In the Supreme Court

Sitting as a Court of Administrative Appeals

 

AAA 3908/11

 

Before:                                    Her Honor, Justice (ret.) E. Arbel

                                                His Honor, Justice Y. Danziger

His Honor, Justice N. Hendel

His Honor, Justice E. Rubinstein

                                                His Honor, Justice S. Joubran

                                                Her Honor, Justice E. Hayut               

                                                His Honor, Justice U. Vogelman                                                         

                                                           

The Appellants:              1.      State of Israel, Courts Administration

   2.      Supervisor under Freedom of Information Law in the Courts Administration

 

v.

 

The Respondents:           1.      TheMarker – HaAretz Newspaper Ltd.

   2.      Hila Raz, Journalist, “TheMarker”

 

Appeal against the judgment of the Administrative Affairs Court in Jerusalem on April 14, 2011, in AP 43366-03-10 by Her Honor President M. Arad

 

Date of Session:                       Tevet 5, 5773 (December 18, 2012)

 

On behalf of the Appellants:   Adv. S. Rotshenkar

On behalf of the Respondents:            Adv. P. Moser

 

 

Judgment

 

Justice (Ret.) E. Arbel

The Administrative Affairs Court in Jerusalem (Hon. President M. Arad) ordered appellant no. 1, the Courts Administration, to hand over to the respondents, TheMarker newspaper and the journalist Hila Raz, for their scrutiny, information concerning the number of open cases being heard in the Supreme Court and in the district courts before every judge; and also the length of time that has elapsed since each case was opened. In every case, the name of the judge was to be mentioned. Before us is an appeal on this judgment.

Does the public’s right to information by virtue of the Freedom of Information Law, 5758-1998 (hereinafter: the “Law” or the “Freedom of Information Law”)­—by means of the newspaper TheMarker — also apply to the requested information that concerns open cases in the district courts and the Supreme Court, with the names of the judges hearing the cases being identified? This is the question upon which we must decide in this appeal.

 

Background

1.    On August 18^th 2009, respondent no. 2, journalist Hila Raz, submitted a request to appellant no. 2, the supervisor for the implementation of the Freedom of Information Law in the Courts Administration, to obtain information under that Law, as specified in a list that was submitted together with the request. The information was sought “in light of the supreme public importance with respect to the burden imposed upon the courts system.” A response to the request was sent by appellant no. 2 on December 14, 2009, noting that he had the information that was sought with respect to two of the items: “quantitative information about the number of open cases being heard by each district court judge in the country and the justices of the Supreme Court” as well as “information about the length of time that has elapsed since the opening of each of the principal open cases.” Despite this, on February 3, 2010 respondent no. 2 received a letter from Adv. Barak Lazar, professional advisor to appellant no. 1, which stated as follows:

 

The number of cases assigned to a judge does not constitute a measure of the case load. Court cases are differentiated from each other according to the type of matter (civil, criminal, administrative), the bench before which the proceedings are conducted (a bench of three or a single judge) and the complexity of the legal dispute. Therefore, presentation of the details of the number of cases assigned to each judge would provide a misleading representation, attesting to nothing, save the numerical assignment of anonymous cases to a judicial functionary.

The presentation of data that reflects a true index of burden requires the development of a tool for classification of cases which takes into account the time and the resources allocated to each and every case; the purpose of this is to create a basis for comparison.

In the past, an attempt involving extensive research was made to develop such a tool. Several flaws were discovered in this research, which prevent effective use of the tool that was developed. At the present time, we are making plans to conduct complementary research and to develop the said tool for assessing case-load, especially in view of the relevancy of that information for improving efficiency in the courts. Clearly such complementary research cannot be carried out in the time allocated to us for the purpose of responding to the request that has been submitted pursuant to the Freedom of Information Law.

This is also the case with respect to data concerning the length of a case’s lifetime. Production of such data requires an analysis of the database in the system, which is conducted by external factors and involves substantial costs.

Respondent no. 2 also referred to the half-yearly report and the Freedom of Information Report published by appellant no. 1; these are public reports that include quantitative information about pending cases, cases that have been closed and cases that were opened in Israeli courts, as well as data concerning the average lifetime of a case in the courts system. There is no dispute between the parties about the fact that the information included in these reports does not fully correspond to the information requested by respondent no. 2. After a further attempt of the respondents to obtain information from the appellants was not successful, an administrative petition was filed.

 

The Judgment of the Administrative Court

2.    The District Court granted the petition. First, the appellants’ argument that delivering the information would necessitate an unreasonable allocation of funds was rejected. The Court determined that the appellants possess the requested information, and that its delivery involves the production of a computer report and does not require the allocation of substantial resources. The Court noted that the respondents did not request anything beyond the specified information, and that they did not ask that it be processed for them. The Court therefore rejected the appellants’ argument that because the number of open cases does not reflect the judge’s case-load, complex research, requiring an unreasonable allocation of funds, would be necessary, in order to produce data that could serve as an index of overload.

The appellants’ argument that making the information available to the respondents was liable to disrupt the functioning of the Authority was also rejected. It was mentioned that this reservation to the obligation of disclosure applied, in accordance with the case law, only where there was near certainty of serious interference with the functioning of the Authority, and that the anticipated interference had to be “grave and serious” (AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284 (hereinafter:  Tax Authority), at p. 346).  However, the Court found that the argument that publication of the information would lead, with a high degree of certainty, to real interference with the functioning of the court system was not substantiated. The argument that the court system would have to provide complementary explanations with respect to an enormous number of cases for the information to serve as an index of the overload was also dismissed. It was made clear that public criticism that is liable to arise against the Authority as a result of publication of the information does not constitute the sort of “disruption” in the functioning of the Authority that would justify refusal to disclose the information. The Court was aware of the fact that the requested information could not serve as an index of the burden borne by the court or by judges, and of the fact that negligent reporting making use of this information would be baseless and misleading. However, it was decided that concealing information was not the way to deal with biased or unsubstantiated publications, and that judges could be presumed to perform their work faithfully even if a misleading article were to be published. It was also noted that it should not be assumed that the respondents, or any other body, would misuse the information, or that any publication would be issued without first receiving the reaction of the courts administration.

The argument that making information available was liable to harm public confidence in the judges and in the legal system was dismissed, and it was noted that precisely the opposite is true. The concern expressed by the appellants about harm to the efforts of the courts system to improve and become more efficient was dismissed as being too speculative.  The concern about increased complaints and requests to recuse judges, or about attempts at “forum shopping” after publication of the information, was also found to be baseless. It was therefore found that handing over the information would not disrupt the functioning of the Authority, and that, in any event,there is no near certainty of serious interference with its functioning which would justify non-disclosure of the information.

3.    The Court did not accept the appellants’ argument that the information about the stock of cases, segmented according to judge, falls within the category of “information about the content of a judicial proceeding” (sec. 2 of the Law), which was excluded from the application of the Law. It was decided that information about the number of cases being handled by a judge and the date on which they were opened is administrative information, and the provisions of the Interpretation Law (1981) should not be used in a manner that broadens the scope of information that is not to be  available to the public.

4.    The attempt of the appellants to base themselves on the legal situation pertaining in other countries, too, was unsuccessful, after the Court determined that it is unnecessary to resort to foreign law where the Israeli law was explicitly applied to the courts system; furthermore, it was held that the comparative law that was cited did not clearly support the appellants’ position.

5.    The Court clarified that its conclusion was applicable, both in relation to the Supreme Court and to the district courts. It ruled that in the framework of the information  handed over, it was possible to mark the year that the case was opened, but there was no requirement to provide such information for cases that had not yet been assigned to a judge, since the information that had been requested was “per judge”. As for the Supreme Court, in which cases are not immediately assigned to a justice upon being opened, it was pointed out that it is possible to publish the requested information with respect to cases that had been assigned to a judge or a panel, together with details of the date on which the case was so assigned, in order to ensure delivery of information that was as complete as possible.

The State is appealing the judgment of the Administrative Affairs Court.

6.    Before we review and discuss the pleadings of the parties, it should be mentioned that on July 12, 2011, this Court (Justice H. Melcer) order a stay of execution of the judgment of the Administrative Affairs Court. On December 19, 2011, this Court ([then] Justices A. Grunis and M. Naor, and Justice U. Vogelman) ordered a continuation of the hearing on the appeal before an expanded bench, by virtue of its authority under sec. 26(2) of the Courts Law [Consolidated Version] 5744-1984. On 18 December 2012 the pleadings of the parties were heard before the expanded panel.

 

Pleadings of the Appellants

7.    The appellants opened their pleadings with a clarification that in a letter of appellant no. 2 dated  December 14, 2009, he agreed to deliver the quantitative information that had been requested, but he expressed no intention of delivering the information together with exposure of the identities of the judges. Appellants contend that Adv. Laizer’s letter was sent only when it became clear that respondent no. 2 would not be satisfied with information that did not include the names of the judges.

8.    On the merits, the appellants’ opinion is that they are under no obligation to hand over the requested information, in accordance with sec. 9(b)(1) of the Freedom of Information Law, which deals with non-delivery of information whose disclosure is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties. They argue that delivering personal information about the performance of the judges is liable to harm the principles on which the orderly functioning of the courts system relies—public confidence and judicial independence. This, they say, would nearly certainly interfere with the functioning of the system. The appellants explained at length what constitutes interference with the proper functioning of the system, which they claim is liable to ensue if the requested information is handed over.  They say that the requested data itself cannot create a complete and reliable picture that will attest to efficiency or overload, neither of the system as a whole, nor of the individual judge. Thus, for example, they explained that there are various features that impact significantly on the input and the time required to conduct proceedings, which are not reflected in the quantitative data that was requested.

9.    The appellants contend that a distinction must be made, in the context of the Freedom of Information Law, between institutional and personal information. In their view, the purpose of the Law is to create transparency with respect to the activities of the public authority, which bears systemic responsibility for the nature of the service that is provided for the citizen and for the employment of its workers; therefore, concretization of the requested information and its connection to a particular worker is not necessarily justified. It was further argued that connecting the requested information to a particular worker is liable to harm the worker’s reputation and to harm public confidence him, for it contains elements of imposing liability for the ills of the system on the worker. It was explained that the worker cannot protect his reputation in public. The appellants believe that it cannot be assumed that the worker’s functioning will be unaffected if he is publicly tried on the basis of purely quantifiable parameters which do not accurately reflect the quality of his work and its nature. It was also argued that impugning an individual in public on the basis of incomplete and misleading information will affect the ability of the public system to recruit the finest candidates into its ranks. In conclusion it was pointed out that delivery of personal information, particularly when it does not present a complete picture, involves greater potential for misuse of the information than a situation in which “systemic” information is handed over.

10.  The appellants believe that the above arguments hold even more so in relation to the judiciary, and for the purpose of maintaining public confidence in it and for its independent functioning. They claim that publication of personal statistical information that is misleading will lead to contempt for the judges, which may affect public confidence in them, as well as to the conduct of “kangaroo courts” which will harm the regular functioning of the judges. It was stressed that in order to fulfill the goals of the judicial system, there must be assurance that, despite the complexity of the arena in which the judge operates, his considerations will always be relevant and that his decisions will be of a high quality.

11.  In the appellants’ opinion, the balance between the principle of independence and public confidence. on the one hand, and the public interest in oversight of an authority that acts as a public trustee on the other, should be achieved in a manner that allows for effective oversight of the judicial system without causing the aforementioned potential harm.  In their pleadings, the appellants enumerated the various frameworks in which oversight of the legal system is possible. They also pointed to the presently existing mechanisms for maintaining the personal and professional independence of judges and their public standing. The appellants also refer to the position adopted by Professor Segal, according to which the appropriate solution is to publish the information without attaching the names of the judges (Ze’ev Segal, The Right to Know in Light of the Freedom of Information Law (2000), 143-144 [hereinafter: Segal]). It was further claimed that the issue of the appropriate balance between the interest of preserving judicial independence and the judges’ duty to report was discussed and decided by the legislator in the framework of the Ombudsman for Complaints against Judges Law, 2002 (hereinafter: Ombudsman’s Law). According to the Ombudsman’s Law, the work of the Ombudsman’s Office is protected by a statutory duty of confidentiality, and the reports that it publishes do not indicate the names of the judges against whom complaints have been lodged. The appellants argue that an analogy should be drawn from that arrangement to our matter.

According to the appellants, in the balance between the need to maintain the independence of the judiciary and public confidence therein and other important interests, to the extent that the matter is one of information that relates to the functioning of a worker in a personal manner, the stricter standard of near certainty should not be applied, and proving a “reasonable basis for concern” or “reasonable possibility of harm to justice”, should suffice, due to the sensitivity of the concrete information. In this context, reference was made to case law that established the standard of “reasonable possibility” for the purpose of balancing between freedom of information and the interest of ensuring that justice be done by the judiciary. They referred specifically to CrimA 126/62 Dissenchik & Hon v. Attorney General [1963] IsrSC 17 169 (hereinafter: Dissenchik), and to CrimA 696/81 Azulai v. State of Israel [1983] IsrSc 37(2) 565 (hereinafter: Azulai).

12.  The appellants explain that in order to amend the data with explanations, a very sizeable allocation of resources will be required of them. Moreover, they think that such information which is capable of explaining the statistical-technical data. “encroaches” on the area of judicial discretion in the conduct of cases—and such information was excluded from the application of the Freedom of Information Law.

13.  The appellants maintain that, considering that the information was sought for the sake of the public interest in pointing out the burden imposed upon the courts system, these goals of examining the information can still be achieved if the information is handed over to the respondents with the information segmented according to judge, without mentioning individual names. According to them, this is a good legal solution, compatible with the provisions of sec. 11 of the Freedom of Information Law.

 

Pleadings of the Respondents

14.  The respondents explained that publishing information about the activities of public authorities, including the judiciary, is part of their occupation in the area of communications and journalism; therefore, failure to hand over the information infringes upon their freedom of occupation. They stressed the public’s right to know about the judiciary, and explained that their goal was not to besmirch judges, and that prior to each publication, the response of appellant no. 1 would be sought.

15.  The respondents complained that their request was rejected in the letter of Adv. Laizer, who is not the authorized party for matters of freedom of information on the part of appellant no. 1; and this only a few months after appellant no. 2 notified them that the information would be delivered. They also pointed out that in the statements of pleadings, appellants claimed that producing the requested information involves an unreasonable allocation of resources, which is likely to disrupt the orderly functioning of the authority. However, when the Court ordered the appellants to submit an affidavit concerning the estimated cost of carrying out this task, it emerged that the computer program used by the appellants enables the data to be produced without any unreasonable allocation of resources. Despite this, the appellants performed an about-face and raised new arguments in support of their refusal to deliver information.

16.  The respondents contend that the information they are requesting is not information about the “content[s] of a judicial proceeding”, but rather, information about the administrative side of the legal system, which falls within the rule of disclosure under the Law. According to them, in order to fall within the exception to the delivery of information under sec. 9(b)(1) of the Law, the appellants would have had to prove that disclosure of the information would cause disruption in the functioning of the Authority, with a high degree of certainty, of real, severe harm. Such proof was not forthcoming. They object to the appellants’ argument that in matters concerning the judiciary, a lenient criterion of “reasonable possibility of harm” should be applied, and they stress that this was raised only in the appellants’ summations. Moreover, they are of the opinion that the case law on which the appellants sought to rely is based on the assumption that disclosure of the requested information involves harm to the pursuit of justice or the purity of the legal process, which was not the case here. They say that there is no place for the concern that the judge will not be able to withstand criticism relating to his performance, for exposure to such criticism is an intrinsic part of his judicial role. It was claimed that the judiciary acquires the confidence of the public, in part due to its transparency, and that, regardless, this confidence is liable to be harmed by the revelation of information about case overload. According to the respondents, the fact that the requested information cannot serve as an index of the burden borne by the court, or by a particular judge, cannot justify its being withheld.

The respondents are also of the opinion that the Ombudsman’s Law has no relevance for the matter at hand, and that the distinction the appellants wished to draw between systemic information and personal information has no statutory basis.

 

Deliberations

17.  The appeal before us is unlike other appeals under the Freedom of Information Law. If, until now, appeals under this Law dealt with the implementation of the Law on the part of other authorities, the present appeal is concerned with the implementation of the Law by the courts system, and we, who are an integral part of that system, are being asked to decide the matter, In doing so we are bound, as in every appeal under the Freedom of Information Law, by the provisions of the Law, which must provide the guidance for the path we take, joined by professional discretion, conscience, and the sense of justice. In making such a determination we are obliged, naturally, to be doubly and triply cautious, and it has often been said in the past by President Barak that “when we sit in judgment, we are being judged” (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2000); Aharon Barak, “Speech in the Supreme Court on his Retirement from the Bench”, Mishpatim 38 (1) 3, at pp. 10-11 (5768-2008) (hereinafter: Barak, “Retirement”).

18.  Let me state from the outset, in brief, that my conclusion, after having examined the pleadings of the parties and all the material relevant to the subject, is that respondents have a right to obtain the requested information, and that the appellants have not succeeded in showing that the interference with the activities of the courts as a result of the publication, as they claim, is a near certainty. I found that the information that was requested is in essence administrative information, to which the Freedom of Information Law applies; in other words, this is information to which the public has a right of access. In my view, the public interest in the information also emerges from the identity of the parties: on one end, the courts system, a public authority, whose influence on the lives of the individual and whose effect in shaping these lives is substantial, and knowledge of whose activity there is a clear public interest, whereas on the other end the fact that the information was sought by people from the media who are interested in the information for the purpose of fulfilling their journalistic function, and whose activity is extremely important in the realization of freedom of expression of the public and the fashioning of a civilized society. As stated, I did not find that the appellants could invoke the exception to the publication of information under sec. 9(b)(1) of the Freedom of Information Law, which deals with interference with the functioning of the authority. The activity of the courts is characterized by transparency that is not only systemic: it also involves personal transparency in relation to the judges trying the cases, which exposes them, even today, to harsh public criticism. This being the case, it is difficult to accept the argument that publication of the requested data will detract from the judicial independence of judges, to their functioning and to public confidence in them. As I will show, even if it is not possible to rule out the possibility of the consequences against which the appellants warn, such as harm to the esteem which judges have been accorded or misuse of the information, many of the arguments raised in this context are conjectural, focusing on cases of callous, litigious reporting, which is the exception rather than the rule. These arguments do not attribute the appropriate weight to the right of the public to know about the judiciary and the possibility that most of the reporting will be neutral, or at least fair. I found that appropriate weight must be attributed to the high standard of conduct that is expected of a judge, as well as to the fortitude required from a person selected to fulfill a judicial function and who is expected to rule according to the law, even when faced with enormous pressure. When one takes into account the transparency characterizing the activity of the courts, including in weighty cases that involve substantive matters, it is difficult to justify not according the same treatment to quantitative data concerning the activity of the system. I believe that transparency on this matter, too, will only strengthen confidence in the system. The position taken by the appellants seeks to create a different attitude to courts vis-à-vis other governmental authorities that were made subject to the Freedom of Information Law. I did not find—even given the distinctive nature of the judicial function—that any reasons were given that would warrant such a differentiation.

19.  The subject under discussion includes within its purview various rights and interests, some in concert, some in conflict. All of them are worthy of representation, while above them hovers the spirit of the Freedom of Information Law, the purpose of which is to “help promote social values, including equality, the rule of law, respect for human rights, and also to allow more efficient oversight of the public of the acts of the government” (Freedom of Information Bill, 5757-1997). In our matter, on the one hand stand the rights of the public to know and to obtain information about the modes of action of the public authority—and in this case, the courts—as well as the right of the public to oversee the governmental authorities; and on the other hand, the status, mode and orderly functioning of the courts and the judges. This interest is seemingly independent, but it incorporates weighty rights in our system such as the right to due process. The place of the value of human dignity, of the dignity of the judge and the right not to be put to shame and not to be denigrated should not be ignored, but neither should the dignity of the system, which is essential for ensuring its proper functioning. These are the topics that I shall discuss.

I will begin with the normative framework within which the discussion will be conducted – the Freedom of Information Law.

 

The Normative Framework – the Freedom of Information Law

20.  The Freedom of Information Law developed from the right to examine documents held by a public authority. In the evolution of the right to examine, Israeli law first recognized a private right of examination—the right of the individual to view the documents held by an administrative authority and which were used in the making of a decision which concerned him (HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325 (hereinafter: Shapira); HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69 (hereinafter: Fital), at p. 71; CA 6926/93 Israel Shipyards v. Israel Electric Corporation [1994] IsrSC  48(3) 749, at p. 796; AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465 (hereinafter: HaAretz), at p. 469). This right, which is one of the foundations of the democratic regime, is derived from the right to be heard and from the duty of the public administration to act in a transparent fashion (LCA 291/99 D.N.D. Jerusalem Stone Supply v. V.A.T. Director [2004] IsrSC 58(4) 221 (hereinafter: Jerusalem Stone), at p. 232). Its source is in the case law, in that it is one of the principles of natural justice (Fital, at p. 72).

A significant development occurred in 1998, with the enactment of the Freedom of Information Law and recognition of the right of the individual to view documents held by the authority, even where there is no personal interest in the information, and subject to the exceptions prescribed by the Law (Segal, p. 11; Tax Authority; HaAretz, at p. 472; Explanatory Notes to the Bill). Our interest, therefore, is in the public right of inspection.

21.  The right of the individual to obtain information about the activities of the governmental authorities “is one of the cornerstones of a free society” (AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217 (hereinafter: Council for Higher Education), at p. 233. See also Jerusalem Stone, at pp. 232-33); “The foundations of democratic culture” (sec. 15 of my opinion in AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009] (hereinafter: Government Corporations). It is “a preliminary condition for the realization of other rights, and a basis upon which, in a democratic society, it is possible to build a culture of rights” (Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, 97 (hereinafter: Barak, “Freedom of Information”). The right to obtain information is based on the conception of a governmental authority as a public trustee. As a public trustee, the administrative authority is held to a standard of detailed accountability to the public it represents, which will allow the public to understand how it has exercised its authority and the power that was placed in its hands, the range of its activities etc.

22.  The principle of freedom of information has several purposes, the realization of which must guide us when we address any petition or appeal dealing with freedom of information. First, the right to obtain information about public authorities is closely connected to freedom of expression and the public’s right to know. As is known, under the broad span of freedom of expression are to be found other freedoms that are essentially connected to it, derived from it, and vital to its realization. The broad protection enjoyed by the freedom of expression covers these as well and impacts the extent of their reach (HCJ 5771/93 Citrin v. Minister of Justice [1993] IsrSC 48(1) 661, at p. 673). Realization of the right to know involves the right to information: “There is no freedom of expression without the right to know, and there is no right to know without freedom of information” (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport), at p. 73). The purposes served by freedom of expression mandate recognition of a broad right to know, and therefore also of a broad right of access to information. The fact that freedom of expression underlies the right to information and is bound up with it led to its recognition as a constitutional right, even though it is not entrenched explicitly in Basic Law: Human Dignity and Liberty (AAA 11120/08 Movement for Freedom of Information v. State of Israel – Antitrust Authority [Nevo –  November 17, 2010] (hereinafter: Antitrust Authority), para. 9 and the references there).

The second purpose of the principle of freedom of information is the exercise of effective civilian review and oversight of the activities of governmental authorities. “The public eye is not only an expression of the right to know, but it is a reflection of the right of oversight” (HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353, at p. 361; see also AAA 10845/06 Keshet Broadcasting Co. v. Second Authority for Television and Radio [Nevo – November 11, 2008] (hereinafter: Keshet Broadcasting), para. 65); Segal, at p. 102). The accessibility of information is a condition of the ability of the public to oversee the governmental authorities, to form an informed view of their activity, “to demonstrate involvement in governmental activity and to take part in the formation and fashioning of appropriate governmental culture . . .“ (Government Corporations, at para. 15). It makes possible the realization of political and civil rights and is an important component in the fostering of active, involved citizenship. The flip side of the coin is that transparency of the activity of the authority ensures an important contribution to “public hygiene”, as described by Justice Hayut in Council for Higher Education, at p. 231, for improving the quality of governmental decisions and its activities.

A third purpose of the right to information is ensuring public confidence in public authorities. The knowledge that the authority is subject to oversight, which can be exercised by any individual, contributes to the confidence in the governmental authorities (Antitrust Authority; Segal, at p. 101.) As I mentioned in the past, without public confidence in the system, democratic society cannot exist (HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister [2007] IsrSC 62(3) 445, at p. 493).

The fourth purpose of the right to information is proprietary. In its capacity as a body serving as a trustee for the public, the public authority holds information in trust for the public. The public is the owner of the information, and the authority cannot act in respect of this information as if it were the owner of property belonging to it. The importance of this goal is highlighted in the commentary to the Bill, whereby “… in fact, it would appear that it is difficult to uproot the proclivity of the authorities for regarding information as their property and not property that is held in trust by them for the public and on its behalf” (See Freedom of Information Bill). Accordingly, every one of the individuals constituting the public has the right to obtain information from the authority, even if he has no direct, personal interest in that information, when there are no good reasons for withholding it (HCJ 2283/07 Legal Forum for Israel v. Judicial Selection Committee under Section 4 of Basic Law: The Judiciary [Nevo – May 5, 2008], per Justice Hayut, para. 5;  HaAretz, at p. 471; AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – November 15, 2012] (hereinafter: National Insurance Institute), per Justice Hendel, para. 5).

23.  I would point out that the hierarchy amongst the various purposes of the right to information is in dispute. There are those who viewed the protection of freedom of expression as the main purpose that the Law is designed to realize (Ministry of Transport, at pp. 72-73); some saw it in the value of transparency and the ability to maintain oversight of governmental activity (Government Corporations, at para. 37; Tax Authority, per my opinion, para. 56). As I pointed out in Antitrust Authority, I do not think that any one of these purposes should outrank any other. The different purposes are all foundational to the Law. To a great extent, they are bound up with and affect one another. In the circumstances of a particular case, one of these purposes will be the focus of the discussion, and at times, the discussion will touch upon several of them. One way or another, I believe that “…rather than examining the centrality of any particular purpose that lies at the basis of the Law and examining the request for information in its light, one must examine which of the purposes underlie the concrete request and examine their combined weight” (para. 9).

24.  A person’s entitlement to information held by a public authority arises if he succeeds in passing through the three filters on which the Law is based, as Justice Cheshin put it (HaAretz, at pp. 472-472).

The first filter is to be found in sec. 1 of the Law, which sets the parameters of the broad, principled range of the right to information:

Every Israeli citizen or resident has the right to obtain information from a public authority in accordance with the provisions of this Law.

The second filter prescribes exceptions to the right to information (secs. 8 – 9 of the Law), which define the cases in which information will not be delivered by the public authority or in which it is not obliged to deliver information, due to the existence of other, potentially conflicting interests and rights. Like all rights, the right to information is not absolute, but rather is relative. At times, it yields to other rights that merit protection, such as the right to privacy and to reputation, or to weighty interests, such as state security or foreign relations. In sec. 8, the Law enumerates a list of cases in which the public authority has discretion as to whether to grant the request for information. One can generalize and say that these cases are concerned with “administrative efficiency and practical constraints” (HCJ 2398/08 State of Israel – Ministry of Justice v. Segal [Nevo – June 19, 2011] (hereinafter: Segal), per (then) Justice Naor, para. 26); Eliezer Shraga & Barak Shahar, Administrative Law – Basic Principles vol. 1 (2009), 357), in view of which the authority is authorized to dismiss the request for information. The Law also provides a list of exceptions to delivery of information (sec. 9), distinguishing between cases in which information is not to be delivered, such as a case of concern of harm to national security or foreign relations (sec. 9(a)(1)-(2) of the Law) or harm to a person’s privacy (sec. 9(a)(3) of the Law), and cases in which the authority is granted discretion as to whether to hand over the information (sec. 9(b) of the Law). These exceptions express various points of balance between the right to information and other rights and interests, and place broad discretion in the hands of the public authority. The main consideration that the public authority must weigh in its decision is that of the public interest in disclosure of the information (Segal, at p. 199).

The third filter (sec. 17 of the Law) grants the court authority to order the disclosure of information contrary to the position of the public authority (and see also HaAretz, at pp. 472-473).

To these three filters are adjoined the provisions of the Law that limit the realization of the right to information:  inter alia, sec. 10, which deals with the considerations of the public authority; sec. 11, dealing with the possibility of delivering partial information or with conditions attached; sec. 13 which deals with protection of third parties; and sec. 14 of the Law, which contains a list of bodies that are not subject to the Law.

25.  This is the normative framework of the deliberation. Before we examine the arguments of the parties, I will discuss the issues that define the dispute before us. First, I will consider the nature of the judicial function and the principle of judicial independence which lies at its core. Juxtaposed to this I will present the mechanisms of supervision to which governing judges are subject, which are of importance in the present matter due to the fact that the purpose of the present petition is to increase the transparency of the activity of the courts. I will then proceed to examine the arguments that were raised by the parties in order to ground their contention that handing over the requested information will cause disruption with the proper functioning of the courts system, and that they may therefore invoke the exception to the delivery of information specified in sec. 9(b)(1) of the Freedom of Information Law; I will then decide on these arguments.

On Judging and the Image of the Judge

26.  Judging is a calling.  It is not like other occupations. It is not a trade. To choose a judicial career is to choose a destiny, a way of life. The task that befalls a judge—to decide disputes and to adapt the law to the changing exigencies of life, to preserve and protect the rule of law, human rights and all other values of Israel as a Jewish and democratic state (Aharon Barak, “On My Role as a Judge” Mishpat Umimshal  7 (5764-2004) 33; Tova Strasberg-Cohen and Moran Svorai, “Justice Bach – The Image of a Judge” Gabriel Bach Volume  (2011) 731, 740 (hereinafter: Strasberg-Cohen & Svorai, Bach Volume)) — is a weighty one. The authority and the power vested in the judge’s hands have the capacity to affect—sometimes very profoundly—the life of the individual and his rights; they can have a significant impact on shaping the face of society. Vice-President M. Cheshin and (then) Justice E. Rivlin described the distinctive nature of the vocation of the judge as follows:

The judicial profession is no ordinary profession: it is a profession that is one of a kind; a profession of destiny that imposes upon the judge, almost of itself, special tasks and norms of behavior. The judge has a heavy—extremely heavy—burden placed on his shoulders: to judge and to decide the law. A person’s fate is entrusted to his hands—not only metaphorically — his liberty, his money, and his rights. This requires the judge to act with integrity, discretion, moderation, caution, and precision, and to continually ensure that he does not deprive the litigants before him of their rights (DC 2461/05 Minister of Justice v. Judge Cohen [2005] IsrSC 60(1) 457 (hereinafter: Judge Cohen), at p. 461).

The special nature of judging characterizes those who have chosen this profession and were chosen for it. A person who merited donning the judicial robes is obligated to justify, in all aspects of his life, in his conduct both in the court and outside of it, the trust that has been placed in him. The highest personal, professional, moral, and ethical standard is demanded of him (Tova Strasberg-Cohen, “The Image of the Judge” Parliament, 72, available at the website of the Israeli Democracy Institute, www.idi.org.il, hereinafter: Strasberg-Cohen, Parliament). He is required to encapsulate in his personality a blend of personal attributes, professional sills, responsibility, wisdom and discretion that will guide him, as a kind of inner compass:

From the special nature of the judicial system—with which the judge is occupied in making fateful decisions, in the criminal law and in preserving the rule of law, human rights and democratic values—is derived the requirement that he requires a special personality, special characteristics, and a special nature to qualify him for his position. Principal amongst the required qualities are: personal honesty, integrity, moral rectitude, clean hands, professionalism, independence of thought, objectivity, and neutrality. In addition to these qualities, the judge must—when sitting in judgment—be attentive, sensitive, tolerant, and patient. He must hold the reins of the judicial process and conduct the trial fairly and efficiently. He must display a judicial temperament even though the process—by its very nature—is fraught with tension and pressure. (Ibid)

And as the prophet said:

He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God (Micah 6:8).

The judge is a symbol of values, conscience, and morality. In his conduct, and in all that he does, he must constitute a shining example for the public in his respect for the law, in his meticulous adherence to it, and in his exemplary, respectful, and respecting personal conduct.

A preliminary, essential condition of the judge’s ability to serve in that capacity is the confidence of the public, which recognizes his authority to judge and will accept his decisions as binding. Not only is the matter of the individual judge at issue before us, but also public confidence in the system as a whole (and see Judge Cohen, at p. 461).

Judicial Independence

27.  The judiciary is one of the three branches of government on which the democratic regime is founded. The alignment of the relations between the judiciary, the legislature and the executive is based on a balance between the authority of these branches in a way that allows for autonomy on the one hand, and mutual oversight on the other—the existence of separate governmental authorities that amongst themselves maintain mutual relations of “checks and balances”:

One principal is that of the separation of powers: the legislature will legislate, the executive branch (the government) will execute and the judiciary will sit in judgment.  The combination of words “separation of powers” does not indicate the full content of the expression. The essence of this principle does not lie in the “separation of powers”, i.e. the separation between the branches for the sake of separation, but in the decentralization of power and authority between different and separate branches. The essence lies in the legislature engaging solely in legislative acts and not in executive ones, the executive solely in executive acts and not in legislative and judicial ones and the judiciary engaging solely in judicial acts and not in legislative and executive ones.” ((then) Justice M. Cheshin, HCJ 6971/98 Paritzky v. Government of Israel [1999] IsrSC 53(1) 763, at p. 790).

The principle of checks and balances between the governmental branches requires, therefore, that there be an independent judiciary, which is not susceptible to any inappropriate influence, either on the part of the other governmental braches or on the part of any interested party.

28.  Judicial independence is one of the basic values of the democratic system, and its existence is essential for the realization of all the other values of the system. It is one of the judge’s most important assets in fulfilling the weighty tasks laid upon his shoulders. It is the crux of judging, “the heart and soul of the judicial enterprise” (Tova Strasberg-Cohen, “Judicial Independence and the Supervision of Judges’ Conduct: Reflections on the Purposes of the Ombudsman for Complaints against Judges Law, 2002”, Mishpat Ve’Asakim 3 (5765-2005), hereinafter: Strasberg-Cohen, Mishpat Ve’Asakim), and it constitutes the basis and the condition for realization of the right to due process. At the core of judicial independence are to be found objectivity and neutrality, which are the first principles of judging (Strasberg-Cohen & Svorai, Bach Volume, at p. 737; Meir Shamgar, “Independence of the Judicial System as a Fundamental Element of Democratic Order” Hapraklit 42 (5755-1995), 245, 249 – hereinafter: Shamgar). The meaning of this is that the judge decides the case according to the law, with freedom of thought and conscience, without fear and without bias, acting in accordance with the law and with professional discretion and a sense of justice and conscience, with no pressure nor incentive applied to him (Strasberg-Cohen, Mishpat Ve’asakim, at p. 335; Aharon Barak, The Judge in a Democratic Society (2004), 124 – hereinafter: Barak, The Judge in a Democratic Society; Tova Strasberg-Cohen, “The Tension between Judicial Independence and Accountability”, Berenzon Volume (5767-2007) 127, 129 – hereinafter: Strasberg-Cohen, Berenzon Volume).

29.  Judicial independence ensures the pertinence and the quality of the judicial decision. It is mandated by, and warranted in view of, the powers that are placed in the hands of the judge—powers which may decide fates and change the courses of lives. Its importance, however, is not exhausted at the level of the individual litigant; significantly, for the public at large, this independence ensures equality before the law to all who cross the threshold of the court, as well as enabling the judge to fulfill his role in protecting human rights and the rule of law (see also: Strasberg-Cohen, Berenzon Volume, at p. 130; Eli Salzberger, “Temporary Appointments and Judicial Independence: Theoretical Thoughts and Empirical Findings from the Supreme Court of Israel”, Mehkherei Mishpat  19 (5763-2003) 541, 543; Michal Agmon-Gonen, “Judicial Autonomy? The Threat from Within”, HaMishpat 10 (5765-2005) 213, 216 (hereinafter: Agmon-Gonen)). In other words, more than protecting the judge, judicial independence protects the public whom he judges.

30.  There are two facets to judicial independence. The first facet is the personal independence of the judge who hears the case. Personal judicial independence is secured within two concentric circles. In the inner circle is to be found the personal substantive independence of the judge, i.e., the liberty granted to the judge to decide the law according to his best professional understanding and conscience, with no dependence on any external factor, in order to ensure neutrality and objectivity in the conduct of the case and the decisions made therein. Personal independence of the judge is prescribed in sec. 2 of Basic Law: The Judiciary, the heading of which is “Independence”: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law” (and see sec. 5 of the Code of Ethics for Judges, 5767-2007, and in particular, sec. 5(c) of the Code, which states that “The judge shall fear no one, and shall not be influenced, in the fulfilling his role, by public opinion, concern about criticism or desire to please”). Of course, the decisions of a judge are subject to appellate review, but this is an integral, fundamental part of the judicial enterprise, which does not negate or erode the fact that at the time when the judge makes his decision in a case, he does so according to his conscience and his best judgment; hence the activity of the appeals court cannot constitute harm to his judicial independence (Shlomo Levin, “Judicial Autonomy – An Inside Look”, Iyunei Mishpat  29 (2005) 5, 11 (hereinafter: Levin)).

The autonomy of the judge is not intended to be confined to relations with the legislature and the executive; rather, it extends to fulfillment of the judicial role with administrative independence vis-à-vis every internal factor in the judicial system (Shamgar, at p. 254; Levin; Barak, The Judge in Democratic Society, at p. 125).

31.                                                                                           In the outer circle of personal independence are the rules that seek to prevent inappropriate interventions in the function of the judge that affect his substantive independence. These are rules which seek to ensure for the judge a professional working environment free from pressures and concerns regarding potential personal consequences stemming from a particular ruling (Shamgar, at p. 248; Shimon Shetreet, “Culture of Judicial Independence in Israel: Institutional and Substantive Aspects of the Justice System in a Historical Perspectives”, Law and Business 10 (5769-2009) 525, 529-533 (hereinafter: Shetreet)).  We will mention in particular those rules that set out the modes of appointment and conditions of office of the judge (Basic Law: The Judiciary, secs. 4, 7  and 10); the rules concerning the personal immunity of the judge in torts for an act done in the capacity of his judicial role (sec. 8 of the Civil Wrongs Ordinance [New Version], 5728-1968; LCA 6830/00 Bernowitz v. Te’umim [2003] IsrSC 57(5) 691, at p. 702; and rules about taking testimony from judges (LCA 3202/03 State of Israel v. Yosef [2004] IsrSC 58(3) 541).

32.  For the sake of completeness I will mention that the second aspect of judicial independence is institutional independence, i.e., the administrative and organizational independence of the judiciary. Institutional independence is closely connected to personal judicial independence. The latter draws sustenance from the former, without which it would not be possible to ensure, fully, the personal independence of judges. The issue of institutional independence is not the focus of our discussion, and I will therefore say no more on the subject (for elaboration of the subject see: Aharon Barak, “Judicial Independence – How?” Mivhar Ketavim 1 (5760-2000); Barak,  Judge in a Democratic Society, at pp. 125-127).

33.  To sum up this point: in matters of judging, the judge is not subject to the authority of any other person, or any governmental authority, or any office, or to the power of money. He is subject only to the authority of the law. Judicial independence is a precondition—and there is none more vital —for allowing the judiciary to fulfill its role in protecting the rule of law and ensuring the orderly functioning of the other branches, as well as its role in protecting human rights and the basic values of society, and most of all, in doing justice. It comes to ensure that the judge can fulfill his function with professionalism and without bias, in that it constitutes a barrier against abuse of authority or deviation from the bounds of competence by other governmental authorities (Shamgar, at p. 254), or against attempts by those with an interest and power to influence the proceedings. Judicial independence is fundamental in ensuring due judicial process. It is the basis for securing the confidence of the public in the legal system, that “judging is executed fairly, neutrally, with equal treatment of litigants and without even a smidgeon of personal interest in the outcome” (HCJ 732/84 MK Yair Tzaban v. Minister for Religious Affairs [1986] IsrSC 40(4) 141 (hereinafter:  Tzaban), at p. 148). As such, it is one of the basic values of democracy: there is no properly-functioning regime where the public has no confidence in the fact that the judiciary resolves disputes that come before it on the merits, objectively, and independently. Without public confidence in the characterization of the judicial system as described, society has no effective mechanism for deciding disputes and for the conduct of life in a cooperative, organized, and orderly framework. Public confidence and the independence of the judiciary operate reciprocally: judicial independence provides the basis for public confidence in the judiciary, whereas public confidence strengthens judicial independence and is the source of its power (Strasberg-Cohen, Berinson Volume, p. 131).

Oversight and Supervision of Judges – the Principle of Accountability

34.  “Our system relies on unreserved trust in judges, in their integrity, their morality, their humanity, and their values” (HCJ 188/96 Tzirinsky v. Vice President of Hadera Magistrates Court [1998] IsrSC52(3) 721 (hereinafter: Tzirinsky) , at p. 743; and see Barak, The Judge in a Democratic Society, at p. 50). At the same time, even given the judicial independence enjoyed by the judges and the courts system, they are not immune from supervision, nor are they exempt from it.

35.  Judges are not like the other functionaries in the public service. The nature of their task, its particular characteristics, as mentioned above, and inherent duties, as well as responsibility for the high standard of conduct to which the judge is held, both inside and outside the courtroom, are different from those pertaining to other public servants. The role of the judge is characterized by norms that he sets forth in his decisions, within the framework provided by the law, to which the influence and application are not limited to the litigants in the particular case before him, but rather, reach the entire public. All these create a substantive, significant difference between judges and other public servants (in this context, cf: Daphna Avnieli, “Who Will Judge the Judges and How?” Hapraklit 47 (5764-2004) 77, 95; Strasberg-Cohen, Mishpat Ve’asakim, at 337; Agmon-Gonen, at p. 230). However, precisely because of these characteristics of the judicial function, judges are subject to the duties that apply to other public functionaries as public trustees (see also the Preface to Code of Ethics for Judges; Tova Strasberg-Cohen and Moran Svorai, “Mechanisms for Supervision of the Judiciary” HaMishpat 24 (2007), 47 (hereinafter: Strasberg-Cohen and Svorai, HaMishpat)). The concept of trusteeship leads to a requirement of transparency that applies to all public authorities. Transparency, which I shall discuss presently, also involves supervision:

The indispensability of supervision is derived from the requirement of transparency that stems from a conception of the public authority and its workers as trustees on behalf of the public. About this is has been said: “The public authorities are trustees of the public. They have nothing on their own, and everything that they do have, they have for the public (HCJ 1635/90 Zarzewski v. Prime Minister [1991] IsrSC 45(1) 749, at p. 839). Even despite the fact that due to these special characteristics of the judicial task, judges should not be regarded as public servants in the narrow sense, the duties that apply to public servants as public trustees should be applied to them, mutatis mutandis (Strasberg-Cohen, Berinson Volume, at p. 132).

The Judge’s being subject to supervision stems, therefore, from the transparency that is necessitated by the activity of the courts as a public body, but it also expresses acknowledgment of the fact that the judge is a human being, and like every human being, “there may be failings and defects in his behavior and his conduct” (Strasberg-Cohen, Berinson Volume, ibid.). The fact that the judge is subject to supervision and oversight of his conduct and behavior in the framework of fulfillment of his judicial role—this is the “Principle of Accountability”.

Thus, “… supervision is desirable. Like every governmental authority, we too must be subject to supervision; just as there is no authority that is higher than the law, so too is there no authority which is beyond supervision” (Aharon Barak “Supervision of the Judiciary”, Mivhar Ketavim (2000) 961). The fact that judges are subject to supervision contributes to the public confidence in the courts, to the propriety of legal process, to the quality of the decisions that are made, and to the quality of the functioning of the legal system as a whole.

36.  What is the nature and the extent of the supervision of judges? How does it comport with judicial independence and the principle of accountability?

Normally, three fundamental approaches are cited for balancing the natural tension existing between the principle of judicial independence and the principle of accountability (Strasberg-Cohen, Berinson Volume, p. 134-135). The first approach holds that judicial independence must be absolute, with absolutely no interference from an outside body. The proponents of this approach believe that the legal system itself must handle claims about the conduct and the behavior of judges, including with regard to matters of the administration of justice, and that action by external review mechanisms should not be permitted. There are also those who claim that judes’ accountability to the public for their actions is only indirect and passive, and is exhausted by the publication of judicial decisions and the written reasons judges provide for these decisions (Haim H. Cohn, “Heretical Thoughts on Public Confidence”, Shamgar Volume 2 (5763-2003) 365, 381 (hereinafter: Cohn)). This approach is inconsistent with the predominant approach today whereby no public authority is above external supervision.

The second approach is that the judge, like every public servant, must be subject to supervision. This approach assigns no real weight to the substance and the goals of the principle of judicial independence or to the special nature of the role of the judge vis-à-vis public servants. This approach, too, expresses an extreme position and does not attribute proper weight to the interests that are relevant to the matter.

The third approach, accepted today both in Israel and the world over, is a combined approach, which grants weight to both principles and strikes a balance between them (Strasberg-Cohen and Svorai, HaMishpat, at pp. 47-48). This approach contends, inter alia, that the principle of judicial independence is a means for protecting democracy, the rule of law, and human rights, and insofar as it does not serve these purposes, it should be limited (Strasberg-Cohen, Mishpat Ve’Asakim, at pp. 339-340).

Existing Mechanisms for Supervision of Judges and Courts

37.  Supervision of judges in Israel occurs within formal, institutionalized frameworks, into which the preservation of judicial independence and the balance between that independence and the need for supervision are built. However, this supervision also occurs informally, sometimes raising questions as to the appropriate manner to enable supervision while still preserving the judicial system and its independence.  As will be explained, the existing mechanisms of supervision extend to all areas of activity of the courts.

a.    Supervision Mechanisms Built into the Judicial Process

38.  Review is the backbone of the judicial process. This process, and the rules by which it is conducted, are based on the conception that the conduct of a process and the rendering of a decision in that process are subject to review. The principal mechanism of review of a judge’s decision is the appeals process. The review that is embodied in the appeals process may also relate to: the conduct of the judge in the process; to his attitude to the litigants, their attorneys and the witnesses; to the manner in which he conducted the hearings; to the manner in which he expressed himself; to delays in issuing the judgment and more (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, 391 (hereinafter: Avnieli, “Control of Judges”).

39.  Another means of review is the principle of transparency, which constitutes an integral part of the judicial process and of the activity of the court; its main manifestation is in the principle of publicity of proceedings. This principle is one of the foundations of the democratic regime, and has acquired constitutional status in our legal system (HCJ 5917/97 Association for Civil Rights in Israel v. Minister of Justice [Nevo –October 8, 2009] (hereinafter: Association for Civil Rights), para. 17). Its meaning is that as a rule, a trial will be held publicly, will be transparent, and will be open to the public (sec. 3 of Basic Law: The Judiciary. See also sec. 68(a) of the Courts Law [Consolidated Version] 5744-1984 (hereinafter: the Courts Law)). The limitations clause listing matters in which the legislator permitted the courts not to hear a case in open court was interpreted in the case law as exclusive and narrow, in order to ensure that the principle of publicity is strictly maintained  (CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318, at p. 341).

The publicity of court proceedings is intended to ensure that the activity of the courts will be transparent and open to the public, and that the public will be able to observe how the system works, and also to criticize the system (HCJ 258/07 MK Zahava Galon v. Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon [2007] IsrSC 62(1) 648, at pp. 664-665, 676-677). Indeed, “proper government acts in daylight, in the open, and thus exposes itself to perpetual criticism …” ((then) Justice M. Cheshin, LCrimA 112/93 State of Israel v. Klein [1994] IsrSC 48(3) 485, at p. 516). The public nature of hearings is an essential condition for the proper functioning of the courts. It is “… one of the main guarantees of the regularity of the legal process, both in terms of doing justice and uncovering the truth, in practice, and in terms of the appearance of justice …” (CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444, at p. 450).

40.  There are three main rationales for the principle of the publicity of proceedings (CrA 11793/05 The Israeli News Company v. State of Israel  [Nevo – April 5, 2006] (hereinafter: Israeli News Company), para. 13-15; LCA 3614/97 Avi-Isaac v. Israel News Corporation [1998] IsrSC 53(1) 26 (hereinafter: Avi-Isaac), at pp. 45-46).

The first rationale is that the public’s right to know about the activity of governmental authorities is part of freedom of expression and freedom of the press (LCA 3007/02 Yitzhak v. Moses [2002] IsrSC 56(6) 592, at p. 598). The guarantee that the publicity of the proceedings provides for the transparency of court proceedings, as well as to the supervision and oversight of the courts and their activities was discussed by (then) Justice M. Cheshin stating:

The overarching principle, whose wings span the whole issue of publicity, is the principle of publicity of the proceedings in court. In the days of old, the elders sat in judgment in the gates of the city. Similar to the ancient gates, are the courts in our times, whose doors are wide open to those who wish to enter therein. The conduct of a trial, of any trial—other than the exceptions—occurs in public, and the publication of what has been done and what has been heard in the courtroom is simply a by-product of that publicity. Subject to considerations of physical room capacity, everyone is entitled to be present at courtroom hearings, and publication of what occurred in the courtroom extends the courtroom, as it were, to those not physically present. The public nature of the legal proceeding—which itself provides publicity—fulfills an exalted need in the system of open government and law. Publicity means—in practice—the transparency of proceedings in the court, and transparency ensures ongoing review of what occurs in the courtrooms. Transparency and supervision—those are the essential terms (CrM 5759/04 Turjeman v. State of Israel [2004] IsrSC 58(6) 658, at p. 662).

A second rationale for the principle of the publicity of legal proceedings is its contribution to improving the quality of the judicial decision (Avi-Isaac, at p. 46). “The exposure of legal proceedings to the public eye serves as a guarantee for the existence of public oversight of the courts, and to ensure the conduct of a fair trial and absence of bias” (Report of the Committee for Examining the Opening of Courts in Israel to Electronic Media, p. 14 (2004)).

The third rationale relates to public confidence in the public authorities in general, and in the courts in particular. The public nature of proceedings prevents the impression that law is conducted secretly, and that extraneous considerations are exercised (CA 152/51 Trifous v. Attorney General [1952] IsrSC 6(1) 17, at p. 23): justice must not only be done but must also be seen.

If so, the fact that as a rule, legal proceedings are conducted publicly ensures that the provisions of the law are followed scrupulously with respect to the conduct of trials, contributing to their fairness and to their proper conduct. It makes the process of doing justice transparent and accessible to the public as a whole, fortifying public trust in the judicial system (and see: LCrimA 5877/99 Yanos v. State of Israel [2004] IsrSC 59(2) 97 (hereinafter: Yanos), at p. 111)). These functions, which are served by the public nature of proceedings, render it an instrument of oversight of the judges and of their conduct.

41.  Alongside the public nature of the proceedings, other characteristics of the legal process are directed at ensuring transparency, and in this they contribute to the oversight of judges. In this context I will mention that judicial proceedings are documented in the protocol, which is intended to express and reflect what happens in the courtroom (and see: Dafna Barak-Erez, Administrative Law (5770-2010), at p. 613), and that there is a duty to provide written reasons for judicial decisions. The protocols and the duty to provide reasons are significant, necessary components in enabling the parties to challenge the decision before an appeals court, and in order to allow that court to review the judicial decision and the discretion that was exercised in the conduct of the process (on the importance of the protocol for review on appeal, see: CA 579/90 Rosin v. Ben-Nun [1992] IsrSC 46(3) 738, at p. 747. On the importance, for that purpose, of providing reasons see: CrA 446/01 Rudman v. State of Israel [2002] IsrSC 56(5) 25, at p. 30; CA 84/80 Qassem v. Qassem [1983] IsrSC 37(3) 60, at p. 70; CrM 3196/00 Abergel v. State of Israel [2000] IsrSC 54(2) 236, at p. 239). In addition, as an element of the transparency of the courts system, there is a right to view court files, even for non-litigants, as regulated in the Courts and National Labor Courts (Examination of Files) Regulations, 5763-2003 (on this matter, see Association for Civil Rights).

42.  Mention has been made, both in legislation and in the legal literature, of other means that can serve the function of supervision of the judges, such as the process for judicial disqualification, due to concern about bias (see Yigal Mersel, Judicial Disqualification Law (2006) 37); filing a civil suit for a judicial tort; the possibility of suing the state instead of bringing a personal suit against a judge; a suit against the state as being responsible for the propriety of the judicial system; and embarking on legal proceedings against a judge in cases which are not protected by the immunity from criminal proceedings that is afforded to a judge by virtue of sec. 34T of the Penal Law, 5737-1977 (Avnieli, Control of Judges, at pp. 392-399).

b. Supervision Mechanisms in the Disciplinary and Ethical Realm

43.  The main mechanism of oversight of judicial conduct is the institution of the Ombudsman for Complaints Against Judges, who operates by virtue of the Ombudsman’s Law. The Ombudsman’s Office is a separate, neutral, and independent body, whose job is to investigate “complaints about the conduct of judges in carrying out their functions, including the manner in which they conduct a trial (end of sec. 2 of the Ombudsman’s Law), for the purpose of improving the service given to the public by judges, while preserving judicial independence (Strasberg-Cohen and Svorai, HaMishpat at p. 54). The oversight exercised by the Ombudsman’s Office does not deal with the substantive aspect of the judicial function, which clearly falls within the principle of judicial independence, and which is subject to review by the appeals process. The Ombudsman’s activity focuses on the conduct of the judges on the ethical-disciplinary plane (ibid.), which, as befitting the nature of the judicial position, is held to a high normative standard:

Indeed, even that which is permitted to all other people, and even to other public servants, may well be prohibited to a judge qua judge. This is so with respect to his manner of speaking and his conduct, and with respect to the need to be meticulous in guarding against harm to the appearance of justice, and this is so with respect to the care he takes in conducting a well-run trial and more. This extra vigilance stems from the special nature of the judicial endeavor, in which the judge deals with fateful decisions in criminal and civil law, in preserving the rule of law, human rights and the values of society, while doing justice through the law. This vigilance also stems from the need to preserve public confidence in the judicial system— meaning the public’s sense that the judicial act is executed with fairness, neutrality, objectivity, without bias or prejudice, while maintaining the high moral level of the judges (Tova Strasberg-Cohen and Moran Svorai, “Oversight of Judges on the Ethical-Disciplinary Plane” Mishpat Umimshal 9 (2006) 371, 378).

The purpose of these norms, the observance of which is within the purview of the Ombudsman for Complaints Against Judges, is to preserve a high professional and moral standard in the judicial system, and to maintain and strengthen public confidence in that system.

Alongside oversight of the conduct of the judge in the courtroom and his maintenance of a judicial temperament that is in keeping with his judicial position, the Ombudsman also deals with aspects of the efficiency of the operation of the courts system, including the speed with which cases are handled.

44.  The oversight conducted by the Ombudsman is publicized in an annual report, which includes details of the complaints lodged each year against judges, without designating the names of the judges against whom the complaints are lodged. In addition, reasoned decisions regarding complaints that have been found to have merit are inserted into the personal files of the judge in question. The Ombudsman’s office is also authorized to recommend that disciplinary action be taken against a judge, or that his judicial appointment be terminated by the Committee for the Appointment of Judges (sec. 22 of the Ombudsman’s Law). At the same time, the Ombudsman’s office also looks to the system as a whole, by recommending steps to correct defects that emerge as general or broad phenomena and following through on their execution (Strasberg-Cohen, Berinson Volume, at p. 143).

The principles that have been laid down in the Ombudsman’s Law for the supervisory activity express a striving for effective oversight, together with caution, responsibility, and sensitivity to ensure that there is no violation of judicial independence (Strasberg-Cohen, Mishpat Ve’Asakim, at p. 342). The actions of the Ombudsman’s office express, therefore, a model of oversight of the activity of judges that involves public expression and reporting, which may have significant implications from the point of view of those over whom the oversight is exercised, but without exposure of the details of the judge in question.

45.  In addition to the activity of the Ombudsman’s office, aspects of supervision and oversight over the conduct of judges can be discerned in other frameworks as well: for example, the activity of the disciplinary court for judges (sec. 13 of Basic Law: The Judiciary and secs. 17 – 21 of the Courts Law); or the activity of the Ethics Committee under sec. 16B of the Courts Law (see also Strasberg-Cohen and Svorai, HaMishpat, at pp. 54-55).  These are joined by the fact that the courts are amongst the bodies subject to audit by the State Comptroller (State Comptroller Law 5718-1958, secs. 9 and 10(a)(2)). In addition, there is informal oversight of the courts system by the director of the courts and the presidents of the courts, which mainly consists of administrative oversight by means of tracking the number of cases and the pace of proceedings in each court (and see: Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 380).

Public Oversight

46.  To the mechanisms of oversight must be added the public criticism to which the courts and the judges are subject. Public oversight includes criticism of courts and of judges by jurists, academics, public representatives, the media, and of course—the general public. The possibility of criticizing judges as public functionaries is a component of freedom of expression. As stated, public confidence in the courts significantly depends on the ability of the public to publicly criticize them. Indeed, “justice is not a cloistered virtue, She must be allowed to suffer the scrutinty and respectful, even if outspoken, comments of ordinary men” (as cited (and translated) by Justice Etzioni, CrA 364/73 Seidman v. State of Israel [1974] IsrSC 28(2) 620, at p. 634). In this context, the fact that the deliberations of the courts are, as a rule, open to the public who may come, listen, see, and form a first-hand impression of the manner in which cases proceed is, obviously, of particular importance.

47.  The possibility of formulating criticism depends, as mentioned, on access to information. A major instrument of oversight for the public is the Freedom of Information Law. Various reports that the appellant publishes by virtue of the Freedom of Information Law allow the public to see the number of cases that are handled in the courts and the pace at which they are handled. Thus, the annual report of appellant no. 1 includes data concerning the number of cases that were filed and closed each year, the total number of cases pending, the distribution according to courts and according to areas of activity, and the average lifetime in years of a case. The bi-annual report published by appellant no. 1 includes data about the volume of cases, the number of cases that were filed and that were closed, segmented according to the courts, the types of proceedings and types of cases, and also data concerning the rate at which hearings take place, the distribution of the cases according to the number of years that they have been in the system, and the average lifetime of a case in the different courts. The judges’ dockets and the online management of cases make it possible to learn about the functioning of the system. Of course, this data does not refer to the volume of cases handled by a particular judge, or to the duration of proceedings in the cases he hears, which is the issue before us at present.

48.  I will add something that might be obvious: the importance of public scrutiny does not necessarily imply that the criticism requires or justifies internalization or correction. The criticism might reflect “passing whims, which are detrimental to fundamental principles,” in the words of President Barak (Aharon Barak, “Law and Judgment”, Selected Writings 1 (5760-2006) 961, 963), and it is clear that the judge should not wring his hands over them. The criticism is sometimes based on incomplete or wrong information. Sometimes it ignores relevant facts. In these cases, too, there is no justification for correction or change in the wake of the criticism (Barak, Farewell Address, at pp. 9-10).

Interim Summary

49.  I have discussed at length judicial independence on the one hand, and the fact of the court being subject to oversight and audit by means of various mechanisms on the other hand. It is precisely because of the elevated status of the judicial function that the mechanisms that ensure the transparency of the courts and their oversight are so important. They are able to increase and bolster public confidence in the courts in general and in the judges in particular. I will note at this point that given the publicity, transparency, oversight, audit, and supervision, one cannot but be surprised at the objection of the appellants to the request, which is something of an addendum, and not central, to the large, broad set-up of transparency in the courts, which only increases confidence in the judges and in the whole courts system.

At this stage let us turn to the Freedom of Information Law, and determine whether the appellants succeed in passing through the filters that it establishes. First I will look at whether the requested information is governed by the Freedom of Information Law. Then I will examine the reasons for the appellants’ refusal to hand over the information, and decide whether they can invoke an exception to disclosure by virtue of sec. 9(b)(1) of the Law, as they claim.

First Filter – Section 1 of the Freedom of Information Law

50.  As we have said, sec. 1 of the Freedom of Information Law states that every citizen or resident in Israel has the right to obtain information from a public authority. Section 2 of the Law defines a “public authority” for the purposes of the Law. Item (5) of the definition of “public authority” includes within this definition “Courts, tribunals, execution offices and other bodies with powers of adjudication under any law, except in respect of the content of a judicial proceeding.” The definition does not, it is true, specifically mention the courts administration as a public authority, but because it applies to “courts”, there is no doubt in my mind that appellant no. 1 comes within its purview. In addition, the requested information—data regarding the number of cases that are being heard by each judge and as to the date on which each case was opened—is information that is administrative in nature and does not involve the contents of a judicial proceeding, as required by the end part of the definition of a “public authority” (for the distinction between administrative information and information regarding the content of a judicial proceedings see Segal, at pp. 141-143).

I am aware of the appellants’ argument that in order to present a complete picture of the situation, they would have to add various explanations to the requested data. According to them, the required explanations would create “slippage” towards the innards of the judicial proceeding and the discretion exercised in its framework, which is not covered by the Law. I will discuss this issue below; at this stage, however, I am of the opinion that our matter passes through the first filter established by the Law.

The Second Filter – Exceptions to Delivering Information (Section 9 of the Law)

51.  The appellants contend that they may invoke the exception to the delivery of information prescribed in sec. 9(b)(1) of the Freedom of Information Law, whereby:

    (b)     A public authority is not obliged  to provide information in any of the following categories:

(1)        Information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

I will mention, very briefly, that appellants’ main argument is that delivering the information with the names of the judges hearing the cases will bring harm to public confidence and to judicial independence, which are essential foundations of the functioning of the courts system; hence the concern about interfering with the orderly functioning of this system. As stated, the appellants are prepared to deliver the requested information, but without mentioning the names of the judges.

52.  The exception upon which the appellants wish to rely is included in the cases in which the authority is not obligated to give out information, as specified in sec. 9(b)(2) of the Law, and in relation to which the public authority has discretion whether to disclose the information, in order to protect other important interests. The scope of the discretion granted to the authority within the bounds of sec. 9(b) of the Law is broad (Council for Higher Education, at p. 238). The fact that administrative discretion lies at the core of this section makes it an extremely important and central arena in which the right to information acquires content (Hillel Sommer, “The Freedom of Information Law: Law and Reality”, HaMishpat 8 (5763-2003) 435; Segal, at p. 199). The main consideration that should guide the authority in its decision as to whether to refrain from providing information under sec. 9(b) of the Freedom of Information Law is public interest in the disclosure of the information (Segal, ibid.). At the same time, the authority will also take into account, inter alia, the public interest in transparency of the authority’s activities in order to enable informed discussion and to allow for effective, appropriate public oversight of the authority, the applicant’s interest in the information (sec. 10 of the Freedom of Information Law), and the right of the public to know.

I will begin with a discussion of the probability test that the appellants must pass in order to invoke the exception in sec. 9(b)(1) of the Law. I will then proceed to examine the arguments on their merits.

Probability Test

53.  The parties disagree on the question of whether, in the balancing that takes place pursuant to sec. 9(b)(1) of the Law, appellants must show that interference with the activity of the authority or with its ability to perform its tasks is a near certainty, as respondents claim, or whether it is sufficient for them to pass the more lenient standard of proving a reasonable possibility that the said result will occur, as appellants argue. According to the appellants, in achieving a balance between the principle of justice being done by the courts and other principles such as freedom of expression, the case law requires nothing beyond the criterion of reasonable possibility of interference with the administration of justice, and in this regard they refer to Dissenchik and Azulai, in which there was discussion of the balance between freedom of expression and preservation of the integrity of the judicial process; to CrimApp 1986/94 State of Israel v. Amar [1994] IsrSC 48(3) 133, in which there was discussion of the balance between the freedom of movement and the orderly function of the judicial process; and to LCrimA 4708/03 Hen v. State of Israel – Ministry of Health [2005] IsrSC 60(3) 274 (hereinafter: Hen), in which the balance between the principle of doing justice and the public interest in improving and advancing medicine was discussed.

Indeed, in these cases, the court employed the “reasonable possibility” standard, in examining whether competing rights or interests should be limited for the purpose of ensuring various aspects of the judicial proceeding. However, there is a significant difference between these matters and the one before us. To what am I referring?

54.  In order to strike the appropriate balance between various values and interests, there is an accepted distinction between “horizontal balancing” which exists between two interests or values that are of equal legal status, and in the framework of which a certain concession is required on the part of each in order to allow for the core of both to be upheld, and “vertical balancing” which seeks the balancing point between a “high” right or normative value that clashes with a right or normative value of inferior status. In the framework of vertical balancing, preference will be accorded to the value whose status is more elevated, if the balancing formula that can determine the severity of the violation of that value and the probability of its occurrence is satisfied. In this context, the common criteria are the “near certainty” of the occurrence of the violation, or the “reasonable possibility” of its occurrence (see in short in: Barak, The Judge in a Democratic Society, at pp. 272-272; Hen, at p. 296; HCJ 10271/02 Fried v. Israel Police—Jerusalem Region [2006] IsrSC 62(1) 106, at pp. 152-153; Barak, Freedom of Information, at p. 101-102).

In the present matter, the public’s right to information, which as stated is a right of a constitutional nature, in that it is derived from the right of freedom of expression, is in competition with the public interest in the efficient functioning of the judiciary, which also encapsulates the interests of protection of the rule of law and maintenance of public confidence in the courts. I would clarify that I do not believe that the opposing interest is the moral integrity of the judicial process, for even the pleadings of the appellants in no way intimate that they are concerned that publication will affect the exercise of judicial discretion. The balance in question is, therefore, one which is vertical in nature.

55.  In the past, this Court has considered the exception in sec. 9(b)(1) of the Law, and has determined that anyone seeking to invoke it must show that the disclosure of the information will lead, with a high degree of probability, to real harm to the public interest, which the authority seeks to protect in declining to disclose that information:

Section 9(b)(1) is formulated in broad and inclusive terms. The provision permits the public authority not to deliver “information, disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.

.” It has rightly been said of this provision that it “opens the door to a distortion of the very right to obtain information” (Segal, at p. 199). Interpretation of the section must, therefore, adapt itself to the criteria that guide the Law and to the general and constitutional principles that are accepted in our law. It is a well-known, established rule in our law that where there is a clash between a protected constitutional right and a public interest, the latter takes precedence over the former only where there is an appropriate standard of probability—normally, “near certainty”—of real harm to that public interest is met… This rule is particularly applicable in the case of a clash between freedom of expression and other public interests (see Kol Ha’am; HCJ 4804/94 Station Film Co. v. The Film Review Board  IsrSC 84 (5) 661). The formula that emerged from the abundant case law regarding freedom of expression and its constraints is applicable to our case as well.

…

Indeed, there is an important public interest in preserving the orderly functioning of a public authority, but only where there is near certainty of harm to that interest will there be sufficient cause for limiting the freedom of information. Let us be precise: where it is possible to reduce the harm to the orderly functioning of the authority without negating the freedom of information, it is right and proper to do so. The restriction of freedom of information is a last resort, and the public authority has a duty, before it decides not to hand over the information whose disclosure is being sought, to examine means that are less detrimental to the freedom of information ( Ministry of Transport, at p. 84-85 (emphasis added, E.A.). See also AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012] (hereinafter: Ministry of Education), para. 7 per Vice-President E. Rivlin).   

A similar view regarding the fact that the relevant probability criterion within the bounds of sec. 9(b)(1) of the Law is that of near certainty was also expressed by Segal (p. 199), and by President Barak who noted that “… within the bounds of the external balance and against the background of the purpose of the Law, only severe, serious  disruption whose occurrence is a near certainty allows for the non-disclosure of information” (Aharon Barak, “Freedom of Information and the Courts”, Kiryat Hamishpat 3 (5763-2003) 95, 102-103). I too accept that for the purpose of restricting the citizen’s access to information, the authority must meet a strict standard of near certainty of the occurrence of harm to a competing protected interest which is recognized by the law.

56.  The appellants sought to argue that the more lenient standard, i.e., that of “reasonable probability”, ought to be applied in our case, as was done in the cases cited above, in order to ensure protection of the legal process and its integrity. I beg to differ. First, in the cases of  Dissenchik and Azulai, there was concern for damage to the integrity of a judicial proceceding that was actually taking place, against the background of the contents that had been published. In the present case, the appellants plead concern about the general effect of publicizing the performance of the judges. This concern is based, even if only partially, on assumptions and speculation, and assumes that the publication per se will affect the general conduct of the judges. In my view, and I will elaborate below, this argument is difficult to accept, and in all events it does not justify invoking a more lenient standard. Another significant difference emerges from the decision of (then) Justice A. Barak in Azulai, who explained that in the context of a violation of sub judice (sec. 41 [then] of the Courts Law, 5717-1957), the criterion of reasonable probability is not only directed at harm done to a judge:

       Till now I discussed the possible effect on the professional judge. Needless to say, sec. 41 of the Law does not deal exclusively with a judge. It is concerned with publication that has the potential to affect the course of the trial or its outcome. It may be a litigant who is affected; or the witnesses. It would seem that it, in fact, the judge is the strongest link in this chain, whereas the witnesses are the weakest link. Frequently, there is a reasonable probability of the witnesses having been influenced, whether by way of dissuading a witness from testifying or by influencing—consciously or otherwise—the contents of his testimony. This is the reasonable probability that sec. 41 is intended to prevent (ibid., at p. 577; cf. also the words of Justice Berinson in Dissenchik, at p. 185).

To this must be added that sub judice involves the restriction of the freedom of expression regarding a particular matter for a limited period—as long as the trial is proceeding. In our case, the restriction sought by appellants is much wider. Moreover, I will point out that even though, in the cases on which the appellants sought to rely, the reasonable probability standard was selected for balancing between protection of the judicial process and other rights and interests, there are other cases in which, when the freedom of expression comes up against the interest of protection of the legal system, it was in fact the standard of near certainty that was selected (see, e.g., HCJ 506/89 Be’eri v. Head of Claims Department, Investigations Division, Israel Police National Headquarters [1990] IsrSC 44(1) 604 (hereinafter: Be’eri), a p. 607).

57.  The cases to which the appellants referred dealt with the balance between the freedom of expression and preservation of the integrity of the judicial process and due process. Apart from the fact that, as stated, I do not think that our case relates to the integrity of the judicial process, these cases did not deal with a balance that involved the right to information. It is important to emphasize that in the context of disclosure of information that is held by public authorities, there is a special legislative arrangement, viz., the Freedom of Information Law, and the balances it requires must be made in light of the purposes of the Law, and in particular, the purpose of the transparency of public authorities in order to allow for oversight of their activity. Moreover, as Segal explains in his book, the Law was applied to the administrative aspect of the activity of the courts, and the committee to examine the implications of the Freedom of Information Law for the courts system, headed by Judge J. Tsur, found that out of respect for the purposes of the Freedom of Information Law, the judiciary should not be granted protection or immunity in relation to the administrative aspect of its task (Segal, at p. 143). In light of this, the argument that in relation to courts, the more lenient probability standard should be adopted as a starting point, in order to protect the judicial process is troublesome: it seeks to create a different standard for the courts precisely where the legislator saw fit to subject them to the Freedom of Information Law, albeit regarding the administrative plane of their activity, with which we are dealing. I therefore see no justification for abandoning the framework that was established by the Law and the case law for considering petitions under the Freedom of Information Law by making do with a lenient probability standard, and therefore, I reject this argument.

From here we will proceed on a path that will lead us to a decision. Only if it is found with near certainty that publication of the requested information will interfere with the activity of the judiciary or with its ability to perform its task, in that it will detract from the confidence of the public in the judges and affect judicial independence, will the appellants have cause to refrain from delivering the information under sec. 9(b)(1) of the Law.

Disruption of Proper Functioning of the Authority or its Ability to Carry Out Its Duties

58.  The argument of the appellants that publication of the requested information will disrupt the proper function of the courts or their ability to carry out their duties, and that they may therefore avail themselves of the exception in sec. 9(b)(1) of the Law, is built on several levels. The first is their argument that the requested information does not create a reliable picture of the load on the system or on a particular judge in the system. At the second level it is argued that the distorted picture that will be painted by this information will harm the judges in various ways—it was explained that handing over the information while connecting it to the names of judges does not comport with the purpose of the Freedom of Information Law. It will cause the individual judges to be seen as being exclusively responsibile for these numbers, but to which, in fact, various systemic problems contributed; it will harm their reputations and cause them to feel that they have been wronged; it will be detrimental to their functioning, because they will be judged by the public exclusively on the basis of quantifiable parameters, which do not reflect the quality of their work and its nature; it will be burdensome to them, due to the need to deal with distorting criticism. It was also mentioned that releasing the data would make it difficult for the system to recruit suitable judicial candidates in the future, and that there was a concern about misuse of the information. All these, according to the appellants, will lead to a third layer—to the serious outcome of harm to public confidence in judges as a result of incomplete, distorted information, leading to disrespect for the judges and to harm to judicial independence, due to distorted personal information, which has the potential for embarrassment and intimidation and for upsetting the equanimity which is essential to the functioning of a judge. I will stress that from the appellants’ arguments it emerges that they are not arguing that the publication will affect the discretion that the judges exercise, but that it will affect the conditions necessary for them to perform optimally.

The Requested Information – An Incomplete Picture

59.  There is merit in the appellants’ argument that presentation of the requested information does not create a reliable picture—neither of the burden on the courts system, nor of the caseload of any particular judge. The reasons for this are many and varied, most of which were elaborated upon by the appellants in their appeal.

The requested information concerns only the district courts and the Supreme Court, and it does not, therefore, reflect the overload in the courts system in its entirety. Moreover, I accept that data as to the number of open cases and the date on which each case was opened, even when added to other data published by the courts system, present a limited, incomplete picture which does not shed light on the reasons for the duration of the handling of a case—short or long—nor on the reasons for the caseload of a particular judge. A long list of variables which will not find expression in the requested information can affect the data: thus, for example, the type of process can affect the duration of the judicial proceeding. A fast track process is not the same as a civil suit in the framework of which testimony is heard. An arraignment hearing is not the same as a criminal trial in which witnesses testify. In addition, different events in the lifetime of a case can significantly affect the length of time over which it is handled: an accused person who flees; a witness who dies and the party who summoned him to testify wishes to find another witness in his place; mediation proceedings, compromise agreements, or plea bargains that were achieved at early stages of a process; motions for stay of proceedings; the concurrent conduct of another process on a related matter; the case being returned to the trial court by the appeals court—these are only a few examples of what can influence the duration of a case. In the Supreme Court, and particularly in relation to petitions to the High Court of Justice and in appeals on administrative petitions, the duration of the lifetime of a case is often affected by the need to wait for the completion of legislative or other processes that might obviate the need to decide on the petition and prevent judicial intervention. Preliminary processes, such as questionnaires and discovery of documents in a civil process, or an appeal for discovery of confidential evidence and procedures relating to examination of the material from interrogations in a criminal process, can also affect the amount of time taken for a case. Of course, there are also urgent cases which require immediate attention and cause a delay in the handling of older cases. Above all, the requested data cannot reflect the degree of complexity of the case, from either a factual or a legal point of view. The more complicated and complex the case, the more time may reasonably be required to decide on it. The said data in no way expresses the number of parties in a case, the number of sessions that are required to resolve it, or the number of witnesses summoned to testify.

I will further mention that the requested information cannot shed light on additional aspects of the conduct of the parties that affect the duration of the proceedings in the case, whether these be agreements about submitting affidavits in a civil process or submitting agreed notifications in a criminal process which contribute to the efficiency of the proceedings, or whether this be conduct that contributes to the drawing out of the process, such as repeated requests to defer hearings, summoning witnesses whose testimony is of disputable value, the manner in which the questioning is conducted and more. The requested information also does not reflect situations in which a single judge began hearing the case and it was subsequently transferred to a bench of three judges, as happens, for example, with petitions to the High Court of Justice, or instances in which cases are passed over to a judge as an “inheritance” from a judge who retired, and they are therefore “more ancient” within the system.

I therefore accept the argument that the requested information will create an incomplete picture that cannot attest to what is actually sought—a picture of the burden on the courts system and its judges. I will elaborate on the ramifications of this matter presently.

Distinction between Institutional Information and Personal Information

60. A central argument raised by the appellants is that the purpose of the Freedom of Information Law is to ensure transparency of the public authority so that oversight will be possible, and not personal transparency of those working in the authority. According to the appellants, in order to achieve this purpose, no connection is required between the information and the identity of a particular functionary—something which could interfere with the functioning of the public authority. 

On the level of principle, I accept the distinction between institutional information and personal information. Examination of the Freedom of Information Law and of the literature on the subject leads to the conclusion that the Law is concerned with the public authority as a governmental factor, as a system, and not in attempting to zoom in in on individuals who are active in its ranks. This conclusion stems primarily from the provisions of the Law, which refer to “information from a public authority.” Some may argue that such information includes information about the functioning of the individual employee of the authority, but other provisions in the Law seem to indicate the opposite: thus, the duty of the authority to publish an annual report that contains information about its activity and areas of responsibility (sec. 5 of the Law) means that the Law envisages the possibility of oversight of the activity of the authority as a system; hence the fact that the reasons for rejecting requests for information all involve considerations of the authority as a system and not individual considerations (sec. 8 of the Law); hence the only concrete reference in the Law to an employee of the authority involves “information concerning the disciplinary affairs of a public authority employee, excepting information involving public processes stipulated by law” (sec. 9(b)(9) of the Law), in relation to which the authority is permitted to refrain from disclosing the information.

61.  The said conclusion is also dictated by logic: the public authority is responsible for certain domains in relation to which it has been granted various powers. The interest of the public that wishes to examine the activity of the authority and to oversee it lies in the activity of the latter as a body that provides the public with services and acts as its trustee. The purpose of public oversight is to examine whether the private citizen obtains from the authority the service to which he is entitled: whether the authority fulfilled its goals and aims, what was the extent and nature of its activity, how it exercised its powers. It does not examine the service given to a person by a particular employee of the authority. It is the system that is open for public scrutiny, and not its employees.

To clarify: this does not mean that the employees of the public authority are immune from oversight. As a rule, claims about the manner in which employees of the authority operate should be examined in the framework of the authority or in public frameworks that are suited to the examination of complaints and other such claims. One cannot accept that every complaint about a public servant, his output and his efficiency at work, or the nature of his work will be a matter for public oversight, without all the relevant information being considered and without all the circumstances being weighed in a balanced and cautious manner. As the appellants point out, correctly, it is the system that is held accountable for its functioning, and which will be required, on the systemic level, to learn the lessons, adjust itself, and fix malfunctions, insofar as they have been located, even at the level of the individual employee.

62.  This is the point: I am of the opinion that in these matters, the judiciary is different from other public authorities. As I pointed out in the discussion of the principle of the judge’s duty to report, the judge holds public office and is obligated by all the duties that obligate a public servant. At the same time, the status, the obligations, and the powers of the judge differ from those of all other public servants. The crux of the difference between a judge and other public servants lies in the judge’s judicial independence. In what way?

The judge enjoys personal independence that allows him to rule in accordance with the law and with the dictates of his conscience, irrespective of any other party, as is required by the very nature of the judicial process and of the objectivity that is essential to its conduct. I do not believe that there is any other public office bearer who enjoys such wide independence, for there is no public office bearer whose activity is not subject to audit, oversight and authorization by his superiors. As I have already mentioned, the fact that the decisions of the judge are subject to the appellate review does not negate the judge’s judicial independence at the time of making the decision. In addition, as is known, the appeals court tends not to interfere in every matter, and its interference with the decisions of the trial court is cautious, restrained, and subject to clear rules that have been established in the decisions of this Court.

63.  Personal judicial independence is also secured, as I explained above, by means of rules that were formulated in order to ensure the status of the judge and his office so that the work environment in which he operates will be free of pressure or concerns of personal ramifications for any particular decision, and will allow him to make quality decisions on the merits of the case.  Particular emphasis should be placed on statutory provisions that establish the manner in which a judge’s tenure ends: in accordance with sec. 7 of Basic Law: The Judiciary, a judge’s tenure ends when he retires –at the statutory age of 70 years—or if one of the events enumerated there occurs. The only cases in which the judge’s tenure may be ended against his will or when he has not been appointed to another position (sec. 7(3)) are if the Judges’ Election Committee , by a majority of at least seven members, decides on termination (sec. 7(4)) or upon a decision of the disciplinary court (sec. 7(5)). Clearly, then, the judge is securely placed on the bench, and the termination of his tenure when he has not reached retirement age or voluntarily on his part is possible only in very extreme and exceptional circumstances. This is not the case with general employees of the civil service. Their employment can end, and in all events if it transpires that an employee is not suited to the task that he is meant to be performing, he can be transferred from his position to another one suited to his skills.

64.  Another distinctive characteristic that derives from judicial independence is judicial independence internally vis-à-vis the courts system. The judge indeed belongs to the judicial branch, but is not subject to the oversight and audit to which civil servants in other frameworks are subject. It is the judge who sets his work schedule as well as the nature of the proceedings in his courtroom: he decides how many sessions there will be and their duration; he determines how much time the parties will have for questioning witnesses and raising various arguments through their respective lawyers. It is the judge who decides how to prioritize the handling of the cases: how his time as a judge will be divided between scheduling hearings for new cases and writing decisions, whether hearings will be held in new cases before old decisions have been written, and how much time will be devoted to each case. It is the judge who decides the tempo at which cases proceed, he sets the dates, but he also decides on the cancellation of hearings. He decides on the depth of the judicial reasoning and on how detailed it will be; when the  decision is written and when it will be heard. In other words, to a large extent the judge’s chambers are an independent, separate micro-system within the public system.

To clarify, the reality in which the judge operates is not without its limitations, which impact on the exercise of judicial discretion. Thus, for example, the law states that judgments will be rendered within thirty days from the end of the deliberations (sec. 190(d) of the Civil Procedure Regulations 5744-1984); various statutory provisions relate to fixing of dates of hearings, the extent and duration of hearings and the date on which judgment will be rendered, such as Title 16-1 of the Civil Procedure Regulations, which is concerned with hearing a case by way of fast track proceedings; and various directives are issued by the President of the Supreme Court and the Director of Courts. However, there is nothing in these to change the fact that a judge has no superior to whom he is answerable with respect to fulfilling his tasks or to whom he must explain administrative decisions that he has made. Neither is there anyone who will demand explanations about his decision to deviate from any particular administrative directive. Even given the said limitations—each of which has the potential for detracting from the judge’s independence—it may be said that the activity of the judge is independent and autonomous, and certainly so compared to other functionaries in the public service.

65.  This independence and autonomy that the judge enjoys in his position has no counterpart in the public service, for the good reasons that I discussed. Oversight and supervision of the judge and of his conduct in the various frameworks are restricted and limited to cases which, as a rule, may be deemed exceptional and unusual. This is true on the substantive level of the judges’ work, but it is also true in relation to its administrative aspects, such as the rate at which cases are heard. To a very large extent, the system depends, and justifiably so, on the judge’s suitability for his job as determined on the basis of the appointment process, and on the integrity, fairness, and sense of responsibility of the judges. The fact that the judge functions as a type of independent, separate system within the judiciary, sets judges apart from other public servants in a manner that, even if the distinction made by the appellants between institutional information and information of a personal nature within the bounds of the Freedom of Information Law is correct in general, its significance, logic, and validity are nevertheless reduced with respect to judges.

At this stage I will proceed to an examination of the second tier of the appellants’ arguments—the harm to judges and to the courts system as a result of disclosure of the requested information.

The Requested Data as an Index for Assessment of Judges

66.  The appellants are of the opinion that there is a significant difference between systemic data, which is statistical or quantitative, and publication of that data in reference to, and naming the person responsible for, the material to which they pertain. There is logic to this argument. Whereas statistical data relate to the public authority as a system and constitute an index of its activity as a whole, or at most, are perceived as an index for assessing the performance of those at its head, publication of data pertaining to the performance of individuals places that individual in the spotlight, linking the data to him individually, sometimes even more than to the system itself.

Against this background a concern arises that connecting the data with the name of a particular judge will put him in the position of being the principal bearer of responsibility for the “performance of the system”, i.e. for the data that is published, and expression will not be given to the additional considerations that make a significant contribution to the picture that emerges, beginning with the concrete circumstances of each case, as I have already discussed, and ending with the various systemic difficulties that the individual judge, no matter how dedicated and efficient he is, cannot solve and which ought not to be loaded onto his shoulders. The primary source of concern in this matter is the fact that in publishing the data with named segmentation, no expression is given to the heavy burden on the legal system overall, the reasons for which are extrinsic to the judges: ranging from structural reasons inherent in the system, to a lack of positions for personnel and to technological and social advances, which lead to the statutory regulation of various areas and, thereby, create additional legal processes, and ending in social-cultural reasons, such as the absence of a tradition of solving disputes outside the courtroom, which leads to a multiplicity of proceedings (on this see Raanan Sulitzeanu-Kenan, Amnon Reichman, Eran Vigoda-Gadot, “The Burden on the Judicial System – Comparative Caseload Analysis of 17 States” (2007) http://elyon1.court.gov.il/heb/haba/Courts_burden_Final_report_5.07.pdf.  See also per (then) Justice A. Grunis in CrA 4865/09 Adv. Feldman v. Tel Aviv District Court [Nevo – July 9, 2009] (hereinafter: Feldman). Focusing on the individual judge is liable to deflect attention from the system, its functioning and its problems, as well as from the potential solutions, such as adding judicial positions or adding another appeals instance (Eliahu Mazza, “The Burden on the Courts Harms the Public” (February 22, 2011) on the site of the Israel Democracy Institute, www.idi.org.il ).

67.  A concern that was raised, and which is not unfounded, is that publication of the requested data will bring about a situation in which the public’s evaluation of the functioning of the judge will be based primarily on quantitative data, so that the dominant consideration in evaluating performance will be perceived efficiency—for as we have said, this is an assessment that will be based on data that does not provide an accurate picture of the present position—whereas the quality of the work of the judge and of his judgments will be cast aside.

