civil Appeal 418/68 Shash v. DelaIsrSC 22(2) 841,843 (1968)). In our case, Shteif's main purpose was not to wiretap or violate Naveh's privacy by improper means. The improper means (the hacking of mobile phones) were a tool to obtain information for the purpose of the investigation that was at the top of her mind. Conducting journalistic investigative work in this field (criminal and legal) does not deviate from the scope of journalistic coverage that Shteif was entrusted with as part of her work at Army Radio. The fact is that the management officials at Army Radio did not instruct Steif to immediately hand over the materials to the Israel Police and to refrain from journalistic engagement with them (See in this context Mr. Tunick's position in his opinion at paragraph 14). The delivery of the materials to the police was done only following the intervention of the State Attorney. Therefore, I determine that the criminal action carried out by Shteif did not constitute the motive for her actions, but was an incidental result of journalistic activity in the framework of her position at Army Radio.
- As to the test of criminal conviction and the nature of the conviction, Shteif was not convicted of a criminal offense. On the contrary, Steif was granted "immunity" from taking criminal proceedings against her. It is reasonable to assume that all the considerations in this matter were laid out before the State Attorney's Office and were carefully considered. Therefore, this test also supports the imposition of vicarious liability on the state for Shteif's actions.
- As for the test of policy considerations, the considerations in this context are complex. On the one hand, it is inappropriate for the state to bear responsibility for journalistic acts that deviate from the accepted standard of activity and even do not conform to the rules of ethics. Mr. Yitzhak Tunik, a veteran journalist and former commander of Army Radio, who conducted an opinion on behalf of Shteif (N/1), also noted in his testimony before me that the hacking of a mobile phone by a journalist is an unacceptable act in terms of journalistic practice, which even contravenes the rules of ethics (para. pp. 247-248).
On the other hand, Army Radio made news use of the information produced in the framework of the special broadcast (although the responsible parties on its behalf were not aware of the manner in which the information was produced). In this context, it is impossible to ignore the journalistic achievement that Shteif brought to the Galei Tzahal station in terms of journalism. It seems that it was the investigation that was carried out that led to the defendants - who are veteran media professionals, renowned and experienced - explaining in their testimonies before me that Shteif's activity was within the framework of her journalistic role: