Case Number
LCrimA 761/12
Date Decided
11-29-2012
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Facts: A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.
Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met. In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.
Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance.
Keywords
Administrative Law -- Disclosure of information, Administrative Law -- Discretion, Communications, Constitutional Law -- Freedom of Expression, Constitutional Law -- Right to Privacy, Criminal Law, Evidence -- Disclosure of documents
Recommended Citation
Rubinstein, Elyakim; Amit, Isaac; and Vogelman, Uzi, "State v. Makor Rishon Hameuhad (Hatzofe) Ltd." (2012). Translated Opinions. 366.
https://larc.cardozo.yu.edu/iscp-opinions/366