The concern about efficiency as a major parameter in the evaluation of judges is magnified given the  approach that seeks to view judges as people who provide a public service, like any other public authority. In the modern world, efficiency is a central component in evaluating the effectiveness of performance of bodies both public and private, as part of the concept of the efficient use of resources. In my view, an index of efficiency cannot, and should not, be the main index for evaluating the performance of the individual judge or of the system as a whole. An approach that claims otherwise misses, in my view, the essence of the judicial function in doing justice, in protecting human rights and the rule of law. Indeed:

Justice cannot be achieved by means of conveyor-belt processes, and the setting of norms of law requires processes of thought which are sometimes complex and the implementation of which takes time. The judicial process sometimes involves components of an art form, but also of lofty ideals, intuition, and inspiration. In his judicial capacity, the judge is responsible, not only for determining the facts in a particular case and the judicial norm; these determinations are perhaps simple relative to the function imposed upon him to tailor the norm to the particular case, and in some cases, to set normative justice up against the circumstances of the case. The banalization of values, which is the hallmark of the previous century, led to the definition of the judicial function as providing a service to the citizen, exactly akin to transportation, cleaning, and health services; however, providing a service does not exhaust the judicial process (Levin, at p. 6).

The main index for examining judicial performance is substantive-qualitative: the judge’s conduct in the courtroom, his scrupulousness in relation to the rights of the parties before him, the quality of his decisions, their substance, and their reasons. Placing considerations of efficiency at the core of the judicial endeavor is likely to detract from its quality. It will lead to an erosion of the right to due process, is liable to harm the process of establishing the truth, will be detrimental to the doing of justice, which is the beating heart of the judicial task, and will lead, ultimately, to the public perception of the courts as bodies which are not led by substance and the doing of justice, but by their volume of output. More than anything else, it will entail harm to public confidence in the legal system. We must be on high alert against all these.

68.  As mentioned, judgments are published and can be accessed by the public; however, it is clear that the public does not take the trouble to follow the whole body of a judge’s decisions in order to formulate a position with respect to his work and its nature. Even in cases in which a judicial decision receives wide media coverage, this does not guarantee that this coverage will properly and fully report the main reasons for the decision. As opposed to this, in my opinion, it may be assumed that, to the extent that the requested data is published, it will receive significant public exposure, and will be seen as a far more concise, clear, and simple summarizing picture. This is the backdrop to the concern that the data will become the primary index in the hands of the public for evaluating the performance of the system and its judges, sweeping aside meaningful indices for evaluating the work of the judges. As stated, this is particularly troubling in view of the fact that the requested data cannot reflect an accurate picture of the situation.

69.  A situation in which the judges are evaluated according to the number of cases closed or according to the number of cases remaining on their desks, therefore, involves significant interference not only with the work of the judges and their public image, but also in the manner in which the legal system as a whole is perceived by the public. However, I believe that this chilling picture, sketched out most skillfully by the appellants, is incomplete.

First, and insofar as we are dealing with a concern about creating an inaccurate picture of the judicial burden, the appellants are prepared to tolerate this outcome, with its harms, for they are prepared to publish the information, segmented according to judges, as long as the judges are not identified by name. In essence, the purpose of the legal system is to do justice. The doing of justice cannot be confined within a set time-frame. It requires a process of weighing, of analyzing, of cautiously examining in depth all the evidence and relevant material prior to a position being adopted by the judge. Arriving at the correct decision sometimes requires negotiation between the parties, or it involves waiting for external processes taking place concurrently. As mentioned above, judgments are not written on a conveyor belt. The judge cannot fulfill his function in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other. He cannot conduct hearings with the State seal above his head and an hourglass in front of him. Efficiency is not the be-all and end-all: achieving justice is. Without patience, without commitment to establishing the truth, the quality of judging will be harmed, and with it, the right to due process. The judiciary will be harmed, but above all, society and the state will be harmed (on this, see Agmon-Gonen, at p. 216).

Together with all the above, and at the same time, efficiency is not a pejorative word. Streamlining proceedings cannot justify harm to the doing of justice, but it can certainly justify the aspiration and endeavor to find the balance between doing justice and the length of time over which it is achieved (Levin, at p. 8). Public confidence in the judicial system does not rely only on the personal functioning of the judge and the number of cases that he has heard. Public confidence can also be influenced by administrative aspects of judicial performance. Drawn-out proceedings erode the foundations of public confidence in the judicial system, and it has already been said that “delays of justice are liable to lead to despair of the legal system” (Cohn, at p. 367). Drawn out proceedings may involve a breach of the right to due process (CrimA 1523/05 Anonymous. v. State of Israel [Nevo – March 2, 2006], para. 22 of my opinion). They are detrimental to the ability of the court to investigate the truth, whether due to the death of witnesses or dimming of witnesses’ memory, or evidence being lost, or whether because the memory of the judge, too, and his impression of the witnesses, cannot be sharp and vivid when the opinion is written long after testimony is heard (see Feldman, at para. 8 and the references there). Prolonged proceedings are an ailment that can cause a delay of justice, and there are cases in which it even entails perversion of justice (CrimA 188/77 Wertheim v. State of Israel [51], 231). Justice delayed is justice denied, or perhaps justice whose shine is lost and whose value has been eroded (and see the apt words of Justice Berinson in CA 520/71 Goldberg v. Belaga [52], 462). The litigants whose rights to due process we are seeking to ensure are those same litigants who are waiting for a decision in their case. In this sense, the commitment of the judge to the efficiency aspect of his performance, too, is an expression of doing justice.

If so, efficiency cannot constitute the main index for evaluating the performance of the judge; at the same time, efficiency is an aspect that must be taken into account, one which bears weight in ensuring public confidence in the courts.

Burdening the Judges – Coping with Publication of Inaccurate Data

70.  The appellants themselves believe, so it appears, that despite the fact that the requested data creates a partial picture only, it is possible to complete this partial picture with accompanying explanations and thereby prevent the damage of which they are warning. However, so they say, providing detailed explanations will impose a heavy burden on the judges and will arouse concern that the information that is provided is a matter of judicial discretion—information to which, as stated, the Law does not apply.

The starting point in this regard is that the requested data is included in the right to information according to the Law. As the trial court pointed out, the respondents are not asking for any additional explanations about the data. Insofar as the appellants believe that such explanations are necessary, it is a matter for their discretion. In their pleadings there is no real basis for any argument concerning the heavy burden that will be imposed on the system and on its judges should they be asked for such explanations, It appears also that any such explanations need not involve too heavy a burden: insofar as appellant no. 1 or a judge thinks that an explanation is required with respect to a particular case, it would be an explanation which any judge would be able to give in that the case is being heard by him and is well-known to him. In my view, in such a case a short, laconic explanation would suffice, such as: “scope of the case”, “absence of the judge due to a sabbatical/personal circumstances”, “motion for stay of proceedings pending”, “mediation proceedings”, “full diary” etc. Short, succinct explanations will not, in my view, cause concern about sliding into the area of judicial discretion in conducting the cases. In my view, there is no obligation to provide explanations for the requested information, but this is a matter for the discretion of appellant no. 1, and in any case, it must be done in coordination with the judge. 

Another possible conceivable solution is to develop software that allows for assessment of the cases being handled by each judge in all their aspects, producing as accurate a data interface as possible. I will mention in this context that from the Freedom of Information Report published by appellant no. 1 in 2012, it emerges that in that year, a comprehensive study on “case weighting” was completed, which “creates an index for assessing the judicial workload in cases of various types … Thus the legal system can obtain an accurate picture of dispersion of the load between the courts and between the different areas of law” (as stated by the President of the Supreme Court, Freedom of Information Report 5 (2012)). It is not unreasonable to assume, therefore, that it is possible to develop a data base that would produce a clearer picture. In this context, too, provision of more detailed information is a matter for the discretion of the appellants, to the extent that they should choose to provide more detailed information.

Publication of the Data – Harm to the Judges and their Independence

71.  The appellants argue that providing the personally identifying information—as opposed to systemic information—will lead to harm to the reputation of judges and to their persecution, when they are unable to respond to the publication; it will upset their peace of mind and subject them to fear in a manner which can affect judicial independence. This argument is connected to another argument that was raised in relation to concern about misuse of the requested information,

As already explained, when the information is personal, it indeed places the public servant, rather than the system to which he belongs, at the center of attention. This being the case, there may be some who attribute to him the entire responsibility for the data that is delivered insofar as it concerns him.

a.     Concern about Debasement, Shaming, and Harm to Reputation

72.  I was troubled by the serious concern that the requested information will be used to embarrass the judge and publicly shame him, on the basis of incomplete information—something which, according to the appellants, will be detrimental to his performance as a judge and which will in all events also interfere with the functioning of the judiciary and its ability to carry out its task. The concern about harming the judge’s reputation also arises here.

Indeed, it is clear that publication of the data, while connecting it to the names of the judges handling the cases, might be done in a manner that is liable “to disgrace a person in the eyes of others or to make him the object of hatred, scorn or mockery on their part” (sec. 1(1) of the Defamation (Prohibition) Law, 5725-1965), “to disgrace a person on account of acts, conduct or traits that are attributed to him” (sec. 1(2) of the Defamation (Prohibition) Law, or “to harm a person’s office, whether public office or otherwise, in his business, his occupation or his profession” (sec. 1(3) of the Defamation (Prohibition) Law). There would seem to be no need to elaborate on the fact that publication of the data may be done in a way that brings disgrace and that will be embarrassing to the judge, and that for the judge, like any person, his reputation is a source of recognition, pride, and personal dignity amongst people. “A person’s dignity and his good name are sometimes as important to him as life itself; they are usually more important to him than any other possession” (CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840, at p. 856).

73.  This is indeed a worrisome matter, and it weighed heavily on me at the decision-making stage. On another matter, the late Justice E.E. Levy wrote in relation to the judge: “What does he need in his chambers, what profit in his courtroom? He has nothing but his good name, his dignity and his reputation, the acquisition of which require the investment of years of toil but the destruction of which happens easily” (HCJ 2561/07 Justice Michal Sharir v. Courts Administration [Nevo – July 24, 2008], para. 8). The judge, like every person, has the right to a good name. This right is his, despite his office, which exposes him to the public eye. The good name of the judge, his dignity, the esteem that he has earned over the years of his employment, all these accompany him in the judicial seat and contribute to his status and to public confidence in him when he is hearing a case. Without this good name, public confidence in the judge and in his integrity will suffer, and the moral—as opposed to the legal—validity of his decisions will be negated.

74.  The need to ensure public confidence imposes a heavy burden upon the judge to take care in all that he does, when sitting in judgment as well as outside the courtroom, and to act in a manner that comports with his position and that will secure the respect given by the public to its judges and to the system as a whole:

       A precondition for the proper functioning of the judiciary is that the public trust it, that it recognize its authority to sit in judgment, and that it accepts the legal decisions that it hands down (Introduction to Code of Ethics for Judges  5767-2007 (published in KT 5767 no. 6591 on June 5, 2007 , p. 934). This trust depends, first and foremost, on the existence of a moral foundation for the activity of the judicial system, and on the scrupulous maintenance of this foundation on the part of every judge in the system (CrimA 9893/06 Elon-Lauffer v. State of Israel  [Nevo – December 31, 2007] (hereinafter: Elon-Lauffer), sec. 16 of the opinion of Justice A. Procaccia).

However, maintaining the proper functioning of the courts is not only a personal task for the judge. It is not even a systemic task of the judiciary alone. Insistence on the dignity of the courts and the judges, including preservation of their reputation, is first and foremost a public interest. This is based on an understanding of the complexity of the role that is fulfilled by the judge in a democratic society, which for the most part leaves one side unsatisfied, and recognizing the importance of preserving public confidence in the judiciary as a guarantee of a democratic society, in which the rights of the citizen and the resident are upheld (and cf. Be’eri, at p. 612). The concern for preservation of the reputation of judges does not stem from a quest for glory, but rather, from the obligation to ensure the status, the dignity. and the strength of the judiciary, which are essential for the performance of its duties.

75.  The concern raised by the appellants regarding this matter is not unfounded. Unfortunately, we not infrequently hear harsh, strident criticism, sometimes unrestrained, directed at the judges. This is unfortunate, especially in view of the fact that the judge is unable to respond to the allegations made against him. As we know, the channel through which the court expresses what it has to say is the judgment. The judicial decision is not an arena for a polemic between the judge and his critics and those who speak against him. In fact, there is no arena, apart from the judicial decision, in which he can explain his intention and his reasons and respond to allegations made against him. As a result, the judge’s critics will always have the “last word”. (Then) Judge Aharon Barak discussed this:

The judge is limited in his modes of response. He does not debate with his critics. It is not usual for him to defend himself in public. He does not act as his own defense attorney. His instrument of expression is the judgment. This is his primary defense . Hence the severity of bringing the judiciary as an institution into disrepute. One who does so cuts down the major branch on which our democracy sits (Be’eri, at p. 610).

Harming a judge’s good name not only harms the judge, but is harmful to the legal system in its entirety, and ultimately also, and primarily, to democracy.

76.  Thus, there is a concern for harming the reputations of judges and shaming them by means of the requested information. At the same time, the publication per se of the information is not initially loaded, either negatively or positively. There are judges who will be accorded praise and esteem on the basis of the information—whether justified or not, for this is not the index according to which the judge ought to be evaluated, and the information is not complete. There are judges who will not be harmed by the publication. Even with respect to those judges whose images will emerge in a less positive light, the publication will not necessarily be harmful and degrading in a manner that amounts to defamation (and cf.: HCJ 5133/06 Movement for Quality Government in Israel v. Director of Wages and Employment Agreements, Finance Ministry [Nevo – February 9, 2009]). Therefore, alongside the grave harm that will be caused, if indeed such publications should appear, it must be recalled, when examining the arguments of the parties, that, at this stage, what exists are only assumptions and concerns, and it is on this basis that the request to withhold information, to which the public is entitled under the law, rests. It may also be said that the very fact that the data is exposed and transparent to the public will lead to a strengthening of confidence in the judges and in the courts, and possibly even to a strengthening of the respect accorded to them by the public, as I will elucidate below.

B. Concern about Persecution and Intimidation of Judges

77.  The appellants are also concerned that the requested data will enable the presentation of a partial and distorted picture, causing judges to be persecuted and exposed to disturbing publications that are threatening to them and that will upset the peace of mind and the confidence that are essential for their proper functioning. In their pleadings, the appellants emphasized the harm that would be caused by such publications to the essential working environment of the judge, in view of the complexity of the task; but it appears that their main concern, is about a situation in which attempts will be made to intimidate judges, to shake their confidence and to influence their performance.

It hardly needs mentioning that the concern raised in the pleadings of the appellants is grave and serious. The basic assumption that a judge is exposed to public scrutiny does not imply that he is shielded in armor that protects him from all harm. Criticism, when it is sharp, inappropriate, or unfair, may harm the judge like any public servant, like any person, and in the words of Shylock:

I am a Jew! Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same winter and summer as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? (William Shakespeare, The Merchant of Venice, Act III Scene 1).

Indeed, the judge is of flesh and blood. Criticism is liable to hurt him. It may cause him to experience a feeling of injustice, precisely against the background of the reality in which judges toil day and night to fulfill their tasks. At the same time, the conclusion to which the appellants would lead us, and according to which criticism based on the requested information will end in harm to the performance of judges, does not take into account relevant counter-arguments, as will be discussed below.

78. The judge is a public figure. His role, as I have already said, is fulfilled in total transparency, as he is exposed to judicial, institutional, and public scrutiny. Nothing in the fulfillment of the judicial function is done in the dark. The power of the judicial decision is in its reasoning, which is accessible to anyone who wishes to see it. Indeed, the judicial endeavor is like art that is executed in a cell with glass walls (see Elon-Lauffer, per Justice Procaccia, para. 15), and it has been said that “a person who accepts public office exposes himself to a large extent to the watchful public eye (HCJ 2481/93 Dayan v. Yehuda Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456). See also Government Corporations, para. 26 of my opinion). The said transparency applies not only to the product of the judge’s work—his rulings and decisions—but to the entire gamut of aspects of the judicial role.

As described at length above, judicial independence allows the judge to act to the best of his professional knowledge and understanding and in accordance with his conscience. The judicial decision is the expression of his world view and his jurisprudential, moral and ethical conceptions, in the manner that he chooses to interpret and apply the law in the concrete case. The judge is identified with his decisions, and he validates them with his signature. This is the situation in relation to all of his decisions, including those dealing with difficult, troubling issues, with human and ethical dilemmas, and also with issues that are the focus of stormy, strident public debate. In all these cases, the judge is in the spotlight. His positions and his decisions are the subject of media coverage and criticism. As we have said, the criticism that is sometimes leveled at his decisions is not always based on the entirety of the facts or on knowledge of all the material and all the reasons. The judicial decision is not infrequently presented in an irrelevant manner and in a belligerent, aggressive tone. Sometimes the criticism is hurtful, sometimes even personal. And still, it is inconceivable that due to fear of such criticism or its potential effect on the judge, that judicial decisions would not be published or, alternatively, published without designating the names of the judges who wrote them. Even in matters that are difficult, that arouse strong feelings and raise weighty issues and interests, we do not assume that criticism will detract from the quality of the future decisions of the judge or from his professionalism.

79.  Publications of the type described are liable, at least in some cases, to place the judge in tension, or under pressure; they are liable to cause him great distress or a feeling that he has been unjustly treated. Sometimes, their contents can damage the judge’s reputation. At the same time, situations such as these are a “by-product” of the judicial function. In such situations, even if the published criticisms are very harsh, the assumption is that the professional judge will be able to dissociate himself, when judging a case, from the effects of criticism. The expectation is that a professional judge will be aware of the possibility that various publications might influence him, and will therefore summon up all his integrity, fairness and the sense of mission that guides him, and his professional skills, in order to dissociate influences of this type from the process of decision-making, continuing to do justice according to the law (cf. Azulai, at p. 576-577). When that is the expectation of the judge in relation to the effect of criticism that is directed at his judicial discretion and his rulings, can something different be expected of him in relation to publications that may deal with his efficiency? I would imagine that the answer is negative. The judge assumes a heavy responsibility by virtue of the very fact that his signature must appear on his decisions. The judge gains personal esteem for his rulings and legal analyses. It is therefore difficult to accept the argument that in the context of criticism, or of the publication of data concerning the cases that he is handling—a context that can engender positive, negative or neutral publications—precisely then his identity should be erased from the system. The assumption that a publication concerning his output will harm the judge, his confidence, or his peace of mind, more than would sharp criticism of his rulings, is to attribute excessive weight to this data, rather than to the qualitative aspects of the judge’s work.

Let there be no mistake: I do not deny that criticism might be delivered in a hurtful, insulting, and, sometimes, even, sinister manner, and when that is its nature, it does not contribute to the work of the judge. This matter should, and will, be given due weight. At the same time, I am of the opinion that the embarrassment and the discomfort that might be caused are such that the judge is anyway exposed to them at present, even if they are dressed up differently.

C.    Concern about Misuse of Personal Information

80.  The appellants further argued that delivery of personal data bears greater potential for misuse of the information than does delivery of systemic information. I do not disagree. One can imagine different ways of misusing the requested information when it is identified with a particular judge: some of these were mentioned in one way or another by the appellants. This could be by means of publications that are liable to hurt the judge and publicly shame him, whether the publications relate to a specific case, or whether they are part of an attempt to affect the judge’s position or his advancement; or the information could be used to request that a case be handled by a different judge in an attempt to bring the matter before a panel that seems more “comfortable” for the particular litigant. For example, it is possible to imagine a situation in which a request is made to transfer a case that was scheduled before a particular judge to another judge, on the grounds that a quick decision in this is a matter is important, when from the published information it emerges that the particular judge has an extremely heavy caseload.

81.  I will admit that the concern that was raised about manipulative or irresponsible use of the data troubled me. As I have said, the requested data cannot sufficiently convey the dedication, seriousness, and commitment that characterize the work of the judges, as many members of the public—some of them litigants and those who have had recourse to the courts—know. The data allows for the presentation of only an incomplete and inaccurate picture which can adversely affect the judge’s image, and as a result, the legitimacy of his decisions as well. In the final analysis, I concluded that the concern about shaming the judge and harming his dignity on the basis of the said data should bear weight at the end of the road, but at the same time, I wish to state several reasons which make it impossible for me to accept appellants’ arguments in this context in their entirety.

First, the concerns that were raised by the appellants in this context, even if they are not baseless, are to a great extent speculative. It is to be hoped that any publication that is based on the requested information would be executed with the care and the responsibility that are necessary when reviewing the affairs of the legal system (cf. Be’eri, at p. 610). It is to be hoped that care will be taken to obtain the response of appellant no. 1 prior to publication, and that an effort will be made to obtain data in a complete and fair manner. I hope that as part of “responsible journalism” (CA 751/10 Anonymous v. Dr. Ilana Dayan Orbach [Nevo – February 8, 2012]) all the media will fulfill their obligation to the public to provide fair and substantiated reviewing and reporting. Of course, it is possible that there will be publications in which such care will not be taken. However, I am not of the opinion that on the basis of this mere possibility, which I assume will be the exception to the rule, it is right and proper to limit the right of the public to information concerning the judiciary, which has such a profound impact on daily life.

In addition, regarding publications that seek to influence the judge with respect to his handling of a particular case—and no one disputes that such publications are illegitimate— it would appear that this is one of the “occupational hazards”. The judge fulfils a public office; in an open courtroom, he hears cases in which the public has an interest and which not infrequently receive media coverage. A partial answer to these concerns lies in sec. 71 of the Courts Law, which prohibits publications about a pending criminal process, i.e., the prohibition of sub judice. As is known, recourse to this instrument is rare, particularly subsequent to amendment of the Law in 2002. It became applicable only to criminal processes, with civil processes excluded from its purview, and an extremely restrained policy has been adopted by the prosecution in this context (see the Guidelines for Prosecutors Regarding Prosecuting the Sub Judice Clause, Attorney General Guidelines 4.1102, (August 25, 2005)). At the same time, this instrument does exist. In addition, I see a difficulty in an approach that sees a substantive difference between the harm to a judge that will be caused as a result of a publication concerning his “efficiency”, based on partial quantitative data, and the harm that will result from a non-complimentary, brash publication about him, about his judicial temperament, his judgments and his reasoning. I believe that of the two, the more damaging are publications that attack the judge’s professionalism, his personality, or his discretion, and which impinge upon the basic characteristics of his fitness for the position. To my understanding there is no intention to prevent such publications (recently, it is true, there was a report about the opening of an investigation for degrading publications against judges on the Internet, but these were extreme cases, that give rise to a suspicion of a criminal offense, bearing no similarity to the present case).

As for the argument concerning the possibility of using the requested data for the purpose of holding back the judge’s promotion, it is clear that there is no desire to encourage such use of the information. Nevertheless, here too I do not believe that the said concern can justify withholding the data from the outset. It should be clarified that the promotion of a judge is not subject to public trial—even if the public has the possibility of objecting to an appointment—rather it is a matter for the Judicial Selection Committee. All of the material relevant to the judge is laid out before the Committee, including material concerning the quality of the judge’s work, decisions and judgments he has issued, as well as additional information from which one can learn about his performance. Thus, the process of selection is based on as complete a picture of the data as possible, and therefore it is not the publication in the media based on incomplete information which determines his fate.

Finally, the concern that was expressed about manipulative use of the information for the purpose of forum shopping can indeed cause unnecessary embarrassment for the judge, as well as placing an unnecessary burden on the courts. At the same time, the decision in these matters, too, must be on the merits. The fact that the data presents an incomplete and inaccurate picture is sufficient reason, in my opinion, in order to reject, when required, arguments and motions such as these.

82.  Once again I will emphasize that I cannot rule out the possibility that the requested information will be used for purposes other than publications aimed at increasing the efficiency of the system or helping the litigating public. It is very possible that it will be used in an attempt to embarrass judges in general, or any one of them in particular. I turned this matter over and over again in my mind; ultimately I became convinced from my longstanding acquaintance—as a defense attorney, a prosecutor, and a judge—with the judges, with the system to which they belong with all its different courts, and with its ethos, that their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judges to cope with the publications and to continue fulfilling their tasks faithfully. The said concern will not deter the judges and will not detract from the public nature of the system, its transparency, or from the recognition of the importance of public and media exposure to the activity of the courts and to the public presentation of the way things are. The test for the court is not only in that it does its work properly, but in that it is prepared to expose the ways in which it works as required under the law.

D.    Damage to the Ability of the System to Recruit the Best Candidates

83.  The appellants further argued that the delivery of incomplete, misleading information is liable to detract from the ability of the public system to attract to its ranks the best candidates. With all due respect, this is pure speculation. The need to ensure the system’s ability to recruit suitable candidates to the judiciary is not in any doubt. At the same time, a person who is appointed as a judge knows that the judge’s work is conducted in a glass house. To choose to become a judge is to choose a way of life of which transparency is a central characteristic. A person appointed to the judiciary is aware that he will be required to sign his decisions, no matter how controversial they are. Given that he takes this into account before he submits his candidacy to become a judge, it is difficult to accept that the publication of the requested data is what will deter potential candidates from submitting their candidacy.

84.  Turning to foreign legal systems on the present matter is of limited utility, for the issue of the transparency of the courts – the supervision and oversight of them - differs from system to system, and, to a large extent, involves additional questions, which are not part of our discussion, such as, the manner of appointment of judges, the conception of the role of the judge and his status, and the review mechanisms to which the courts are subject. In addition, it is significant that legal regulation of the right to information differs in nature from state to state, and since the Freedom of Information Law was enacted in Israel, the response to the appeal must be found within its parameters and not overseas. Nevertheless, I believe that in relation to the issue lying at the heart of the appeal—the ramifications of disclosing the information for judicial independence and public trust in the judges, and also, for the orderly functioning of the courts—a look at comparative law could provide additional confirmation of the fact that disclosure of the information will not lead to severe harm to the courts system.

85.  The laws in various states ensuring that citizens have access to information held by governmental authorities vary in their scope and in the approach that they reflect to realization of the right to information. Thus, there are laws which have adopted the “institutional” approach, i.e., they define which bodies will be considered “public authorities” to which the law applies, whereas other states have adopted a functional approach that defines the documents that will be disclosed, irrespective of the identity of the entity that is holding them. There are states whose laws refer explicitly to the right to information held by the judiciary, but there are also states whose laws contain no concrete reference to this subject (see: Open Justice Initiative, Report on Access to Judicial Information (Draft of March 2009), http://10.51.38.100:9091/servlet/com.trend.iwss.user.servlet.sendcase?downloadfile=IRES-1758480305-E3F20870-24338-24305-265); http://www.freedominfo.org). Many states have excluded the judiciary from the application of their freedom of information laws (such as Denmark, the United States, and Belize), but there are some states that have applied—either explicitly or implicitly—the right to information to the judiciary as well, at least insofar as the administrative aspect of its activity is concerned. Examples of such states are Belgium, the Dominican Republic, Jamaica, Pakistan, Slovakia, South Africa, Thailand, Trinidad and Tobago, and of course, Israel (David Banisar, “Freedom of Information Around the World” (2006) available at

http://www.freedominfo.org/documents/global_survey2006.pdf). 

 

It is also interesting to note in this context that the International Convention on Access to Official Documents 2009 recognizes a general right of access to official documents held by public authorities in various states. The definition of “public authority” under the Convention includes “Legislative bodies and judicial authorities insofar as they perform administrative functions according to national law” (Article 1(2)a(i)(2)). The Convention is not yet in force, for it has not yet been ratified by the minimum number of ratifying states.

86.   On the specific issue of publishing data about the activity of the courts, most of the information and the data that is published in the various states is related to cases that are already closed. In other words, as a general rule, information is not published about cases that are pending. Our examination revealed that indeed, as a rule, information is not published about open cases in the courts mentioning the identity of the presiding judge. This rule has two significant exceptions.

The first is the European Court of Justice of the European Union, which publishes statistics concerning the judicial activity of the Court. Inter alia, data is published about the activity of the President and Vice President of the Court, including in relation to cases that are still pending. At the same time, regarding the other judges, the number of open cases is published, with no segmentation according to judges (ECJ Annual Report, available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/en_version_provisoire_web.pdf).

A second exception, which in my view is extremely significant, relates to the US federal courts. As was mentioned, the US federal Freedom of Information Act ((FOIA) 5 U.S.C. § 552) excluded the courts system from its application. The state courts in the US publish information about their activity in a general manner, without attribution to a particular judge. However, in accordance with the federal law enacted in 1990—the Civil Justice Reform Act (hereinafter: CJRA)—information is published about the caseload of the judges of the federal courts system. The Act was passed against the backdrop of an attempt to reduce the costs of conducting civil litigation and to reduce delays in these processes. It does so, inter alia, by publishing information about cases (for the backdrop to the passage of this Act, see Patrick Johnston, “Civil Justice Reform: Juggling Between Politics and Perfection”, 62 Fordham L. Rev. 833, 837 – 849 (1994); R. Lawrence Dessem, “Judicial Reporting Under the Civil Justice Reform Act: Look, Mom, No Cases!”, 54 U. Pitt. L. Rev. 687, 689 - 694 (1993) (hereinafter: Dessem). Inter alia, the Act mandates the publication of semiannual reports that include a list—in which the judges’ names appear—of motions pending more than six months, all bench trials submitted more than six months, and civil cases pending more than three years (see e.g., http://www.uscourts.gov/uscourts/statistics/cjra/2010-03/CJRAMar2010.pdf). Under this Act, a general outline of the number of cases that have been delayed is not sufficient; the cases must be specified together with the identifying details of each.

It is interesting to note that in the framework of the discussion of the Act in the United States, arguments and reasons were heard similar to those that were raised in the present case. Thus, for example, it was noted that good reasons contribute to the workload of the federal courts system, such as cases which drag on for reasons unconnected to the judge, or delays that are necessary or appropriate in view of the circumstances of the case; the excessive caseload in the federal system; insufficient numbers of sitting judges; structural inefficiency inherent in the structure of the court system; and the complexity of the cases. As opposed to these there are indefensible delays, that cannot justify the heavily overloaded situation of the courts, most of them relating to the presiding judge, such as nonstructural inefficiency; indecisiveness; disability; or sloth and neglect (Charles Gardner Geyh, Adverse Publicity as a Means of Reducing Judicial Decision-Making Delay: Periodic Disclosure of Pending Motions, Bench Trials and Cases Under the Civil Justice Reform Act, 41 Clev. St. L. Rev. 511 (1993) 513–519). In the framework of the processes that preceded the passage of the Act, Judge Robert Peckham claimed that publication of information concerning the number of cases in which there was a delay without appending suitable explanations for the delay, might mislead the public (Dissem, p. 692). Similarly, the Seventh Circuit Bar Association argued in the framework of its objection that publication of information about the status of motions and about closing cases was liable to lead to superficial conclusions, for factors such as the relative scope of the cases, the relative size of the docket in different districts, delays that have their source in the lack of judges in a particular district, or delays that stem from motions brought by the parties, would not be taken into account. In order to cope with this difficulty, the Act allows judges to append the reason for the delay, a possibility that I also raised above (ibid., 693-695). Geyh in his article points out that alternative mechanisms, both formal and informal, for dealing with the delay in handling pending cases have proven to be insufficiently effective, and thus, the value of publishing data about cases in which there has been a delay has risen as an important means of dealing with this problem (Geyh, at pp. 520-527. For a more critical presentation of the source of the demand in sec. 476 of the CJRA see: Johnston, pp. 858-859, who discusses the concern, which was also raised here, that judges will be evaluated mainly according to a measurable standard that cannot give full expression to their actual performance).

It will be mentioned that in his article, which was published three years after the enactment of CJRA, Dessem argued that as a rule, journalists who published articles on the subject took care to include the reasons for the delays, insofar as the judges reported them (p. 701).  It should also be mentioned that even though the article was published only three years after the enactment of the CJRA, it indicated a trend of improvement in the extent of the delays that were reported. The article does not look at the effect of the publication on public confidence in the legal system, but it pointed out that there had not been many reports written on the subject, and the matter was mainly taken up by newspapers intended for the legal community (ibid., at pp. 699, 706-707). A later article also indicated a trend of reduction of the delays in handling cases (Jeffrey J. Connaughton, “Judicial Accountability and the CJRA”, 49 Ala. L. Rev. 251, 253 (1997)). At the same time, it was mentioned there that the data from the “pilot” that was carried out on the subject indicated that the vast majority (85%) of district court judges who participated in the program did not change the way in which they conducted the cases before them in the wake of the Act.

87.   The few articles that we were able to find relating to the effect of the reporting requirement in the CJRA on the legal system are not up to date, and therefore their ability to assess the long-term effect of the Act on the system and on public confidence in this system is limited. According to these articles, at their time of publication, there were indications that the CJRA was achieving its goal and reducing the time for handling cases (Geyh, at pp. 532-534).  At the same time, even today, more than twenty years after the passage of the Act, the obligation to publicize pending cases according to the judges hearing the case still exists, and this is an indication of sorts that the Act did not harm the system and its functionality. Certain support for this can be found in the fact that in 2009, the Judicial Conference, which is comprised of judges in the federal judiciary, expressed its support of the Act when it voted to increase public accessibility to this information by making all the reports issued according to the requirements of the CJRA available, free of charge, on the courts’ website (New release, Judiciary Approves Free Access to Judges' Workload Reports: Courtroom Sharing for Magistrate Judges (15.9.09), available at: http://www.uscourts.gov/News/NewsView/09-09-15/Judiciary_Approves_Free_Access_to_Judges%E2%80%99_Workload_Reports_Courtroom_Sharing_for_Magistrate_Judges.asp).

Of course, it is possible to argue that the fact that the Act apparently contributed to a reduction in the delays in handling cases does not prove that no harm was done to the manner in which judges handled cases, to their patience in hearing cases, to the profundity of the reasoning in the judgments, and so forth. Nevertheless it stands to reason that with the passage of so much time since the Act came into force, that, had there been such a claim, it would have found expression either in academic writings or in the discussions about extending the access to reports in 2009.

To sum up: in the United States data similar to that requested in the present matter is published by the federal courts. True, we cannot draw conclusive conclusions about the effect of the publication on the quality of judging and on the performance of the judges in its wake, but from the fact that the Act has already existed for many years, and that it was recently decided to increase public accessibility to the information—even if it is not clear whether this decision will be implemented—we understand that, apparently, there are no substantial claims about damage caused by the Act to the functioning of the courts in general, and to the performance of the judges in particular.

Activity of the Ombudsman for Complaints Against Judges and Public Oversight

88.   The final matter that I wish to discuss is the appellants’ argument that the proper balance between the interest of maintaining judicial independence and the judges’ duty to report was prescribed by the legislator in the framework of the Ombudsman’s Law. Indeed, in establishing the office of the Ombudsman for Complaints Against Judges, a framework was devised which would allow for external oversight of judges and a true and substantive examination of the complaints brought against them, while preserving the dignity of the judiciary and its prestige (Strasberg-Cohen and Svorai, Mishpat Umimshal, at p. 373). In this spirit it may also have been thought that the fact that there exists a body that oversees the courts on an ongoing basis is sufficient in order to ensure oversight of a public authority, and that therefore there is less need for public oversight (and cf. Keshet Broadcasting, para. 81).

I do not accept this approach. First, in my view, the fact that a body exists for the purpose of oversight does not obviate the need for oversight by the public, and it certainly cannot deny the public, in the absence of sound justification for doing so, its right to oversee and criticize the governmental authorities (and cf. my position in Government Corporations, para. 33). “Public criticism is appropriate and desirable. It should not be suppressed. It should be encouraged. In a democratic state it is sometimes more important than review by the courts (Ministry of Education,, per Deputy President E. Rivlin, para. 11). This is particularly true in relation to the operation of the Ombudsman’s office, which as a rule is set in motion with the lodging of a complaint, so that there is therefore no guarantee that it will cover the entire range of activity of the courts system.  This is especially the case considering that, presumably, there are cases in which no complaints are lodged by the parties to a legal action. Precisely for this reason, there is room for the additional system of oversight provided by the public. In other words, the oversight exercised by the Ombudsman and public oversight operate on different planes and complement one another. It is difficult to accept, even given the special status of the judges, that they will be granted immunity from the Freedom of Information Law, unlike all other systems, and particularly where the legislator determined otherwise.

Summary and Conclusions

89.   As discussed at the beginning of this deliberation, the Freedom of Information Law establishes a broad norm of the right of the public to view information that is in the hands of the public authority. In other words, the rule is that of handing over information, and where the authority wishes to refrain from disclosure, it can do so if one of the statutory limitations applies. The interest of the public in disclosure of the information must be considered, as well as an assessment as to whether the public authority correctly balanced all the relevant considerations. The following should be taken into account, inter alia: the public interest in the information, as opposed to the anticipated harm to the interest of the public authority as a result of disclosure of the information; the possibility of reducing the harm to this interest, while upholding the right to information by partial publication of the information or by erasing certain particulars which it is thought will cause the main harm to the interest of the authority. All the considerations that the authority should have taken into account for the purpose of its decision whether to refrain from disclosing the information must be examined, as well as the balance between them and its reasonableness.

The conclusion at which I have ultimately arrived is that the respondents have the right to receive the requested information, since I am unpersuaded that there is near certainty of the occurrence of the harm to the courts system that the appellants claim will be caused as a result of handing over the information. My reasoning is based on the purposes of the Freedom of Information Law, the characteristics of the courts system, the transparency and public nature of its activity, the need to maintain public trust in the system, the nature of the performance of the judges, and their status and that of the courts.

90.   The parties to the petition. As stated, particular importance must be attached to the nature and the essence of the public authority in relation to which the information is requested, “It may be assumed that there is a direct correlation between the importance and degree of influence of the public authority on public affairs and the strength of the public interest in the disclosure of the information concerning its actions and decisions: ” (Council for Higher Education, at p. 251). The requested information concerns the judiciary, whose elevated status and the fact that it is amongst the most influential authorities are hardly a matter of dispute. The courts make a significant contribution to the fashioning of norms and standards; their activity touches upon all aspects of state activity and all areas of the lives of the individual and society. The public interest in knowing about the activity of the legal system, in its various aspects, is therefore clear.

On the other hand, the characterization of those requesting the information, who say that they want it for the sake of fulfilling their journalistic function, is also important in the present matter. The Law did not make the right to obtain information conditional upon the applicant providing a reason for his request (sec. 7(a) of the Law). At the same time, it is clear that the fact that the applicant’s interest in the information serves a concrete, important purpose from his point of view is likely to be a consideration in favor of providing the information  (see: Government Corporations, para. 10; Keshet Broadcasting, per Justice Y. Danziger, para. 10). The activity of journalists and the media is a guarantee for the existence of a free, civilized society:

They are a vital means for the realization of freedom of expression and actualization of the possibility for the public to oversee the activities of the government and to contribute to the establishment of a fitting culture of government. The contribution of bodies and parties of this sort to shaping the the face of society depends largely on their ability to realize their right to information (Government Corporations, para. 36).

 In the modern world, with the array of media and all the possibilities for disseminating information by means of existing technology, the media is the central means through which the individual realizes his right to information, to the exchange of views and to their crystallization (see also In re HaAretz, at pp. 479-480). The media is the central conduit through which the public can enjoy the publicity of proceedings in the courts and to learn from the journalists who frequent the courtrooms about hearings in the court and the judgments that are rendered.

In view of the public importance of the activity of the courts, and of the interest that the public has in knowing about this activity; in view of the fact that the requested information is administrative information held by appellant no. 1 and that it therefore comes under the right to information according to the Law; and having regard to the fact that the information has been requested by the respondents for the purpose of fulfilling their journalistic function, and that they therefore play an important role in realization of the right of the public to information, my opinion is that the respondents have a public interest in disclosure of the information.

91.   Ensuring public confidence in public authorities is one of the central purposes of the Freedom of Information Law. The Law reflects an approach whereby transparency of the activities of the public authorities, and the possibility of criticizing them on the basis of information provided, will lead to greater public confidence in the authorities and to their improved performance. Public confidence is a necessary condition for the judge’s ability to fulfill his task. Public confidence in the judiciary is a fundamental, basic condition for the its effective activity, and thereby of the existence of democracy. Life in a civilized society is not possible if the individual does not put his trust in the judicial authority as the mechanism for resolving conflicts and for clarifying and protecting his rights (see also Barak, The Judge in a Democratic Society, at p. 49). Indeed:

Public confidence in the judiciary is most precious asset that this branch of government has. It is also one of the most precious assets of the nation. As De Balzac noted, lack of confidence in the judiciary is the beginning of the end of society … And make no mistake: the need for public confidence does not mean the need for popularity. The need to ensure public confidence means the need to maintain a feeling amongst the public that the judicial decision is made in a way that is decent, objective, neutral and non-biased. It is not the identity of the claimants, but the weight of the claims that determine the law. This means recognizing that the judge is not a party to the legal dispute, and that he is not fighting for his power, but for the rule of law (Tzaban, at p. 148, and see Judge Cohen, at p. 461.)

As I explained above, in recognition of the fact that securing public confidence in the judicial system is not a temporary need but rather, an “ongoing need” (Tzaban, ibid.), the activity of the courts system is characterized by transparency and exposure to the public. This finds expression in the public nature of proceedings, in the publication of judicial decisions, and in the reports published by appellant no. 1, which provide a picture rich in detail about the activity of the courts. It is not for naught that I described the characteristics of the activity of the judges and the range of mechanisms which provide oversight and supervision of their activity. These demonstrate that, in fact, all aspects of the activities of the system and its judges are transparent and open to the public, or are subject to oversight. In particular, it should be stressed that the transparency of the courts’ activity is not merely systemic transparency. In this most important, most sensitive, and most complex of all tasks—the task of judging— the transparency is personal. The names of the judges appear on every decision that they hand down, without exception, even in cases in which the outcome is hard on one of the parties and the judge is liable to come under fire from the parties or from the public, as well as in cases—even if they are the exception—in which the possibility of the judge’s decision exposing him to some kind of threat cannot be discounted (and this has happened. Of course, in such a case, the judge is not expected to deal with the danger that has been created alone; the solution relates to security measures, but even then, the judge’s name is not withheld).

Against this background, since judges act with transparency, and they are constantly open to criticism which at times may be irrelevant, coarse, and aggressive, relating to their discretion and their professional conduct, it is difficult to accept the appellants’ argument that it is the publication of the quantitative data concerning each judge’s caseload that will engender serious harm to judges, culminating in harm to judicial independence and to public confidence in judges. It is difficult to accept that it is in fact criticism of the output or the speed with which cases are dealt that will be accorded, even by the judges themselves, greater weight and more significance than is accorded to criticism concerning their professional discretion. This position is contrary to the transparency and the mode of conduct that characterizes the system in its regular functioning, in the courtroom and in its function of deciding the law.

92.   The appellants sought to bring up a list of consequences of the publication of the data, at the center of which lies the harm to the judges, to their safety and to their peace of mind, leading to harm to judicial independence and to public confidence in the judges. According to them, it is a near certainty that these consequences will ensue, and therefore the disruption to the orderly functioning of the system is a near certainty. In my view, judicial independence, transparency and public confidence ought to be guarded assiduously in order to ensure the proper functioning of the courts. However, in my view, near certainty of harm to the functioning of the courts has not been proven. I say this, even whilst assuming that the picture presented to the public will apparently be based on the requested information and, therefore, will create only an incomplete picture.

In the framework of the deliberation, I have pointed out that, even if one cannot discount absolutely the possibility of the occurrence of the consequences that the appellants fear, such as harm to reputation, the concern that judges will be evaluated purely on this quantitative data, or that they will be embarrassed, the picture is far more complex and does not permit the acceptance of these arguments as stated. Thus, many of the arguments that were raised sought to point out that the erroneous information will engender a reality in which the judge finds himself persecuted and pressured in a manner that is harmful to his judicial independence, and as a result, to the functioning of the system as well, due to his exposure to inaccurate, embarrassing publications, or because of attempts to use the information against him. And indeed, I cannot discount the possibility that there may be those who seek to use the information in a negative manner, not directed purely at improving the system (in this context I will mention that the fact that the respondents are interested only in information about the judges of the higher courts—the Supreme Court and the district courts—may indeed make one wonder how necessary the information is in order to present the overload of the courts, for it is clear, even to them, that they lack the requisite information for this purpose, and it is known that the heaviest workload falls on the magistrates courts. At the same time, I do not think that too much weight should be given to this consideration, in that the reasons for the request are unknown to us).  As much as I cannot discount such a possibility, neither can I say that it will eventuate. Indeed, as I mentioned, most of the appellants’ arguments contain a speculative dimension. Many of them relate to the fear of negative publicity, but they do not give weight to the possibility of positive or neutral publicity. It must further be assumed that not every unfavorable publication can cause the severe damage as argued.

93.   Given that our concern here is with limiting the right to information, i.e., with the exception and not with the rule, I am of the opinion that the appellants’ arguments do not assign appropriate weight to the high personal, professional, and principled standard that the judge must meet, or to the extremely high level of responsibility that is expected of him (Tzaban, at pp. 148-149; DC 2/88 Minister of Justice v. Judge Asher ben Itzhak Arbel [1988] IsrSC 42(3) 63, 66-67).  This high level of responsibility also involves the ability of the judge to recognize error and to accept criticism. Indeed, exposure to criticism is part of the judicial task, and as I already mentioned in another context, “ … one who applies for a role such as this is also required to be prepared to meet the standard that is necessary by virtue of the nature of the task and the status of the person fulfilling it” (HCJ 2778/11 Kosanovic v. Judicial Selection Committee [Nevo – December 1, 2011]. The fact that the criticism may be harsh, and occasionally hurtful, does not in itself justify a violation of public’s right to information. This is explained well by President Barak in Be’eri:

        Public criticism is important for the judiciary. It ensures, ultimately, the public trust in the judiciary (see S. Shetreet, Judges on Trial         (1976), at p. 185). Judges accept this criticism with love. They understand that in a case that takes place before them, everything is on trial: the litigants, the law, and the judge himself. They know that criticism of them, even if harsh, is part of the “balances” that are required in a democratic society. Criticism, by its nature, is not flattering. It is properly leveled when it is civilized and relevant, and when it is anchored in the facts. But the boundary between what is permitted and what is forbidden is sometimes blurred. The need to preserve freedom of expression on the lawful side of this boundary is likely to justify refraining from bringing an action for expressions that overstep this boundary. The concern about prohibited expressions may well inhibit permitted expressions. The way to fight unfair criticism is by means of fair criticism of that criticism. The way to fight a lie is to expose the truth (ibid., at p. 612).

I will add that I accept, and it is well known, that the judge operates in a difficult, complex arena: the number of cases and their scope is constantly increasing, the fact that parallel to the legal process the parties not infrequently act in the media, and the involvement of various elements who try to influence the legal process—lobbyists, media advisers, public relations agents and others, all place the judge in the center of the stormy, emotional arena, in which the interests and the interested parties are numerous. They place the judge at the front line as the decision-maker. The judicial function involves, by its very nature, confrontations with a complex reality, with pressures of work, both in terms of quantity and substance, and with the gap between the litigation inside the courtroom and the way in which matters are presented outside to the public. In this situation, too, where one cannot discount various kinds of attempts to influence the judge, he is expected to adhere to his commitment to the rule of law, to decide on the merits in a professional manner, and to try to do justice in accordance with the law. Even in an arena that is susceptible to various influences, “…independence, autonomy, loyalty to the law and to one’s conscience are embedded first and foremost in the heart and the mind of the judge; the spiritual resources must ensure that every obstacle is overcome” (Shamgar, at p. 257). In other words, the judicial function requires judges to have strength—a strength that emanates from a commitment to truth, to the law, and to the dictates of conscience. Even if it is not deliberate, it seems to me that the appellants’ arguments assume that judges are liable to be swayed by uncomplimentary publications, even in situations that are not the most extreme. I believe that judges are deserving of trust in their honesty and integrity, and in their faithful and scrupulous fulfilling of their mission. As such, I also believe that their inner strength, and the strength of the entire system, will allow them to cope, even with negative publications, should there be any.

I stress that I do not think that one should bury one’s head in the sand when confronted with the extreme pressures that are not infrequently placed on judges, whether in the pleadings of the litigants in court, whether by the enormous workload, or whether by what appears in the media. It is not correct to belittle the concern about the creation of conditions under which it will be very difficult for the judge to fulfill his task. At the same time, as was explained, I do not think that the publication of the said data is what will confront the judge with such a reality, for even now, he is exposed to publications that can put pressure on him and even intimidate him. There is no option but for the judge to learn to stand up to the pressures, to dissociate himself from external influences, and to decide on the basis of the law and the dictates of conscience.

94.   All of this would not be complete were I not to relate to the flip side of the coin. As is known, “Public confidence is not a given. Its existence must not be taken for granted. Public confidence is fluid. It must be nurtured. It is easier to harm it than to preserve it” (Aharon Barak, Judicial Discretion (5744-1984) 261). Judges are not the only ones with responsibility for public confidence in the courts. The public too, and particularly the media, which wields a great deal of power, has a contribution and heavy responsibility in this context. Criticism of public servants in general, and of the courts in particular, when it is not on the merits and when it is intended to hurt more than it is intended to correct matters, can produce devastating results for society as a whole. Instead of bringing about the correction of defects, for the sake of improvements and increased efficiency, it is liable to erode the foundations on which our system rests. Indeed: “The rule of law involves constant maintenance of the confidence in legal institutions” (HCJ 433/87 Rechtman v. Israel Bar Association [1987] IsrSC 41(4) 606, at p. 610). Therefore, responsibility, sensitivity, and caution are required on the part of those who seek to criticize the courts, their decisions, and their performance. It should be recalled that public servants, too, deserve having their dignity and their reputation preserved in public, and care must be taken to express a fair position that is based in fact, for otherwise, the criticism lacks value.

95.   Finally: the information requested is information to which the public has a right of access under the Freedom of Information Law. It is administrative information held by the courts, in relation to which the legislator’s position that it is subject to the Freedom of Information Law was explicit. The position taken by the appellants, according to which provision of information mentioning the names of the judges will interfere with the activity of the courts, due to its adverse effect on judicial independence and public confidence in the courts, is contrary to the general operation of the courts system, which is characterized by maximum transparency and openness. Given the regular transparency of the system, as well as the pressures and the public criticism to which the judges are accustomed today in relation to the contents of their decisions, I do not find that the harm claimed by the appellants will occur with the degree of near certainty that they were required to prove. Today, too, judges are susceptible to harm to their reputations, their public images, and their peace of mind, and they must confront this risk as part of their job description. When public interest in the details of the activity of the courts is high, and when the activity of judges is characterized by their personal identification with the product of their work—judgments, decisions, and the way in which proceedings are conducted in public—I am not convinced that the appellants’ proposal to expose the data without the names of the judges is satisfactory, and in my opinion, the petition should be granted.

As I have expressed in the framework of this discussion, making a decision on the appeal was difficult for me, mainly due to the concern that the outcome would entail harm to judges who are currently serving, and might embarrass them. I am aware that my judgment will be received by some of my fellow justices, and by the public, too, as a decision that will result in harm to judicial independence. For my part, I believe that the strength of the judges and of the system will stand them in good stead, and that provision of the requested information is likely, at the end of the day, to increase and fortify public confidence in the courts and in the judges—confidence which, as we have said, is essential for the functioning and the vitality of the legal system. At the end of the day, one cannot help but ask: is there a true justification for withholding from, or denying, the respondents, as well as the entire public, details about cases that are awaiting decision in the various courts? For the reasons elucidated at length above, I believe that there is no justification for so doing and that it ought not to be done.

96.   It is precisely out of recognition of the general burden on the legal system, and precisely in view of the transparency characterizing the activity of the courts, and precisely out of a duty to maintain public confidence in the courts system, that it appears that withholding the requested data, which the public has a right to obtain, sends out a hard message of an attempt to keep the details of the work of the courts in the dark. I believe that the system has nothing to hide. I believe that it is right that the public should be made aware of the Sisyphean task, and of the unimaginable pressure under which the judges operate. Precisely out of a conception whereby judges act openly in all aspects of their work, in bright sunlight, would it be incorrect to refrain from handing over the information for reasons that reflect, mainly, a lack of confidence in the strength of the judges and in their total commitment to their mission.

And finally, the words of (then) Justice M. Cheshin should be heard:

The courts, or should we say, the judges of the courts, know that they face judgment on a daily and hourly basis, and as is the way of humankind, one who is on trial acts as befits one standing trial in public. In performing his judicial function, the judge must always regard himself as sitting in a glass house or in a display window that looks out onto the street; every passer-by is entitled to look at him, to examine him and to criticize him - and to praise him and to boast about him. In translating these values into legal language, we speak about freedom of expression and also about freedom of the media as deriving from the public’s right to know. Indeed, the media in its various forms is merely the public’s agent. It constitutes a type of amplifier and magnifying glass for events that happen in a certain time and certain place.  See and compare: MApp 298/86 Citrin v. Tel Aviv Disciplinary Tribunal of Bar Association [1987] IsrSC 41(2) 337, at p. 358. And in this way, the entire public may know if legal processes are being conducted properly. This is the transparency and the review that must accompany all those who hold the reins of authority and powers of enforcement in the state, which is characterized as an open regime (Yanos, at p. 110).

If my opinion is accepted, the appeal will be denied. In order to enable the appellants to prepare themselves in appropriate fashion to implement the judgment, I propose that they be ordered to hand over the data concerning the Supreme Court and the district courts as requested in the petition, relating to the end of the 2015 legal year, no later than December 31, 2015. I also suggest that the appellants be ordered to pay the defendants’ legal fees in the amount of NIS 20,000.

Justice Y. Danziger

I concur in the comprehensive, important, and incisive judgment of my colleague Justice E. Arbel, subject to the following reservations.

My colleague ordered the appellants to deliver to the respondents the information that is the object of the petition, “relating to the end of the 2015 legal year.” I personally think that there is no justification for this “leniency”.

In their request of August 8, 2009 under the Freedom of Information Law, which was submitted to Judge A. Gillon, who served as the supervisor for the Freedom of Information Law in the courts administration, the respondents requested “the most current information you have on the matter, and the information concerning the previous three years.” In their petition, which was submitted on March 24, 2010, the respondents asked for “all the quantitative information concerning the number of open cases being heard by each of the district court judges in the state, and the justices of the Supreme Court, and all the information concerning the time that has elapsed since the opening of each of the open principal cases.” Hence, already in 2009, the respondents asked to receive the most current information that the appellants possessed, as well as the historical information. After their request was denied, the respondents submitted the petition that is the object of this appeal, in which they reiterated their request that they be given current information. As we know, on April 14, 2011 the petition of the respondents was granted, when the District Court ordered that the “requested information” be handed over to the respondents. The delivery of this information was postponed due to the decision of Justice H. Melcer of July 12, 2011 to stay execution of the judgment until the decision on the appeal.

I believe that today, five years after the respondents submitted their request under the Freedom of Information Law, and three years since the date on which the District Court, sitting as an Administrative Affairs Court, ordered the appellants to disclose the information, the respondents’ petition should be granted in full, and the judgment of the District Court should stand as given—including in the matter of the dates to which the information relates.

Underlying this conclusion is the fact that disclosure of updated information, and not “deferred” information, is the relief that was sought in the respondents’ petition and which was granted in the judgment. Similarly, the relief of postponing the time period to which the information relates was not requested by the appellants in their appeal. I am of the opinion that the case at hand does not belong in the category of exceptional cases in which it is justified for the appeals court to grant relief that was not sought in the statement of claim or in the statement of appeal (cf. CA 8854/06 Adv. Corfu v. Sorotzkin  [Nevo – March 20,2008], para. 22).

In my opinion, when the court concludes that an order should be given to disclose information, the default position is full disclosure of the requested information, and the exception is limitation or restriction of the disclosure (cf., e.g., the relief that was granted in AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23, 2012], per Deputy President E. Rivlin, para. 22). As pointed out by my colleague Justice Arbel, information which it has been decided to disclose is information held by the authority in trust for the public and there is no justification, as a rule, for preventing the public from gaining access to its own property. True, in certain cases there may be a departure from this default position. However, that will happen only when weighty reasons for so doing exist: in most cases, these are primarily related to the legitimate reliance of the objects of the information on the situation that pertained prior to the decision concerning disclosure [see, e.g., AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority [Nevo – May 19, 2009], per Justice E. Arbel, para. 42 (Sept. 5, 2009); AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority [2008] IsrSC 63(1) 284, per Justice E. Arbel, para. 65, and per E. Rubinstein, para. 5 (Sept. 23, 2008)].

My view is, that in the present case, reasons which would justify limiting the disclosure do not exist. This is due, first and foremost, to the weighty reasons presented by my colleague, Justice Arbel, for denying the appeal. Similarly, from the moment that the respondents’ petition was accepted by the District Court, the appellants (or any of the objects of the information that was to be disclosed) were not at liberty to rely on the non-disclosure of the information, and they ought to have prepared themselves properly for the possibility that the judgment of the District Court will remain in force, including in relation to the operative relief. It is also clear that the stay of judgment that was issued cannot change this conclusion. The stay of judgment that was granted only “froze” the situation that pertained prior to the issuing of the judgment, but it could not create a legitimate expectation that the judgment will be cancelled or that it will, in itself, bring about a change in circumstances that would justify changing the relief that had been granted. This applies with even greater force, in view of the fact that the District Court determined as fact that the information that was requested is “information that exists in the hands [of the appellants] and its delivery to [the respondents] in its present state can be executed, with relative ease, by way of producing the appropriate computer report.” This finding is also consistent with the letter of Judge Gillon to the respondents, dated December 14, 2009, according to which, “after looking thoroughly into the subjects that you raised in your application, we have answers and data” concerning the information that was requested in the petition. In light of these words, which related to the situation that pertained at the time that the District Court issued its judgment, it would appear that no real hardship will be caused to the appellants as a result of disclosing the most updated information that they possess.

Accordingly, in my view, an order should be issued to disclose the most updated information that the appellants possess, i.e., information relating to the 5774 [2013-2014] legal year. In order to give the appellants time to prepare for the implementation of our judgment, I propose that they be required to deliver the information to the respondents no later than December 12, 2014.

 

Justice N. Hendel

Background

1.     This administrative appeal deals with a petition for the publication of information under the Freedom of Information Law. The information requested is the number of open cases that are being heard in the Supreme Court and the district courts, and the time that has elapsed since each case was opened, together with the name of the judge who is hearing each of the cases.

The Administrative Affairs Court in Jerusalem granted the respondents’ petition (AP 43366-03-10 [Nevo], President M. Arad). My colleague, Justice E. Arbel, in her comprehensive and thorough written opinion, proposed denying the appeal and affirming the decision of the Administrative Affairs Court. Let me state right away that my opinion is different: I think that the appeal should be allowed. My colleague described at length the sequence of events in the proceedings and the pleadings of the parties, and I will not repeat these here. I will focus only on the legal foundation and the reasons that have led me to the conclusion that the appeal should be allowed.

On the Freedom of Information Law, 5758-1998

2.     It is important, at the outset, to once again emphasize the importance of the Freedom of Information Law, and of the purposes underlying it. This Law is based on the understanding that the public information that is held by the public authority is not its private property. In this, the fundamental meaning of being a public servant is emphasized to all. The public servant’s work, and the information that is created in the course of that work, is neither private information nor the property of the state. The information is held in trust for the benefit of the public and as such it must be accessible to the public.

Moreover, the free flow of public information constitutes an important condition—and possibly even a necessary one—for the proper functioning of a democratic regime. The Freedom of Information Law opens the gates of information to every citizen or resident. The Law instills the values of transparency of government. Freedom of information is the basis of the “supreme right” of freedom of expression: without information there is no opinion, and without opinion there is no expression. Free information is also required for the existence of ongoing and relevant public criticism of the activities of the authorities. The general public is thereby given the opportunity to participate in governmental activity. Hence can be understood, the importance of freedom of information for the actualization of the democratic regime as well as for increasing individual confidence in the authority and its activities. It would seem that the information revolution is a major indicator of human development in the last 25 years. The Freedom of Information Law is what its name says it is. The rights of the individual go hand in hand with technological progress (see and compare: AAA 7744/10 National Insurance Institute v. Adv. Yafit Mangel [Nevo – 15.11.2012], para. 5 of my opinion; AAA786/12 Joulani v. State of Israel [Nevo – November 20, 2013], para. 3 of my opinion).

3.     The Freedom of Information Law is a masterpiece of balances. On the one hand, the Law explicitly anchors the right to obtain information (sec. 1 of the Law). On the other hand, together with the declaration of the right to obtain information, the Law recognizes that freedom of information is not the be-all and end-all. The disclosure of information may sometimes entail various negative consequences. It is not only the right to information that is relevant, but also additional rights and interests such as the right to privacy, public safety, and others. Freedom of information is a relative right. Hence the need arises to strike a delicate balance between values, rights, and interests.

The Freedom of Information Law was enacted in 1998. The experience of 16 years has taught, in my opinion, that, although we are at the beginning of the road, the public makes great use of the tools granted to it by the legislator. Many judgments have shaped the parameters of the right to obtain information. The Law supports the disclosure of information, but balance is required, and this finds expression in the provisions of the Law. These provisions specify, for example, when a public authority may not hand over the information that was requested, how information concerning a third party must be published, and so forth. Individual petitions to obtain information, and the fundamental questions that arise within their framework, must be examined through the prism of the provisions of the Law. The purposes underlying the Freedom of Information Law will be realized by means of implementation of the provisions of the Law, which reflect the decisions of the legislator.

We stress this again because the overall context of the case before us cannot be ignored. The Court is in fact being asked to decide, with no choice in the matter, on a petition to disclose information that concerns itself. This kind of complex situation is naturally liable to create problematic incentives: on the one hand, to needlessly bolster the natural tendency not to allow publication of the information, or precisely the opposite—to strengthen the tendency to publish the information only for fear of “what people will say.” The deciding party is likely to be influenced by the ramifications of publishing the material. For this reason, there is a risk of overcompensation  (or as the Americans say a tendency to “bend over backwards”) in precisely the opposite direction. Against the backdrop of the situation described, it should once again be stated that in this petition, as in every petition relating to freedom of information, the court is bound by the normative framework of the Freedom of Information Law and its provisions. If it should be found that the checks and balances established by the legislator do not justify handing over the information, this outcome must be respected, and the converse also applies. The Court is required to apply the Law and to decide on the matter of delivering information that concerns the courts system in the same manner as it treats matters relating to every other authority, examining the particular nature of the authority, as far as that is relevant to the decision. No more, and no less.

Summary of the Dispute

4.     In the framework of the Freedom of Information Law the legislator distinguished between three levels of delivery of information: information which must be provided, information that must not be provided, and information which there is no obligation to provide.

The default position, as stated in sec. 1, is that every citizen or resident has the right to obtain information from a public authority in accordance with the provisions of the Law. Together with this, the legislator listed types of information that must not be provided, such as information whose disclosure constitutes an invasion of privacy or may pose a threat to national security (sec. 9(a)). The third level—information that does not have to be provided—is what concerns us here, as will be explained. This is a category that is more difficult and more complex to apply and to determine. It includes various circumstances in the presence of which, the legislator has determined that the authority has discretion whether or not to respond to a request for information. Thus, for example, the authority is permitted to reject a request to obtain information if handling the request necessitates an unreasonable allocation of resources, or if the information was produced more than seven years prior to its filing and locating it involves substantial difficulty (sec. 8(1)-(2)).

5.     In the present case, the dispute between the parties to the appeal focuses primarily on sec. 9(b)(1) of the Law—information the disclosure of which is liable to disrupt the proper functioning of the public authority. Owing to the importance of the section, I will quote it in full:

        A public authority is not obliged to provide information … the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.In this case, information has been sought about the number of open cases that are being heard in the Supreme Court and the district courts, and the amount of time that has elapsed since they were opened, together with the name of the judge in each case. The question, therefore, is whether disclosure of the requested information “is liable to disrupt the proper functioning of the public authority or its ability to carry out its duties.” According to Justice Arbel’s approach, the answer is negative. In other words: it is not permissible to refuse to provide the information on the basis of the defense established in sec. 9(b)(1).

Justice Arbel’s position rests on several main tiers:  first, according to her approach, near certainty that publication of the information will interfere with the performance of the authority is required.  Secondly, the main aspect that must be examined according to her approach is the concern for harm to public confidence in the legal system, and more precisely: the manner in which the legal system and the judges are perceived by the public. Thirdly, my colleague presented the arguments of the appellants and the concerns about interference with the work of the judges as a result of publication of the requested information. Her conclusion is that even though there is substance to these concerns, they do not reach the probability level of near certainty.

Let me state, already at this point, that I do not necessarily disagree with the first tier, which is the basic legal position concerning the required level of probability for the purpose of application of sec. 9(b)(1) of the Law. For the purpose of our discussion here, I will assume that indeed, near certainty is required, as my colleague holds. However, my opinion is that even according to that strict standard, near certainty exists that publication of the requested information will disrupt the work of the judge. For this reason I propose to my colleagues to allow the appeal, and to determine that the authority was permitted to refuse to provide the requested information.

The Standard of Probability in Section 9(b)(1)

6.     Section 9(b)(1) deals with information whose disclosure “is liable to disrupt” the functioning of the authority. The question is, what is the relevant level of probability for the concern about disruption? This can be presented as a choice between the standard of “near certainty” and that of “reasonable possibility”. The language of the section does not provide clear support for either alternative.

In this context it will be recalled that Deputy President E. Rivlin held that only where there is near certainty of disruption with the proper functioning of the authority will there be sufficient cause to limit the freedom of information (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60  para. 22; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 23,2012], para. 7). On the other hand, Justice I. Amit remarked: “I am not convinced that secs. 8 and 9 of the Law stand at a lower level than that of the right to obtain information anchored in sec. 1 of the Law.” Justice Amit subsequently added that “I would be careful about determining a priori that the balance between the right to know and other opposing interests, such as the security of the state and its foreign relations or the efficient functioning of the public service is a vertical one” (AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 9, and the dissenting comment of Justice E. Hayut in para. 5 of her opinion, ibid.; cf. Justice Arbel’s discussion of the limitation in sec. 9(b)(4) – AAA 7024/03 Geva v. German [Nevo – September 6, 2006], para. 15).

Personally, in the framework of this case I would leave pending the fundamental legal question concerning the required standard of probability for the purpose of sec. 9(b)(1)—near certainty or reasonable possibility. It appears that the case law leans more towards the first possibility. Of course, an intermediate level that is found at some point between the two extremes is also possible. One way or another, my opinion is that no hard and fast determination should be made at this point, so as not to create further disputes on an issue which in my opinion is not essential to deciding the case before us. For the purpose of the ensuing discussion, I will therefore assume that within the bounds of sec. 9(b)(1), there must be near certainty that publication of the information will disrupt the functioning of the authority or its ability to perform its duties. The question remains as to whether in the present case, the existence of near certainty such as this can be established.

Public Hearing: Substantive Aspect v. Administrative Aspect

7.     The principle of the public hearing is one of the mainstays of the judicial process. It is based on various justifications, including the public’s right to know, improving the quality of judgments, and increasing public confidence in the court (CrA 11793/05 The Israeli News Company v. State of Israel, per Justice E. Arbel (April 4, 2006), paras. 13-15). This important constitutional principle is also entrenched in sec. 3 of Basic Law: The Judiciary, and in sec. 68(a) of the Courts Law. The principle is that the deliberations of the court will be open to the public, and the doors will be closed in exceptional cases only.

The technological advances of recent decades have immeasurably increased the dimension of publicity of the court’s deliberations. Today, every decision—and particularly those of this Court—appears on the internet, almost instantaneously, and is universally accessible. The various data banks allow for rapid and convenient access to all decisions, and include advanced search functions according to key words, chronological segmentation, segmentation according to subject matter, and more. This is as opposed to the situation that prevailed 25 years ago, for example, when, naturally, judgments were almost never computerized, and most were inaccessible to the general public. I remember feeling, at the time that I was appointed as a judge, that in many respects, from a technological perspective, there was no significant difference between the work of the judge then and that of a judge in England 200 years ago—except for the electricity and the air-conditioner. The judge wrote his judgments himself, or was helped by a stenographer—the “typist” of those days. Paper and ink were essential working tools. Lawyers cited judgment that were published in the Supreme Court Reports [Piskei Din], or in which they themselves had appeared, or about which they had heard. It was difficult in the district courts, and certainly in the magistrates courts, to have the judgments printed. It seems that everything has changed since then. The English judge of the 18th century would have difficulty in understanding some of the technological activity that takes place today surrounding the judge. This development has allowed for easy and accessible documentation. We can simply conclude, therefore, that the extent of exposure and publicity of the work of the judge increases over the years. Today, every person can easily obtain judicial decisions; he can peruse them, and learn how each and every judge acts, thinks and rules. The principle of the public hearing is realized also through the presence of large numbers of citizens—who are not connected to the case—in the courtrooms, and broad coverage in a wide variety of media. This is the situation, and it is good that it is so.

8.     In the context of the principle of publicity, a clear distinction must be drawn between two aspects of the judicial task: the legal-substantive aspect as opposed to the administrative aspect. The legal-substantive aspect is concerned with the hearing, its contents, the manner in which it is conducted by the judge, and the decisions and judgments that the judge is required to issue and for which he must provide reasoning. The principle of public hearing, in all its glory, controls this aspect of the judicial function. Of course, the law lays down some exceptions. The courtroom is open, the hearing is public, and the decision is published. But this does not apply equally in relation to the administrative aspect. This aspect is concerned with the administrative wrapping of the judicial task, such as decisions concerning distribution of cases, setting dates for hearings, the rate at which cases are heard, and the date of publication of the judgment. In all that concerns the principle of publicity, no analogy can be drawn from the legal-substantive aspect of the work of the judge to the administrative aspect of his work. The reasons will be elucidated below.

The administrative aspect of the judicial function is extremely important. In truth, over the past twenty years it is possible to discern an
“administrative revolution” in the Israeli legal system. This “revolution” has been possible not only due to technological developments (particularly the dramatic developments in access to computers and the internet), but also in view of the growing awareness of those in the profession of the importance of the administrative aspect of the judicial tasks. In this context, let me mention, for example, the annual reports of the courts administration, published each year since 2006. These reports contain a wide range of data, including detailed lists of names of office bearers and contact information; data concerning the number of cases opened, closed and pending in each judicial instance according to various segmentations; comparative data between regions and courts and so on and so forth. The reports are open for perusal by the general public, and are available, free, on the internet. Another example is the Net Hamishpat [Law-net] system, which enables the submission of documents and perusal of decisions through remote access. I will also mention the growing responsibility of the courts administration, recourse to external consultants in order to streamline the system, the more professional-administrative definition of the role of the court president and his deputies, the convening of meetings of presidents, and further training sessions for judges. Mention will also be made of the directives and the regulations that are published by the President of the Supreme Court, the object of which is to improve and to regulate the administrative aspects of the proceedings in the various courts. These directives relate to administrative topics connected to the efficiency of the system, such as motions to postpone the dates of hearings and consecutive trial dates. This is in addition to frequent meetings between the President of the Supreme Court and the Director of the Courts and the presidents of district and magistrates courts, the compilation of monthly reports concerning the pace of the judicial work, the scheduling of discussions, as required, between the president of the court and its judges, distribution of cases, etc. The direct involvement of the President of the Supreme Court in the administrative aspects of the activity of the courts, unlike the situation that prevails in many other legal systems, is an expression of the importance of the administrative aspect and of the considerable investment in this matter.

9.     Insofar as the administrative aspect of the judicial task is concerned, three theoretical models come to mind. One model totally exempts the judge from managing the administrative aspects of his affairs. According to this model, the judge is assigned cases, and he is asked to hear them and to publish judgments one after another, in the order in which they were assigned.  A second model obligates the judge to deal with all the administrative aspects of the cases on his docket. A third, combined model is followed in this Court, as in judicial systems in other states.

In this combined model, on the one hand, external factors determine the panel on which each judge will sit and which cases he will hear. In the Israeli system, these aspects are within the purview of the presidents of the courts, of the judge that presides over the panel, and to a certain extent, of the court diary as well. These determine not only which cases will be heard by each judge, but also the dates of the hearings and their order, and sometimes even the identity of the judge who will write up the judgment. In a wider circle, some of the directives that are issued by the President of the Supreme Court—which were mentioned above— also shape the agenda of the judge at the administrative level. On the other hand, the judge bears responsibility for the administration of certain aspects of the schedule of each individual case, and at the same time of all the cases on his docket in its entirety. For example, in the case of an accused person who is in detention, or in a civil suit in a fast track procedure, the legislator prescribed that the judge must set a clear timetable for completing the case. Beyond that, the judge must deal with the internal management of his schedule, within the parameters that have been set for him: in cases in which he is sitting as a single judge, he must decide how many cases he will hear every day, at what times and for how long. He must decide how to prioritize the process of writing up judgments and decisions, for example, whether to first devote time to writing a long judgment with important ramifications (such as a case of murder which entails a life sentence for the accused or his acquittal), or instead, to write up a number of judgments each of which deals with a relatively minor financial dispute but which have been awaiting decision for a long time and are clearly important to the parties themselves.

10.   Every judge, every day, all day, is required to handle—and in fact does handle—administrative judicial decisions alongside the substantive judicial decisions. The judge must be aware of this dual responsibility. However, the differences between the two must be emphasized: substantive decisions in all areas of the law are written, reasoned and detailed. They are published. They are made after a public hearing has taken place, conducted by a judge, and after the written and oral pleadings of the parties have been weighed. They are the fruit of the exclusive discretion of the judge. It will be recalled that “a person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the law” (sec. 2, Basic Law: The Judiciary).

The situation is different in relation to the administrative aspects of the judicial task. Here, the judge does not act and decide alone. There are, as we have said, parties other than the judge himself who decide how many and which cases will be heard by each judge at every stage. In addition, it must be recalled that virtually all the daily administrative decisions are made, by their very nature, without hearing the pleadings of the parties, and without reasoned, detailed decisions being published. In fact, these decisions are not written up. To illustrate the special nature of decisions such as these, it will be stressed that we are not referring, for example, to a decision which was made in the framework of an ongoing case to postpone the date of the hearing or to excuse a witness. Decisions such as those are written and published, after the response of the opposing party is received. This is not what we are dealing with; rather, we are dealing with expressly administrative decisions.

Near Certainty of Disrupting the Judicial Task

11.   The respondents, correspondent Hila Raz and TheMarker newspaper, primarily asked for two items of information in relation to each judge of the district courts and of the Supreme Court: the number of open cases, and the amount of time that has elapsed since each case was opened, together with the name of the judge hearing each case.

Publication of the requested information is analogous to shining a powerful spotlight on the administrative aspect of the work of the individual judge. Shining the spotlight is liable, as I understand it, to lead to disruption of the work of many judges and of the judicial system overall, at the level of near certainty. I will discuss six reasons which have led me to this conclusion.

First I will comment that while the petition dealt with information concerning the district courts and the Supreme Court, and not with information about the magistrates courts.  I do not see any reason for creating a real distinction, from the point of view of the considerations for publishing the information, between the courts. I also do not think that such a distinction can be justified. Clearly, denial of the appeal and publication of the information will give rise to additional requests, also in relation to the magistrates courts, the traffic courts, the family courts, the youth courts and the religious courts. In my view, therefore, a uniform outcome is inevitable. It is not superfluous to note that the scope of the cases in the magistrates courts is larger by many degrees: thus, for example, in 2013, more than 600,000 cases were opened in the magistrates courts (including the family and traffic courts), compared to some 60,000 cases in the district courts (see: The Judiciary in the State of Israel, Report for the Year 2013 Pursuant to the Freedom of Information Law 5758-1998 (2013): hereinafter: Report of the Judiciary (2013)).

a.     Publication of the material will harm efficiency

12.   First, it is hard to believe that publication of the requested information per se will put an end to interest in the subject. On the contrary, experience shows the opposite to be true: publication together with names is expected to increase and strengthen the preoccupation with the administrative aspect of the task of judging, but in a particular way which is not beneficial. Therefore, I am not dismissing the fundamental intention of the respondents: to create public awareness and public involvement in the subject of judicial overload. My reservation relates to preoccupation with the administrative aspect through the requested prism. This way will create a certain dynamic.

As a result of the publication, interest will grow like a snowball, because these are not dry figures, but names and faces. Upon publication of the information, many questions can be expected, with near certainty, to arise: why is a particular judge given too many or not enough cases, and why does another judge take so long to publish decisions in so many cases? The questions can also be expected to arouse a desire to provide answers. Assume that a particular judge finds himself at the bottom of the chart, for example, because the number of open cases on his desk is the highest. This judge can be expected to want to explain matters. Pressure will be created to justify the existing situation, or alternatively, to change it at all costs. One way or another, it is clear that publication of the information requested by the respondents will lead to increased preoccupation of each judge with justifying and defending himself in relation to the administrative aspect of the judicial task, at the expense of the substantive aspect. More precisely, there is no need to relate to the harm to each and every judge in the system. It is sufficient that near certainty exists of harm to a particular judge or to certain judges. This harm will have an impact on the functioning of the whole system, in view of the fact that every judge in his courtroom deals with the entire world of a specific case between individual litigants.

This Court “dwells among its people.” It seems that anyone familiar with Israeli reality cannot avoid the conclusion that publication of the information will invite pressures, and these will lead to unnecessary activity that will, with near certainty, be detrimental to the entire legal system. The difficulty arises in particular because this is an administrative matter, rather than a substantive matter, connected to the task of judging. It is presumed that the court, when it is about to convict a person of a criminal offense or to find him liable in tort, will not be affected by various media publications concerning substantive matters. This is irrespective of the wider issue of sub judice. However, the publication that we are dealing with relates to administrative aspects—how many cases remain open on the desk of each judge and so forth. As was explained, these are aspects for which there is no clear legal answer, and they are not necessarily decided according to the dictates of a judge’s conscience. If in relation to every administrative aspect it would be necessary to conduct a hearing, to hear pleadings, to formulate a reasoned decision, to expose the decision to review on appeal, and subsequently, to also deal with publication of the information, with all the implications therefrom—efficiency will not benefit thereby. The opposite is true. Many resources, which as it is are insufficient, will be diverted to unnecessary channels. The individual judge will be forced to devote more time to clearly administrative decisions and to defending his decisions—precious judicial time which is not to be found in abundance. With all the understanding for the desire of the respondents to contribute to efficiency—publication of the requested information will bring about precisely the opposite result. With the present load, the addition of this component is liable to disrupt the proper functioning of the activity of the system or its ability to perform its tasks.

My colleague, Justice Arbel, discussed the fact that publication of the data is also liable to have the effect of causing embarrassment. It must be stressed: it is not the emotional aspect that is of interest, but rather, the legal consideration of interfering with the judicial performance. This interference will occur, with near certainty, as a result of the fact that the judge and the legal system as a whole will be required to allocate resources to over-occupation with administration and with justifying administrative decisions at the expense of dealing with the substance. Another task will be created, keeping many parties busy for long periods of time. This task will create a certain blurring of the boundaries between the substantive and the administrative. These latter decisions are not public, the reasoning behind them is not elaborated upon; in fact they are not written at all. It is good that it is so. The reason for this, inter alia, is that these are not individual decisions of the judge, but systemic decisions that are made in a complex procedure in which many elements are involved. The individual judge is not the dominant element in this process, and certainly not the factor which makes the decisions.

b.     Frustration of Respondents’ Declared Purpose

13.   Section 10 of the Freedom of Information Law states:

        In considering a refusal to provide information under this law, based on the provisions of Section 8 and 9, the public authority will take into account, among other things, the interest of the applicant in the information, if cited in the request…

We see that according to the legislative requirement, the interest of the person requesting the information must sometimes also be considered. This is so when secs. 8 and 9 apply to the case, i.e., when it is a matter of information that the authority may refuse to provide. In such a case, refusal to provide the information rests, as stated, on the reasons specified in sec. 9(b)(1) of the Law. Hence, the interest of the respondents in the requested information, according to the position they presented in their request, must also be taken into account.

In the present case, the respondents explained at the beginning of their application that they are submitting it “in view of the supreme public importance in relation to the workload … that is imposed on the courts system.” Thus, the declared interest of the respondents in publishing the information is the workload of the courts system and its public importance. An investigation into this subject has two parts: one is establishing the existence of overload and its extent. The second is recognition of the fact that this is an undesirable phenomenon from the point of view of the functioning of the system, which certainly ought not to be exacerbated. As for the first part, the focus of the investigation is “the courts system”. What the respondents want is to expose the problem of overload. Insofar as this is a systemic matter, the courts administration agreed to deliver the details. As for the second part, as I explained, publication of the information pertaining to the personal performace will, in my view, achieve the opposite of easing the problem of overload. Not only will the load not lighten, but resources that are dedicated today to time management and to the writing of judgments and decisions. and in general to lightening the load, will be diverted to dealing with these publications and with the shockwaves that are created.

Indeed, the declared interest is the overload of the system. Systemic data was and will be supplied by the appellants. However, the petition deals with an additional dimension that is not systemic, i.e., that of the individual judge. In this context there are three reservations: first, this dimension is not consistent with the declared interest. Second, the name requirement is liable to affect the functioning of the authority. I have dealt with these reservations elsewhere. Third, the requested information on the individual level does not contribute to an understanding of the issue of overload, and is even liable to mislead. I will now elaborate on this reservation.

The publication of data in relation to each judge concerning the number of open cases, and the amount of time over which they have been open, is a double-edged sword: on one end —this is a simple, absorbable item that can be easily understood and internalized. On the other end —this item does not correctly reflect the complex reality. By way of illustration, it will be recalled that recently, the Israeli Courts Research Division published the case index for the assessment of judicial workloads (available at http://elyon1.court.gov.il/heb/Research%20Division/Research.htm ).  The purpose of this index is to try to correctly assess the workload on the various judicial instances, in order to develop effective tools for the allocation of resources, the regulation of caseloads, and improved management of the courts. The index that was developed relates to some one hundred types of procedures that come before the magistrates courts, the district courts, and the regional labor courts. For each type of procedure, the average time invested in the case is measured.  These units of time are translated into weighted units. For example, the minimum weight—1—is accorded to orders of search and entry in detention proceedings in the magistrates courts. The maximum weight—1826—is given to cases of serious felonies that are heard before a bench of three judges in the district court. The weight of each case is determined according to two main parameters: the number of events that comprise the judicial work in a particular case, and the complexity of the events (from the point of view of the time required). The data concerning the number and complexity of the events was obtained, inter alia, through a qualitative methodology, by a group of judges, and a quantitative analysis of the computer data and of representative samples of cases.

I have discussed this somewhat in detail in order to explain one very important point: the information requested by the respondents in the present case, which they are presumably interested in publishing, is liable to be misleading; in fact, it cannot be anything but misleading. Due to the huge variety of judicial procedures, extremely complex statistical work is required in order to compare workloads. There are cases which can be wrapped up in one short session. There are cases which require dozens of sessions in order to hear all the testimony—for example, a complicated criminal case with many witnesses, or a case in torts on grounds of medical negligence, with many expert witnesses.

Indeed, as the famous American author Mark Twain remarked (in the name of the British Prime Minister, Benjamin Disraeli) with a humor that contains some truth: “There are three kinds of lies: lies, damned lies, and statistics.” Statistics are liable to mislead even in the context of the information with which we are concerned here. The summarized figures—the number of cases and the time that has elapsed—do not reflect the complex, complicated reality. As a result, superficial publication of the data as requested by the respondents will not properly fulfill the declared purpose of exposing the problem of overload, but rather the opposite: it will engender a superficial focus on numbers that do not accurately reflect what is happening. Instead of allocating time and resources to an accurate and precise foundational treatment of judicial overload, an unnecessary pursuit after the “magic numbers” that are to be published will be initiated, and what was supposed to be a blessing will become a curse.

Of course, statistics can be taken in various directions. But what is special here is that the Freedom of Information Law specifies the interest of the person requesting the information as a consideration. The respondents mentioned in their application the burden on the courts. This is an important, legitimate interest. But to the same extent, it is legitimate to ask whether the requested information indeed serves that interest. Had the Law made publication of the information obligatory, this consideration would not be relevant. But, as stated, that is not the situation.

c.     The Position of the Appellants in the Present Proceeding: Anonymous Information as Opposed to Name-Bearing Information

14.   In the course of the peregrinations of this case, the appellants agreed to publish the requested information without mentioning the names of the judges. It should be clarified that the intention was to publish all the information—the number of open cases and the amount of time for which each case has been open—segmented according to judges, but without identifying them. The respondents, on the other hand, insist on publishing the names of the judges. The dispute, therefore, boils down to the question of whether to publish the names of the judges.

This definition of the dispute highlights, in my opinion, another genuine difficulty in accepting the respondents’ position. As stated above, the information is sought against the background of the issue of the burden on the courts system. It seems to me that this goal could be realized in a satisfactory manner by publishing the information anonymously, as the appellants suggest. This suggestion allows for a comparison not only between courts but also between judges. It is difficult to see the marginal benefit—from the point of view of the judicial workload, which is the main thing—in publishing the information with names, as requested by the respondents. At the same time, the marginal cost as a result of publishing the named information is high, for the reasons specified above: publication of the names of the judges together with the statistics relating to open cases will lead, with near certainty, to a situation in which many judges will not be content with their place on the list. In the nature of lists, there are those who are at the top and those who are pushed to the bottom. If the name-bearing publication would bring about greater efficiency—so be it. But I think that the opposite is true. There would be increased, superfluous preoccupation of the whole system with the personal side of these administrative aspects, in a manner that will be detrimental to efficiency and will only increase the burden.

d. Delays, Workload, and Dealing with them: the Individual Level vs. the Systemic Level

15.   A fourth, no less important, aspect is that of the distinction between two levels of the problem of judicial overload or delays: the particular work of each and every judge, as opposed to the functioning of the system as a whole. Each level requires handling on a different level.

Let me put it as follows: to the extent that a problem of overload focused on a specific judge occurs, alternative mechanisms designed to resolve the difficulties already exist. As compared to these mechanisms, the marginal benefit that will ensue from publication of the requested information is not high. On the contrary: in certain senses, the publication will even undermine these existing mechanisms. Alternatively, to the extent that there is a systemic problem of judicial overload, publication of the requested information will only increase the bewilderment and confusion. The publication will direct the spotlight on the performance of the particular judge, identifying him by name, and thus it will divert the public and professional conversation from the main subject to the marginal one. Instead of the cooperation that exists between the parties administering the legal system—chief among them the presidents of the courts and the courts administration—with a view to improving the performance of each judge, tension will be created between the individual judge and his superiors and other elements in the system. Every decision that is made under these circumstances, e.g., changes in assignment of cases, will be susceptible to public criticism, and so it continues. Decisions such as these are also liable to affect other judges, and a chain will develop of unnecessary reactions, both in terms of time and in terms of human resources.

