Contributory Fault
- According to the defendants, "100%" contributory fault should be attributed to Naveh for the occurrence of the damage, which severs any causal connection between their actions and his alleged damages. According to them, any damage to his good name, status or livelihood is a direct result of his wrong, criminal and immoral acts, first and foremost the Ben Gurion Airport affair and his conduct, which led to his disgust with him. In addition, it was claimed that leaving the mobile devices with his estranged wife Hani during a difficult divorce dispute constitutes gross negligence that embodies a complete waiver of his privacy.
In the summaries of his reply, Naveh replied that the demand to attribute "100%" contributory fault to him is an "extreme and insolent" claim. He argues that it is unreasonable to expect him to expect them to try to hack into his password-protected devices time and time again, and that such an expectation exists "only in the wild world of the defendants." Naveh clarified that his claim is not based on his actions, but on the acts of hacking, snooping, processing and publication carried out by the defendants, and therefore no contributory fault should be attributed to him for the damage.
- The basis of the contributory fault defense is In section 68(a) to the Torts Ordinance, which states: If a person suffers damage, partly due to his own fault and partly due to the fault of another, a claim for compensation for the damage will not fail due to the fault of the injured party, but the compensation to be paid will be reduced to the extent that the court deems appropriate and just, taking into account the degree of the plaintiff's liability for the damage..."
Thus, the contributory fault is a defense claim aimed at reducing the compensation due to the tort party's conduct. The contributor's fault has two elements: a physical-causal element - whether the tortfeasor's behavior added to the damage caused by the tortfeasor by his wrongful conduct; a normative element - in which the dimension of fault in the victim's conduct will be examined (for more information, see: Civil Appeal Authority 2809/18 Casabari v. Rosen, paragraphs 6-7 (Nevo 26.11.2018) and the many references cited therein).
- The issue of the Ben Gurion Airport affair is not the result of the wrongful act that I discussed above. Both the Ben Gurion Airport affair and the divorce proceeding (with all that accompanies it) preceded the phone hacking affair in time. This is not the case with regard to Naveh's conduct in the "sex for appointment" affair, which is the basis for the publication of Steif and Army Radio.
In this context, the defendants claimed that Naveh had intimate relations with a candidate for trial and acted to promote it in a severe conflict of interest without revealing it, and that she was "the source of disgust with him" and not their own actions. On the other hand, Naveh clarified that his personal relationships were his private affair. These affairs did not lead to an indictment, and he should not be attributed normative or causal contributory fault for not expecting the defendants to hack into his password-protected devices and snoop on them.