On the legal level, the causal connection will be examined using three causation tests: the risk test, the expectation test, and the common sense test (Amos Herman). Torts Law 154-153 (2020)).
These tests apply both to the tort of breach of statutory duty and to the tort by virtue of The Protection of Privacy Law (Regarding the tort of breach of statutory duty, see: Civil Appeal 119/86 Kenei Houses Ltd. v. The Local Planning and Building Committee, Netanya, IsrSC 46(5) 727,749 (1992); Regarding the tort of invasion of privacy, see: section 4 of the Protection of Privacy Law).
- As for the factual causation test, an examination of the testimonies and evidence brought before me, as detailed above, shows that the main wrongful conduct is the hacking of Naveh's mobile phones, copying the personal information from them and examining it. Had it not been for this act - if Shteif was directly responsible and if Galei Tzahal was responsible for vicarious responsibility - Naveh's privacy would not have been violated and the alleged damage would not have occurred (which I will discuss below). Therefore, I determine that there is a factual causal connection between the incident of the hacking of the phones and the extraction of personal information from them and the alleged damage due to the violation of privacy.
- We will now turn to the examination of legal causation. First and foremost, I will address the risk test. This test constitutes a "super-test" The question that arises is whether the actual damage caused is the realization of an expected risk created by the tortious conduct (Civil Appeal 8783/23 Anonymous v. State of Israel, paragraph 50 (Nevo 12.3.2026); Israel Gilad "on the proper scope of Recognition of Legal Causation in the Torts of Negligence"Legal Studies 29 169,174 (2013)). The damage claimed by Naveh is an infringement of his privacy as well as economic harm due to the publication of unflattering personal information about him. In our case, Steif's wrongful conduct is based on unauthorized penetration of personal content that was found on Naveh's mobile phones. Mobile phones constitute a kind of "digital vault" of personal content, and it includes Documentation of a person's personal life, along with contact details, correspondence, diaries, and information necessary for his or her ongoing functioning. Thus the actual damage caused (ex post) is the realization of the tortious risk (ex ante) created by the behavior (Israel Gilad Torts Law - Boundaries The Responsibility 571 (2012)). I therefore determine that the damage of the violation of privacy and of the economic harm is a risk that is expected from the penetration of private content found on the mobile phone and from the perusal and scrutiny of its content.
- As for the expectation test, the question arises as to whether a reasonable person can and should expect that the wrongful behavior will cause the type of damage actually caused. This is an objective-normative test that also includes the obligation to anticipate the harmful result (Civil Appeal 576/81 Ben Shimon v. Barda, IsrSC 38(3) 1,8 (1984)). However, the test of expectations does not require an accurate view of all the details of the event and the harmful outcome (Civil Appeal 9073/09 Assuta Medical Centers Ltd. v. Scharf, paragraph 10 (Nevo, June 14,2011)). In our case, we are dealing with tortious conduct of violation of privacy and breach of statutory duty. The focus of the conduct is on the invasion of privacy, the intrusion into the computer, and the use of wiretapping products, as defined in the Wiretapping Law. This wrongful conduct gives rise to normative expectations of a harmful result of an invasion of privacy, as a result of the disclosure of a person's secrets.
- As is well known, the considerations of normative expectations are also guided by considerations of proper legal policy (Additional Civil Hearing 4770/23 Anonymous v. Shipping and Ports Authority, paragraph 6 (Nevo, July 19,2023)). In this context, I accept the position of Steif and Army Radio that Naveh was impaired in his public conduct. As it emerged from the evidence brought before me, a criminal investigation was conducted against Naveh and an indictment was even considered against him for committing serious offenses. However, at the end of the day, no indictment was filed against Naveh, also due to reasons related to the manner in which the incriminating information reached the police.
The question arises whether such improper conduct, some of which is rooted in the criminal field, nullifies the normative causal connection between the wrongful conduct and the harmful outcome. In my opinion, the answer to this is negative. As detailed at length, the law provides a series of protections for a journalist who publishes content of public interest, even if the content itself violates privacy. As I have determined, the normative boundary line is the journalist's participation in an act of criminal nature in obtaining the information. In a case where improper means are used and conduct with criminal features occurs, the defenses are removed, and the journalist is exposed to disciplinary and other proceedings for a violation of Rule 17 of the Rules of Ethics. Thus, Naveh's wrongful actions do not constitute a justification or refuge from Steif's wrongful conduct, and in any case they do not sever the normative causal connection that is based on the test of expectations above.
- As for the common sense test, it examines the question of whether the wrongful behavior actually contributed to the formation of the harmful result. This is a negative test, which negates causation where the wrongful behavior did not increase the risk of the damage occurring or if there is another dominant factor in its emergence (Civil Appeal 4486/11 Anonymous v. Clalit Health Services, IsrSC 66(2) 682,709 (2013)). In this context, too, there is a tension between Naveh's wrongful acts (in the framework of the "sex for appointment" case) and the wrongful conduct. However, the analysis of the evidence I discussed this in the first part of the judgment shows that until the information was extracted from Naveh's mobile phones, i.e., until the wrongful conduct, the public and the investigative bodies were not aware of this occurrence. From the evidence brought before me, it appears that the information in Naveh's case was based on those mobile phones. If so, it appears that it was the wrongful conduct that caused the harmful result in Naveh's case, and there is no other reason for this.
- I have not lost sight of Shteif's claim that the police investigation is the dominant factor that caused the damage (the violation of privacy and the economic damage).
This is the place to emphasize that Shteif's status is not the same as that of an ordinary citizen who files a complaint with the Israel Police, and as a result, an investigation is opened, the results of which are published to the public. Shteif's conduct - with regard to the improper process of obtaining the information - has a criminal aspect. At the end of the day, considerations of the public interest and the exhaustion of the investigation in the "sex for appointment" affair led the investigative authorities and the State Attorney's Office to grant her immunity from criminal proceedings (similar to a "state witness"). The opening of a police investigation following the content that arose from the information obtained wrongfully is within the scope of what is expected and therefore does not negate the causal connection (Civil Appeal 576/81 Ben Shimon v. Barda, IsrSC 38(3) 1,9 (1984); Regarding the expected intervention of Border Police forces in the tort of false imprisonment - Civil Appeal (Jerusalem District) 29938-09-13 Psagot Cooperative Village for Settlement Ltd. v. State of Israel, paragraph 130 (Nevo, March 10,2015)). Moreover, as I have already noted in another matter before me, a police investigation conducted with authority and permission, as in our case, cannot be considered a cause of damage (Civil Case (Central District) 26458-03-15 Sagiv Fire Protection Technologies (2009) Ltd. v. State of Israel - Israel Police, paragraph 116 (Nevo, June 15,2020); Appeal against this judgment dismissed - Civil Appeal 5382/20 Sagiv Fire Protection Technologies (2009) Ltd. v. State of Israel - Israel Police (Nevo 10.10.2021)).