16.   I will discuss, very briefly, the main alternative mechanisms for dealing with individual problems of judicial conduct.

In one circle, the president and deputy president in every court devote much time and resources to dealing with the administrative aspects of the work of the judges who are serving in that court. In another circle, the courts administration and the President of the Supreme Court issue various directives which are designed to improve efficiency and the administrative aspects of the work of the courts. These circles are also involved in the handling of problematic cases.  I have discussed all of these above.

Another important mechanism is the Ombudsman for Complaints against Judges. My colleague, Justice Arbel, reviewed at length the modus operandi of the Ombudsman (paras. 43-44), and I will not repeat what she said. I will point out only that an individual who thinks he has been waiting too long for a judgment to be handed down in his case, or alternatively, who thinks that he has been waiting a long time for a date to be set to hear his case—is at liberty to approach the Ombudsman and to report this to him. The Ombudsman examines every complaint on an individual basis, and if necessary, even solicits the reaction of the judge about whom the complaint has been made—all by virtue of the mechanisms provided in the Ombudsman’s Law.

 

e.     Paving a Detour Route

17.   Section 14(a)(12) of the Freedom of Information Law states:

The stipulations of this law shall not apply to the following agencies, or to information created, accumulated, or collected by them: … (12) the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762 -2002.

Accordingly, the information concerning complaints that are investigated by the Ombudsman remains confidential with respect to names. That is the point: acceptance of the respondents’ position and publication of the requested information are liable to provide a “detour route” that will erode the provisions of sec. 14(a)(12). Individual complaints that were lodged with the Ombudsman will indeed not be published together with the name of the judge, but other sensitive information about the judge—such as the number of open cases he is dealing with and the time they have taken—will certainly be published. Clearly it is possible that there will be overlap between the information that is published and the information that was supposed to be confidential by virtue of the provisions of sec. 14(a)(12).

It is true that this reason alone would not constitute cause for allowing the appeal before us. However, it is important to understand that sec. 14(a)(12) reflects a principled determination of the legislator concerning treatment of the individual matter of a judge who has mishandled, or at least allegedly mishandled, his cases. The legislator prescribed that, despite the basic principle of freedom of information, in such a case, disclosure of the information to the public should be restricted. This is mainly for reasons to do with the delicate balance between oversight, which also relates to the administrative handling of a particular case—for example, why has judgment not been handed down—and the major public interest in maintaining judicial autonomy. This balance was intended to achieve efficiency. It is the proper balance, as determined by the legislator. This determination must be respected.

This matter is not only formal but also purposive. The legislator determined that all information produced in the framework of the Ombudsman’s investigation of a complaint about a judge does not come under the purview of the Freedom of Information Law. This determination represents a position that may have ramifications for the present appeal. In all that concerns substantive judicial decisions, the court, including the individual judge, is exposed to public oversight. A judgment allowing an appeal is an open indication of mistakes that occurred in the decision of the lower court, and includes of course, the name of the judge whose decision is the subject of criticism. The substantive aspect of the judicial task must be public, as a component of the power of the principle of public trials.

The situation is different with respect to expressly administrative decisions. Experience teaches us that publication in the town square is not the best and most efficient way to solve a problem of this sort. Patently administrative problems of the individual judge should be solved by other means. This is a constructive approach that is applied in practice. Publication in such cases will not contribute to, and is even liable to hinder, the finding of an effective solution. Take the example of a judge who invests many hours in his work, but has difficulty in keeping up with the pace. Another judge does not manage to complete the hearings during regular hours. As stated, the president of the court is supposed to be aware of the situation. It may emerge that the judge is slow in a particular kind of case as opposed to other cases, and thought should possibly be given to changing the kind of cases that are assigned to him in the future. Alternatively, it may be that easing the case-load of the individual judge for a short period is warranted, in order to allow him to close the gap.

This point is emphasized for two reasons. First, the administrative aspect of the judicial task at the level of the individual judge is indeed subject to oversight. Secondly, the legislator determined that information must not be disclosed concerning a complaint that is under investigation by the Ombudsman. This determination reflects the proper balance between the different rights and values that are involved, insofar as the individual treatment of problems that are encountered by an individual judge is concerned. This balance, in my opinion, also requires that name-bearing data indicating a particular inability of the individual judge to cope with his caseload should not be published. In the framework of the balance, the principle of judicial independence is also taken into account. It is extremely important to preserve this principle in order to allow the system to function properly. Preservation of this principle should be combined with the aspiration to improve the administrative aspect.

f.      Comparative law

18.   Justice Arbel discussed at length the situation in other countries, particularly in the United States, where partial information about judicial caseload is published, particularly in the federal courts system. I will make two comments.

First, it is important to emphasize the major finding that emerges from the review: in most Western states, data about pending cases is not published, a fortiori data about open cases including the identity of the judge hearing the case (see para. 86). Of course, an automatic analogy cannot be drawn. Every legal system stands on its own. However, one cannot ignore the fact that insofar as publication is concerned, the “nays” outweigh the “yeas”. In other words: the most common approach is not to publish information of the type requested here by the respondents. In the United States, too, it would appear that the reference is to federal judges only, or at least to only a few additional individual states.

Second, Justice Arbel pointed out that in the United States, information pertaining to the caseload of the judges of the federal system is published frequently, pursuant to the Civil Justice Reform Act 1990. Pursuant to this Law, semiannual reports are issued, which include various lists of cases in which no decisions have been rendered, according to the names of the judges. The comparison with the United States is tempting at first glance. In actual fact, however, the comparison is misleading, mainly due to the significant differences between the structure of the federal courts and the structure of the courts system in Israel.

There is an enomrous gap between the American legal system and the Israeli legal system regarding judicial caseload. For example, the United States Supreme Court—on which nine justices serve—hears oral arguments in approx. 100 cases annually. Incidentally, there are high courts in other countries (such as New Zealand) that hear less than half that number. For the sake of comparison, in 2013 in the Israeli Supreme Court, over 3,500 major cases were opened, i.e., cases that are heard before a bench of three of more justices: petitions to the High Court of Justice and civil, criminal or administrative appeals (Report of the Judiciary (2013), p. 18).

The gap is even greater in relation to the lower instances of the federal courts (district judges and magistrate judges). Thus, for example, the latest report—published in 2013—shows that in the United States District Court for the District of Columbia ., the number of cases stood at 344, and 24 judges served the district, i.e., approx. 14 cases per judge. In districts comprising the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico), the number of cases was 1,210, with 60 judges serving—approx. 20 cases per judge. In Israel, as opposed to this, the figures are completely different. To illustrate, below is a table of the number of cases per judge in the Israeli district courts, correct for 2011 (based on the Freedom of Information Law report for that year):

 

District	No. of Judges	No. of Cases	Cases per Judge
The North	14	3655	261
Haifa	27	7489	277
Tel Aviv	52	13886	267
Jerusalem	25	4430	177
The South	20	3834	192
The Center	26	6456	248

 

A quick glance at the table is sufficient to reveal the large gap—of almost incomprehensible dimensions—between the situation in Israel and the situation in the United States. Of course, as explained above, the numbers themselves may be misleading. A careful examination of the matter requires that distinctions be drawn between different types of proceedings, and that they be accurately weighted. Incidentally, statistical work such as this is liable to emphasize with even greater force the magnitude of the burden imposed on the district courts in Israel as opposed to the federal courts in the United States, mentioned in the report. For example, in Israel the district courts have exclusive jurisdiction to sit as a court of first instance in cases with multiple witnesses, such as the felonies of murder and organized crime. One way or another, the numerical gap is so wide and significant that it is difficult to ignore. It is certainly not obvious that it is possible to rely on a comparison with the situation in the federal courts as in indication for the question that arises in this case.

It should be added that in the federal courts mentioned above, it is common for the judge to sit in the courtroom relatively infrequently, e.g., once a week for several hours. The rest of the time is devoted to studying the case and writing decisions and judgments. In Israel, as opposed to this, it is not uncommon for the judge to sit in the courtroom every day of the week for many hours. In fact, in the last twenty years, judges have tended to spend even more hours in the courtroom than in the past, and hearings are scheduled for later hours as well. This is not surprising. The number of cases has grown. The difference between the judge who hears 20 cases and the one who hears 200 cases is clear. For the numbers mentioned with respect to the US federal judge, as presented in the Report, the demands  of administrative work are not great. In fact, the judge can almost be exempt from dealing with the subject. An outcome whereby a judgment is delayed for a long time is liable to demand an explanation. In Israel the situation is different. Here, as described above, the judge must devote considerable resources to managing his own schedule. As a result, if every judge were also to be required to devote resources to justifying his administrative conduct, even more time would be taken up, causing disruption with near certainty. In my opinion, therefore, not only is this comparison out of place, but it only serves to highlight the difference with respect to the administrative load the judge bears.

Conclusion

19.   This case deals with the publication of information about the legal system. The decision in this petition must be made in accordance with the provisions of the Law and the balances it embodies. In particular, the legislative determination whereby the authority is permitted not to publish information that is liable to disrupt its proper functioning must be implemented.

The courts system is special in the extent of the publicity that characterizes its work. In all that is connected thereto, the developments of recent years are to be welcomed. However, in the present case we are dealing with the publication of information connected to another type of judicial endeavor, specifically the administrative aspect of the judicial task, and more accurately: a personal focus, done by naming each judge, on the management aspects of each and every judge’s work. This aspect is administered as a team by the judge and other elements in the system. It is fed by factors not within the judge’s control, such as the number of cases and the number of judges in the court. The individual judge does not select which cases he will hear, their degree of difficulty or their variety. The great number of proceedings in the Israel legal system requires the judge to make daily administrative decisions, e.g., which judgment to write up first, and even which case to schedule for a hearing at 8:30 a.m. and which at 11. These decisions, as opposed to the ordinary work of the judge, are by their nature not the outcome of a hearing, they are not reasoned in writing, and they are not published. It is clear that no public dialogue can take place with the parties on these subjects.

The legal system invests much effort in improvement. Placing the spotlight on the individual judge, as if he were the sole or dominant cause of the overload of the courts system, will only motivate him to respond, to explain, to justify, and to defend himself. Named publication of the list of open cases, a type of judicial “hit parade”, will only increase the tension and the pressure not to fall to the bottom of the chart. Nothing good will come of this. This is an important point, in view of the declared interest of the respondents in the publication of the information—the overload in the courts system, and the fact that this is a matter within the discretion of the authority. An honest analysis of the situation leads, in my opinion, to the conclusion that there is near certainty of the fact that publication of the information will disrupt the proper functioning of the courts system or with its ability to perform its tasks. Therefore, and considering the absence of a contribution made by publication of the information, the decision of the authority was within its competence and it meets the criterion of reasonableness. I will add that alternative solutions are applied in practice, involving the investment of vast resources and with a view to dealing with the exceptional caseloads in the various courts. At the same time, the appellants have agreed to publish the requested information anonymously, i.e., without appending the name of the judge. This is an appropriate outcome that achieves a balance between the different interests that rest on the scales.

The result is that from a legal point of view, there is no justification for overturning the decision of the appellants not to hand over the requested information. This is because there is near certainty of the fact that publication of the information will detract from efficiency and will even frustrate the respondents’ purpose; there is insufficient justification for the respondents’ insistence on publishing the information together with the names, as opposed to anonymously; the concentration on the individual judge misses the point—the systemic aspects of judicial overload; publication of the information will harm the alternative mechanisms prescribed by the Law and by custom; there is no relevant basis in comparative law for the publication of information of the type that was requested—possibly even the opposite. I will once against stress that it was the legislator who determined that where there is a concern about disruption with performance, there is no obligation to hand over the material. This is an appropriate consideration, prescribed by the legislator. And just as this consideration is relevant to other authorities in the State, it is also relevant to the Court.

Finally, my view is that the appeal should be allowed, and that the judgment of the Administrative Affairs Court should be overturned. Instead, it should be ruled that the petition is denied. This is subject to the declaration of the appellants concerning the delivery of information without mentioning the names of the judges, as specified above.

 

Justice E. Rubinstein

1.     My colleagues, Justice Arbel and Justice Hendel, disagree fundamentally about the decision in the appeal before us. This disagreement is now confined, according to the positions of the parties in the case, to the question of whether, in addition to the information that the appellant is prepared to hand over, concerning the number of open cases before each judge in the Supreme Court and in the district courts, and the time that has elapsed since each case was opened, the names of the judges will also be specified. Let us recall: the respondents’ request for information that would include all the above was made “in view of the supreme public importance of the burden imposed on the courts system,” and the District Court accepted their position.

2.         My colleague Justice Arbel’s discussion was wide-ranging and comprehensive, with an analysis of the Freedom of Information Law and the case law that followed in its wake; she described the special nature of the judicial enterprise, the foundations of judicial independence and the various institutional review mechanisms as well as those of the public. Subsequently, my colleague considered the exception in sec. 9(b)(1) of the Freedom of Information Law, whereby “A public authority is not obliged to provide information in any of the following categories: 1. Information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties.” The implementation of this section lies at the heart of the dispute. Justice Arbel found that the criterion for applying the reservation is “near certainty that publication of the requested information will interfere with the activity of the judiciary” (para. 57). She also discussed difficulties—the fact that indeed, delivery of the requested information would create an incomplete picture concerning the overload; nevertheless, in her opinion, the autonomy of the judges reduces the force of the appellants’ argument as to the distinction between handing over institutional information and personal information (para. 65). It was further stated that efficiency cannot be a major index for assessing a judge’s performance, although it must be taken into account (sec. 69), and in any case, data that is made available for publication can be accompanied by explanations, at the discretion of the system (para. 70). Justice Arbel discussed the concern about harming the judges by embarrassing and denigrating them and damaging their reputations, and she believes that this concern is not baseless (para. 75), but in her opinion, at this stage they remain concerns only, and that the conflict will not necessarily be harmful to the extent of constituting libel—the publication may even strengthen public trust in judges (para. 76). My colleague does not think that criticism, even if it is liable to be harmful, could impact the decisions of the judge on their merits (para. 78); in her opinion, “their inner strength, the way in which they conduct themselves, and their belief in the justice of their path will enable the judge to cope with the publications and to continue fulfilling their tasks faithfully” despite concerns about misuse of the information (para. 82). Justice Arbel does not accept the appellants’ claim that the existence of the institution of the Ombudsman for Complaints against Judges—under the Ombudsman for Complaints against Judges Law, 5762-2002— detracts from the need for public oversight (para. 88). Finally, she believes that for the sake of ensuring public confidence, and despite the concerns, the information ought to be handed over (paras. 92-95) and the appeal denied.

3.     My colleague Justice Hendel, in his interesting opinion, leaves pending the question of the standard required for the application of sec 9(b)(1), and he is prepared to assume, for the purposes of this case, that we are dealing with near certainty (para. 6). According to his approach, the administrative (as opposed to the substantive) aspect of the work of the judge and the publication about it, which is the object of this case, is liable, with near certainty, to disrupt the judicial task, by detracting from efficiency, due to the pressures created and the embarrassment caused (para. 12); the declared purpose of the request relating to the overload will be frustrated, for the statistics are liable to be misleading (para. 13); the existence of alternative mechanisms, including oversight of judges on the part of the presidents and deputy presidents of the court and by the Ombudsman for Complaints of Against Judges (para. 17) lessen the need for publicity. According to Justice Hendel, there already is a great deal of publicity in the legal system, whereas the requested publication will, with near certainty, disrupt the functioning of the system (para. 19). Therefore, in his opinion, the appeal should be allowed.

4.     In this case I found myself in a dilemma, caught “between a rock and a hard place”. My dilemma was this: on the one hand, we live in an age of transparency. The Freedom of Information Law has been with us for sixteen years; these years parallel, more or less, the virtual revolution, which brought the internet into our world, and the world no longer operates as it used to. The freedom of information revolution accompanied the information revolution—they arrived hand in hand. Enormous amounts of information are to be found in the virtual network, and if we are to be absolutely honest, the data that the appellants have agreed to hand over in this case open a door —so it seems to me—which affords quite easy access to the names of the litigating parties themselves, even if they are not published; this was also argued by counsel for the respondents in the hearing before us, and he mentioned online anonymous comments (talkbacks).  Furthermore, the judiciary, owing to the sensitivity of its task and what is required for public confidence, ought to be as open as possible to criticism. As opposed to this, the legislature’s position in the Ombudsman for Complaints against Judges Law, was that there must be a certain measure of caution in the publications: the law as a rule came down against publishing the names of the objects of the complaints, except for a narrow window that was opened in sec. 13(d), by a joint decision of the President of the Supreme Court and the Minister of Justice. Primarily, I believe that there are quite a few judges—of course, not all—whose work is nearly certain to be disrupted by the disclosure, in accordance with the present criterion. Moreover, the subject on which the request of the respondents focused is overload. Apparently, for the purpose of examining overload, the names of the judges are not necessary; the information that the appellants are prepared to deliver would suffice. Indeed, the Freedom of Information Law does not require a “motive” behind the request for information; sec. 1 states that “Every Israeli citizen and resident has the right to obtain information from a public authority, according to the stipulations of this law.” But again—the declared purpose of the respondents can be satisfied in its entirety by the data whose delivery is not in dispute. The question is whether “the trouble is … worthy that the king be disturbed” (Esther 7:4).

5.     For the purpose of this case, I too am prepared to adopt the standard of near certainty, as proposed by President Aharon Barak in his lecture, “Freedom of Information and the Court” (with the publication of Professor Z. Segal’s book The Right to Know in the Light of the Freedom of Information Law (2000); and see also his article of that name, Kiryat Hamishpat 3 (5763-2003) 95, 103). He described the requirement as including a “severe, serious, and grave disruption …”. Given such a criterion, which path should a person choose? I would add here that in relation to the present matter, Prof. Segal also writes (p. 199) that near certainty is required, and personally he is in favor (pp. 143-144) of publishing the names, but he also sees value and importance in publishing without names.

6.     For love of Jewish law, I will begin with several Jewish law sources relating to the judge, as cited in my lecture, “An Understanding Heart—On the Judicial Enterprise” (medical conference in Haifa, chaired by Prof. Moshe Feinsod, January 3, 2012). The Bible describes the qualities required of judges: “… you shall provide out of all the people able men, such as fear God, men of truth, hating unjust gain … . And let them judge the people at all seasons” (Exodus 18:21-22). The Medieval commentator Rabbi Abraham ibn Ezra explains in his short commentary, “Able men – who have the strength to suffer … fear God—that they will not acquire a bad reputation, men of truth—that they are not false, hating unjust gain—money.” Rabbi Shlomo Itzhaki (Rashi)  explains: Able men—rich men who will not need to flatter or to show favor; men of truth—these are people commanding confidence, who are deserving that one should rely on their words; hating unjust gain—men who hate (pay no regard to) their property when it is to be made the matter of a law-suit, in accordance with what we say (Babylonian Talmud, Tractate Bava Batra 58b): “Any judge from whom one has to wring the money [he owes only] by means of a law-suit is no [fitting] judge .”  Scripture also said of judges, through the words of Moses: “Hear the causes between your brothers, and judge righteously between every man and his brother and the stranger that is with him. You shall not respect persons in judgment, but you shall hear the small and the great alike; you shall not be afraid of the face of man; for the judgment is God’s” (Deuteronomy 1:16-17). The closing words of these verses is saying that it is the Lord who gave the law, and there must therefore be no deviation from it; however it may also be interpreted as meaning that the Lord is, as it were, present in the courtroom: “God standeth in the congregation of God …” (Psalms 82:1; see the commentary of Aharon Mirsky, Da’at Mikra, Devarim [Deuteronomy] on this verse).

The sages dealt extensively with the judicial task and they said (Babylonian Talmud, Tractate Shabbat 10a): “Any judge who renders a judgment that is absolutely true, even [if he sits in judgment for only] one hour [i.e, a short while] is considered by scripture as if he became a partner with the Holy One, blessed is He, in the act of creation.” To judge absolutely truly is a great virtue, as Justice Menachem Elon said (see “These are Obiter Dicta … They are Fundamentally Flawed and Should Not be Followed”, in M. Mautner, A. Sagi & R. Shamir (eds.), Multiculturalism in a Democratic and Jewish State (1998), 361, 361; cited also in Neshama Yetera Bamishpat , a collage of Elon’s writings by Dr. (now Professor) Aviad Hacohen (2004), pp. 25-26).

The sages also said, “Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan, A judge should always view himself as though a sword is resting between his thighs and Gehinnom is open beneath him” (Babylonian Talmud, Tractate Sanhedrin 7a). Maimonides (Sanhedrin 23:8-9) formulates this as follows:

A judge should always view himself as though a sword is resting at his neck and Gehinnom is open beneath him: He should know whom he is judging, before Whom he is judging, and Who will ultimately exact retribution from him if he deviates from the path of truth … Whenever a judge does not render a genuinely true judgment, he causes the Divine Presence to depart from Israel….

Incidentally, there were sages of the Mussar Movement who viewed each person as his own judge: “Judges and officers shalt thou make thee in all thy gates” (Deuteronomy 16:18) means the gates of a person’s body—his eyes, ears and mouth. This applies a fortiori to a judge, who under Jewish law, as well as in our times, is subject to strict laws of professional ethics.

The sages also said: “Do not judge your fellow until you have stood in his place” (the words of Hillel the Elder, Ethics of the Fathers 2:4, and see the article of Dr. Aviad Hacohen, “Do Not Judge your Fellow Until You Have Stood in his Place”, Parshat Hashavua 351 (5769)); true, there is a dispute as to whether this mishnah is addressed to judges, but one could certainly invoke it in the context of “First correct (lit., adorn) yourself and then correct (lit., adorn) others” (Babylonian Talmud, Tractate Bava Metzia 107b), and as cited by Hacohen from the commentary of Rabbi Ephraim of Luntschitz, “Kli Yakar” on the verse, “Judges and offices shalt thou make thee” (Deuteronomy 16:18), “Correct (lit., adorn) yourself first”, and only then, “and judge the nation”—“correct (lit., adorn) others”.  All this is from the abovementioned lecture, the name of which is taken from the prayer of King Solomon (I Kings 3:9).

See also the article of Rabbi Yair Kahan, “Zion will be Redeemed with Justice” (website of the Har Etzion Yeshiva, Shoftim, 5774), which deals with the obligation to appoint judges in our land and in diaspora communities, and ends with the verse that was often quoted in 1948, with the Establishment of the State of Israel: “Zion shall be redeemed with justice, And her penitents with righteousness” (Isaiah 1:27); on the establishment of the legal system in the State of Israel, see my book, Judges of the Land (5741-1980), p. 35 ff.  We see the great importance that the Jewish national ethos attaches to the law, to the judge, and to the responsibility he bears.

7.     What supports Justice Arbel’s opinion?  As she pointed out, it is difficult to overstate the importance of the purposes underlying the Freedom of Information Law. The public cannot obtain effective oversight of the activity of the authority without being given the information relating to such activity, within the bounds of transparency; it is not possible to demonstrate involvement in the governmental enterprise without such information; and it is difficult to see how the public and individuals within the public can realize their basic liberty and their rights, without having access to the information that has amassed in the various governmental bodies (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60 (hereinafter: Ministry of Transport),, at p. 73; HCJ 7805/00 Jerusalem City Councilor Roni Aloni v. Jerusalem Municipality Commissioner [2003] IsrSC 57(4) 577, at p. 605). The Freedom of Information Law anchors the conception that had crystallized even earlier in the case law, whereby the authority has no proprietary right in the information that it possesses, and it is a trustee for the public and acts on its behalf (HCJ 2594/96 College of Management Academic Studies (School of Law) v. Israel Bar Association [1997] IsrSC 50(5) 166, 173; see also AAA 8282/02; HaAretz Newspaper Ltd. v. State of Israel, Office of the State Comptroller [2003] IsrSC 58(1) 465, at pp. 470-471). Hence the broad language—which we mentioned, of sec. 1 of the Freedom of Information Law, and on the other hand, the restrictive interpretation of the reservations to delivering information, including sec. 9(b)(1) which is the object of our interest; therefore, the judiciary should in general be subject to criteria that are similar to other authorities, even given the special nature of the judicial function. See on this matter also the words of President A. Barak, as quoted by Prof. Segal in his book: “It is only natural that the courts administration which deals with the administrative aspects of the courts system will be subject to the obligation to provide information, like any other authority” (from a letter sent by President A. Barak on March 17, 1998 to MK D. Zucker concerning an examination of the ramifications of the Freedom of Information Bill on the courts system: Segal, p. 143, n. 395; emphasis added – E.R.).

8.     However, there is a strong, significant opposing side, which operates in the direction of the position taken by my colleague Justice Hendel: the appellants are prepared to take a sizeable step towards the respondents, and to disclose the requested details, but without mentioning the names of the particular judges. This gives rise to the real dilemma in this case, for the information that is normally sought by virtue of the Freedom of Information Law is institutional information, rather than individualized, named information, which is born of an understanding that, as a rule, the person performing the activity is a public servant, who in what he does represents the system itself, in accordance with his function, and he operates on the basis of policy set by the system. Therefore, disclosure of the name of the person executing the action is often of no real importance, certainly not to an extent that would justify harming his ability to perform his task as required or in a manner that would harm his reputation unnecessarily; and as was determined in a similar context: “It is as clear as daylight that the discussion of the reasonableness of the regulation will focus on the considerations that led to its enactment, and not on the identities of the people who were proposing it or objecting to it” (CC (Tel Aviv) 2060/99 Israel Bar Association v. Minister of Justice [Nevo – December 5, 1999], per (then) Judge O. Mudrik). Thus, for example, if information is requested concerning the extent of payment of municipal taxes in a particular municipality, and no one is claiming negligence on the part of any particular clerk, it is doubtful whether publishing their names is worth anything, when all they did was to collect the payments in accordance with municipal procedures. Moreover, as my colleague Justice Hendel pointed out very correctly, exposure of the names of employees is liable to interfere with their ability to perform their tasks properly, for they will devote a significant amount of their time and their energy to justifying their actions and defending their reputations; and to this must be added, as stated, the concern about embarrassing the employee—to which we will return; this is so with respect to every employee, and also with respect to judges.

9.     As Justice Arbel pointed out, the judicial function is different in its essence from other functions in the public service. As an aspect of this, judicial independence, which is vital for the fulfillment of the judicial function, is much greater than the independence of other functionaries in the public service; and as stated in sec. 2 of Basic Law: The Judiciary as a constitutional norm: “A person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.” What is the meaning of judicial independence with respect to the publication of name-bearing information? On the one hand, since the judge determines the fate of persons, of finances, of the public administration, the names too are important. At the same time, there is close oversight of the activities of the judge, both substantively, via the appeals court (with the exception of the Supreme Court, whose judgments are not appealable) and administratively, as in this case, by the presidents of the courts and their deputies and the Ombudsman; there is also an ethics committee whose decisions (non-name-bearing) are published. On the other hand, is it likely that named publication, which is liable to distort the truth, as my colleagues pointed out, will have a severe impact on the work of the judges?

10.   Unlike Justice Arbel, who, despite her uncertainty and her appreciation of the difficulties, believes that these cannot tip the scales. Justice Hendel is of the opinion—as we have said—that publication of the requested information, together with the names of the judges, is liable to cause damage to the judiciary at a level of near certainty. The reasons given in support of this determination are not trivial, particularly the concern that the attempt of the judges to deal with the publication of information about their pace of work—information that is indisputably incomplete and not exhaustive—will detract from the efficiency of their work and its quality, and thus, the purpose for which the information was requested will be frustrated; this is so particularly, according to Justice Hendel, when the appellants are prepared to disclose the statistical information without disclosing the names of the judges, and thus a picture of the workload borne by the judicial system will be reflected, with only minor damage being caused.  

11.   Can these reasons cited by Justice Hendel tip the scales towards refraining from publishing the data? In another context, this Court said, some time ago:

One should ask, wherein lies the statutory authority for depriving a citizen of the right to view material, knowledge of which he has a legitimate interest? All this “secrecy”, which erects a partition and a screen between the government and the citizen, should not have a place in the orderly administration of a democratic regime … I believe, therefore, that the petitioner was justified in his demand, not only because his right to view the documents stems from the provisions of the law, but—and mainly—because basic good sense and logic in public relations between the government and the citizen necessitate this conclusion …  only for weighty reasons can the authority claim confidentiality of a particular document, and whoever claims confidentiality—bears the burden of proof (HCJ 337/66 Estate of Kalman Fital v. Assessment Committee, Holon Municipality [1967] IsrSC 21(1) 69, 72, per Justice A. Witkon [my emphasis – E.R.]).

This consideration supports the delivery of the requested information, in accordance with the position of Justice Arbel. However, we still have not answered the question of possible disruption of the work of the judge.

12.   I will mention here the possibility that the information that is to be delivered will be exploited for the purpose of embarrassing the judges. I do not belittle this consideration, and as Justice Arbel pointed out, it can make the decision in this case a very difficult one.  As I mentioned in a previous case, “sometimes the public servant has nothing but his good name, and if that is besmirched, what is left?” (LCrimA 7383/08 Ungerfeld v. State of Israel [Nevo – July 11, 2011], para. 9) (hereinafter: Ungerfeld); in this, judges are no different from anyone else (and see on this matter HCJ 2561/07 Michal Sharir v. Courts Administration [Nevo – July 24, 2008], per Justice E.E. Levy, para. 8). It is true, as I pointed out in Ungerfeld, that when we are dealing with more highly-placed public officials, who by virtue of their function are exposed to public criticism, it can be expected that their ability to withstand the criticism, and even real insult, will be greater than that of a minor official in the system. Judges occupy a high rank, and by the nature of their profession they are exposed to public criticism on a daily basis, but they are supposed to have a relatively high level of tolerance for criticism, and even for real insults and vilification, which are, unfortunately, not infrequently published against judges.  See on this the words of the late Judge A. Azar, in a judgment stating that the State must release the names of district psychiatrists in a particular context:

        In every choice of profession there are advantages and disadvantages. From this point of view the psychiatrist is similar to the policeman, the prison warden, and the judge. Together with authority comes criticism and the willingness to bear it … as pointed out by Justice Netanyahu: “The greater the power and authority … the greater the importance of the limitations and the means of oversight (CA 558/84, ibid. [Carmeli v. State of Israel [1987] IsrSC 41(3) 757 – E. R.] , at p. 767)” (OM (Tel Aviv)  200871/98 Israeli Association Against Psychiatric Assault v. Ministry of Health [Nevo – 2000] (Emphasis in the original – E. R.)).

13.   My position is as follows: in my opinion the solution to this complex situation is itself complex and not binary, but rather, a cautious middle path; we must confront the matter at “eye level”.  There are judges with respect to whom the possible harm stemming from publication of the data is something that can be dealt with and which will not interfere with their work; there will, however, be judges with respect to whom there is near certainty of disruption with their work, in that their resources in terms of time will be devoted to the publications and to refuting the claims in them, for both subjective and objective reasons: subjective—because they will feel hurt to the depths of their souls in their belief that they have suffered an injustice, and they will lose sleep and their work will suffer, due to the thought that they cannot, due to their place and position, respond appropriately; and objective—for overload is in no way reflected only in the dates on which cases are opened: it is dependent on the case and the circumstances. Moreover, in my view it is significant that a sizeable portion of the complaints lodged pursuant to the Ombudsman for Complaints Against Judges Law involve delays in rendering judgment, but as we have said, the judges’ names are not, as a rule, published, by virtue of the Law. We are dealing with similar material here, and even if the Freedom of Information Law does not contain a specific legislative provision concerning judges, the possibility of an analogy cannot be overlooked. All of these involve shaming, and the sages stated, “He who publically shames his neighbour is as though he shed blood”” (Babylonian Talmud, Tractate Bava Metzia 58b)—no less! And see further in my opinion in CFH 2121/12 Major R. v. Dr. Ilana Dayan [Nevo –September 18, 2014 para. 8]. And of course, when I say “shaming”, I would be equally cautious in relation to those who are not judges. The correct thing in my view is to find a middle road.

14.   Therefore, if my view is accepted, we would act in the following manner: first, insofar as this court—the Supreme Court—is concerned, in view of its primacy of place in the system and in order not to create even the slightest impression that it is trying to prevent the presentation of data, including personal data, in relation to its activities, I would suggest adopting the path of my colleague Justice Arbel, namely, that the information should be published in its entirety with all its components, after the completion of the 5775-2015 legal year, towards the end of 2015. In this I do not see eye-to-eye with our colleague Justice Danziger, who is of the opinion that the information should be published here and now; I think that there is room for a gradual process, as proposed by Justice Arbel, due to the exceptional nature of the name-bearing information.

15.   Regarding the district courts, in my opinion we must proceed with tiny steps. If my opinion is accepted, there should be an additional waiting period, during which the outcome of publication of the names in this Court will be examined, so that lessons can be learned—whether no great harms have ensued and the concerns have proven unfounded, or the opposite; and in order to determine in a sound manner whether we ought to have a part in what may emerge to be nothing other than embarrassment. A decision on this matter will be made by the appellants, after they have learned these lessons, by the end of the 5776 (2016) legal year; this decision will of course be subject to judicial review, and everyone’s rights will be reserved.

16.   This, of course, is additional to the agreement of the appellants to publish the relevant information without mentioning the names of the judges. I propose that we order that this information be published within 45 days of the handing down of this judgment. With respect to this Court, the information containing the judges’ names will be published as emerges in the opinion of Justice Arbel; regarding the district courts, the decision will be made before the end of the 5776-2016 legal year. I also propose, once more in keeping with the spirit of Justice Arbel’s opinion, that each judge be given the opportunity to respond to the data that concerns him alongside the name-bearing publication. In my view, therefore, the appeal should be partially allowed as stated.

 

Justice S. Joubran

1.     Should information concerning the number of open cases being deliberated in the court before each judge, the time taken to deal with them, and the name of the judge hearing each case be disclosed? My colleague Justice Arbel, in her thorough written opinion, answered this question in the affirmative. She explained that the rule expressed in the Freedom of Information Law is that of disclosure of information, and that the exception for disrupting the proper functioning of the judges, which allows the authority to refrain from handing over the requested information, does not apply here. In the balance between the concern about interference with the functioning of the judges and the public interest in publication of the information, my colleague found that the public interest in publication prevails. Underpinning her position is the principle of freedom of information, which is based on public confidence in the system of justice as well as the rights to know and to exercise effective oversight of its activity.

2.     My colleague Justice Hendel, as opposed to this, believes that the names of the judges should not be published. According to him, the publication of anonymous information regarding the state of handling of each and every case suffices. He believes that turning the spotlight on each individual judge, as opposed to a study of the systemic aspect of the requested information, misses the main point, which is the overload in the courts. Personalized presentation of the information focuses the problems of the judiciary as a system, on the judges, without justification. Justice Hendel bases his concerns on a distinction that he draws between the administrative aspect of the judicial task and the legal-substantive aspect. According to him, the principle of freedom of information applies to the legal-substantive aspect through the principle of the public nature of trials; but from here one cannot draw an analogy to the administrative aspect. The number of open cases and the time over which they are heard are part of the administrative work of the judge; and in any case, they stem from factors that are not in the judge’s full control. Personalized disclosure of the requested information will affect the judge’s system of considerations and lead to preoccupation with his apparent efficiency, which will harm his legal-substantive work.

Justice Arbel was not unaware of these concerns laid out by Justice Hendel; in the final analysis, however, she believes that for the most part they are speculative, and that their professional fortitude will enable judges to cope with the unflattering publications. My colleague Justice Rubinstein, unlike Justice Arbel, believes that the expression that should be accorded to these concerns is by means of incremental relief, as stated in para. 13 of his opinion.

3. I will confess that I vacillated a great deal regarding the decision in this appeal and also with respect to the appropriate relief. Let me begin by saying that with respect to the decision, I ultimately decided to concur in the opinion of my colleague Justice Arbel, according to which the appeal should be denied.

As for the relief, I believe that there should be incremental, future-oriented implementation of the judgment, similar to the opinion of my colleague Justice Rubinstein. Like him, I too believe that a distinction should be drawn between the Supreme Court and the district courts; and between publication of the information without the names of the judges and publication of their names.

4.     If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, in accordance with the appellants’ agreement, will be effected immediately, upon the rendering of this judgment, in accordance with the most current information in the hands of the appellants, and subject to there being no possibility of making a connection, by means of the information, between the judge hearing the case and the case itself. As for the names of the judges, they will be published at the end of the 5775 (2014-2015) legal year.

Regarding the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

This delay will allow the courts administration and the judges to prepare themselves for the said change, minimizing concerns about interference with their work, and thus, minimizing concerns about a miscarriage of justice and about adversely impacting the doing of justice.

5.     Below are the reasons for my position, which is based primarily on the various concerns about disruption of the work of the judges and how to minimize them despite the publication.

One cannot make light of the concerns expressed by my colleagues in relation to the potential harm to the work of the judge. True, the starting point is that the judicial task requires of the judge personal strength and a certain resilience in the face of  criticism. But the accepted view is that this strength and resilience are directed at what my colleague Justice Hendel calls the “legal-substantive aspect”, as distinct from the “administrative aspect”. According to this view, public criticism should be directed towards the wisdom of the work of the judge, and not towards its efficiency. The traditional objective of the judicial task is the constant search for the truth. This is the very heart of the role of the judge. The assumption is that in his search for the truth, the judge does all he can to achieve the correct legal result, according to the best of his personal understanding. In order to do so, he requires personal and administrative freedom and autonomy (Daphna Avnieli, “Who Will Control the Judges - and How?” Mishpat Umimshal 9 (5766-2006) 387, at p. 389). Regarding this, Judge Berinson said that “the judges of Israel are famous for performing their judicial task faithfully. It is well known that they are usually subject to the pressure of difficult, voluminous, strenuous and nerve-wracking work. Time is short and the work is always great. And nevertheless … in no way should the noble values of doing justice be sacrificed on the altar of speed and efficiency”  (CA 33/75  Air Thermo Ltd. v. Atarim. [1975] IsrSC 30(1) 547, at p. 554).  Moreover, according to this outlook, the judge acquires public confidence through the contents of his decisions and their justness; these are also the legitimate basis for public criticism leveled at him. It would appear that in view of this outlook, the rules of public trial apply to the substance of the legal process and not to the manner in which it was administered (see: para. 8 of the opinion of my colleague Justice Hendel),

6.     Publication of the names of the judges who are hearing each and every case is not consistent with the said outlook, and it also gives rise to a non-trivial concern that the criticism of the judicial task will be diverted from its natural destination. From a situation in which the work of the judge is evaluated in terms of legal validity, justice, and procedural fairness, the weight will be shifted to an examination that focuses on indices of efficiency and speed. The concern is that administrative criteria will replace legal criteria as the basis for criticism of judicial performance. On the importance of efficiency in the performance of the judge it has been said: “Important as it may be—[it] is not the most important value … first and foremost, one must ensure that the judicial system enables a fair trial so that quick and efficient justice does not become quick injustice” (Shimon Shetreet “The Fundamental Values of the Judicial System in Israel”,Or Book for Supreme Court Judge Theodor Or (2013) 617, at p. 635 (hereinafter: Shetreet, “Fundamental Values”). Public confidence, needless to say, is the “purse and the sword” of the court and the judge; and there are grounds for saying that, due to the desire to win this confidence, the judge’s attention will unconsciously be drawn, to one extent or another, by those efficiency indices.

7.     Efficiency per se is not necessarily negative, and the opposite may even be true. It can speed up the operation of the legal system, thus reducing the duration of legal proceedings and preventing a miscarriage of justice for the litigants. It happens not infrequently—although this is not the rule—that legal proceedings take too long. And it happens that the reasons for the delays are not sufficiently justified. In those cases, the harm to the litigants is not justified, and would be better avoided. In cases in which the drawn-out proceedings are not justified, the rising importance of the efficiency index is consistent with the demand to publish information, including the names of the judges.

8.     And yet, despite the importance of the efficiency of the legal system, the work of the court, unlike that of the litigants, is, as a rule, not limited in time, and there is a reason for this. The pace at which each matter is dealt with and how long it takes are likely to change from case to case: it is a matter for the discretion of the judge. Beyond the considerations of urgency and importance of every matter, which every judge weighs (see: para. 19 of Justice Hendel’s opinion), the pace at which a case is handled and how long it takes are often the result of the case’s factual or legal complexity. Decision-making in fact-filled cases requires intimate familiarity with the factual basis which, not infrequently—as any experienced jurist will attest—extends to a great many pages and takes shape during long hours of deliberations. In addition, decision-making in cases which are legally complex—sometimes in new branches of the law, and sometimes in complicated branches of the law—requires comprehensive, exhaustive research in order to construct the normative framework. An incomplete picture of the factual mosaic and insufficient familiarity with the legal materials in each and every case is liable to affect the quality of the judicial performance.  Exhaustive research and familiarization with the facts are the mainstays of the work of the judge, and we know that “he that repeated his chapter a hundred times is not to be compared with him who repeated it a hundred and one times”  (Babylonian Talmud, Tractate Hagiga 9b). These, by their very nature, involve an investment of a considerable amount of time. Assigning too great a weight to the index of efficiency is liable to bring about a reduction in the amount of time invested in the work of the judge. Such a process involves, as we have said, harm to the quality of the judicial performance. Certain defects in the work of the judge, needless to say, are liable to lead to a miscarriage of justice and to undermine the doing of justice.

9.     Harm to the quality of judicial performance is also liable to find expression in a reduction in the scope of legal reasoning in judgments. Providing the reasons for a judgment is the “mouthpiece of the judge”, by means of which the decision in the judgment is explained to its various addressees—the parties, the legal community, and the general public (Barak, The Judge in a Democratic Society, at p. 295). In the present case, the information that is requested relates to the Supreme Court and the district courts.  In relation to each of these two judicial levels, the role of legal reasoning is slightly different, but each role is very crucial.

The reasoning in the district court provides the basis for the decision on appeal in the Supreme Court. Exhaustive reasoning allows the appeal instance to focus upon, and to reduce, the scope of disputes, and occasionally even to end them without the need for a written judgment. The disadvantages of insufficient reasoning, on the other hand, are many, so much so that it seems unnecessary to explain. Amongst the other disadvantages, non-exhaustive reasoning is liable to make the task of the panel hearing the appeal more difficult, to make the legal process cumbersome, and to harm the continued orderly and fair conduct of the case.  Inhibiting the reasoning of the trial court is likely, therefore, to be a two-edged sword, and instead of promoting efficiency it is liable to detract from it.

The reasoning of the Supreme Court is also essential. True, it does not serve as the basis for an appeal, but it establishes case-law, directs behavior and instills values, and serves as a fruitful basis for essential academic and public discourse. The reasoning of the Supreme Court is also the major ethical basis that often nourishes the public confidence in the legal system in general, and in the Supreme Court in particular.

10.   The concern that judicial decisions will be affected, either consciously or unconsciously, by these or other influences was not unknown to the legislator, and it found expression in various pieces of legislation, including the norm concerning autonomy established in Basic Law: The Judiciary and in reg. 5 of the Code of Ethics for Judges, 5767-2007, which provides that the judge is not dependent on any person, not only in judicial matters but also “in any other field in which he acts” (ss. (b)). The regulation further provides that the judge shall fear no one, and shall not be influenced in fulfilling his role by public opinion, concern about criticism or a desire to please (ss. (3)). The work of the judge is also protected by means of the norm of sub judice that appears in sec. 71 of the Courts Law; by the rules of immunity in tort; by the rules governing testimony from a judge; and by the rules concerning his appointment and the terms of his employment (see: paras. 30-33 in the opinion of Justice Arbel).

11.   It is against this backdrop that the difference between publishing data about the number of open cases and how long have they been in the process of being handled, without attaching the names of the judges, and the request of the respondents that the names be published, must be understood. When the non-named data is presented, the spotlight will be turned on the legal system as a system and not on the judges as individuals. It seems to me, that in most cases, this is what ought to be. It is the courts system, as a system and as an administrative authority, that has the resources, and the ability, to deal with the criticism, to internalize it, to refute it, and, if necessary, to provide explanations that will shed some light and dispel it. Because the reasons for the judicial overload are mainly a systemic matter, the system as such is also the correct address to which criticism should be directed. According to the existing distribution of the work, administrative information concerning statistical data about the number of open cases and the time taken to deal with them is in the hands of the courts administration. As such, that is also the body that bears responsibility for the what the data reflects , as well as being the relevant object of criticism. As opposed to this, the judgments themselves, which are the product of the judge’s work, are published by the judge himself. Criticism of the contents of the judge’s work is naturally directed at the judge, and not at the system. The concern is that publication of the names of the judges will divert criticism from the system, at which it ought to be directed, towards the judge instead.

Is this concern sufficient reason to refrain from publishing the information, including the names of the judges?

12.   The Freedom of Information Law does not contain a purposes section specifying the main purpose that guided the legislator. My colleague Justice Arbel, enumerated several purposes, without determining their hierarchy (for a further review of the purposes, see: Jonathan Arbel and Tehilla Shwartz Altshuler, Information Wants to be Free: Implementing the Freedom of Information Act in Israel (Israel Democracy Institute, 2008) (hereinafter: Arbel and Shwartz). It would seem to be important to identify the relevant purpose in accordance with each case, as an interpretative aid, in order to balance the need to publish information with the need to refrain from exposing it. I believe that of the purposes in the Law discussed by my colleague, the principal purpose in the present case is to afford the public an opportunity to criticize governmental acts and omissions, or in other words, to expose the modes of operation of the public authorities (this is also the main purpose according to the late Ze’ev Segal, see: The Right to Know in Light of the Freedom of Information Law  (2000), 101-103; it is also the main purpose mentioned by the Minister of Justice during the debate on the Freedom of Information Law Bill —protocol of the deliberations of July 1, 1997 and May 19, 1998). The demand to expose the acts of government to the public is identified with the saying that “sunlight is the best disinfectant” (attributed to U.S. Supreme Court Justice Louis D. Brandeis, Other People’s Money and How the Bankers Use It (1914) 43). Underlying this saying is the assumption that the authority will conduct itself in the best way possible, even if only due to the fact that its activity is exposed to public scrutiny. Exposure of the activity to public scrutiny is intended to prevent modes of conduct and methods of decision making that the public wishes to reject. In our case, the assumption is that exposure of the administrative data concerning the handling of cases, together with the names of the judges, will increase the efficiency of the legal system.

13.   Against this background, a balance must be struck between freedom of information and the need to refrain from handing over the information. In the present context, this balance is struck, as Justice Arbel explicated, in the framework of an examination of the exception due to interference with “the proper functioning of the public authority” in sec. 9(b)(1) of the Law. The central consideration in this balancing, as she explained, is “the public interest in the publication of the information.” In the framework of considering the public interest in the publication of the information, regard must also be given to the public interest in refraining from such publication. In other words, the question is whether the public will benefit more from the information’s being published or from its remaining confidential. In our case, as stated, the requested “information” includes two tiers: The first is the anonymous statistical data concerning the number of open cases and the time over which they are handled; the second is the names of the judges who are handling each case.

14.   With respect to the question of the publication of the anonymous statistical data, the interest of the public would seem to be clear. Publicizing this data will expose the public to the judicial overload and to its ramifications for the duration of legal proceedings.  This information will provide an opening for public discourse on the merits, which constitutes the very core of a democratic regime (cf: Aharon Barak, “Freedom of Information and the Court”, Kiryat Hamishpat 3 (5763-2003) 95, at p. 97), and it will allow the public to formulate a position on the conduct of the system, including its efficiency. This discourse is the basis for bringing about structural changes and changes in the allocation of resources, in legislation, or in the actions of the executive branch of government, the goal of which is to increase the efficiency of the system. The existence of this discourse is dependent on the publication of the information. Hence, public interest in the information’s being published is clear.

15.   Unlike publication of anonymous statistical data, the question of the public interest in publication of the names of the judges does not necessarily have an unequivocal answer. Such publication is likely to engender benefit to the public interest, but it arouses a non-negligible concern. In broad terms, the concern is that the “efficiency index” will partially replace the “quality index”. Publication of names—and Justice Arbel discussed this at length—is likely to motivate judges to make an effort to climb to the top of the chart, or at very least, not to be at the bottom. When this process of increasing efficiency does not come at the expense of other essential aspects of the work of the judge, but only speeds it up, there is a public interest in the publication. But when vital aspects of the work of the judge are harmed, the interest of the public is liable to lie in refraining from publication of the information.

16.   With respect to balance: in Justice Arbel’s opinion, the probability standard by means of which the balance should be sought within the parameters of sec. 9(b)(1) is that of “near certainty” of interference with the functioning of the authority.  Recourse to a uniform standard for the entire range of cases in which information is requested is not a given, but I am prepared to start out from the assumption that in the present case, that is the appropriate standard of probability (this is also the position of my colleagues, Justices Hendel and Rubinstein). The public has an interest in knowing how its judges manage their dockets; the rate of progress on cases; and the connection between the progress on each case and the judge who is dealing with it. To the extent that it will lead to increased efficiency in the judge’s performance without detracting from its quality, an order should be issued to hand over the information. As opposed to this, if increased efficiency will lead, with near certainty, to interference with the judge’s work, the information should not be handed over.

17.   With respect to the Supreme Court, I accept the position of my colleague Justice Arbel, whereby harm to the work of the judges is not a near certainty. The Supreme Court is the highest court in the courts system, and naturally, concern that publication of the names of the judges will affect those judges’ promotion is not actual. A justice of the Supreme Court has more auxiliary staff available to him than the judges of other courts, and the main thrust of the process of streamlining can be channeled to this staff, without harming the “inner core” of the judicial task. Moreover, it would seem that public interest in publishing the names of the justices of the Supreme Court is greater than in the district courts, inter alia because the Supreme Court is quite frequently called upon to decide on issues that are of social importance, in which the public has a great interest. In addition, as my colleague Justice Rubinstein points out (para. 14 of his opinion), due to the seniority of this highest instance, and in order not to create the impression that this Court is taking the law into its own hands, the public interest in publication of the names is greater.

18.   Against this background, the assumption underlying the position of my colleague Justice Arbel, whereby the judge will be able to dissociate himself from the criticism, is reasonable with respect to justices of the Supreme Court. The obvious conclusion is that in the Supreme Court, interference with the functioning of the justices is not a near certainty, and therefore publication of the names of the justices who are handling the cases should not be prevented.

19.   If my opinion is accepted, publication of the information relating to the Supreme Court, without the names of the judges, as agreed by the appellants, will be effected immediately upon the rendering of this judgment, in accordance with the most current information held by the appellants, and subject to there being no possibility of connecting, by means of this information, the judges hearing the cases with the cases themselves. As for the names of the judges, in order to allow sufficient preparation time for the aforementioned change: they will be published at the end of the 5775 (2014-2015) legal year.

20.   As for the district courts, a categorical assumption that all the judges will be able to dissociate themselves from the criticism and avoid disruption to their work is not free of doubt. Criticism of the judges of the district courts is likely to have a greater effect than criticism of justices of the Supreme Court, inter alia due to the concern of the former that such criticism may impede their promotion. In addition, less auxiliary staff is available to the judges of the district courts than to the Supreme Court, and the concern that the harm will affect the “inner core” of the work of the judge is therefore greater. It is also true that reducing the time taken to hear evidence or the time spent on legal research is liable to affect the legal decision already at the level of the trial court. To the extent that an error is a non-legal one, i.e., it relates to factual findings and the conclusions therefrom, there is a concern that the error will be perpetuated, thus causing harm to due process and to justice. In view of what has been said, owing to the greater concern about interference with the functioning of the judges in the district courts, it appears to me that a different balance is required to that relating to the Supreme Court.

I believe that this balance must be found, not at the level of the decision, but at the level of relief. At the level of decision, even though the concerns described above are not light, they do not amount to categorical “near certainty” of interference with the orderly functioning of the judges. However, in order to alleviate the concern about harming the work of the judges, it appears that on the level of relief, there are good reasons for applying the judgment in an incremental, forward looking manner. Publication of the names of the judges is a substantive change from the present practice in the courts. Even those who support publication would surely agree with that. The purpose of the publication is to expose to public scrutiny another aspect of the judicial task which until now has been overseen from within the system (see Shetreet, “Fundamental Values”, at p. 635, near the text “The President or the Deputy President are responsible from the administrative perspective for the judges …”). As a result of the act of exposing the names of judges, certain birth pangs can be expected. Presentation of the raw data will create an inaccurate picture. In order to present the data in a manner that is not misleading, a certain amount of preparatory work is needed, such as providing explanations for the state of some drawn-out cases (see: para. 59 of the opinion of Justice Arbel and para. 12 of the opinion of Justice Hendel). Beyond this, placing the names of the judges in the public spotlight can be expected to bring about a change in the maner that they conduct the administrative aspects of their work. Also, the system, as a system, is likely to slighty alter the manner in which cases are assigned (Shetreet, “Fundamental Values”, at p. 635: “Today, the courts administration dictates to the judges the required pace of work …”). The district courts, unlike the Supreme Court, are not a single body, and their preparation for changes, and their adjustment, will naturally require more time. These changes require preparation and thought, both on the level of the individual judge and at the systemic level. In general, it may be said that these changes are primarily a matter of justice seen.  But in order that these changes not harm justice itself, incremental implementation of publication is required. Therefore I am of the opinion that in the district courts, there should be incremental, forward looking implementation of the judgment: At the first stage, the data should be published without the names of the judges. This intermediate situation will allow the system, as a system—including the courts administration and the presidents of the district courts and their deputies—as well as each judge, to internalize the change and to plan the administrative aspect accordingly. At the second stage, after a pause that will allow for the situation to be studied and for preparation, the names of the judges in the district courts, too, will be published.

Therefore, with respect to the district courts, if my opinion is accepted, publication of the information without the names of the judges will be effected at the end of the 5775 (2014-2015) legal year. Publication of the names of the judges will be effected at the end of the coming calendar year, i.e., the end of 2015.

21.   After having completed my writing of this opinion, I read the opinions of my colleagues Justice Hayut and Justice Vogelman, who concurred in the relief proposed by my colleague Justice Arbel in para. 96 of her opinion. The date of implementation proposed by Justice Arbel is, in the final analysis, deferred, i.e., it is set for the end of the 2015 legal year and no later than December 31, 2015. Ultimately, the distance between our positions regarding the date of implementation of the names of the judges—which is the focus of the dispute—is not great. In these circumstances, I concur in the relief that was proposed in para. 96 of the opinion of Justice Arbel.

 

Justice E. Hayut

I concur in the comprehensive opinion of my colleague, Justice E. Arbel, and in her conclusion whereby the appeal should be denied and an order issued for the material to be delivered in a manner and at times as specified in para. 96 of  her opinion.

1.     A public authority in a democratic state—such as the judicial branch in Israel—possesses powers granted to it by law which it is obligated to apply for the sake of the public and for its benefit. It is considered a trustee of the public, and from this two important conclusions follow:

First, the information connected with the activity of such an authority is not its own property, and it, too, is held by it in trust for the public. In the words Justice H. Cohn, which are like fine, vintage wine:

        ‘… the private domain is not like the public domain, for the one acts with regard to its own property; if it wishes, it may give, and if it wishes, it may refuse. The other was entirely created merely to serve the common good, and it has nothing of its own: everything that it has is deposited with it as a trustee, and as for itself, it has no rights or duties that are in addition to, or different and distinct from, those that derive from this trust or that were conferred on it or imposed on it by virtue of statutory provisions HCJ 142/70 Shapira v. Jerusalem District Committee of the Israel Bar Association [1971] IsrSC 28(1)  325, at p. 331).

Secondly, the authority as a public trustee is accountable to the public which it serves. An as stated by (then) Justice M. Cheshin in a similar context:

‘When we realize that the civil servant acts as a trustee and as an agent of the public, he is therefore bound by the duties of an agent, including the duty to account for his actions, i.e., to disclose to his principals — the entire public — what he has done and what he has not done, why he has done one thing and not another, and when he takes no action, why he took no action. He is obliged to disclose all his acts and omissions, together with the reasons for them. Only in this way can the public know whether the civil servant has acted faithfully; only in this way will the public have confidence in the administration and its employees (HCJ 3751/03 Ilan v. Tel-Aviv-Jaffa Municipality [Nevo – 2004], para. 15).

These and other important rationales are what provide the foundation of the principle of freedom of information, which has been a recognized, entrenched principle in the Israeli legal system for many years, and since 1998 has also been anchored in primary legislation of the Knesset, i.e., in the Freedom of Information Law (see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper [2006] IsrSC60(4) 217, at pp. 230-232 [hereinafter: Council for Higher Education], and see Justice Arbel’s broad survey in paras. 20-25 of her opinion).

2.     The point of departure for the principle of freedom of information is that every citizen or resident of Israel has the right to obtain information from the public authority. This right—the right to know—is included in the list of human rights, and as such, it stands on the highest rung in the hierarchy of rights (see: AAA 3300/11 Ministry of Defense v. Gisha [Nevo – September 5, 2012], para. 5 of my opinion). But like every other human right, it is not absolute, and the provisions of the Freedom of Information Law define and delimit it when the conditions it specifies are present (sec. 1 of the Freedom of Information Law). Thus, for example, sec. 9(a) of the Law enumerates the type of information which the public authority is not permitted to deliver, and sec. 9(b) enumerates the information that the public authority is not obligated to deliver. The crux of the dispute between the appellants and the respondents at the stage of the appeal before us is the question of whether, as the appellants claim, the respondents should be satisfied with the information regarding the cases that are pending in the district courts and in the Supreme Court without designation of the names of the judges or whether, in accordance with the position of the respondents and of the trial court, the appellants must also supply details of the identities of the judges who are handling the cases. The appellants base their position—according to which information specifying the names of the judges should not be delivered in this context—on the limitation established in sec. 9(b)(1) of the Law, whereby:

“A public authority is not obliged to provide … information, the disclosure of which is liable to disrupt the proper functioning of the public authority, or its ability to carry out its duties”.”

This limitation seeks a balance between the right to know and the important public interest in preserving the proper functioning of the public authority. As my colleague Justice Arbel pointed out (see paras. 53-57 of her opinion), the law is that when there is a clash between a constitutional right to obtain information from a public authority and between the said interest in sec. 9(b)(1) of the Law, the balance is a “vertical” one and therefore, as a rule, the public interest will prevail only where there is near certainty of the harm involved (AAA 6013/04 State of Israel – Ministry of Transport v. Israeli News Corporation Ltd. [2006] IsrSC 60(4) 60, pp. 82-84; AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo – August 28, 2012], [hereinafter: Ministry of Education] per Deputy President E. Rivlin, paras. 7-8). Here it is important to distinguish between the possibility of the occurrence of the harm to the public interest, which the limitation seeks to protect—with respect to which near certainty must be demonstrated—and between the magnitude of the harm to the interest, if it eventuates, which also carries weight in the framework of the balancing act, but with respect to which the authority is not obliged to demonstrate “special harm”, and it should retain flexible criteria that can be applied having regard to the data and the circumstances of each and every case (Council for Higher Education, para. 21; AAA 1825/02 State of Israel, Ministry of Health v. Retirement Homes Association [2005] IsrSC 59(2) 726; Ministry of Education, para. 8).

3.     The concerns about interference with the proper functioning of the judiciary that were raised by Justice Arbel in her written opinion and by Justices Hendel and Rubinstein in their written opinions are definitely worrying and they warrant attention. Particularly worrying in my view is the concern that the special emphasis on the efficiency of the judiciary and publishing the open cases together with the name of each judge individually, are liable to “breathe down the necks” of the judges and cause them to speed up the hearings and the rendering of judgment excessively, at the expense of quality. After all, the judges are not a “production line” for judgments. Judge Arbel discussed this, saying incisively: “The judge cannot fulfill his mission in a high-quality, full, and complete manner with a gavel in one hand and a stop-watch in the other …” (sec. 69 of her opinion). Indeed, it is important to bear in mind that efficiency is not everything, and therefore, evaluation of the activity of the judiciary according to “production units and output” is liable to distance the legal discourse from the substance which lies at the very heart of this activity—doing justice. On this matter, Professor S. Shetreet’s words from over thirty years ago are on point, and still apply today:

Because the goal of the legal process and the system of justice is to do justice, one must be wary of the tendency to examine them according to criteria of production units and units of output, and of the tendency to apply to them, without special adjustment, concepts of efficiency from other areas of organization and administration (Shimon Shetreet, “Practical and Value Problems in the Administration of Justice,” in S. Shetreet (ed.), Recent Developments in Israeli Case Law and Legislation, Collection of lectures delivered at the Seminar of Judges 80-98, [81]).

Moreover, as my colleagues elucidated at length, without individual consideration of the scope of each case and its weighting from the point of view of the judicial time that it requires, the picture created is liable to be superficial and absolutely inaccurate. At the same time, and like my colleague Justice Arbel, I too believe that these concerns do not meet the standard of near certainty that harm will be done to the proper functioning of the judicial authority if the requested information is delivered, and therefore, my opinion, like hers, is that the right to know prevails in the present case. This conclusion is further validated in view of the fact that we are dealing with the judicial authority, which not infrequently orders the enforcement and implementation of this right with respect to other authorities, and it is therefore important that on this matter, we act in accordance with what the sages say, and that we “preach well and act well”

4.     For these reasons I concur, as stated, in the opinion of my colleague, Justice Arbel, including in relation to the schedule laid out in para. 96 of the opinion, in order to allow time for each of the judges involved to append an explanatory comment to the information regarding the open cases on his desk, as he sees fit.

 

Justice Vogelman

My colleague Justice E. Arbel discussed, at length and comprehensively, the normative basis that was required for the decision—beginning with the Freedom of Information Law, moving on to the special nature of the profession of the judge that constitutes a way of life, and ending with a comparative survey. I agree with my colleague that the judicial function requires—in its very essence—maximum transparency, which is a sine qua non for public confidence in the legal system; a fundamental conception that is expressed, inter alia, in the principle of the public trial; and the obligation to provide reasons. In my opinion, transparency indeed is characteristic of the conduct of the judicial system, on various planes.

At the same time, there is no denying that a hard look at reality makes it difficult not to agree with the conclusion of my colleague Justice N. Hendel, that compared to the existing systemic mechanisms for dealing with specific problems of overload in relation to particular judges, the benefit that will accrue from publication of named information is not great, whereas the publication is liable to cause a considerable degree of personal and systemic harm. It is not for nothing that the comparative survey presented by my colleagues reveals that, with the exception of the United States, there are no countries in which information is published in the format requested in the present case. In the United States too, to which my colleagues refer, such publication is not pursuant to regular legislation dealing with freedom of information, but rather, to special legislation which focuses on the judiciary, and subject to conditions that map out more particular, specific disclosure than what was requested here.

That is the point: the question that required our decision in the present proceeding is not whether the delivery of information that includes the names of the judges serves the public interest. We must decide whether the interpretation of the arrangement found in the Freedom of Information Law, with its limitation, leads to the conclusion that the requested data is not of the type that the authority is obliged by law to deliver, bearing in mind that the primary legislator did not see fit to exclude the judicial system from the application of the Freedom of Information Law insofar as administrative information is concerned. Like my colleague, Justice (ret.) Arbel, I too see no reason to determine that in the affairs of the judiciary, of all places, there should be a deviation from the balancing formula that we have fixed in our case law, whereby the public interest outweighs the right to obtain information if there is near certainty that disclosure of the information will cause real harm to the orderly functioning of the authority (see e.g. AAA 1245/12 Movement for Freedom of Information v. Ministry of Education [Nevo –August 23, 2012, para. 7). Even if I assume that disclosure of the names will indeed lead to real harm to the functioning of the judicial authority as my colleague Justice Hendel believes, I cannot say that there is near certainty that such harm will be caused on the systemic level.

My colleague Justice Rubinstein does not disagree with the normative framework and what that involves, but he points out that publication of the information together with names will affect different judges differently, hence the different relief that he suggests. In view of my conclusion regarding the absence of near certainty of harm at the systemic level, and since I found that the relief suggested by Justice Arbel allows for a suitable period of organization, I do not see any reason to limit this relief.

Therefore I concur in the conclusion of my colleague Justice (ret.) E. Arbel and the relief that she suggests.

 

   

Decided by the majority opinion of Justice (ret.) E. Arbel and Justices S. Joubran, E. Hayut, Y. Danziger and U. Vogelman to deny the appeal. In order to allow the appellants to make the appropriate preparations for implementing the judgment, it was decided that they will be required to deliver data regarding the Supreme Court and the district courts as requested in the petition, in relation to the end of the 2015 legal year, and no later than December 31, 2015. Regarding the manner of disclosure of the information, the dissenting view of Justice Y. Danziger is that the appellants should be ordered to disclose the most recent information they possess, namely, information relating to the 5774 (2013-2014) legal year, no later than December 31, 2014.  It was also decided that the appellants will pay the respondents’ legal fees in the amount of NIS 20,000.

The above is contrary to the dissenting opinion of Justice E. Rubinstein, in whose opinion the appeal should be partially allowed but only in relation to the district courts, to be reconsidered periodically (whereas the material relating to the Supreme Court should be delivered as determined in the majority opinion), and the opinion of Justice N. Hendel, whereby the appeal should be allowed in its entirety.

 

27 Elul 5774

September 22, 2014

 

 

 

 

 

 

 

 

       

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

 

 

MP 298/86

MP 368/86

 

Before: The Hon. President M. Shamgar Appellants:        1. Ben Zion Citrin

2. Yifat Nevo v.

Appellees:     1. Disciplinary Court of the Bar Association in the District of Tel Aviv

2. Tel Aviv District Committee of the Bar Association

 

 

The Supreme Court of Israel [April 7, 1987]

The Hon. President M. Shamgar

 

Facts: The two consolidated appeals requested the cancellation of fines imposed upon reporters who refused to reveal their sources of information upon being subpoenaed to testify before the District Disciplinary Court of the Israeli Bar Association. The main issue was whether the two reporters had an obligation to answer questions regarding their sources, or whether they enjoyed a privilege allowing them to refuse.

 

Held: The Court noted that there is no Israeli statute explicitly granting immunity to reporters and that such an immunity is not included in the 5731/1971 Evidence Ordinance, which does acknowledge other privileges. After considering the development of the issue through English and US case law, the Court has determined that reporters enjoy partial immunity from being forced to reveal their sources. It noted that the interest of protecting reporters' sources stems from freedom of the press and from freedom of expression, which is a prerequisite for the guarantee of most of the other fundamental rights of citizens. The Court ruled that the right to protect reporter's sources of information is a public interest and weighed it  against  the  public  interests  of  doing  justice,  preventing  crime  and  acts  against  public  order.  It

 

determined that the reporters' immunity is partial and not absolute. The Court may instruct the witness- reporter to answer a question. President Shamgar ruled that the reporter should not be forced to reveal its sources unless it is relevant to the legal procedures and the Court thinks it is necessary and important in order to do justice in an essential matter. The Court clarified that this refers to severe offences that have significant results or implications, or to serious wrongdoing that requires the revelation of the source in order to do justice. In the case in question, the Court decided that, while the reporters’ sources were relevant to the disciplinary trial, it was not a matter that justified curbing the freedom of the press and dismissing the reporters' immunity. Therefore, the appeal was accepted. It was held that the two Appellants were permitted to refuse to answer questions regarding their sources of information and the fine was overturned.

 

 

 

Attorneys for the Appellants: M. Mozer (M.R. 368/86); H. Shtenger and A. Horowitz (M.R. 298/86)

Attorneys for the Appellees: S. Ben-Yaakov and A. Ben-Yaakov

 

JUDGMENT

 

1.            We have consolidated two appeals into one case regarding a fine imposed upon two reporters who were subpoenaed to testify before the District Disciplinary Court of the Israeli Bar Association, which operates under the 5721/1961 Bar Association Act. They were asked to testify about their sources of information for articles they wrote for the newspapers they work for. In one case, the article covered an alimony claim filed by an artist against the father of her daughters in which the names and photographs of the litigating attorneys were publicized. In the other case, a woman was forcibly institutionalized under the 5715/1955 Treatment for the Mentally Ill Act, and the question for the disciplinary hearing was whether the attorney who represented the patient was the source for the article. In other words, in both cases, the reporters were asked to reveal their sources of information regarding issues which the Bar Association considers to be ethics violations committed by the attorneys standing trial.

2.            As I have mentioned, the reporters refused to turn over their sources and as a result the Disciplinary Court of the Bar Association imposed a fine upon them pursuant to their authority under Section 66 of the Bar Association Act, which states that Sections 9 – 11 and 27(b) of the 5729/1968 Investigative Commissions Act apply to a Disciplinary Court as if it were an investigative commission, with the necessary adjustments. The relevant provisions of the Investigative Commissions Act as referred to by the Bar Association Act are those found in Section 11(a)(4) of the Investigative Commissions Act. This provision states that one who is lawfully subpoenaed to answer questions and does not do so or answers evasively may be fined, even in absentia, pursuant to Section 40(2) of the 5737/1977 Penal Code, by the Chairman of the Committee and with the approval of the Committee (which, in this case, is the District Disciplinary Court). The Bar Association Act limits the fine to a maximum of 300 old shekels.

 

Section 11(b) of the Investigative Commissions Act states that the Chairman of the Committee, with the approval of the Committee, may grant a request for a hearing by someone who is fined in absentia under Section 11(a) to lower or cancel the fine. The fine may be canceled if the Chairman is convinced that the potential witness did not testify because of circumstances beyond his control. In this case, the chief judge of the disciplinary Court makes such a decision with the approval of the other judges, in place of the Chairman and the other members of the Committee.

Section 11(c) of the Investigative Commissions Act states that if a fine is imposed pursuant to subSection (a), the President of the Supreme Court must be notified in writing, and he, or another Supreme Court Justice, may, either upon request or even without it, reduce or cancel the fine.

As I have mentioned, the two reporters were fined for refusing to reveal their sources of information for their newspaper articles; the two appeals before me ask that the  fines  be canceled.

3.            I have no intention of deciding the two appeals before me according to the question of whether the proper procedures were followed under Section 11(b), which is an issue that was brought up, among others, by one of the reporters; or according to the question of whether the Disciplinary Court stayed within the bounds of the maximum fine it is authorized to impose, because, as we shall see, these are not the main issues of this case.

However, I add that the issue of the maximum fine that may be imposed pursuant to Section 66 of the Bar Association Act requires some adjustments that should be tended to by those authorized to do so. The first problem stems from the relatively low fine set by the law. Section 66(a)(2) of the Bar Association Act, which incorporates Section 11 of the Investigative

 

Commissions Act into the procedures of the Bar Association’s Disciplinary Court, states that, “The fines imposed by the Disciplinary Court under the aforementioned Section 11 cannot be more than 300 (old – M.S.) shekels…” In this law, the legislature wished to impose a fine above that set forth by the Investigative Commissions Act which carried a fine of up to only 200 Israeli Liras (see the 5740/1980 Bar Association Act (amendment 13 ) (April 13, 1980)).

Over the years, inflation levels grew and the Justice Minister increased the maximum fine available under Section 11 of the Investigative Commissions Act to 10,000 old shekels (5744/1984 Penal Order (adjusting fine amounts); the order was published on February 12, 1984 and went into effect 30 days later), pursuant to his authority under Section 64 of the Penal Code. The problem is that the Justice Minister did not enact a similar amendment to the Bar Association Act, which created an unreasonable situation in which the maximum fine under Section 66 remained a relatively low 300 old shekels (Section 61 of the Penal Code cannot apply here because of a limitation in subSection (4)).

Another problem stems from Section 21 of the 5744/1984 Judiciary Act (amendment 19) which references the fine set in Section 11 of the Investigative Commissions Act to the fine set in Section 40(2) of the Penal Code. It would seem that from this date on there would be no need to update the set fine stated in Section 11, and it would suffice to merely update the fine set by Section 40 of the Penal Code. Despite this, the Justice Minister updated the fine set forth by Section 11 of the Investigative Commissions Act even though it should no longer be in effect. See 5745/1985 Penal Order (adjusting fine amounts); 5746/1985 Penal Order (adjusting fine amounts).

4.            The main issue before us in this case is whether the two reporters have an obligation to answer questions in a Disciplinary Court, or whether they enjoy, as they claim, a privilege

 

allowing them to refuse to answer questions regarding their sources. To answer this question, we need to first examine the 5731/1971 Evidence Ordinance (new version).

Section 1 of the Evidence Ordinance states that a Court has the authority to subpoena anyone who is relevant and admissible and who is not barred by another rule of evidence to testify; therefore we see that there are two conditions necessary for a subpoena: the witnesses must be relevant and admissible.

Section 66 of the Bar Association Act authorizes a Disciplinary Court adjudicating a disciplinary action to subpoena anyone in Israel to testify or provide documentation other than who is exempted by law. The Disciplinary Court may also obtain any testimony, both written and oral, and question witnesses. The authority to subpoena witnesses and obtain testimony stems from its auxiliary authority under Section 66(a) which, as previously noted, incorporates Sections 9 – 11 and 27(b) of the Investigative Commissions Act. Under Section 9 of the Investigative Commissions Act, the Chairman of the Investigative Commission, with the approval of the Commission, can subpoena a witness to testify or produce documents or other forms of evidence. Section 10 states that one who is subpoenaed to testify or produce documents or other forms of evidence before the Investigative Commission, has the same obligations as someone investigated under Section 2 of the Criminal Procedure Ordinance (testimony). Section 2(b) of the Criminal Procedure Ordinance states that someone being interrogated must honestly answer all questions asked [of him] by police or another authorized official, except for questions whose answer places him in criminal jeopardy. Section 47 of the Evidence Ordinance, which applies to testimony presented to a Disciplinary Court, also states that a person is not obligated to provide evidence if it will implicate him in a crime he has either been indicted for or stands to be indicted for.

 

The Disciplinary Court certainly has the authority to subpoena the two reporters and question them as they would any other witness. The question now is, first, was the question [asked] of them relevant under Section 1(a) of the Evidence Ordinance (new version)? And, do these two reporters enjoy reporter’s privilege, which would allow them to refuse to answer any question asking them to reveal their source? As regards the relevance of the questions, we can deduce from the facts of the case that the issue of the reporters’ sources are relevant to the issue adjudicated in the Disciplinary Court, which is whether the attorneys in question are the cause for the publication [of their names]. This brings us to the second issue of immunity.

5.            There is no Israeli statute explicitly granting immunity to reporters, nor is there any legislation which addresses the matter. Chapter 3 of the Evidence Ordinance (new version) lists who is legally immune from testifying. Section 44 of the Ordinance speaks about immunity for the good of the country, Section 45 speaks about about immunity for the welfare of the public and, as we have already said, Section 47 deals with immunity for incriminating evidence. As Regards the status of certain occupations, Section 48 recognizes immunity for attorneys under certain circumstances, Section 49 for doctors, Section 50 for psychologists and Section 51 for clergy. Section 52 qualifies the immunity in question by stating that the immunity discussed in Chapter 3 applies to evidence both before a court or tribunal and before a government authority, body or an individual authorized by law to collect evidence. Any reference in the Chapter to a “Court” includes also "tribunal", "body" or "individual" authorities authorized to collect evidence. Therefore, there is no doubt that Chapter 3 of the Evidence Ordinance (new version) also applies to evidence presented to the Disciplinary Court of the Bar Association. However, the problem is that Chapter 3 does not say anything about any such privilege for reporters.

 

I should point out that the attorney/client and doctor/patient immunity is a privilege granted to the client and to the patient, not to the attorney or the doctor. See Prof. A. Harnon, Protecting Relationships of Trust: Should we Recognize Reporter’s Privilege? 3 Iyunei Mishpat 542, 552 (5733 – 34). This is significant because if the client or the patient waives this privilege, the attorney or the doctor can no longer claim it. Furthermore, when dealing with privileges associated with medicine, psychology or religion, we must take into account the fact that the privilege [between a doctor and a patient] of a doctor, for example, is not absolute, as it is not the doctor’s privilege. If the Court decides that the need to reveal the privileged information, for the sake of administering justice, outweighs any interest there may be in allowing the information to remain privileged, it may do so. A similar provision exists in Section 50 regarding a psychologist’s privilege.

6.            No one argues that the Evidence Ordinance (new version) does not explicitly address the issue of reporter’s privilege. However, the attorneys [for the reporters] argue that such a privilege has developed and has been recognized by caselaw, despite the fact that it is not included in any statute.

Because this Court has not yet addressed this issue, for comparison purposes, I will briefly refer to the development of this idea in other countries which have a similar legal system.

7.            The issue of immunity has been adjudicated in English caselaw during the National Investigation Committee’s investigation into the Vassall espionage case. See Attorney General v. Mulholland, (1963) 1 All ER 767 (Q.B.); Attorney General v. Clough, (1963) 1 All ER 420 (A.C.). The courts in those cases addressed the claims of reporters who refused to reveal their sources relating to their reporting of the Vassall case, and claimed they had legal privilege. They argued that the existence of such a privilege is a means which allows them to investigate the

 

truth. The public has an interest in reporters having access to such information. However, they can only  succeed  in  accomplishing their  goal so  long  as  their sources  of information can maintain their trust that their identity will not be revealed, thereby allowing the public to gain access to information to which they are entitled. In this way, reporters can reveal criminal activities, injustices and [acts of] negligence in the course of their job, [whereas without such a privilege] such [information] would remain unexposed. Unless they are able to keep their sources a secret, reporters will simply be unable to provide such information. Whistleblowers will remain silent if they know that their identity will be revealed. The claims in those cases were similar to the issue raised in this case, which is essentially that reporters are entitled to refuse to answer questions asking for the identity of their sources.

In Clough, Chief Judge Lord Parker rejected the claim that English law recognized absolute immunity for reporters, drawing upon, among others, the Australian decision of Justice Dixon in McGuinness v Attorney-General (1940) 63 CLR 73. For the purposes of his case, he distinguished between the nature of obligations during the discovery phase of the case and actual testimony. Lord Parker states (at 427 – 28):

In those circumstances, I have without the slightest hesitation come to the conclusion that in regard to the press, the law has not developed and crystallised the confidential relationship in which they stand to an informant into one of the classes of privilege known to the law. As I have said, it would still, as I conceive it, remain open to this court to say in the special circumstances of any particular case that public policy did demand that the journalist should be immune, and I, therefore ask myself whether, in the circumstances of the present case, it is necessary from the point of view of public policy that I should recognise the claim of immunity which is raised.

This means that the Court does not recognize absolute immunity, but will exercise discretion in considering each claim on its own merits and decide whether to recognize reporter’s immunity on the basis of public policy considerations.

 

Likewise, in Mulholland, Lord Denning rejected a claim for reporter’s privilege, because under English law (unlike ours, as stated above) only attorneys have such privileges regarding information exchanged within the context of a relationship with a client. With regards to reporters, he added (at 771):

The judge will respect the confidences which each member of these honorable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the community, to weigh these conflicting interests – to weigh on the one hand the respect due to confidence in the profession and on the other hand the ultimate interest of the community in justice being done… (emphasis added – M.S.)

The judge must weigh the conflicting interests and decide whether the circumstances tilt the scale towards granting immunity in order to protect the relationship of trust between the reporter and the source, or whether the public interest requires the identity of the source to be revealed.

Lord Denning clarifies that if a judge decides that the reporter must answer the questions, claiming immunity will not help him. He notes that in some slander cases, the courts did not require reporters to testify, but that this was not because reporters enjoy absolute immunity, but rather because the proper balance of interests tilted in their favor. As he states, “On weighing the considerations involved, the balance is in favour of exempting the newspaper from disclosure” (emphasis added – M.S.). As he explains, in a slander trial, the claim is against the newspaper and there is no need to sue the source. In such a case, it is in the public’s best interest that the journalist not divulge his source, as L.J. Buckley stated in Adam v. Fisher, (1914) 288 T.L.R 30 (U.K.); however, Lord Denning qualifies the application of the privilege by stating, “Unless, I would add, the interests of justice so demand.”

 

Justice Donovan, who also sat in the Mulholland case, based the guiding principal of judicial discretion upon a limited form of reporter’s privilege. He states (at 772), “While the journalist had no privilege entitling him as of right to refuse to disclose the source, so, I think the interrogator has no absolute right to require such disclosure.”

Therefore, reporters do not have the absolute right to refuse to disclose their source, and, at the same time, courts cannot view the obligation to answer as absolute. Instead, courts can determine whether an obligation to answer exists in light of the circumstances of the case based upon the significance of the answer to the administration of justice. The decision is left to the discretion of the judge, similar to other circumstances where a judge may warrant a decision to disallow a particular question because the answer may do more harm than good. The judge concludes his position by stating (at 773), “For this reason, I think that it would be wrong to hold that a judge is tied hand and foot in such a case as the present and must always order an answer or punish a refusal to give the answer once it is shown that the question is technically admissible.”

In sum, in the aforementioned cases [reporters] enjoy partial immunity which is determined by balancing the public welfare with the demands of justice.

In the cases regarding the Vassall case, the Court found that the journalists had to divulge their sources because of the severity of the case as an espionage case endangering national security and its level of importance to the public. Without the information being turned over to the Investigative Commission, the Commission would have never been able to know whether what was published in the newspaper was fiction, mere gossip or reliable.

In 1980, the issue reemerged in the U.K. in the case of B.S.C. v. Granada Television, (1981) 1 All E.R. 417, 435, 453 (Ch., A.C., H.L.), when the Court dealt with the question of

 

what is the proper balance between maintaining the anonymity of a reporter’s source and the trust between an employer and employee. The case arose as a result of a TV program prepared by the respondent, a TV network, about a general strike in 1980 at the factories of the British Steel Corporation, a government owned company established after the nationalization of the steel industry. An employee, who objected to and criticized the management of the company’s affairs in general and particularly the strike, handed over documents to the TV station which he obtained through his position at the company, upon receiving a guarantee that the station would not reveal his identity. The steel company, during the course of legal proceedings, asked that the name of the particular employee be revealed. The case made its way up the judicial ladder (Chancery Division, Court of Appeal Civil Division and the House of Lords) and all the courts – with the exception of a dissenting opinion by Lord Salmon in the House of Lords – reached the same conclusion that the TV station must divulge the source.

As the Court there held, courts generally wish to respect the confidentiality between a journalist and his source of information. However, reporters do not enjoy, under the Evidence Ordinance, any privilege based on public interest allowing them to refuse to divulge their sources if the Court believes that doing so is in the best interests of justice. Lord Denning, sitting in the Court of Appeal, said the following (at 441):

The public has a right of access to information which is of public concern and of which the public ought to know. The newspapers are the agents, so to speak, of the public to collect that information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by questions or cross-examination at the trial. Nor by subpoena. The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up…

Nevertheless, this principle is not absolute. The journalist has no privilege by which he can claim — as of right — to refuse to disclose the name. There may be exceptional cases

 

in which, on balancing the various interests, the court decides that the name should be disclosed… Have we any [scales] by which to determine which cases are exceptional? It seems to me that the rule (by which a newspaper should not be compelled to disclose its source of information) is granted to a newspaper on condition that it acts with a due sense of responsibility. In order to be deserving of freedom, the press must show itself worthy of it. A free press must be a responsible press. The power of the press is great. It must not abuse its power. If a newspaper should act irresponsibly, then it forfeits its claim to protect its sources of information.

To show what I mean by irresponsibility, let me give some examples. If a newspaper gets hold of an untrustworthy informant and uses his information unfairly to the detriment of innocent people, then it should not be at liberty to conceal his identity. If it pays money to an informant so as to buy scandal, and publishes it, then again it abuses its freedom. It should not be at liberty to conceal the source.

In this case, the courts held that Granada acted irresponsibly towards the steel industry and the government, and thus, played a part in the injustice. In doing so, the TV station lost its ability to claim reporter’s privilege as Lord Denning states (at 442), “This protection is given only on condition that they do not abuse their power. Here Granada have abused it.”

In the House of Lords, Lord Wilberforce clarified that the words of Lord Denning are a restatement of what was decided in Mulholland, and did not in any way broaden the existing law. He states (at 457):

I do not think that Lord Denning M.R. should be understood as departing from his judgment in Mulholland and from every reported case. Such a reversal would place journalists (how defined?) in a favoured and unique position as compared with priest- confessors, doctors, bankers and other recipients of confidential information and would assimilate them to the police in relation to informers. I can find nothing to encourage such a departure even with the qualifications sought to be introduced to the general principle asserted.

Lord Denning MR’s judgment in Mulholland makes two further points. First, that it is not for the media alone to be the judges of the public interest. That is the task of the courts. Second, the qualification is made, and strongly stated by Lord Denning M.R.,  that disclosure must be necessary to enable justice to be done. The same point is made by Dixon J. in 63 C.L.R. 73, 102 – 03.

 

A short time after the B.S.C. case, England passed the 1981 Contempt of Court Act, which at Section 10 states:

Sources of information

 

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Regarding the application of this provision, see Secretary of State v. Guardian Newspapers Ltd., (1984) 3 All E.R. 601 (H.L.). This Section codifies the rule set forth by the aforementioned cases, granting a limited privilege [to reporters] which is conditioned upon the demands of justice, discovering criminal activity, preventing torts and maintaining public order.

8.            There is no federal legislation on this issue in the United States. However, similar to what we said earlier, the approach that has evolved in the U.S. places the privilege of protecting the trust [of reporters] as a public interest, so long as certain conditions are met:

(1)          The communications must originate in a confidence that they will not be disclosed.

 

(2)          The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3)          The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4)          The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

J.H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW vol. 8, 527 (J.T. McNaughton ed., 1961);

 

see also, C.T. MCCORMICK, ON EVIDENCE 171 (E.W. Cleary ed., 3d ed., 1984).

 

The purpose of the privilege is to protect a relationship which society is interested in protecting, and [the Court] must take this into consideration by weighing the potential damage to the relationship against the benefit to justice should the information be divulged.

The main United States Supreme Court decision on this topic is Branzburg v. Hayes, 408

 

U.S. 665 (1972), where the Court determined the limits of reporter’s privilege by applying a balancing test according to which the Court has the discretion to balance the need to reveal the evidence in question in order to obtain justice and the need to protect the identity of the source. See also, Garland v. Torre, 259 F.2d 545 (1958).

Branzburg dealt with a reporter from Kentucky who refused to disclose information regarding two people he covered in an article who had made hashish from marijuana. He also refused to disclose names of people interviewed for a piece he wrote on the world of those who consume drugs. Another reporter, Pappas, was also joined into the proceedings after sitting in on a Black Panthers event at its main branch and refusing to divulge to a grand jury what he saw and heard regarding alleged crimes against public order. A similar case regarding information held by a reporter named Caldwell about the Black Panthers was also adjudicated at the same time as Branzburg.

All three of these reporters based their claim of privilege on the first amendment to the

 

U.S. Constitution. The case states that the issue is (at 679 n. 16):

 

Whether a newspaper reporter who has published articles about an organization can, under the First Amendment, properly refuse to appear before a grand jury investigating possible crimes by members of that organization who have been quoted in the published articles.

Justice White, who wrote the majority opinion, noted that there is no doubt as to the importance of freedom of speech and freedom of the press, and that collecting information in

 

order to exercise these freedoms is included in the first amendment because without such protection, freedom of the press cannot exist. However, according to Justice [White],  the question is not whether it is permitted to use unrevealed sources or whether journalists must reveal their sources, but rather, whether a journalist has the right to refuse to comply with a subpoena to appear before a grand jury to answer questions about a criminal investigation.

The journalists claimed that if they were to reveal their sources, the sources will refrain from providing information in the future. To this claim, Justice White responded (at 682 – 85):

It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that "[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. NLRB, 301 U. S. 103, 132 - 33 (1937)…

 

The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, including punitive damages, or even criminal prosecution. See New York Times Co. v. Sullivan, 376 U. S. 254, 279 – 80 (1964)… A newspaper or a journalist may also be punished for contempt of court, in appropriate circumstances. Craig v. Harney, 331 U. S. 367, 331 U. S. 377-378 (1947)…

It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury.

Justice White held that a privilege whose purpose is solely to evade criminal accountability cannot be recognized; however, the obligation to disclose sources of information about  criminal  activity  is  not  absolute  either.  The  government’s  interest  in  having  the

 

information disclosed must be paramount or compelling in order to require compliance. The state must demonstrate a clear connection between the information requested and some paramount and compelling state interest (like revealing drug trafficking or preparations for violence) as was the case in Branzburg. As the decision states (at 709 – 10):

[T]he Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

In [Branzburg], journalists were subpoenaed to testify before a grand jury regarding their sources of information. Justices Douglas, Stewart, Brennan and Marshall wrote dissenting opinions, expressing their concern that forcing journalists to testify will harm their constitutional right to freedom of the press. Justice Douglas held that the first amendment of the constitution grants journalists absolute immunity. The other judges voting with the minority held that while the first amendment does extend a measure of immunity it is not absolute.

To summarize, in the U.S., the first amendment does not grant reporters immunity, but, according to the majority opinion, courts may not subpoena them in large numbers, but must rather carefully consider the circumstances of each case in order to strike a proper balance between freedom of the press and the need to compel the testimony because criminal activity is suspected and justice demands the testimony. Even the majority opinion advocated a certain

 

amount of immunity, while the dissent lends more weight to freedom of the press and holds that only in the rarest of circumstances may reporters be compelled to testify. Practically speaking, no absolute criteria were established, and the decision was largely ad-hoc.

9.            In Israel there is no statute addressing the issue of reporter’s privilege. Theoretically, we can look at the third Chapter of the Evidence Ordinance as denying such a privilege because it does not include it among those listed as entitled to a privilege. I see no reason to reach such a conclusion on the basis of statutory law. In our legal system, where the rules of evidence are largely a result of a collection of judicial decisions and we do not have an exhaustive and comprehensive codification of Evidence Law, there is no reason why we cannot recognize the existence of a rule of evidence, even though it does not appear in legislation, but whose development is similar to the method by which many other rules of evidence developed, especially since it draws upon our basic constitutional principles. In other words, recognizing a rule pertaining to evidence which grants partial privilege to reporters is a natural result of the matter before us. We are not dealing with a steadfast rule pertaining to evidence, but rather we must look at the broader legal implications which must reflect our recognition of basic liberties, especially freedom of speech and freedom of the press.

10.          We now must analyze the issue according to the following guidelines: (1) the significance of the fact that there is no statute granting such a privilege to reporters; (2) the connection between our understanding of constitutional rights and the recognition of such a privilege; (3) the importance of the obligation to provide testimony; (4) legal standards; and (5) the application of such standards to the circumstances of the case.

11.          The lack of legislation addressing the issue: The legislature’s silence on the issue and the legislative  history  tells  us  that  the  legislature  debated  the  issue,  but  declined  to  legislate.

 

However, if we are to conclude that the lack of a statute amounts to the negation of such a privilege, we may come to a skewed understanding of our constitutional principles and may even violate a right, which carries much weight from the public’s perspective. In such a case, it is preferable to allow for judicial discretion than to come to the absolute conclusion that no such privilege exists.

In a similar vein, Professor L.H. Tribe, on how to approach an issue which the legislature has remained silent, writes that:

In such a grammar, I believe that silences can properly have only two sorts of significance: (a) a significance as operative legal facts that is derived not from the internal states of mind that various silences may be thought to manifest, but from external constitutional norms; and (b) a significance as parts of the historical context of actual enactments

As for the constitutional problems he adds:

 

I would agree with the view I take to be at least implicit in Justice Douglas’ opinion – namely, that the guide to the meaning of certain congressional silences is the constitution itself.

L.H. TRIBE, CONSTITUTIONAL CHOICES 36 – 37 (Cambridge and London, 1985) (emphasis added).

I would say that this means that the interpretation of the legislature’s silence on a particular issue can be found within constitutional concepts and legal principles.

When addressing the issue of silence, Justice Jackson called it “the great silence of the constitution,” and wrote:

Perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this Nation by the meaning it has given to these great silences of the constitution.

Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657 (1949).

 

When we examine the absence of a rule in the Evidence Ordinance regarding immunity for reporters, while it may seem that statutorily they are not entitled to any such privilege, we need to take into consideration the ramifications this may have on fundamental freedoms and its place in our constitutional system.

12.          The connection between our understanding of constitutional principles and the recognition of immunity [for reporters]: In HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture, IsrSC 38(3) 233, 238 – 39, we stated that freedom of speech is a prerequisite for a properly run democracy. The unrestrained free exchange of ideas between people is an absolute precondition for a political and social regime in which a citizen can fearlessly analyze the different sides of an issue and make up his own mind about what is best for society and for himself as an individual and how to ensure the continued existence of the democratic regime and of the state. As I stated in CA 723/74 Haaretz Newspaper Ltd. v. Israel Electric Company Ltd., IsrSC 31(2) 281, freedom of expression is a prerequisite for the guarantee of most of the other fundamental rights of citizens and, without it, other rights are in danger of falling away.

As mentioned in HCJ 372/84 Klopfer-Naveh, the democratic process is conditioned upon the ability to conduct open dialogue regarding the problems facing the state on a day to day basis and the ability to freely exchange opinions. HCJ 73/53 Kol Ha’Am Co. and Al Etihad Newspaper

v. Interior Minister, IsrSC 7 871, 876; E. BARKER, REFLECTIONS ON GOVERNMENT 36 (London, 1942). The media fills a very important role in this dialogue. It allows for the dissemination of information on all areas of life, which makes it accessible to all. It is the main medium for explaining various perspectives in public dispute.

The interest of reporters in protecting their sources of information stems from their desire to safeguard freedom of the press, which includes the right to gather information. About this

 

James Madison said, “A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both.” WRITINGS OF JAMES MADISON vol. 6, 398 (Hunt ed., 1906).

J.B. Kuhns lists four assumptions regarding the protection of reporter’s sources of information:

The right to confidential informer-reporter relationship follows logically from the right to gather news when four factual assumptions are accepted: (1) newsmen require informants to gather news; (2) confidentiality (the promise that names and certain aspects of communications will be kept off the record) is essential to the establishment of a relationship with many informers; (3) the use of an unbridled subpoena power will deter potential sources from divulging information; and (4) the use of an unbridled subpoena power will deter reporters from gathering or publishing information which might lead to a demand for complete compulsory disclosure. If these factual assumptions are correct, the press will be less effective in uncovering criminal activity, corruption, government mismanagement, and other matters of public interest, unless the right to protect the confidentiality of news sources is created. Much discussion will be stifled concerning socially controversial activities, such as illegal abortion and drug usage, for individuals will avoid the possibility of public identification with illegal conduct. Some persons will be reluctant to voice their opinions without assurances of anonymity for fear of harassment and reprisal.

J.S. KUHNS, REPORTERS AND THEIR SOURCES: THE CONSTITUTIONAL RIGHT TO A CONFIDENTIAL RELATIONSHIP, 80 YALE L.J. 317, 329 (1970 – 71) (emphasis added).

A free and democratic political system cannot be without the means to gather and disperse information. The right to gather information includes the need to protect the source of information. This stems from reporters’ reliance upon their sources, the trust relationship necessary in order to gather information and the deterrent effect that might result from an unlimited obligation to reveal sources. This suggests that the journalist's right to privilege against the obligation to reveal his sources stems from freedom of expression and therefore constitutes an important aspect of the rights and liberties upon which our society is based.

 

13.          The obligation to testify: against that, it is only natural that every so often a reporter is a valuable source of information to investigative authorities and the judiciary, in light of the facts gathered by the reporter during the course of his investigation. This includes information not made public by the journalist or information he casually came across (T.B. CARTER, N.A. FRANKLIN, J.B. WRIGHT, THE FIRST AMENDMENT AND THE FIFTH ESTATE 561 (New York, 1985)). As Lord Parker stated in Clough at 424, “Any privilege which exists constitutes a shackle on the discovery of the truth and an impediment on the true administration of the law.”

Furthermore, we must not forget that the obligation to testify is one of the touchstones of the judicial process. Without it, the process goes from being one which aims to discover all relevant information, to one which only uncovers random information from those willing to volunteer it. The interest of litigants wanting to uncover the truth is generally that anyone able to testify to the facts of the case must do so. Moreover, the right to call relevant witnesses to testify is not only that of the litigants, but that of the public as well. Social order is conditioned upon, among other things, the existence of proper judicial procedure which attains its goals. Providing testimony is an integral part of this process, without which, the process would be ineffective. Therefore, we should view the obligation to provide testimony as a public interest rather than the narrow interest of the litigants involved. This is what Wigmore meant when he quoted Lord Hardwicke, “The public has a claim to every man’s evidence.” Wigmore, supra at 71; see also, U.S. v. Bryan, 339 U.S. 323, 70 S.Ct. 2961 (1977) (Vinson, J.).

14.          We see that two distinct public interests are at issue here. The public has an interest in obtaining all types of information in order to properly conduct judicial proceedings; however, the media is also part of the public which acts to gather information whose publication benefits the public by maintaining a society with free expression and a transparent government. As stated in

 

HCJ 372/84 Klopfer-Naveh, the media is the medium which assists the average citizen in shaping his views and allows him free consideration and choice, while knowing what is occurring, and an ability to evaluate every event, suggestion and criticism.

It is in the public's interest, and not a particular matter for the newspaper or reporter, to protect sources of information, which is necessary to perform the journalistic role, including the protection of the trust and promise that the source will not be revealed, upon which the information is handed over. Because of the nature of this interest, it is also natural and logical to view it within the complex and combined system of all other public interests. In other words, because this is something that the public has an interest in safeguarding, it should be left to the public to decide how much protection such an interest is entitled to; where the interest stands relative to other matters which also have national-social meaning, and to the extent that this interest or other interests should retract from one another, [such a retraction] is in order to achieve a proper balance and co-existence, to the extent desired for a free public anxious to preserve its freedom and the tools meant for its preservation. Other interests which must be balanced against the interest of protecting sources of information are doing justice, preventing criminal activity and protecting people from torts and from severe acts against public order. These are also essential interests, without which a civilized society which protects human rights and dignity cannot exist. It is therefore legitimate for society to find the proper balance between these interests, which will establish which of these interests take precedence over the other when they conflict.

When analyzing the nature and the boundaries of reporter’s privilege, the Court must take into account the fact that there is another important interest which, unfortunately, conflicts with this privilege from time to time. Lord Parker, whose words were quoted above, said that any

 

privilege granted to a potential witness handcuffs those trying to do justice and restrains the ability to uncover the truth and is a barrier to fully doing justice. Opposite this consideration stands the important interest of having information flow freely, which is a precondition for freedom of expression in general and specifically for freedom of the press. In other words, on one hand we have the public interest in doing justice to a party involved in a dispute with another or with the government, and on the other hand, we have the fundamental constitutional right to a freedom of the most central type.

As I have said, the necessary conclusion to this conflict is clear and simple. The privilege cannot be absolute, but rather must be limited to constraints whose general aim is as I wrote above. Conversely, the ability to compel a reporter to reveal his sources of information cannot be absolute and must be limited to certain constraints as I will explain and whose aim I have explained earlier.

The proper balance between the different interests as it was implemented in England before the amendment to the 1981 statute, was described, among other [descriptions], by Lord Diplock in D. v. N.S.P.C.C., (1977) 1 All E.R. 589, 594 (H.L.):

The private promise… must yield to the general public interest that in the administration of justice truth will come out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.

According to Lord Diplock, our goal should be to reveal the truth by obtaining testimony, unless there is an overriding public interest which demands that the source of information be protected. See Guardian Newspapers Ltd.

 

 

to the discretion of the Court. If, [however], the Court orders the witness to answer the question presented to him, he must do so.

So what is the test that must be applied by the Court? Does every crime or tort justify the exercise of the Court’s authority to order a reporter to reveal his source?

The answer is no. Compelling the testimony of reporters to reveal their source in every case, regardless of the circumstances, would contradict the realization of freedom of expression, which can only be done through freedom of the press. Freedom of speech and its derivative rights have an important status in our legal system as was stated in CA 723/74 at 295:

Freedom of expression and a statute limiting free speech are not equal. We will always prefer an interpretation of a statute in a way which preserves freedom [of speech] over one which limits it. In sum, the standard by which freedom of speech must be safeguarded is that it should be the first consideration taken into account when it conflicts with another right. It is fitting that it not only be at the forefront when the legislature legislates, but also when statutes are interpreted and applied to circumstances when its applicability is put to the test.

As we have repeatedly held, freedom of speech carries with it the promise that the status and the rights of an individual will be safeguarded and honored and that he will not be discriminated against and that the truth will be sought and revealed. As we said in HCJ 372/84 Klopfer-Naveh, this is a precondition for a properly functioning democracy, which plants the seeds of advancement and human development both intellectually and socially.

 

 

one where a felony is alleged, or a significant misdemeanor or a severe tort action which requires the identification of the source in question or justice cannot be done. In such a situation the Court may decline to allow the reporter to claim the privilege.

The absence of a statute addressing the matter does not take away from the Court’s authority. The Court may recognize reporter’s privilege with the aforementioned limitations because of the general rules that stem from freedom of expression and the rights associated with it. See HCJ 337/81 Mitrani v. Transportation Minister, IsrSC 37(3) 337, 355 n.7.

To illustrate, a reporter can be compelled to disclose information regarding a drug dealer or burglars; however, even in such a case, the Court must use its discretion by considering the facts and the nature of the case to determine how relevant the information in question is to the case and how essential the information is to doing justice. After taking all this into consideration, the Court may compel the testimony and the reporter will not be able to claim reporter’s privilege.

This example demonstrates how the right to preserve the identity of the source is to be taken seriously and only denied when necessary because of the nature of the case and the weight of the need for the testimony. As I have explained in detail, the test is a relative one and the considerations must justify overriding the privilege. The test has three prongs:

(a)          First, the relevance of the information in question must be tested;

 

(b)          Second, we must test whether the issue is significant enough [to compel such testimony];

(c)           Third, we must test whether the information is absolutely necessary to adjudicate the issue, namely whether there is no way to rely upon other evidence without compelling the revelation of sources.

 

16.          We will now turn to the case before us. What is the status of a disciplinary law being applied against an attorney who allegedly made a self advertisement? The relevant Sections of the Bar Association Act are the following:

Safeguarding the Integrity of the Profession

 

53. An attorney must safeguard the integrity of the profession and refrain from any act that harms its integrity.

Prohibition against Advertising

 

55. An attorney may not advertise his services as an attorney. The cases and methods in which an attorney may or is required to identify himself and his profession will be explained in the rules.

Disciplinary Infractions

 

61.          The following are disciplinary infractions:

(1)          Violating any one of the instructions in Sections 53 – 60 or another rule obligating or prohibiting an attorney with regards to his profession;

(2)          Violating a rule of professional ethics established in Section 109;

(3)          Any act or omission that is not befitting the legal profession.

Rule 15 of the 5726/1966 Rules of the Bar Association (Professional Ethics) which was in effect during the time of the two disciplinary hearings at issue state:

Prohibited Actions

 

15.          An attorney may not initiate, willingly participate or consent to any of the following actions:

(1)          Those whose goal is to advertise one’s services as an attorney;

(2)          Those which cause unfair competition with colleagues or obtaining clients in a way which is not befitting the profession.

Rule 16 adds other activities which are considered prohibited advertising. I will not go into detail explaining the nature and purpose of Rule 15, which has since been abolished

 

(however, Section 55 is still valid and has not been amended). For the purposes of background information regarding professional ethics, I quote the following:

The argument… amounts to basically this: advertising is undignified and ‘commercial;’ it is also unworthy in that it suggests that one professional man is better than another which, though true, is insulting to one’s learned and honourable friends; moreover, the claim to specialist abilities may be either wholly false, or else misleading in that there may be others even more expert; self-advertisement provides no safe basis upon which a client may choose his  professional  adviser. The  best  and  only desirable  basis  is  personal recommendation or at least knowledge that the adviser is properly qualified.

M. ZANDER, LAWYERS AND THE PUBLIC INTEREST: A STUDY IN RESTRICTIVE PRACTICES 209 (London, 1968).

In England, two Commissions were established in recent years to research the issue of advertising: The 1976 Monopolies and Mergers Commission and the 1978 Royal Commission on Legal Services (the Benson Commission). The first Commission concluded that the rule against advertising has caused some harm as it prevents the public from obtaining information and minimizes competition, efficiency and the incentive to produce good work. It determined that because of the rule, there were fewer opportunities for attorneys to obtain work and it was harder for people to find an attorney when the only method of doing so was word of mouth. It therefore recommended that advertising be permitted so long as it is not misleading, does not make comparisons to other attorneys and does not give the profession a bad name.

Additionally, the Benson Commission recommended that advertising be permitted and noted that advertising “is inherent in any free or mixed economy and helps the consumer to exercise choice in such economies.” The recommendations of the Commissions caused the rule against advertising to be somewhat lifted. J.A. Attanasio, Lawyer Advertising in England and the United States, 32 AM. J. COMP. L. 493, 495 – 502 (1984).

 

In the United States, the question of advertising was analyzed under the first amendment. Justice Blackmun of the U.S. Supreme Court determined that attorneys acting together in order to provide services at lower prices may advertise such services because such advertisements serve the public’s interest of arriving at a well informed decision. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2961 (1977). He even quoted the decision of the English Monopolies and Mergers Commission which also supported attorney advertisements.

17.          For obvious reasons, I am not going to adjudicate the substance of the two  cases involving the alleged advertising by the attorneys standing trial. The first question in this case is, whether the reporters’ sources are relevant to the disciplinary trial of the attorneys. The answer to this question is yes, because we cannot deny the logical connection between the question of whether there was a prohibited advertisement and determining whether the attorneys in question provided the information for the article.

The second and more [important] question is whether the circumstances of the case are such that freedom of the press must be curbed because of the need to do justice in a significant matter. With all due respect to the legitimate efforts of the Bar Association to take disciplinary action, I am not convinced that this is an issue which can override reporter’s privilege. This case does not allege a felony or even a serious misdemeanor carrying significant consequences, nor does it involve an infringement of public order. The procedure in this case cannot tip the scales against reporter’s privilege which is essential for maintaining freedom of the press and is derived from the principle of free speech. There is, therefore, no need to analyze the third prong which is whether the information is essential to the case.

As Justice Musmanno wrote in In re Mack, 386 Pa. 251, 126 A.2d 679 (1956), I would like to again state that denying reporter’s privilege causes people to refrain from providing

 

information, which in turn prevents information from being made public. Journalism without sources is like a dried up river and freedom of the press becomes pointless.

18.          Thus, I have decided to accept the position of the Appellants and overturn the fine. Given the circumstances of the case, it is appropriate that the Disciplinary Court recognize reporter’s privilege and that the two Appellants be permitted to refuse to answer questions regarding their sources of information.

 

 

Decided today, 8 Nissan 5747 (April 7, 1987).

H.C.J  73/53

H.C.J  87/53

 

"KOL HA'AM" COMPANY LIMITED

v.

MINISTER OF THE INTERIOR

H.C.J 73/53

 

 

"AL-ITTIHAD" NEWSPAPER

v.

MINISTER OF THE INTERIOR

H.C.J 87/53

 

 

In the Supreme Court sitting as the High Court of Justice.

[October 16, 1953]

Before: Agranat J., Sussman J., and Landau J.

 

 

 

Newspaper - Press Ordinance, s. 19(2) (a) - Suspension of newspaper by Minister of Interior - Probability that publication danger to public peace -  Freedom of expression.

 

            Two communist newspapers, respectively owned by the petitioners, published articles containing material which, in the opinion of the Minister of the Interior, was likely to endanger the public peace, and acting under s. 19(2) (a) of the Press Ordinance1) the Minister suspended both the newspapers for periods of ten and fifteen days respectively. On the return to orders nisi calling upon the Minister to show cause why the orders of suspension should not be set aside,

           

            Held : In exercising his power of suspension under s. 19(2) (a) of the Press Ordinance, the guiding principle is that the Minister must consider whether it is probable that as a consequence of the publication a danger to the public peace has been disclosed. A mere tendency to endanger the public peace will not suffice to fulfil that requirement Even if he is satisfied that the public peace is likely to be endangered by the publication, the Minister must nevertheless consider whether that danger is so grave as to justify the use of so drastic a power as suspension of a newspaper. Although the court will not interfere with the discretion of the Minister when properly exercised, the Minister in this case had not considered the probability of the public peace being endangered, but had acted in the belief that a mere tendency in this direction was sufficient.

           

            In the circumstances the orders of suspension had been wrongly issued and should be set aside.

 

Israel cases referred to:

(1)        Cr. A. 95, 99/51; Podamski and Others v. Attorney-General; (1952), 6 P.D. 341.

(2)        Cr. A. 24/50; Gorali v. Attorney-General; (1951), 5 P.D. 1145 .

(3)   H.C. 10/48; Zeev v. Gubernik, District Commissioner, Urban District of Tell Aviv and Another; (1948), 1 P.D. 85.

 

English cases referred to:

(4)        R. v. Secretary of State for Home Affairs, ex parte O'Brien (1923) 2 K.B. 361.

(5)        R. v. Cuthell, (1799), 27 How. St. Tr. 642.

(6)        Ronnfeldt v. Phillips, (1918), 35 T.L.R. 46.

(7)        Attorney-General v. De Keyser's Royal Hotel, Limited (1920) A.C. 508.

(8)        John Drakard's Trial : (1811), 31 How St. Tr. 495.

(9)        Leigh Hunt's Trial : (1811), 31 How St. Tr. 367.

(10)      R. v. Muir, (1793) 23 How. St. Tr. 117.

(11)      Wilkes v. Wood, (1763), 19 How. St. Tr. 1167.

 

American cases referred to:

(12)      Abrams et al. v. United States, (1919), 40 S. Ct. Rep. 17.

(13)      United States v. Associated Press, 52 Federal Supplement 362 (S.D.N.Y. 1943).

(14)      Whitney v. People of the State of California, (1926) 47 S.Ct. Rep. 641.

(15)      Schenck v. United States, Baer v. Same; (1918), 39 S.Ct. Rep. 247.

(16) Schaefer v. United States, Vogel v. Same, Werner v. Same, Darkow v. Same, Lemke v. Same; (1919), 40 S.Ct. Rep. 259.

(17)      Dennis et al. v. United States; (1951), 71 S. Ct. Rep. 857.

(18)      Cantwell et al. v. State of Connecticut; (1939) 60 S.Ct. Rep. 900.

(19)      Near v. State of Minnesota ex. rel. Olson Co. Atty.; (1930) 51 S. Ct. Rep. 625.

(20)      Gitlow v. People of the State of New York; (1924), 45 S. Ct. Rep. 625.

 

Weitzner for the petitioner Kol Ha'am Company Limited.

Nakkara for the petitioner Al-Ittihad.

H. H. Cohn, Attorney-General, for the respondent.

 

AGRANAT J., giving the judgment of the court.

            Section 19(2) (a) of the Press Ordinance, as amended, provides as follows :-

           

            ''(2) The High Commissioner either with or without having caused the proprietor or editor of a newspaper to be warned under subsection (1) hereof, may

    (a) if any matter appearing in a newspaper is, in the opinion of the High Commissioner in Council, likely to endanger the public peace,

            ………………………………….

by order in council suspend the publication of the newspaper for such period as he may think fit and shall state in the said order the period of such suspension."

 

The Minister of the Interior now takes the place of the High Commissioner.

 

            Relying on the provision I have cited the respondent, on May 22, 1953, ordered the suspension of the publication of the newspaper "Kol Ha'am" (which belongs to the petitioner in file No. H.C. 73/53) for a period of ten days, and, on April 14, 1953, ordered the suspension of the publication of the newspaper "Al-Ittihad" (the petitioner in file No. H.C. 87/53) for a period of 15 days. The immediate reason that led the Minister of Interior to make the orders for suspending the publication of the aforementioned newspapers was the printing in each one of them of a leading article, namely in "Kol Ha'am" on March 18, 1953, under the title "Let Abba Eban Go and Fight Alone..." and in "Al-Ittihad" on March 20, under the title "The People will not Permit Speculation in the Blood of its Sons". The ground for the criticism that was voiced in both of the articles was a news item published in the newspaper "Ha-aretz" on March 9, 1953, in these words :

           

            "Mr. Henry Morgenthau stated that Georgei Malenkov was obviously worse than Stalin, and when the fatal hour came, Israel would place 200,000 soldiers at the side of the United States.

 

            "Israel's Ambassador, Mr. Abba Eban, expressed his agreement with Mr. Henry Morgenthau's statement that Israel could place 200,000 soldiers at the side of the United States in the event of war, and added that Mr. Morgenthau did not sufficiently appreciate Israel's recruiting capacity".

           

            The authors of the two articles regarded this news item as a typical sign of the "anti-Soviet policy" of the Government of Israel, as at present constituted, that is to say, of the policy of readiness "to fight at the side of the United States in the event of war against the Soviet Union"; and each of them warned against this policy in the manner described below. Copies of the full contents of the said articles are appended as a supplement to this judgment, and we shall therefore confine ourselves at this point to quoting certain passages in order to learn, on the one hand, in what form the authors voiced their protest against the matters contained in the news item published in Ha'aretz" and in order to ascertain, on the other hand, the attitude of the Minister of the Interior, who was of the opinion that each of the two articles contained material likely to endanger the public peace.

 

            The article in "Kol Ha'am" concludes with these three paragraphs:

           

            "Despite the anti-Soviet incitement, the masses in Israel know that the Soviet Union is faithful to the policy of the brotherhood of peoples and peace. The speeches of Comrades Malenkov, Beria and Molotov have once more confirmed that. If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the 'Middle East Command'.

           

            "Let us increase our struggle against the anti-national policy of the Ben-Gurion Government, which is speculating in the blood of Israel youth.

           

            "Let us increase our struggle for the peace and independence of Israel".

           

            In the course of the evidence he gave on behalf of the respondent, Mr. Moyal (the Director General of the Ministry of the Interior) declared, that it was mainly the second paragraph that constituted the basis for the Minister of the Interior's decision concerning the suspension of the publication of the newspaper "Kol Ha'am". The article in the newspaper "Al-Ittihad" concluded (according to the translation from the Arabic original) with the following two paragraphs :

           

            "And so all forms of surrender by the Ben Gurion Government, and all her demonstrations of faithfulness, will not avail her with her American masters; moreover, her economic, political and state bankruptcy, internal and external, are beginning to be revealed to the masses, who have started to understand whither this Government is dragging them - not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine, whilst those masses do not want that fate and will demonstrate their refusal.

 

            "If Ben-Gurion and Abba Eban want to fight and die in the service of their masters, let them go and fight by themselves. The masses want bread, work, independence and peace, will increase their struggle             for those objectives, and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons in order to satisfy the will of their masters."

 

            In the body of the order that was issued for the suspension of that newspaper, the ground given - and repeated by Mr. Moyal in his evidence before us - was that, essentially, it was the matter contained in the first paragraph that moved the Minister of the Interior to order the temporary suspension of the newspaper in the Arabic language.

           

            For the sake of completeness, it should be noted that, on March 23, 1953, the Prime Minister announced in the Knesset, in reply to a question that had been put to him, that the news item published in the newspaper "Ha'aretz" was a "piece of journalistic imagination", and that all that the Israel Ambassador had declared on the occasion in question was:

           

"The Governments of the free world are well aware of the declared purpose of Israel to defend its borders and its form of government against revolution and attack" ("Divrei Haknesset", Second Session, Issue No. 19, p. 1096).

 

            From time to time, a case reaches this court which raises some fundamental problem, demanding the reconsideration of ancient and well-worn principles. The two cases in question here belong to that group, and we are called upon to define the relationship that exists between the right to freedom of the press on the one hand, and on the other, the power held by the authorities, by virtue of the said section 19 (2) (a), to place a limit on the use of that right. We regard the freedom of the press as one specific form of the freedom of expression, and we shall not hereafter, for the purpose of our judgment, distinguish between two concepts.

           

A. The principle of freedom of expression is closely bound up with the democratic process. In an autocratic regime, the ruler is looked upon as a superman and as one who knows, therefore, what is good and what is bad for his subjects. Accordingly, it is forbidden openly to criticise the political acts of the ruler, and whoever desires to draw his attention to some mistake he has made has to do so by way of direct application to him, always showing an attitude of respect towards him. Meanwhile, whether the ruler has erred or not, no one is permitted to voice any criticism of him in public, since that is liable to injure his right to demand obedience. The historian of the criminal law in England teaches us that, in the light of that approach until the end of the 18th century, every act of criticism in writing of persons performing public functions in England, concerning their conduct in such capacity, or of the laws and institutions of that State, was regarded as falling within the scope of the offence of "sedition" (Stephen, Criminal Law, Volume II, p. 348). On the other hand, in a state with a democratic regime - that is, government by the "will of the people" - the "rulers" are looked upon as agents and representatives of the people who elected them, and the latter are entitled, therefore, at any time, to scrutinize their political acts, whether with the object of correcting those acts and making new arrangements in the state, or with the object of bringing about the immediate dismissal of the "rulers", or their replacement as a result of elections.

 

            This simple understanding of the democratic regime inevitably leads, therefore, to the enforcement of the principle of freedom of expression in every state where such a form of government exists; that is to say, that it embraces a logical justification for the application of that principle. But anyone who confines himself to that notion alone and pursues it to its logical extreme must, whether he likes it or not, come to the conclusion, as Stephen notes (ibid., p. 300), that in accordance therewith, there remains in fact no possibility of imposing any prohibition on any criticism of the government in power, except perhaps to prohibit incitement calculated to result in the immediate injury to the life, limb or property of another. In other words, such a definition of the character of the democratic regime does not provide us with any serious contribution to the solution of the problem with which we are faced - a problem which is fundamentally one of placing proper limits - having regard to the general good and the interests of the state - on the wrongful exploitation by the individual citizen of the right of freedom of expression. So, in order to find such a solution, we must first of all consider the values involved in the exercise of that important right. It is important that we should previously acquaint ourselves with the interests that that right is designed to protect. But, for that purpose, we must necessarily arrive at a deeper understanding of the nature of the democratic regime than that which we described above.

           

            Democracy consists, first and foremost, of government by consent, the opposite of government maintained by the power of the mailed fist; and the democratic process, therefore, is one of selection of the common aims of the people and the means of achieving them, through the public form of negotiation and discussion, that is to say, by open debate and the free exchange of ideas on matters of public interest (see Reflections on Government, by E. Barker, p. 36). "Public opinion" plays a vital part in that discussion, carried on through the political institutions of the state, such as parties, general elections and debates in the legislature - and it plays that part not only when the citizen goes to the polls, but at all times and in all seasons. To the sensible statesman, it is evident - as that learned author, Lindsay, explains (see his book, The Modern Democratic State, Volume 1, p. 270) - that he must take public opinion into account from day to day, since it is the ordinary citizen who feels it when statutes are incompatible with his needs; he is the one who knows whether "the shoe pinches" too much, and where it pinches. "The public, it is true, is not acquainted with details", notes Prof. Roth, in Chapter I, "Government of the People by the People" (p. 19). "He only knows, for example, that war disturbs him or that the price of essential commodities is greater than his financial capacity. A very important part of the tasks of democracy is to make it possible for those feelings to come out into the open and be solved in a legal way fixed in advance, and the feelings are plain enough even to the ordinary man, even though he is not expert in the scientific analysis of the causes and their solution. 'A man's heart feels the bitterness of his own soul'; and if the ordinary man does not know how to put things right, he certainly knows what it is that needs putting right." There exists, in fact, not only the perpetual process of clarification of public opinion, but also its shaping. There is considerable educational value for the ordinary citizen in that system of public discussion and general negotiation. By following, to a greater or lesser extent, in the press the speeches and debates conducted in the legislature, for example, he learns what he needs and is thus assisted in determining his attitude (Roth, ibid., p. 39).

 

            Basically, the whole of the aforementioned process is none other than a process of investigating the truth, in order that the state may learn how to reach the most satisfactory objective and know how to select the line of action most calculated to bring about the achievement of that objective in the most efficient manner. Now, the principle of freedom of expression serves as a means and an instrument for the purpose of investigating that truth, since only by considering 'all' points of view and a free exchange of 'all' opinions is that 'truth' likely to be arrived at. In his famous judgment in the case of Abrams v. U.S., (12), Justice Holmes said:

           

"But when men have realized that time has upset many fighting faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be safely carried out."

           

            Another American judge expressed a similar idea when he noted that freedom of expression is founded on the assumption that "right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection" (from the observations of Learned Hand J. in the case of U.S. v. Associated Press, (13)).

 

            Even if that last view seems too extreme, it is at least true that the process of "free discussion" is more likely to serve as "a better ally of truth than of falsehood" (see article, "Freedom of Expression," in Harvard Law Review, Vol. 65, pp. 1, 2; and this approach is of importance and of great value not only for the purpose of investigating questions arising in the political sphere, to which the subject dealt with in both of the articles above mentioned belongs, but also of the problems calling for solution in every other sphere of life in which there exists a need for a free choice between different and opposing views.

           

            Finally, we have hitherto considered the social interest which the principle of the freedom of expression is designed to protect, when we come to search for the truth. Whereas the importance of the principle also lies in the security that it gives to the most thoroughly private interest, namely, the interest of every man, as such, in giving expression to his personal characteristics and capabilities; to nurture and develop his ego to the fullest extent possible; to express his opinion on every subject that he regards as vital to him; in short, to state his mind, in order that life may appear to him to be worthwhile (see Barker, ibid., pp. 14-19; also, Laski, Grammar of Politics, pp. 102, 143, 144). In fact viewed from the object of maintaining this special interest, the right to freedom of expression serves not only as a means and instrument, but also as an aim in itself, seeing that the internal need that everyone feels to give open expression to his thoughts is one of the fundamental characteristics of man. Furthermore, although we have attached the epithet "private" to the latter interest, in point of fact, the state too has an interest in preserving it, since as Justice Brandeis once observed, in the case of Whitney v. California (14), "the final end, inter alia, of the state was to make men free to develop their faculties." Accordingly, even if someone makes a remark of no direct value for society or the state, the specific observation may be important from the point of view of the aim of ensuring independent expression.

           

B. If we have dealt at some length on the values that are the object of the right to freedom of expression, we have done so only in order to emphasize the decisive importance of that superior right which, together with the similar right to freedom of conscience, constitutes the pre-requisite to the realisation of almost all the other freedoms. "Give me the liberty", wrote the poet Milton, in 1644, in his famous pamphlet in favour of freedom of expression, "to know, to utter, and to argue freely according to conscience, above all liberties."

 

            Nearly two centuries later, the philosopher, J. S. Mill, also exclaimed: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he if he had the power. would be justified in silencing man kind". ("On Liberty" Chapter 2). In our age, Scrutton L. J. held : "You really believe in freedom of speech, if you are willing to allow it to men whose opinions seem to you wrong and even dangerous" (Ex parte O'Brien, (4)). Therefore, whatever may be the difference in the value of different statements people make, the supreme value contained in freedom of expression remains permanent and unalterable.

 

C. Nevertheless, the right to freedom of expression does not mean that a person is entitled to proclaim, by word of mouth or in writing, in the ears and eyes of others, whatever he feels like saying. There is a difference between freedom and licence. In Podamski v. Attorney-General (1), we explained that, side by side with the rights to freedom (and that, in effect, is their legal significance), there are restrictions imposed by the law, and we demonstrated this idea as follows: "Everyone has the right to freedom of speech and freedom of expression, but the use of that right is subject to the restriction of the law" (ibid., p. 355); and in Gorali v. Attorney-General (2), we stated: "The object of the local criminal law in making the uttering of slander and the publishing of libel offences is to restrict that fundamental right whenever a person abuses it" (p. 1160). That is to say, that just as the right to freedom of action in other fields does not extend to the use of a man's profession, business or property in a manner injurious to others, so also the right to freedom of speech and the press does not entail the abuse of the power of the tongue or the pen. "The liberty of the press is dear to England", Lord Kenyon once said, in R. v. Cuthell (5), "The licentiousness of the press is odious to England". That is to say, that certain interests also require protection and for the sake of these it is essential to place clear limits on the right to freedom of expression. One interest of this kind was previously hinted at: the need for protecting the good name of the citizen (Criminal Code Ordinance, 1936, sections 201 and 202). Other kinds of interests requiring the raising of a barrier against the effect of statements by word of mouth and written publications are: the securing of a fair trial and the doing of justice to parties before the courts (ibid., sections 126 and 127), the prevention of outrage to religious feelings (ibid., section 149) and the prohibition of obscene publications which offend against moral values (ibid., section 179). We do not intend to exhaust the list of those interests, and we shall mention only the most important of them, namely, the interest included under the heading, "state security". Here we are concerned indeed with a composite and broad concept, but generally speaking, it may be said that it refers to all that is involved in avoiding the danger of invasion by the enemy from without; in suppressing any attempt at the forcible overthrow of the existing regime by hostile factors from within; in maintaining public order and securing the public peace. It is quite obvious that the object of reinforcing state security, too, requires some limit to the freedom of expression on certain terms, for were that not so, a situation might be created in which the state would be unable to achieve its aim or to conduct its affairs in a proper manner; everyone would be deprived of his freedom, including the freedom of speech and the press, and instead of freedom of liberty, anarchy and chaos would reign in the state.

 

D. The upshot of all this is that the right to freedom of expression is not an absolute and unlimited right, but a relative right, subject to restriction and control in the light of the object of maintaining important interests of the state and society, which are regarded, in certain conditions, as taking precedence over those secured by the principle of freedom of expression. In order to set limits on the use of the right to freedom of speech and the press, we weigh various competing interests in the balance and, after reflection, select those which, in the circumstances, predominate. We observed such a process in Gorali v. Attorney-General (2). We stressed there, that notwithstanding that the law imposes a prohibition on the publishing of statements of a defamatory nature against another person, it also recognises that "in certain circumstances and in certain conditions, the general good requires - in order that the fundamental right (of freedom of expression) ...shall not become an empty phrase - that a person shall not be punished for uttering statements containing abuse, since the injury caused to the public from excessive restriction of the freedom of speech and the freedom of writing is graver in the eyes of the law than the causing of any private damage." In fact, the tests that the law lays down for preferring the social interest, one of the foundations of which is the principle of freedom of expression, to the private damage caused on account of the uttering of words of abuse about another are, relatively speaking, clear and defined; for those tests are the several defences set out in sections 205 and 207 of the Criminal Code Ordinance, 19361). But in speaking of the "balancing" of the interests involved in maintaining state security on the one hand, and preserving the principle of freedom of expression on the other, this process of weighing up competing interests becomes more complicated.

           

            The complication arises in the main from the phenomenon that, here, there exist two competing kinds of interest, each one of which possesses a politico-social importance of the first order. While the vital importance of the aim of maintaining public security is self-apparent, it has also been demonstrated that the high value of the principle of ensuring free discussion and the investigation of truth constitutes a function of politico-social progress in every state which calls itself a democracy. It is true that today all are agreed that, in moments of supreme urgency - when, for example, the state is at war or is undergoing a grave national crisis - greater weight (according to the particular circumstances of each case) will be given to state security. Scrutton L. J. once more gave extreme but apt expression to this idea, when he stated, in the case of Ronnfeldt v. Phillips (6), that "A war could not be carried on according to the principles of Magna Carta." Justices Holmes and Brandeis, too, at the time when they were labouring to establish the standard principles underlying the rule of freedom of expression in the case-law of the United States, agreed that:

 

"When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right" (from the observations of Justice Holmes, in the case of Schenck v. U.S., (15)); "Only an emergency can justify repression (of the freedom of expression). Such must be the rule if authority is to be reconciled with freedom." (from the observations of Justice Brandeis, in the case of Whitney (14).)

 

            Indeed, the concern for preserving the security of the state in time of emergency is so liable to becloud all other considerations, that the authorities will be inclined, by dint of that concern, to prohibit or punish the making of statements or their written publication even at a time when they constitute no danger to the peace of the state or the nation. "Experience... must have taught us all", said Lord Sumner, in the De Keyser Case, (7), "that many things are done in the name of the Executive in such times purporting to be for the common good, which Englishmen have been too patriotic to control." The author of the article on freedom of expression in the Encyclopaedia of Social Science (Volume 6-7, p. 455) touched on this question in a more specific manner, when he stated:

           

            "The problem lies in framing these limits as ultimate safeguards (for the freedom of expression) because of the tendency of legislators and judges, especially in times of stress, to regard ideas of which they disapprove as dangerous to the public welfare."

           

            It was not without reason, therefore, that Justice Brandeis also warned, in the case of Schaefer v. U.S., (16), of the necessity for judging "in calmness" the question of the danger comprised in the publications.

           

            Finally, the same concern for preserving the security of the state is liable to have an injurious effect on the right to freedom of expression equally by reason of the mistaken approach that it protects only the individual interest of the citizen, wherefore that interest ought, as it were, to be disregarded whenever it comes into conflict with the social interest embodied in the security of the state. In this way, the authorities are liable unwittingly to overlook the great social value which the principle of freedom of expression adds to the efficacy of the democratic process, and they are liable to do so where the expected damage that the publication is likely to cause to the state is not so great as to justify doing away with the right. In his important book, Freedom of Speech in the U.S.A., Professor Chafee severely criticises the Federal Courts in the United States for being led away into such error when interpreting the Espionage Act during the First World War (loc. cit., 1942 edition, p. 34). Even such an experienced expert as Sir William Haley, the director of the British Broadcasting Corporation, expostulated in 1950 against the danger involved in not paying proper attention to the value of the principle I have mentioned. On the assumption that "We have to face up to the fact that there are powerful forces in the world today misusing the privileges of liberty in order to destroy it", he warned that, nevertheless, "it would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion and so brought us down to their own level." (These observations are quoted in Justice Frankfurter's judgment in the case of Dennis v. U.S. (17).)

           

E. So far, we have dealt with the problem in a general way, and have established that the solution must come by weighing the interests of state security on the one hand against freedom of expression on the other; that the great social value of the principle which protects the latter interests is worthy of particular attention; and that preferring that former interest is justifiable only when the situation definitely calls for it. It is clear that this approach by itself does not amount to a mathematical formula which can be accurately adapted to every single occasion. The legislator does, in point of fact, sometimes do the work of weighing and balancing by himself, that is, he himself determines in advance the kind of material that is not to be published, or the terms on which its publication is to prohibited by considerations based on state security. This he did, for example, in the Official Secrets Ordinance. But sometimes the legislator leaves the discretion in this field in the hands of others, such as the Executive. In the last group of cases, the question must inevitably arise (particularly because that approach does embody a concise, narrow formula), as to what is the rational principle that ought to guide the Executive when engaged in the aforementioned process, in order to settle the question in favour of one or other of the two interests. If we consider this latest question in the light of section 19(2)(a) of the Press Ordinance, as we propose now to do, and if we bear in mind the interest of "public peace" instead of "state security", then it would be right to state the question in this form: what is the test which the Minister of the Interior should apply when he comes to decide whether the material that has been published is "likely to endanger the public peace" to the degree which justifies the suspension for a certain time of the newspaper in which it has been published ? In fact, the moment we are successful in finding a definition suitable to the expression, "endangers the public peace", the question will become confined to the interpretation we ought to give to the term "likely".

 

            So what do we mean by "endangers the public peace"? Once more we are dealing with a broad and complex notion. In the case of Cantwell v. Connecticut (18). Justice Roberts (of the Supreme Court of the United States), considered the offence of "breach of the peace", as understood in the common law, and after noting that it embodies "a concept of the most general and undefined nature", added: "The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts and words likely to produce violence in others." It may well be that, in fact, the offence of "breach of the peace", as so understood, was what was in the mind of the legislator when he limited the use of the power mentioned in section 19(2) in the way he did. We do not propose to lay down any hard and fast rules in this respect, nor shall we try to mark the outer limits of the concept, "endangers the public peace", but for the purpose of the present discussion, it will be sufficient to hold that any publication leading to the use of violence by others, to the overthrow by force of the government in power or of the existing regime, to the breach of the law, to the causing of riots or fighting in public or to the disturbance of order, endangers the public peace.

           

            But section 19(2)(a) says, "likely to endanger". What is the purport of the term "likely". The answer to that question depends on the choice of one of two possible approaches. According to one approach it is sufficient, in order to satisfy the condition stated in the section in question that the publication reveals only a tendency - even a slight or remote tendency - in the direction of one of the consequences that we included in the notion, "endangers the public peace"; while according to the other approach, the Minister of Interior must be convinced beforehand that there has been created, having regard to the circumstances in which it takes place, a link between the publication and the possibility of one of the said consequences occurring, which must lead to the inference that the occurrence of that consequence is probable. We think that the second approach represents the intention of the legislator in section 19(2)(a).

 

            First, there is no doubt that the other approach - the one which takes the view that the suspension of a newspaper is justifiable, simply because it may disclose a tendency to endanger the public peace - originates in the way of thinking that created the offence of incitement to rebellion in the old common law. It will be recalled that, according to that definition, all criticism directed against the members of the Government concerning their conduct in that capacity, against the laws themselves and against the institutions established under those laws, was forbidden. The directions given by an English judge to the jury in 1811 in the case of John Drakard's Trial (8), who was convicted of the offence of incitement to rebellion only because he printed an article in which the writer roundly criticised the practice of flogging soldiers, in use at that time in the British Army for disciplinary purposes, testify to the complete identity between the mode of thought in which that definition is grounded and the view of "a mere tendency". In those directions Baron Wood stated thus :

           

"... You will consider whether (the article) contains a fair discussion - whether it has not a manifest tendency to create disaffection in the country and prevent men enlisting into the army - whether it does not tend to induce the soldier to desert from the service of his country. And what considerations can be more awful than these...?

 

"...The House of Parliament is the proper place for the discussion of subjects of this nature ...It is said that we have a right to discuss the acts of our legislature. That would be a large permission indeed. Is there, gentlemen, to be a power in the people to counteract the acts of the parliament, and is the libeller to come and make the people dissatisfied with the government under which he lives? This is not to be permitted to any man - it is unconstitutional and seditious."

 

            In the trial that took place against the writer of that article. (Leigh Hunt's Trial (9) - who, as it so happens, was acquitted Lord Ellenborough directed the jury on the law in a similar vein:

           

            "Can you conceive that the exhibition of the words "One thousand Lashes", with strokes underneath to attract attention, could be for any other purpose than to excite disaffection? Could it have any tendency than that of preventing men from entering the army?"

 

(Those two passages are taken from the above mentioned book by Chafee (pp. 25 and 26), who quoted them from the collection of judgments known as Howell's State Trials, Vol. 31, pp. 367, 495).

 

            In the Scottish case of R. v. Muir (10), in which in the year 1793 a man by the name of Muir was prosecuted, once again for incitement to rebellion, for advocating, in pamphlets and articles that he had disseminated, parliamentary reform which was designed to abolish the system of elections through "rotten boroughs" that was practised at that time in Britain, the following direction was given to the jury.

           

            "As Mr. Muir has brought many witnesses to prove his general good behaviour, and his recommending peaceable measures and petitions to parliament, it is your business to judge how far this should operate in his favour, in opposition to the evidence on the other side. Mr. Muir might have known that no attention could be paid to such a rabble. What right had they to representation?.. The tendency of such conduct was certainly to promote a spirit of revolt, and if what was demanded should be refused to take it by force."

 

(Quoted from Howell's State Trials, Vol. 23, p. 229, by Professor Sutherland, in his article published in the Cornell Law Quarterly, Vol. 34, pp. 303, 314).

 

            It is easy to discern that this approach of "a bad tendency" means - as Stephen once commented in his analysis of the offence of incitement to rebellion in its original form - a refusal of the right of serious political discussion ("History of the Criminal Law in England", Volume II, p. 359). "And the most powerful weapon in their hands (i.e., of those who oppose freedom of the press)", Professor Chafee once stressed, "is this doctrine of indirect causation, under which words can be punished for a supposed bad tendency long before there is any probability that they will break out into unlawful acts." (See the book above mentioned, p. 24).

           

            To sum up: The approach of "a bad tendency" is perhaps suitable to a political system employed in a state based on an autocratic or totalitarian regime, but it obstructs, or at least renders inefficient, the use of that process which constitutes the very essence of any democratic regime, namely, the process of investigating the truth.

           

            The system of laws under which the political institutions in Israel have been established and function are witness to the first that this is indeed a state founded on democracy. Moreover, the matters set forth in the Declaration of Independence, especially as regards the basing of the State "on the foundations of freedom" and the securing of freedom of conscience, mean that Israel is a freedom-loving State. It is true that the Declaration "does not consist of any constitutional law laying down in first any rule regarding the maintaining or repeal of any ordinances or laws" (Zeev. v. Gubernik (3)), but insofar as it "expresses the vision of the people and its faith" (ibid.), we are bound to pay attention to the matters set forth in it when we come to interpret and give meaning to the laws of the State, including the provisions of a law made in the time of the Mandate and adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948;1 for it is a well-known axiom that the law of a people must be studied in the light of its national way of life. Thus, here we have a first sign indicating that we must interpret the term "likely", when we read it together with the other matters stated in section 19(2)(a), in the sense of "probability" rather than in the spirit of the view which favours the doctrine of the "bad tendency" and "indirect causation".

           

            As for the second sign, which goes hand-in-hand with the first: the procedural means available for suppressing or restricting the freedom of the press are of two kinds. One measure is to punish the objectionable publication after it has taken place. The other measure is preventive, that is, by way of taking steps directed to obstructing the publication of the improper material in advance or to prevent the continued appearance of the newspaper in which that material has been published. In the last instance, too, which is the present case, we are concerned with a preventive measure, which bears no criminal character in the regularly understood sense, seeing that its primary and immediate purpose is to secure the non-publication of the newspaper, because it is likely to contain similar improper: material in the future.

           

            Indeed, it has long been recognised that that same "preventive" measure - which is, after all is said and done, nothing more than censorship, pure and simple - is the most powerful of the two measures that have been mentioned. "The censor", says Chafee, "is the most dangerous of all the enemies of the liberty of the press, and ought not to exist in this country unless made necessary by extraordinary perils." The history of many peoples, and of the people of Israel first and foremost, is full of examples without number, of men who have dared and ventured, without being deterred by the fear of punishment, to publish what their conscience dictated, notwithstanding its prohibition on the part of the ruling authorities. However, it is clear that such display of courage has never been, nor is it today, any sufficient guarantee against the effective stay, by preventive measures, of disseminating views or thoughts that are entirely novel. What endows the use of a measure of the preventive kind with its powerful and drastic character is the general acknowledgement, "that no official yet born on this earth is wise enough or generous enough to separate good ideas from bad ideas, good beliefs from bad beliefs" (ibid., p. 61). Accordingly, even during the period in which the rule of incitement to rebellion in its original form was still in force in England, the common law recognised the principle that the Executive ought to be slow in making use of measures preventing the publication of the forbidden material in advance, and that its sole alternative was the bringing of the offender to trial after the act for having disseminated the inflammatory remarks in public. Blackstone, at the end of the 18th century, put the rule in this way:

 

            "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity." (Commentaries, Volume 4, pp. 151, 152.)

 

            Only in two periods, in which England was engaged in wars of world-wide range, has the English legislator departed - on security grounds alone - from that important principle, and even then the authorities made use of their "suspensive" power in very rare instances (see Chafee, pp. 105-106, and Ridge's Constitutional Law, p. 386).

           

            The application of this limitation has been extended in the United States, in consequence of the guarantee of freedom of the press in the Federal Constitution, to the power to make laws, permitting staying or preventive measures. So, for example, the American Supreme Court, in the case of Near v. Minnesota (19), invalidated an Act enabling the authorities to obtain an injunction from the court, suspending a newspaper in which material insulting or defamatory of public officials in connection with the performance of their official duties has appeared. "The securing of the freedom of the press", said Chief Justice Hughes, "requires that it should be exempt not only from previous restraint by the Executive ...but from legislative restraint also" (loc. cit., p. 630), the reason being that putting such a power into the hands of the legislature means that "the Legislature may provide machinery for determining in the complete exercise of its discretion what are justifiable ends and restrain publication accordingly", and then "it would be but a step to a complete system of censorship" (ibid., p. 633). Finally, the American judge, too, recognised the non-application of that limitation in extraordinary instances, such as in time of War, when there exists a need for preventing the obstruction of recruiting for military service, the publication of the sailing dates of transports or the disclosure of the number and location of troops; and also, at all times, when we must defend ourselves against the publication of matters inciting to acts of violence or the overthrow by force of the lawful regime (ibid., p. 631).

 

            We have dealt at some length with this Anglo-American understanding of the use of preventive measures, because it vividly shows that, from the point of view of protecting the interest of freedom of expression, it is indeed the severest and most powerful means there is. If, for all that, the Israel legislator saw fit to leave the power defined in section 19(2)(a) unaltered, it means that it did so because of the state of emergency to which the State has been subjected ever since its establishment. But, on the other hand, and especially having regard to the drastic character of that power, one should not attribute to the Israel legislator an intention to authorise the body in charge of exercising that power, to order the suspension of a newspaper only because the matters published seem to it to disclose a mere tendency to endanger the public peace, although in fact there is no direct incitement or even any advocating at all of a line of conduct which in the circumstances seriously increases the likelihood of such a result. To attribute such intention is quite out of the question since, on the one hand, Israel is a State which, as we have seen, is based on the fundamentals of democracy and freedom; and on the other hand, the establishing of an abstract and undefined standard of "bad tendency" alone must of necessity open the way to the introduction of the private opinions of the person in whose hands that power is invested, however exalted that person's aims may be, in estimating the danger allegedly anticipated to the public peace in consequence of the publication in question. What Jefferson wrote 170 years ago is no less true today, namely that:

           

            "To suffer the civil Magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy ...because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own." (Chafee, ibid., p. 29.)

           

            It follows from what has been said, that there is in fact no choice but to interpret the term "likely" according to the notion of "probability", as distinct from a "bare tendency".

           

            The third support for the interpretation which we favour, follows from the dictionary definition of the original term, "likely". The Shorter Oxford Dictionary (Third Edition, Volume II, p. 1143), explains the fact term as follows:

           

"seeming as if it would happen ...probable ...giving promise of success ...come near to do or be..."

           

            The expression "probable" is explained in the same dictionary (ibid., Volume II, p. 1689) as:

 

            "...that may reasonably be expected to happen..."

           

            Are not those definitions to be regarded as clear evidence of the legislator's intention that the standard by which the Minister of Interior must exercise his discretion regarding the existence of the condition stated in section 19(2)(a) is once more the standard of "probability" : that be is bound to be satisfied, before ordering the suspension of any newspaper, that, having regard to the circumstances in which it is published, the publication of the material in question will logically create a likelihood of the occurrence of one of the consequences comprised in the notion, "danger to the public peace", in its aforementioned meaning. In other words: is it not to be understood from those definitions, that it is not absolute certainty with regard to the occurrence of the result that the legislator desired to prevent that constitutes the condition for applying the said power, but that, on the other hand, the disclosure of a bare tendency in that direction in the matter published is, in its turn, insufficient for that purpose; that, in fact, the standard in question is a kind of "golden mean" between the other two possibilities, namely, that it is probable that that is what will happen as a result of the improper publication?

           

F. It is desirable that we should further clarify the nature of the test of "probability" and the manner in which it should be employed.

           

            (1) When we established that it is better to prefer this test to the test of the "bad tendency", we were not referring to any slender or hairsplitting distinction, but to a clear, rational principle, namely, the principle that, on the one hand, does not disown the objective of preventing danger to the public peace, at which the legislator is aiming, and on the other hand, also secures that proper attention is paid to the supreme value of the public interest which is protected by the freedom of the press. As we have already hinted, everyone agrees that even the men in power, being only flesh and blood, are not free from error; nevertheless, they are inevitably entitled to assume that their views are right, when they come to perform any actions within the scope of the exercise of their official duties. Such an approach on their part would only be logical and practical. But that does not mean that it is right or proper that the people in power should make the same assumption only in order to suppress the opposing opinion of others. "There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation" (quoted from J. S. Mill in his book above referred to, Chapter 2; see also Chafee, ibid., p. 138).

 

            According to a similar way of thinking, it ought to be agreed that the aforesaid assumption (that their opinions are correct) may very well serve to supply the men in power with a justification for suppressing the acts - even where they are only acts of publication that are in question - of those seeking to enforce their views on the state by way of incitement to a change of policy by physical force, instead of by vote in the legislature and in calm elections, or, as it is usually put, by "breaking heads instead of counting them". As the former President of Harvard University wrote :- "The power to carry out its will under such conditions must to some extent be inherent in every government" (see Public Opinion and Public Government, by A. L. Lowell, p. 11). Whereas the sine qua non for applying the drastic power of suppressing the views of others, in such circumstances, is once again the conviction of the men in power that the matters published disclose something more than the expression of an opposing opinion and even something more than creating a tendency that might "endanger the public peace" : in short, that the matters embody not only the idea that is likely to create, in consequence of its advocacy, a remote possibility that it might indirectly cause one of the unfortunate results referred to above. It is true that from a narrow point of view, "every idea is an incitement", since "it offers itself for belief and if believed it is acted on unless some other belief outweighs it" (Justice Holmes, in the case of Gitlow v. N.Y. (20)): Whereas, only when the publication has left the framework of the mere explanation of an idea and takes on the form of advocacy, which, having regard to the circumstances, creates at least a proximate possibility of the commission of acts endangering the public peace, will there be room for the intervention of the authorities in order to suppress the publication or to prevent its recurrence in the future.

           

            If no exact definition is made of such a boundary between publications that merely consist of a disclosure of certain thoughts and publications that, in the circumstances surrounding them, may be regarded as of inflammatory content in its aforesaid meaning; if we are not continually on guard against the blurring of that dividing line - the vital value of the interest involved in the freedom of expression is likely to be completely eliminated. Indeed, that concrete and rational principle of "probability" as distinct from the abstract and undefined notion of "bad tendency" is calculated to secure to a great extent (if it be properly understood and resorted to) that, on the one hand, the suppression of the views of others will not occur only by reason of their being opposed to those held by the people in authority, and on the other hand, that the objective of preventing danger to public peace, at which the legislator was aiming, will be achieved.

 

            (2) It must indeed be admitted that even the test of "probability" does not constitute a precise formula that can be easily or certainly adapted to every single case. We mean by that, that when he makes his decision regarding the exercise of the power given him by section 19(2)(a), the Minister of Interior is not expected to forecast With absolute certainty that one of the consequences contained in the definition of "endangering the public peace" is bound to occur by reason of the act of publication in question, if he does nothing to prevent it. The most that is demanded of him is only an estimation that that is how things are likely to turn out, that is to say, an estimation that a proximate (and not necessarily a certain) result will follow if he does not make prompt use of his said powers. Now, the estimation means, as we have already suggested more than once in the course of our remarks, an estimation made according to the circumstances surrounding the act of publication. Just as the establishing of the real character of each act depends on the circumstances in which it is done, so the estimation of the nature of the matters published depends on the circumstances accompanying the publication. The standard by which the Minister of Interior must guide himself is, therefore, the standard of "the probable", according to what seems reasonable in the circumstances of the case That is, of course, in each case a question of degree. For example, if, at this time, a newspaper were to publish an article severely criticising the conduct of a certain battle in the War of Independence, it would not thereby create a ground justifying its suspension (assuming that it does not reveal any defence secrets); whereas, if it were to publish an article casting aspersions on the ability of a certain commanding officer, at a moment when the men under his command were about to go into battle, there would most certainly be room for making use of the power vested in the Minister.

           

            Sometimes the matters that are published are, from the point of view of the possibility of endangering the public peace, "colourless", or "innocent", but what lends them their dangerous character are the circumstances that existed at the time of their publication, as in the previous example. By way of further example, there is nothing objectionable in the use of the word "fire" in an article published in a newspaper in the course of describing a case in which a certain house had, on some previous day, gone up in flames. But even those who favour the most pedantic safeguarding of freedom of expression would regard it as unthinkable to extend it to a person who, knowing that there is no truth in it, shouts "fire" in a theatre full to the gallery, and in so doing causes a panic among the spectators (see the case of Schenck v. U.S. (15), p. 244). On the other hand, it may happen that the inflammatory content of the words published in itself creates the probability of danger to the public peace - that is, without any particular or extra reference to the circumstances in which the publication took place, as in the case in which an article that appeared in a newspaper advocated the breach of a law imposing a certain tax by those on whom the tax fell, saying that they should resist its collection by force.

 

            But even in the last example, the "circumstances" do also have some influence - for instance, that that newspaper has a wide circulation. So we perceive that the test to be applied always consists in some pre-estimation, according to the degree of logic, as to whether, as the result of the inter-action of publication and circumstances, a probability is created that the public peace will be adversely affected.

           

            (3) It is important to stress that the circumstances which the Minister of Interior is entitled to take into account are liable to be varied and of different nuances. For instance, he must consider not only the immediate external facts, that is, that a direct connection has been created between the circumstances and the publication, but also the general background, such as the state of emergency existing in the country at the time of publication or the tension prevailing in international relations at the moment. It is indeed obvious that, since life is continually in a state of development, there is no point in our trying to exhaust or classify the circumstances referred to or in our making hard-and-fast rules concerning the possible effect of one or other of these circumstances. As stated, that effect is liable to alter from case to case, and what is always of importance is the estimation of the combined effect of the circumstances in each individual instance. Nevertheless, it is worthwhile our adding - for the sake of guidance only, and without setting up any strict rules - the following observations:

           

            First, generally speaking, there will be no need to consider the bad intention of those responsible for the publication in question. For you have your choice: either the contents of the matters published are true, in which case, it makes no difference what the author or publisher had in mind; or they are untrue, in which case only the possible effect of the published matters themselves on the public peace is of importance, and not the disclosed intention of those who have caused their dissemination. True, this will not apply in every case, since in certain conditions, the intention formed in the mind of the author or publisher may be of great assistance in estimating the danger that will probably result from the publication. For example, where the matters published may be understood in different ways, the discovery of that intention is likely to throw light on the real meaning to be given them, on their dangerous character and on the objectionable purport lying behind them.

 

            Moreover, in certain circumstances and in certain conditions, it would not be out of place to take into consideration the strong tone, the offensive language and the emotional tinge in which the contents of the article or the piece of information published have been clothed. But we should not exaggerate this, since without being able to connect the form of the writing with other facts which might endanger the public peace, it would not be right to regard the form of language as a factor likely to affect the public peace; for if you hold otherwise, you are in fact disowning the principle which safeguards the freedom of expression and which recognises that discussion in the sphere of politics, at all events, cannot be restricted to polite criticism. As Chafee stated: "The greater the grievance the more likely men are to get excited about it, and the more urgent the need of hearing what they have to say" (loc. cit., p. 43).

            Finally, it will not, generally speaking, be right for the Minister of Interior to take into account, among his considerations, the personality or character of those responsible for the improper publications. The observations of Lord Chatham when supporting the struggle of John Wilkes (11), a person of the most dubious past, for the freedom of the press in England, are most enlightening on this point: "In his person though the worst of men, I contend for the safety and security of the best". (Chafee, p. 242, et seq.)

           

            (4) We must, in this connection, make one more point clear. The test of "probability" which we favour does not mean that the Minister of Interior must be satisfied in every case that the danger to the public peace is likely to occur shortly after the matters are published in the newspaper in question. A finding of "probability" does not necessarily mean a finding of proximity of the danger, in the sense of proximity in time. Indeed, the consideration that, as a consequence of the publication, an imminent danger has been created to the public peace strengthens the estimation that that danger is probable, just as the consideration that the publication is likely to show signs of its effect on the public peace only after a certain lapse of time reduces the likelihood of their being any such danger at all. But if the Minister of Interior becomes aware, in the light of circumstances, that the publication makes it possible, amounting almost to a certainty, that serious harm will be caused to the public peace, then there is nothing to prevent him from exercising the power given him by section 19(2)(a), even where he estimates that it is not a case where harm will be caused forthwith.

 

            It should be noted that in the United States, when Justices Holmes and Brandeis were defining the guarantee to freedom of speech and the press that is to be found in the American Constitution, they held as an essential condition to the restriction of that freedom, that the publication in question must be liable to cause serious and immediate harm to the interests that the legislator was seeking to safeguard. "The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree". (See Schenck v. U.S. (15), at p. 249; Abrams v. U.S. (12), at p. 22; Whitney v. California (14), at p. 649; see also the judgments collected on this point in the addendum to the judgment of Justice Frankfurter, in the case of Dennis v. U.S. (17), at p. 891; cf. the new approach of the majority opinion in the last-mentioned case). Now, it is very evident, in view of the approach we have indicated above, that we cannot go to the extreme of demanding that the Minister of the Interior be satisfied, before ordering the paper to be suspended, that the danger to the public peace created in consequence of the publication is also proximate in time. The dictionary definition, at the very least, of the term "likely" in section 19(2)(a), the meaning of which is, as stated, the presence of a probability that the effect on the public peace must take place at some time in the future, and not necessarily the immediate future, prevents us from so doing. However, we take the view that, in weighing the interests involved in securing the public peace on the one hand, and the safeguarding of the freedom of the press on the other, the Minister of the Interior would do well to pay attention to the general directions that the aforementioned judges employed in shaping the rule of law and of some of which we have already made mention in an earlier part of our judgment. Those directions - which we quote here not, once again, as hard-and-fast rules, but as guiding principles only - are:

           

            (a) As a general rule, there is a good chance that truth, in the end, will prevail; so that, if only there is enough time to spare, it is better to act through discussion, education and counter-explanation, in order to cancel out the effect of the false information published in the newspaper in question or in the article for which space was found. "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (per Justice Brandeis, in the case of Whitney (14), at p. 649). Accordingly, it would be advisable to reflect, for example, whether instead of suspending the newspaper for publishing the incorrect information, it would not be preferable to oblige the editor, in accordance with section 17 of the Press Ordinance, to publish a denial.

 

            (b) It often happens that the very act of oppression - the actual suspension of the newspaper in which the matters objected to have been published - endows them with an exaggerated value in the eyes of the public. Where "the enemies of liberty are met with a denial of liberty, many men of goodwill will come to suspect that there is something in the proscribed doctrine after all. Erroneous doctrines thrive on being expunged. They die if exposed". From the observations of Haley, quoted in the case of Dennis v. U.S. (17), sup., at p. 889; see also the observations of Justice Holmes in Abrams v. U.S. (12), at p. 22).

           

            (c) Finally, in cases in which there exists no danger of causing immediate, or even probable, harm to the public peace, it would be best to weigh very carefully the gravity of the danger which the Minister of Interior sees in the offing as a result of the publication in question. The current view is that in any case any act of suppression of the appearance of a newspaper of itself occasions harm to the public interest, that is, to the important interest connected with the freedom of expression. The point is that every such act of suppression of necessity fills, not only the owner of the newspaper that has been suspended and its editor, but others as well, with fear and apprehension; that that fear and apprehension in turn contribute to the imposition of a self-censorship on the part of the latter; and in that way, those very arguments that ought in particular to see the light of day for the purpose of investigating the truth and advancing the democratic process, are silenced (see Chafee, p. 561; Harvard Law Review, p. 6). On the other hand, since we are concerned only with the estimation of a potential danger, that is to say, one which is probable, but as regards which there is no assurance that it will necessarily occur - and at all events, there is no fear of its occuring in the near future - it is possible (even assuming that the possibility is a distant one) that the public peace will not suffer on account of the objectionable publication. In which case, it is important to consider whether the gravity of the danger that the Minister of Interior foresees as the result of the publication of the matters objected to, is indeed so great as to be comparable to the public harm to the other public interest, that is, the harm to the interest of freedom of expression, which the suspension of the newspaper is in any event likely to cause.

 

G. The rule to be applied in the present case may be, therefore, summed up as follows : -

 

            The use of the power stated in the said section 19(2)(a) calls, on the part of the Minister of Interior, for the Weighing of the interests involved in the public peace on the one hand, and in the freedom of the press on the other, and preferring the former interest only after full weight has been given to the public need for freedom of expression. The guiding principle ought always to be: is it probable that as a consequence of the publication, a danger to the public peace has been disclosed; the bare tendency in that direction in the matter published will not suffice to fulfil that requirement. Moreover, the Minister of Interior is bound to estimate the effect of the matter published on the public peace only according to the standard of what is reasonable in the light of the surrounding circumstances: and in that estimation, the length of time likely to pass between the publication and the consequential event which constitutes the harm to the public peace is liable to be an important factor, though not necessarily a decisive one. Finally, even if the Minister is satisfied that the danger caused by the publication is "probable", he ought carefully to consider whether it is so grave as to justify the use of the drastic power of suspending the newspaper or whether effective action is not available for the purpose of canceling out the undesirable effect consequent upon the publication. by less stringent means, such as discussion, denial and counter-explanation.

 

            We would like to add to our summary of the rule a word about the phrase, "in the opinion of the Minister of Interior", in paragraph (a) of section 19(2). We must hold that the estimation of the effect of matters published on the public peace, in the light of the circumstances, is always within the sole jurisdiction of the Minister of Interior, so that the High Court of Justice will not interfere with the latter's discretion unless, in making that estimation, he has departed from the test of "probability", having regard to the meaning of the notion "endangering the public peace" ; unless he has paid no consideration or, at all events has paid mere cursory consideration - to the important interest connected with the freedom of the press; or unless he has erred in the exercise of his discretion in some other manner, having been misled by considerations that are devoid of any relevance, or are untenable or absurd.

           

            In the light of that rule, our view is that each of the two orders issued by the respondent for the suspension of the two newspapers in question for a period of ten days and fifteen days respectively, are of somewhat dubious validity.

            "Kol Ha'am" : In order to appreciate the considerations that weighed with the Minister of Interior when he estimated the effect of the article that was published in this newspaper on March 18, 1953, in the way he did, we shall quote here part of the evidence given by Mr. Moyal in cross-examination, which we regard as reflecting the respondent's approach also. Now, he testified as follows:-

 

"...Had the first paragraph of the article in question appeared by itself, I would not have had the paper closed - nor on account of the second paragraph. Regarding the third paragraph, I should have drawn the attention of the Minister of Interior and asked whether it endangers the public peace - he has to decide ...In the fourth paragraph, I observe a charge that the Government maintains a policy of obsequiousness towards the United States - it is impossible to divide the article up, sentence by sentence, and to look at each sentence by itself for a statement that amounts to (endangering) the public peace - when reading the article as a whole - it does constitute a certain endangering of the public peace - I passed the article to the Minister of Interior - he read it all and came to the conclusion that it endangers the public peace - the fifth and sixth paragraphs by themselves do not endanger the public peace - but if it stated that the Government of Israel was giving way to the dictates of a foreign government against the interests of Israel - endangering the public peace - in the seventh paragraph also there is no endangering of the public peace - what is written in the eighth paragraph is a conclusion from what is stated beforehand and a slogan - that paragraph testifies to an intention to struggle against the Government of Israel for speculating in the blood of Israel, and I expressed the view to the Minister of Interior that that amounts to a very strong foundation - on the strength of that paragraph and on the strength of the article as a whole, the Minister of Interior recognised that there exist elements justifying the use of section 19."

 

            If we recall that in the article in question, the author inferred from a certain pronouncement that the Israel Ambassador in Washington was alleged at the time to have made, that the Government of Israel had agreed to place 200,000 troops on the side of the United States in the event of war breaking out between her and the Soviet Union, and that he devoted the remainder of the article mainly to the criticism of this imaginary policy, it will be quite apparent that that estimation of the article made by the Minister - namely, that on account of its publication, sufficient foundation has been laid on which to exercise the power set out in section 19(2)(a) - is defective.

 

            Can the publicly declared description of that policy as self-humiliation before a foreign state and surrender of the interests of Israel to the latter's will (however much that description may be mistaken) be regarded as creating at least a proximate possibility of "danger to the public peace", within the meaning I have given to that phrase? Would the article have such an effect, even if we consider the state of emergency in which our country finds itself at the moment when no permanent peace treaty has been signed with our neighbours, the Arab States? Would it be right to interpret the matters published as incitement to the use of violent means in order to bring about a change in that supposed policy of the Government? Does there exist any sufficient foundation for inferring that they are advocating non-enlistment for service in the Israel Defence Forces within the framework of the Defence Service Law? It is quite obvious that we must give negative answers to each one of those questions.

           

            If, for all that, the respondent arrived at a different conclusion, there can be no doubt that the reason therefore - as can be seen most clearly from the evidence of Mr. Moyal - is that he made the mistake of approaching the matter from the point of view of the "bare tendency" in the contents of the article, instead of examining whether the achievement of one of the aforementioned results, in consequence of its publication, is within the bounds of probability. Let us take as an example the paragraph which was selected by the learned Attorney-General:

           

"If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the 'Middle East Command'."

 

            It is very obvious to us that anyone, unwilling to enter into a pointless discussion whether the matters stated in that paragraph evince a "tendency" towards weakening the will of the citizen to carry out the duty imposed by the Defence Service Law should war break out between the two foreign States, will unhesitatingly agree that their proper construction is that the writer is opposed, in a strong and emotional form, to the "policy" of the present Government as therein described, and no more.

           

            The same applies to the penultimate paragraph, on which Mr. Moyal laid particular stress in the evidence he gave before us, and the contents of which were quoted in the first part of our judgment. As the witness admitted, the statements in that paragraph constitute nothing more than a conclusion arising out of what the author had written in the previous paragraphs, namely, that the agreement to place a large number of troops at the disposal of the United States as aid in the war liable to break out in the future between her and the Soviet Union meant the sacrifice of Israel youth for the objectionable purpose, in return for the chance of obtaining money from the United States, and that, in order to obtain the reversal of that policy, it must be fought. Now, whatever our view may be as to the correctness of the conclusion drawn, expressing opposition to that imaginary policy and advocating a fight for its reversal, can in no wise be regarded as likely in the future to endanger the public peace in any shape or form.

 

            I admit that even in that paragraph the conclusion was expressed in pungent tones, and not only that, but was even accompanied by language (we are referring to the words, "speculating in the blood of Israel youth") bordering on what is truly defamatory. But, aside from the fact that there are provisions in the criminal code and in the law of civil wrongs for punishing or compensating for the publication of matter defamatory of or insulting to any persons, whether in their capacity as representatives of the public or as private individuals, the fact that the opinion expressed in that paragraph is clothed in strong, emotional and insulting language is not sufficient - without connecting that objectionable style to other circumstances endangering public peace - to invest the matters published with an influence so great as to create a proximate danger to the public peace, within the meaning defined in this judgment. Now, Mr. Moyal did not even so much as hint at any such special circumstances, either in the affidavit lodged in support of the respondent's reply, or in the evidence that he gave before us.

            To sum up: if we do not wish to put obstacles in the way of discussion and free investigation in the political sphere and in that way divest ourselves of all interest involved in the freedom of the press, and if we do not also desire utterly to depart from the test which requires that the negative effect of published matter on the public peace be regarded in the circumstances as at least probable, then we shall have no alternative but to decide that, in making the order for the suspension of the newspaper "Kol Ha'am", for a period of ten days, for having published the article referred to, the respondent gravely exceeded his jurisdiction.

 

            "Al-Ittihad": The same applies to the order made by the respondent for the suspension of the other newspaper for a period of fifteen days. In this connection, it ought to be noted that the article published on March 20, 1953, basically resembles the contents of the article that had appeared in "Kol Ha'am" two days before. It is true that the objection to what the author of the article (which was written in Arabic) regarded as the declared policy of the Government of Israel was this time drafted in a stronger, more emotional and even more insulting style than the one in which the article that served as the occasion for suspending the other newspaper was written, and it may therefore be that it was this fact that moved Mr. Moyal to hold, in the evidence that he gave before as in the second case, that "the whole article endangers the public peace" : that is to say, that effect flows not only from what is written in the penultimate paragraph, which was stressed in particular in the affidavit that Mr. Moyal lodged in this case, but from the article as a whole. We are, however, of the opinion, for the reasons given above, that this feature (of the style of the article in such a form) is not of itself calculated to create a proximate possibility that the matters published in "Al-Ittihad" will result in the citizen refusing to carry out his duty of enlistment imposed by the Defence Service Law, or in any of the other consequences contained in the notion "endangering the public peace".

 

            As for the matters in the penultimate paragraph - which Mr. Moyal, according to the evidence that he gave in the second case, regarded as "incitement against the Government of Israel, based on the falsehood that the Government of Israel is speculating in the blood of its sons", and "incitement of the masses to act against the State and its Government" - we are once more concerned with the expression of a conclusion by the author of the article, similar in spirit to that which was arrived at in the article published in "Kol Ha'am".

           

            That conclusion is, as will be recalled, that that "policy", which the author regarded as the declared policy of the Government of Israel, meant that the lives of Israel citizens were to be sacrificed for the objectionable purpose, in return for the receipt of money for the country from the United States, in that that "policy" is dragging them "not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine". To this, was added the "makeweight", that "those masses do not want that fate and will demonstrate their refusal."

           

            As was suggested, if we disallow, for one moment, the addition of the "makeweight", then we are once more obliged to hold - for reasons we gave when we denied the possibility of the publication of a similar conclusion in the Hebrew newspaper being likely to harm the public peace - that the parallel estimation regarding the "dangerous effect" made by the respondent in relation to the conclusion expressed in the Hebrew newspaper is, too, devoid of any logical foundation. Can the addition of the words, "and will demonstrate their refusal", alter the situation?

 

            The Attorney-General argues that, at all events, in the last words, and in the similar remarks with which the article concludes ("and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons", etc.), there is apparent an obvious call to the use of violent means for the purpose of bringing about a change in what the author regards as the Government's policy, or at least, that the words in each of the two said paragraphs are like incitement to disobedience to the law by refusing to carry out the duty of enlistment for military service. On the other hand, counsel for the petitioner contended that the intention behind those remarks was that the citizens of the State express their disagreement with that "policy" in a lawful and quiet manner - for example, by voting in a certain direction in the general elections shortly to take place.

           

            We have no doubt, having regard to the pungent and emotional manner in which the article as a whole is composed, that the words at the end of each of the two paragraphs in question bear a double meaning; that is, they may be interpreted in each of the ways stated. For that reason, and seeing that the decision as to the possible effect of those remarks is first and foremost a matter for the discretion of the respondent, we feel ourselves bound by his recognition that the interpretation indicated by the Attorney-General is the one likely to be accepted by the readers of that article. However, our employing that approach does not necessarily mean that the fate of this case has been completely settled, since the question still remains whether, in the light of all the circumstances in existence at the time of the publication, there was in fact created a logical basis which would enable one to conclude that, in view of the said meaning of those words, one of the "dangerous" consequences that the Attorney-General suggested was likely to ensue.

           

            As for this last question, the circumstances rather point in the opposite direction. For what do we observe? First of all, it turns out that that article was based wholly on the assumption that the news item published in "Ha'aretz" on March 9, 1953. concerning the content of the declaration alleged to have been made by Mr. Abba Eban in Washington regarding the official policy of the State of Israel, was true; that is to say, that that is in fact the policy that the author of the article was protesting against and which led him to advocate what he did. Secondly, it appears that five days after the publication of the article, the Prime Minister announced in the Knesset that the news item was none other than "a piece of journalistic imagination", and that, moreover, the official policy of Israel was "to defend its borders and its form of government against revolution and attack”

 

            In those circumstances - when, on the one hand, the very essence of the view advocated in the two passages cited is dependent on that news item of March 9, 1953, being an accurate reflection of the official policy of the present Government of Israel and, on the other hand, it became clear, only a few days after the publication of the article, that that news item was incorrect and without any foundation in fact, so that the condition above-mentioned does not exist at all - in those circumstances, can it logically be estimated that that appeal would have the effect of endangering the public peace? Could anyone really imagine that, after reading what was written in the article in question, "the masses" might at some time arise and employ violent means or refuse to carry out their lawful duty of enlisting for military service, just in order to bring about the reversal of the policy which, as it appears, was not in any wise declared by those qualified to do so to be the official policy of the Government of Israel at this time? Thus, we can give a negative answer - and a negative one alone - to those questions. And if it be said that the day may come when Israel's policy will turn into the policy against which the author of the stated article was agitating, that the readers will then recall the matters written therein and that, as a result thereof, they will act in the manner they were called upon to act by the author, so that the public peace will be seriously endangered, we would reply that that approach is none other than the approach of the "bad tendency" and "indirect causation" that we disapproved of as a standard proper to be employed by the Minister of Interior when deciding whether to exercise the power stated in the said section 19(2)(a).

 

            It follows that in making the order for the suspension of the newspaper "Al-Ittihad", too, for a period of fifteen days, the respondent exceeded his jurisdiction.

           

            For these reasons, we have decided to make absolute the orders nisi given in each of these two cases.

           

                                                                              Orders nisi made absolute.

                                                                              Judgment given on October 16, 1953.

 

APPENDICES

 

The Article in "Kol Ha'am" - Appendix A

 

"Topic of the Day

                                                                                    Let Abba Eban Go and fight Alone...

                                             

       The Ben-Gurion-Bernstein Government has not reacted in any way to Abba Eban's announcement concerning his readiness to provide 200,000 Israel troops in the war against the Soviet Union. The official silence can only be interpreted as complete agreement with the remarks of A. Eban. More than that. The Ambassador of the Ben-Gurion-Bernstein Government cannot be assumed to have made his pronouncement in his own name and not in the name of the Government as a whole.

      

       A. Eban's pronouncement is exceptional, even in the Atlantic camp, since every government, within the aggressor Atlantic bloc is endeavouring, with all its might, to place as few troops as possible at the disposal of the American generals. The confirmation of the war pacts of Bonn and Paris has so far met with great difficulties. Many countries in Asia and Europe, Britain and India among them, are seriously criticising the policy of Eisenhower-Dulles.

      

       It seems, therefore, that the Ben-Gurion Government is pushing its way into the front ranks of the warmongers' camp; it is prompter than any other government, even within the aggressor Atlantic bloc.

      

       The finance bosses of America do not feel obliged to take into account the "war effort" of Ben-Gurion, Sharett and Abba Eban. The Lebanese newspaper, "Az-Zaman", has quoted American officials as stating that john Foster Dulles, the American Foreign Minister, and Anthony Eden have reached agreement on a common policv which calls for the consent of Israel 'to the annexation of the Negev to jordan, in order that the British army stationed in the Suez Canal Zone can transfer to the Negev' and their consent to other concessions, such as the transfer of Haifa port to the Atlantic command, etc.

      

       The White House is trying very hard indeed to increase the arms race in the Middle East, and the dispatch of American weapons to the value of 11 million dollars leaves no doubt as to that. And that is not all. The State Department has delivered an ultimatum to the Ben-Gurion Government regarding the evacuation of the grounds of the Arab College in Jerusalem. The Ben-Gurion Government has obeyed the ultimatum without a murmur.

      

       The anti-Soviet policy of the Ben-Gurion-Bernstein Government resembles the policy of the Polish reactionaries, Beck and Ridz-Smigly, who out of blindness and anti-Communist hatred brought national disaster on their country.

       Despite the anti-Soviet provocation, the masses in Israel know that the Soviet Union is faithful to the policy of the brotherhood of peoples and peace. The speeches of Comrades Malenkov, Beria and Molotov have once more confirmed that. If Abba Eban or anyone else wants to go and fight on the side of the American warmongers, let him go, but go alone. The masses want peace and national independence, and are not prepared to give up the Negev in return for joining the Middle East Command.

      

       Let us increase our struggle against the anti-national policy of the Ben-Gurion Government, which is speculating in the blood of Israel youth.

      

       Let us increase our struggle for the peace and independence of Israel."

      

 

The Article in "AI-Ittihad" - Appendix B

 

"The People Will not Permit Speculation in the Blood of its Sons.

 

       At the opening of the 'Independence' Bonds Conference last week in New York. Abba Eban. Ben-Gurion's Ambassador in the United States, declared that the Government of Israel was prepared to supply two hundred thousand Israel troops to fight on the side of the United States in the event of war against the Soviet Union.

      

       To this day, no reply has appeared on behalf of the Ben-Gurion-Bernstein Government to this grave pronouncement by its Ambassador and representative in New York. If that silence means anything at all. it means that the Government expresses full agreement with that pronouncement. that that pronouncement was not made save at its behest, that no official representative of anv Government can express in his speeches and declarations other than the opinions and policy of his government.

      

            This self-humiliation before the gates of American imperialists is not new on tile part of the Ben-Gurion Government, its diplomats and representatives. This Government has become accustomed to running as fast as it can before the chariot of American imperialism, in its endeavours to overtake all of its satellites and to express its faithfulness to its masters and warmongering supporters, and to prove to them by every form of compliance that it is the faithful servant whose services cannot be dispensed with, that it hopes to win a glance of satisfaction from it. At a time when American imperialism is meeting with many difficulties in carrying out its programmes in each of these satellite states, and at a time when those governments are trying to squirm and manoeuvre and even dare at times to criticise the Eisenhower-Dulles policy, and at a time when a government like that of Naguib in Egypt and Shishakli in Syria are still afraid of binding themselves to any Kind of guarantee to join the Mediterranean bloc, we see that the Ben-Gurion Government is crawling on all fours and asking and begging to be received into that bloc, and promising to hand over bases, ports, airfields and cannon-fodder to the American war machine. But it seems that the lords of Wall Street and their representatives in the White House do not yet appreciate this Ben-Gurionic service given with such 'generosity' and do not see any need for giving a friendly glance at their Israeli lackeys for being in their 'pocket', after breaking off relations with the Soviet Union, and after becoming completely dependent, from the political and economic point of view, on the "kindness" of American imperialism. Thus we see that rulers of America are trying to make up to Naguib, Shishakli and lbn-Saud, and are no longer interested in Ben-Gurion and his offers. This week, the Lebanese newspaper, 'Az-Zaman', wrote that Foster Dulles, at present on a visit to the Mfiddle East, is carrying in his pocket a programme for peace between Israel and tile Arab countries, which includes stripping Israel of the Negev and annexing it to Transjordan, in order that the British troops evacuating the Suez Canal can be transferred there.

 

          And so all forms of surrender by the Ben-Gurion Government, and all her demonstrations of faithfulness, will not avail her with her American masters; moreover, her economic, political and state bankruptcy, internal and external, are beginning to be revealed to the masses, who have started to understand whither this Government is dragging them - not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine, whilst those masses do not want that fate and will demonstrate their refusal.

         

          If Ben-Gurion and Abba Jeban want to fight and die in the service of their masters, let them go and fight by themselves. The masses want bread, work, independence and peace, will increase their struggle for those objectives, and will prove to Ben-Gurion and his henchmen that they will not allow them to speculate in the blood of their sons in order to satisfy the will of their masters."

         

 

 

            CA 723/74

"Ha'aretz" Daily Newspaper Ltd. and Others

v.

The Israel Electric Corporation Ltd. and Another

 

 

 

 

The Supreme Court sitting as the Court for Civil Appeal

            [24.2.1977]

Before Berinson J., Shamgar J. and Ben-Porat J.

 

 

 

Editor's synopsis -

                This is an appeal from a judgment for the Respondents, the Plaintiffs in the lower court, in a civil action for defamation, based on an article published in the Defendant newspaper. During a period of national recession, the Plaintiff company, a public government corporation, purchased an expensive luxurious car for the use of its Director General, the second Plaintiff-Respondent, who was close to retirement. After considerable public criticism of the purchase, the Plaintiffs announced that the Director General would continue to use the old car he had previously used and that they would put the new car up for sale.

           

                The article published by the Appellants, the Defendants below, charged that the sale was a sham and that the Plaintiffs did not really intend to sell the car. It stated that the Plaintiffs did not make any serious effort to sell the car, that they turned down offers to purchase the car at a reasonable price and that they actually placed impediments in the way of its sale. The article alleged that the Plaintiffs really sought to gain time so as to weather the storm of public protest until the public furor will have passed, after which the car would be returned to the Director General's use.

           

            Having failed to establish their defense that the allegations contained in the article were true (under Israeli law, the burden of proof in this matter rests on the defense), the Defendants sought to defend the article as an expression of opinion in good faith concerning the injured party's conduct in a public function or in connection with a public matter. The lower court rejected this defense as well, on the ground, among others, that the defamatory contents of the article were primarily statements of fact rather than opinions.

           

                In a divided decision, the Supreme Court reversed the lower court's judgment. Justice Shamgar wrote the majority opinion in which he held:

               

I.       Freedom of expression is a fundamental right recognized as such in Israeli law. The Law Forbidding Defamation, 5725-1965, which is intended to protect persons' reputations from being besmirched, should be interpreted and applied in a manner that does not infringe upon or unduly limit the proper exercise of this right.

 

2.      This point is all the more significant when what is at issue concerns the criticism of a public official or of a public body in connection with its official conduct. Aggressive, even strident criticism should be encouraged in such matters, in the public interest. The law's provisions concerning the defense that the defamatory publication was the expression of an opinion concerning a public matter, made in good faith, should not be whittled down by narrow interpretation and application.

 

3.      Just as the defense of truth is not lost when the defamatory matter contains inaccuracies that are minor in nature and not themselves injurious, so too the defense of good faith expression of opinion in a public matter will not be lost even if some of the factual grounds on which the opinion expressed was based turn out to be erroneous.

 

4.      It is not correct to require that the opinion be correct as a condition of this defense, else it would be unnecessary to relie on this defense, which applies even when the defense of truth fails.

 

5.      The author's criticism of the plaintiffs' conduct need not be the only reasonable conclusion that can be drawn from the underlying facts, in order for this defense to prevail. It certainly should not be required that the author's conclusion comport with that which the judge would have concluded in the circumstances. All that is required by the condition of reasonableness is that there should be a logical connection between the facts and the author's conclusion so that he could have concluded as he did in good faith.

 

                Justice Ben-Porat filed a dissenting opinion. She would have denied the appeal on the grounds, among others, that the factual inaccuracies in the article, on which the author based his conclusions, were not incidental and that the article did not separate clearly facts from conclusions. The broad defense allowed for expressions of opinion in public matters, in her opinion, is conditioned upon the author making such a separation clearly, so that the reader can distinguish between them, can discern how the author reached his conclusion and can reach his own independent conclusions in the matter.

           

            Note - The instant case was reconsidered by a panel of five Justices in Further Hearing 9/77, in which Justice Ben-Porat's dissenting opinion prevailed and the District Court's verdict for the Plaintiffs was reinstated. The opinions in Further Hearing 9/77 are published in this volume, immediately following this case.

           

           

Supreme Court Cases Cited:

[1] C.A. 68/6 Rabinowitz v. Mirlin, 11 P.D. 1224; 30 P. E. 66.

[2] C.A. 534/65 Diab v. Diab, 20(2) P.D. 269.

[3] H.C.73/53, 87/53 Kol Ha'am Co. v. The Minister of the Interior, 7 P.D. 87; 13 P.E. 422.

[4] H.C. 7/76 "Hilron" Agricultural Products Export-Import Company, Ltd. v. The Fruit Production and Marketing Board, 30 (3) P.D. 645.

[5] Cr.A. 24/50 Gorali v. The Attorney General, 5 P.D. 1145; 6 P.E. 3.

[6] H.C. 206/61 The Israel Communist Party v. The Mayor of Jerusalem, 15 P.D. 1723.

[7] C.A. 90/49 Bentov v. Kutik, 5 P.D. 594; 4 P.E. 190.

[8] C.A. 160/70 Hubayshi v. Disenchik, 24(2) P.D. 394.

[9] C.A. 326/68 Assa v. Livneh, 23(2) P.D. 23.

[10] C.A. 382/58 Tax Assessor v. Ziso-Brantel, 12 P.D. 1732; 36 P.E. 384.

[11] H.C. 14/51 The Attorney General v. Rotem, 5 P.D. 1017; 5 P.E. 304.

[12] C.A. 36/62, 92/62 Ozri v. Gilad, 16 P.D. 1553.

[13] C.A. 34/71 Friedman v. Chen, 26(1) P.D. 524.

[14] C.A. 250/69 Modi'in Ltd. v. Chatouka, 23(2) P.D. 135.

[15] C.A. 134/67 Eban v. Disenchik, 21(1) P.D. 527.

[16] Cr.A. 215/58 Ben Avraham  v. The Attorney General, 13 P.D. 393; 38 P.E. 349.

 

English Cases Cited:

[17] Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) 50 T.L.R. 581; sub nom. Princess Alexandrova v. Metro-       Goldwyn-Mayer picturwes, Ltd. 78 Sol. Jo. 617 (C.A).

[18] Scott v. Sampson (1882) 8 Q.B.D. 491; 46 L.T. 412; 46 J.P. 408; 30 W.R. 41 (D.C.).

[19] London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409; (1969) 2 Q.B. 375; sub nom. London Artists v. Littler (and Associated Actions) (1969) 2 All E.R. 193 (C.A.).

[20] Lewis v. Daily Telegraph, Ltd. (1963) 2 All E.R. 151; sub nom. Rubber Improvement Ltd. v. Daily Telegraph, Ltd. (1964) A.C. 234; (1963) 2 W.L.R. 1063; 107 Sol. Jo. 356 (H.L.).

[21] Slim v. Daily Telegraph, Ltd. (1968) 2 Q.B. 157; (1968) 2 W.L.R. 599; 112 Sol. Jo. 97; (1968) 1 All E.R. 497 (C.A.).

[22] Plato Films v. Speidell (1961) A.C. 1090; (1961) 2 W.L.R. 470; 105 Sol. Jo. 230; (1961) 1 All E.R. 876 (H.L.).

[23] Grech v. Odhams Press, Ltd. (1958) 2 Q.B. 275; (1958) 3 W.L.R. 16; 102 Sol. Jo. 453; (1958) 2 All E.R. 462 (C.A.).

[24] Merivale v. Carson (1887) 20 Q.B.D. 275; 58 L.T. 331; 2 J.P. 261; 36 W.R. 231; 4 T.L.R. 124 (C.A.).

[25] Campbell v. Spottiswoode (1863) 3 B. & S. 769; 3 F. & F. 421; 2 New Rep. 20; 32 L.J.Q.B. 185; 8 L.T. 201; 27 J.P. 501; 9 Jur. N.S. 1069; 11 W.R. 569; 122 E.R. 288.

[26] Peter Walker & Son, Ltd. v. Hodgson (1909) 1 K.B. 239; 78 L.J.K.B. 193; 99 L.T. 902; 53 Sol Jo. 81 (C.A.).

[27] Hunt v. Star Newspaper Co., Ltd. (1908) 2 K.B. 309; 77 L.J.K.B. 732; 98 L.T. 629; 24 T.L.R. 452; 52 Sol. Jo. 376; (1908-10) All E.R. Rep. 513 (C.A.).

[28] Turner v. Metro-Goldwyn-Mayer Pictures (1950) 1 All E.R. 449; (1950) W.N. 83; 66 T.L.R. (Pt.1) 342; 94 Sol. Jo. 145 (H.L.).

[29] Thomas v. Bradbury, Agnew & Co., Ltd. (1906) 2 K.B. 627; 75 L.J.K.B. 726; 95 L.T. 23; 54 W.R. 608; 22 T.L.R. 656 (C.A.).

[30] Carr v. Hood (1808) 170 E.R. 983; (1808) 1 Camp. 33.

[31]Popham v. Pickburrn (1862) 18 E.R. 730.

[32] Kemsley v. Foot (1952) 1 All E.R. 501; (1952) A.C. 345; (1952) 1 T.L.R. 532; 96 Sol. Jo. 165 (H.L.).

[33] Watkin v. Hall (1868) L.R. 3 Q.B.D. 396; 9 B. & S. 279; 37 L.J.Q.B. 125; 18 L.T. 561; 32 J.P. 485; 16 W.R. 857.

[34] McQuire v. Western Morning News Co., Ltd. (1903) 2 K.B. 100; 72 L.J.K.B. 612; 88 L.T. 757; 51 W.R. 689; 19 T.L.R. 471; (1900-03) All E.R. Rep. 673 (C.A.).

 

New Zealand Cases Cited:

[35] Gooch v. N.Z. Financial Times (No. 2) (1933) N.Z.L.R. 257.

 

American Cases Cited:

[36] Chaplinsky v. New Hampshire 315 U.S. 568; 62 S.Ct. 766 (1942).

[37] Beauharnais v. Illinois 343 U.S. 250; 72 S.Ct. 725 (1952).

[38] New York Times v. Sullivan 376 U.S. 24; 84 S.Ct. 710 (1964).

[39] Gertz v. Welch Inc. 418 U.S. 323; 94 S.Ct. 2997 (1974).

[40] Roth v. United States 34 U.S. 476; 77 S.Ct. 1304; 1 L.Ed.2d 1498.

[41] Stromberg v. California 283 U.S. 39; 51 S.Ct. 532; 75 L.Ed. 1117.

[42] Sweeney v. Patterson 76 U.S. App. D.C. 23; 128 F.2d 457 (1942).

 

 JUDGMENT

 

            Shamgar J: 1. We have before us an appeal against the judgment of the Tel Aviv District Court in an action for defamation in which the Appellants were ordered to pay compensation in the amount of 10,000 Israeli pounds to the second Respondent and one pound to the first Respondent.

           

            2. The following are the main facts:

           

            (a) On 14.3.67 the following article was published in the Ha'aretz newspaper:

           

"The Electric Corporation Director General's Car, by the 'Ha'aretz' Transport Correspondent.

 

On 26.10.1966, a news item appeared in Ha'aretz to the effect that the Electric Corporation had acquired a 1966 Chevrolet Impala for its Director General, Mr. Yaacov Peled. The price - 33,500 Israeli pounds.

 

After there appeared in the press letters from readers and articles criticizing this 'wasteful practice' by a State company that suffers from deficits, raises prices and is unable to distribute dividends, Mr. Peled reacted as follows, in Ha'aretz of 8.11.66: '... [A]lthough I do not agree with the opinions that relate the replacement of the car to the policy concerning the recession, I have decided to sell the new car and to continue to use the old one – so as to remove any and all cause for criticism, even if it is unjustified.' Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation.

 

More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually. the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

 

It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price.

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering".

 

            Passages from this article served as the basis for the claim, which is the subject of this appeal, in which each of the Respondents sued the newspaper Ha'aretz, its editor, its owner and the correspondent who wrote the article for 50,000 Israeli pounds damages.

           

            (b) The evidence produced before the District Court established the following:

           

            The episode began, as claimed in the article, in 1966, during the period of the recession, when the second Respondent ordered the car described in the article from the Chevrolet agent in Israel, the Leo Goldberg Company (hereinafter the Goldberg agency) for 33,500 Israeli pounds. At that time, the Respondent had at its disposal a car of the same make, which was a 1963 model, and which had already been driven 150,000 kilometers and was beginning to cause problems. Hence the decision to exchange it. This decision was not presented before the Corporation's management institutions for consideration and decision. To the car which was ordered - which was one of the biggest and most luxurious cars on the Israeli roads during that period there were added an electronic antenna, white wheels and power steering, all of which were novel appurtenances at that time.

 

            News of this acquisition, which was published first in the Maariv newspaper, apparently following upon the overture of an employee of the Corporation, aroused public criticism which was expressed in letters to the newspapers and the complaints of at least one of the members of the Corporation's Board, who had not been consulted in advance. As a result, the second Respondent decided to return the car to the Goldberg agency, after he had it for about two months and had driven about 5000 kilometers. The Goldberg agency refused to cancel the sale and return the payment made, but it agreed to handle the sale of the car as a used model. The second Respondent thought, according to his testimony in court, that he was not obliged to call for tenders for the car. On 8.11.1966, the Respondent published a notice in the press announcing its intention to sell the car. It was transferred to the Goldberg agency on 29. 11. 1966 and the article, which is the subject of this action, was published on 14.3.1967.

           

            When the car was brought to the Goldberg agency, the Corporation's representatives did not fix a price for which the Corporation would be prepared to sell the vehicle and did not empower the agency to act within a particular price range as a basis for negotiating the sale to a potential buyer. Instead, the agency was asked to present every offer, without exception, for the Corporation's prior approval. Save for the second Respondent's notice in the press, mentioned above, there was no other public announcement concerning the offer to sell the car. At first, the car was placed in the agency's sales lot, but when time passed and it was not sold, it was decided to keep it in a nearby closed storage place belonging to the agency, for its protection. Naturally, as a result, it was not exposed to the view of potential buyers who visited the agency.

 

            Several offers ranging between 22,000 and 25,000 Israeli pounds were made for the car, but they were all turned down after the person in charge of sales at the agency ascertained the first Respondent's position. The crux of the matter was that because of the cumulative weight of various circumstances - such as the failure to fix a price, the rejection of offers to purchase the car at a price which appeared reasonable in the light of the economic situation and the car's nature, the passage of time and the advanced process of aging of the model in consequence thereof, the Corporation's apathetic and even discouraging attitude whenever a potential buyer contacted it by telephone and the absence of any urgency in the effort to find a buyer the person in charge of sales at the Goldberg agency, Mr. Ben-Ami Amir, received the impression that the Corporation did not really intend to sell the car. According to him, he usually succeeded in selling a used vehicle within several weeks. Mr. Amir said in his testimony in court that:

 

"I received offers. I asked Shagal. He replied in the negative. The offers which I received were 24,0000 Israeli pounds and again 24,000 pounds and 25,000 pounds.... After several offers from agencies and private individuals the reply was that even if there were an offer of 28,000 pounds I should ask again. At that time, the price of 28,000 pounds appeared to me to be a dream and I therefore concluded that the car was not for sale. This was the first time that I was unable to sell a car.... The main basis for my conclusion that the Corporation did not want to sell the car was that I received no reply at first. I have been a sales manager for many years.... Here, for the first time, I did not receive a single satisfactory reply concerning a sale for a certain price. I concluded that they did not intend to sell because no price was fixed for the sale of the car, not at the beginning and not during the course of the weeks that followed ... until I went to Goldberg and told him I would no longer handle the matter...."

 

            According to Mr. Shraga Kantor, who was in charge of the first Respondent's service department and a member of the management, he too had heard the opinions quoted above "which were widespread amongst the Electric Corporation employees who thought that it was all a bluff”. Mr. Amir passed on his impression, as described above, to the fourth Appellant who was, at the time, the first appellant's transport correspondent. He maintained close contact with Mr. Amir who was, as already stated, the sales manager of the Goldberg agency, as well as with those who perform parallel functions in other agencies. Through them he was able to keep up to date with respect to the state of the market for used vehicles. Mr. Amir's statements appeared reliable to him and were corroborated later by one of the potential buyers. After receiving the information and before publishing his article, the first Appellant approached the first Respondent's spokesman, told him what he had heard and asked for his reaction. The spokesman refused to react because, as it appears, of a general directive given him by the second Respondent not to give any information to the Ha'aretz newspaper.

           

            On 21.3.1967, after publication of the article, the late Mr. Leo Goldberg wrote to Ha'aretz seeking to describe the sequence of events and pointing out, among other things, that "we received no offer of 24,000-25,000 pounds" save from several second-hand car dealers. It appeared that what was said in the letter was not consistent with the facts known to Mr. Ben-Ami Amir or with those known to the Corporation: that a certain fruit wholesaler had offered Amir 25,500 pounds for the car and that he had repeated his offer by telephone directly to the Corporation. The Corporation did not propose, as is customary, any counterprice which appeared to it to be more reasonable, and did not even reply to the offer.

           

            In May, 1967, after publication of the article and after the action, which is the subject of the appeal, had been brought, the second Respondent contacted the manager of the Hadera Paper Mills and the Chairman of its Board of Directors and persuaded them to buy the car for 28,000 pounds. The deal was closed.

           

            3. The Respondents' claim was brought on 20.3.1967. It was based on a part of the article, beginning with the words, "More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale ..." (the fifth, sixth and seventh paragraphs quoted above), and on the article's concluding sentence: "The Ministry of Development should instruct the Electric Corporation management to sell the car without any further manoeuvering." The full text of the article was attached to the statement of claim. The Respondents claimed that the above extracts implied that the first Respondent had been guilty of -

 

          "corruption, deceiving the public, mismanagement of its affairs and its business, management by way of manoeuvering, bothering the Leo Goldberg agency and its employees in vain and misleading them."

           

            According to the statement of claim, the article charged the second Respondent with -

           

          "corruption, deceiving the public, lack of integrity in his office, mismanagement of the affairs of the Corporation and conducting the affairs and business of the Corporation by way of manoeuvering."

           

            These matters come within the definition of defamation for which the Respondents claimed the damages referred to above.

           

            The appellants, in their statement of defense, took exception to the Respondents' interpretation of their article, denied that it contained anything defamatory and pointed out that "what was said in the article is true and the publication was in the public interest" (section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law)), and, that they will further contend that the publication is protected by sections 15(2) of the Law (the defense of good faith because of a legal, moral or social duty to publish the matter), 15(4) (expression of an opinion concerning the injured party's conduct in an official or public capacity or in connection with a public matter) and 15(6) (criticism of an act which the injured party performed in public).

           

            In a motion brought before the court of first instance, the Respondents asked that the defense under section 15(2) of the Law be struck out in limine. This application was dismissed by the Registrar and suffered the same fate in their appeal to the District Court. However, the further appeal to the Supreme Court was allowed and this defense was stricken (C.A. 213/69, The Israel Electric Corporation v. Ha'aretz, 23(2) P.D. 87). There remained, therefore, at the opening of the original action, only the defenses under sections 14, 15(4) and 15(6) of the Law.

 

            4. The main issue before the court of first instance was whether to classify the article's contents as being matters in the nature of facts or as expressions of opinions, and this continued to be an issue before us. The Appellants were of the opinion that most of the published matter was of the nature of conclusions and therefore constituted opinions. This matter could not, therefore, be examined under the aegis of section 14 of the Law, and was subject only to the defenses laid down in sections 15 and 16 of the Law.

           

            In its judgment, the District Court broke down the publication into its substantive elements and its drafting and concluded that it consisted entirely of matters of fact, save for the following two short items, which are in the nature of expressions of opinion:

           

"which will never happen" (i.e. - finding a buyer for 28,000 pounds).

 

and -

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The District Court found signs of both opinion and fact in two other extracts. It stated in this regard:

           

"The statement: 'If they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market', could be seen to be a continuation of the matters quoted above concerning the Goldberg agency's clerks' conclusions that the Electric Corporation was not interested in selling the car. It could also be seen as the journalist's statement, to give strength and foundation to the employees' conclusion. If we view these words as those of the employees themselves, that is to say, this is their logic and the reason for their conclusion, then it would be an argument of fact, whereas, according to the other alternative, it is an expression of the author's opinion. The same applies to the following paragraph, concerning the question whether it is easy or difficult to sell a luxury Impala. It could be seen as an expression of the author's opinion concerning the state of the car market and it could be said - and I tend toward this view - that the general state of the market is a matter of fact."

 

            The District Court rejected the Appellant's defense that the article constitutes a "matter of opinion". In its view, expressions of opinion, too, must be grounded in truth. Just as presentation of data which is not true does not benefit from the defense provided in section 14 of the Law, so too, the expression of an opinion not grounded in truth does not benefit from the defense of good faith. According to the court:

           

"Good faith and truth, although not synonymous, are bound together for purposes of the defense against defamation."

 

            Furthermore, expressions of opinion, which may be understood by a reasonable reader to be assertions of fact, will be seen to be and will be classified by the court as factual claims and not as expressions of opinion.

           

            In applying the above principles to the issue under consideration, the District Court noted that in its opinion the Appellants had no factual basis for imputing the serious allegations contained in the article to the Respondents. Only three and a half months had expired from the time that the car was returned, not four, as stated in the article. The incident occurred during a period of recession and for this reason there were no eager buyers of the car. The criticism of the original acquisition of the car was not at all relevant.

           

            The assertion that the car was "supposedly" for sale, implied an intention to mislead from the very beginning. This was without foundation, just as the imputation to the second Respondent of an intent to acquire the car after his retirement was nothing more than speculation by the Appellants. The argument that the end of the model year was imminent was also proved to be incorrect, since the article was written in March of the particular year, and the model year of American cars, unlike that of European cars, is determined by the Gregorian year. The Goldberg agency did not make any effort to sell the car and the conclusion attributed to its clerks was clearly baseless. The Appellants' reliance on Ben-Ami Amir's words does not relieve them of liability because -

 

"by publishing Mr. Ben-Ami's statements, they took defamatory matter conveyed to them privately by Mr. Ben-Ami Amir and multiplied it many thousands of times, as the number of their readers, and gave it credence among all those persons whom the paper reaches, so as to bring the Plaintiffs into disrepute and to sully their names."

 

            There was also no basis for the suspicion that the Respondents had hidden the car, since it was the Goldberg agency that decided to store it in the closed warehouse.

           

            It is true that the Electric Corporation refused to react when asked to do so by the fourth Respondent before publication of the article, but since this refusal was prompted by the bad relations which existed between the newspaper and the Corporation, he should have known that the Corporation's silence was not connected to the merits of the issue but to their relations with the article's author. The writer was not released, therefore, from his duty to check the facts in some other way.

           

            The Appellants' statement that -

           

"if they had decided to sell the car for reasons of public hygiene what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market",

 

does not meet the test of reasonableness and, therefore, bears directly on the claim of good faith. Furthermore, the use of the word "maneouvering" was without foundation.

 

            The District Court analysed the events at length to explain that, in its opinion, a completely different conclusion should have been drawn from the facts instead of that which the Appellants drew, and noted that the article contained an element of -

 

            "stigmatizing the Appellants [the Plaintiffs] as liars and not serious people".

           

            This constitutes defamation, as the Supreme Court had already concluded when it allowed the motion to strike out the defense under section 15(2) of the Law (C.A. 213/69, supra).

           

            After the District Court announced its decision that there was defamation and that it dismisses the defense claims, the parties agreed that the court should fix the amount of damages and costs at its discretion, as well as the form which an apology should take, without hearing any further evidence and arguments. The court awarded the second Respondent 10,000 Israeli pounds compensation, since he had suffered the main injury. The Corporation was awarded compensation in the amount of 1 Israeli pound, primarily in consideration of the fact that it had refused to respond to the fourth Appellant's question when he turned to it before the article was published. The court ordered publication of an apology and determined its wording.

           

            5. The appeal before us covers a wide expanse, from minor arguments concerning matters of procedure and evidence to major issues concerning the principles of the law of defamation. We will not fulfil our duty if we do not make special mention of the comprehensive and clear arguments made by both parties who appeared before us, which were of great assistance to us in fixing the bounds of the dispute and determining its essence.

           

            And now to discuss the rules of law which apply to the matter before us and their application to the facts of the case.

           

            6. A. The Respondents' argument was that the article in question imputed to them "dishonesty and hypocrisy" and stigmatized them as "liars and not serious people". Imputing such characteristics, if in fact this was done, would constitute defamation within the meaning of section 1 of the Law. The test applicable to the existence of defamation according to section 1 is not confined to the subjective insult suffered by the individual against whom the verbal or written injurious matter is aimed, but has an objective basis: that is, what is the influence or relationship of the defamatory matter on the specific plaintiff’s estimation in the eyes of others (C.A. 68/56, Rabinowitz v. Mirlin [1], at p. 1226; C.A. 534/65, Diab v. Diab [2], at p. 274). The prohibition against defamation is intended to fix firmly in enacted law the right of every person that his reputation not be demeaned or injured by false statements that denigrate him (Justice Scrutton, in Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (1934) [17], 50 T.L.R. 581, 584, referring to Scott v. Sampson (1882) [18], 8 Q.B.D. 491, 503.

 

          But the issue before us cannot be resolved by merely applying the definition of defamation in section 1 of the Law to a particular expression. The Law frames rules, whose purpose it is to create effective protection of the individual against being injured by the publication of defamatory matter, so that this area resembles the laws of privacy which seek to prevent unlicensed or uncontrolled intrusion into the private domain (see Thomas I. Emerson, The System of Freedom of Expression, 1970, p. 517). The problem that arises in this field of the law is not confined to the need to define the nature of the act in question or of the injury resulting from it, but that both the law forbidding defamation and that protecting privacy, raise the question where should the line be drawn between them and the right of freedom of expression.

         

          B. The relationship between defamation and freedom of expression has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances. There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness (see the words of Justice Murphy in Chaplinsky v. New Hampshire 315 U.S. 568, 571-572 (1942) [36], and of Justice Frankfurter in Beauharnais v. Illinois 343 U.S. 250 (1952) p. 266 [37], according to whom defamatory matter is not protected by the right of freedom of speech).

         

            But the attitude giving exceptional preference to the prohibition against publishing defamatory matter over and above the right to freedom of expression has been abandoned in the United States, for example, with regard to defamatory matter concerning holders of official or public office, and the principle which gives superior status to freedom of expression concerning subjects of public interest connected with holders of official or public office has been entrenched there (see New York Times v. Sullivan (1964) [38] and the subsequent judgments based thereon). The tendency to add constantly to the types of office holders to which this principle applies was restrained lately by the judgment in Gertz v. Welch Inc. (1974) [39], but there was no erosion of the basic approach described above with respect to the mutual relationship between defamation of office holders and freedom of expression.

           

            There is no need to try our hand at describing the tendencies and considerations that lie at the basis of any decision which is required to be made, in the varying circumstances, to resolve the conflict between one party's right to an unsullied name and another party's right, in a free society, to give expression at will to his opinions and ideas. The issue before us is more limited as it concerns a publication about the holder of a public office and relates to a public matter. We can, therefore, confine ourselves to this subject only. The first Respondent is one of the largest government companies with respect to the scope of its operations and the number of its employees; it provides a vital service to the general public, and it has a meaningful and daily relationship with every citizen. The second Respondent is the Director General of the corporation which, as a Government company, is responsible to a Government Ministry (at the time, the Ministry of Development), and because of the nature of its objectives and its economic and public standing, he must be deemed to be the holder of an office in the public service. There is also no disputing the fact that the issue before us, in light of its nature, is also a matter of public interest, for, in Lord Denning's words in London Artists, Ltd. v. Littler (1969) 2 W.L.R. 409, 418 [19]:

           

   "... Whenever a matter is such as to affect people at large so that they may be legitimately interested in or concerned at what is going on ... then it is a matter of public interest on which every one is entitled to make fair comment...."

           

            In light of the nature of the matter before us, as described above, it is therefore sufficient that we direct our discussion only to the leading conceptions and approaches that govern the examination of the question of publications concerning holders of public or official office and the relationship between them and freedom of expression. Afterwards we will examine whether and how these rules have been applied in our enacted law.

           

            7. The absence in Israel of a unitary piece of legislation of preferential legal status that embodies its constitutional principles does not mean that we have no statutes with constitutional content or that constitutional legal principles defining the basic rights of man and the citizen are absent from our system of law. The law in Israel embraces, according to our understanding and concepts, basic rules concerning the existence and protection of the freedoms of the individual, even before the bill Basic Law: Rights of Man and Citizen has become enacted law.

           

            The new draft Basic Law is intended to crystallize principles and to designate their boundary lines; its central task is to fix them firmly in enacted law so as to ensure their protection against the ravages of time. Its purpose is to give expression to values according to which the ordinary citizen should be educated and to block in advance the progress of those who seek to trespass on his rights. But even now basic rights are protected and first and foremost among these, in our basic legal conception, is the freedom of expression, and they are a substantive part of the law of Israel. The integration of these rights into our law is, as is well known, the consequence of the system of government which we so coveted (H.C. 73/53, 87/53, Kol Ha'Am Co. v. The Minister of the Interior [3], at p. 876), but the obligation to honor them is not merely a political or social-moral one; it also has legal status.

 

            Thus far as concerns the existence of the right. Now with regard to its standing in the system of law that applies in the State.

           

            The basic right of freedom of expression is of decisive importance for establishing the nature of the regime that rules in a given political or social framework. Furthermore, it is the fundamental basis of, and a condition precedent for, the existence and faithful preservation of most other basic rights. Without freedom of expression the stability of other basic rights, such as, for example, freedom of religion, is threatened and the danger that they will not be fulfilled increases. In addition, the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words (H.C. 75/76, "Hilron" v. The Council for the Production and Marketing of Fruits, [4], at p. 653). Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice.

 

            The above-described approach is generally accepted by all when one is considering the relationship between freedom of expression and the totality of governmental powers, but the maximal restriction of the powers of official authorities in the fields of criminal and administrative law is but a fraction of the measures whose object is the protection of this foundation of a democratic regime. Despite this, it does happen that the said understanding of the mutual relationship is accepted to a lesser degree when in the circumstances of the case there is a clash between the right of the individual to give expression to his opinions and ideas and the right of an office holder who may feel injured by this expression of opinion. It would be superfluous to emphasize the importance of applying the yardstick described above correctly in these latter circumstances as well, since the right to freedom of expression can easily be diminished if, while direct administrative intervention is stymied, the individual is exposed at the same time to litigation within the framework of the laws forbidding defamation for any critical or negative expression of opinion against a public servant in connection with his official conduct, which hurts his standing in the public eye (section 1(3) of the Law) (see in this matter the words of Justice Brennan (p. 724) and Justice Goldberg (p. 737), with which Justice Douglas concurred in the said Sullivan case [38]). It was to such circumstances that Justice Agranat referred in Cr. A. 24/50, Gorali v. The Attorney General, [5], at p. 1160, when he said:

 

"The law recognizes that in known circumstances and under certain conditions the general good demands - so that the said basic right not be emptied of its content – that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            B. As said, we deal here with matters alleged against a Government company and its employee, concerning matters connected with the use of its funds, the observance of its required pactices and the granting of privileges to its employees.

           

            The possibility and opportunity for political, social and other criticism of the functioning of the government, its institutions, companies, representatives and employees is a sine qua non for the existence of a properly functioning democratic regime, as stated by Justice Sussman in H.C. 206/61, The Israel Communist Party v. The Mayor of Jerusalem, [6], at p. 1728:

           

"True democracy will be judged by whether criticism is published and heard, without which the democratic-parliamentary regime will descend to nothingness."

 

            In this context Justice Brennan commented, in the said Sullivan case [38], which dealt with a libel claim centering on an advertisement which contained incorrect factual data:

           

"... freedom of expression ... 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States 354 U.S. 476, 484, 77 S.Ct. 1304, 1308 [40]. 'The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means ... is a fundamental principle of our constitutional system', Stromberg v. California 283 U.S. 359, 369, 51 S.Ct. 532, 536, [41] ... and this opportunity is to be afforded for 'vigorous advocacy' no less than 'abstract discussion'.... We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials...." (Id. at p. 721).

 

            Factual error may enter a critical statement, as happened in the Sullivan case [38], as to which Justice Brennan asks:

           

"The question is whether it forfeits that protection [of the right to free expression of opinion - M.S.] by the falsity of some of its factual statements and by its alleged defamation of respondent...." (My emphasis - M.S.)

 

            And he refers in this matter to the words of Judge Edgerton in Sweeney v. Patterson 76 U.S. App. D.C. 23, 24; 128 F.2d 457, 458 (1942) [42] that -

           

"... errors of fact, particularly in regard to a man's mental state and processes are inevitable.... Whatever is added to the field of libel is taken from the field of free debate."

 

            Justice Brennan sums up, one cannot condition the defenses provided by law on the absence of factual errors or inaccuracies. According to him:

           

"A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable 'self-censorship'. Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.... The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."

           

            C. Freedom of the press is only one of the specific forms of the right of free expression. Furthermore, this is the central area in which the extent and actual existence of the said right are tested.

           

            I will not enter here into the special question of whether the press has a special duty and status with respect to the provisions of the Law, since this question was already answered with regard to the publication before us in the above C.A. 213/69, when the defense under section 15(2) of the Law was struck out in limine. There is no doubt that this is a very important question, and any further study of it will contribute to its additional clarification (see also in this connection C.A. 90/49, Bentov v. Kutik, [7], at pp. 601, 603). As a tentative thought only, it might perhaps be regrettable that these proceedings were fragmented at the Respondents' initiative on the basis of rule 96 of the Civil Procedure Regulations, 5723-1963, so that there was no opportunity to examine all the defenses simultaneously, that is, after hearing the testimony (cf. C.A. 160/70, Hubaishi v. Disenchik, [8], at p. 395).

           

            There is no room for doubt that adoption of the rules granting special standing to the right of criticism in matters of public interest that concern holders of public office does not permit the media to indulge in unbridled writing or release them from all restraints. Later on, we will discuss the provisions of both parts of section 16 of the Law, which contain the rules that create the necessary balance between that which is permitted and what is prohibited, and that the media will not be able to avail itself of any plea of justification when a publication goes beyond the permitted. But any tendency to add to or further limit this balance creates many hazards: the rules concerning freedom of expression are tested in accordance with their long term general advantage and meaning and they should not be evaluated under the influence of events of the moment. The maintenance of basic rights is not disputed when affairs are conducted peacably and when the various authorities earn only compliments. But the real test of freedom of expression comes when there is confrontation accompanied by decisive and unpleasant criticism. Furthermore, the standing and function of the media in a free society are not measured according to how each of their elements and entities meets the expectations of the balanced and moderate citizen, but mainly in light of the media's mission and general importance in the complex network of factors which contribute to the formation of the citizen's opinion and enable him to exercise free evaluation and choice, with knowledge of what is happening and the ability to evaluate the quality and nature of every event, proposal and criticism.

 

            8. Within the framework of the proceedings before us our attention was drawn by both parties to English precedents in defamation cases. Uncontrolled reliance on such precedents could lead to erroneous conclusions. Even in the Civil Wrongs Ordinance, 1944 - which to a considerable extent adopted the law existent at the time in England - there are differences of terminology from that in the English source: in section 20 of the Ordinance, for example, under the heading of "conditional privilege" are included the defenses of "qualified privilege" and "fair comment", although in the country of origin of these rules there are differences between the two. Since then, not only have sections 16 and 22 of the said Mandatory Ordinance disappeared, but the provisions of section 2 of the Ordinance, which tied interpretation of the Ordinance to the rules of legal interpretation prevailing in England, have also been abrogated (Law Amending the Administration and Law Ordinance (No. 14), 5732-1971). In Britain the Defamation Act was enacted in 1952. The Law which we apply here was enacted in 1965 and these two laws differ in many aspects from each other and from the Mandatory Ordinance (compare, for example, section 20(1)(a) of the Mandatory Ordinance with sections 15(2) and 16(a) of the Law.)

           

            One must, therefore, classify and examine the matter very carefully before relying on quotations from English judgments or

           

 having recourse to English legal literature, some of which is already out of date in England (see, for example, Odgers, A Digest of the Law of Libel & Slander, (191l) 6th ed., p. 161, on which the Respondents relied, in comparison with section 6 of the Defamation Act, 1952). It is superfluous to add that equal care must be taken with regard to reliance on those Israeli precedents that are still anchored in the provisions of the Mandatory Ordinance.

 

            9. A. I am of the opinion that the provisions of our law with respect to defamation and the approach on which they are based are consistent with the principles and the values referred to above.

           

            The protection of the individual's good name is realized in the definition of defamation (section 1 of the Law) and in the provisions laying down that defamation is, depending on the circumstances, a criminal offense or a civil wrong. Protection of freedom of expression is formulated in the provisions of chapter 3 of the Law, which contains a list of permitted publications (section 13) and lays down the scope of the defenses of "truth" (section 14) and "good faith" (section 15). The special defense for criticism in connection with public matters appears in section 15(4) of the Law.

           

            B. When the defense of truth is pleaded, the defendant seeking to make this defense successfully is entitled to try to prove that the matter published was true and that the publication was in the public interest. This defense consists, therefore, of two cumulative components and the presence of one of them without the other will not avail the defendant (incidentally, in Britain the cumulative condition that the publication was in the public interest applies only in criminal actions).

           

            The burden of proof in a plea of "truth" is on the person making it (C.A. 326/68, Assa v. Livneh [9], at p. 25; C.A. 382/58, Tax Assessor v. Ziso-Berenthal, [10], at p. 1735).

           

            C. When the defense of good faith is pleaded, the defendant is entitled to argue that he published the matter concerned in one of the circumstances set out in section 15 of the Law and that the publication did not exceed what was reasonable in those circumstances. In the case of this defense, too, there are two interconnected cumulative components and the defense cannot succeed in the absence of either one.

           

            10. A. Clearly, the heart of any dispute in a defamation case is the meaning of the words which it is claimed are defamatory. When examining the meaning of such words they must be interpreted in accordance with what the reasonable reader or listener would understand from them, and recourse must not be had to the legal interpretations by which a legal document would be examined and its content analyzed. Lord Reid said in this context (in Lewis v. Daily Telegraph (1964) A.C. 234, p. 258 [20]:

           

            "... There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of wordly affairs....

 

What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."

 

            That is to say, the natural and ordinary meaning of the words will sometimes be found in their simple literal meaning and sometimes by reading between the lines. The natural and ordinary meaning of the words cannot be gleaned by isolating and severing them from their context. On the contrary, they must be seen against their general background and within the context of the publication in which they appear. So that, for example, when the court examines matters published in a newspaper and attempts to apply the test of the ordinary reasonable person, it must evaluate the significance and meaning of the words in the eyes of the ordinary reader and judge how he would have understood them. There is an additional aspect to this rule that directs us to the ordinary meaning of words: the words must be interpreted within the context of the publication in which they appear, without reference to additional extraneous factors which could change or broaden their meaning, unless it can be proved that these additional factors, as well, are within the ordinary knowledge of those who heard or read the words.

 

            B. When examining the significance of matters in the eyes of the ordinary reasonable reader, the publisher's intention is generally of no importance. That is, subject to the provisions of section 16(b)(3) of the Law, this question is altogether irrelevant (H.C. 14/51, The Attorney General v. "Davar", [11], at p. 1053). No evidence is to be brought in connection with the question of what meaning the ordinary reader, or one or another type of reader, would ascribe to the publication, and there is no need to hear testimony about how the published matters were understood, since it is the court itself which must judge the matter (C.A. 36/62, 92/62, Ozri v. Gilad, [12], at p. 1559). According to Lord Diplock in Slim v. Daily Telegraph (1968) 2 Q.B. 157, 165, 173 [21]:

           

            "What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel."

           

            11. A. The meaning and the sense of the article in question is clear on its face: from its wording it appears that the author concluded from the Respondents' actions and omissions that they intended to misrepresent and to deceive the public: that is, at the same time that the second Respondent declared publicly his desire to sell the vehicle, that had been purchased for what was at that time a great deal of money, the hidden intention that is discerned from the circumstances is the opposite.

           

            This comes within the definition of defamation in section 1 of the Law.

           

            On the other hand, I did not find in the article any explicit or implied allegation that the second Respondent intended to retain the car in the corporation's possession in order to acquire it upon his retirement, as the Respondents contend. This contention was raised in the course of a heated argument in court concerning why the second Respondent's imminent retirement was mentioned in the article, but the reasonable reader could not have learned about these matters from the article itself. In the eyes of one who is not familiar with the hidden ways of public authorities, the reference to the imminent retirement only stressed the absence of any justification for acquiring the car in the first place, that is, as a comment to the effect that if the matter concerns a person who is about to retire, why should he not be patient and complete his final year of service with the car he had. That explains the reference to the Respondent's retirement in connection with the story about the acquisition of the car, and that in any event is how it should be understood. Therefore, the dispute before the lower court, which was repeated before us, whether it was permissible to adduce evidence of precedents concerning acquisition of cars by employees of the corporation who retired on pension, had no relevance to the matter of the publication which is the subject of the proceedings before us.

 

            B. Once we have determined that the article contains defamatory matter, the question arises whether the Appellants can benefit from one of the defenses provided by the Law. The relevant defenses are two:

           

            (a) that the matter published is true;

           

            (b) that the publication was made in good faith.

           

            One plea does not obviate the other and it might be that one would suffice without the other. In this connection the question whether we are talking about facts or expressions of opinion, or both, is significant. We must therefore first classify the published matter according to whether it was factual or an expression of opinion and then decide whether the defenses referred to above apply in the circumstances.

           

            C. When an injured party complains about a certain publication because of its contents, one may not restrict the defendant, in presenting his defense to the particular words in the relevant publication on which the plaintiff bases his claim. The defendant is entitled to have recourse to the entire publication, including those parts not referred to by the plaintiff, in order to justify his defense, whether it be based on "truth" or on one of the alternatives in the plea of good faith. The essence of defamation is injury suffered by a person in the eyes of others and the published writings which were brought to the attention of other persons constitute a single entity. There is no justification to dissect them arbitrarily in order to stress a part of the publication which contains defamatory matter and to prevent the publisher from presenting the entire publication, since it is his right that the court view the matters in their natural light as, it may be assumed, they were seen and read by the ordinary reasonable reader (cf. C.A. 34/71, Friedman v. Chen, [13], at p. 529). This does not mean that the part of the publication containing defamatory matter is purified and cleansed of all contamination by the fact that the rest of the publication contains only truthful statements. The other parts of the publication are relevant for the purpose of presenting a complete picture and to reach a conclusion concerning the author's good faith.

 

            The defendant's said right is especially important when the publication contains several facts, some of which are proved, established and true, and do not constitute a ground for the claim, while a small number, concerning which the plaintiff complains, are not true. The relevancy of the other parts of the publication as providing the basis for the expression of the opinion increases, naturally, in proportion to the measure and extent of the truthful statements contained in the publication and is conditioned on these facts being interwoven and integrated into the expression of opinion which is the subject of the action. The approach common in England, which differs to some extent from ours (see Plato Films v. Speidel (1961), [22]), is substantively unreasonable, and recommendations were recently made aimed at changes in the legal position in England (cf. Report of the Committee on Defamation, H.M. Stationery Office, 1975, Cmnd. 5909, p. 34).

           

            D. The publication at issue before us presents a list of facts, alongside of which, or following upon which, are conclusions and evaluations of the author, that are in the nature of expressions of opinion. In order to judge its nature the publication must be read as a whole, because its factual beginning constitutes the basis for understanding the expressions of opinion contained therein. Furthermore, prima facie, any doubts or disputes concerning the classification of any part or selection of the defamatory matter quoted in the complaint can be dispelled by examining the publication as a whole and in context. This method makes eminently clear the stages of the fourth Appellant's evaluation of the situation, beginning with the factual data and ending in his conclusion that the active intervention of the Ministry of Development was called for.

 

            The court of first instance was therefore correct in considering the article as a whole and the Appellants' complaint in connection therewith is unfounded. On the other hand, I do not accept the lower court's ignoring of the influence which the inception of the incident had on the fourth Appellant's considerations and conclusions, but since this subject comes within the ambit of the defense of good faith, I will return to it when I deal with this distinct problem.

           

            E. I am not satisfied with the conclusions drawn by the lower court concerning the division of the article's contents into facts and opinions. Everyone agrees that the following were of the nature of facts:

           

(a)        the acquisition of the car.

 

(b)   the text of the Director General's reply to the criticism leveled against him.

 

(c)   the impending retirement in October 1967 of Mr. Peled, who was 70 years old, and his resumption of the use of his previous car.

 

(d)   the return of the new car to the Goldberg agency.

 

(e)   the instructions with regard to the price and the sale of the car that were given to the Goldberg agency, except the words "which will never happen".

 

(f)    the selection noting that "it is not easy to sell a luxury Impala" up to the words "above the standard price".

 

            From the evidence brought before the court of first instance, as detailed at the beginning of this judgment, it can be concluded that all the above facts, without exception, were satisfactorily proved and that no one disputes that their publication was in the public interest, as required by section 14 of the Law.

           

            It follows, therefore, that insofar as these facts are concerned, the appellants can enjoy the defense of "truth" based on section 14, even if the facts were defamatory.

           

            12. The remaining parts of the publication whose meaning demands our attention, are the following:

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General, for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching."

 

[finding a buyer at the price of 28,000 Israeli pounds] "... will never happen."

 

"From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market."

 

"The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            Before expressing our opinion concerning the nature of these selections and their legal classification, I will make several preliminary observations about the meaning of section 15 of the Law in general and of section 15(4) in particular, and its relationship to the presumptions in section 16.

           

            13. A. With regard to the mutual relationship between section 15 and section 16: In their arguments before us, the Respondents sought to set forth the provisions of the Law as creating an absolute divide

           

 between facts, on the one hand, and expressions of opinion, on the other hand. While section 14 of the Law deals exclusively with matters of fact, which must be examined solely according to the yardsticks fixed therein, section 15, according to them, deals exclusively with expressions of opinion. However, if we examine the provisions of sections 15 and 16, which are inter-connected, we will see that this is, in fact, not so. Section 15 does not consist solely, as one solid piece, of subjects that are in the nature of opinions (see, for example, the circumstances described in sections 15(1), 15(2) and 15(10)). It follows, therefore, that the presumptions set forth in section 16, which are linked with all the variegated provisions of section 15, do not apply to expressions of opinion alone.

 

            The issue at stake in every case is whether the defendant made the publication in one of the circumstances provided for in section 15. If so, then, the presumption in section 16(a), that he made the publication in good faith, applies, whether the publication contained facts or matters of opinion (see C.A. 250/69, Modi'in Press v. Chatouka, [14], at p. 137, in which the question of good faith, for purposes of section 16(a), was considered in connection with a publication in a newspaper stating that a certain woman was committed to a hospital because of mental disease and the author of the publication sought the protection of the defense contained in section 15(2) of the Law). A similar approach was adopted in Grech v. Odhams Press, Ltd. (1958), [23] in which a publication containing factual inaccuracies was allowed the defense of fair comment by the court after it was shown that the publication was made in circumstances deemed to be privileged.

           

            B. With regard to the unique nature of section 15(4): The defense provided in section 15(4) refers to a publication in the nature of an expression of opinion on the conduct of the injured party in an official or public capacity, in the public service or in connection with a public matter. That is to say, while some of the subsections of section 15 do, indeed, describe circumstances which create a basis for the defense of section 16(a) with respect to the publication of facts, this does not teach us anything about the remaining elements and paragraphs of section 15, as can be seen from the fact that section 15(4), like section 15(5), deals expressly with expressions of opinion only and cannot be stretched beyond that.

  

          The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described. The integration of all the subsections of section 15 with section 16, with the two types of presumptions contained therein, teaches us that it was not the legislature's intention that the courts should examine the wording of the publication as if with a magnifying glass in order to separate out every fragment of fact and deny it the protection afforded by section 16(a) of the Law.

         

          The approach of the Israeli legislature to this matter can be learned also from section 14: in order to decide whether the matter published was true, regard is had to the fundamental facts which reflect the essence of the publication and not to incidental details as to which any injury caused is secondary (see the last sentence of section 14).

         

          Incidentally, it would be difficult to learn anything for the purposes of the issue before us, as the Respondents sought to do, from the above cited London Artists case [19], in which it was held that the words, "... on the face of it appears to be a plan..." were, in their special context, the determination of a fact rather than an expression of the writer's opinion. I doubt very much if this court would have so understood them. But the main point is that the argument concerning the classification of the publication as an expression of opinion was dismissed in that case, first and foremost, because it was raised for the first time in the midst of the proceedings. In any event, there, too, Judge Denning reached his conclusion about the classification of the publication as a totality of facts on the basis of "... a fair reading of the whole letter ...", that is, on the basis of an examination of the document as a whole.

         

          A similar approach, stamping a publication with its dominant hallmark and deciding its fate in accordance with its classification as an expression of opinion even when it contained some facts, found expression in Justice Brennan's opinion in the Sullivan case [38].

 

            C. With regard to the element of truth in an expression of opinion: Criticism of the functioning of a public authority may be aggressive and determined, uncompromising and overtly expressive of the writer's feelings, and it will be protected even if the writer drew wrong conclusions and made a mistaken evaluation, so long as the circumstances laid down in section 16(b) do not exist, that is:

           

"(l) the matter published is not true and he did not believe it to be true;

 

(2) the matter is not true and he had not, prior to publishing it, taken reasonable steps to ascertain whether it was true or not;

 

(3) he intended to inflict greater injury by the publication than was reasonable in defending the values protected by section 15."

 

            The burden of proof concerning section 16(b) is on the Plaintiff (C.A. 134/67, Eban v. Disenchik [15]; C.A. 250/69, [14]), and if the circumstances set forth in section 15 have been proved and the publication did not go beyond what was reasonable, it would not be sufficient for the Plaintiff to show that the publication was not true in order to overcome the presumption of good faith. In other words, it is not enough that the Plaintiff show, for example, that the expression of opinion concerning the conduct of a director general of a public company was not true, but he must also prove additional elements, collected in subsections (1) to (3) of section 16(b), in order to rebut the presumption of good faith. Therefore, there is no basis for the lower court's opinion that:

           

"the concepts of good faith and truth ... are bound together for purposes of the defense against defamation."

 

            With regard to the connection between expressions of opinion and the truth, we have nothing other than the provisions of section 16(b), according to which the absence of truth per se does not negate the defense of good faith, unless additional elements are present as enumerated in this subsection. The lower court's decision would have the effect of emptying section 16(b) of all meaning.

 

            As indicated in subparagraph B above, publications are classified according to their dominant character, so that even if incidental factual details of minor importance become interwoven with expressions of opinion, this would not affect the classification of the publication for purposes of applying section 15(4) of the Law, even if it transpires that some of the factual details are untrue, so long as there are other truthful elements in the publication upon which the expression of opinion was based.

           

            A similar idea appears in the provisions of section 6 of the English Defamation Act, 1952, which states that when the words about which the plaintiff complains are composed -

           

"... Partly of allegation of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained as are proved."

 

            D. With regard to the matter of reasonableness: A substantial part of the lower court's judgment is devoted to the dispute about the reasonableness of the Appellants' assertions. This, for example, is how the lower court reacted to the Appellants' assertion -

           

"if they [the Respondents] had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car would fetch the proper price in the used car market."

 

The court said:

 

"As stated above, this assertion could be construed as the continuation of the above conclusions of the Goldberg agency employees or it could be construed as an expression of opinion on the part of the author of the article. It is irrelevant which of these is chosen since in any case it does not satisfy the test of reasonableness and reasonableness is a basic element of good faith" (My emphasis - M.S.).

           

            Following upon these words, the lower court set out in detail why it thought the appellants had erred in their conclusion concerning the price of the car and why it was preferable in the circumstances of the case not to have rushed to sell the car but to have continued to search for a buyer who would offer a higher price.

           

            It follows clearly that the lower court was mistaken about the nature of the good faith defense and the element of reasonableness included in it. Section 16(a) provides that the defendant will be presumed to have made the publication in good faith if the following two conditions are met: (a) the publication was made in one of the circumstances referred to in section 15 and (b) it did not exceed what was reasonable in such circumstances. The reasonableness demanded here does not mean that the opinion expressed in the publication must be the only, single and exclusive conclusion which can be drawn from the circumstances by pure logical reasoning. The condition not to exceed what was reasonable in the circumstances does not mean that in order for the publication to be protected it must contain only that one interpretation of the events, among several, which the court selects as the most reasonable. The element of reasonableness dealt with by Section 16(a) means that the publication should not diverge, in its wording and its relationship with the events upon which it is based, from every possible logical connection with the facts, such as if someone is called a robber and thief only because he was one day late in settling a debt. There is no attempt in the Law, even indirectly, to coerce any single uniform line of thought and it should not be interpreted as doing so.

           

            The defense of expression of opinion also does not fail because of the derogatory criticism or absence of objectivity in the publication and that does not derogate from its reasonableness. The fact that the publication's wording may not be to the taste of a moderate balanced person does not make it unreasonable. The court may not impose its taste and its logic on the publisher. It must leave room for the strong expression of opinions. The test is as laid down by Lord Esher:

           

            "Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that...." (Merivale v. Carson 1887, 20 Q.B.D. 275, 291, [24]).

 

Lord Denning commented in similar vein:

 

"These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy.... Another person may only read into them imputations of inconsistency and want of candour.... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was educated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words contained derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.... I stress this because the right of fair comment is one of the essential elements which go to make our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspaper should be free to publish his letter. It is often the only way to get things put right...." (Slim v. Daily Telegraph, Ltd. (1968), 1 All E.R. 497, 503, [21]).

 

            14. In the matter before us - that is, the failure to prove the truth of a defamatory publication containing imputations of dishonorable and corrupt motives - the English precedents are noteworthy for their lack of uniformity and even contradictions. Contrary to the strict approach toward such publications and the tendency to grant a defense only to such publications which are founded in truth (as laid down by Justice Cockburn in Campbell v. Spottiswoode, 3 B. & S. 769, 776, 777, [25] on which my learned colleague, Justice Ben-Porat relied) the view of the law expounded by Justice Buckley in Peter Walker, Ltd. v. Hodgson (1909), [26], which differs to no small extent with the former opinion, is now the more accepted one. According to Justice Buckley:

 

"The defendant may nevertheless succeed upon his defence of fair comment, if he shows that that imputation of political bias, although defamatory, and - although not proved to have been founded in truth -, yet was an imputation in a matter of public interest made fairly and bona fide as the honest expression of the opinion of the defendant held upon the facts truly stated and was in the opinion of the jury warranted by the facts, in the sense that a fair minded man might upon those facts bona fide hold that opinion." (My emphasis - M.S.).

 

            That is to say, for this purpose, it is sufficient that a reasonable person could have reached the defamatory conclusion from the facts contained in the publication and that the facts on which he relied appeared in the body of the publication. In the opinion of the authors of the British Report on Defamation mentioned above, this approach clashes also with what was held in another judgment on which my esteemed colleague Justice Ben-Porat relied, that in Hunt v. Star Newspaper (1908) [27]. The opinion contained in the Walker case [26] was approved by the Commission and was also adopted by Gatley (7th edition, paragraph 728) and apparently is the accepted one today in England (paragraphs 164 and 166 of the Report and the judgments referred to therein).

           

            In light of the lack of uniformity in the judicial precedents, it is not surprising that the British jurists are displeased by the state of unclarity in the law of defamation in their country and that, for example, Lord Diplock (in the Slim case [21] referred to above) should conclude that

           

"... the law of defamation ... has passed beyond redemption by the courts."

 

These words should give us cause for extra thought before we draw upon the English precedents for the purpose of interpreting our own enacted law, whose principles are perfectly clear.

 

            All the less, therefore, is it important that we resolve the dispute between the parties before us whether the said Hunt precedent [27] is still valid and binding. In any event, the said English Commission expressed some doubt about this (paragraph 164 of the Report) and we need not re-examine its opinion.

           

            15. A. As can be gathered from the lower court's judgment, it set true cumulative conditions for allowing the defense contained in section 15 of the Law:

           

(a)        the published matter, both facts and opinions, must be true and

 

(b)   the expression of opinion must be reasonable in the eyes of the court sitting in judgment, with regard both to the considerations on which it is founded and to its logic.

 

            The court thus whittled down the defense under section 15 so critically as to empty it of all content: because, in any event, if the truth of the publication can be proved, then there is no longer any need to resort to the defense under section 15, and the lower court's interpretation of the Law would make this section superfluous. As was said in the above Grech case [23], (at p. 281):

           

"otherwise, it seems to me that the defence of fair comment would be almost valueless; for if the jury found that the words were not defamatory or - being defamatory - were true, then the defence of fair comment would not be needed."

 

            But the legislature did not commit the sin of tautology, as would follow by implication from acceptance of the lower court's theory. The function of the defense under sections 15 and 16 is substantially different from that described by the District Court: as explained above, the purpose is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical. The provisions of sections 15 and 16 do not invest the courts with the power of judicial censorship of truth and logic. They are a set of cumulative conditions whose aim is to deny the defense of good faith only to malicious publications, that is, those made in the knowledge that they were false or in reckless disregard of whether they were false or not.

 

            B. The clear nature and content of the extracts from the publication, quoted above in paragraph 12, which were the subject of the complaint, render them obviously expressions of opinion - that is, they are the author's conclusions founded on a set of factual particulars. This is their dominant characteristic, even if here and there certain factual assertions of secondary importance may have been attached to them. Hence, we must examine these extracts in the light of sections 15(4) and 16.

           

            Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion. Similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of "more than four months" as said in the article. So, too, it is of no importance that it was not "the agency's clerks" who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to convey his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, also shows that there were offers from car dealers "who thought they could get the car at this price," and the price set forth in the letter is "24,000-25,000 Israeli pounds".

           

            C. As stated, these extracts teach us that, save for the factual assertions to which we alluded above, we deal here with the expression of opinion, that is, conclusions drawn from a set of factual particulars, some of which were mentioned in the article and some not. The reasonable reader could not have mistakenly understood that these extracts conveyed factual information about a particular, express decision of the corporation not to sell the car, but it is evidently clear that the author drew conclusions, which seemed reasonable to him, from the facts of the case. If there remains any doubt whatsoever about whether this is anything more than an expression of opinion, then the words

 

          "if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it"

           

emphasize that this was a conclusion and an analogy, even argumentative in style, according to the author's logic, which sought to pinpoint the inconsistency in the acts and omissions of the corporation and its representatives.

 

            D. The claim that the author's conclusion is incorrect does not deprive it of the defense provided in section 16, since once the presumption of good faith arises, the Respondents must prove the existence of one of the circumstances set out in section 16(b), if they wish to rebut this presumption, and in this they did not succeed at all.

           

            With regard to section 16(b)(1): In the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant. The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing of time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

            Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b)(2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information in order to circumvent the barrier he himself created by his refusal.

           

            The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher "had not, prior to publishing it [the matter published], taken reasonable steps to ascertain whether it was true or not". But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b).

 

            I would like to note, incidentally, that I very much doubt whether the spokesman for a public authority may take it upon himself within the scope of his duties to apply sanctions against any section of the media. When an employee of a public authority is entrusted with the task of conducting public relations with the authority's clientele, he cannot behave, in the course of his duties, as though he is in his, or his employer's, own private domain. The justification for establishing such a function lies in the existence of the public's right to receive information about what is happening and it is only proper for the spokesman to behave accordingly.

 

            E. The District Court excluded from its considerations the criticism aimed against the very acquisition of the car. In this, too, I take issue with it. The description of this episode at the beginning of the article was not alleged to be defamatory, but when examining whether facts were presented which furnish a basis for the expression of the doubt and suspicion in the article, these matters should not be taken out of their general context. It is reasonable to assume that it was this very event which first and foremost triggered the doubts about the Respondents' judgments: when office holders in a government company have seen fit to provide themselves with a luxury, eye-gouging car in a period of recession, or before or after one, instead of meticulously observing the rules of modesty, which obligate them, and when they have persisted in denying the justice of criticism, then doubts and even scepticism may arise whether they had any proper sense, in this context, about what is proper and what is not, and about what is permissible and what should not be done. When all the events are links in one chain, it would be artificial if one did not recognize this element, too, as a possible factual basis for the criticism in the article. As already noted above more than once, the author does not have to convince the court of the justice of his evaluation but has only to show a factual foundation for his opinions and suspicions; and even if we might have come to a different conclusion, that is not sufficient in itself to undermine any conclusion about the author's good faith.

 

            F. Finally, the Respondents did not succeed in founding the argument based on section 16(b)(3).

           

            16. The Respondents could have put the Appellants' good faith to an immediate test had they taken action according to the provisions of section 17 of the Law which provides:

           

"(a) Where defamatory matter has been published in a newspaper, the plea of good faith shall not avail the editor of the newspaper, the person responsible for the publication of the defamatory matter or the publisher of the newspaper if, having been asked by the injured party or by one of the injured parties to publish a correction or denial on behalf of the injured party, he has not published the correction or denial in a manner as similar as possible to the publication of the defamatory matter and within a reasonable time from the receipt of the demand, provided that the demand was signed by the injured party, that the correction or denial contained no defamatory or other illegal matter and that the length of the correction or denial was not greater than was reasonable in the circumstances of the case.

 

(b) If the newspaper appeared less frequently than once a week, the correction or denial should also be published, upon demand of the injured person, in a daily newspaper."

 

            It is superfluous to add that section 17 is of the nature of a counter-measure against the burden of proof created by section 16(b) and is an efficient instrument for the immediate correction of the injury caused by a defamatory publication. Action in accord with section 17 in the case under consideration could have led to the immediate presentation of the matter in a true light, without waiting for the completion of legal proceedings, ten years later.

           

            17. The article expressed the author's beliefs and those of his sources of information and imputed to the Respondents an intention which they apparently did not have. But that in itself was not sufficient to deny them the defense of good faith anchored in sections 15(4) and 16(a) of the Law.

           

            These provisions of the Law are expressly designed to protect, also, those expressions of opinion which it transpires afterwards were not the truth, as long as the defense of good faith, bolstered by the presumptions in the Law, is available to the publisher of the defamatory matter. It is our task to maintain this defense, in practice and according to the letter of the Law and its intention and the tendencies that lie at its base. I would, therefore, allow the appeal and dismiss the judgment of the District Court.

           

Berinson J.:

 

            I concur with Justice Shamgar's opinion that the appeal should be allowed. Without entering into the details of his reasons and my own for justifying this result, I would like to clarify, in a few remarks only, my general stand in this matter.

           

            My first remark concerns the supreme value that must be accorded to the freedom of expression of the individual with respect to criticism of the conduct of a public functionary in a matter of public interest. In this matter, I understand there is no difference of opinion between my distinguished colleagues, and I join them. Nonetheless, I must repeat and emphasize what was expressly held by this court in the previous proceeding before it (C.A. 213/69, Electric Corporation v. Ha'aretz), that the press as such has no special standing and privilege vis-a-vis anyone else and it must take equal care not to violate the rules of the game laid down in the Law Forbidding Defamation, In Justice Witkon's words:

           

            "Where the ordinary citizen is entitled to regard himself as obliged to speak in criticism of another, a newspaper is also entitled to do so. Like the one so the other, no more and no less."

           

            My second remark is that one should attach special importance to the fact that the journalist, Mr. Kotler, drew both the information and the conclusion that he presented in his article, from a source which was more competent than any other to judge the Respondents' behavior in connection with the sale of the car - none other than the sales manager of the agency to which the car was given for sale - and the principal matters were given in his name. It is true that repetition of a libel is not forgivable and, on the contrary, repetition of a libel in a newspaper can greatly exacerbate matters. But in the case before us, account should be taken of the fact that the publication was based on information received from a competent person who was well-acquainted with the matter and the author himself, who was the Transport Correspondent for the newspaper, was not a "lightweight" and he had asked for the Corporation's comments on the matter before publication and was snubbed. There is no room for doubt that the publication was made in absolute good faith and without malicious intent, and good faith is the main basis for the defense under section 15 of the Law. Great support for the opinion expressed in the article and for the criticism can be found in the Corporation's employees. According to Mr. Kantor, senior employees of the Electric Corporation also thought that the car was returned for sale in order to deceive the public because of the criticism that had been leveled against its purchase. It is true that Mr. Kotler did not know about this at the time his article was published, but it does strengthen the reasonableness of the publication greatly, so that it may benefit from the presumption contained in section 16(a) of the Law to the effect that it was made in good faith. As Justice Shamgar explained in his judgment, the Respondents did not succeed in rebutting this presumption on the strength of one of the grounds contained in section 16(b) of the Law, and the appellants were accordingly entitled to the defense under sections 15(4) and 16(a) of the Law.

 

            Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation for the conclusions expressed and the criticism contained in it. The criticism itself could be exaggerated and unjustified, and this would not render the publication unreasonable. I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance. In this conection I concur with the words of Lord Denning in Slim v. Daily Telegraph, Ltd. (1968) 1 All E.R. 497, 503, [21] quoted by my colleague, which also reflect my general approach in this matter of expression of opinion in good faith about the conduct, acts or omissions of a public functionary in a matter which, according to all opinions, is of public importance.

 

            I therefore agree that the appeal should be allowed.

           

Ben-Porat J.:

 

            On 20.9.1966, the Israel Electric Corporation (the first Respondent) and its ex-Director General, Mr. Y. Peled (the second Respondent) bought a Chevrolet Impala car, model 1966, from the Leo Goldberg Company (the Goldberg agency) for Mr. Peled's use, to replace a similar model 1963 car, which had been in use until then. The price of the car, after a 500 Israeli pound reduction, was 33,500 Israeli pounds.

           

            On 22.10.1966, there appeared an article in the Ha'aretz newspaper which leveled severe criticism against the acquisition of a luxury car with public money during the period of recession which reigned in the country at the time. In light of the public criticism - which is not the subject at issue before us - the Respondent published a notice in the Ha'aretz and Maariv newspapers, on 8.11.1966, in which he sought to justify the purchase on economic grounds because of the condition of the old car, but stated, nevertheless, that:

           

          "I have decided to sell the new car and to continue to use the old one - so as to remove any and all cause for criticism, even if it is unjustified."

           

            On 17. 11. 1966, at a meeting of the Electric Corporation Board of Directors, a majority of the members approved of the Respondent's decision to sell the car and of his notice to the public to that effect. The Chairman even praised the Respondent "for the courage of his decision and the good example he had given which will have a positive response and will improve the Corporation's public image."

           

            On 29.11.1966, the car was transferred to the Goldberg agency to be sold. Before it was transferred, the Corporation offered to return the car to the Goldberg agency at a loss of several thousand pounds, but the agency refused to accept it. Nevertheless, they did agree to accept it for resale, promising to find a suitable buyer. An agreement was reached between Mr. Goldberg and Mr. Shagal, the Corporation's national transport manager, according to which Goldberg would inform Shagal about the price offered by any potential buyer so as to receive his approval.

 

            While the car was at the Goldberg agency, Mr. Yair Kotler, a journalist, published an article in Ha'aretz under the headline "The Electric Corporation Director General's Car". The Respondents had no complaints about the first part of the article, which we will skip over. But they found defamatory matter in the second part of the article (which will be quoted later) on which they based their action in the Tel Aviv District Court against the Ha'aretz newspaper, Messrs. Gershon Schocken and Eliahu Salpeter, and against the journalist, Mr. Yair Kotler (the first three hereinafter "Ha'aretz" and the fourth - Kotler). The action was allowed and hence the appeal before us, which concerns the allowing of the action and not the amount of the damages.

           

            2. At the beginning of the article it was pointed out that the price paid by the Corporation for the car was 33,500 Israeli pounds. After discussing the public criticism of the acquisition of the car and the Respondent's notice of his intention to sell it, the article goes on to say:

           

"Mr. Yaacov Peled (70), who is due to retire in October, resumed using his old car, a 1963 Chevrolet Impala.

 

The new car, in which Mr. Peled had already driven about 6000 kilometers, was returned to the agent in Tel Aviv, Mr. Leo Goldberg, so that he should sell it and return the proceeds to the Corporation."

 

            After this begins the part which the District Court thought condemned the Respondents as liars, not serious and cheaters (paragraph 28 of the judgment):

           

"More than four months have passed since the car was returned to the Goldberg agency, supposedly for sale, but the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten about the incident, the car will be returned to serve the retiring Director General, for it will then be a "used" 1966 model, since the end of the 1967 model year is approaching.

 

The Goldberg agency was instructed to sell the car, subject to the Corporation's prior approval. After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 Israeli pounds for the car. An official in the Electric Corporation's Transport Department refused to approve the sale. He advised the agency that even if it found a buyer for 28,000 pounds (which will never happen) they would have to receive his approval of the sale.

 

From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down, since, if they had decided to sell the car for reasons of public hygiene, what difference would it make what price they received for it? All that had to be ensured was that the car should fetch the proper price in the used car market.

…

 

The Ministry of Development should instruct the Electric Corporation management to sell the car without any further maneouvering."

 

            The paragraph which was omitted (indicated by the three dots), in which the Respondents found nothing wrong, says:

           

"It is not so easy to sell a luxury Impala such as that ordered by the Corporation for its Director General, Mr. Peled: with an automatic gear, an imported radio, an electric antenna and other luxury items which raise its price several thousand pounds above the standard price."

 

            3. The Appellants' learned counsel, Advocate Lieblich, argued before us that the District Court erred in several respects and that it should have accepted one of the two pleas which had been argued in defense: "truth" or "an expression of opinion in good faith". His arguments will be analysed, to the extent required, later. At this stage, I will deal with only one of them:

 

            At a certain stage in the proceedings, the Respondents petitioned the court to strike out one of the Appellants' defense pleas in limine. The issue went as far as the Supreme Court, which in fact ordered it stricken out (in C.A. 213/69). In the judgment the Supreme Court quoted, amongst other things, the following statement by the lower court judge in his judgment (paragraph 8):

           

"The insult which is the subject of the action is the condemning of the Appellants as liars and not serious people. The Appellants did not sue with regard to the first article which criticized the acquisition of an expensive new car during the period of recession. They sued with regard to the second article which imputed to them dishonesty and deceit."

 

            Later on in his judgment, which is the subject of the appeal before us, when discussing the question whether "the publication was 'defamatory' within the meaning of the Law", the District Court judge says (paragraph 27):

           

"After the Supreme Court held as it did in its judgment quoted above and said that the article 'condemned the Appellants [the Plaintiffs] as liars and not serious people', it would appear that I need not say anything further and am not required to decide anything in this matter."

 

            Advocate Lieblich argues that the learned judge was mistaken in regarding himself as bound by some supposed holding of the Supreme Court when in fact that court had merely set forth the Plaintiffs' arguments and nothing more.

           

            There is no doubt that the language of the paragraph quoted above supports this argument. However, not only did the learned judge later interpret the article independently and arrive at the same conclusion, but the Plaintiffs (the Respondents) made it clear in the lower court that they were not claiming that the writing had any special meaning, but were relying on its ordinary, natural meaning. I also have no doubt that if the Director General of a public institution announces publicly that he has decided to sell the car at his disposal, while handing it over for sale only in theory, with the intention of taking it back as soon as the incident will be forgotten, this would be improper, irresponsible conduct, tainted with prevarication and deceit. This would, to the best of my understanding, also be every reasonable reader's interpretation of what was written. As Lord Diplock said in the case of Slim v. Daily Telegraph (1968) 1 All E.R. 497, 501, 507, [21]:

 

            "This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words."

           

            The question is not, therefore, whether what was written imputes to the Respondents the conduct described above, but whether it was permissible for the Appellants to impute such conduct to them, because it is true or because it is an expression of opinion in good faith on a public matter.

           

            4. As is well known, the difference between these true defenses is considerable. As to the defense of truth, section 14 of the Law Forbidding Defamation, 5725-1965 (hereinafter the Law) puts the onus on the Defendant to prove that the expressions he used, which besmirch the Plaintiff s good name, reflect reality. The Defendant "established" a fact and he must show that it is true (save in the case of an incidental detail, as provided in the last part of section 14).

           

            On the other hand, the legislature's approach to the expression of opinion in good faith in a matter of public interest is very liberal, since freedom of expression and discussion concerning public matters constitutes one of the basic principles of every advanced society. Every unjustified limitation on freedom of expression necessarily prejudices this sacred principle which must be protected against any infringement.

           

            This defense is similar to the well-known English defense of "fair comment", although we must remember that we have before us an original Israeli law which must be interpreted according to its contents. We can, therefore, have recourse to an English precedent only to the extent that what it says is consistent with the provisions of our law and is acceptable to us as an interpretion of those provisions.

           

            As to the extent of liberality of the "fair comment" defense, I agree with Lord Esher in the well-known case of Merivale v. Carson (1887) 20 Q.B.D. 275, 191, [24]:

           

"Every latitude must be given to opinion and to prejudice and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment.... Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit."

 

The determining question according to him is:

 

"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work [I would add, or conduct] which he criticized?"

 

            This test appeals to me, but subject to Lord Porter's comment in Turner v. Metro-Goldwyn-mayer Pictures (1950) 1 All E.R. 449, 461. [228] that one should exchange the word "fair" to "honest". The exaggeration, the obstinacy and the prejudice of the publisher, which do not necessarily deny the defense to the criticism, are inconsistent with the concept of "fairness", but are not inconsistent with the concept of "good faith", which is nothing other than honesty.

           

            I find support for the test laid down by Lord Esher, on the one hand, with the change suggested by him, on the other hand, on page 38 of the Report of the Committee on Defamation, of March 1975. See also Thomas v. Bradbury, Agnew & Co. (1906) [29], and Lord Attenborough in Carr v. Hood (1808) 170 E.R. 983, 985, [30].

           

            This approach accords with the wording of section 15(4) of the Law, but at the same time attention must be paid to the presumptions concerning the presence or absence of good faith in section 16 - that is, that the publication "did not exceed what was reasonable under such circumstances".

           

            What justifies the great difference between the stringent demand that truth be proved, in section 14 of the Law, and so liberal an attitude toward expressions of opinion in good faith? Why, for example, should a prejudiced critic be protected, even if his criticism be exaggerated and his language biting, only because he honestly believed in the opinion he expressed, whereas someone who made a factual assertion (as opposed to an opinion) will suffer the consequences, even though his error is honest, and even reasonable?

 

            The explanation can be found in very old English judgments to the effect that a person who relies on "the expression of opinion in good faith" must bring the factual basis for his opinion to the reader's attention - and those facts must be true. In this way he enables the reasonable reader to judge for himself whether the opinion is well-founded or not. In the words of Judge Wilde in Popham v. Pickburn (1862) 158 E.R. 730, 733, [31]:

           

"To charge a man incorrectly with a disgraceful act is very different from commenting on a fact relating to him truly stated, - there, the writer may, by his opinion, libel himself rather than the subject of his remarks."

 

            A second, logically necessary, demand is that it be made sufficiently clear in the publication what is claimed as fact and what constitutes an expression of opinion. Therefore, if the subject matter of the criticism is a book, an artistic creation, a newspaper and the like - then, since they are available to the interested reader, it is sufficient if the publication refers to that source and it is not expected that it actually produce the creation. As Lord Porter commented in Kemsley v. Foot and Others (1952) 1 All E.R. 501, 505, [32]:

 

"Accordingly, its contents and conduct are open to comment on the ground that the public have - at least - [my emphasis] the opportunity of ascertaining for themselves the subject-matter on which the comment is founded."

 

            The distinguished judge later refers approvingly to Odgers on libel and Slander (5th ed. 1911). Since the passage which he quotes in his judgment is appropriate, in my opinion, to our case, I shall reproduce it here, while emphasizing those words which appear to me of particular importance:

           

            "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful,' this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well-founded; and therefore, what would otherwise have been an allegation of fact - becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege of truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference - without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment.

 

But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact."

 

            I see no need to take a stand in this case on the question of whether it is necessary to detail all the facts on which the critic's opinion is founded. At least from Lord Oaksey's judgment in the above Kemsley case it follows that there is no such obligation and the same has been understood to be Lord Denning's opinion in London Artists, Ltd. v. Littler (1969) 2 All E.R. 193, 198, [19]. In the absence of any such express demand in the provisions of our Law, I am prepared to assume (without reaching any final decision on the matter) that here, too, there is no obligation to publish all the facts which led the publisher to form the opinion he expressed. However, at the same time, one must always remember the idea that lies at the basis of the substantial difference between the defense of "truth" and that of "expression of opinion in good faith". As explained above, the justification for the broad scope of the latter defense lies in the reasonable possibility afforded the reading public - and the subject is after all of interest to it - to judge for itself if what appears in the facts detailed in the article leads to the opinion founded on those facts. Hence, the double obligation imposed on the person seeking the protection of this defense: first, to reveal at least the main facts on which his opinion is founded; and, second, to make it clear, to a sufficient degree, to the ordinary reading public that what is derogatory to the person's good name is purely an expression of opinion. Therefore, if the general impression made by the publication is that the derogatory part is a determination of fact, or that it is an expression of opinion founded on extrinsic facts within the publisher's knowledge, then the defense of "expression of opinion in good faith" will not be available to the publisher, and only the defense of "truth" (or "permitted publication" within the meaning of section 13 of the Law) will be at his disposal. Concerning an opinion ostensibly founded on extrinsic facts I refer to Judge Fletcher Moulton's judgment in Hunt v. Star Newspaper Corp. (1908), [27] , which is still valid.

 

            The question arises whether the publisher of defamatory matter can resort to the argument that he received his information from a reliable source, or that he relied on rumors whose credibility he believed. The answer is in the negative, although when the court fixes the damages, it may take into consideration, in the defendant's favor, the fact that this was a repetition of something said before and the publisher had indicated the source on which he relied (section 19(1) of the Law).

           

            I emphasized the word "may" because sometimes the very repetition exacerbates the injury. In this connection, I am in accord with the words of Judge Morris in Lewis v. Daily Telegraph Ltd. (1963) 2 All E.R. 11, 161-167, [20]:

           

            "To say that something is rumoured to be the fact is, if the words are defamatory, a republication of the libel. One cannot defend an action for libel by saying that one has been told the libel by someone else, for this might be only to make the libel worse.... Blackburn J. in Watkin v. Hall (1868) L.R. 3 Q.B.D. 396, 401 [33] ."

 

Further on he said:

 

"If one repeats a rumour one adds one's own authority to it, and implies that it is well founded, that is to say that it is true."

 

            At any rate, if the publisher does not make it absolutely clear that he is only repeating what someone else said then it will not even be a consideration for reducing the compensation to be awarded.

           

            Finally, before I analyse the article which is the subject matter of the issue before us, I wish to concur with those who distinguish between expressions of opinion on matters of taste, such as the quality of a work of music, a literary work or some known policy, and an expression of opinion concerning motives or intentions. Although a public functionary exposes himself to the criticism of the public by virtue of his functions, unfounded defamation of him should not be permitted. The classical form of this rule can be found in the words of Cockburn C.J. in the well-known case of Campbell v. Spottiswoode (1863) 122 E.R. 288, 290 [25]:

           

"But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid or wicked motives - unless there is so much ground - - for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements but that his belief was not without foundation. -"

 

            This approach is consistent with the language of section 15(4) of the Law: "the publication was an expression of opinion on the conduct of the injured party ... in connection with a public matter ... as revealed by such conduct". If the motive or intention of the injured party are not "revealed" by such conduct, the publisher's good faith will not avail him (here, too, save with respect to the amount of compensation to be awarded - section 19(2)).

  

                      5. I have examined the article as a whole, based on the above legal analysis, and have reached the conclusion that the Appellants' plea based on the defense of "expression of opinion in good faith" is not acceptable for several reasons:

         

          A. The Respondents' intention to deceive the public was presented in the article as an existing fact and not as the expression of the author's opinion based on facts presented. The words "supposedly" and "actually," which are not qualified in any manner whatsoever, appear in the first paragraph of that part of the article on which the action is based, as part and parcel of the other facts which precede and follow them.

         

          I have no cause for assuming, as a real possibility, that the newspaper's reading public, for whom the article was intended, understood, or could have understood, from a perusal of the whole article that there was any room for doubt about the Respondents' bad intentions. The article in this case is completely different from the letter published by a person lacking any legal education in Slim v. Daily Telegraph, Ltd. (1968) [21]. There, a lawyer who was the legal adviser of a local authority, signed an order prohibiting the passage of vehicles, including motorcycles, on a certain road, and then, after joining a certain company, changed his position and argued that the company was entitled to use the road for its lorries. The Respondent wrote in his letter that in light of the lawyer's conflicting opinions, which varied according to the interests of his clients, one could not disagree with those who view such conduct with a measure of cynicism. The lawyer argued that the readers could interpret these words as referring to conduct unbecoming to his profession. The court held, rightly with all due respect, that the deciding factor was not the interpretation of one particular reader or another but the fact that this was an expression of opinion in good faith in a matter of public interest. Each reader was given the opportunity, on the strength of the conduct described, to judge for himself whether the comment was well-founded or not and the critic could not be held responsible for others' opinions. Furthermore, even if the writer expressed himself in a rough and unsuccessful manner and even if he were prejudiced against lawyers as such, that would still not remove the matter from the defense of criticism in good faith.

         

            The present case is not similar. Rather, it resembles to some extent, despite many differences, the subject matter of the above London Artists case [19]. Four leading actors announced, separately but at the same time and in the same language, that they were resigning their posts. Such an occurrence was unprecedented at that time in the theatrical world and could have led to the termination of the production which the defendant had been presenting very successfully for two years in a prestigious theater. Some time before the letters of resignation were received, the defendant was asked by the management to move the production to another, more modest, theatre, but he refused to do so unless he were offered attractive consideration. The defendant was convinced that the "combined" resignation after his refusal was nothing more than a conspiracy against him in order to effect his departure from the theater. He was so convinced of this that he organized a press conference at which he read his reply to the actors who had resigned. In his letter to one of the actresses (that was quoted in the judgment) he complained that she had not seen fit to come to him

           

            "before being a party to what, on the face of it, appears to be a plan to close the run of 'The Right Honourable Gentleman'...."

 

            Despite the guarded language (at the beginning of the letter), the court decided, upon a reading of the whole letter, that the allegation of a plot was a statement of fact. In the words of Lord Denning:

           

"... on a fair reading of the whole letter, I think the allegation of a plot was a statement of fact. The first paragraph runs in guarded language 'it appears' and the fourth paragraph says 'in other words', but the last paragraph speaks of 'the combined effort'. Reading the letter as a whole, I have no doubt that it stated as a fact that there was a plot ...."

 

            Edmund Davies L.J., as well, regarded the plot as a statement of fact, the fruit of the defendant's invention, and quoted from the above Hunt case [27], as a rule with which he concurred, that an expression of opinion must appear as an expression of opinion and must not be so entangled with facts that the reader cannot distinguish between them.

           

 Incidentally, the very reliance on the Hunt judgment [27] in 1969 undermines the Appellants' counsel's argument that its ruling no longer holds.

 

            In our case, the impression made by the first paragraph described above is not weakened, and is certainly not negated, by a reading of the continuation. On the contrary, even the few facts in the second paragraph (on which I shall tarry later) are connected mainly, if not only, with the paragraph after it:

           

          "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

           

            The words "from this" indicate that the facts in the previous paragraph are what moved those same employees to reach their conclusion.

           

            It follows that the first paragraph - in which there is no hint of reliance on someone else's conclusions - appears as the correspondent's factual finding and, in my opinion, it must therefore be regarded as such despite the fact that he actually relied (as appeared from his testimony) both on the information from, and the conclusion of, the Goldberg agency's sales manager. The repeated reference (later in the article) to the conclusion of the "employees" (in the plural) does not (as should be recalled) relieve Mr. Kotler of his responsibility.

           

            B. Even if I should assume, contrary to my view, that Mr. Kotler's imputation that the Respondents intended to deceive the public is an expression of opinion in good faith, this would not change the conclusion which I reached. The reason is that there must always be some mutual relationship between the facts and the opinion expressed. True, it is not necessary that the court's opinion be more lenient than that contained in the publication. Nor does it matter that different readers could draw different conclusions from a reading of the article. But as was stated in the interesting article, Van Vechten Vieder, Freedom of Public Discussion, (1909) 23 Harv. L. Rev. 412, 424:

           

          "... it must not introduce new and independent defamatory matter, or draw inferences or conclusions wholly irrelevant or out of all proportion to the given facts which supply the basis of comment."

           

            (And see also McQuire v. Western Morning News Co., Ltd. (1903), [34].)

           

            The absence of any such minimal connection converts what is assumed to be an expression of opinion into a fact whose truth has to be proved.

           

            In London Artists [19], there was a fortuitous combination of several unusual events which led the respondent to believe in all honesty that the plaintiffs had plotted against him. If he had been required to prove the truth of his allegation (as he attempted to do initially) his defense would very soon have foundered as, in fact, there was no connection between the events. But when presenting these facts to the reasonable reader, before the circumstances were clarified, some persons might - perhaps - have argued that some of the readers could have suspected a plot, as the respondent did. It should be remembered that in the case of an expression of opinion, the defense will not fail merely because in fact it was not true: Merivale v. Carson (1887) 20 Q.B.D. 275, 281, [24]. Lord Denning held, in the said judgment, that there was not a sufficient mutual relationship between the events and the conclusion concerning a plot, so that the defense of criticism in good faith was not applicable to the case.

           

            All the more is this so in our case. Even if the Respondent erred by conditioning the sale upon its own prior approval and by not accepting the buyer's (singular) offer of 24,000-25,000 Israeli pounds, and by declaring that even an offer of 28,000 pounds would require its approval, this did not provide sufficient grounds for the conclusion that the whole affair was bluff and deception. It is most certainly permissible to criticize the manner in which an institution chooses to sell its vehicle and the fact that it sought an unrealistic price (on the assumption that the price of 28,000 pounds at a time of recession was such), but from this to the conclusion contained in the article is a far cry. Incidentally, the testimony of the experts concerning a realistic price at the time was contradictory (see Orbach at page 237 and Gonen at page 220). It should not be forgotten that the article stated that the car had cost the Respondent 33,500 pounds and that the Respondent had used it for only a very short time and had driven only 6000 kilometers. In the circumstances, since the car was almost new, is the reluctance to lose more than 5,000 or 5,500 pounds, so extraordinary as to justify an imputation of deceit and prevarication? It should also not be forgotten, as was mentioned in the article, that the Respondent had published his decision to sell the car in two newspapers (Ha'aretz and Maariv). Very strong evidence was required in order to refute the sincerity of the Respondent's intention, as appears prima facie from such a notice, to adhere to his public promise. As said in Odgers, 6th ed., at p. 162:

 

"... the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct."

 

            C. It may be noted that there are inaccuracies in the facts detailed in the article whose accumulated weight is not negligible, some of which even raise prima facie doubt as to the author's good faith.

           

            It is well-known that minor inaccuracies do not cause the plea to fail: Gooch v. N.Z. Financial Times (1933), [35], although there is a contrary opinion with which, with all due respect, I do not concur: see Lord Porter in the Kemsley case, [32], at p. 506:

           

"In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence."

 

            It appears to me that just as section 14 of the Law provides that the defense of "truth" shall not be denied by reason only that an incidental detail which is not actually injurious has not been proved, so too should the same rule apply to the defense of "expression of opinion in good faith". Nevertheless, I emphasized the word "only" as it hints at the possibility that inaccuracies might carry some weight which might be combined with other considerations, if there be such, to the disadvantage of that defense. This can be understood also from the judgment in Gooch [35], in which the applicability of the defense of "fair comment" was recognized in circumstances in which

         

   "the errors of fact were of minor importance and the article, which was written in good faith, deserved no condemnation but commendation."

 

            It is apparent from the content of the article referred to there that the minor inaccuracies in that case stood alone.

           

            I shall now consider the inaccuracies (in the article in our case), skipping, naturally, those matters which directly impute to the Respondents the intention to deceive (and which according to my assumption at this stage, in contrast to my opinion, constitute "an expression of opinion"):

           

(a) "More than four months have passed since the car was returned to the Goldberg Agency ... for sale."

 

            As will be recalled, the car was not transferred to the Goldberg agency until 29.11.1966 and from then until the article was published (14.3.67) only three and a half months passed. Mr. Kotler testified that the sole source of his information was Mr. Ben-Ami Amir, the Goldberg agency's sales manager. The latter testified that he had been in charge of the sale of the car from the beginning. It could be thought that Mr. Amir, by virtue of his duties in general and this special mission in particular, knew or at least could have found out, what the real passage of time was. In these circumstances, the very fact of the inaccuracy calls for further explanation, even though, in and of itself, it is of little weight.

           

(b) ("but actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will returned to serve the retiring Director General,) for it will then be a 'used' 1966 model, since the end of the 1967 model year is approaching." (I quoted in parenthesis the portion referring to the Corporation's intention for purposes of continuity.)

 

            The District Court found in its judgment, on the strength of testimony which the learned judge found credible, that the model year of an American car, as distinguished from a European one, starts at the beginning of the Gregorian year, although a new model car can  already be obtained toward the end of the previous year. For example, a l 967 model can be acquired in December (and in exceptional cases even in November) 1966. This finding contradicts Mr. Kotler's argument that the 1967 model was already being sold in September 1966, when the Respondents received the car. The Goldberg agency deals mainly with the sale of Chevrolets and it is difficult to believe that their sales manager of many years was not aware of this detail. It follows that by the middle of March 1967, less than a quarter of the model year had passed. In light of this fact, the words "since the end of the 1967 model year is approaching" do not, in my view, constitute an incidental detail of little importance, and they even cast additional doubt on Mr. Kotler's good faith, or that of his source of information - Mr. Amir.

 

            (c) The next paragraph states:

           

"After considerable effort, the agency's staff found a purchaser who offered 24,000-25,000 pounds for the car. The Electric Corporation's transport officer refused to approve the sale."

 

            If we had had to depend on the Appellants' witnesses I would have held without any hesitation - although I did not have the advantage of seeing and hearing the witnesses - that there was no evidentiary basis even for this claim. My reasons for reaching this conclusion are as follows:

           

            The witness Shlomo Yaacobi said that he had been at the time the only bidder (and this actually fits in with the word "buyer" in the singular in the article) and added that at first he offered Goldberg 25,000 Israeli pounds but afterwards raised the price to 25,500 pounds, which he claimed was comparatively higher than the market rate at that time. But he said in his testimony that during the course of negotiations he had telephoned Ha'aretz and told Mr. Kotler that he (Mr. Kotler) was correct in alleging that the car was not for sale. It is clear that the article had already been written at the time of that conversation, and (it must be assumed) that the witness gathered from its contents what the opinion of the author was. And when he was cross-examined on this he said: "it is possible that my first (my emphasis) contact was after 25.3.1967" (p. 11) and that "it is possible that in the light of the fact that the publication concerning the presence of the car with Goldberg was on 14.3.1967, my contact was after that date" (p. 12). It is clear that what is determinative is the state of affairs at the time the article was published and this testimony therefore becomes valueless, particularly since the burden of proof rests on the Defendants.

 

            The witness Yaacov Beckerman related that he was in the habit of getting in touch several times a week with all of the companies dealing with cars, including the Goldberg agency. That way he learned from Mr. Amir that there was an "almost completely new" car. According to him, he had to take the trouble to come no less than three times before he was able to see it, since this required special permission from Mr. Goldberg. He went with Mr. Amir to the warehouse where the car was. "It looked nice, but very dusty." When he asked what the price was he was told that he had to make an offer and this appeared unusual to him. He offered 22,000 pounds and Mr. Amir promised to give him an answer. After this visit, three months passed before he met Mr. Goldberg (p. 51). He again started with an offer of 22,000 pounds and raised it to 24,000 pounds, but he was informed that the Electric Corporation's approval had to be obtained. Up to this point the testimony appears reasonable, but elsewhere (p. 57) he declares, surprisingly, "I told Ben-Ami my offer to buy the car for 22,000 pounds without seeing it, and I saw it for the first time after the article" (my emphases). This did not prevent him from saying in another place (p. 83): "After I saw it I thought to myself that it was worth 22,000 pounds."

           

            The lapse of time of three months between his first visit, when Mr. Amir showed him the car, and his meeting with Mr. Goldberg, also goes up in smoke, as he says later (p. 62), "When I came to Goldberg it was already, as far as I can remember, after I had seen the car on that same day. It seems to me that all this happened at the same time. When I went in to examine the car and had just seen it Ben-Ami told me that it had done 6000 kilometers."

           

            Furthermore: Mr. Amir said in his testimony that the location of the car did not disturb his efforts to sell it, a matter I shall discuss more fully later. In any event, it is clear that Mr. Amir's testimony is not consistent with the great difficulty Mr. Beckerman had when he sought to see the car.

           

            But the Appellants' work was done for them in this matter by Mr. Shagal, the Respondent's transport manager, who said (at p. 273):

           

"From time to time there were offers. I received notice about them from Ben-Ami. There were three offers that I remember: 22,000, 24,000 and, lastly, 25,000-26,000. I do not remember if the last offer (my emphasis) was before or after the article. I remember that I reported it to Mr. Peled in April 1967. I do not remember when the second article appeared."

 

            Since it is known that the article was published on 14.3.1967, it follows that Mr. Shagal received two offers before then, the higher of which was 24,000 pounds. It was therefore not correct to write in the article that there was an offer from a buyer of 24,000-25,000 poounds.

           

            The correct facts alongside those detailed in the article are, therefore, as follows:

           

a.     The car was at the Goldberg agency for three and a half months and not for more than four months, as written;

           

b.    By then, the end of the first quarter of the 1967 model year was approaching and not the end of the model year itself.

           

c.     The offer that was rejected by the Respondent was for 24,000 pounds and not 24,000-25,000 pounds, as was published.

           

            In my opinion these are not inaccuracies whose cumulative weight amounts to "an incidental detail which is not actually injurious" within the meaning of section 14 of the Law which deals with the defense of truth, especially since they do not stand alone, but are in addition to the other considerations because of which the defense of "expression of opinion in good faith" is not available to the Appellants.

           

            For this reason, too, my conclusion is that this plea should be dismissed.

           

            6. But I am prepared to proceed on the assumption (contrary to my opinion) that there is no need to include within the body of the article even a minimal factual foundation so as to enable the reader to decide, for himself, if the opinion expressed has grounds, and that it is possible to content oneself with the facts published, so long the defendant (in our case the Appellants) produces in the course of the proceedings supplementary facts which together provide a proper factual basis. likewise I proceed on the assumption (again contrary to my opinion) that the imputation of an intention to deceive was an expression of opinion and not the establishment of a fact.

 

            On the basis of these assumptions, I will examine what facts, of which Kotler was aware when he published his article, were proved in the course of the action. I have limited myself as emphasized, since the facts of which he had no knowledge could in any case have had no part in the formation of his opinion. See Gatley on Libel and Slander, 7th ed., p. 293, near line 6.

           

            As already noted, Mr. Kotler testified that his information was based on one source only: Mr. Ben-Ami Amir, the Goldberg Company's sales manager (p. 209). According to him, Mr. Amir concluded that the Electric Corporation only wished to gain time based on the consideration "that otherwise it was not possible that they would place a car intended for sale in a warehouse, where it would become covered with dust for four months" (p. 214). During the course of his testimony he returned to the concealment of the car as the central consideration for his conclusion. For example, the following statements made by him appear in the protocol (at the end of p. 210 and the beginning of p. 21l):

           

"He [Ben-Ami Amir] explained to me that the car was brought to the company's warehouse but they hid it from the eyes of the public, that is, they did not want to sell it, because if you want to sell you display it. Ben-Ami Amir told me that in fact they did not wish to sell the car and that is what I wrote.

 

The car was hidden by Goldberg, apparently upon the instructions of the Electric Corporation and that is why I wrote that the car was supposedly put up for sale".

 

            It follows that even in the first paragraph of the part of the article upon which the action was based, Mr. Kotler was not other than Mr. Amir's mouthpiece, but this was not made clear to the readers.

           

            With regard to the importance that Mr. Amir attaches to the concealment of the car, as appears clearly from the above quotation, it is worth noting that this fact is not at all mentioned in the article, and what is still more important - it is not consistent with Mr. Amir's own testimony, in which he said:

           

"It is two that when they brought the car for sale to the Goldberg garage they told me to try and sell it and I really tried to sell it.... I did everything to find a buyer. I don't know why I didn't move the car and place it amongst the used cars that were for sale. I am mostly interested in selling new cars, not old ones.... I don't think that I said that the fact that it stood there was an obstacle. I did not emphasize this. True, it was not visible to people. But this was not an obstacle. The location of the car did not impede its sale".

 

Incidentally, Mr. Shagal testified as follows (pp. 273- 274):

 

"I gave the car to an agent and it was placed in a garage which was in fact a yard. Afterwards, Mr. Peled's driver, who happened to be there in the course of attending to another car and who saw that the car was very neglected, got in touch with me. I then phoned Mr. Ben-Ami and as a result the car was stored in a place where new cars were stored. I was there. Ben-Ami complied with my request unreservedly. The car was in a closed warehouse which served as a place for storing Chevrolets. It is not a basement. It was not deep down. I saw new cars there. The choice was between an open area and this place, because I did not presume to ask him to put the car in the display window since there was room there for only two cars and I saw two new cars there."

 

            In any event, Mr. Amir's testimony is sufficient to refute the main consideration which moved Mr. Kotler to write "supposedly", that is to impute to the Respondent the intention described above. Furthermore, according to him, this was the explanation which he received from Mr. Amir, and if that is the case then they contradict each other.

           

            It should be noted that even the significance of the fact that the Respondent conditioned the sale of the car on its prior approval is lessened, to a not inconsiderable extent, by Mr. Amir's testimony, since he said (p. 37):

           

"Although this is not usual, in any event there is nothing wrong in someone saying that I should receive his approval before I sell a car. The purchase of a used car is sometimes concluded in a minute. There should be a ceiling price. If there is not - then one must call for approval. There is nothing improper in this."

 

            I am aware of the fact that in another part of his testimony he converted this into almost the main consideration for the conclusion concerning the absence of any real intention to sell the car, but, after all, the burden of proof rests on the Defendants.

           

            On this point, too, it is worth turning to Mr. Shagal's testimony, who told Mr. Amir more than once that he was not prepared to lose more than 5,000 pounds. This testimony accords with the figure of 28,000 pounds that appears in the article. And in fact Mr. Shagal added in his testimony that he advised Mr. Peled to accept an offer of this sum if tendered.

           

            The fact that the Corporation did not ask for an assessment of the car by an assessor is not particularly surprising. After all the Respondent had paid 33,500 pounds for the car a short time earlier, after receiving a rebate of 500 pounds. The car had been driven 5,000 kilometers, according to the learned judge (and not 6,000 as written in the article - an inaccuracy with which I do not deal). It was suggested that Mr. Goldberg take it back for 30,000 pounds, but he refused to do so and recommended that the car be left with him to be sold. We speak about a transport manager of a large company with a lot of experience, both in sales and in general, as well as the owner of an agency for selling cars of the same kind. Is it possible that in such circumstances it was not clear what the approximate value of the car was and what price the seller could expect to get for it? So when the offers failed to come in, Mr. Shagal "descended" from 30,000 to a minimum of 28,000 pounds, and according to his testimony (it will be recalled) he informed Mr. Amir that he was not prepared to lose more than 5,000 pounds, and hence, apparently, came the need to receive the Corporation's approval if an offer of 28,000 pounds was made, that is if the loss should amount to a little more than the ceiling he laid down.

 

          The fact that a practically new car was not sold by means of a public tender could, as stated above, perhaps be a subject for public debate and criticism, although this could be seen as an exceptional case requiring unusual treatment. The Respondent's version of events in his testimony, to the effect that in this special case in particular he wished to insist on as small a loss as possible, seems reasonable and I do not intend taking a stand on whether calling for tenders - as the witness Kantor thought should have been done - would have been a more effective way to achieve the desired end.

         

          In any event the judge was correct, in my opinion, in holding that there was no connection between these matters and the subject at issue. Furthermore, I did not find in the testimonies of Messrs. Kotler and Amir any hint that they knew of, or even considered, the standard practices of the corporation, in general, and with regard to sales by tender in particular. There is no need to state once again that a fact which was not considered by the publisher is not available to him on which to base the opinion he expressed.

         

          7. Notwithstanding several doubts arising from the detailed factual inaccuracies, I am prepared to conclude that Mr. Kotler published his article in good faith based on the fact that before doing so he contacted the Respondent in order to get his reactions, but was informed that the latter would have nothing to do with him.

         

          But good faith is not sufficient. The conditions which I enumerated above must be met before the defense of "expression of opinion" becomes available to the publisher: compare the London Artists case above [191. There, too, the defendant's good faith was not in doubt.

         

          8. Mr. Lieblich argued that the judge should not have relied on the letter from Mr. Leo Goldberg, as it was admitted at the time on condition that it would not serve as proof of the truth of its content.

         

          I do not think that this error - if indeed it is an error - is sufficient to change in any way the considerations from which I drew my conclusions. I said "if indeed it is an error" because Mr. Shagal in his testimony said that "what Leo Goldberg says in his letter is right" - an answer which prima facie makes the content of his letter acceptable as evidence.

 

            9. At this stage I had the opportunity to examine Justice Shamgar's opinion and I would like to comment that the judgment in the Campbell case [25], (at the end of paragraph 4 in his judgment) is, to the best of my knowledge, still recognized in England, and is referred to without any reservations in the House of Lords' judgment in Kemsley [32]. With all due respect, I do not think that the judgment in Walker, [26], changes anything, but only adds a further dimension to the existing situation. It is referred to, inter alia, in the London Artists case, [19] on which I in any event relied, and the conditions enumerated there are not present, in my opinion, in our case.

           

            Similarly, I regret to have to dissent from my distinguished colleague Justice Shamgar's description of the facts, which is based on a completely different evaluation of the testimony from that of the District Court judge. I examined very carefully both the evidence and the judgment of the District Court, which is the subject of this appeal, and I could not find any cause for interfering with the judge's factual findings based on his personal impressions of the witnesses who appeared before him.

           

            10. The plea of "truth" was also unfounded - a conclusion which derives directly from an analysis of the evidence and of the facts proved during the course of the action.

           

            There remains for me to consider, in this context, the argument of the Appellants' counsel that the judge should have permitted him to prove the Electric Corporation's practice that a retiring director general receives the car which had been in his use, as part of his retirement conditions.

           

            If they sought to prove an improper practice, then the answer depends on the interpretation of section 22 of the Law, which is intended, in general, to prevent the presentation of evidence, and the examination of witnesses, concerning past objectionable acts on the part of the injured party, save in so far as these particulars are directly relevant to the defamation which is the subject of the action. It is clear that "... one cannot prove intent - which is a matter of the heart - save by drawing conclusions from a complex of facts" (Cr.A. 215/58, [16], at p. 394). The "intent" therefore touches directly on the subject of the action. But what intent? That is to say - the intent to abide by the promise that was announced in the press to sell the particular car, in light of the public criticism of its acquisition. It appears to me that we would breach the dam which the legislator sought to impose in the said section 22 if we were to permit the alleged objectionable promise to be proved as evidence of an intent to break a promise to the public.

           

            In any event, even if we assume - in complete contradiction of the witnesses' answers to the questions of the Appellants' counsel, as noted in the court protocols - that there was such a practice and that evidence of it was admissible, there still would not be a factual basis for the intention imputed to the Respondents. I already pointed out above that the fact that a solemn promise is made publicly constitutes strong prima facie evidence of its sincerity, and this evidence is not rebutted by proof of past sins of the Corporation which employs the maker of the promise, if in fact there were such sins. It is also not conceivable that the Respondents would have dared to use that same car again, as long as the eyes of the media were focussed on their actions.

           

            In so far as the defense of "expression of opinion in good faith" is concerned, this promise has no importance ab initio, as there is no evidence (it will be recalled) that Messrs. Kotler and Amir knew about it and took it into account amongst their other considerations.

           

            11. In light of the above considerations I would dismiss the appeal.

           

            The appeal is allowed, by majority decision, and the judgment of the District Court is dismissed.

           

            The Respondents will bear the Appellants' costs in this Court and in the District Court, including advocates' fees, in the amount of 5,000 Israeli pounds.

           

            Judgment given today, 6 Adar 5737 (24.2.1977).

 

At the Supreme Court sitting as the Court for Civil Appeals

 

C.A. 8954/11

                       

Before:                                                            The Hon. Deputy Chief Justice M. Naor

The Hon. Justice S. Joubran

The Hon. Justice N. Sohlberg

 

The Appellant:                                    John Doe

                                               

V e r s u s

 

The Respondent:                                 1. Jane Doe

The formal Respondent:                     2. Jane Doe

 

An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, dated October 11, 2011, by Justice Gila Knafi-Steinitz

 

 

On behalf of the Appellant:                Adv. Ephraim Abramson, Adv. Yifat Aran

 

On behalf of the Respondents:           Adv. Amir Fischer

 

 

Judgment

 

Justice Noam Sohlberg:

"All human beings have three lives: public, private, and secret".

(-Gabriel Garcia Marques-)

Table of Contents

The Parties and the Main Facts...................................................................................... 3

The Parties' Main Arguments in the District Court........................................................ 4

Abstract of the District Court Judgment....................................................................... 6

The Main Arguments of the Appellant in the Appeal.................................................... 9

The Main Arguments of the Respondent in the Appeal.............................................. 12

The Normative Framework.......................................................................................... 15

Freedom of Expression and Artistic Freedom............................................................. 16

The Autobiographical Composition............................................................................. 18

The Right to Privacy.................................................................................................... 21

The Right to Privacy – Scope...................................................................................... 23

The Justifications for the Right to Privacy.................................................................. 24

The Intrinsic Justification............................................................................................. 24

Instrumental Justifications........................................................................................... 25

The Right to Privacy and Intimate Relationships........................................................ 29

English Law................................................................................................................. 31

The European Court of Human Rights........................................................................ 35

Continental Law.......................................................................................................... 36

U.S. Law...................................................................................................................... 38

Interim Summary – Foreign Law................................................................................. 40

The Normative Balance between the Rights................................................................ 40

Proportionality in the Narrow Sense – a Balance of Profit and Loss.......................... 41

Freedom of Speech and the Right to Privacy.............................................................. 43

From the General to the Particular – the Right to Privacy and Freedom of Speech... 48

Degree of Fictionalization............................................................................................ 49

The Degree of Invasion of Privacy.............................................................................. 52

Protection of the Trust Relations between Couples..................................................... 52

Freedom of Speech...................................................................................................... 53

Concern of Literary Work being Shelved.................................................................... 54

Copyright and Defamation.......................................................................................... 56

Consent of the Respondent......................................................................................... 56

Conclusion................................................................................................................... 57

Prologue

1. An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, (Justice Gila Knafi-Steinitz) which granted the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him. In addition, the Appellant was charged to pay damages to the Respondent in the amount of ILS 200,000 for her non-pecuniary damages.
2. The core issue at the center of the discussion is the question of the proper balance between the right to freedom of expression and artistic freedom on the one hand, and the right to privacy and a good reputation on the other.

The Parties and the Main Facts

3. The Appellant – a married man and father of children, who lived with his family in Jerusalem, is the author of the novel contemplated in this suit (hereinafter: the "Novel").
4. The Respondent was employed in a cinema in Jerusalem during 2001, was at that time a student in an art institute, and was living with her partner in the vicinity of the Appellant's neighborhood in Jerusalem. The details of her life were the Appellant's inspiration in writing the Novel; the Formal Respondent – the publisher – published the Novel.
5. In 2001, the Appellant met the Respondent at her workplace in the cinema. With time, the connection between the two deepened, and turned from an "acquaintance" to a close and intimate relationship, which lasted some five years – first in secrecy, then disclosed to the people close to them, and eventually published in the Novel. Following the exposure of the romantic relationship between the two, the Appellant divorced his wife and the Respondent separated from her partner.
6. In the midst of the romantic relationship, the Respondent was diligently preparing her graduation project, as part of her last year of studies, which mainly focused on a relationship developing between a man and a woman.
7. At the end of 2004, the Appellant began a work of his own, a first novel focusing on the "drama of breaking up a family" (as stated on the back of the book). The Novel describes an emerging intimate relationship between a man of the Appellant's age, who is discouraged by a non-fulfilling marriage, and a young student, starting with their first meeting at a cinema. The male-protagonist's occupation is identical to that of the Appellant; the cinema is the one in which the Respondent was employed. In the Novel, at the beginning of their acquaintance, the male-protagonist is a married man, father of children and living with his family in Jerusalem, whereas the female-protagonist, a single young-adult woman, rents an apartment in Jerusalem, close to the home of the male-protagonist, where she lives with her partner. Upon the completion of the exhausting work of writing, the Novel was published. The publication of the Novel was accompanied by a marketing campaign in the media, including an interview in the weekend supplement of a widely distributed newspaper, a TV interview and articles in newspapers and various websites.
8. Immediately upon the publication of the Novel, the Respondent contacted the Appellant and the Publisher and demanded to immediately stop the marketing and distribution of the Novel, to recall all copies already distributed, and to compensate her for her damages. According to her, the book is an accurate autobiographical description of the author's life, and it includes descriptions pertaining to the intimate aspect of the relationship between them, while severely violating her privacy and committing libel and slander: "in writing and publishing the book you breached the law, fatally violated her privacy pursuant to the provisions of Sections 2(8), 2(9), 2(10) of the Protection of Privacy Law… and published libel against her under Sections 1 and 2 of the Defamation (Prohibition) Law…" (letter of the Respondent's attorney, Adv. Amir Fishcer). The Respondent further claimed that the unlawful use of her personal letters for the purpose of writing the Novel establishes an independent cause of action under the Copyright Law.
9. Upon receipt of the said demand, the publisher notified the Respondent, in an unusual step, and without admitting to her claims, that it decided to temporarily cease the distribution of the Novel until the dispute is resolved. To that end, the publisher contacted the retail chains and bookstores and asked to retrieve the copies of the Novel that were yet unsold.
10. After some communication between the parties, and as the Respondent's said demands were not entirely fulfilled, the suit contemplated herein was filed to the Jerusalem District Court. On June 9, 2009, the Jerusalem District Court (Justice H. Ben Ami) granted the Petitioner's motion for a preliminary injunction prohibiting the distribution of the Novel written by the Appellant (M.C.M. 7649/09). A motion for permission to appeal, which was filed with this Court (L.C.A. 5395/09), was denied by Justice (his former title) A. Grunis, in his decision dated August 27, 2009.

The Parties' Main Arguments in the District Court

11. The Respondent's position is that the publication of the Novel and the its distribution severely infringe on her right to privacy, in violation of the Protection of Privacy Law, and further blemish her reputation in violation of the Defamation (Prohibition) Law. According to her, other than changing the names of the protagonists of the Novel, there is complete congruence between herself in her real life and the literary character of the female-protagonist of the Novel. For example, according to the Respondent, the book describes in an autobiographical manner and in "frightening accuracy" the Appellant's life during the time he had an intimate relationship with the Respondent; the female-protagonist's character includes many identifying details that are unique to the Respondent and enable members of her family and acquaintances to easily identify her; in addition, the author did not withhold  the internal and external realms of the Respondent's life, including her body, feelings, weaknesses, her most private secrets, her sexual activity and preferences, as well as her most intimate relationships. Moreover, according to the Respondent, the Appellant in his book, made breaching use of both her letters and her art from the graduation project, without obtaining the required consent and in violation of the provisions of the Copyright Law. With respect to the Publisher's responsibility, the Respondent argued that it knew, or at least should have known, that this is obviously an autobiographical book, and is therefore also liable for the offense and tort. With respect to the damage, the Respondent mentioned the distress caused to her, and the concomitant injury to her future personal and professional life.
12. On the other hand, the Appellant argued that the Novel he wrote is merely a fictional composition, that the real-life persons were nothing but an inspiration, and that the Novel most certainly is not a complete autobiographical and true description of the author's life. Two opinions were submitted on behalf of the Appellant by two experts of the highest caliber in the field of literature: Prof. Ariel Hirschfeld and Prof. Hannan Hever. Prof. Hirschfeld summarized his opinion in several conclusions, inter alia, that "Reading the Novel… it is absolutely clear that it has no pretense to reflect or record actual reality" (para. 32); "Accepting the claim would be a far-reaching precedent, whereby the mere possibility to identify any realistic model for a fictional character, even in the private context known to just a few, will be a violation of the law. In such case, the judicial authority undertakes the re-definition of literature and its boundaries, thus damaging the deep and essential principle of fiction, that which enables the freedom to create and interpret the human reality in its entire complexity" (para. 34). Prof. Hever summarized his opinion with the conclusion that "reviewing the aggregate weight of the existing hints… unequivocally indicates that the book deals with a creation of fiction, rather than real-life reality, and that no 'autobiographical contract' is entered into by the author and his readers. Such conclusion rebuts any claim which is based on such argument" (para. 3.3).
13. The Appellant argues that the source of the identification of the Respondent is the "confirmation bias" – a phenomenon whereby people adhere to similarities and ignore the existence of differences. The Appellant further argued that the Respondent gave her consent and even her blessing to the writing of the Novel. The Respondent read parts of the draft of the book and knew it would be about the affair she had with the Appellant, and therefore will naturally also include intimate details. The Appellant argued that attention should be paid to the fact that the Respondent refrained from reading the book prior to its publication, and thus waived the option to control its content. Moreover, the Respondent's acts amount to "false representation" to the Appellant that she will not deny the publication. According to him, once the Respondent's consented to the publication of the Novel, her argument regarding violation of her right to privacy is precluded. With respect to the Respondent's argument regarding her right to good reputation, the Appellant relies on the testimony of the author Mira Magen, whereby the personality of the female-protagonist, as it is portrayed in the Novel, is endearing in the eyes of the readers. According to him, this is not a humiliating expression, thus, it does not constitute defamation. The Appellant further noted that the Respondent submitted no evidence of the possibility to identify her, and therefore no "actual" injury to privacy had been proved. The Appellant further claimed that insofar as any damage had been caused to the Respondent's privacy, it should be balanced against his freedom of expression and artistic freedom. In such a balance, the freedom of expression prevails. In response to the Respondent's argument with respect to copyrights of her letters, the Appellant argued that their use in his book falls within "fair use". Alternatively, he argued that the Respondent gave her consent for such use. To conclude, the Appellant noted that taking the book off the shelves is inconceivable, for that is a serious and severe injury to freedom of expression and artistic freedom.
14. The Publisher repeated in its arguments some of the arguments raised by the Appellant, and emphasized that he presented the Novel to it as a fiction, hence it did not know, nor could it know, that the Novel is actually based on real events. The Publisher further noted that the Appellant stated, within the agreement therewith, that "his book is a fiction novel… the characters mentioned in it are fragments of the author’s imagination. Any resemblance to reality or to real people is completely coincidental and resulting from the author's imagination or the acquaintances he had in the course of his life" (Section 1.1a of the agreement). The Publisher further noted its fair conduct, from the moment it learned of the Respondent's claims, upon which it put halt to the sales of the book and had it removed from the shelves.

Abstract of the District Court Judgment

15. The District Court first reviewed the main argument of the experts on behalf of the Appellant, Messrs. Hirschfeld and Hever that "the mere publication of a composition as a work of fiction, which has the common literary characteristics of a work of fiction, creates an inseparable border between the content of the work and reality, and bars the review of the content of that composition as a documentary work which records reality" (para. 30 of the Judgment). In addition, the Court addressed the experts' main concern whereby "adopting the alternative position, whereby a work of literature, even when declared to be fictional, might be perceived as a violation of privacy, may lead to a slippery slope…" (ibid). In the second stage, the District Court noted that in this case there is "a dilemma, pertaining to the tension between two important values, which are perceived as two basic rights in a free and democratic society: artistic freedom on the one hand, and the right to privacy on the other" (para. 31 of the Judgment). At the third stage, the District Court ruled that "neither one of these rights can be granted absolute protection, and it is therefore also not possible to adopt  the sweeping position that mere publication as part of a work of literature is sufficient to bar consideration of the violation of privacy argument on its merits. The same position was adopted by the legislator" (para. 36 of the Judgment). The District Court thus denied, de facto, the argument that a fictional novel in itself – by virtue of its literary definition – grants its author absolute protection against any claim of violation of privacy. At the same time, the District Court reserved and stated that "the argument of violation of privacy based on fictional literature will not be easily accepted. The author's argument of fiction… is a weighty argument which has a substantial contribution to the prevention of the violation of privacy", however, it is not enough to exclude it altogether (para. 37 of the Judgment). "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (ibid).
16. Thereafter, the District Court reviewed the contemplated literary work itself, i.e. – is this a fictional novel, or "documentary literature disguised as a fictional novel" (para. 37 of the Judgment). Following a meticulous review, the District Court ruled that the "character of the female-protagonist in the book includes many unique identification details that identify the Plaintiff therewith in a definite and unequivocal way" (para. 40 of the Judgment). Such unique details include her "…physical appearance, informative details regarding her age, unique occupation, place of studies, work place and residence, details pertaining to her unique art work, identifying details of the defendant, her partner, and events that took place in reality in the presence of third parties…" (ibid). The inclusion of the said identifying details led the District Court to the conclusion that "the Respondent's family members, associates and acquaintances, will unquestionably identify the Respondent as the female-protagonist of this book" (para. 41 of the Judgment). The District Court further stated, in response to the Appellant's argument, that in order to prove the identification, there is no need to present witnesses who will expressly identify the literary character with the Respondent. Such identification transpires, according to the District Court, from the book itself.
17. Having reviewed and considered the parties' arguments with respect to the violation of privacy, the District Court concluded that the violation of the Respondent's privacy derives from the aggregate weight of two main components:
    
    1. The numerous identifying details that indicate that the Respondent, who is not a public figure, is unmistakably the female-protagonist of the Novel written by the Appellant;
    2. The number of issues exposed in the book that pertain to the core of the individual's privacy, and their scope and nature.

The aggregate weight of these two factors, according to the District Court, "rebuts the author's fiction argument " (para. 51 of the Judgment), and turns the Novel to a documentary book disguised as a fictional composition. In other words, the author "abused the characteristics of fictional literature, in order to document his relationship with the Plaintiff, while severely damaging her privacy" (ibid). The District Court emphasized that the violation of the Respondent's privacy could have easily been avoided "insofar as her character… would have been camouflaged and made indistinct by disguising details". However, the District Court noted that the Appellant's insistence on including in his book many details that identify the Respondent as the female-protagonist of his book, and his choice to stay as close to reality as possible work against him: "instead of 'distancing' the work from the Plaintiff, and detaching it from the milestones of the reality of his relationship… the Defendant chose to firmly anchor it in a specific reality, known and recognized not only to himself and the Plaintiff, but also to numerous third parties" (para. 52 of the Judgment).

18. The District Court denied the Appellant's argument that the Respondent ostensibly gave her consent to the publication of the Novel. Relying on an "array of evidence" it was held that the Appellant failed to prove that the Respondent indeed gave her "informed consent, whether expressly or implicitly, for publications that contain violation of her privacy" (para. 59 of the Judgment). First, the book, in its full version, was never submitted for the Respondent's perusal – neither in its original nor in its final version – and her consent for its publication was not requested (ibid); second, the Appellant admitted that he initially considered publishing the book under a pseudonym, and contemplated this option up until the book’s publication (para. 60 of the Judgment); third, the Respondent's objection, prior to the book’s publication, to mentioning the name of the institute where she studied (para. 61 of the Judgment); fourth, the Appellant's response to the Respondent's arguments following the book’s publication (para. 62 of the Judgment); fifth, the "charged" and impressive testimony of the Respondent in the District Court (para. 63 of the Judgment). In conclusion, the District Court ruled that "not only did the Plaintiff not give informed consent to the violation of her privacy, but she clarified to the Defendant, prior to the publication, that she forbids him to include any detail that might lead to her identification in the book." (para. 65 of the Judgment).
19. Regarding the right to a reputation, the District Court ruled that the question whether the Novel refers to the Respondent in a "humiliating, offensive or demeaning" manner shall be decided according to an objective standard of the reasonable person. The mere fact that the Respondent is described in the Novel as "someone who carried an intimate relationship with a married man, and did that in parallel to the relationship with her partner at the time… someone who will trample anything in her way to reach her goals, and someone who is using people 'as if they were objects'" (para. 68 of the Judgment) in itself constitutes defamation.
20. The District Court denied the Appellant's arguments that various defenses are available to him under the Protection of Privacy Law and the Defamation (Prohibition) Law. Regarding the defense of public interest under Section 18(3) of the Protection of Privacy Law, the District Court held that "the Law… does not extend absolute protection to any literary composition… the Law only extends protection to the infringement of privacy when there is 'a public interest which justifies the infringement under the circumstances'" (para. 72 of the Judgment). The Appellant failed to establish any reason to justify the satisfaction of his freedom of expression in such an offensive manner, and it could have easily been satisfied by publishing the Appellant's artistic work without infringing the Respondent's privacy. Regarding the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law and Section 15(6) of the Defamation (Prohibition) Law, the District Court held that the violation was not in good faith. The Appellant acted to publish the Novel in its full version, and paid no attention to the Respondent's demands to refrain from publishing it.
21. With respect to the Respondent's arguments regarding violation of copyright of her letters, the District Court held that the proof of the infringement of privacy and the remedies resulting therefrom render the need to decide on the issue of copyright to the letters redundant. The District Court noted that even if the Appellant's acts do constitute a violation of the Respondent's copyright "this does not justify compensation beyond the compensation that was determined" (para. 80 of the Judgment).
22. Regarding the liability of the Publisher, it was ruled that its acts do not establish legal liability under Section 31 of the Protection of Privacy Law and Section 12 of the Defamation (Prohibition) Law. "In the matter herein, Defendant 2 did not have to know, on the basis of the facts available to it at the time of the book’s publication… that the book includes a violation of privacy with respect to the Plaintiff" (end of para. 85 of the Judgment).
23. Therefore, the District Court prohibited the publication of the book and its distribution. The monetary compensation to the Respondent, for her non-pecuniary damages, was set at ILS 200,000, after the District Court had considered the scope of the violation of the Respondent's privacy, nature of the publication, number of books distributed, pain and suffering caused to the Respondent, the Appellant's behavior, insisting on the publication of the Novel even after her requests and demands to refrain therefrom, and additional considerations.

The Main Arguments of the Appellant in the Appeal

24. According to the Appellant's position, the District Court erred in its interpretation of the Protection of Privacy Law. According to him, "the status of fictional works does not depend on the ability to identify their sources of inspiration but rather on the probability that their content would be attributed to the Plaintiff as a true description". In other words, "fictional compositions have a special status because of the interpretation of the text and not because the lack of identification of the sources of inspiration". The Appellant argues that "under the existing legal status, the attribution of the published content" to the Respondent requires the fulfillment of two cumulative conditions: first, the identification of the real character with the fictional one; and second, the interpretation of the literary text as a "true description" pertaining to the real person. However, according to the Appellant – in terms of what the law ought to be – the proof of another element should be required: "the proof of malicious intent on the author's part". Alternatively, the Appellant argues that lack of fulfillment of the said second condition is seemingly sufficient to grant the appeal herein, while reversing the judgment of the District Court.
25. The Appellant further notes that the common position in case law is that the Defamation (Prohibition) Law can be considered as a helpful tool in the interpretation of the Protection of Privacy Law. Pursuant to Section 3 of the Defamation (Prohibition) Law (concerning "means of expressing defamation"), omitting the name of the party injured by the publication "does not preclude defamation, provided that the content pertains to him"; i.e. – according to the Appellant, the Respondent must prove that the combination of the published content with external circumstances, indeed leads to the attribution of the published content to her. The Appellant further refers to the ruling of the District Court, whereby "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (see Para. 16 above). According to the Appellant, "reasonable reading of the Novel, which takes into account its metaphoric nature… does not lead to the conclusion that the content of the book is true and reflects the reality of the Respondent's life" (para. 39 of the Appellant's summations).
26. According to the Appellant, the test of the "ability to identify the injured person", which was adopted by the District Court, cannot be used as a single condition for the classification of a literary composition as a documentary text, for the purpose of implementing the Protection of Privacy Law and the Defamation (Prohibition) Law. Even more so, according to him, the sources of a fictional composition can almost always be identified. "The unwritten common contract between artists and art consumers in the western culture is that all those books that are published and distributed under the title of "Fiction" do not document reality but are a fiction for all intents and purposes". Moreover, the Appellant warns against the adoption of a legal policy that encourages lawsuits against authors, requiring them to "confirm or deny the degree of similarity between the book’s plot and the reality of their lives". According to him, this state of affairs places authors in an inherently inferior position, i.e. – the similarity is more easily noticed than the differences, in view of the proven existence of the psychological phenomenon called the "confirmation bias".
27. The Appellant argues that the discussion in the District Court’s judgment "was flawed by over-interference in considerations of artistic editing", and ignored the fact that, in any case, there was no proximate cause between the inclusion of the details in the Novel and the identification of the female-protagonist with the Respondent. According to him, the District Court erred in accepting the argument that his choice to write the Novel under his own name, rather than under a pseudonym, precipitates his identification with the male-protagonist, and consequently – the identification of the Respondent with the literary character of the female-protagonist.
28. The Appellant further disagrees with the District Court's ruling that the violation of the Respondent's privacy could have easily been avoided by blurring and camouflaging identifying details. According to him, such ruling is based on "retrospective wisdom", and therefore cannot attest to his "offensive" intent. In this context, the Appellant further notes that the Respondent's consent to a detailed description of her unique work of art in the Novel, realizing that the readers may associate her with the literary character, cannot be ignored.
29. According to the Appellant, the District Court erred in giving no weight to autobiographical artistic freedom. According to him, the book contemplated herein is nothing but a fictional Novel, and in any event the Court must balance the Appellant's autobiographical artistic freedom against the Respondent's right to protection of privacy. Denying the Appeal at bar, according to him, may put an end to autobiographical writing as a whole.
30. Moreover, the Appellant argues that the District Court erred in applying, de facto, a vertical balancing of rights rather than horizontal balancing; i.e. – prioritized the Respondent's right to privacy over the Appellant's freedom of expression. According to him, the District Court used a "statistical formula" whereby there is high probability that the Respondent will be identified in a manner that may lead to a violation her privacy. Alternatively, the Appellant argues that horizontal balancing implies that he should be allowed to make corrections to his work. In support, the Appellant notes that in the hearing held on June 13, 2011 before the District Court, he offered to delete parts of his book and change the characteristics of the female-protagonist, as will be required.
31. According to the Appellant's position, the District Court erred in ruling that the Novel is excluded from the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law in the circumstances of Section 15(6) of the Defamation (Prohibition) Law. The Appellant supports his arguments, inter alia, on the testimony of his friend, who noted that the Appellant acted "under the belief that the Plaintiff will be glad and proud of the character whose creation was inspired by her, and of the entire Novel, which is an expression of appreciation of her graduation project". Therefore, according to the Appellant, the District Court erred in ruling that the "violation was not in good faith. The Appellant was informed that the Plaintiff objects to the publication, and he therefore cannot claim that he believed in good faith that he was entitled to do so".
32. The Appellant argues that "the appropriate balance between artistic freedom and the protection of privacy, in lawsuits pertaining to an argument of violation of privacy in fictional compositions, will be obtained by a test that will focus on the question whether the author acted with malicious intent". According to him, the factual matrix indicates that he had no "malicious intent" in publishing the book contemplated herein or at least in the humiliation of the Respondent. On the contrary, the close acquaintance with the Respondent and her behavior during their relationships "caused the Appellant to truly believe that the Respondent does not recoil from exposure", and even more so from the publication of a Novel for which she was the inspiration. Thus, this is not a violation of the Respondent's privacy that will prevail over the Appellant's freedom of expression. Moreover, the Appellant argues that mere negligence is insufficient in itself to hold the author of the composition liable, due to fear of "abuse" of fictional literature. However, under the circumstances herein, the District Court held that the Appellant's negligence in obscuring the identity of the source of inspiration for a character in the book is sufficient to justify the prevention of its publication and the prohibition of its distribution.
33. Based on the defense of "public interest" under Section 18(3) of the Protection of Privacy Law, the Appellant argues that there is "public interest" in the publication of the Novel contemplated here. "The Novel concerns a universal issue: romantic relationships, the world the man and the world of the woman, marriage, parenthood, love and its collapse… at the center of public discourse…". As evidence, the Appellant refers to readers' letters sent to him following the publication of the Novel which describe "a deep sense of identification with the protagonists". According to the Appellant, the position adopted by the District Court, whereby "literature will not be harmed if writers are prohibited from including [in the composition] details that enable the identification of the sources of inspiration" in fact seeks "to eat the cake and leave it whole". Adopting a judicial policy in the spirit of the aforesaid position, might condition on the artistic freedom of writers by stating: "you [authors – N.S.] may develop the fictional characters as you please, with the exclusion of details that later, potential injured persons may appear and argue to be exposing their identity". The Appellant again notes that he proposed to the District Court to allow him to edit the Novel such that details which may be viewed as "lacking public interest" will be omitted, and therefore, the extinction of the Novel as a whole is a disproportionate judicial ruling.
34. According to the Appellant, the District Court erred in imposing the entire legal liability on him. He believes that "pursuant to the consideration of fairness, he who benefits from an activity should bear the consequences thereof". The Appellant thus insinuates, indirectly, that liability should have been imposed on the Formal Respondent, as the publisher who gained most of the royalties resulting from the publication of the Novel. The Appellant further notes that "contributory fault, implied consent or at least voluntary assumption of risk on the Respondent's part should be added in the matter at hand" as she knew for three years that he was writing a Novel inspired by the relationship he had with her.
35. The Appellant further complains on the lack of balance, according to him, in the remedies ordered by the District Court. He believes that the District Court erred in not issuing a more proportionate injunction, i.e. – 'limited in time', or alternatively one that conditions the publication of the Novel on the omission or re-editing of parts thereof. The Appellant further challenges the amount of monetary damages awarded, which is not based on proven damage to the Respondent, and does not properly weigh additional considerations.

The Main Arguments of the Respondent in the Appeal

36. According to the Respondent, the Appellant, who neglected to attach his affidavit to the Exhibit Volume on his behalf, does not dispute the factual findings determined in the judgment of the District Court. Under these circumstances, his arguments related to the legal conclusions at the basis of the Judgment creates a difficulty with the line of argument on which his appeal is based.
37. The Respondent further notes that the District Court rightfully denied the Appellant's argument, whereby the publication of an intimate relationship guised as a literary Novel is allegedly sufficient to make the protection against an expected violation of privacy redundant. According to her, the Appellant seeks to add an "artificial defense" to the provisions of the Protection of Privacy Law and the Defamation (Prohibition) Law, in contrary to the position of the legislator.
38. The Respondent relies on the ruling of the District Court whereby the fiction argument used by the Appellant is an "empty shell" and that the Novel's storyline is an exact reflection of reality, including many events which took place and were experienced by the Appellant and the Respondent in the presence of third parties. The Respondent supports her arguments on the reasoning of the District Court’s Judgment for the denial of the Appellant's position that the Novel is a fictional composition, and in the holding that the Appellant's arguments regarding the tests that should be applied in the deliberation of a fictional composition are baseless.
39. The Respondent further argues that the Appellant's position that "lawsuits for damage to reputation and violation of privacy that pertain to fictional compositions, will only be accepted in exceptional and rare cases" does not contradict the judgment but rather supports it. The issue at bar is indeed an "exceptional and rare case".
40. The Respondent also refers to additional factual arguments raised by the Appellant, including the passing of time between the beginning of the intimate relationship between the Appellant and the Respondent, and the publication of the Novel. However, there is no need to provide further details within the Appeal herein. Moreover, the Respondent argues that the Appellant's attempted "comparison" – i.e. the comparison of his personal liability to that of the publisher, is irrelevant.
41. According to the Respondent, the Appellant's fear that "similarity is far more evident than differences" was considered by the District Court, which specifically qualified and clarified that “a claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself " and where there is, in addition, "clear and inevitable identification".
42. The Respondent argues that the absurd expected outcome of "burial of masterpieces of the Hebrew Literature" described by the Appellant with respect to the Judgment of the District Court – has no grounds and is argued in vain. According to her, freedom of expression and artistic freedom will only be limited under "exceptional and extreme circumstances of certain and inevitable identification, and when the scope of the violation of privacy and damage to reputation and its magnitude, are that severe".
43. With respect to the Appellant's argument that a "third element" should be required – the establishment of malicious intent on the part of the author – the Respondent argues that such requirement imposes too heavy of a burden on the injured party – "to prove the veiled inner motivations of the perpetrator". Under the circumstances of the Appeal at bar, the Respondent believes that in light of her repeated pleadings not to publish the novel, the "malicious intent of the Appellant, and at the very least, his total apathy in view of the damage caused to the Respondent upon the publishing of the book – was also proven".
44. According to the Respondent, the Appellant's decision to publish the Novel under his own name contributed to her identification with the female protagonist of the Novel. According to her, the rulings of the District Court should not be viewed as "over-interference in considerations of artistic editing" but rather as an "obvious logical conclusion". The Respondent further denies the Appellant's argument that the District Court allegedly founded its conclusions on "hindsight", since "had she known of the many, more specific, details included in the book which lead to her identification, she would have overtly objected to the publication of the book". Not only did the Appellant deny the Respondent's pleas, he also ignored the pleas of his former wife and mother of his children, who appealed to him to avoid the publication of the Novel.
45. With respect to her alleged consent to include a detailed description of her unique work of art in the Novel, the Respondent refers to the factual ruling of the District Court in this respect: "all that was presented to her was a paragraph pertaining to her work". According to her, it was proved to the District Court that she had no knowledge of the Appellant's intention to include in the Novel descriptions that would violate her privacy and damage her reputation.
46. According to the Respondent, the superiority of the freedom of autobiographical expression in the American Law, on which the Appellant relies, exists "only in cases where it is intended to promote a justified public interest". Regarding the issue of public interest in publishing the Novel contemplated herein, the Respondent refers to the Judgment of Justice (his former title) A. Grunis in L.C.A. 5395/09: "In the matter at bar, the publication of the book does not reflect a public interest of high importance. The Respondent is not a public figure. The events which are argued to be described in the book occurred in private circumstances. The public has no special interest in these details" (ibid, Para. 6). Moreover, review of the judgments referred to by the Appellant clearly indicates that the infringements described therein are limited – in both scope and magnitude – in comparison to the damage caused to the Respondent; in any case – these are foreign judgments that do not bind the courts in Israel, which "already deliberated – in three different tribunals – the facts of the specific case at bar, and fully denied the thesis at the basis of the Appeal".
47. The Respondent argues that horizontal balancing between rights does not mean orders will be issued regardless of applicable law, but rather balancing between rights of equal standing and deciding which one will prevail under the circumstances of the case at hand. According to her, the District Court rightfully ruled that the Novel inflicts severe damage to her privacy and reputation, and that the Appellant and his book are not protected by the defenses prescribed by law. Moreover, the Respondent claims that the Appellant's proposal to allow the publication of the Novel subject to changes is merely a "manipulative empty proposal"; and putting a time limit of the publication, as he proposed, is expected to backlash in the future and hit her "again, and perhaps more severely than the first time".
48. With respect to the defense of good faith, the Respondent notes that this is a typical factual question that was discussed and decided by the District Court, and in which the appellate jurisdiction should not interfere. Moreover, according to the Respondent, the testimony of the Appellant's friend regarding his intentions in publishing the Novel is not free of doubt. The Appellant knew of the Respondent's demands and requests to refrain from publishing the Novel, thus it is unclear how he can  "hold the stick at both ends". According to her, the Appellant's criticism regarding the requirement of the artificial foundation to prove "malicious intent" in publications, should "be directed at the legislature that determined the limitations of the defense of good faith", and not at the Court.
49. With respect to the defense of "public interest", the Respondent claims that the Appellant relies in his arguments on the online response of an anonymous reader who said the book moved him. According to her, the Appellant's interpretation of the said term strips it of any content or meaning, and in any event – there is no room for comparison between the public interest and damage to the reputation of Captain R. (see C.C. (District Jerusalem) 8206/06 Captain R. v. Dr. Ilana Dayan (December 7, 2009); C.A. 751/10 John Doe v. Dr. Ilana Dayan (February 8, 2012) (hereinafter: "re. Captain R.") and the public interest in the publication of the Novel and the degree of the violation of the Respondent's privacy and damage to her reputation. In this context, the Respondent again refers to the above cited dictum of Justice (his former title) A. Grunis, that "the publishing of the book does not reflect a public interest of high importance". 
50. According to the Respondent, the Appellant's argument that "he who gains from the activity" should be held liable is unclear, and in any event – is not supported by the letter of the law. The Respondent further notes that attributing contributory fault to her own acts is inconsistent with the factual findings determined in the Judgment of the District Court.
51. The Respondent claims that the Appellant failed to present pertinent case law to support his argument that the monetary compensation awarded does not represent proper balance and proportion. On the contrary – the only judgment discussed in the Appellant's summation is the aforementioned re. Captain R., in which the District Court awarded non-pecuniary damages in the amount of ILS 300,000, which was later reduced by the Supreme Court to the amount of ILS 100,000. According to her, the scope of interference of the appellate jurisdiction in damages of that kind is restricted to exceptional cases only. Furthermore, according to the Respondent, the damages set by the District Court are significantly lower than the rate of statutory damages to which she is entitled in view of the magnitude of the violation of her privacy and damage to her reputation.
52. The Respondent further notes that the District Court refrained from deciding the copyright infringement cause of action on its merits. According to her, the Appellant's arguments with respect to both the issue of "fair use" and her alleged consent to the publication of the Novel, are inconsistent with the factual findings as determined in the judgment of the District Court. Additionally, as aforesaid, the District Court did not rule on the independent cause of action of copyright infringement, as it was content with the proof of the violation of the Respondent's privacy. However, the Appellant, on his part, did not bother to address this cause of action in his summations, and therefore, even on such grounds alone, his appeal cannot be accepted.

The Normative Framework

53. The decision regarding the nature of the relationship between "freedom of expression" and "the right to privacy" and the balance between them, is at the core of the social treaty. Section 1 of the Basic Law: Human Dignity and Liberty prescribes that “The fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel”. The "values of the State of Israel as a Jewish and democratic State" are embedded in the Basic Law (Section 1A) and they will guide us. We must turn to explore the fundamental principles at the basis of our legal system. Many pens have been broken, and many keyboards will be worn out in the attempt to define the proper balance between the contemplated basic values. The burden imposed on judges in decisions of a constitutional nature is a heavy one. The fear to possibly damage the freedom to create art, compositions which express the inner desires of the artist and are an inspiration the public, a model to be followed and identified with and at times even spark for social change, weighs against the fear to permit an invasion into the private realms of the individual. "The blessing is only found in that which is kept out of sight" (Bavli, Taanit H, B) with respect to issues pertaining to the inner-personal sphere of the individual. Emergence into the world, untimely and without the full consent of an individual, can actually destroy lives.
54. The proper judicial balance will be decided after examination of the conflicting rights in each case on its merits. The Appeal at bar concerns artistic freedom, including the autobiographical composition. Setting the boundaries of the exact applicability of this right, in consideration of its siblings in the family of rights – the right to a reputation and the right to privacy – is the essence of the Appeal at bar.

Freedom of Expression and Artistic Freedom

55. As is well known, freedom of expression is one of the pillars of our democratic governance, and is one of the basic anchors of the society in which we live. The importance of freedom of expression is amplified in the Israeli society, which is characterized by substantial, even polar, conflicts of opinion, on issues pertaining to the roots of human existence. Israeli law embodies perennial Jewish tradition which encourages dialogue, as concisely verbalized by the expression "these and these are the words of the living God" (both interpretations are legitimate) (Bavli, Eiruvin, 13, 2). Viewing the freedom of expression as a "superior" right (H.C.J. 73/53 "Kol Ha'Am Ltd. v. the Minister of Interior Affairs, PDI 7 871, 878 (1953) (hereinafter: "re. Kol Ha'Am") and as the "heart and soul of democracy" (Cr.A. 255/68 "the State of Israel v. Avraham Ben Moshe, PDI 22(2) 427, 435 (1968)) is grounded in the reality of life in Israel, as well as in the sphere of faiths and opinions which is at the basis of the definition of the State of Israel as a Jewish State.
56. In this sense, freedom of expression serves as a cultural anchor that is partially rooted in the democratic foundation of the State of Israel – "democracy is first and foremost a governance of consent – the opposite of a government based on force. The democratic process is therefore a process wherein the common goals of the people and the way to achieve them are selected through deliberation and verbal negotiation, i.e. by way of open settlement of the problems on the agenda of the State and free exchange of opinions in respect thereof" (re. Kol Ha'Am above, p. 876); the freedom of expression is also partially rooted in the Jewish foundation of the State – "and the entire dispute between the Tanaim, the Amoraim, the Gaonim and the Poskim, is in fact the words of the living God, and the Halacha includes them all; Moreover, this is the glory of the Holy Torah, whereas the Torah is read as singing, and the beauty of the song is the disparity of voices. This is the essence of music" (Aruch HaShulchan, Hoshen Mishpat, introduction). "Just as their facial features differ from one another, so their opinions are not identical, but rather they each have an opinion of their own… since Moses asked God, at death's door he said to him: oh Lord, the minds of each and all are revealed before you, and they are not one. When I pass, I plead you to appoint a leader that will be able to handle each and every one of them in accordance with his own mind" (Numbers Rabbah (Vilnius), Pinchas, Section 21;  for further detail see the dictum of Justice (his former title) M. Alon in E.A. 2/84, Neiman v. the Chairman of the Central Election Committee for the 11^th Knesset PDI 39(2) 225, 294-297 (1985); Aviad HaCohen "Freedom of Expression, Tolerance and Pluralism in Jewish Law" 45 Mincha le'Menachem (Hana Amit, Aviad Hachohen and Haim Be'er editors, 2007).
57. Hence, the freedom of expression in Israel stands on two foundations – Judaism and democracy (see the dictum of Justice (his former title) A. Barak in H.C.J. 6126/94 Senesh v. the Israel Broadcasting Authority PD 53(3) 817 (1999) (hereinafter: "re. Senesh").
58. Freedom of expression extends to artistic expression. This form of expression has unique characteristics, that require unique protection. The importance of art is in the development of human culture, and in being a means to express and execute one's inner wishes; its importance gives art its unique status. In his artistic work, the private boundaries of an artist are broken and place the artistic freedom as a social value. "Freedom of expression is the artist's freedom to open his heart, spread his wings and set his mind free" (H.C.J. 14/86 La'or v. the Council for the Review of Films and Plays PD 41(1), 421, 433 (1987). With respect to the scope of artistic freedom, it was held as follows: "Such freedom is more than the freedom to express commonly accepted opinions. It is the freedom to express deviating opinions, with which the majority disagrees. It is the freedom to not only praise the government, but also to criticize it. It is the freedom to create any work of art, whether of a divine artistic value and whether of no artistic value whatsoever, and even if it is – as the Council found – 'an offensive paste of erotica, politics and perversions of all sorts and kinds'" (ibid; on creation in Jewish law see: Alexander Ron "On Artistic Creation and Artistic Freedom" Parashat Ha'Shavua 63 (Truma, 5762)).
59. The status of artistic freedom is established, according to one doctrine, in the freedom of expression, i.e., freedom of expression in itself yields "the freedom of artistic work including literature and the various displays of visual art" (see: H.C.J. 806/88 Universal City Studios Inc. v. the Council for the Review of Films and Plays, PD 43(2) 22, 27 (1989)); according to another doctrine, the unique characteristics of the artistic expression require that artistic freedom be an independent right. "It can be seen as a standalone constitutional right. It is based in the perception of humans as autonomous creatures who are entitled to self-realization, both as creators and as consumers of art. Indeed, artistic freedom is the freedom of an artist to create. It is the freedom of choice with respect to the topic and its presentation, and the freedom of others to hear and comprehend" (H.C.J. 4804/94 Station Film Co. Ltd. v. the Council for the Review of Films and Plays, PD 50(5) 661, 677 (1997)).
60. I find no real difference between those who think that the status of the right to artistic freedom is that of a "primary right" and those who think it is merely a "secondary right" (for the distinction between a "primary right" and a "secondary right" see: Aharon Barak Proportionality – Constitutional Rights and Their Limitations 76-78 (2010) (hereinafter: "Barak, Proportionality"). Whether you support this position or the other, it is necessary to define and limit the characteristics of the right. This will be done according to the unique rationales on which it is founded. Such rationales form the "genetic code" of the right, and determine the scope of its applicability. They are conceived in the theoretical legal laboratory and move to the world of practice. The justifications can be viewed as the scalpel and hammer in the hand of the sculptor, assisting to clearly chisel the image of the right and distinguish between similar issues; "like silver touched by the silversmith – alloying and merging as he pleases" (the liturgical poem  "like substance touched by the artist", Yom Kippur prayer). In the realm of rights, the rule of "complete separation of realms" (Bavli, Brachoth 48, 2) does not apply. On the contrary, the rights are combined and integrated, sometimes to an inseparable degree. Chiseling is not an easy task, and it can occasionally upset one of the rights and its beneficiaries. The Court will not easily decide the exact scope of applicability of the right. Decisions of this kind have deep and wide impact, and may affect social life, commerce, culture, art, politics and more.

The Autobiographical Composition

61. Freedom of expression stands on three pillars: the exposure of the truth, personal wellbeing and its value in the democratic regime (see Aharon Barak "The Tradition of Freedom of expression in Israel and its Problems" Mishpatim 27, 223, 227-228 (5757)). These pillars do not equally support each and every instance of freedom of expression. Some instances are supported by all rationales; others are only sheltered by some. The strength of the rationales at the basis of each instance also varies. Examining the rationales and their strength will determine the level of protection extended to the expression. "Not all rationales [supporting the freedom of expression – N.S.] are equally present in all types of expressions. If an expression does 'not fall under' the rationales for freedom of expression, this may influence the degree of the legal protection extended thereto" (H.C.J. 606/93 Kidum Entrepreneurship and Publishing (1981) Ltd. v. Israel Broadcasting Authority, PD 48(2) 1, 12 (1994) (hereinafter: "re. Kidum"). The status of the autobiographical artistic freedom will be determined in light of the "quality" and "quantity" of rationales at its base. Prior to examining these rationales, we wish to post the following words as a guiding road sign: "The literature, painting and sculpture manifest the spiritual values which are inherent to the human soul; so long as there is a single drawing still concealed in the depth of our souls and yet unplaced on paper, art is obligated to produce it" (Rabbi Kook, Olat Reaya 2, p. 3).
62. The justification of personal wellbeing emphasizes that "without allowing people to hear and be heard, to read and to write, to speak or be silent, one’s humanity is flawed, since his spiritual and intellectual development are based on his ability to freely form his perspective" (see: H.C.J. 399/85 Kahana v. Israel Broadcasting Authority, PD 41(3) 255, 274 (1987) (hereinafter: "re: Kahana"). And elsewhere: "The importance of the principle [freedom of expression – N.S.] also lies in the protection that it extends to a distinctly private interest, i.e. the interest of each individual, by virtue of his humanity, to fully express his qualities and personal virtues; to nurture and develop its self to the maximum; to voice an opinion on any matter which he considers vital for him; in short – to speak his heart, so that life seem worthy to him (re: Kol Ha'Am p. 878). Case law further emphasized the close connection between this pillar of the freedom of expression – man's personal realization – and human dignity (see: Aharon Barak Human Dignity 717-721 (2014) (hereinafter: "Barak, Human Dignity")); it was held that "this argument [of personal wellbeing – N.S.] ties the freedom of expression to human dignity" (re. Kahana above, p. 273) and "what is human dignity without the fundamental right of a person to hear his fellow humans and make himself heard; develop his personality, form his perspective and achieve self-realization?" (P.P.A 4463/94 Golan v. Israel Prison Service PD 50(4) 136, 157 (1996)).
63. The autobiographical artistic freedom is in fact a manner of expression which materializes this justification almost in its entirety. Autobiographical writing is personal, intimate writing, which expresses the writer's life story. Such writing is a basic human need that is veiled in the hearts of many people. The execution, the relief experienced by the author when the drawing of ideas from the depths of his soul is completed, is the strongest evidence of the importance of the publication of an autobiographical composition. The expansion of the phenomenon of autobiographical writing, across all walks of life, is yet another evidence of the importance thereof to human development. We are no longer in the era when autobiographical writing is the realm of the few, those outstanding people who were lucky to describe, through the telling of their personal story, the story of their generation. Nowadays, every person with an internet connection and a keyboard can write his life story and publish it on the global network. Stories that were once secluded now move forward to the front of the stage, and stories that were previously published and famous now retreat into the background. Autobiographical writing is therefore of great importance, to the individual and society, for self-realization and the promotion of literary creation.
64. As aforesaid, the justification of the right to autobiographical creation does not end with the personal justifications for freedom of expression; societal justifications provide another plentiful source from which this right flows. Pursuant to the justification of exposure of truth "The freedom of expression must be guaranteed in order to enable the competition between various and diverse perspectives and ideas. From this competition – rather than from the dictation of a single governmental "truth" –the truth will arise, as the truth is destined to prevail in the battle of ideas" (re: Kahana, p. 273). The right to autobiographical artistic freedom assists the realization of this rationale. Seemingly, as the number of people who write their life stories will grow, human knowledge will grow respectively, as will the ability to reach the bottom of truth. Human knowledge is not equally dispersed in the town square. Groups with better exposure and accessibility to media have greater ability to communicate information. The existence of autobiographical writing will help us to break the "monopoly of knowledge" and also obtain information from non-conventional channels (for additional information see: Sonja R. West., The Story of Me: The Underprotection of Autobiographical Speech, 84(4) WASH. U.L. Rev.905, 944-948 (2006)) (hereinafter: "West").
65. The importance of autobiographical artistic freedom is also rooted in the democratic justification. "Freedom of expression is a pre-condition for the existence of democracy and its proper operation. Free voicing of opinions and their unlimited exchange between fellow men is a contitio sine qua non for the existence of social and political governance in which a citizen may fearlessly consider, through the study of information, what is required, as per his best understanding, for the benefit and wellbeing of the public and of individuals, and how the existence of the democratic governance and the political structure in which he lives can be secured… the democratic process is conditioned, as aforesaid, on the possibility to hold an open discussion of the problems on the agenda of a State, and the free exchange of opinions in respect thereof… it cannot be perceived that elections in a democratic regime be held if they are not preceded by an opportunity to exchange opinions and attempt mutual persuasion and without holding the deliberations and discussions that form public opinion, which has a vital role in every free regime. The above, as aforesaid, is as valid during elections as it is in other times" (H.C.J. 372/84 Kloppfer Nave v. the Minister of Education and Culture, PD 38(3) 233, 238-239 (1984)). The autobiographical artistic freedom cherishes the importance of the direct flow of information between the author and the public. Public channels of information are supervised by several "veto players" which prevent the free flow of information. Media, governmental censorship, the legal system and the laws, access to wealth – are just some of the barriers confronted by owners of information who seek its publication. The autobiographical artistic freedom gives importance to the direct encounter between author and readers. Furthermore, the autobiographical artistic freedom assists in making free expression more available to social and cultural minorities, which are under-represented in the central media, thus enriching the variety of voices heard in public. We have just recently witnessed the empowering and catalyst effect of autobiographical expression of experiences online on social and political revolutions in the neighboring Arab countries. This right is reinforced in this era of internet, where electronic means and media such as "Twitter", "Facebook" and blogs implement this idea in practice. Many scholars noted the connection between a wide spectrum of opinions heard in public and the existence of a lively and healthy democracy. The rules of democratic decision-making are the body; the freedom of expression is their soul. A democracy without freedom of expression is like a body without a soul. The autobiographical artistic freedom not only enables each citizen to vote and be elected, but also to influence society's cultural fabric (for an extensive review of the basis of the right to autobiographical writing, see: West, p. 948-957). Hence, the autobiographical composition is closely connected to the abovementioned three rationales of freedom of expression.
66. Its importance notwithstanding, freedom of expression, including the autobiographical artistic freedom, is not an absolute right, and it is not immune to restriction. "The freedom of expression and the artistic freedom are not the only values to be considered. A democratic society is based on a variety of values and principles, of which freedom of expression and artistic freedom are just a part of. The implementation of these diverse values and principles naturally mandates the restriction of the protection extended to the freedom of expression and the artistic freedom, to the scope that is required to protect such values and principles. My freedom of movement stops where your nose begins; my freedom of expression does not justify slander or libel against another person; it does not justify disclosing top state secrets or disturbing the peace; freedom of expression is not the freedom to give false testimony in court" (re: Senesh, p. 830). With this warning in our saddlebag, we will now review the right that collides with the autobiographical artistic freedom in the Appeal at bar – the right to privacy. 

The Right to Privacy

67.The right to privacy is a constitutional right. Section 7 of Basic Law: Human Dignity and Liberty instructs that:

“(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.

(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

The status of the right to privacy is also expressed in the case law of the Supreme Court as “one of the freedoms that shape the character of the regime in Israel as a democratic regime, and one of the supreme rights that establish the dignity and liberty to which a person is entitled as a person, as a value in itself” (Cr.A. 5026/97 Gilam v. The State of Israel (June 13, 1999) (hereinafter: “re. Gilam”); for further details, see HCJ 8070/98 The Association for Civil Rights in Israel v. The Ministry of the Interior, PDI 58(4) 842 (2004)).

68.The proper balance between the right to privacy and other rights was determined by the legislature in the Protection of Privacy Law. With respect to the interpretation of the act, case law has already been established whereby laws that were passed before the enactment of the basic laws will be interpreted in the spirit of the provisions of the basic law. “This law (Basic Law: Human Dignity and Liberty – N.S.) granted a super-statutory constitutional status to the right to privacy. This status should affect the interpretation of all of the laws, both those passed before the legislation of the basic law and those legislated thereafter. This constitutional status of the right to privacy should also affect the interpretation of the Protection of Privacy Law” (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, PDI 61(1) 581, 602 (2006) (hereinafter: “re. Jane Doe”); for further details see F.Cr.H 2316/95 Ganimat v. The State of Israel, PDI 49(4) 589 (1995)).

69.The law’s protection of the right to privacy is relatively new. It began approx. one hundred years ago.The starting point of the discussion regarding the right to privacy, its status and its justifications was expressed in an important article from the beginning of the last century, in which Justices Warren and Brandeis pointed to the existence of the right to privacy (Samuel Warren & Louis Brandeis, The Right to Privacy, 4 H. L. R. 193 (1890) (hereinafter: “The Right to Privacy”). The innovation of the authors was not reflected in the creation of a right “ex nihilo”, but rather in conceptualizing its various appearances in legislation. This approach does not recognize the benefit inherent in defining privacy as an independent right. Privacy is limited to how it was defined in legislation and in case law, which must be interpreted narrowly in order to prevent double protection in view of the basic assumption that the legislature does not waste ink. A similar approach was initially established in the case law of the Supreme Court: “The Protection of Privacy Law is intended to create and define new boundaries, and there was therefore, no need to redefine existing offences as prohibited acts… why would the legislature deem fit to once again prohibit in later legislation acts of violence that have already been determined as criminal offences in the existing penal law, only to include them in the definition of a new prohibited act, alongside which a maximum penalty is set, which does not exceed the penalty for any one of the existing violent offences. This is double legislation, which is entirely unnecessary” (see the opinion of Justice (former title) M. Shamgar FH 9/83 The Military Appeals Court v. Vaknin, PDI 42(3) 837, 853 (1988); for further details see L.Cr.A 9818/01 Biton v. Sultan, PDI 59(6) 554 (2005)). The concept that deems the right to privacy as a right limited solely to its appearances in legislation and to a narrow interpretation thereof, did not last forever. The right to privacy soon acquired a permanent status in the family of constitutional rights. Buds of this concept are found in the opinion of Justice (former title) A. Barak in HCJ 2481/93 Dayan v. Major General Wilk, Jerusalem District Commander, PDI 48(2) 456 (1994) (hereinafter: “re. Dayan”): “Every person in Israel is ‘entitled to privacy’ (Section 7(a) of Basic Law: Human Dignity and Liberty)… now that is has been afforded a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ ‘and with the understanding that we are concerned with a provision that determines ways of life’… a constitutional provision must be interpreted ‘with a broad outlook, and not technically’… hence the approach – which is accepted in enlightened democratic countries – that constitutional provisions must be interpreted ‘generously’… with a substantive approach and not a ‘legalistic’ approach… with a pertinent approach and not a ‘technical’ or ‘pedantic’ approach… against the background of this approach it may be ruled that the constitutional right to privacy extends, inter alia – and without any attempt to delimit the right with all of its aspects – to a person’s right to conduct the way of life he wishes behind closed doors, without outside interference. A person’s home is his castle, and within its confines he is entitled to be left to his own devices, for development of the autonomy of his will” (ibid, on page 470).

70.Indeed, “The kids which you left have become goats with horns” (Bavli, Brachot 63 p. A), the buds sprouted, and received precise and clear expression in the opinion of Justice (former title) A. Barak in re. Jane Doe (above, on pages 595-597): “The right to privacy is one of the most important human rights in Israel… its roots are deeply embedded in our Jewish heritage… it is therefore called for by the values of Israel as both a Jewish and democratic state. It is recognized by Israeli common law as a human right… in 1981 the Protection of Privacy Law was enacted. Privacy was defined in the law (Section 2) in a manner which does not ‘cover’ all accepted forms of privacy. With respect to a violation of privacy over and above the definition in the law, Israeli common law continues to apply… in 1992, a material change occurred in the status of the right to privacy… Basic Law: Human Dignity and Liberty explicitly recognized a constitutional right to privacy… a constitutional right to privacy was thus recognized at a broader scope than the scope of privacy in the Protection of Privacy Law. Indeed, by virtue of the basic law, privacy became a super-statutory constitutional right… any and all government authorities – including any court and tribunal in the state – must honor it”.

71.The right to privacy is a constitutional right. It must be interpreted in a “generous and broad” manner, according to its justifications, in order to realize the purposes underlying it. However, the scope of the protection of privacy will not be determined broadly or narrowly but rather precisely. For the purpose of balancing between clashing rights, when the court is faced with a decision which calls for the drawing of the exact outlines of the rights, the court will employ strict interpretation, examining which of the rationales realized in the manifestations of the rights before it must be preferred (see: Aharon Barak, Interpretation in Law, Vol. 3: Constitutional Interpretation 83-84 (1993) (“Interpretation in Law (Constitutional Interpretation); and – Aharon Barak, Proportionality in Law 94-97 (2010)). The accepted opinion in our law is that the scope of the constitutional right should not be reduced in order to take into consideration the collective or the right of others. These will be taken into account at the following stages of the constitutional analysis (ibid). Israeli law therefore distinguishes between the application of the right and its protection. The mere application of the right does not necessarily guarantee a comprehensive protection of it. Application is one thing and protection another. Broad interpretation does not equal full protection.

The Right to Privacy – Scope

72.The ambiguity of the right to privacy is well-known (see for example: Re’em Segev “Privacy, its Significance and Importance” Privacy in an Era of Change 25, 26 (Tehilla Shwartz Altshuler editor, 2012) and the authorities therein) (hereinafter: Segev “Privacy, its Significance and Importance””). This ambiguity, which in the opinion of some of the scholars is derived from the social character of the right and from its technological context, makes it difficult to define the exact boundaries of privacy (see for example: Michael Birnhack “Control and Consent: The Theoretical Basis of the Right to Privacy” Mishpat Umimshal 11 9, 13-19 (2008) (hereinafter: “Control and Consent”)). “The right to privacy is a complex right, whose boundaries are not easily determined” (see HCJ 1435/03 Jane Doe v. The Haifa Civil Service Disciplinary Court, PDI 58(1) 529, 539 (2003)).

73.In this appeal, we are exempt from deciding the definition of the exact boundaries of the right to privacy. We are concerned – in the book at bar – with the core of the right to privacy. “With respect to situations of ‘classic privacy’, there appears to be broad consent. For example, we agree that it is appropriate to protect the acts of a person in his own home, the content of telephone conversations or of sealed envelopes, and certain types of information, such as our medical condition, our sex life, … when an outside agent intervenes without our permission in any of the above, we feel that our privacy has been violated” (see ‘Control and Consent’ above, on page 13).

The Justifications for the Right to Privacy

74.Many justifications have been given in literature and case law for the right to privacy. There are those that rest on a personal basis and those that are based on social values. These justifications can be split into two separate categories: the first, intrinsic-inherent justifications; the second, instrumental-purposeful justifications. The distinction between the types of justifications is clear: the intrinsic justification deems the right as a purpose in itself; the instrumental justification deems the right as a means of achieving a nobler purpose.

The Intrinsic Justification

75.The intrinsic justification for privacy asserts that a violation of privacy is equal to a violation of a person’s dignity, welfare and his ability of self-realization. This outlook is based on the moral theory of the philosopher Immanuel Kant. According to Kant, man exists as an end in himself. Use of man as an object for the purpose of achieving another purpose constitutes a violation of his dignity:

“Man, and in general every rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end… Persons are, therefore, not merely subjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, i.e., exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

76.A person is not an “object”; he should not be used as a means to achieve other purposes. A person has emotions, feelings and desires. Blatantly ignoring these and crudely trampling them is intolerable. The mere violation of a person’s privacy is the prohibited act. Intrusion into and exposure of the private space renders the person a means for fulfilling the purposes of the exposer and intruder. Privacy is the heart and core of human autonomy. This is the space in which everything dear to a person, his emotions, his inner desires, his innermost secrets, are found; all of these are part of the heart and core of the right to privacy. Violation of these is a grave violation of the person’s dignity. In the words of the scholar Bloustein:

“The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.” (Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964) (hereinafter: “Bloustein”).

And in the words of the scholar Benn:

“To conceive someone as a person is to see him as actually a chooser, as one attempting to steer his course through the world, adjusting his behavior, as his appreciation of the world changes, and correcting course as he perceives his errors. It is to understand that his life is for him a kind of enterprise, like one’s own… To respect someone as a person is to concede that one ought to take the account of the way in which his enterprise might be affected by one’s own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration” (Stanley I. Benn, Freedom, and Respect for Persons, in Privacy & Personality 1, 9 (J. Roland Pennock and John W. Chapman eds., 2009)).

77.Indeed, the right to privacy is derived from the right to dignity and is closely related to it. “The right to privacy therefore concerns the person’s personal interest in developing his autonomy, his peace of mind, his right to be with himself and his right to dignity and liberty” (see C.A. 8483/02 Aloniel Ltd. v. McDonald, PDI 58(4) 314, paragraph 33 of the judgment of Justice E. Rivlin (March 30, 2004)); for further details see re. Jane Doe above in paragraph 10 of the judgment of Chief Justice A. Barak; Ruth Gavison “The Right to Privacy and Dignity”, Human Rights in Israel – An Essay Collection in Memory of H. Shelah 61 (1988)).

Instrumental Justifications

78.Further justifications deem the right to privacy as a means to achieve substantive purposes. The right to privacy is perceived as the basis of the individual’s wellbeing; as vital to ensuring relationships of trust between people, and particularly intimate relationships; as a means of ensuring proper community life; as a basis for the existence of a democratic regime.

79.Several theories point to the fact that privacy is important for the purpose of improving people’s personal wellbeing, and for the possibility of maximum self-fulfillment. Private space gives a person the possibility to meditate and challenge the common world view of the society to which he belongs. Private space allows a person to design his private home as he wishes. This space sometimes expresses the innermost secrets that a person, for his own reasons, does not wish to publicly reveal. A person is entitled to the possibility of building his world as he wishes, which cannot be done when he is being watched from all around. The social view is sometimes paralyzing, preventing the individual from undertaking original and bold action. Private space is where the individual can break the fixed social boundaries. Violating the private space denies the individual the possibility of creating a unique and individual personal world. Unique literary expression of this concept is found in George Orwell’s book “1984”, which has become one of the world literature’s invaluable assets. See the opinion of Justice Brandeis:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.” (Olmstead v. United States, 277 U.S. 438, 479 (1928).

And in the words of the scholar Bloustein:

“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality… Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” (Bloustein, 1003).

For further details on the issue of personal wellbeing, see: R. v. Dyment, [1988] 2 S.C.R. 417. For further authorities, see: Michael Birnhack, Private Space: Privacy, Law & Technology 117-120 (5771) (hereinafter: “Birnhack, Private Space”).

80.A violation of privacy is a violation of personal autonomy. Tearing down the screen separating the private and the public realms violates a person’s right to conduct his life as he wishes. Some wish to conduct their liveson the radio waves, in the ‘big brother house’, or on the pages of the newspaper; others wish to live their lives peacefully and modestly, far from the spotlight, from the public eye, and from the lens of the camera. Exposure of privacy by another violates a person’s right to conduct his life as he wishes. “…The right to privacy draws the line between the individual and the public, between ‘me’ and society. It delineates a defined area in which the individual is left alone, to develop his ‘self’, without the intervention of others…” (re. Dayan above, on page 471).

“Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from this liberty” (Pavesich v. New England Life Insurance Co., 50 S.E. 68, 71 (Ga 1905)).

81.Note, the freedom of expression and the right to privacy do not merely clash; they also complement one another. A violation of privacy is sometimes also equal to a violation of the freedom of expression. The existence of a protected private space, to which the individual may withdraw, be alone, is sometimes a condition to the existence of creative activity. Creativity, which deviates from the existing social order, struggles to emerge under the penetrating gaze of the community. The screen of privacy protects the existence of the internal world. This world will be exposed to the audience when the screen goes up. Premature exposure and without consent of the unfinished product, will lead to failure; or as in the theatre world, will lead to harsh reviews which might leave the creative work in its unripe stage, and prevent its coming to fruition. Personal space is vital for the development and emergence of different ideas in the public realm. Individuals with free opinions are an essential ingredient for the existence of democracy. Without freedom of thought, made possible where there is a personal space, a healthy society cannot be developed. Indeed, the right to privacy is not necessarily contrary to the freedom of expression and creation, it also serves them.

82.The Torah describes the public setting in which the first Tablets of Stone [Luchot HaBrit] were given, and the breakage; and the second tablets that were given to Moshe Rabbeinu (Moses) alone, and were a masterpiece. The first tablets were given “amid great pomp and circumstance” (Rashi, Shemot 34, C) on Mount Sinai in front of the entire Jewish nation. The second tablets were given to Moshe Rabbeinu in silence: “No man may ascend with you nor may anyone be seen on the entire mountain. Even the flock and the cattle may not graze facing that mountain” (Shemot 34, C). It was stated thereon in Midrash Tanchuma ((Warsaw) Ki Tisa, 31): “The first tablets were given in public, and therefore the evil eye had control over them and they were broken, and here G-d told him there is nothing better than modesty”. We can see that modesty and personal space may produce great creation. The creation is not necessarily the result of the freedom of expression. It is actually the scaling down, the privacy, the modesty, that may be fertile ground for growth and renewal. The secret of the dialogue and actions taken between is the proof. Needless to say, humans, the crown of creation, are the result of the most intimate relationships. This teaches us that infinite exposure is not always a guarantee for creation; on the contrary, there are concealed areas that we must strictly preserve as such, not only as protection against harm, but in order to ensure productivity, creation and fulfillment. “And it is written ‘with the modest is wisdom’ (Mishlei 11, B), since wisdom connects two things, and it is the primordial power, as is known, and through this things change from one state to another, and this is the meaning of the verse ‘with the modest is wisdom’. Therefore, when you want to plant a seed and want it to change its form, you conceal it and insert it into the ground, so that it may arrive at its primordial state, which is wisdom, as is recalled” (Torat Hamaggid, Torah, Parashat Balak).

83.Harav Kook (Orot Hakodesh C, Part Two, Vol. Three, Title E) addresses the required balance between a person’s need to be alone and his need for company: “Out of these two opposing judgments, the noble person must stand in the midst of two tendencies: to separate himself and to draw close. With this, he attains conceptual purity, on the one hand, and the natural strength that exists in simplicity and natural freshness, on the other”. Harav Kook further eloquently writes in his essay “A time to be silent and a time to speak” (Orot Hakodesh, Part Two, Vol.  Three, Title H): “The structures of a person’s spirit suffer great destruction when the inner light of “a time to be silent” appears, when the holy and supernal muteness in the splendor of its glory and the gravity of its burden fills his entire soul. If he rebels against it and breaches it, this rebellion against the sovereignty of silence destroys all of its structures, all of the treasury of innocence and uprightness, of profundity and supernal connection, these are all shattered. And he will later need, if he wishes to build his ruins, to reestablish everything anew, and the wise person will be silent at that time. However, if a person gives silence its due when it first appears, it will perform its duty, establish its muteness, penetrate in its profundity and reach the perplexities of its depths, from which it will bring forth mighty foliage and branches with the power of great and fresh blossoming. The leaves will be filled with power and the expression of his lips will emerge. Then the “time to speak” will begin in its glorious majesty and the spirit of silence will be the angel that acts upon the outpouring of speech, which will flow like streams, with great abundance and all beauty. ‘[I] create the speech of the lips. Peace, peace, to the distant and to the near,’ says Hashem, ‘and I will heal him’.  Its fruit will be for food and its leaf for healing, freeing the mouth of the mute”.

84.The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the beady eye of the state is vital to the existence of a pluralistic society which gives a stage to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression. This position was recognized in the past by this court, which held that the right to privacy is “one of the freedoms that shape the character of the regime in Israel as a democratic regime” (see Paragraph 9 of the judgment of Justice H. Ariel in re. Gilam; see also: Campbell v MGN Ltd. [2004] UKHL 22 (hereinafter: “re. Campbell”). For an extensive review see: Annabelle Lever, Privacy Rights and Democracy: A Contradiction in Terms? 5 Contemporary Political Theory142 (2006)). And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

The Right to Privacy and Intimate Relationships

85.Further justification for the right to privacy is found on another level of the human existence – interpersonal relationships. “It is not good that man be alone” (Bereishit B, 18); “human beings are by nature political animals” (Aristotle, Politics, Book A, 27-28 (Rachel Zelnick-Abramovitz Editor, Nurit Karshon translator, 2009)); “either companionship or death” (Bavli, Taanit 23, p.1). These are a few of the texts written throughout the generations to describe the importance of relationships in the lives of humans. Each one of us is involved in many relationships: family; work; friends; acquaintances; neighbors; service providers. All of the above and many others encircle and surround our daily routine. Just as their facial features differ, their relationships differ. And in the case at bar: a father-son relationship does not resemble a relationship between husband and wife; between friends, between distant and close acquaintances; etc.

86.There are “certain relationships that require background conditions of privacy to enable their optimal existence” (Birnhack, Private Space above, on page 120). Deep friendships and connections between couples are built and based on keeping the most intimate of secrets. A world in which privacy is trampled and secrets become common is a world in which people will refuse to bare their soul to their friends for fear of it being exposed to the entire world. The same is true to professional relationships and friendships, a fortiori with respect to romantic relationships. In such relationships, couples mutually reveal to one another their most secret desires, wishes and aspirations. A partner also reveals to his partner his positions and opinions regarding work colleagues, family members, friends and previous partners. This sensitive information is given to the other partner on a silver platter, under the assumption that he will act as a loyal ally and confidant. This is the “unwritten” contract between partners in a long-term romantic relationship. These are the “terms of employment”. Any sensible person knows this. “The growth of a couple’s relationship… needs, inter alia, the couple’s privacy from the outside world. The privacy enables intimacy, which is a necessary condition for a couple’s relationship… the privacy allows trust between the couple and creates the space… where they can be authentic and gain each other’s support” (Birnhack, Private Space above, on page 121; for further references, see: Segev, Privacy, its Significance and Importance above, on pages 83-86).

87.A special place is kept for intimate long-term relationships between couples, and particularly for married life. The commitment created between two spouses is not limited to economic arrangements. These constitute the body of the marriage, while the trust and love create its soul. Marriage is based on “love, friendship, peace and companionship”. One acts as the other’s “confidant”. The self-sacrifice, the strong friendship, the endless empathy, these are the essence of married life. “Therefore a man shall leave his father and his mother and cling to his wife and they shall become one flesh” (Bereishit B, 24). The separateness becomes oneness. The day-to-day challenges that couples face, maintaining the relationship, household, professional career and childrearing, all constitute a quasi- “melting pot” for this personality merger. Many studies have indicated that the mental identity of spouses changes with time. The partners go from separate beings to a single family unit (see, for example: Milton C. Regan, Family Law and the Pursuit of Intimacy 147 (1993)). Spouses are exposed to one another, in happiness and in sadness, in times of hardship and crisis, as well as in times of success and comfort. They share with one another their thoughts and feelings about what goes on around them. In many relationships, spouses read one another, like an open book - “no secrets escape them”. True in this regard are the words appearing in the traditional deed of conditions: “and from this point forth, the said couple will act jointly with love and affection, and will not conceal or hide or lock away from one another…” (Q&A Nachlat Shiva, Shtarot, Part I). It would not be superfluous to note in this context the degree of closeness between a husband and wife, inter alia, in relation to the laws of testimony (disqualification of a husband’s testimony also disqualifies the wife’s testimony) and the laws of agency (a husband is appointed as an agent for his wife for things that others cannot do as her agent). I will also mention the provisions of Section 3 of the Evidence Ordinance [New Version], 5731-1971 that “In a criminal trial, one spouse is not competent to testify against the other”.

88.The right to privacy in its romantic form is in fact the right of the spouse not to be exploited by his spouse. A situation in which one spouse reveals to the other spouse everything that is on his mind, and the other spouse uses the information for his own purposes – is intolerable. A legal regime that does not prevent this does not protect the unwritten contract of marriage. The privileges between various individuals in society are regulated in legislation. Is it conceivable that the law, which regulates attorney-client relations; doctor-patient relations; psychologist-patient relations; bank-customer relations; will not extend its protection and defend the most sensitive relationship in a person’s life – between man and wife, between spouses?! (For further details, see: Hanoch Dagan & Carolyn J. Frantz, Properties of Marriage 104 Colum. L. Rev. 75, 82-83 (2004) and the authorities appearing therein). It is for good reason that the “public hearing” principle which was set forth in Section 68(a) of the Courts Law [Consolidated Version], 5744-1984, whereby “court hearings will be open to the public”, retreats in “family matters, within the meaning thereof in the Family Court Law, 5755-1995”, pursuant to the provisions therein in Section 68(e)(1).

89.The culmination of the joint spousal relationship is embodied in long-term relationships, with a joint economic regime, regardless of whether we are concerned with the institution of marriage or with common-law partners. These relationships include an increased duty of care vis-à-vis the joint intimate space of the couple. Even romantic relationships that are not characterized by a full economic partnership establish an individual ‘fiduciary duty’ to protect the spouse’s intimate space. The opening of the intimate space to the other partner occurs in the early stages of the relationship. The protection of this space will emerge at the initial stages of the intimate relationship.

90.These are the main justifications for the right to privacy. However, before we begin discussing the proper balance, we will take a look at comparative law for support in deciding the legal issue that was placed at the center of the appeal at bar.

English Law

91.In the past decade, the right to privacy has acquired a place of honor in English case law. In the past, the only grounds for a suit for a violation of the right to privacy was a breach of confidence, which requires three separate elements to be proven: (1) the nature of the information that was revealed mandates protection of its confidentiality; (2) the information was transferred under circumstances which establish a duty of confidence; (3) misuse or unauthorized use of the information (for further details, see: The Law of Privacy and the Media 163-222 (Mark Warby, Nicole Morehman and Iain Christie eds., 2011 (hereinafter: “The Law of Privacy and the Media”)). However, in 2008, the House of Lords adopted, in re. Douglas v. Hello! Ltd. [2008] 1 A.C. 1 (H.L. 2007) (appeal taken from Eng.), an additional independent cause of: ‘misuse of private information’. While the cause of breach of confidence emphasizes the breach of the confidential relationship between the parties, the cause of misuse of private information “highlights” the violation of privacy even without the existence of a confidential relationship. See Paragraph 51 of the opinion of Lord Hoffmann in re. Campbell (above):

“The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.”

92.The said legal development expresses the rise of the importance of the right to privacy in English law. This right, which was defined, in practice, as a right pertaining to an ‘in personam’ relationship became an ‘in rem’ right. The cause of ‘misuse of private information’ requires the following two conditions to be proven: (1) the information that was misused is indeed information that is protected by the right to privacy, as it appears in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the “European Convention for Human Rights”); (2) examination of the balance between the freedom of expression and the right to privacy, as they appear in the European Convention for Human Rights, tips the scale in the direction of the right to privacy (see, for example: re. Campbell above and: The Law of Privacy and the Media above, 226).

93.In the said re. Campbell, the House of Lords required The Mirror magazine to pay model Naomi Campbell damages following publications regarding drug rehabilitation treatments which she underwent – a publication that amounts to a violation of her privacy. The judgment discusses at length the nature of the cause of ‘misuse of private information’. With regards to the first condition, which concerns the definition of the information that is protected by the right to privacy, the House of Lords referred to the “reasonable person” test, which was determined around a decade prior thereto in re. ABC, in which the motion of a plant owner to identify the methods of killing opossums at his plant as information protected by the right to privacy was denied:

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behavior, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63).

[Emphasis added – N.S.].

94.On a side note, we will mention that the same test was adopted in the case law in New Zealand (see, for example: P v D [2000] 2 NZLR 591) and it is also supported in academic literature (see, for example: William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960)). Moreover, see Paragraphs 20-21 of the opinion of Lord Nicholls of Birkenhead in re. Campbell, in which it was held that in terms of the question of whether the information is protected under the right to privacy, the rights of others or other interests that may be harmed due to prevention of the publication should not be taken into account. These will be considered at the stage of the balancing of the rights. The guiding question at the initial stage is whether the injured party had a “reasonable expectation of privacy” with respect to the facts that were exposed:

“20. … article 10(2), like article 8(2) [of the European Convention for Human Rights – N.S.] recognizes there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.

21. Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.

[Emphasis added – N.S.]

95.It was further held in re. Campbell that the manner in which the clashing rights will be balanced will be decided in each case on its merits. Freedom of expression does not prevail in principle over the right to privacy. It is necessary to meticulously examine the clashing rights in each and every case, and to refrain from determining a generic hierarchy between the two rights (see, for example: In re S [2004] Fam 43 (C.A. 2003)). In balancing between the two rights, i.e. the protection of privacy on the one hand, and the freedom of expression on the other, it is necessary to examine whether the infringement of privacy is supported by the existence of a ‘sufficient public interest’. Against the background of the aforesaid, it appears that reporting on a private person who is undergoing rehabilitation treatments, although they are a public figure, does not fulfill the said condition:

“I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilized values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favor of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicized in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognized and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatsoever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information”.

(Re. Campbell above, in Paragraphs 55-56 of Lord Hoffmann’s judgment).

[Emphasis added – N.S.].

In other words:

“The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it.”

(Ibid, in Paragraph 157 of the judgment of the Baroness Hale of Richmond).

96.Re. McKennitt, the circumstances of which are relevant to the appeal at bar, discussed the suit of Ms. McKennitt, a Canadian folk singer, whose main claims were based on an infringement of her privacy (see Mckennitt v. Ash [2008] QB 73 (C.A. 2006) (hereinafter: “re. Mckennitt”)). In 2005 (before the House of Lords adopted, as stated in Paragraph 91 above, an additional independent cause of ‘misuse of private information’), the singer’s friend published a book which exposed extensive parts of her private life, including: details regarding her relations with her late fiancé, her health, and details about her sex life. It was ruled that because of the trust relationship that prevailed between the singer and her friend, the publication of the book fell under the duty of confidence (the ‘breach of confidence’), and that it fulfilled the following three elements: (1) a friendship trust relationship existed between the parties; (2) the nature of the information that was published mandates maintaining its confidentiality; (3) misuse and unauthorized use was made of the information.

97.However, in another case, English case law recognized ‘the right to tell one’s own story’ where the information is “joint” and was acquired in an experience common to the two partners. A v B [2003] Q.B. 195 (C.A. 2002) (hereinafter: re. A v B). At the center of the case was a famous soccer player who had casual extramarital sexual relations with two women, and petitioned against a newspaper article based on their testimonies. It was ruled that the women have the right to publish their story, and it prevails over the soccer player’s right to prevent the publication. The freedom of expression was preferred over the right to privacy. The main grounds for dismissing the soccer player’s petition were based on the short acquaintanceship between the couple, which did not establish for any one of the parties an expectation of a ‘fiduciary duty’ (ibid, in Paragraph xi):

“The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognizing the special status of a lawful marriage under our law, the courts, for present purposes, have to recognize and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it”.

[Emphasis added – N.S.].

98.Thus, in re. McKennitt above, the court distinguished the case before it from the A v B case, ruling that the latter concerned a casual sexual relationship, and as such does not prevent either one of the partners from describing his story at the expense of the other party. However, it was clarified that in a stable and lasting relationship, by virtue of which a ‘duty of confidence’ arises, the right to privacy will prevail over the freedom of expression:

“…the relationship between Ms. Mckennitt and Ms. Ash…was miles away from the relationship between A and C and D. In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the woman up they realized that they were entering into a relationship of confidence with him …” (Paragraph 30).

99.On a side note we will point out that the fundamental position of the English legal system with respect to the status and scope of the right to privacy was adopted, with minor changes, by other common law courts (see, for example: Canada – Aubry v Les Éditions Vice Versa Inc [1998] 1 SCR 591; New Zealand – Hosking v Runting [2005] 1 NZLR 1).

The European Court of Human Rights 

100.‘Privacy’ law developed in English law under the patronage of the European Convention for Human Rights and its interpretation by the European Court of Human Rights. It is only natural that we examine the position of the ‘bride’ in the issue laid before us.

101.Re. Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR 2012 (hereinafter: “re. Von Hannover”) concerned the claim of several members of the Monaco royal family against a German newspaper which published their pictures while they were on a private vacation. It was ruled that in the clash between the freedom of expression and the right to privacy, it is necessary to consider the following criteria: (1) the extent of the contribution to public debate; (2) whether the person is a public or private figure; (3) the conduct of the person with respect to violation of his privacy prior to the publication; (4) the content, form and consequences of the publication; (5) the circumstances in which the information was obtained.

102.We will now explore the nature of these criteria: (1) it was ruled that the contribution to public debate is not limited to political matters or to matters pertaining to crime and corruption. Information that is relevant to the field of entertainment and sport also contributes to public debate. However, rumors regarding marital difficulties of a public figure or financial difficulties of a person from the field of entertainment are not protected by this defense; (2) it was ruled that reporting on a person holding a public position is not similar to reporting on a private person. While reporting on a public figure is indeed essential to the existence of a democratic society, reporting on a private person is not required to such an extent; (3) it was ruled that past cooperation of the subject of the publication with the media will work against him. However, not all cooperation with the media can serve as an argument that legitimizes the publication; (4) and (5) it was ruled that the other elements serve as indicators that attest to the extent of the violation. Thus, for example, a publication in a national newspaper is in no way similar to a publication in a journal intended only for workers of a certain sector. 

103.In re. Axel Springer AG v. Germany [GC], no. 39954/08 ECHR 2012, a similar suit was heard regarding the publication of a report on the arrest of a German celebrity. The European court reiterated the tests determined in re. Von Hannover above, stating (in Paragraph 93) that in balancing between the rights, both the manner in which the information reached the publishing party and the extent of its credibility must be addressed.

Continental Law

104.The German legal system developed a three-stage test in order to handle situations in which it is alleged that the right of a person to privacy has been violated. First, the extent of the violation of privacy is examined; second, the justifications for the violation are examined, for example: public interest and the consent of the subject of the publication; third, an examination is carried out of the proper balance between the violation of privacy and the right exercised, while addressing the manner and scope of the publication and subjective matters (such as: intention to harm). However, insofar as the violation of privacy touches on the “core of human life”, the said balancing will not be conducted at all, and the publication will be prohibited (for an extensive description regarding the development of the German law and further authorities, see: Paul M. Schwartz & Karl-Nikolaus Peifer, Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?, 98 Cal. L. Rev. 1925 (2010) (hereinafter: “Prosser’s Privacy”). Translations of the judgments are taken from this article). As a consequence, a violation of the core of the right to privacy will not be allowed, even where it is balanced against a broad public interest:

“Even serious public interests cannot justify encroachments of this area; an evaluation according to the principle of proportionality does not take place” (BVerfGE 80, 367 (1998) NJW 1990 563)”.

105.In 2008, the German Federal Constitutional Court issued a judgment in a similar case to the case at bar: (BVerfGE 119, 1 (Ger.) 61 NJW 39 (2008) (Ger.)) (a detailed description of the judgment appears in Prosser’s Privacy above on pages 1932-1937). According to the facts of the judgment, Maxim Biller (hereinafter: “Biller”) published, in 2003, a novel revolving around a romance between an author by the name of ‘Adam’ and an actress by the name of ‘Esra’. The novel describes the gamut of difficulties faced by the couple, and references, inter alia, the character of ‘Esra’s’ family and her fatalistic personality, including: her mother’s arrogant character; details regarding her daughter who was born from her first marriage, and a description of the sexual relationship between them. According to Biller’s former partner, there is a considerable similarity between her character in real life and the character of the protagonist as described in the story’s plot (‘Esra’). According to her, the novel contains many intimate details in connection with the relationship she had in the past with the author of the work – Biller, without obtaining appropriate consent. Her mother further stated that the novel contains intimate details that publicly expose her personality which is presented in the novel in a negative light.

106.At the initial stage, the court dealt with the examination of the artistic medium through which the violation of privacy was committed. Ostensibly, the book written by Biller is a fictional novel, any connection between which and reality is completely coincidental. However, according to his former partner, the novel contains precise details and in fact constitutes a ‘memoir’ (i.e. an autobiography) in the guise of a novel. At the second stage, the court examined whether readers belonging to the broad social circle of the average person (such as: the injured party), as distinguished from the circle of celebrities and public figures, could indeed identify her by reading the novel. Examining the extent of the novel’s classification as fiction or biographical will be examined in view of the social circle, i.e. – identification of the character described in the novel by the social circle, is nothing but a presumption that the novel is based on real life – ‘roman à clef’. Case law has developed a dual test intended to help identify the character described in the novel: One, the degree of similarity between the literary character and the real character; two, the degree of the violation of privacy. An intermediate violation of privacy may be remedied by a weak likeness between the literary character and the real character; and vice versa, a weak violation of privacy may be remedied by a stronger similarity between the real character and the literary character. Consequently, German case law developed a two-stage test: (a) is the literary character indeed identified by the close social circle; (b) is the degree of the violation of privacy neutralized through the ‘fictionalization’ of the character described in the plot. We therefore have a quasi- ‘parallelogram of force’ between the extent of the identification and the severity of the violation.

107.After examining the evidentiary matrix, the claim of Biller’s partner that she may be identified by reading the novel, was accepted. Conversely, her mother’s claim was rejected. Once it was ruled that it was indeed possible to identify Biller’s partner, the court examined the violation of the right itself. Due to the fact that the violation is at the core of the right to privacy, and as such cannot be remedied, the publication of the novel was prohibited.

108.From inspection of French case law, a similar approach can be identified (for a specification, see: The Law of Privacy and the Media above, on pages 155-159 and the authorities cited therein) (the article below: Privacy in Europe and the Common Law). The source of the protection of the right to privacy is embedded in Section 9 of the Code Civil [C. CIV.] (in its translation into English):

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

109.Throughout the years, the French courts have developed two main principles when dealing with a violation of privacy: (a) there is no hierarchy among the competing rights; each competing right has the same normative status; (b) all measures taken in the course of the balancing must be proportional.

110.Against the background of the said principles, it was held that freedom of expression will prevail where there is a public interest with respect to a certain event (‘fait d'actualité’) or when there is a significant contribution to public debate. Examination of the existence of the public interest in the framework of French law is similar to examination of the public interest in the case law of the European Court of Human Rights, as specified above. The right to privacy will prevail over freedom of expression only where the violation is in the ‘intimate dimension of private life’ (for further details and references, see: Helen Trouille, Private Life and Public Image: Privacy Legislation in France, 49 (1) I& C. L. Q. 199 (2000), and: Privacy in Europe and the Common Law above, on pages 155-159).

U.S. Law

111.Freedom of expression is established in the First Amendment to the Constitution, an amendment which has received immortal status in U.S. case law, to the point that it is hard to overstate its importance (see, for example, U.S. law on prior restraint: Near v. Minnesota, 283 U.S. 697 (1931)). In contrast, the right to privacy is not established in the Constitution. Indeed, since the above key article of Justices Warren and Brandeis (The Right to Privacy above) the status of the right to privacy has changed. However, it still remains constitutionally inferior to the freedom of expression.

112.U.S. law recognizes four tort causes of action for a violation of privacy (see Restatement (Second) of Torts, § 652 (1977)). From the causes of action, the one relevant to the case at bar is: ‘public disclosure of private facts’. The cause of action is defined thus (ibid, 652D):

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public”.

In order for a cause of action by virtue of ‘public disclosure of private facts’ to rise, the plaintiff is required to prove that: (1) the publication concerns matters pertaining to his private life; (2) the information that was published is highly offensive to a reasonable person; (3) the information that was published is not of legitimate public concern.

113.U.S. case law has focused on the definition of legitimate public concern. Its existence is dependent on proving a logical nexus between the private information that was exposed and the existence of a legitimate public concern (see, for example: Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)) (hereinafter: “re. Seabury”). This causal link was generously and broadly interpreted in case law (ibid).

114.In a series of judgments concerning the publication of autobiographical works, it was explicitly held that the existence of a ‘legitimate public concern’ prevails over a person’s right to privacy. Thus, for example, in the said re. Seabury, a suit was heard in connection with the exposure of information relating to the conduct of the plaintiff’s marital and domestic life. In the book, which was published by her former husband’s brother and focused on the relationship between the two brothers, details were included pertaining to her marital life. She, on her part, petitioned the court to prevent the publication and distribution of the book. However, her suit was dismissed with prejudice in view of the existence of a ‘logical nexus’ which falls under the constitutional protection:

“A review of the record in this action clearly shows the requisite logical nexus. An account of the author's close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection” (ibid, on page 397).

[The emphases have been added – N.S.].

115.In 2004, another lawsuit was heard concerning a violation of privacy, following the publication of an autobiographical work (Bonome v. Kaysen, 17 Mass. L. Rep. 695 (Mass. Super. Ct. 2004)). ‘Kaysen’, a well-known author, wrote a book entitled ‘The Camera My Mother Gave Me’, which describes her coping with severe pain in her genitals. The book documents the impact of her said medical condition on the intimate relations with her partner, ‘Bonome’. ‘Bonome’ is presented in the book in a negative light, and it is suggested that he attempted at one point to rape Kaysen, after she refused to have sexual relations with him. ‘Bonome’s’ claim against the publication and distribution of the book was dismissed with prejudice because there was a ‘legitimate public interest’ in the publication of ‘Kaysen’s’ autobiographical book. The courtaddressed the difficulty inherent in an autobiographical story containing the experiences of two separate partners. Although the autobiographical story of one is a violation of the other’s privacy, recognition of ‘Kaysen’s’ right to expose the private information establishes the logical nexus required between the information exposed and the public interest, in order to justify the publication thereof.

“As noted above, there is an additional interest in this case: Kaysen’s right to disclose her own intimate affairs. In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story – which inextricably involves Bonome in an intimate way. In this regard, several courts have held that where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Id.; Anonsen, 857 S.W.2d at 705-06; Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident”.

Interim Summary – Foreign Law

116.The case law in England, Germany, France and of the European Court of Human Rights leans towards granting extensive protection to the right to privacy versus the freedom of expression. Conversely, the U.S. system has adhered to granting a weak status to the right to privacy.

We will now examine our “homegrown” law on the issue of the relationship between the right to privacy and the freedom of expression.

The Normative Balance between the Rights

117.The right to privacy is a relative right. Freedom of expression is also not an absolute right. As such, it is necessary to balance them, one against the other, and against parallel rights and other interests. In the appeal at bar, we are witnessing a “frontal clash” between the right to privacy and the freedom of expression. What is the law when two constitutional rights clash with one another? The freedom of expression and the right to privacy are rights that are shaped as principles, and hence the clash between them is not an abstract clash, without any foundation in legislation. On the contrary, the parties’ claims are based on and supported by the legislation itself. Section 2 of the Protection of Privacy Law prescribes that the “publication of a matter pertaining to the private life of a person, including his sexual history, or his health, or what he does in private” is included in this violation. The law does not deem this determination to be an absolute matter, and instructs in Section 18(3) of the Protection of Privacy Law that the violation is permitted if there is a “public interest therein that justifies it under the circumstances, and provided that if the violation was by way of publication – the publication was not false”. We therefore have before us a question regarding the interpretation of the provision of the said Section 18(3). This balance is, naturally, an interpretational-constitutional balance. “It takes into consideration the in-principle importance of each one of the rights and its weight at the point-of-decision. It reflects the balance conducted within the bounds of proportionality in its narrow sense in the limitation clause” (see Barak, Proportionality in Law above, on pages 124-125).

Proportionality in the Narrow Sense – a Balance of Profit and Loss

118.The test of proportionality in the narrow sense examines the existence of “a proper correlation between the benefit that the policy produces and the damage that it causes” (see HCJ 3648/97 Stamka v. The Minister of the Interior PDI 53(2) 728, 782 (1999)). “It is necessary to examine whether a proper ratio exists between the public benefit derived from the act of legislation whose legality is considered and the damage to the constitutional right caused by such act of legislation” (see HCJ 2605/05 College of Law & Business v. The Minister of Finance, Paragraph 50 of the judgment of Chief Justice D. Beinisch (November 19, 2009)).

119.At the center of the proportionality test – in its narrow sense – is the following question: does the weight of the benefit derived from the realization of one right exceed the weight of the damage that will be caused to the other constitutional right. This weight is neither measurable nor quantifiable, but rather metaphorical weight derived, inter alia, “from political and economic ideologies, from the unique history of each and every country, from the structure of the political and governmental system” (see Proportionality in Law above, on page 431) from the specific legal tradition and various social values.

120.We are not concerned with comparing the weight of the two constitutional rights themselves, i.e. the weight of the right to privacy on the one hand and the weight of the freedom of expression on the other. The question put to our decision is different and limited in scope: is the weight of the marginal benefit derived as a result of realization of one right greater than the marginal damage that will be caused to the other right. As stated at this court in another case: “The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change? (HCJ 7052/03 Adalah The Legal Center for Arab Minority Rights in Israel v. The Minister of the Interior, PDI 61(2) 202, Paragraph 91 of the judgment of Chief Justice A. Barak (2006)).

121.The question at the center of the appeal at bar is not which is preferable, freedom of expression or the right to privacy; but whether the weight of the benefit that will grow from the prevention of publication of the book at bar – which violates the right to privacy – is greater than the weight of the damage that will be caused to the freedom of expression as a result of the prevention.

122.In determining the weight of the rights placed on the scales, three criteria must be addressed: the importance of the right; the probability of the violation or realization of the right; the magnitude of the violation or the realization. With respect to the importance of the right, it has already been ruled that despite the identical constitutional status of the members of the family of rights, the social objectives established and protected by such rights are not identical. “Not all constitutional rights are equal in importance, and consequently nor is their specific weight. The importance of a constitutional right and the importance of preventing its violation are determined according to the basic perceptions of society. They are impacted by the cultural history and the character of each and every society” (see Barak Proportionality in Law above, on page 443). There is another distinction between the core of the right and its margins. Protection of the core of the right is not the same as protection of its margins. Relevant in this regard is the opinion of Justice (former title) A. Barak in HCJ 5016/96 Horev v. The Minister of Transportation, PDI 51(4) 1, 49 (1997): “Within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered to political expression is superior to that allotted commercial expression. In the context of a certain aspect of a right (such as political speech), a violation at the core of the right is not the same as a violation in its margins”.

123.The “geographic location” of the specific case is determined in view of examination of the rationales underlying the manifestation of the right with which we are concerned. “Although all expressions are included in our system in the one ‘category’ of freedom of expression, not all types of expressions enjoy equal protection. The basic criterion for determining the extent of the protection for a certain expression is the social importance of the expression, and particularly its importance in realizing the objectives underlying the freedom of expression” (F.Cr.H 7383/08 Ungerfeld v. The State of Israel, Paragraph 28 of the judgment of Justice (former title) E. Rivlin (July 11, 2011); for example: protection of the freedom of commercial expression is not the same as protection of the freedom of artistic expression; their importance is different (the above re. Kidum; see and compare: HCJ 5432/03 Shin - The Israeli Movement for Equal Representation of Women v. The Council for Cable TV and Satellite Broadcasting, PDI 58(3) 65, 82 (2004); HCJ 4644/00 Jafora-Tabori Ltd. v. The Second Authority for Television & Radio, PDI 54(4) 178, 182 (2000)). Similarly, the protection of freedom of expression in relations between individuals is not the same as protection of freedom of expression in relations between an individual and the government: “The scope of the individual’s right to freedom of expression against the state is more extensive than the individual’s right to freedom of expression against another individual” (Barak Human Dignity, above on page 723).

124.Note, it is necessary to be careful of being ‘swept away’ in the ideological level. The value must not serve as a veil against an interest. Sometimes, the ideological robe, the shell, the external covering, is void of any moral content and is actually an interest-oriented (financial, personal or other) dispute. In situations such as these, there is nothing in the manifestation of the right with which we are concerned other than what it comprises. In this case, values which do not underlie the limited manifestation should not be read into it in an artificial and forced manner. These are the situations in which the right of one individual to personal wellbeing clashes with the right of another individual to personal wellbeing. In such a case, we should not wear ideological dress nor be blinded by an ideological argument. The value is, as a matter of fact, an interest, and the Talmudic question then arises “why do you think your blood is redder than anyone else’s” (Bavli, Pesachim 25, B). In these situations, there is no need to examine the “clash of civilizations” between the basic rights. The specific issue of division of the “personal wellbeing” between the litigants may be decided without requiring the in-principle decision.

125.The probability of the violation in the realization of the right, and the magnitude of the injury, also affects the relative weight of the rights on the constitutional scales. A highly probable violation is not the same as an improbable violation; the violation of a single right is not the same as a violation of many rights; a severe injury is not the same as a minor injury; the violation of a right in relations between individuals is not the same as a violation of a right in relations between an individual and the government.

Freedom of Speech and the Right to Privacy
 

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126. In the proper balance between the right to privacy and freedom of speech, it is first necessary to examine the degree of compatibility of the right at hand with the rationales it is based upon. Accordingly, first to be examined is the extent of the expression's contribution to public debate against the severity of the infringement on the right to privacy. An expression that greatly contributes to public debate will be given priority on the constitutional scale when weighed against a medium-level invasion of privacy; infringement on the core of privacy will be afforded protection from a medium-level infringement on freedom of speech. Indeed, an issue that is important in and of itself is the existence of a parallel infringement, similar in degree, such as a collision between an expression that greatly contributes to public debate and severely impinges on the core of privacy. I need not resolve this issue in this appeal. Such a decision will require a meticulous examination of the details of the case in question. The appropriate balance, to my mind, is this: preferring an infringement on the fringes of the right to privacy to the alternative of an infringement on the core of freedom of speech, and preferring an infringement on the fringes of freedom of speech to the alternative of an infringement on the core of the right to privacy.

 

127. An aid as to the degree of infringement on the right to privacy is to be found in the examination of numerous characteristics, including: (1) the "geographic" location of the infringement on the right, at its core or on its margins; (2) the nature of the relationship and the duties of trust between the parties; (3) the publicness or privacy of the figure; (4) the manner of publication; (5) the way in which the information came to the knowledge of the promulgator; (6) the conduct of the person with respect to invasions of his privacy prior to the publication; (7) the infringement, whether one-time or continuous. These criteria and others like them assist the presiding judge in deciding the severity of the injury.

 

128. In deciding the matter at hand, we have adopted an arrangement similar to the one practiced in the European legal systems. These legal systems are better suited to our legislative and constitutional structure. Let us keep in mind and give heed: turning to comparative law harbors both peril and blessing. The blessing lies in learning from the experience of others, as articulated by Justice Holmes "The life of the law has not been logic, it has been experience" (Anonymous [Holmes], Book Notices, 14, Am. L. Rev. 233, 234 (1880)). Comparative law allows us to enrich our world, learn and acquire knowledge.  However, alongside the blessing, there is also danger - "The root of faith is the root of rebellion" – learning in the "copy-paste" method is not appropriate. Each and every system has its unique characteristics: the values underpinning the system, a legislative and constitutional structure, national history, political ideologies and more. These unique elements affect the rulings of the court: "It is a burden that we bear to be careful not to be captivated by foreign legal systems, and primarily – to know to distinguish and choose between principles and doctrines and manners of thought and solution techniques – in which inspiration and wisdom can be found – to specific solutions and details that we will leave unnoticed. Indeed, comparative law expands the mind, it enriches with knowledge and wisdom, rescues us from provincialism, yet, at the same time, let us not forget that it is ours and our situs that we are dealing with, and let us beware of an imitation of assimilation and self-deprecation" (L.Cr.A. 8472/01 Maharshak vs. the State of Israel, PD 59(1)442, 474 (2004)); and in other words: "This comparative law – whether on the international level or the state level – holds great importance … however, every country has its own problems. Even if the in-principle considerations are similar, the balance between them reflects the uniqueness of every society and the characteristics of its legal arrangements … indeed, that is the power and these are the limits of comparative law. Its power lies in the expansion of the interpretational field of vision and horizon. Its power lies in the guidance of the interpreter as to the normative potential held by the legal system … its limits are in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it treats individuals and society. Indeed, comparative law is like an experienced friend. It is advisable to listen to his good advice, but it should not replace self-decision" (see H.C.J. 4128/02 Adam Teva V'Din – Israel Union for Environmental Defense vs. the Prime Minister of Israel, PD 58(3)503, 515-516 (2004)).

 

129. As aforesaid, the American legal system places supreme importance on freedom of speech. Only rarely will freedom of speech retreat therein before the right to privacy. This legal perception is not in line with the common standard in common law and continental law jurisdictions. It is based on the First Amendment to the Constitution, whose status and importance in American case law and culture is a well-known fact that requires no proof. American legal policy reflects, de facto, a nearly generic preference of freedom of speech over the right to privacy.

 

130. Should we learn from the European legal systems or follow in the footsteps of their American counterpart? As for myself, the answer is clear, and results from the remoteness of the American system from the Israeli constitutional tradition, from the legal framework and from our Hebrew legacy (see and compare: Eli Salzberger and Fania Oz-Salzberger, "The Tradition of Freedom of Speech in Israel", Quiet, Someone is Talking! The Legal Culture of Free Speech in Israel, 27 (Editor: Michael Birnhack, 2006)).

 

131. On the constitutional level – the status of the right to privacy as a basic right is established in Section 7 of Basic Law: Human Dignity and Liberty. Freedom of speech is absent from this law. Without delving into the thick of the question – of whether freedom of speech is included in the constitutional rights contained in the Basic Law – it is undisputed that "Freedom of speech is not within the rights explicitly enumerated in the Basic Law". Even those who include freedom of speech in the Basic Law believe that it is derived from the principle of human dignity and self-fulfillment (see: Interpretation in Law (Constitutional Interpretation) above, on pages 427-428). For details and references on this matter see also: Hillel Sommer "The Non-Enumerated Rights – of the Scope of the Constitutional Revolution" Mishpatim 28 257, 318-322 (5757)). The adoption of an outlook that grants freedom of speech "supreme status" over the right to privacy has no footing either in the constitutional text itself or in its reasoning. As may be recalled, when the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation were legislated, the Basic Law: Freedom of Speech and Organization Bill was also submitted, but failed to pass into a law in the Knesset (see Bills 5754 101).

 

132. On the theoretical level, it is possible to base a chronological approach of "[T]urn from evil and do good": preventing an invasion of privacy first and realizing artistic freedom later. This, in order to prevent creative work whose glory would come from trampling over others: "Man is like the tree of the field and speech is his fruit…and just as a bad fruit does not emerge from a good root and a good fruit does not emerge from a bad root, so is man's speech when he quarrels with his fellow man and insults him, this indicates that the root from which the insult comes is bad, and therefore the insult is within him, because the bad thing coming out of him is present in him, and where the trunk of the tree is flawed so is what will come out of it" (the MaHaRal, Netivot Olam [Paths of the World] B, Netiv HaShtika [Path of Silence], Chapter A). This issue deserves thought and contemplation, as to both theory and practice. As for me, I agree with the words of Justice I. Amit in Re. Captain R. (above, in paragraph 5 of the judgment): "Since the legislature has chosen, in the Basic Law:  Human Dignity and Liberty, to elevate the right to dignity and understate freedom of expression, I believe weight should be ascribed to that, in the sense that it may not be predetermined that in a collision between the two, the weight of the right of expression will prevail. I will note that in many judgments we find reliance on the judgment in Re. Avneri as part of the reasoning for a preconceived preference of freedom of speech, but one should bear in mind that this judgment was rendered prior to the enactment of Basic Law: Human Dignity and Liberty. In my mind, when the matter at hand pertains to a collision between freedom of speech and the right to a good name in a private lawsuit under the Defamation Prohibition Law – to be distinguished from a collision between freedom of speech and other values, such as the protection of public feelings – the balance should be carried out ad hoc, and one should beware of a formula that includes a "coefficient" or "power multiplier" that favors freedom of speech". These words also coincide with the aforementioned statements by Prof. Barak, whereby "The scope of the individual's right to freedom of speech against the State is more comprehensive than the individual's right to freedom of speech against another individual" (Barak, Human Dignity, above on page 723). Hence, in the balance between the freedom of speech of one individual and the privacy of another individual, freedom of speech is not to be given automatic precedence nor granted "super-status".

 

133. On the legislative level – the Protection of Privacy Law prescribes in Section 18(3) that "In any criminal or civil proceeding for infringement of privacy one of the following may constitute a good defense … there is public interest in the infringement which justified it under the circumstances of the case". The language of the law does not provide a sweeping protection to any infringement that has a public interest. This language expressly deviates from its American counterpart, which offers protection to any expression of public interest and spares any further examination of the magnitude of the infringement. This is not our way. We hold America in esteem, but we do not acquire all of the goods it offers. It is not for naught that the Israeli legislature rejected the proposal to omit the words "which justified it under the circumstances of the case" (see: Eli Halm Protection of Privacy Law 235 (2003)) (hereinafter: "Protection of Privacy Law"). Case law states: (C.A. Registrar of Databases vs. Ventura, PD 48(3)808 827 (1994)): "The question that needs to be examined in order to establish the protection of Section 18(3) of the law is not whether the public has an interest in the information, but rather whether there is a cause that justifies the invasion of a person's privacy in order to satisfy such public interest". This position has also been expressed in literature: "It is not sufficient that the invasion pertained to a public interest, but rather it has to be clear that there was a public interest in the invasion itself. That is to say, the fact that the subject-matter of the publication in general is of public interest will not lead to the application of the protection. The person advocating it will need to persuade that the public interest required him to invade another's privacy. The question of existence of a public interest cannot be examined by the court merely according to a general formula, and it will need to give heed to the circumstances of the matter adjudicated before it, in order to decide whether the invasion of privacy is justified under such circumstances" (Ze’ev Segal "The Right to Privacy versus the Right to Know", Iyunei Mishpat 9 175 193 (1983)). For additional information see also: Ruth Gavison "Prohibition on a Privacy Invading Publications – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204-214 (Editor: Ruth Gavison, 1982)).

 

134. Our Jewish Heritage – the right to privacy seeps through the slits of the comprehensive writings of Jewish law. Prohibitions on defamation, gossip, Herem De-Rabbeinu Gershom [Ban of our teacher Gershom], Heizek Re'iyah [damage by seeing], are only a few of the many appearances of the right to privacy in Hebrew law (see, for example: Nahum Rakover Protection of Privacy (2006); Itamar Warhaftig A Person's Privacy– the Right to Privacy in the Halacha (2009)). We cannot specify and enumerate its various appearances here, and we will therefore make do with a brief review of an issue that is close to the matter at hand – the "Bal Ye'amer" [not to be told] prohibition. This prohibition is defined in the Talmud (Bavli, Yoma D, B) as follows: "Whence do we know that if a man had said something to his neighbor the latter must not spread the news until he tells him ‘go and say it’? From the scriptural text: The Lord spoke to him out of the tent of meeting, le’emor [saying] ". This prohibition was interpreted in the answers of Rabbi Haim Palachi (Q&A Hakakei Lev, Part A, Yoreh De'ah, Title 49 (hereinafter: "Hakakei Lev Q&A"): "And it further appears to my humble mind to say that even if a person sends a letter to his friend, the friend who received the letter is forbidden to disclose the contents of the letter to others. Even if it concerns nothing unusual, contains no secret nor something indecent nor damage to the writer of the letter, there is a prohibition to disclose, as stated in the Gemara, [when] anything told to a friend is not to be told, until he says so. All the more so where disgrace or a secret are concerned, and damage arises when it is disclosed". Indeed, under Jewish law, a person is prohibited from revealing the secrets of his fellow man, not only on grounds of gossip, but also in order to prevent harm. As articulated by Rabbi Yonah Girondi: "And a person must conceal the secret his friend will confidentially reveal to him, even though revealing that secret is not a matter of gossip, because revealing the secret will cause harm to its owner and a reason to breach his intentions… because the person revealing the secret has only just left the path of modesty, and here he is violating the will of the owner of the secret" (She'arei Tshuvah Part C, Title 225). Therefore, revealing a secret is not only a betrayal of trust, but also a blatant invasion of the private space of the owner of the secret and a "breach of his intentions", i.e., - impingement on his liberty. Another opinion was expressed by Rabbi Haim Palachi, whereby the person who discloses the secret of another person, steals the other person's proprietary right to the secret he told him: "Veritably stealing his mind, which is at the hidden depths of his heart" (Q&A Hakakei Lev above, ibid).

 

135. The formal course for our reference to Jewish law, Section 1 of the Foundations of Law Act, 5740-1980, prescribes as follows: "Where the court, faced with a legal issue requiring determination, finds no answer thereto in the statues or case law or by analogy, it will determine in the light of the principles of freedom, justice, equity and peace of Israel's heritage”. Basic Law: Human Dignity and Liberty outlined, in Section 2, its purpose to establish "The values of the State of Israel as a Jewish and democratic state". It appears unnecessary to discuss the level to which Jewish law is obligatory in the Israeli legal system. It is our privilege that the tradition of Israeli law does not begin in 5708, upon the establishment of the State of Israel, but is rather rooted in a tradition of thousands of years. A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law and holds the protection of a person's privacy in high regard. As articulated by Chief Justice A. Barak: "Reference to the fundamental values of Jewish law is not reference to comparative law. It is a reference to the justice of Israel. It is a mandatory reference" (Aharon Barak A Judge in a Democratic Society 290 (2004)).

 

136. The proper position in a collision between the rights in question – I believe it is the one warranted by reality – is the examination of every case on its merits, without an in-principle ruling as to the precedence of one right over the other. A severe infringement of freedom of speech would outweigh a light and a medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and a medium infringement of freedom of speech. This rule must be put into practice whenever the rights collide with one another. It is not for us to complete the task, but neither are we free to avoid it.

From the General to the Particular – the Right to Privacy and Freedom of Speech

137. We must take several steps in order to analyze the novel at the center of the appeal before us, determine the severity of the infringement on rights, the damage of the collision between them and the balance required under the circumstances of the matter: firstly, we will discuss the degree of fictionalization of the protagonist and the similarity to reality; secondly, we will examine whether the invasion of the Respondent's privacy is at the core of the right to privacy or at its margins, and discuss the degree of the injury; thirdly, we will examine the severity of the possible violation of freedom of speech.

Degree of Fictionalization

138. Two opinions by senior scholars in the field of global and Hebrew literature – Prof. Ariel Hirschfeld and Prof. Hannan Hever – have been placed before the District Court. In the opinions, the scholars impressively explained why the novel in question belongs to the category of fiction literature and is not classified under the autobiographic-historic category. Whilst "The historian claims that what he writes really happened", the novelist claims "that what he wrote did not happen but rather could have happened". In short, "The historian has a truth claim. The novelist has no truth claim" (see Hirschfeld, in Sections 7 and 8). Hirschfeld continues to examine in detail the creative work of the Appellant and proves, based on its internal and external attributes, the elements of pattern and style thereof, that this text belongs to the literary-fictional type. His fellow scholar, Prof. Hannan Hever, reaches a similar conclusion. According to his position "The distinction between an autobiographic novel and a fictional novel does not depend upon the closeness or remoteness of its plot from the reality of the novelist's life. It is an objective test that is derived from the interpretation of the reasonable reader to the gamut of indications in the novel". After "considering the cumulative weight of the indications found in the novel" Hever reached the conclusion that these indicate "unequivocally that the book deals with the construction of fiction rather than actual reality and that no 'autobiographical contract' was reached between the writer and his readers". Prof. Hever even went as far as to say that "this conclusion refutes any claim based on this argument" (see Hever, in Section 3). A similar conclusion was expressed in the affidavit of the writer Mira Magen, who accompanied the Appellant in the "labor pains" of the book.

 

139. The coming together of different worlds of content harbors both a blessing and a peril. The blessing – in mutual enrichment, in learning from the different and the similar; and the peril – the blurring of the lines that separate the disciplines. Different purposes lie at the basis of law and literature. The roles of law – the resolution of disputes, the imposition of order and the administration of justice – are not in keeping with the objectives of literature, which are the creation of art in and of itself and the creation of meaning for man, as Prof. Hirschfeld says. At times, law and literature go hand in hand, and then law girds up its loins and fights in the defense of literature, but at times – it fulminates against it. The definition of a creative work as fictional, in one area – literature – does not compel a similar definition in another area – law. "Every State in its own script and every people in its own language". The basic assumptions that underlie the different disciplines sometimes lead to opposite definitions and conclusions. That is also the case in the matter at hand.

 

140. Literary fiction expresses an "unwritten contract" between the reasonable reader and the writer. One of the terms of the contract is the lack of connection between the creative work and reality. This is not the case where legal fiction is concerned. The law, contrary to the literary-professional position expressed by the expert professors in the opinions, does not render its judgment in a binary world in which the work is categorized into one compartment and not the other. The law examines the degree to which the work is fictional. At times, the work slightly resembles events that occurred in real life; at times the work is based on such events, but without a full compatibility; and at times, such events are reflected in the actual work word for word. The examination of the degree of fiction is not a theoretical matter. It will be carried out according to the extent of the reader's acquaintance with the events that appear in the work. At times, only the soul mate of the real-life character would be able to recognize the events described through the lines. However, at times, close acquaintances of the character would also be able to recognize it. And sometimes its distant acquaintances, and sometimes the nameless amorphous reasonable reader would be able to identify it. Adopting a legal policy that is based on the literary worldview of the scholars Hirschfeld and Hever is inappropriate. Such a policy would allow those who so seek to publicize things that amount to invasion of privacy and defamation under a literary-fictional guise. The reasonable reader would view the literary manifestation and would be able to ignore the real-world one. However, the acquaintances and cherishers of the real figure would easily recognize it, process the information in their consciousness, and arrive at real-life conclusions; not fictional ones. This would open the door to the nullification of the laws of privacy protection and defamation prohibition.

 

141. Examining the degree of fiction of the creative work before us indicates that the character of the female protagonist includes numerous and unique identifying details, which enable the recognition of the Respondent. Among these, we can enumerate the description of her physical appearance, details of her age, unique occupation, her place of studies, her workplace and her place of residence, details of her special creative work, identifying details of the Appellant, her partner, and events that occurred in reality in the presence of third parties. In its judgment, the District Court correctly articulated these details (ibid, paragraph 40):

 

"a.        The female-protagonist is described in the book when meeting the male-protagonist [as being[ at the age of the Plaintiff at that time, and as someone who studies in the same institution and in the same department as the Plaintiff had, and works at the same place and in the same position as the Plaintiff had. The Plaintiff resided with her partner at the time relevant to the claim in the area described in the book, her partner’s also lived in the immediate area of the location described in the book. The female-protagonist has the same number of siblings as the Plaintiff and her parents are of the same ethnic origins as the Plaintiff's parents.

 

b.         The physical appearance of the female-protagonist as described in the book bears a great resemblance to the physical appearance of the Plaintiff, including her hair, the color of her eyes and the presence of tattoos in locations similar to the ones specified in the book. The book describes many additional details with respect to the female-protagonist's appearance, her hobbies and her past; however, these are less pronounced for the identification of the Plaintiff with the female-protagonist.

 

c.         The book describes, as aforesaid, the Plaintiff's graduation project. The book includes a conceptual description of the project and describes all of the stages of preparation of the project as well as its visual appearance. It is a unique project that had been publicly presented as the Plaintiff's graduation project in the presence of her teachers and schoolmates and consequently also identifies the Plaintiff. The vast volume apportioned in the book to the work and the stages of preparation thereof also points the finger, in and of itself, at the Plaintiff.

 

d.         The descriptions of the male-protagonist in the book in a manner which identifies him as the Defendant also contribute to the identification of the Plaintiff, as the Defendant's partner at that time, as the female-protagonist. A fact to be added thereto is that the book was written by the Plaintiff [sic; should be "Defendant"] under his own name, in the first person, and this too contributes to the identification of the Plaintiff by her immediate environment, which knew her to be the Defendant's partner.

 

e.         The book includes events that undisputedly occurred in reality, in the presence of third parties, and which enable the identification of the Plaintiff as the literary character in the eyes of the persons who were present in the events or had heard about them from the parties".

 

142. These details – factual findings determined by the District Court, and there is no cause to intervene therein or change them – tip the scale and mandate the conclusion that the Respondent can be recognized as the female-protagonist of the Appellant's book. On the whole, according to the nature of the details and their accumulation, there is basis for recognition by the reasonable distant acquaintance, a colleague, a classmate and a potential student. To this we must add that it is the course for juicy details such as these to reach broader circles. A description of physical appearance in a novel is not generally etched in the mind of the reader, and it is temporary and passing. On the other hand, a description of the character's sexual habits and details of her doings in the bedroom fulfill voyeuristic urges and serve as juicy raw material, tradable currency.

 

143. A side note on the opinions of the experts, Prof. Hirschfeld and Prof. Hever: A light and superficial perusal of the theoretical literature that addresses fiction gives rise to distinctions which were not mentioned in the opinions at all, and mainly, the existence of midpoint intermediate definitions between fiction and documentary, such as the Roman à clef genre. For some reason, the experts chose not to present the court with the theoretical definitions and sub-definitions for the term "fiction", which are extensively discussed in research literature. That is a problem with that. As a result, Prof. Hever decisively determined in his opinion that his own conclusion "refutes any claim based on this argument". There is no room for a conclusion such as this in an expert opinion. The expert is required to opine in the field of his expertise, not to overstep the jurisdiction of the court.

The Degree of Invasion of Privacy

144. As aforesaid, with respect to the invasion of privacy, we make a distinction between an impingement on the core of privacy and an impingement on the margins thereof. The core of the right – intimate details of a person's life – "the inner circle of life". The margins of the right – details that belong to the external space of a person's life – "the external circle of life". In this appeal, we are not required to discuss the "twilight zone" that lies between the margins of the right and its core. We are concerned here with a clear infringement on the core of the right. The book includes "a detailed description of matters pertaining to the private life of the Plaintiff… a detailed description of the Plaintiff's relationship with the Defendant, including events, conversations and descriptions that are unmistakably intimate. The book includes a description of the Plaintiff's relationship with her former partner until their breakup, with the parents of her partner and with her own parents, including statements made by the Plaintiff with respect to her parents in personal conversations she had with the Defendant. The Plaintiff rightly claims that the book comprehensively, and without any camouflage, describes her most intimate relationships, exposes her thoughts, feelings, desires, secrets and sexual life. All in such a manner that the Plaintiff's life, down to the most intimate details, is spread out as an open book before the readers" (paragraph 49 of the judgment of the District Court). Descriptions of this type constitute a severe impingement on the very core of the right to privacy.

Protection of the Trust Relations between Couples

145. "Acquire a friend for yourself". This sound advice, which is based on nature and human need, is given to us by Rabbi Joshua Ben Perachia (Mishna, Avot, 1, 6). "And how will one acquire a friend? This teaches that a person should acquire a friend with whom to eat… and read … and reveal all of his secrets, the secrets of the Torah and the secrets of worldly things". (Avot de Rabbi Natan 8, 3). A person needs a friend; man and woman need one another. "Either friendship or death" (Bavli, Bava Batra 16, 2). The relationship between a man and his friend and between a man and his wife serves as a haven for a person, a protected and safe place. The outside world, it is strange and alienated. A man's home is his castle. In the public domain, a person is constantly under a scrutinizing and inspecting eye. In private, in the privacy of his own home, together with a friend or a spouse, a person has a piece of land, physical relaxation and peace of mind. This relationship is characterized by a high level of trust between the parties. At its peak, the friends and the spouses accept each other, as they are, unreservedly. Relationships such as these encourage a person to open his heart and share his secrets with another. Unlike the scale armor that a person wears when going out into the outside alienated world, relationships like these are characterized by removal of the outer layer and exposure of the inner world. In the course thereof, the spouse is stripped bare, physically and spiritually, before the other spouse. A worthy legal regime grants protection to such a relationship. Secrets and details revealed in the framework of interpersonal relationships, in which there is a high expectation for trust relations, are worthy of legal protection. Words such as these were stated by the English Court:

 

"There could be hardly be [sic] anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed". (Argyll v. Argyll [1967] Ch. 302, 322).

 

For additional information see also: Nigel Lowe & Gillian Douglas, Bromley's Family Law 113-118 (2007).

 

146. The Appellant and the Respondent had a longtime romantic relationship that lasted approximately five years. In the course of their acquaintance, the Respondent separated from her partner, and the Appellant divorced his wife. Clearly such a stable and lengthy relationship gives rise to an enhanced duty of loyalty. In exposing intimate details, which one of the parties learned about during the couple’s relationship, there is severe harm to the rationale at the base of the protection of privacy and to the inclination to safeguard and protect the existence of interpersonal relationships. Naturally, the context in which the details were disclosed, and the ones for which the question of exposure is on the table, also adds to the depth and to the weight of the invasion of privacy in the case at bar.

 

147. Interim Conclusion: After examining the degree of fiction in the creative work and the degree of infringement on the right to privacy, we have learned that there is little fiction and great harm. This is a creative work, a novel, in which the reasonable distant acquaintance may recognize the Respondent. It is a grave infringement on the core of the right to privacy, the trust relationship between a couple. The inevitable result is that publishing the novel will cause a severe and intense invasion of the Respondent's privacy; the identification and the injury join together to create heavy weight on the side of privacy on the constitutional scale.

Freedom of Speech

148. The extent of the violation of freedom of speech will be examined according to its underlying rationales. We will distinguish between rationales that reflect extensive social values such as: human dignity, the exposure of truth, and the importance of freedom of speech in a democratic regime. Realizing these values through the examined expression elevates the protection of the expression to a high level and the freedom to express it. On the other hand, insofar as the expression primarily stands on the basis of personal wellbeing, the value will be reduced to interest level, simultaneously reducing the degree of protection of the freedom to express it. This is not a binary choice. Many expressions contain several elements that stem from different rationales. The court is entrusted with the task of deciding the dose of the rationales fulfilled by the expression.

 

149. The novel authored by the Appellant embodies artistic freedom. This specific manifestation does not merit as severe a protection as its fellow political expression (see and compare: Barak, Human Dignity, above on page 731), but nor does it descend to the bottom tier, like its commercial counterpart. As such, it fulfills different values that underpin freedom of speech – the exposure of truth, and the importance of freedom of speech in a democratic regime – but it does not involve a full realization of these rationales, which are wholly realized in political expressions. Artistic freedom is also known for its self-serving personal aspect. The creator wishes to glorify his name and make himself renowned. The weighting of these rationales indicates that the expression before us realizes freedom of speech to a medium degree. Ideal and interest are intermingled therein. The violation of freedom of speech in the case at bar is also not of the severe type, as it does not originate in censorship on the part of the governing authorities, but rather in the Respondent's legal action as a person concerned with protecting her right to privacy. The balance between a serious and severe infringement of the right to privacy against a medium violation of freedom of speech tends toward the protection of privacy.

Concern of Literary Work being Shelved

150. According to the Appellant, denial of the appeal "might lead to absurd results" and to the shelving of important literary work based on "actual" events. Counsel for the Appellant quotes the CEO of the publisher, who protested against such legal policy in his testimony at the District Court: "In fact, what will be asked of me, is not to prove that things happened, but rather to prove that things never happened … I will have to prove that the fictional protagonist did not have such a neighbor … how can you prove what did not happen … any work whatsoever is impossible if we come to that place, which I find preposterous … it is the absolute paralyzing of original creative work" (page 110 of the court transcript). The Appellant also notes a considerable list of important literary works that would have been shelved and never published, according to the legal policy set by the District Court.

 

151. The Appellant claims that "The judgment may have… destructive implications on an entire branch of literary writing. Its practical implication is that writers writing an autobiography or an autobiographic novel are prohibited from relating a relationship with another person and sharing with the public, through the work, experiences that they themselves had had in that relationship". In conclusion, the Appellant calls upon the court to stop and ask itself "Would I be willing to apply the exact same criteria to one of the masterpieces of Hebrew literature? Were I to ignore the identity of the Appellant and visualize Amos Oz, or David Grossman, or Meir Shalev before me – would I then too arrive at the same outcome?"

 

152. I have done as the Appellant directed. I turned to ask myself, would I indeed be willing to adopt similar criteria in other situations? But I will first say a few words. The utilitarian argument regarding the increase of the aggregate wellbeing of society as a result of the publication of literary works has great charm. It is supposedly simple: in situations where the right of one private individual collides with the right of another person, which has a high aggregate benefit, the second right should be preferred.

 

153. However, this argument bears a twofold flaw: firstly, the protection of human dignity also rises from utilitarianism itself, since a society that throws human dignity down the gutter significantly reduces the aggregate wellbeing. This principle was not overlooked by the father of the utilitarian doctrine, John Stuart Mill, who, in his book "On Liberty", determined that aggregate benefit and utility also rise from a regime that protects human rights. This utility should be taken into account when examining the aggregate wellbeing regime in situations of human rights' violation. A similar position is brought in Midrashei Chazal [the writings of our sages may their memory be blessed] that addressed the construction of the biblical Tower of Babel: "Rabbi Pinchas says that there were no stones there to build the city and the tower, so what did they do? They fashioned bricks and burned them as artisans of earthenware until they built it seven miles high … and if a man fell down and died they paid him no heed and if a brick fell down they sat and wept and said when would there be another to replace it" (Pirkei de Rabbi Eliezer(Higger), Chapter 24). The preference of brick over man – this is what stands at the heart of Chazal's criticism of the Babylonian tower.

 

154. Secondly, there are situations wherein we decide that the protection of human dignity is more important than the accomplishment of other social values. This is the case, for example, in legal policy on experiments in humans. The benefit held in this type of experiment and the aggregate wellbeing expected therefrom could have a crucial effect on the future of the whole of mankind. Despite this, the law has chosen to apply a restraining legal policy that takes a firm hand against these, in order not to violate human dignity. A similar principle is reflected in the words of Chazal who determined that "So great is human dignity that it overrides the negative commandments of the Torah" (Bavli, Berachot 19, 2).

 

155. Clearly, one must not underestimate the importance of the artistic freedom in general, and the autobiographical one in particular. It should be granted an honorary place in the Israeli realm of rights. As a rule, the court will not prevent the publication of an autobiographic novel. Prior restraint is a highly rare act. However, it is possible that as a result of the legal policy outlined in the judgment of the District Court and now adopted in our ruling in this court, mankind as a whole will suffer the loss of several literary works. This argument, as aforesaid, does not deny our ruling. There are values that merit even the loss of several "good books". Man before book. Books are meant to serve mankind, not the other way around, in the sense of "a maidservant who inherits her mistress" (Mishlei, Book of Proverbs 30, 3). It appears that the Appellant's words of "cultural ruin" and of his own work which "went up in flames" were overstated, to the point that he has forgotten which is the cause and which is the effect.

Copyright and Defamation

156. The District Court found, as mentioned, that there was no need to rule on the Respondent's arguments with respect to Appellant's infringement on her copyright to her letters – which he had used in his book – because there was anyway no justification to award additional monetary compensation beyond the compensation for invasion of privacy. The Appellant did not address this cause of action in his summations. There is therefore no need to address this issue in the framework of the appeal at bar. Likewise with respect to the Appellant's claim that the publication of his book does not constitute publication of defamation against the Respondent. According to him, the District Court erred in finding that "The Plaintiff (the literary character) is described in the book as a woman who had an intimate relationship with a married man and did so in parallel to her relationship with her then partner. She is further described as someone who is willing to trample over anything that stands in her way to her goals, and as someone who uses people 'as if they were objects'" (paragraph 68 of the judgment). The Respondent, on her part, claims that this ruling of the District Court should also remain unchanged. In my opinion, this matter too does not require a ruling in the framework of the appeal at bar, as it has no bearing on the remedies.

Consent of the Respondent

157. Section 1 of the Protection of Privacy Law prescribes that "A person will not invade the privacy of another without his consent". The Appellant claims that once the Respondent expressed her consent to the writing of the book, its publication is no longer a prohibited invasion of privacy. The District Court discussed this argument at length and its conclusion was resolute: "It should be determined that not only did the Plaintiff not give her informed consent to the invasion of her privacy, but the Plaintiff also made clear to the Defendant before the publication that she forbids him from including in the book any details that may lead to her identification" (paragraph 65 of the judgment). I accept the ruling of the District Court, based on the materials brought before it. It is a ruling on a matter of fact. As known, the court of appeals is not in the habit of intervening in matters of this type, and there is no good reason to deviate from the rule. I will, however, briefly address the legal aspect of consent to invasion of privacy.

 

158. It is inarguable that the Respondent expressed before the Appellant her objection to the publication of the book several times. According to the Appellant's claim, this objection was preceded by consent. What is the nature of this consent and can one withdraw therefrom?

 

159. Various scholars have expressed their position that "Consent may be compared to a contract, and the principles of contract law will apply to consent" (Protection of Privacy Law above, on page 45); and that "There is no impediment to the application of the principles of contract law to consent" (Private Space, page 100). Despite the noticeable similarity, scholars have pointed to the difficulty in the "blind application" of contract law: "Although it appears that the principles of contract law apply to the element of 'consent', the protection of privacy laws give rise to dilemmas that are not always resolvable through contract law. Thus, for example, it may be that a person who gave consent will withdraw the consent he gave: the basic principle in contract law mandates enforcement of the obligation. However, in our opinion, this remedy is not necessarily suitable in the event of withdrawal of consent to relinquish the right to privacy. The personal nature of the consent to relinquish privacy and the elevation of the right to privacy to the rank of a basic right, require the interpreter to use additional tools to examine 'the consent', in addition to contract law. When a person withdraws his consent to relinquish his privacy, one should not, in our opinion, impose the ordinary law of enforcement on him and publish information that invades his privacy in reliance on previous consent. A person should be allowed, primarily in circumstances that concern intimate information, the ability to withdraw his waiver of his right to privacy against monetary compensation if the party who relied on the waiver of privacy has been damaged as a result" (see Protection of Privacy Law above, 46; for similar positions see: Private Space above, page 100-104); The Law of Privacy and the Media above, on pages 537-538).

 

160. It appears to me that a person's consent to invasion of his privacy is not the final word. The constitutional status of the right, the hard personal nature of invasion of privacy, may place the remedies for the withdrawal of consent in a position that differs from the one under contract law. Enforcement may possibly be unjustified in circumstances of severe invasion of privacy, compared with monetary compensation that may be justifiably awarded due to the withdrawal of consent, if it caused damage. According to a "parallelogram of force" between the severity of the invasion of privacy and the validity of the consent, the milder the invasion the greater the chances of receiving an enforcement remedy; the more grave the invasion, the more the balance will tilt towards avoiding enforcement, while granting the possibility of a compensatory remedy. In the case at bar, as aforesaid, the District Court rightly ruled that there had been no consent. There had been the explicit objection of the Respondent to the inclusion of a detail that could bring to her identification.

Conclusion

161. The Appellant's freedom of speech "collides" with the Respondent's right to privacy. His artistic freedom, as reflected in the book he has written, harms the Respondent's good name. The autobiographical work has many notable virtues. However, the book in question is actually a documentary book disguised as a work of fiction – as the District Court has ruled – and its invasion of the Respondent's privacy is grave and severe. We are concerned here with two constitutional rights – freedom of speech and the right to privacy - and, in principle, neither takes precedence over the other. In our ruling, we have examined whether the weight of the benefit that will arise from the fulfillment of one right exceeds the weight of the damage incurred by the other right. Our in-principle conclusion is that on the constitutional scale, freedom of speech will prevail in a situation of mild and medium infringement on the right to privacy against a severe violation of freedom of speech; the right to privacy will prevail when the violation of freedom of speech is mild or medium and faced with an intense impingement on the core of privacy. We implemented the principle, according to the circumstances of the matter and the book in question, and we have found that there is little fiction and great harm. A grave and severe invasion of the Respondent's privacy, whereas, on the other hand, there is a medium violation of the Appellant's freedom of speech. The identification of the Respondent in the Appellant's book as the female-protagonist, together with a detailed description of her inner life circle, including matters that are manifestly intimate, outweigh, in their aggregated weight, the infringement on the Appellant's freedom of speech, in which ideal and self-interest are intermingled.

 

162. Were the Appellant seeking to hold a photography exhibition in which he displayed the Respondent with him in the nude, it appears that an injunction would have been issued, in order for him not to do so. All the more so the book, where he portrayed the Respondent's body in her own bedroom and also exposed the depths of her soul and her innermost secrets. It is thus just that the District Court issued a permanent injunction prohibiting the publication of the book.

 

163. Therefore, I propose to my fellow-justices to deny the appeal and leave the judgment of the District Court standing. I further propose that the Appellant be charged with the payment of trial costs and legal fees to the Respondent in the amount of ILS 75,000.

 

 

 

Justice

 

Deputy Chief Justice M. Naor:

1. My fellow-justice, Justice Sohlberg, has laid out an extensive review. It appears to emerge from his review that were the case before us heard in the courts of the United States – the result would have been different. The result of disqualifying a book that has been written is a difficult result and ought to be kept for exceptional cases. I am afraid that the case at hand is such a case.

 

2. It appears that in his book, more than the Appellant sought to write about the female-protagonist, he actually sought to write of the male-protagonist, the experience of a man who leaves his home mentally and physically in a gradual process, first for short-lived affairs, and eventually for a relationship with the female-protagonist. The relationship with the female protagonist began when the male-protagonist was married and the relationship continued after the male-protagonist left his home. The work describes the difficulties in the relationship of the male-protagonist with his longtime wife, and with his children, difficulties that eventually also harm his relationship with the female-protagonist, for whom he cannot make room for in his world. It is not the female-protagonist who is at the center of the plot, although the female-protagonist and other women (to a lesser degree) hold an important place in the plot. The plot is centered on the man who leaves his home.

 

However, in his writing, at the center of which is the male-protagonist, the author has breached permitted boundaries and severely invaded the Respondent's privacy. Things could have been written differently to begin with. My fellow-justice rightly noted, following the findings of the District Court, that things were written in such a manner so that even a distant person who knows the Respondent would recognize that it was about her. The standard sentence appearing on the internal side of the book cover, that the plot of the book and the characters mentioned therein are all the product of the author's imagination and that any connection to living persons or characters is purely coincidental – does not reflect the situation as it truly is. This being the case – there was no room for various descriptions, which it would not be right to specify, that run as a common thread throughout the entire book. There was also no room to share with the reader the heroine's secret thoughts and her sex life. The Appellant wrote his book as he did while ignoring that grave invasion. We cannot illustrate the severity of the invasion with the details contained in the book, because such details would also constitute an invasion of privacy. It is sufficient for me to note that my words with respect to the serious invasion have been written after reading the book in full.

 

Although, as aforesaid, it could have been done differently to begin with. In the hearing we suggested allowing non-trivial changes in the book, but this was not achieved. We cannot assume the role of "chief editor" and the role of the one directing changes in a literary novel in a judgment. According to my impression, things could have been written differently to begin with, without significantly compromising artistic freedom, yet the Appellant wrote what he did in a manner that completely ignores the harm to the Respondent.

 

3. Despite the considerable difficulty I feel as to the need to censor a literary work – at the end of the day, I join my opinion with the opinion of my fellow-justice, Judge Sohlberg, and all while emphasizing that disqualifying a literary work should be done in rare cases. However, the case before us is, as aforesaid, such a case.

 

Deputy Chief Justice

 

Justice S. Joubran:

1. I concur with the thorough and comprehensive judgment of my fellow-justice, Justice Sohlberg. I will briefly note the reasons specified by my fellow-justice that have led me to this conclusion.

 

2. Firstly, the case before us gives rise to a complex question pertaining to the correct balance between the Appellant's freedom of speech and the Respondent's right to privacy in the framework of Section 18(3) of the Protection of Privacy Law, 5741-1981 (the "Protection of Privacy Law"). The section prescribes a balance between the right to privacy and the freedom of speech and public's right to know. In this context, I agree with the approach of my fellow-justice, whereby it is the court's role to pour substance into this basic formula, and in the case at bar – interpret it in view of constitutional principles (paragraphs 53, 68 of his opinion; L.C.A. 6902/06 Zadik vs. Ha'aretz Newspaper Publishing, paragraph 10 (August 13, 2008)).

 

3. In my opinion, in the balance between two constitutional rights of equal status, the highroad is to take a conciliating approach with the aim of allowing both rights to coexist by means of a proportionate impingement on one at the expense of the other (see and compare: H.C.J. 2481/93 Dayan vs. Chief of the Jerusalem District, 48(2)456, 474-475 (1994); A.P.A. 398/07 The Movement for Freedom of Information vs. the Tax Authority, paragraph 53 (September 23, 2008) ; A.P.A. 9341/05 The Movement for Freedom of Information vs. the Government Companies Authority, paragraph 31 (May 19, 2009); Ruth Gavison "Prohibition on a Privacy-Invading Publication – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204, 219 (1982)). In this spirit, we have tried to conciliate between the parties in the hearing we held on the appeal, and to reduce the invasion of the Respondent's privacy and allow the publication of the book. However, most regrettably, this attempt was unsuccessful. Only then, in the absence of the option to reconcile the rights, the path of a binary decision should be taken and one right preferred over the other (see: H.C.J. 1435/03 Jane Doe vs. the Disciplinary Court for State Workers Haifa, PD 58(1)529, 537-539 (2003)).

 

4. Secondly, the scope of the protection of speech is determined according to the rationales it fulfills. This court has held that the three rationales underpinning freedom of speech are the exposure of truth, individual self-fulfillment and the reinforcement of democracy (H.C.J. 399/85 Kahana vs. the Israel Broadcasting Authority, PD 41(3)255, paragraphs 14-16 of the judgment of Justice (his former title) A. Barak (1987) (hereinafter: "Re Kahana"); Ilana Dayan-Orbach "The Democratic Model of Freedom of Speech" Iyunei Mishpat 20 377 Chapter A (1996)).

 

5. In my opinion, although it is undisputed that the Appellant's book is protected under free speech, most of its underlying rationales (with an emphasis on the exposure of truth, as will be specified here) do not apply to the work, certainly not fully. In this context, I will note that a considerable part of the Appellant's claims, both before us and before the District Court, was based on the argument that this is a work of fiction, and therefore cannot in fact invade the privacy of the Respondent. In view of this, I accept the position of my fellow-justice that the rationale of "exposure of truth" does not fully apply to the book (paragraph 149 to his opinion). It is noted that it is written in the beginning of the book, black upon white:

 

"The plot of the book, the characters mentioned therein and their names are all the product of the author's imagination. Any connection between the plot of the book and events that occurred in real life, as well as between the characters mentioned herein and their names and characters or names of persons, living or dead, is purely coincidental".

 

6. In this state of affairs, I find it difficult to determine that the book helps "To ensure freedom of speech in order to enable various and diverse ideas and views to compete with one another. From this competition – and not from a governmental dictation of a one and only 'truth' – will truth float and rise up, as, in the end, the truth will prevail in the battle of ideas" (Re Kahana, in paragraph 14). In view of this, I believe that the scope of protection to be granted to the book is not broad whilst on the other side stands the Respondent's right to privacy in its clearest sense, and the latter should prevail.

 

7. On these grounds, I concur with the judgment of Justice N. Sohlberg.

 

 

Justice

 

Ruled as aforesaid in the judgment of Justice N. Sohlberg.

Rendered today, Nissan 24, 5774 (April 24, 2014).

Permitted for release today, Iyar 22, 5774 (May 22, 2014).

 

 

The judgment was sent in its entirety to the parties' counsels, and, at our request, they suggested light changes and omissions in order to prevent a situation where the contents of the judgment reveal details whose publication would undermine the injunction prohibiting the publication of the book. The main omissions and changes were incorporated into the language of the aforesaid judgment. We therefore allow the release of the judgment in its reduced format herein, while the prohibition on exposure of the names of the litigants and identifying details about them, as well as the judgment in its full format, still standing.

 

Deputy Chief Justice                               Justice                                            Justice

 

__________________

The copy is subject to editing and wording changes. Heb 11089540_009.doc

Information Center, Tel. 077-2703333; website, www.court.gov.il

Deputy President Landau: In this Further Hearing we are required to reexamine the rulings that emerge from the opinions of my esteemed colleagues, Shamgar J and Berinson J, in this Court's C.A. 723/94. In that case, by a majority decision over the dissenting opinion of my esteemed colleague Ben-Porat J, the court accepted the appeal of the Respondents before us, Ha'aretz Newspaper Ltd. and others, against the Petititioners, The Israel Electric Corporation, Ltd. and Yaacov Peled, and rejected the Petititioners' claim for the payment of damages for defamation. (The District Court's judgment was published in District Court Judgments 1975, at page 671, and the judgment in the appeal was published in 31(2) P.D. 281.) Of the two majority Opinions in this case, my esteemed colleague Shamgar J ranged extensively across the issues and rendered novel holdings concerning the law of defamation that have far reaching consequences, while Berinson J based his decision on narrower grounds, limited to the application of the provisions of the Law Forbidding Defamation, 5725-1965, to the facts of the case, without expressing any opinion concerning the questions of principle dealt with in my esteemed colleague's judgment. Therefore, my esteemed colleague's judgment concerning those questions expressed his views only. Nevertheless, it is clear that even as such, because of its extensive intellectual apparatus, this judgment might become accepted in the future as binding and give guidance to many concerning their conduct and their claims, unless we come to different conclusions in this Further Hearing.

 

            After much consideration, I have concluded that I must disagree with my esteemed colleague on the following three issues: First, as concerns the preferred status he attaches to the principle of free speech in our legal system over a person's right to his good reputation. Second, with regard to the manner in which he interprets the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law), especially paragraph 15(4), which provides the defendant a defense for expressing an opinion in good faith. And third - and Berinson J joined my esteemed colleague in this matter - as to the manner in which they construed the article which was the subject of the claim and applied the Law to it. I will set forth my position on these issues in that order.

           

            My esteemed colleague writes as follows at page 240:

           

"The relationship between defamation and freedom of speech has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances."

 

            Immediately thereafter, he refers to the American cases, starting with those earlier decisions in which the judges "regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness", and later, on page 241, the decision of the Federal Supreme Court in New York Times v. Sullivan [18], according to which -

           

"with regard to defamatory matter concerning holders of official or public office, the view that designates the laws forbidding defamation as an exception to free speech and no more, has been abandoned in the United States ... for some considerable time in favor of the principle that gives higher standing to the right of expression of opinion on matters of public interest concerning the holders of official or public office."

 

            That American case held that publishing untrue facts concerning a public office holder is protected, unless it be proved that the defendant knew that the statements were false or was indifferent to the question whether they were true or not. My esteemed colleague adopted this view, and after noting the importance of the principle of the right to free speech, in the spirit of the judgment in Kol Ha'am [1], he said further, on page 243:

           

"The previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status.... Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but, rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it."

 

            I asked myself, from what source did my esteemed colleague draw support for such forceful comments on a matter of greatest constitutional importance, other than the American law in New York Times v. Sullivan [18]. He also mentions the Hilron case [2], which dealt with the proper relationship between a legislative enactment and the principle of freedom of gainful employment. But the views expressed at the particular place referred to in that judgment, page 653, are those of my esteemed colleague which are the minority view. My own opinion, that of the majority, stated on page 650, was that "the labor of interpreting legislation must be done without any particular widening or narrowing tendency...." And in the Further Hearing in that case, (F.H. 27/76 [3]) the majority again agreed with my view and my esteemed colleague Kahan J said, at page 22:

           

"I do not in any way minimize the importance of the basic right to freedom of employment. However, it is well known that the legislator has restricted this right in various enactments and in various ways, based on the view that the public good requires the imposition of these restrictions.... When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent...."

 

            And, closer to our matter, concerning what has been said in our judgments hitherto on the relationship between freedom of speech and defamation, I quote the words of Olshan J, in C.A. 90/49 [4], at page 597:

           

"... So long as a law exists that recognizes a person's right that his good repute not be impugned, it is in the public's interest that this right be honored and not be injured. If someone wishes to enjoy the right to freedom of speech and abuses such freedom, intentionally or otherwise, and in so doing injures another person's right, it is not unjust that he should be responsible toward the person so injured, and there is no ground for complaint that this entails some restriction on the citizen's right of free expression.

 

But each flower has a thorn. Since every publication involves some risk that it might contain something that could injure another person, this is likely to restrain all initiative for criticism or to disseminate information, even when the public good or that of the state require that such criticism be heard and that such information be disseminated.

 

Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

Agranat J said in Cr. A. 24/50 [5], at page 1160:

 

   "Our point of departure is the general assumption of the common law - which also applies in this country as well - that each person has the right to freedom of speech and freedom of expression. The objective of the local criminal law that establishes the offenses of distribution of defamatory material orally and publication of written libel, is to restrict this basic right when a person abuses it.... However, the law recognizes that, in certain conditions, the general good demands - so that the said basic right not be emptied of its content - that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            My esteemed colleague brought the final sentence of this quotation, on page 296, as being on all fours with the New York Times decision [18]. I do not agree: in my opinion, they are on all fours with the previous American precedents that my esteemed colleague summed up in the following words on page 240:

           

            "There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness."

 

            In the Kol Ha'am case itself [l], at page 880, Agranat J explained the relationship between freedom of speech and the necessity to preserve public security in the following words:

           

"The principal cause for this complexity is the competition between two types of interests, each of which is of considerable social and political importance."

 

And earlier, at page 879, he said:

 

"The right of free speech is not absolute and unlimited, but a relative right, which can be restricted and controlled to preserve other important social and political interests which, in certain circumstances, are considered paramount to the interests which are secured by the exercise of the principle of freedom of speech. The fixing of the boundaries of the exercise of the right of freedom of speech and the press is therefore a process of balancing various competing values and choosing among them."

           

            While he thereafter describes the right of free speech as "a supreme right ... that is the condition precedent for the exercise of practically all the other basic freedoms", at page 878, he immediately adds: "One must distinguish between freedom and anarchy" and he recalls at that point his words in the Gorali case [5], and Lord Kenyon's dictum: "Freedom of the press is dear to England but anarchy of the press is an abomination in England".

           

            In my opinion, these arguments remain strong, even after the provisions in the Criminal Law Ordinance and the Civil Wrongs Ordinance concerning defamation have been replaced by the Law Forbidding Defamation, 5725-1965. Accordingly, freedom of speech does not enjoy a superior status as opposed to other basic rights, but in Agranat J's words, it is

           

          "a process of balancing various competing values and choosing among them".

           

            This is not the "vertical" grading of a "superior right" against an ordinary right but the horizontal fixing of the boundaries of rights that have equal status, without any tendency to prefer one particular right as defined by legislation at the expense of its fellow right. From this it follows that one must interpret the statutory right according to its plain meaning in accordance with the legislature's intention, and not place some unwritten right above it.

           

            So far as I am aware, the idea of a superior right that stands above the written law has appeared thus far only once in our decisions, in the separate opinion of Sussman J (as his title was then) in E.A. 1/65 [6], at page 389. Sussman J's inspiration for this was the opinion of the Supreme Court of West Germany, which placed basic constitutional norms above even the written constitution. This view has been subjected to considerable academic criticism (Guberman, Israel's Supra-Constitution (1967) 2 Israel Law Review 445). Agranat P.J. did not follow this path. He interpreted the Knesset Election Laws in the light of the constitutional principles laid down in the Declaration of Independence. In this regard he followed the path he himself had laid down in the Kol Ha'am decision [1], without any tendency to limit the written law by way of interpretation.

 

            To be more precise, what is at stake here is the citizen's freedom as opposed to his right, that is to say, his freedom to say what he wishes and to hear what others wish to say, as opposed to his right not to have his honor and good name impugned. If there is indeed any place for grading the two vis-a-vis each other, I would place the right above the freedom. (On the definition of a right as opposed to a freedom, see H.C. 112/77 [7], at p. 662.) It appears that this is how the draftsmen of the proposed bill, Basic Law: The Rights of Man and the Citizen (Proposed Bills 5733-1972, p. 448), to which my honorable colleague referred, presented the issue. Compare the right to express one's opinion, which appears there as a relative right, which may be restricted, according to section 11(b) "by legislation intended to ensure the existence of the democratic regime ... to protect the rights of others...", with section 3 to the effect that "each person is entitled to the lawful protection of his life, his body, his mind, his honor and his good repute," which apparently cannot be restricted, according to the draftsmen's intent, by any legislation. Placing the right to good repute on the same level as the right to life calls to mind our sages' statement: "Whoever insults his fellow man in the presence of others is considered as if he sheds blood". Today we call this "character assassination". (Concerning the rulings of Jewish law that stress the importance of the dignity of man among the legal values deserving of protection, see the study by Dr. N. Rakover, "The Protection of the Dignity of Man", volume 54 in the series of researches and articles on Jewish Law published by the Ministry of Justice.) Accordingly, if the right of free speech is a "superior right", how should we denominate man's right to the protection of his honor and good name? As for me, this illustrates the problematic aspect of any written declaration of rights. See the example given in Chafee, Free Speech in the United States, p. 31, of a man who was brought before a judge because he had thrown his arms about and struck someone in the nose. He asked the judge if he did not have a right to throw his arms about as he wishes in a free country, to which the judge replied: "Your right to throw your arms about ends precisely at the point at which your fellow man's nose begins".

    

                   I propose that we not be so captivated by the precedent in the New York Times case [18], which so strongly influenced my esteemed colleague's opinion. As said, it was there decided that one who publishes criticism of a public official concerning a public matter is not liable for slander, even if his statements are false, so long as the publication was made in good faith. Justices Black, Douglas and Goldberg went so far as to say that this also is the case even when the publication was malicious - all this to preserve the principle of freedom of speech and the press contained in the First Amendment to the Constitution, which has become, in the fundamentalist view of Justice Black and his followers, an iron cast rule that cannot be limited in any way. I am certain that had the Bill of Rights in America contained a provision similar to that in section 3 of the proposed Basic Law in this country - and I do not know why one's right to his good repute was not recognized as one of the citizen's rights - the American Supreme Court would not have established such a far reaching rule. Under that ruling one may impugn a public servant with no factual basis, for example, by saying that he accepted a bribe, unless (according to the majority view) the person defamed can prove that the slanderer acted with malice. Another American judge, Judge Friendly, has already commented on this in the Federal Court of Appeals in Pauling v. News Syndicate Co. [19]. He asks: if it is permitted to defame a public official for accepting a bribe, what is the difference between that and defaming a person for giving a bribe to the public official? And what about a person who is not a public official, but he takes part in debate on a matter of public importance during the course of which he defames another person? Is he the next in line to receive immunity for his statements? Indeed, in Rosenbloom v. Metromedia [20], the majority of the Federal Supreme Court expanded the New York - Times rule [18], so that it also includes a private person, provided that the slander relates to a matter of public interest. The truth is that the opinions given there are so varying that it is difficult to discover any clear line. Gertz v. Welch Inc. [21], which my colleague referred to at page 241, constitutes a retreat from that extreme majority view, but the decisions still contain a great deal of inconsistency and confusion.

      

            In the American legal literature, one hears criticism of and disagreement with the New York Times precedent. In an article, "Access to the Press - A New First Amendment Right" (1967) Harvard Law Review 1641, Professor Jerome A. Barron disputes the Supreme Court's decision and sees in its attitude to the First Amendment as assuring "a marketplace of ideas", a "romantic" notion that is totally unrealistic. (See pages 1642 and 1656 et seq.). The press and other mass media, which in our day and age are the main providers of information and opinion to the public, are not a free market, but are in the hands of a small group of monopolists. A realistic view of the First Amendment compels the conclusion that freedom of expression is somewhat slender if it can be exercised only by the grace of those who operate the mass communications media (id., at p. 1648). He therefore proposes to secure by law to any person who is attacked by a newspaper the right of access to the newspaper so that he may bring his position to the notice of the same readers before whom he was defamed (and not just by means of a letter to the editor, which the editor may publish or not as he wishes). If no such right will be recognized, there will be considerable inequality between the owners of a newspaper and the ordinary citizen.

 

            The ruling of the New York Times case [18], was not accepted in other countries where the common law applies. Fleming says on this subject in his "The Law of Torts", 4th edition, at p. 512:

           

          "...Our law does not esteem freedom of speech and of the press even in matters of public concern sufficiently high to clothe false statements of fact with qualified privilege, let alone elevate it to a constitutional guarantee as in the United States."

           

            Gatley on Libel and Slander, 7th edition, p. 223, dismisses the New York Times case [18], with the following comment:

           

          "It is submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility and leave them open to others who have no respect for their reputation."

           

            In his detailed written summations Dr. Goldenberg, counsel for the Petitioners, sets out the laws of other common law countries throughout the world. Not one of these countries has adopted the American ruling. Mr. Lieblich, on behalf of the Respondents, did not deal with this particular matter. He restricted himself in his brief to a discussion of the legal questions that arise in Israeli and English law.

 

            In E.A. 1/65 [6], which was referred to above, Agranat J quoted with approval Witkon J's words in H.C. 253/64 [8], at p. 679:

           

"It is not an isolated phenomenon in the history of states having a well-functioning democratic regime that various fascist and totalitarian movements rose against them and used those very same rights of the freedom of speech, of the press and of association which the state accords them, to conduct their destructive activities under their protection. Those who saw this during the days of the Weimar Republic will not forget the lesson".

 

            It is worth recalling that one of the most effective means used by Hitler and his cronies to bring down the democratic Weimar regime in Germany was by the uncontrolled defamation of the heads of the state, by spreading lies about their conduct, while the courts did not respond approriately in the libel cases that were filed (on this matter see the article by David Riesman, "Democracy and Defamation: Fair Game and Fair Comment", (1942) Columbia Law Review 1085).

           

            This author's opinion is (id., at p. 1090):

           

"Whereas in Germany libel law was one of the cumulative factors in the Nazi triumph, in England there is evidence that the severity and impartiality with which the law of libel is enforced has measurably served to check the rise of demagogic fascism."

 

            These words contain a warning to those who are prepared to give excessive free reign and ignore the dissemination of libellous material against public persons, for fear that the protection of the right of free speech as an absolute value might be harmed. But one must be concerned that history might repeat itself. I have before me a copy of the judgment of the Supreme Court of Illinois, of January 17, 1978, in the matter of The Village of Skokie v. The National Socialist Party, [22]. The court there allowed a march by the National Socialists bearing swastikas in a Chicago suburb with a large Jewish population. The judges felt themselves forced to decide as they did by the First Amendment to the Constitution. This should cause us to ponder the matter.

 

            Thus, one must find the correct point of balance between this principle and the protection of the honor of a public servant who is attacked. I do not propose, heaven forbid, to belittle the importance of the role of a free press to criticize governmental acts and to uncover undesirable public matters and bring them to the public attention. But I deny the assumption that a responsible press cannot carry out these functions unless it is given the freedom to defame persons under the cloak of "fair criticism".

           

            I have propounded these matters concerning the New York Times decision as if the subject before us was tabula rasa, without a solution in statutory law. But, in fact, that is not the case, because we have section 15(4) of the Law which contains a full answer concerning the defense of fair criticism for a publication that expresses an opinion concerning the conduct of a person who acts in a public function or in connection with a public matter. We must interpret this provision, enacted by the legislature, as it is written and in its spirit. Precedents from other countries may assist us in our deliberations, but we should not attribute to them undue weight. My esteemed colleague has interpreted our law narrowly, and in that regard I disagree. In my opinion, we should interpret this section just as any other provision of a statute, first and foremost according to the ordinary meaning of its words. Because of our differing approaches, our resulting interpretations differ, too. My esteemed colleague concludes his opinion by saying (at p. 268) that -

           

            "It is our task to maintain this defense [for expressing an opinion in good faith], in practice and according to the letter of the Law and its intention and the tendencies that lie at its base." (Emphasis added.)

           

            And there is no doubt that the tendency to preserve the "superior standing" of freedom of expression strongly influenced his restrictive interpretation of the protection given to an impugned person against defamatory matters published against him.

           

            I will now turn to the second part of my discussion and will begin by copying the language of section 15(4):

           

          "15. In a criminal or civil action for defamation, it shall be a good defence if the accused or defendant made the publication in good faith under any of the following circumstances:

            …

           

                 (4) the publication was an expression of opinion on the conduct of the injured party in a judicial, official or public capacity, in a public service or in connection with a public matter, or on his character, past actions or opinions, as revealed by such conduct".

           

            I believe that this section together with the matters set out in section 15 give us a proper solution to the problem of balancing the conflicting values of freedom of expression and the protection of a person's honor and good name.

           

            The language of the section teaches us that it provides a "good defense" for two types of expression of opinion.

           

(a) the expression of an opinion concerning the injured party's conduct in a judicial, official or public function, in a public service or in connection with a public matter.

 

(b) the expression of an opinion concerning the injured party's character, past actions or opinions, as revealed by such conduct.

 

            Grammatically, the concluding words "as revealed by such conduct" apply to the second situation only and not to the first. It is clear, however, that the two components are present in the first situation as well: the injured party's conduct (in a judicial. official or public capacity, in a public service or in connection with a public matter) on the one hand, and the expression of an opinion by the defendant, on the other hand. And it is essential that the defendant's opinion relate to the injured party's conduct. From the opening portion of section 15 it is clear that the publication of the expression of opinion must be made in good faith, but it need not be the truth, that is to say, factually accurate. If this were not the case, there would generally be no need for the special defense accorded by section 15(4) and all the other sub-clauses in section 15. Section 14 gives a full defense, in any event, for publication of a truthful opinion, if the publication is a matter of public interest. Only if there is no public interest in the publication does the publisher need the defense provided in section 15, if it is a true opinion.

 

            From the language of section 15(4), therefore, one learns that publications falling within its purview must contain the following true elements:

           

(a) reference to the injured person's conduct in a judicial, official or public capacity, or in connection with a public matter (or to his character, past actions or opinions, as revealed by such conduct) ;

 

(b) the expression of the accused or the defendant's opinion concerning one of the matters mentioned in (a).

 

            There is a basic difference between these true elements, in that element (a) must refer to correct facts, whereas with regard to (b), in certain situations the publisher has a defense against criminal and civil liabilty even if the expression of opinion was not the truth.

           

            As said, with regard to the description of the conduct, the publication must relate to true facts. On this matter there is already established precedent in this court interpreting the provisions of the 1965 law: C.A. 34/71 [9], at p. 528; C.A. 30/72 [l0], at p. 236. I am prepared to restrict this requirement as set forth by my esteemed colleague, Ben-Porat J, in her Opinion in the appeal which is the subject of this Further Hearing (at p. 284), that one must read into section 15 of the Law that portion of section 14 concerning the defense of truth: that the defense should not fail for the sole reason that the defendant was unable to prove the truth of an incidental detail that does not contain substantial injury. I also agree with my esteemed colleague (at p. 278) that the publisher must set forth at least the main facts on which his opinion is based. I would add that the publisher does not have to particularize facts which are in any event publicly known and which, therefore, need not be repeated in the publication which was made. However, I do not agree with my esteemed colleague's statement at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

            I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion. At page 257, he relies upon the words of Justice Brennan in the New York Times case [18]. I have dealt extensively with that judgment. I will now add that in my opinion it is clearly contrary to the correct interpretation (which is not a restrictive construction) of the provisions in our law. I will add also that the New York Times case itself does not speak of the publication's dominant character, but permits the publication of inaccurate facts concerning a public figure without regard to the dominant nature of the publication.

           

            My colleague referred at this point in his Opinion to an inaccurate fact which has been intermingled with the expression of an opinion. I cannot accept this intermingling theory, in principle, because in my opinion any publication seeking the protection of section 15(4) must make a clear separation between the description of the facts and the expression of an opinion concerning those facts. The very mixing of these two elements might make the writing unclear and allow the insertion of libellous and untrue facts into the opinion. The writer must indicate on which facts he is relying, and these facts must be accurate (except for incidental facts that are not substantially harmful), and having set forth the facts, he may then draw his conclusions from them by way of expressing an opinion, provided he clarifies and distinguishes between a fact and an opinion. On this matter, I am prepared, together with my esteemed colleague, to adopt that part of Odger's book which she brings at page 277. If the setting forth of the facts is separated from the expression of opinion by way of conclusion drawn from those facts, it is as if the publisher says to the public that read or hear him: "These are the facts concerning this person's conduct and this is my opinion about that conduct. And now you, the reader, judge if you accept my opinion based on those facts". Such a presentation of matters is not forbidden by section 15(4), and if the opinion is expressed concerning one who fulfills a judicial, official or public function, or a person in the public service or in connection with a public matter, the injured person will have to accept the situation, even a wrong conclusion that the publisher has drawn from those facts, if the expression of opinion by way of drawing conclusions complies with the remaining requirements of the law. The remarks of an Australian judge on this topic, brought by Gatley at page 298, hit the mark:

 

"To state accurately what a man has done, and then to say that (in your opinion) such conduct is dishonourable or disgraceful, is a comment which may do no harm, as everyone can judge for himself, whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself the character of the conduct condemned, nothing but a false picture being presented for judgment." Per Windeyer J. in Christie v. Robertson (1889) 19 N.S.W.L.R. at p. 161 [17].

 

            From what I have just said in relation to the "dominance" theory, it is clear that I disagree not only with my esteemed colleague but also with Berinson J, who said (at p. 269):

           

"Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation the conclusions expressed and the criticism contained in it.... I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance."

           

            I understand from these remarks that Berinson J supports the idea of "dominance" in the publication. I will deal later on with the question whether these inaccuracies, which were intermingled with the opinion and the criticism, were indeed secondary in their importance.

           

            With regard to the defense under section 15(4), the Law does not recognize any distinction between the owner of the newspaper and its editor or any other person who makes a publication. The claim that the owner of a newspaper and its editor have superior standing was rejected in earlier stages of these proceedings, C.A. 213/69 [11], in which this Court struck out the claim of a defense under section 15(2), and held, based on the ruling in C.A. 90/49 [4], that the law applicable to newspapers is the same as that applicable to any other person, with regard to the duty of publication, that is to say, he may not rely on the defense under section 15(2) when such a defense is not available to another person. So, too, C.A. 552/73 [12]. And if a newspaper does not have superior standing with respect to section 15(2), then the same is true with regard to the defense for expression of opinion in good faith under section 15(4).

           

            With regard to the scope of the right to expression of opinion in good faith (as opposed to the presentation of the facts), I am prepared to accept Justice Brennan's remarks in the New York Times case [18], which my colleague cites (at pp. 244-245), that the debate concerning disputed public matters may be "uninhibited, robust and wide open". This is necessary so as not to stifle the free clarification of political and other disputes in which the public has an interest. Here, freedom of expression overrides the policy of protecting the individual's good name. But our law sets limits to this freedom. (a) The opinion must be expressed in good faith (the opening part of section 15) and (b) the publication must not exceed that which is reasonable in the circumstances set forth in section 15(4). And while requirement (b) appears in section 16, which deals with presumptions concerning good faith, one may derive from this a substantive requirement that the opinion expressed must also be reasonable. On this point I agree with the broad language that my esteemed colleague brought from the English cases:

 

"In this regard, it is sufficient that a reasonable man could have reached the defamatory conclusion from the facts set out in the publication, and that the facts upon which he relied were brought in the body of the publication".

 

            But once again, the facts on which the expression of opinion or criticism is based must be correct, and it is not sufficient that the weight of the accurate facts is dominant with regard to the inaccurate facts, in the total picture.

           

            My esteemed colleague said (at p. 262):

           

            "As explained above, the purpose [of sections 15 and 16 of the Law] is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical."

 

            Dr. Goldenberg attacked this statement, but it seems that his criticism was based on a misunderstanding. My esteemed colleague spoke here (and he will certainly correct me if I have misunderstood him) only of the expression of an opinion "that is not grounded in the truth", and he did not intend to say that the facts upon which the opinion or the criticism was based need not be truthful. With that I too agree, provided that the expression of the opinion was honest and reasonable, (but I did not agree, as aforesaid, that it is sufficient if the dominant character of the factual basis for the criticism be truthful).

           

            I have now reached the last part of my Opinion, in which I will examine the publication which is the subject of the Petitioners' claim. The article was brought in its entirety at pages 230-23l and I will not set it out again. No one disputes any longer that the Respondents did not establish the truth of the statement in the article that "actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General...." On the other hand, the Petitioners did not prove that the Respondents published the article's contents in bad faith. In this context it should be remembered especially that the fourth Respondent turned to the first Petitioner's spokesman before the publication occurred and asked for his reaction, but the latter refused to give any reaction (as a result whereof the Petitioner was awarded nominal damages in the amount of one pound only).

 

            Before I examine the contents of the article, I will dispose of Mr. Lieblich's claim that, since the majority judges in the appeal concluded that the article in its entirety was primarily a good faith expression of opinion, this is a finding of fact, and this court's practice is not to intervene in such findings in a Further Hearing, because Further Hearings are not intended to serve such a purpose, while on the other hand, it was proper for the majority judges to contradict the District Court's findings, because the question of classifying the article's contents is a question of law. Mr. Lieblich's claim is self-contradictory. It is correct that the question concerns the application of the law to the facts, and if the law was not interpreted correctly, then its application to the facts may contain a legal defect which can be corrected in an appeal and also in a Further Hearing. In my opinion, this is what happened in this case, because the majority opinion in the appeal contains novel holdings which ought not to be supported and they influenced the majority's interpretation of the provisions of the Law and, as a result thereof, also the way in which the Law was applied to the facts.

 

            I agree with my esteemed colleague that the question here is that of classification of the article's contents. The article charged that the Petitioners intended to mislead the public - to calm down the criticism of the purchase of an expensive car for the second Petitioner during a period of financial cutbacks by means of the fraudulent assertion that the car would be sold, whereas in fact this was merely a subterfuge, because their true intention was that the vehicle would be returned for the second Petitioner's use when the hue and cry will have died down.

Was the attribution of this intention to the Petitioners a factual claim - and a false fact - or was it only the expression of an opinion? My esteemed colleague concluded that based on the dominant character of the article, this was only an expression of opinion and Berinson J thought that the Respondents mixed fact and opinion together, but he did not consider that of any import.

 

            Dr. Goldenberg suggested a standard for distinguishing between determining facts and expressing an opinion (in paragraph 18 of his summations):

           

'"A fact' is not only a primary fact but also a factual conclusion, presented to the reader as a factual datum. 'The expression of an opinion,' by contrast, is the rendering of an expression of value, ('good', 'bad', 'appropriate', 'inappropriate', 'proper', 'improper', and the like), that is to say: the making of a normative value judgment on the facts in their widest sense (including factual conclusions)".

 

            This standard seems to me too narrow, because the attribution of this or that intent to the injured party, too, such as fraudulent intent, can be an expression of opinion by way of drawing a conclusion from the detailed facts, even if it is not a normative judgment. But, as I set out above, in order for the attribution of a particular intention to be the expression of opinion, the publisher must first set forth all the facts upon which he attributes that intent to the injured party. In this way, the expression of an opinion can also be correct or incorrect, true or false, whereas Dr. Goldenberg's standard of making a normative judgment does not state "correct or incorrect", but "appropriate or inappropriate" and the like.

           

            I will illustrate my words by reference to the contents of the article in issue: the attribution of fraudulent intent appears in true places, in the first part of the article and in its second part. The second part states, based on the facts previously brought out:

           

            "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

 

            In other words, the Goldberg agency clerks drew their conclusions from the facts which were set out and the fourth Respondent agrees with this conclusion. If that were all, I would have said that this is expression of an opinion concerning the corporation's intent, which does not necessarily have to be true for the Respondents to enjoy the protection of section 15(4), and all that remains to be done is to see whether the conclusion which was drawn is not unreasonable based on the facts set out. However - and this is the important point - there is also the first part of the article in which the writer states categorically that: "actually, the Electric Corporation is not really interested to get rid of the car". This is a clear finding of fact, that is the article's sting, without any factual foundation having been laid for it in what was said earlier. This part of the article gives the ordinary reader the impression that the writer has information on the basis of which he establishes it as a fact that the Corporation does not intend to sell the car. That is to say, he does not invite the reader to judge, based on facts which he has set out, whether it is reasonable to draw this conclusion, but the writer has already judged for himself, as it were on the basis of evidence which he does not disclose, and he encourages the reader to accept his judgment without exercising his own criticism. Such a presentation of fact is done at the writer's risk and if he is not able to establish its truth, he must bear the consequences. It is true that there also is the second part of the article in which the matters are presented as the conclusion drawn by the clerks at the Goldberg agency, with which the writer agrees, and that one should generally read the article in its entirey in order to discern its nature. But one must also remember that the ordinary reader of the newspaper does not analyze the material presented to him in great detail, but the general impression is what counts, and this impression is very much influenced by the order in which the matters are set forth. If a certain impression is created at the beginning of the article, it will not easily be erased by other matters which appear later. At the very least it may be said that this article mixed factual statements and the expression of opinion in a way that the reader cannot separate them - and this is sufficient ground on which to hold the respondents liable.

 

            On the basis of the above, I would set aside the judgment of the majority in the appeal and I would hold the Respondents liable, as did the District Court in its judgment.

           

            After writing this Opinion, I received a copy of Sir Zelman Cowen's book "Individual liberty and the Law" published by Eastern Law House, Calcutta & Oceana Publications Inc., Dobbs Ferry, New York. This is a collection containing the Tagori Lectures that the author presented at the University of Calcutta. The learned author (who is now the Governor General of Australia) discusses in these lectures the fundamental problem of preserving the individual's right to his good name and privacy as against the freedom of the press. I have no doubt that this book will become a leading book on this subject. I note with some satisfaction that much of what I have said here accords with this authority's opinion. (And as chance would have it, the title for the first part of the book is "The Right to Wave My Arm"). The perusal of the chapters in the book that cite extensive authorities that were not before me has broadened my understanding and deepened my thinking concerning the matters we have dealt with in this Further Hearing. There is no room here to describe even its principal contents. The reader will find there a complete analysis of the American decisions, beginning with New York Times v. Sullivan [18], in a very critical light. The author's conclusion is that the publication of that opinion was no occasion for "dancing in the streets", as one American professor suggested (see pp. 47, 63). After studying this important book, I am reinforced in my view that we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws.

 

            Kahan J: I agree.

           

            Etzioni J: I respectfully concur fully with my esteemed colleague, the Deputy President's judgment, in its entirety. However, in light of the very wide ranging arguments which my esteemed colleagues Shamgar and Ben-Porat JJ have set forth, and of the new and far reaching precedents which were established in C.A. 723/74, as the Deputy President notes, I find it proper to add a few remarks of my own, particularly with regard to the question whether the principle of freedom of expression is superior to the right of a person to his good name, in the hope that I will not detract thereby from the Deputy President's comprehensive remarks.

           

            In C.A. 30/72 [l0], which the Deputy President has referred to, I discussed the strict rules of Jewish law concerning a man's right to the protection of his good repute, as expressed in the well known sentence from the book of Ecclesiastes: "Better a good name than good profits". I also quoted there from Maimonides, Laws Concerning Beliefs, chapter 9, that a person who disparages his friend, even when saying the truth, nevertheless commits an act of speaking with an evil tongue. Still, I set out there that a public person is subject to public criticism and exposure. And in Cr.A. 364/73 [13], I expressed my opinion that the judiciary, too, is not immune from this criticism. In that judgment, which concerned a person who was charged with criminal contempt of a judge, I said:

 

"There is often a clash between two principles in this matter. One is the principle of respecting the judicial system while the other is freedom of expression and criticism, including criticism of the judicial system and the judges".

 

And I added:

 

"It is not always easy to tell which principle to prefer in each case. And if from time to time it turns out that a judge suffers unfair criticism, well this is the unavoidable price of the democracy in which we live. Only in totalitarian countries does the citizen not dare to criticize the regime and the courts."

 

And, further on, I said:

 

"Such criticism must be fair, restrained and based on the issues. Nevertheless, it should not be silenced when from time to time it crosses the bounds of good taste".

 

            I have quoted the above matter so as to show that I am not lightly disposed to limit the citizen's and the press' right of criticism regarding the acts of public figures, including judges themselves, as long as such criticism is within accepted bounds of fairness. As for me, I see no conflict between these two principles of freedom of expression and criticism and the protection of a person's good name.

           

            I expanded on this matter in another case, C.A. 552/73 [12], where the question arose whether the award of high sums of damages for defamation might repress freedom of the press. I allow myself to repeat what I said on that occasion:

           

"I am far from denigrating the importance of the existence of a free press in Israel. However, when is that the case - when this freedom is not abused. When we speak of the freedom of the press, we mean principally the freedom to publish a clear and true account of events that occur in the country and the ability to criticize them freely, without fear of official censureship on political or other grounds. However, this freedom is not a license to issue defamatory material without any factual basis".

 

And I also added there:

 

"If the newspaper crosses the boundary of reasonableness, it can no longer enjoy any privilege by claiming that the imposition of heavy damages could harm freedom of the press."

 

            It is clear, therefore, that there is no ground to prefer the principle of freedom of expression over that of a person's right to his good name.

           

            And if there be any need to cite additional authority beyond that which my esteemed colleague has brought, I find such in the rules of professional ethics that were adopted by the Press Council and were set out in the Annual Book of Journalism, 5738-1978, in an article by Advocate Rotenstreich, "Guarding Freedom of the Press." I quote three of those rules, numbers 1, 3 and 6:

           

"1. Freedom of the press and expression are man's basic rights, a cornerstone of his freedom and his rights in a democratic society. This right achieves its fullest and most comprehensive expression to the extent that journalists remember and take care to preserve their moral duty to truth and accuracy in the collection of information and its distribution - and by considering the acts, the thoughts and the sensibilities of the public."

 

"3. The journalist's and the newspaper's calling is to furnish to the public reliable information and interpretation which accords with the facts."

 

"6. Ridicule, inciting against a person and unfounded accusations - for example, on the basis of personal, national, ethnic, religious or racial background - are serious offenses for journalists. The journalist and the newspaper must respect every person's good name and private and family life.

 

If the publication has injured someone's honor and good name, he should be given the opportunity to publish a reply. The journalist and the newspaper must be particular concerning accuracy and to prevent the reader from drawing wrong conclusions." (Emphasis added - M.E.)

 

            From these provisions we see that even those who are particularly concerned to protect freedom of the press do not adhere to the principle that this freedom has superior status, but take particular care that a journalist who publishes his words to the public will exercise his legitimate and desired right of public criticism without belittling his other duty, to be exacting in preserving the facts that are the basis of such criticism.

           

            As my esteemed colleague the Deputy President has already pointed out, the Respondents in this case did not comply with this duty, and I therefore agree with his opinion, with all due respect.

           

            Ben-Porat J: There remains for me only to concur in the opinion of my esteemed colleague the Deputy President. His remarks complete what I omitted in my own remarks in the original hearing.

           

            I also concur in the remarks made by my esteemed colleague Etzioni J.

           

            Shamgar J: 1. I have read with interest the remarks of my esteemed colleague, the Deputy President, which represent the majority view in this Further Hearing, and out of respect to the position taken by my esteemed colleagues, I have also reexamined my own judgment in C.A. 73/74 (hereinafter - the previous hearing). My conclusion is that I disagree with the views expressed by my esteemed colleagues in this Further Hearing and I do not see my way clear to change the views I expressed in the previous hearing.

           

            2. The text of the article and the facts of the event will not be set out here once again, although their study is, of course, an essential condition for the evaluation of the substance of the publication that is the subject of this case, its connection to the proven facts, the classification of its parts - whether as facts or as the expression of opinion to which section 15(4) of the law applies - and the drawing of conclusions concerning proof of the existence of any of the circumstances specified in section 16(b) of the Law which deal with presumptions of lack of good faith.

           

            It is unnecessary to add that I also will not repeat here in detail my conclusions and my thoughts which were set out extensively in the judgment in the previous hearing, and for the reasons therefore, I refer the reader to what I said in the previous hearing.

           

            Since the inquiry in this Further Hearing has been very widespread, and in order to fix correct bounds, it will not be superfluous, I think, to state that we deal here with a defined segment of the law forbidding defamation, that is - a publication that relates to a matter of public interest and deals with the conduct of an official or public functionary.

           

            3. My esteemed colleague, the Deputy President, disagrees with my stand, as he says, in these three respects:

           

(a) The preferred status granted by our law, in my opinion, to the right of freedom of expression.

 

(b) The meaning of the provisions of the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law) in general and of section 15(4), especially and primarily the manner in which those provisions should be interpreted.

 

(c) The application of the defense set forth in section 15(4) of the Law to the article which is the subject of this litigation.

 

            4.As I have said, the majority of my esteemed colleagues disagree with my basic position, which I set forth in the previous judgment and according to which -

         

   "the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation on the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice" (Emphasis added - M.S.).

 

            It follows that acceptance of this legal point of departure, that recognition of the basic freedoms is an essential part of the law in Israel. entails the conclusion that the basic freedoms are part of the law. as per their name and their purpose, that is to say, as basic rules that guide and give structure to forms of thought and legal interpretation and influence them by their spirit and direction. The result is, among other things, that to the extent that the matter can be reconciled with the written law, one should always prefer the existence of freedom of expression as opposed to its limitation and restraint. It goes without saying that I agree that when a court is called upon to interpret the provisions of a law that has implications for freedom of speech, the court may not declare that the law is void if it contains express and unequivocal provisions that forbid the exercise of that right or establish a specific limitation on it, in particular circumstances. But whenever the legislature's words leave room for interpreting the law one way or another, that is whenever the modes of interpretation allow a choice between a strict interpretation that tips the scales in favor of curtailing freedom of expression and an alternative liberal method, then the second method should be adopted, which will protect and establish freedom of expression to the extent possible.

 

            My esteemed colleague, the Deputy President, is not ready to lend his hand to this approach, and as he hinted, his attitude derives, to a certain extent, from the difficulties inherent, in his opinion, in any written declaration of rights, that is to say, from his doubts concerning the necessity of giving constitutional standing to the basic rights.

           

            In this context, freedom of expression has been called "an unwritten right", but this does not reduce its legal standing in any way. Our Israeli common law has not yet been transformed into written law, and despite legislative efforts to convert unwritten principles into written rules, it should be assumed that there will remain legal precedents that do not find expression in any particular legislative enactment. As is well known, this does not in any way detract from their standing in our system of law.

 

            In taking exception to the standard for interpretation which I set forth in my Opinion, the Deputy President refers, among other things, to the remarks of my esteemed colleague, Kahan J, in F.H. 27/76 [3]:

           

"When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent".

 

            With all due respect, this is not at all the question before us in this case: so long as this court has no power of constitutional review, it is obvious that a clear and unequivocal statutory provision must be interpreted according to its plain import and meaning, even if that law curtails a basic freedom. The standard or the guideline to which I referred above becomes important, as I explained, when the matters are not clear and unequivocal, when the text of the law allows room for judicial discretion and when the question arises in this connection, what is that intention that should be read into the legislature's words.

           

            More particularly, the legislature did not lay down unequivocally that any person who transmits a fact inaccurately, whether slight or serious, important or marginal, substantive or irrelevant, will always be liable for having committed a tortious act, without more. Were that the case, there would be no place for the thesis I have set forth. But that is not the way in which the legislature works. It defined defamation but also set up frameworks to clarify and to classify published matter, it established the importance of good faith and created defenses and mitigations which would apply to different publications, even though they are defamatory. Among other things, the legislature defined those circumstances which will raise a presumption that the publication was not done in good faith and opened the door thereby, that the opposite conclusion will be drawn on certain facts. These special defenses are a clear sign that, in certain circumstances, the legislature chose to prefer freedom of expression even though the publication injures someone's honor.

           

            This reflects a basic approach which, in my opinion, should be extended and applied whenever the court concerns itself with the interpretation of the Law or the meaning of a publication, as for example, when writings that criticize a public authority can be understood both as expressing an opinion and as stating a fact. To sum up my view, I can best refer once again to part of those quotations which were brought by my esteemed colleague in his Opinion from Olshan J (as was his title then) in C.A. 90/49 [4], which include the following selection:

           

            "Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

            So, too, Agranat J's view (as was his title then) in Cr. A. 24/50 [5], at p. 1160:

           

"The law recognizes that, in certain particular circumstances, the public good requires that a person not be punished for distributing defamatory material, so that the above-mentioned basic right [freedom of expression - M.S.] not be emptied of all content, because the danger of harm that would be caused to the public by over-restriction of freedom of speech and writing is given preferred consideration over the injury to one individual."

 

            And in H.C. 73/53 [1], Agranat J called freedom of expression a superior freedom that is a condition precedent to the exercise of almost all the other freedoms.

           

            I do not disagree with my esteemed colleague that one must distinguish between freedom and anarchy and that certain freedoms must be qualified, in given circumstances and conditions, for the public good. However, the question always is where to draw the line and what is the proper guideline for marking the limits. It may not be inferred from my esteemed colleague's remarks, which appear to set up a person's right to his honor and his good name as paramount to the right of freedom of expression, that he believes that it is always forbidden to publish a libel, regardless of the circumstances. For that would render the provisions in the Law that establish defenses when the published words are defamatory empty of all content. So, too, one should not infer from the protected and preferred status given to freedom of expression that it may never be qualified in the slightest.

           

            To sum up, when the law provides defenses whereby, in specified circumstances, things said or written will not be regarded an offense or a tort even though their content is defamatory, the basic approach takes on great importance: whether it is severe, restrictive and guided by a narrowing yardstick, that seeks to impose the fear of the law on marginal cases, such as those which we will deal with shortly, in which insignificant and unimportant inaccuracies have been intermingled in the writing that is essentially the expression of opinion concerning the improper conduct of a public functionary. Or, perhaps we should interpret the writing - to the extent possible - liberally, and perceive the defenses defined in the written law as an expression of a desire not to harm or impede the free expression of criticism concerning public matters, beyond the necessary minimum.

           

            5. The majority Opinion expresses the view that, instead of giving interpretive superior status to the principle of freedom of expression, one should undertake "a process of balancing the competing values on the scales and choosing among them". This does not provide an answer to the question how one should interpret the provisions of a given law. The process of balancing competing values describes the starting line of interpretation, but it does not provide criteria or value weights with which to do the work of interpretation. Furthermore, I fear that the result of comparing values without setting forth criteria for evaluating their respective weights will be that, in each case, the court will apply whatever criterion appears appropriate in the circumstances, according to the best understanding of the particular panel that happens to be sitting. In other words, the decisional framework which contains a guideline of value, namely, the object of maintaining a fundamental freedom, will be exchanged and replaced by an unpredictable paternalistic and arbitrary framework. With all due respect, this is most unsatisfactory, and I am certain that it also will not bring about clear and consistent decisions.

 

            6. For the purpose of emphasis and clarification, my esteemed colleague referred to the German experience, that is to say, the theory that the weakness of the German law of defamation during the period of the democratic Weimar regime that preceded Hitler was used by the enemies of democracy as a very effective weapon to undermine democratic regime. For support, he referred to the article by David Rieisman which was published in the Columbia Law Review in 1942. It seems to me that the long period that has passed since then has given us a wider historical perspective for the understanding of the many and varied factors that led to the rise of the Nazi regime in Germany and I am certain that a broader analysis, today, would disclose that the relative importance of the German libel laws in this context, as opposed to other factors and elements, was not great. However, the principal matter is that one must be cautious when it comes to imposing restraints on freedoms merely because a totalitarian movement of one type or another managed to take advantage of such restraints for its nefarious purposes. Such an approach, itself, can lead to dangerous and far reaching conclusions. It is better to avoid analogies whose relationship and similarity to our political and social realities and our system of law are flimsy and slight, particularly when this very month two foreign journalists were put on trial in Moscow for defaming officials of the Soviet broadcasting authority.

           

            I only repeat what is well known, from the statement of one of the great men of the generation, when I conclude my discussion of this point by saying that the democratic system of government has many weaknesses, one of which undoubtedly is that the freedoms it allows can be used by persons of evil intent. But, at the same time, we accept the fact that we have yet to find any better system of government, be it for the individual, for society as a whole, or for the proper balancing of the needs and the rights of both.

           

            7. I will now proceed to the second question, namely, what is the correct interpretation of the Law. At the beginning of his discussion of this topic, my esteemed colleague refers to the defenses which the Law provides. But it should be emphasized here that we are not talking about defenses for the protection of the injured party, as might be understood from his discussion and his conclusions, since he considers my interpretation to be narrowing. By calling chapter 3 of the Law "Permitted Publications, Defenses and Mitigations", the legislator intended to refer to publications permitted to the publisher and defenses and mitigations for the defendant and not for the plaintiff.

           

            However, the conflict between us does not rest on the question of whether my interpretation is narrowing or widening. All that I sought to express in my Opinion in the previous hearing was that the text of our Law, including section 15(4), is consistent with the basic precepts which I put forward and does not conflict with them, and that it can be interpreted so as to preserve its fundamental purpose, namely, to forbid the publication of defamation while providing proper protection for those publications that are essential to the existence of a free society .

           

            The judgment in the Sullivan case [18], as any other foreign precedent, could not have been cited by myself as a binding precedent and the description of its holdings was a presentation of the views and basic tendencies accepted in this field in the United States, which I proposed be adopted because they are consistent with our own written law. In other words, our legal criterion in this matter is exhausted by sections 15 and 16 of the Law, but it is up to us to decide what content to give to this legislation and what meaning to attribute to it.

           

My esteemed colleague said, among other things that -

 

   "we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws".

 

            With all due respect, I disagree with the assertion that there is a unitary accepted approach to this matter in the common law countries other than the United States. And precisely Sir Zelman Cowen's book, to which the esteemed Deputy President referred, cites the varied tendencies and views, that often contradict each other. (Compare, for example, the conflicting proposals concerning the status of newspapers with regard to the law of libel and the conclusions of the New South Wales Law Reform Commission, 1968, with those of the Shawcross Committee (The Law and the Press, 1965).) But furthermore, I would not incline to give approbation to the English libel laws, which only recently it was stressed require correction (see the report of 1975) and as to which Lord Diplock previously said:

           

          "...the law of defamation... has passed beyond redemption by the courts."

           

            8.         With regard to the interpretation of section 15(4) of the Law, in my opinion, the dispute turns primarily on one issue, namely, the significance of the incorporation of secondary factual allegations within a publication that is primarily (dominantly) the expression of an opinion. Still, I conclude that my esteemed colleague did not see fit to adopt the rest of the lower court's conclusions in this matter, with which I disagreed, viz.:

           

(a) that the concepts good faith and truth are always linked together with regard to the protection against libel, which, in my opinion, contradicts the provisions of section 16(b) of the Law, and

 

(b) it appears from the District Court's analysis of the issues that every expression of opinion must meet the test of reasonableness in the eyes of the court that sits in judgment, that is to say, it is not the departure from the bounds of reasonableness in expressing the opinion in the circumstances of the case that determines, but the general reasonableness of the opinion in the eyes of the court.

 

            My esteemed colleague correctly states with regard to (a) above, that the expression of an opinion need not necessarily be the truth - that is to say, factually correct - else generally there would be no need for the special defense provided by section 15(4) of the Law.

           

            We will not deal with his remarks concerning item (b) above.

           

            On the other hand, he disagrees with the following matters said in the previous judgment at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought? The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

In this context, my esteemed colleague says:

 

"I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion."

 

            According to my scheme, it is not necessity to seek support for this particular point in the words of sections 15 or 16. The yardsticks set forth in section 15 of the Law should be interpreted according to their substance and their clear direction, and in a manner so as not to draw from the text unnecessary strictness. Moreover, the presumptions created by the legislature in section 16 and the imposition of the burden of proof which derives therefrom support the opinion that the legislature intended to relax the publisher's burdens, if he acts without malice. Therefore, the mingling of a factual detail in a publication which is by its dominant nature an expression of opinion need not be interpreted in a limiting fashion, and it would appear from further on in his Opinion that my esteemed colleague treated an ancillary fact in the publication in the same manner, without relying on a specific provision in the written law.

 

            Incidentally, one can find expression of a similar approach in the current opinion in England and, I referred in this context, for the purposes of comparison, to section 6 of the Defamation Act, 1952, and also, to no little extent, to the remarks of Denning J in Slim v. The Daily Telegraph [15], to which I will refer again later on.

           

            I am also pleased that my esteemed colleague agrees that the defense under section 15 is not lost merely because the defendant does not prove the truth of an ancillary fact that is not seriously harmful, even though that section of the Law does not contain an express provision to this effect. Were the Law to be interpreted strictly, on the basis of its express provisions alone, one would have to conclude from the inclusion of such a provision in section 14, on the one hand, and its exclusion from section 15 which concerns us here, that such an ancillary fact would in fact undermine the defense.

           

            It is unnecessary to add that this interpretive difficulty does not arise according to my method.

           

            I incline to conclude that the difference between my esteemed colleague's approach on this particular point and mine is not a conflict of principle but stems from the difference between establishing the principle and applying it.

           

            Essentially, one's basic approach bears on the evaluation of the significance of the intermingling of a factual detail in the expression of an opinion. publications concerning public matters are not always written in the same manner as one would prepare a legal opinion or legislation, and the application to them of a picayune yardstick that demands strict compartmentalization of fact and opinion and judges every slight deviation harshly could impose a heavy burden on freedom of expression. I agree that this strict view was stated expressly in the 1911 edition of Odgers, but I believe that since then we have seen the first signs of a more liberal approach. perhaps it would be correct if I quote once again Denning L.J.'s words in Slim v. Daily Telegraph Ltd. [15], at p. 503:

           

            "...These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy .... Another person may only read into them imputations of inconsistency and want of candour .... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it .... I stress this because the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspapers should be free to publish his letter. It is often the only way to get things put right."

 

            And at page 198 of the judgment in London Artists [16], which I also referred to in my previous judgment, Denning J categorized a particular letter as a combination of facts or as opinion on the basis of -

           

            "... a fair reading of the whole letter ...",

           

a yardstick which I would adopt in the matter before us.

 

            9. I now come to the third topic, the interpretation of the article itself:

           

            With regard to the factual inaccuracies in the article, I can do no more than repeat my previous remarks at page 263 of the original judgment, as follows:

           

"Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion: similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of 'more than four months', as said in the article; so, too, it is of no importance that it was not 'the agency's clerks' who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to communicate his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, shows that there were offers from car dealers, 'who thought they could get the car at this price,' and the price set forth in the letter is 24,000-25,000 Israeli pounds."

 

            Given the light weight of these inaccuracies, the defense of good faith set forth in section 16 of the Law applies to this article, as I said at pages 264-266 of my judgment:

           

"With regard to section 16(b)(1): in the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant.

 

 The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Mr. Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b) (2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information to circumvent the barrier he himself created by his refusal.

 

The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher 'had not, prior to publishing it [the matter published] taken reasonable steps ascertain whether it was true or not'. But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b)."

 

            With regard to section 16(b)(2), my esteemed colleague commented on the fact that the fourth Respondent sought to speak with the first Petitioner's spokesman, but he refused to react and he noted that, as a result thereof, the first Petitioner was awarded damages in the amount of one pound only.

           

            But the proofs in the lower court also indicated that the second Petitioner is the person who gave the order not to reply to the Respondent's approach, but for some reason the lower court did not draw any conclusion in connection with that.

           

            10. The majority Opinion and I disagree whether to categorize a certain sentence in the article as fact or opinion ("actually, the Electric Corporation is not really interested to get rid of the car") and over the significance of mixing finding facts with the expression of opinions. I viewed this sentence as the expression of an opinion, that arises as a conclusion from the facts given in the earlier part of the publication, whereas my esteemed colleagues regard it as a factual claim. As to my view of the matter, I can do no better than to refer once again to what I said at page 264 of my previous decision and to the selection quoted above from the judgment in Slim [15], according to which, the substance of the publication should be judged, among other things, after a fair reading of the whole.

 

            11. To sum up the matter, the stricter standards which my esteemed colleagues have adopted as the test for examining factual inaccuracies and the interpretation with regard to classification of some of the matters set forth above, causes the majority to find fault with the publication at issue.

           

            I regret this for two reasons:

           

            First, I fear that this may be interpreted as a restraint and limitation on the principles concerning freedom of expression which have been crystallized in our legal system ever since the establishment of the State and particularly since the decision in the Kol Ha'am case [1]. Second, the failings which are uncovered from time to time in our public service are not rarities and not infrequently the citizen faces obstinacy, bureaucratic arrogance, indifference, and an unwillingness to practice fiscal economy and even worse. Efficient and free criticism of the conduct of public authorities, including the government companies that provide public services, is an essential means for correcting these improper practices. If the citizen fears that the every factual inaccuracy, no matter how trivial or slight, might involve him in legal proceedings, and that every doubt that arises from his text will be interpreted strictly, he will be in fear of those who control unlimited funds in the public purse to conduct their litigation, he will not dare to protest and the criticism will be stifled before it has been uttered. The yardsticks for the limits of permitted criticism of those holding official or public office which have been adopted in the United States and whose underlying approach - as distinguished from its detailed application - can be adopted in my opinion within the framework of our written law, were not created in a vacuum. They are not the fundamentalistic views of judges of the school of Justices Black and Douglas, because it was not their opinion that prevailed in the Sullilvan case [18]. This conclusion arises from the need to create efficient checks and proper balances in a free society against the development, and even victory, of those who would take wrongful advantage of the powers and authority of public office, because the private citizen dares not to open his mouth. It is unnecessary to add that the public does not only feed on abstract declarations concerning the existence and importance of basic freedoms, but it is also awake to their actual application in practice. The Supreme Court of the United States was aware, therefore, of the risk that arises from the blocking of criticism beyond the extent required by the law, however pure the motives may be. In the words of Sussman J (as his title was then) in H.C. 206/61 [14], at p. 1728:

 

"True democracy will be measured especially by the standard whether criticism will be published and heard, for without that, the regime of parliamentary democracy will fall into an abyss".

 

            What I have said here concerning the essential role of criticism applies, of course, to the bureaucratic system in general, and the fact is that in this case before us, too, the Petitioners altered their original decisions only as a result of the criticism that was expressed in the press. It matters not one iota that they were unwilling to admit at any stage that they had in fact erred. Restraint of criticism based on picayune demands concerning ancillary factual matters may create serious dangers far in excess of those which could result from the mixing of inaccurate ancillary facts into an article whose dominant character is legitimate criticism of the conduct of a public official in the performance of his duties, and which did not exceed the bounds of fair comment in those circumstances.

           

            Accordingly I would dismiss the Petition.

           

            Decided, by majority opinion, to void the judgment of the majority in the Appeal and to hold the Respondents liable as did the District Court. The Respondents are to pay, jointly, to the Petitioners, costs in the sum of IL30,000, in the Appeal and the Further Hearing together.

           

            Judgment given on 24 Av 5738 (August 27, 1978).

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

HCJ 3429/11

 

Petitioners                                             1. Alumni Association of the Arab Orthodox School in Haifa

                                                   2. Radwan Badarneh

                                                                    3. Ayman Miari

                                                                    4. Hazar Hijazi

                                                                    5. Ron Shapira

                                                                    6. Arik Kirshenbaum

                                                                    7. Professor Oren Yiftachel

                                                                    8. Adalah – Legal Center for Arab Minority Rights in Israel

                                                                    9. The Association for Civil Rights in Israel

 

                                                                    v.

 

Respondents                                         1. Minister of Finance

                                                                    2. Knesset

 

                                                         .

The Supreme Court sitting as the High Court of Justice

[5 October 2011]

 

Before President D. Beinisch, Vice President E. Rivlin, Justice M. Naor

 

Petitions for an order ­nisi and for an interim order.

 

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel as a Jewish and democratic state; and the second,  sub-section 3b(b)(4), referring to an expense which was “in essence” a marking of the day of Israel’s establishment as a day of mourning. A decision to reduce the budget in accordance with this section requires that the Minister of Finance first receive an opinion from a professional team composed of representatives from various ministries, the approval of the minister in charge of the budget item through which the entity received funding, and an opinion from the legal adviser to the Ministry of Finance. In addition, he must also grant the relevant entity a hearing on the matter.    

The petitioners are the alumni association of an Arab school in Haifa, which runs various activities that are held at the school, dealing with issues of Arab and Israeli identity; several parents of students in a bilingual Arab-Jewish school, whose goals include education about respect for other cultures and in which activities are held that commemorate both Israeli Independence Day and Nakba events; and an academic who is the proponent of a model/theory that describes Israel as an ethnocracy, rather than as a democracy. All the petitioners argued that they could be harmed by the exercise of the Budget Elements Law’s provisions; the statutory provisions were also challenged on the ground that they effectively constituted a violation of the right to education, collective identity and freedom of expression and of occupation.   

Held: Justice Naor held that the petition should be denied on the basis of the ripeness doctrine and because of the availability of an alternative proceeding and remedy.  Because the statutory provisions had not actually been implemented against any of the petitioners or any other parties at all, and because there was therefore no way of knowing how the law would be implemented, if at all, against the petitioners, the Court could not reach an informed decision regarding the constitutionality of the manner and scope of its hypothetical application.  The uncertainty (and consequently, the absence of sufficient ripeness) was heightened by the fact that the law itself prescribed an extensive process of supervision and review before any decision to reduce funding could be implemented. Justice Naor also found that the petition to the High Court of Justice could be denied because of the availability of an alternative proceeding and remedy; once the Law had been implemented, a petition challenging a reduction in funding could be brought in the Administrative Matters Court. An indirect attack on the constitutionality of the Law would also be permissible in that context.  President Beinisch and Vice President Rivlin concurred, with President Beinisch adding that there was no need to decide the matter of the availability of an alternative proceeding and remedy.

Petition denied.

Legislation cited:

 

Budget Foundations Law (Amendment No. 40) 5771 -2011

Administrative Courts Law, 5760-2000

Disengagement Plan Implementation Law, 5765-2005

Civil Wrongs (State Liability) Ordinance (Amendment No. 7), 5765-2005

Public Education Law, 5713-1953

 

Israeli Supreme Court cases cited:

 

HCJ 7190/05 Lobel v. Government of Israel (unreported, 2006) [1]........................... 10

HCJ 731/86 Micro Daf v. Israel Electric Corp. [1987] IsrSC 41(2) 449 [2].............. 13

HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [1993] IsrSC 47(2) 229 [3]            13

HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing, [1991] IsrSC 45(25) 50 [4]          13

HCJ 2009/07 Klein v. American Friends of Israel Scouts (unreported, 2007) [5].... 13

HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [1985] IsrSC 38(4) 617 [6]               13

HCJ 217/80 Segal v. Minister of Finance [1980] IsrSC 34(4) 429 [7]....................... 13

HCJ 1842/04 Michai v. Ministry (unreported, 2003) [8]............................................... 14

HCJ 1431/05 Orian v. Minister of Transportation (unreported, 2005) [9]................ 14

HCJ 128/09 Basiso v. Minister of Defense (unreported, 2009) [10]............................ 15

HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of the IDF Land Forces (2011) (unreported) [11]         15

HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense (2006) (unreported) [12]  15

HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior (2006) (unreported) [13].................................................................................................................................................. 16

HCJ 3248/09 Sari v. Minister of Justice, (2009) (unreported) [14]............................. 17

HCJ 6972/07 Lakser v. Minister of Finance (2009) (unreported) [15]....................... 17

HCJ 1468/11 Ben Sa’don v. Minister of Religious Affairs (2011) (unreported) [16] 20

HCJ 2208/02 Salameh v. Minister of the Interior, [2002] IsrSC 56(5) 950 [17]....... 21

HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16^th Knesset [2003] IsrSC 57(1) 750 [18]........................................................................................................................................... 21

HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19]       21

HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation (2010) (unreported) [20]      21

HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense (2002) (unreported) [21]            21

HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance (2009) (unreported) [22]     21

HCJ 6090/08 Berger v. Minister of Justice (2008) (unreported) [23]......................... 21

 

US Supreme Court cases cited

 

Abbot Labs et. al. v. Gardner, 387 U.S 136 (1967) [24]................................................. 15

United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al., 330 U.S. 75 (1947) [25]             18

 

 

 

For the petitioners                             — H. Jabarin, S. Zahar, D. Yakir

 

For respondent 1                              — S. Rotsenker

For respondent 2                              — Dr. G. Blay, E. Yanun

 

 

JUDGMENT

Justice M. Naor

The Budget Foundations Law (Amendment No. 40), 5771 - 2011 authorizes the Minister of Finance to reduce the budget of a supported or financed entity under certain circumstances and after a specific procedure; the reduction may be ordered when it is found that the entity has incurred an expense which is, in its essence: a rejection of the existence of the State of Israel as a Jewish and democratic State, or the marking of Independence Day or the date on which the State of Israel was established as a day of mourning. The procedure to be followed before the reduction can be ordered is that the Minister of Finance must first receive an opinion from specified parties, grant a hearing to the entity and obtain the consent of the minister in charge of the matter. The petition before us is directed against the constitutionality of the provisions of this law.

 

 

 

Background

On 4 January 2009, the Draft Independence Day Law (Amendment – Prohibition of the Marking of Independence Day or the Date of Israel’s Establishment as a Day of Mourning) – 5769-2009 (hereinafter: “the Draft Independence Day Law”) was placed before the Knesset. The amendment sought to anchor the prohibition of any activity or event that refers to Israeli Independence Day as a day of mourning or a day of sorrow. This proposed law was abandoned (passively) and on 6 July 2009 its backers placed before the Knesset the Draft Budget Foundations Law (Amendment – Prohibited Expense) 5769-2009 (hereinafter: “the Draft Budget Foundations Law” or “the Draft Law”). This Draft Law was supported by the Ministers Committee on Legislation, subject to coordination of the legislative processes with the Minister of Justice and the Minister of Finance. Coordination between the various parties led to changes being made in the text of the original Draft Law, after which it passed a first reading in the Knesset. After more changes were introduced in the text in anticipation of the second and third readings, the Knesset, on 23 March 2011, passed the Budget Foundations Law (Amendment No. 40), 5771-2011 (hereinafter: “the Law”). The key issue raised in the petition before us is the constitutionality of the provisions of sections 3b(b)(1) and (4) of the Law. The relevant sections provide as follows, with an emphasis added to those parts whose constitutionality is being challenged:

‘1.  The following will be inserted after s.3a of the Budget Foundations Law, 5745 -1985:

3b.  (a) In this section –

“Entity” – a financed or supported entity, as these are defined in s. 21, and a supported public entity pursuant to s. 3a:

“Expense” – includes a waiver of income.

(b) If the Minister of Finance finds that an entity has incurred an expense which is in its essence one of the items listed below (in this section – “an unsupported expense”), he may, with the consent of the minister in charge of the budget item pursuant to which the entity is financed or supported, and after affording the entity a hearing, reduce the amounts that are to be transferred from the State budget to that entity pursuant to any law:

(1) Rejection of the existence of the State of Israel as a Jewish and democratic state;

(2) Incitement to racism, violence or terror;

(3) Support for an armed struggle or terrorist act, of an enemy state or of a terrorist organization, against the State of Israel;

(4)  Marking of Independence Day or the date of the establishment of the State of Israel as a day of mourning;

(5)  An act of destruction or physical contempt which defiles the State flag or the State symbol;

(c)  No reduction pursuant to sub-section (b) may exceed an amount which is three times the size of the unsupported expense.

(d)     (1) The Minister of Finance may make a decision pursuant to sub-section (b) after obtaining an opinion from the legal adviser to the Ministry of Finance regarding the fulfillment of the provisions of that sub-section, and after he has received the recommendation of a professional team regarding the scope of the unsupported expense; the consequences of the reduction for the entity or for other parties related to it; and the proper amount of the reduction, given all the circumstances of the matter.    

              (2) In this sub-section, the term “professional team” shall mean a team appointed by the Minister of Finance whose members include an employee of the Ministry of Justice, at the recommendation of the Minister of Justice; an employee of the Ministry of Finance; and an employee of the ministry whose minister is in charge of the budget item pursuant to which the entity is financed or supported, at the recommendation of that Minister.

 Arguments raised in the petition

2.    Before responding to the petitioners’ arguments, I wish to briefly present the seven petitioners in this case. Petitioner 1 is a non-profit organization which includes approximately 90 alumni of the Arab Orthodox High School in Haifa (hereinafter: “the School”). Petitioner 1 was incorporated for the purpose of supporting the School and increasing cooperation among its alumni. Each year, Petitioner 1 organizes several activities in various areas, which include discussions of the State’s identity, the status of its Arab citizens and the “Future Vision of the Arabs in Israel” documents. In addition, Petitioner 1 conducts educational activities dealing with Palestinian history and its activities are carried out in the School. Petitioner 1 believes that some of its activities are likely to fall within the framework of those items that constitute grounds for reduction of its budget pursuant to the Law, and that the size of the School’s budget’s will consequently be at risk.

3.    Petitioners 2-6 are parents of students who study in the “Galil” school in the town of Misgav, which is a bi-lingual and bi-national school (hereinafter: “the Bilingual School”) and a formal educational institution that is recognized by the Ministry of Education. It seeks to promote a shared lifestyle as well as education about equality and respect for the cultures of other groups within the society in which the students live. In order to achieve its objectives, the Bilingual School conducts various activities in anticipation of Memorial Day and Independence Day, the purpose of which is to mark both Independence Day and the Nakba events. Petitioners 2-6 fear that the Bilingual School will be forced to restrict its activities and that its abilities to achieve its goals will thus be impaired.  

4.    Petitioner 7 is an academic who developed a model according to which he argues that the Israeli regime is a type of “ethnocracy”. As this model indicates, Petitioner 7 believes that the State of Israel cannot be defined as Jewish and democratic. Petitioner 7 is concerned that the Law will impair the possibility of conducting an academic and public discussion of the model that he has developed, since such a discussion is likely to refer to the negation of the existence of the State of Israel as a Jewish and democratic state. Petitioner 7 is also concerned that the Law will have serious consequences for his writings and publications.   

5.    We now move on to the petitioners’ claims. The petitioners have, as stated, attacked two of the grounds listed in subsection 3b(b). The petitioners argue that the other three grounds set out in the Law for reduction of budgetary support will also create substantial constitutional difficulties in that they restrict freedom of speech. They also see a constitutional difficulty arising from the fact that these sections empower the Minister of Finance to impose measures that are in essence punitive sanctions with respect to actions that are defined as offenses – but without stipulating that a due process proceeding be held in a court to determine that a criminal offense has been committed.  Nevertheless, the petitioners have focused their petition and their constitutional challenge only on the two grounds listed in sections 3b(b)(1) and 3b(b)4.  According to the petitioners, the damage done by these sections is “the most harmful”.

6.    According to the petitioners, the Law harms the historic memory of the Arab minority by allowing the majority to use its power to repress the narrative of the Arab minority with respect to events, facts, feelings and ideologies. According to their argument, there is no difference between the marking of the Nakba, on the one hand, and the non-recognition of the State of Israel or the non-recognition of the self-determination of the Israeli Jews, on the other hand, since the use of the term “Al-Nakba” – which means “the tragedy of all tragedies” – is intended to stress the historic aspect of the tragedy.   They argue that the Law seeks to indirectly deter the occurrence and development of a cultural discussion regarding the concept of “Al-Nakba” and the constitutional definition of the State. According to the petitioners, the scope of the damage is very serious, and the Law “uses vague and unclear terms, which creates considerable uncertainty as to how the Minister of Finance and the courts will interpret its provisions.”

7.    The Petitioners then point to a list of rights that they argue are violated by the Law’s provisions. I will discuss their arguments only briefly, because I see no need to discuss the details more extensively, given my ultimate conclusion regarding the issue raised in the petition. The argument made is that the Law violates the freedom of political, artistic and academic expression. It is argued that the prohibition of political expressions on the basis of their content alone is inconsistent with the “near certainty test” for permitted prohibitions of expression, as established in the case law. They argue further that the Law is likely to violate freedom of artistic expression, which has also been given special broad protection even when real offense is given to the sensitivities of a part of the public, and even when such freedom clashes with official political positions. It is also argued that the violation of freedom of expression is especially sweeping in that a single act which falls within the scope of either of the two challenged grounds for budget reduction, even if only marginal, will be sufficient to justify the imposition of a financial sanction.

8. In addition, the petitioners argue that the Law violates their right to equal treatment because it discriminates on the basis of nationality and on the basis of social or political ideology. According to this argument, there is a serious concern that the Law will prevent Petitioner 1 from carrying out those of its communal and cultural activities that have a cultural-political character – activities that are directed at developing a discussion of the status of Arab citizens and of the historic wrong that has been done to them. In contrast, the Law will have no impact on the alumni organizations of Israeli schools which conduct various activities relating to the identity and Jewish character of the State. The Law will not affect activities directed at commemoration of the Jewish-Zionist narrative, either. It is also argued that the violation of the right of Petitioners 2-6 to equal treatment is reflected in the fact that the bilingual schools such as the school in which these petitioners’ children study will not be able to realize their central and essential objectives – objectives that include the exposure of Jewish and Arab students to the nationalist narratives of groups other than their own. In contrast to this, other special schools will be able to continue their activities that are directed at the achievement of their educational objectives. In addition, it is argued that Petitioner 7 will suffer from discrimination based on his scientific and academic research, and that his position within the academic world is likely to be substantially impaired. In contrast, it is argued, academics who promote undemocratic positions that refer to Israeli Arabs as constituting a demographic threat will continue to maintain their academic status, without any infringement of their work.

9.    The petitioners argue that a budgetary statute that discriminates on the basis of nationality or political ideology through the adoption of a nationalist-ethnic ideology is an unconstitutional discriminatory statute. It is further argued that although the Law is worded in a neutral manner and applies equally to the activities of both Arabs and Jews and to both Arab and Jewish institutions that receive state financing or support, it is clear that the intention is to impact primarily on Arab citizens.

10.  Another argument made is that the Law violates the right to education. The Law will prevent the children of Petitioners 2-6 and others from receiving an education based on the Palestinian nationalist narrative, and is thus in violation of the objective of public education, as such is defined in s. 2(11) of the Public Education Law, 5713-1953. It is also argued that the violation will maintain and even increase the suppression that has developed because of the Ministry of Education’s strict monitoring of the education provided in Arab schools. An additional claim made is that the Law violates the right of the students’ parents to freely choose an educational institution for their children in accordance with their own educational ideology and philosophy.

11.  The petitioners also argue that the Law’s provisions lead to a violation of the right to freedom of occupation for all those who in the framework of their work are involved in a critical examination of the nature of the state as a Jewish state (such as Petitioner 7 and the teachers in the Bilingual School). It is also claimed in this context that Petitioner 7’s right to equal treatment in exercising his freedom of occupation is restricted, as opposed to other academics with political perspectives that conform to the views of the majority.

12.  Finally, the petitioners claim that the Law violates the right of Arab citizens to collective dignity. It is argued that the Palestinian narrative is an integral part of the identity of most Israeli Arabs, and that the attempt embodied in the Law’s provisions to restrict the discussion of this narrative violates a constitutive element of the identity of these Arab citizens. It is also argued that the attempt to prevent opposition and legitimate protest against the values of the state as a Jewish and democratic state violates the collective dignity of the Arab citizens because it prevents them from objecting to the fact of the discrimination to which they are exposed. It is argued that the Law seeks to shape and outline the values and perspectives of the Arab minority, as well as its behavior, by using a tool that is tied to the state budget.

13.  The Petitioners argue that the Law does not comply with the provisions of the limitations clause of the Basic Law: Human Dignity and Liberty. The Law gives the representative of the executive branch broad discretion, in that its provisions do not provide clear criteria that indicate when a budget reduction will be allowed; the Law’s sections are broad, vague, ambiguous and general. It is argued that these statutory provisions do not comply with the tests for primary legislation arrangements as established in this Court’s case law, and that the violation of constitutional rights therefore contravenes the provisions of the Basic Law: Human Dignity and Liberty, which require that any violation either be anchored in a statute or permitted pursuant to a statute. It is also argued that the violation of these constitutional rights does not have an appropriate objective, in that the violation is caused in an arbitrary fashion, it involves political considerations and it penalizes the petitioners in particular and the Arab population in general. It is also argued that the Law has no proper objective because it violates the public interest – an interest which specifically requires protection of the principle of cultural pluralism, freedom of expression, equality, freedom of occupation and dignity. It is further argued that the Law lacks a proper objective because it violates democratic values and indirectly allows the imposition of collective punishment, since the entire group of those benefitting from a particular service may be harmed because of a single act, or because of the act of a single individual. According to the petitioners, in light of the fact that the Law is not a statute as defined in the Basic Law, and because it lacks an appropriate purpose, there is no need to examine the matter of whether it is proportionate, since the Law’s purpose is the starting point for the three-part test for proportionality.

14.  Finally, it is argued that the Law has a “chilling effect” and deters certain activities, because of a concern that such activities will be covered by the Law’s provisions, and will thus lead to the imposition of budgetary sanctions.

The position taken by Respondent 1

15.  Respondent 1 argues that the petition challenges the constitutionality of a law before the manner of its implementation and application has been examined by the authorized parties; Respondent 1 argues further that the petition is based on various extreme scenarios that the petitioners presented, even though the likelihood of their occurrence is completely unknown and it is also unknown whether the Law will in fact apply to them. Respondent 1 therefore argues that it is too early to reach a decision regarding this petition, because as of the current time, the Minister of Finance has not yet been asked to implement the Law in any concrete situation and no interpretative content has yet taken form with respect to his authority pursuant to the Law; and that this petition is thus overly generalized and theoretical. Respondent 1 emphasizes that pursuant to the provisions of the Law, a professional team must be established in order to exercise the granted authority, and the Minister of Finance must receive an opinion from the legal adviser to his Ministry and hold a hearing for the entity regarding which he is considering exercising his authority. In addition, the Law requires that the Minister of Finance obtain the approval of an additional minister (other than himself) – the minister who is in charge of the relevant budgetary item. Regarding this issue, Respondent 1 cites the position that I took in HCJ 7190/05 Lobel v. Government of Israel [1], in which I chose to make use of the “ripeness” doctrine that has been applied in the past in the field of constitutional law. According to this doctrine, a court may refrain from deciding an abstract dispute if there is no clear and complete factual background that has been presented to the court with respect to the issue facing the court.

16.  Respondent 1 offered an additional threshold argument, relating to the legal forum in which the petition should have been brought. The argument is that even if a concrete decision to reduce a budget had been reached pursuant to the Law, the proper forum for the deliberation of the issues raised regarding such a decision would be the Administrative Matters Court, as provided in Item 40 of the First Schedule to the Administrative Courts Law, 5760-2000 (hereinafter: “the Administrative Courts Law”). Respondent 1 argues that this Court cannot take the place of the entity that is authorized pursuant to that law, and issue a forward-looking legal opinion with regard to the manner in which the authority granted in the Law should be exercised.

17.  The argument is also made that the Law, on its face, does not apply to the petitioners, as they do not fall within the Law’s definitions of a “financed entity” or a “supported entity”.

18. In light of the conclusion I have reached, I see no need to respond at length to Respondent 1’s substantive arguments. I will note briefly that Respondent 1 believes that this Court’s intervention would not be justified, as the Law passes the test set out in the limitations clause for a statute’s constitutionality. Respondent 1’s argument is that the Law fits into Israel’s framework of statutes that sustain its existence as a Jewish and democratic state, while preserving the state’s right to protect its basic principles. Respondent 1 also argues that the state has the prerogative to direct the allocation of its budget and not to finance activities the purpose of which is to undermine the basis for its existence. The core principles on which the state is based are a legitimate consideration in terms of the distribution of budgets, and the state may choose not to finance activities that are not consistent with these core principles. In addition, it is argued that the Law establishes a mechanism of restraint, balance and supervision through which decisions about budget reductions are reached. The intention is not to have the Law apply to marginal or minimal activity, but instead only to those activities which in their essence negate the character and existence of the state, including its character as a Jewish and democratic state.

19.  Regarding the petitioners’ claim that there has been a violation of various basic rights, Respondent 1 argues that the Law does not violate freedom of expression. Respondent 1 argues that the supported or budgeted entity retains the right to choose whether or not to carry out those activities that conflict with the grounds for budget reduction that are stipulated in the Law, but the Law allows the Minister of Finance to decide – when dealing with a supported or budgeted entity that engages in such activity – that the state will not finance the entity’s activity that falls within the categories listed in the Law. For this reason, it is also argued that there is no violation of a right to collective dignity. In addition, the Minister of Finance argues that even if there is a violation of freedom of expression, that violation nevertheless complies with the terms of the limitations clause of the Basic Law: Human Dignity and Liberty. Regarding the petitioners’ argument that the Law violates the principle of equality, Respondent 1 argues that the Law applies to any supported or financed entity whose activities are covered by one of the grounds enumerated in the Law. Respondent 1 notes that a claim that the Law may be abused, in that it might be enforced in an arbitrary fashion, is only a theoretical claim. Respondent 1 argues that the claim regarding a violation of the right to education should also be rejected. It is argued in this context that, inter alia, the state may and is entitled to promote those goals that it wishes to emphasize and to budget resources for the purpose of achieving those objectives. In the instant case, the relevant objectives are the goals of public education and the principles underlying the Declaration of Independence. In response to the claim concerning a violation of freedom of occupation, Respondent 1 argues that this is again a remote and theoretical concern – one that is not based on the facts. Respondent 1 argues, at length, that even if there has been a violation of a constitutional right, it is a violation which is permitted pursuant to the conditions set out in the limitations clause.

Response of Respondent 2

20.  Respondent 2 describes at length the reasons that justify a denial of the petition. Some of its claims are similar to those of Respondent 1, and there is therefore no need to repeat them, as they have already been noted above in the discussion of Respondent 1’s claims.

21.  Regarding the right to equality, Respondent 2 argues that this case involves a budget reduction for certain entities, pursuant to the Law, which is carried out on the basis of the relationship between the activities of such entities and the basic principles of the state, and without any connection to the national identities represented by those entities. Respondent 2 also notes that there are Jews who wish to deny the Jewish character of the state, such as Petitioner 7. Respondent 2 argues that the Petitioners’ claim is far-reaching and suggests that any time that the state wishes to promote Zionist or Jewish values, even without discriminating directly against individuals on the basis of their nationalities, it will be seen as discriminating against members of the Arab nationality. Respondent 2 argues further that the state of Israel recognizes its Jewish and Zionist values alongside its democratic values and its constitutional framework. Thus, the granting of a particular position to these values within the framework of the state’s laws is presumptively not an unlawful discriminatory act.

22. Next, Respondent 2 argues that even if the right to education (a right that the petitioners claim is also being violated) is recognized as a constitutional right, this Court has held in the past that the State may determine different levels of financing for educational institutions in accordance with their compliance with the core studies program established by the Ministry of Education; this Court has held that such a determination is neither discriminatory nor a violation of the right to equal education. Accordingly, Respondent 2 argues that even though the petitioners are free to promote a curriculum which is based on the Palestinian national narrative, the State is not required to finance that curriculum.

23. With respect to the claim that there has been a violation of the freedom of employment, Respondent 2 argues that this right is a protective right which is intended to ensure for each individual an area in which he can support himself without interference from others. It is therefore argued that the Law does not violate the right to freedom of employment, as it does not prohibit the employment of teachers or lecturers who wish to promote values that deny the Jewish and democratic nature of the State, and who mark Independence Day as a day of mourning. The Law also does not prevent any individual from teaching content that falls within the definition of such activity. The Law only provides that the State will not participate in the financing of such activities.

Discussion and determination

24.  My position is that at this stage, the petition should be denied without any decision being made regarding the constitutional questions presented to us, and I will suggest to my colleagues that we so hold. I do not deny that the petition before us raises important and fundamental questions and issues. Despite the importance and complexity of these issues, this is not the time to respond to their substance. I will explain myself as follows:  

25. As is known, the power granted to the High Court of Justice pursuant to s. 15(c) and (d) of the Basic Law: The Judiciary is a power that the Court may or may not exercise, in accordance with its own discretion (see: HCJ 731/86 Micro Daf v. Israel Electric Corp. [2], at p. 456; HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, [3], at p. 243; HCJ 991/91 David Pasternak Ltd. v. Minister of Construction & Housing [4], at pp. 58-59; and HCJ 2009/07 Klein v. American Friends of Israel Scouts [5], at para. 11). Over the years, rules have been developed regarding the circumstances in which this discretion may be exercised in the form of the rejection of a petition. These rules do not constitute a numerus clausus, and they can be changed and given new content as needed at a specific time and location (see: HCJ 453/84 Iturit Communications Services Ltd. v. Minister of Communications [6], at p. 620). The rules allow for the rejection of a petition under, inter alia, the following circumstances: when alternative relief is available, when there has been a previous petition or when there may be a theoretical later petition regarding the same matter, when there has been delay or an absence of clean hands on the part of the petitioner, when a petition is overly general, or when the route for legal proceedings has not been fully exhausted, etc. This is not, as stated, a numerus clausus. Justice A. Barak referred to these rules, which qualify as “judicial creations”, in his remarks in HCJ 217/80 Segal v. Minister of Finance [7], at p. 440, in which he noted that they are intended to regulate the pace at which appeals are addressed to the Court.

26.  As noted, the above-mentioned list of grounds for rejecting a petition is not a numerus clausus. In Lobel, the petitioners sought to attack the constitutionality of the Disengagement Plan Implementation Law, 5765-2005 (hereinafter: “the Disengagement Law”) by challenging the section of that law which permitted the imposition of criminal sanctions on parties who were being removed from the Gaza Strip, and who remained in the area after the removal day. An expanded panel of this Court summarily rejected the petition, on the ground that there was an alternate remedy: the constitutional claims could be raised in the framework of a criminal proceeding brought against an individual who had violated the Disengagement Law. Note that in that case, the state, at the end of the day, decided not to prosecute residents who had violated only the provisions of the Disengagement Law. The criminal sanctions were imposed only against those few residents who used violence against the security forces, and who committed additional criminal offenses. The circumstances of that case led me to the conclusion that the petition should be rejected because of the availability of an alternate remedy, and I therefore joined in President Barak’s opinion; however, I also supported a rejection of the petition because the issue it presented was not yet ripe. In my view, there was no reason at that stage to decide an issue of principle in the framework of a direct constitutional attack on the Disengagement Law in the High Court of Justice. And I stress that the ripeness doctrine was not used for the first time in the Lobel opinion cited by the state here. It had already been mentioned in this Court’s earlier case law. Thus, in Segal [7], Justice A. Barak remarked that the grounds established by this Court for a summary dismissal included the ripeness doctrine as well:

‘We may also mention the doctrine relating to an academic or unripe issue, or an issue that is not justiciable. These doctrines attempt to give the court – each from a different perspective – legal mechanisms with which the court can lock its gates when it believes that the particular matter should not be dealt with’ (Segal [7], ibid., at p. 440).

Indeed, from time to time, we encounter petitions that we decide to reject on the grounds that, for various reasons, the questions they present are not ripe for decision. Non-ripeness as a ground for dismissal has been mentioned both in response to petitions relating to administrative cases and, often, in response to petitions relating to constitutional matters. (For examples of petitions that were submitted in connection with administrative cases and were rejected on the grounds that they were not ripe, see the following: in HCJ 1842/04 Michai v. Ministry [8], this Court held that as the competent authority had not yet decided the petitioners’ case, the petition was early and unripe; in HCJ 1431/05 Orian v. Minister of Transportation [9], we rejected a petition that was general and theoretical, and was for that reason held to be unripe for decision; and in HCJ 128/09 Basiso v. Minister of Defense [10], the petitioner asked that she be allowed to return to her home in the Gaza Strip. This Court rejected the petition because we found that the petitioner had just left the country, and that the planned time for her stay abroad had not yet passed; it was therefore held that her petition regarding her ability to return to her home was not ripe for decision. In HCJ 6556/11 Glickman v. Major-General Sami Turjeman, Commander of IDF Land Forces [11], the Court rejected an appeal that was directed, inter alia, at a Chief of Staff Order concerning the service of male and female soldiers together. We held that under the circumstances of that petition, there was no need to study the interpretation of the order or its applications, because a staff team was still working on a study of the subject. In such a situation, it was held, a petition seeking to subject the army’s instructions to judicial review was not yet ripe. For examples in which petitions dealing with constitutional issues have been rejected on the ground that they were not yet ripe, see Lobel [1] and HCJ 8276/05 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of Defense [12], (“Adalah I”) discussed below.

27.  The source of the ripeness doctrine is American constitutional law (see Lobel [1], per Justice Naor, at para. 5). The United States Supreme Court faced the issue in Abbott Laboratories, et. al. v. Gardner [24] at pp. 148-149, when it held that the rationale at the basis of the doctrine is the Court’s need to avoid deciding issues before the time is ripe for the Court to do so:

‘Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’

28. I believe that the circumstances here justify the application of the ripeness doctrine. At this stage, the issue raised by the petition is not yet ripe for a judicial determination, due to the absence of a clear, complete and concrete set of facts – the type of fact pattern that is essential if a judicial determination of the principle of the issue is to be properly made. The importance of a crystallized dispute for the purpose of making a determination regarding a constitutional issue has been discussed by my colleague, Vice President E. Rivlin, in his opinion in HCJ 7052/03 Adalah – the Legal Center for the Rights of the Arab Minority in Israel v. Minister of the Interior  [13] (“Adalah II”), at para. 6:

‘The deliberation is not fruitful when it takes place too early, before the dispute is known, or when it has not yet crystallized.’

The Minister of Finance has not yet, on any occasion, carried out those sections that the petitioners wish to have stricken, and we cannot know whether, when and in what circumstances the Minister will make use of the powers that these sections confer upon him. The mechanism established in the Law provides that before the Minister of Finance decides to impose the financial sanction, the issue must go through several stages of review and approval. The Minister’s decision will only be carried out in coordination with various other parties, and only after their opinions are obtained. Thus, for example, the Law requires that in order for a financial sanction to be imposed, the minister in charge of the budgetary item through which the entity in question is either budgeted or supported must agree to the imposition of that sanction. Additionally, the budgeted or supported entity that will be affected must be given a hearing before the sanction can be imposed. Furthermore, pursuant to sub-section (d) of the Law, the Minister of Finance can only reach a decision to reduce funding after receiving an opinion from the legal adviser to the Ministry of Finance and only after the specially-appointed professional team has made its recommendation. The Law provides that the professional team will be composed of an employee of the Ministry of Justice, an employee of the Ministry of Finance, and an employee of the ministry whose minister is charged with the budget item through which the entity is either budgeted or supported. I note here that the mechanisms established in the Law were the fruit of various discussions held in the Knesset’s Committee on the Constitution, Law and Justice. As may be recalled, the original draft law placed before the Knesset was the Draft Independence Day Law – a draft law which sought to prohibit any activity or event which includes a marking of Independence Day or a reference to the fact of the establishment of the State of Israel as a “day of mourning” or a “day of tragedy”. This prohibition was accompanied by a penal sanction of up to three years imprisonment. This proposal was abandoned, as stated, and the Budget Foundations Law was tabled in its place. However, the Draft Budget Foundations Law also went through many changes before it was enacted in its final form; for example, Respondent 1’s Response indicates that the definition of a “prohibited expense” was narrowed and it was determined that it would apply only to activities which were in their essence the equivalent of one of the grounds listed in the section and not for every expense that “could”  fit within one of those grounds. The Law also provides for a controlled and careful decision-making process, which I have noted above – a process that includes, as stated, professional opinions, a hearing, and the consent of the minister in charge of the relevant budgetary item. The Law also provides that the budget reduction for the supported or budgeted entity may not be of an amount greater than three times the amount of the expense that has led to the imposition of the sanction. (Originally, the amount of the reduction was up to twenty times that amount, which was then reduced to ten times the amount of the expense).

29. Thus, the Law requires that a long road must be travelled before the sanction created by the Law can be imposed. I will not take any position at this stage regarding the mechanism established in the Law or regarding the Law’s constitutionality. However, at this stage, before the Law has been implemented and when the mechanism established therein has also not yet entered into operation, I do not believe that there is any reason to engage in speculations and estimations regarding the manner in which the power granted in the Law will be exercised. As I noted in Lobel [1], a well-informed judicial determination must be tightly connected to concrete facts that are presented in the case before the court, even if a constitutional question has arisen. (See: Lobel [1], at para. 6. See also HCJ 3248/09 Sari v. Minister of Justice [14], at para. 3; HCJ 6972/07 Lakser v. Minister of Finance [15], at para. 26). In this case, there have not yet been any incidents in which a question has arisen regarding the application of the Law, its interpretation or its consequences. The situation was similar in Adalah I [12], in which this Court was asked to decide the issue of the constitutionality of the Civil Wrongs Ordinance (State Liability) (Amendment No. 7), 5765-2005. With regard to the provisions of that law, President (emeritus) A. Barak held, and his colleagues concurred, that s. 5c of the law was invalid. However, it is his discussion of s. 5b of that law that is relevant to our discussion here. Regarding that section, it was held that the issue presented in the petition was not yet ripe. Some of the remarks made in that case are also pertinent here:

‘The question of the constitutionality of s. 5b of Amendment 7 arose before us in a marginal manner only . . . We were not presented with any cases in which the question of its application arose. All this reflects upon the question of the constitutionality of the section. In these circumstances, as long as these questions have not been properly addressed, the time has not come to decide the constitutionality of s. 5b. Much depends on the manner in which it is implemented and the interpretation that is given to the provisions of the section. . . . Naturally, the parties have the right to raise their arguments concerning the constitutionality of s. 5b as it will arise in specific cases. The civil courts are competent, in specific tort cases, to examine arguments concerning the constitutionality of the section. In the circumstances of this case, we see no reason to decide the question of the constitutionality of s. 5b of Amendment 7. (Emphasis in the original – M.N.) (Ibid. [12], at para. 31).  

30. The United States Supreme Court dealt with a similar issue in United Public Workers of America (C.I.O.) et. al. v. Mitchell et. al. [25]. In that case, the plaintiffs, who were all federal employees, challenged a statute that prohibited their participation in political activities. Except for one employee, none of the plaintiffs had actually violated the statute, but they had all declared their intention to become involved in political activity of the type that had been prohibited by the statute. The Court held that other than the issue presented by the single plaintiff who had already violated the statute, there was no legal question that could properly be decided. The Court noted the employees’ concern that if they did violate the law they would lose their jobs, but held that because the employees had not yet violated the statute, this was a purely hypothetical-speculative concern which did not justify a judicial determination or the granting of judicial relief:

‘The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. We can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication. It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order except when definite rights appear upon the one side and definite prejudicial interferences upon the other’ (ibid. [25], at p.89-90).

Justices Douglas and Black presented the minority view, and wrote that the dispute could be adjudicated. Justice Douglas wrote that the plaintiffs did not need to wait until they actually lost their jobs. To remove doubt: I also believe that there can be cases in which even in the absence of a concrete foundation for a dispute, it would be wrong to postpone the adjudication of a particular petition until a specific factual background – one that can cause substantial harm to the petitioners – has arisen, and in such cases it would be proper to decide a question even if it has not yet become fully ripe. However, even if we agree with the minority view in United Public Workers [25], the outcome in our case would not change. In the instant case, even if the Law’s provisions had been put to use, the impact on the petitioners would not be immediate. As stated, because of the complex decision-making mechanism prescribed by the Law, a multi-staged process separates the initial decision by the Minister of Finance and its actual implementation. In any event, if the Minister does exercise his power pursuant to the Law and such exercise is likely to harm some of the Petitioners, the option of initiating legal proceedings remains open. It should also be noted that one element of the mechanism established in the Law is the holding of a hearing for an entity that is likely to be harmed.

31. As stated, not every petition that lacks a concrete factual foundation should be summarily dismissed on the ground that it is unripe. Each case must be judged on its merits. As noted, the lack of ripeness is a threshold ground for dismissal, and a court may exercise discretion in deciding whether or not to rely on it. It is certainly possible that on some occasions, even in the absence of a concrete factual background, a court should nevertheless address the issue raised in the petition. We can draw an analogy to the fact-pattern of United Public Workers [25], and find that the Court’s intervention at an early stage would be justified if the circumstances are such that if a petitioner is asked to wait for his case to become ripe, he will pay too heavy a price. Thus, for example, if the Draft Independence Day Law had been enacted as law, and if the petitioners had sought to attack its constitutionality, this Court might have responded to the petition even before use had been made of its provisions in a concrete case. This judicial response would have been needed because of the harsh criminal sanction that was contained in Draft Independence Day Law (three years imprisonment).  However, this does not mean that whenever a petition challenges the constitutionality of a law which contains a criminal sanction, this Court must address it despite its lack of ripeness. (Regarding this matter, see Lobel [1], opinion of Justice Naor.) As I have noted, the Court must exercise its judgment in each case, based on the specific circumstances that are presented.

32.  Moreover, the Response submitted by Respondent 1 indicates that we cannot be certain that the Law will apply to the petitioners in this case. In addition, even if the Law does apply to the petitioners, there is still uncertainty regarding the degree to which it will apply to them or to others, and in what circumstances it will apply. The use of the ripeness doctrine does not mean that the courthouse doors are permanently closed before the petitioners or before others, or that the Court will not deliberate the issue in the future. It may be that in the future – if and when the Law’s provisions are put into use and the petitioners or others feel that they have been harmed by that use – the petitioners will be able to address the competent tribunals who will adjudicate their claims. In such a situation, and on the basis of a concrete factual background, the disputed issue will certainly be more coherent, and this will make the deliberation more efficient; the Court will be able to render a wiser decision, based on concrete facts (see HCJ 1468/11 Ben Sa’adon v. Minister of Religious Affairs [16]). Nevertheless, it may also be the case that the passage of time will render a deliberation of a petition irrelevant, as the petitioners’ concerns may never be realized (compare, Lakser [15]) – either because the Minister of Finance may fail to exercise the power conferred upon him by the Law, or because the provisions will be exercised in a manner that does no harm to the petitioners; other factors may allay the petitioners’ original concerns as well. However, in the current situation, the operative significance of the Law is not yet clear and it is not yet the right time for us to respond to the substance of the claims (compare Ben Sa’adon [16]).

33.  I wish to add the following to these remarks: the ripeness doctrine is, as stated, one of the tools that this Court can use to establish the pace at which petitions are brought before it. It allows the Court to regulate, to a certain degree, the flow of matters submitted to it and to refrain from deciding matters when the Court believes that there is no justification at that particular time for determining the issues presented (see Segal [7], supra). The Court has discretion to determine the circumstances in which it will apply the doctrine, in the framework of the power the legislature has conferred upon it in s.15 of the Basic Law: The Judiciary. When it weighs the various considerations for and against the deliberation of a particular petition, the Court must also consider the need to organize its time, given that the time available to us is a finite resource. When this Court is faced with a petition that is particularly urgent, we work night and day to decide the issue that is before us. However, when the submission before us is a petition that is not yet ripe – a petition that does not include a clear, complete and concrete set of facts – the Court must consider whether a theoretical adjudication is justified at that particular stage.

34.  Furthermore, I believe that alongside the above-mentioned threshold ground for dismissal based on a lack of ripeness, the petition here should also be denied because an alternative proceeding and remedy are available. In Lobel, I noted that the ripeness doctrine is sometimes combined with other threshold grounds for dismissal, such as the availability of an alternative proceeding and remedy. This is because the ripeness required for an informed determination concerning the constitutional issues is likely to take shape in the context of the pursuit of an alternative remedy (see ibid., at para. 8). That is the case here. In the framework of the amendment of the Law, the Knesset also amended the Administrative Matters Court Law, such that the list included in First Schedule of that law was expanded to include a new item 40; this item confers on the Administrative Courts the power to adjudicate petitions dealing with the reduction of financial support pursuant to a decision by the Minister of Finance. It is black-letter law that the granting of power to the Administrative Matters Courts does not negate the power of this Court (see HCJ 2208/02 Salameh v. Minister of the Interior [17], at p. 953; HCJ 212/03 Herut National Movement v. Chairman of the Central Committee for the Election of the 16^th Knesset [18], at p. 756). However, the choice to petition the Administrative Matters Court is a choice to take the intended main road. Of course, the petitioners may also raise their claims regarding the constitutionality of the Law in the context of a petition to the Administrative Matters Court. The authority of the High Court of Justice to adjudicate claims regarding unconstitutionality does not prevent a deliberation of such claims in an “ordinary” court (see HCJ 2426/08 Ben Atar v. State of Israel – Ministry of Transportation (2008) (unreported) [19],  per Justice Naor, at para. 3; HCJ 6715/10 Hina v. State of Israel, Ministry of Defense, Department of Rehabilitation [20], at para. 5; HCJ 2055/02 Sheikh Abed Al Karim Abayet v. Minister of Defense [21], at para. 5; HCJ 1076/07 Maman Eilat Group Ltd. v. Minister of Finance [22]; Adalah I, supra). A party who believes that he has been harmed by the implementation of a law may thus turn to the Administrative Matters Court by filing a petition. In the context of such a petition, the party may use an indirect attack to present arguments regarding the constitutionality of the particular law. It has already been held that trial courts can adjudicate a particular litigant’s matter through an indirect attack, even if the litigant can, in principle, submit a petition to the High Court of Justice. This has also been allowed in cases in which the “indirect attack” was brought by the litigant who initiated the proceeding, and did not use it as a defensive claim (see: HCJ 6090/08 Berger v. Minister of Justice [23], at para. 5; Hina, supra; Lakser [15], at para. 29). The ability to present their claims in the form of an “indirect attack” also gives the petitioners the ability to pursue an alternative remedy (see: Hina, supra; Berger [15]; Orian, supra; and see:  Sheikh Abed Al Karim Abayet; and see: Lobel [1], per President A. Barak, at para. 12, and per Justice Naor, at para. 1). And furthermore: in the context of an administrative petition, it will be possible to ask for temporary relief in the form of an order for the non-implementation of the sanction.

35.  The existence of an available alternative proceeding and remedy in this case reinforces the conclusion that this petition is not ripe for decision by this Court. If a petition does need to be filed, it will be filed in the Administrative Matters Court, and to the extent necessary, it will be based on a concrete factual background, and not on hypothetical scenarios, as is the case in the petition which is before us now. The concrete facts will also allow that court to decide whether or not a concrete interpretation of the Law justifies the particular decision reached by the Minister of Finance, or whether the constitutional question needs to be decided.

36.  In conclusion: the petition before us contains complex questions that are of public importance, but at this stage, there is no need to render a judicial decision concerning the claims that have been presented. The petition is not ripe because of the absence of a concrete factual background – and we must have a concrete factual background in order to reach a decision regarding the various issues raised by the petitioners. In addition, if the petitioners or any of them or others are harmed as a result of the Law’s implementation, they have an alternate proceeding and remedy available to them in the Administrative Matters Court, where they will also be able to file an application for an order nisi preventing the implementation of the Law with respect to them.

37.  I propose to my colleagues that the petition be denied without an order regarding expenses.

President D. Beinisch

I agree with my colleague Justice M. Naor that the petition before us raises complex questions which are of public importance. I stress that these questions can, in certain circumstances, reach the core of the problems that currently divide Israeli society. However, I accept my colleague’s position that the petition before us is not ripe for judicial review. At a declarative level, the Law raises, on its face, difficult and complex questions, but the constitutionality of the Law is largely dependent on the interpretive content that is given to its provisions, and the nature of this content will only become clear when the Law is implemented by the relevant authorities.

Before a judicial determination can be made regarding the circumstances to which the Law will apply and the scope of its implementation, the executive needs to be allowed to set the boundaries and procedures for its implementation. The petitioners have painted various scenarios of hypothetical possibilities, and we cannot yet determine the likelihood that any of these scenarios will be realized. We do not know to whom they will apply, whether they will indeed relate to the petitioners, or what event will justify the implementation of the Law. We must therefore leave for a later time a deliberation of the constitutionality of the Law’s provisions – if indeed there is a need for such at the stage when they are put to concrete use, if such a stage is reached, and if the chosen form of implementation passes through the relevant filters established in the Law itself.

As of now, I also do not see a need to decide the question of the availability of an alternative remedy, and whether, when the time comes, a decision reached pursuant to the Law should be deliberated in the Administrative Matters Court or in this Court. That question will also be decided in the future, on the basis of the particular circumstances that arise.

I therefore join in the result reached by my colleague.

 

Vice President E. Rivlin

I join in the judgment of my colleague Justice M. Naor. I believe that under the circumstances, we are far from the concrete stage of the  implementation of the law. This is because according to the law itself, a long way must be travelled between the occurrence of an event mentioned in the Law and the actual imposition of a sanction – and there are many obstacles to overcome over the course of this distance. Furthermore, it is not at all certain that the Law will actually apply to the petitioners. With respect to constitutional judicial review, this natural selection is the result of the absence of factual circumstances which raise the constitutional question. In foreign systems which implement concrete factual examinations, this natural selection precedes constitutional review. Such examination often renders the actual constitutional review redundant.

For these reasons and for the reasons described by my colleague Justice M. Naor and those listed in the judgment written by my colleague President Beinisch, I join in their decisions.

 

Decided as per Justice M. Naor

10^th of Tevet 5772.

15 January 2012.

 

 

 

Justice U. Vogelman

Undoubtedly, information provided to a journalist with the intention that it not be published, and which could disclose the identity of the source, is protected by the journalist’s privilege discussed by President M. Shamgar in Citrin [1]. In my view, any other interpretation will render the principle of a journalist’s privilege, as outlined in Citrin [1], empty of substance. I therefore join in the determinations made in paragraphs 98 and 99 of my colleague Justice E. Rubinstein’s opinion, and in his holding that the state may petition the magistrate court to remove the privilege in accordance with the tests established in Citrin [1]. This does not mean that I take a position – in either direction – regarding the scope of the journalist’s privilege with respect to the handing over of information that will not necessarily lead to the exposure of the source of the journalist’s information, and I wish to leave that question for further review.

 

Decided per the opinion of Justice E. Rubinstein.

 

15^th of Kislev 5773

29 November 2012.