Hashavim H.P.S. Business Information Ltd. V. Courts Administration

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HCJ 5870/14
Hashavim H.P.S. Business Information Ltd. V. Courts Administration
Decided:
November 12, 2015
Type:
Original
ABSTRACT

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

 

This case concerned a petition challenging the decision of the Courts Administration (the Respondent) making access to its judgment database contingent upon signing a “guarantee” that comprised, inter alia, a prohibition upon indexing the information in a manner that would allow it to be found through web search engines such as Google and Bing. The Petitioner is a commercial company whose primary activity is the operation of two internet sites (Takdin and Takdin Light) that provide information to the public for a fee, and through which the judgments and decisions of the various courts, which are “drawn” from the Respondent’s judgment database, can be accessed.

 

The High Court of Justice (per Deputy President E. Rubinstein, Justices E. Hayut and U. Vogelman concurring) granted the petition for the following reasons:

 

In terms of authority, it was noted that administrative decisions that violate basic rights are required to meet the conditions of the Limitations Clause, the first of which is authority by virtue of primary legislation. In the present case, it was held that the practical import of the Respondent’s decision results in a violation of freedom of occupation, the principle of open justice, and freedom of expression. As noted, such violations must be authorized by primary legislation, but no such authorization was presented. In this regard, the Court held that the Respondent’s agreement to sign the guarantee is irrelevant to the question of authority. The requirement of authority is not dispositive. The HCJ also noted the difficulty in recognizing the Protection of Privacy Law as a source of authority for the Respondent’s decision.

 

Although unnecessary for deciding the issue, the HCJ went on to examine the decision on two additional levels – the decision process and the underlying discretion.

 

The Petitioner’s arguments were rejected in regard to three aspects of the administrative process: the hearing, the reasons given, and the Respondent’s decision not to disclose the opinion of the Ministry of Justice’s Information and Technology Authority that served as the basis for its policy on indexing judgments.

 

On the other hand, the Court held that the Respondent’s exercise of discretion in making its decision was flawed. In this regard, it was noted that only a substantial deviation from the scope of reasonableness would result in the Court’s intervention in the balance struck in an administrative agency’s decision. In the present case, the required balance was between the right to privacy of litigants and the principle of open justice and the Petitioner’s freedom of occupation. The test for examining the benefit deriving from the Respondent’s concrete decision (prohibiting indexing judgments by entities granted direct access to its judgment database) in regard to the protection of privacy as opposed to the violation of freedom of occupation is that of the appropriate means. Performing that examination in accordance with the three proportionality tests established by the case law led the Court to the conclusion that the Respondent’s decision was unreasonable under each of the tests.

 

The Court was of the opinion that the means adopted by the Respondent did not appear to achieve the desired result – preventing the violation of the privacy of litigants caused by making their judgments searchable through web search engines – or at least, only partially and insufficiently achieved that goal, inasmuch as the decision did not effectively restrict indexing of the judgments by third parties that post them to their sites. In regard to the least harmful means, the Court was of the opinion that there were alternatives that could achieve similar, if not better results without violating the Petitioner’s freedom of occupation and the principle of open justice. As for proportionality, the Court was of the opinion that the benefit of the decision did not justify its cost. The benefit to litigants, if any, that derived from the decision was minor, while the harm to open justice, and primarily to freedom of occupation, was significant. It is difficult to permit a decision that yields such a situation to stand, with all due sympathy for the proper intentions.

 

In view of the above, the Court voided the Respondent’s decision, such that the Petitioner would continue to enjoy direct access to the judgment database without undertaking to make its websites unsearchable by web search engines.

JUSTICES
Rubinstein, Elyakim Primary Author majority opinion
Hayut, Esther Author concurrence
Vogelman, Uzi Author concurrence

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HCJ 5870/14

 

           

 

Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                                            v.

 

Respondent:

 

                                    Courts Administration

 

                                   

 

On behalf of the Petitioner:    Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

On behalf of the Respondent: Adv. Avi Milikovski

On behalf of the Association for Civil Rights in Israel: Adv. Avner Pinchuk

On behalf of the Digital Rights Movement in Israel: Adv. Asaf Pink

                                   

 

The Supreme Court sitting as High Court of Justice

Before: Deputy President E. Rubinstein, Justice E. Hayut, Justice U. Vogelman

 

Petition for an Order Nisi

(Nov. 12, 2015)

 

 

Israeli Supreme Court cases cited:

 

[1]        CA 438/14 A. v. Israeli Automobile Insurance Database (Feb. 6, 2014).

[2]        HCJ 1/49 Bejerano v. Police Minister, IsrSC 2 80 (1949) [https://versa.cardozo.yu.edu/opinions/bejerano-v-police-minister].

[3]        HCJ 1405/14 Professor Slavin v. Deputy Director General of the Ministry of Health, (2014).

[4]        LCA 7861/03 State of Israel v. Lower Galilee Local Council, (2006).

[5]        EA 92/03 Mofaz v. Chairman of the Central Elections Committee, IsrSC 57(3) 793 (2003) [https://versa.cardozo.yu.edu/opinions/mofaz-v-chairman-central-elections-committee-sixteenth-knesset].

[6]        HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481 (1998) [https://versa.cardozo.yu.edu/opinions/rubinstein-v-minister-defense].

[7]        HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62(4) 715 (2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general].

[8]        HCJ 3933/11 Maccabi Health Services v. Minister of Health, (2014).

[9]        HCJ 4703/14 Sharon v. President of the Supreme Court, (Nov. 30, 2014).

[10]      HCJ 4000/93 Knebel v. Bar Association, (1997).

[11]      HCJ 606/93 Kidum Promotions and Publishing Ltd. v. Broadcasting Authority, IsrSC 48(2) 1 (1994).

[12]      HCJ 5118/95 Meir Simon Ltd. v. Second Authority for Television and Radio, IsrSC 49(5) 751 (1996).

[13]      HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio, IsrSC 50(3) 397 (1996).

[14]      HCJ 598/77 Eliyahu Deri v. Parole Committee, IsrSC 32(3) 161 (1978).

[15]      LCA 2327/11 A. v. B., (2011).

[16]      HCJ 142/70 Shapira v. Bar Association, IsrSC 25(1) 325 (1971).

[17]      AAA  4014/11 Eid v. Ministry of Interior, (2014).

[18]      AAA 9135/03 Council for Higher Education v. Ha’Aretz Newspaper Publishing, IsrSC 60(4) 2017 (2006) [https://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz].

[19]      HCJ 7805/00 Aloni v. Jerusalem City Comptroller, IsrSC 57(4) 577 (2003).

[20]      CA 4275/94 Israel Stock Exchange v. Management of the Torah Literature Database Ltd., IsrSC 60(5) 485 (1997).

[21]      AAA 2339/12 Shohat v. Kfar Sava Local Planning and Construction Committee, (2013).

[22]      HCJ 338/87 Margaliot v. Minister of Justice, IsrSC 42(1) 112 (1988).

[23]      HCJ 7510/05 Lotan v. Minister of Industry, Trade and Labor, (2006).

[24]      HCJ 148/79 Sa’ar v. Minister of Interior, IsrSC 34(2) 169 (1979).

[25]      HCJ 910/86 Ressler v. Minister of Defence, IsrSC 42(2) 441 (1988) [https://versa.cardozo.yu.edu/opinions/ressler-v-minister-defence].

[26]      CA 8954/11 Doe v. Doe, (2014) [https://versa.cardozo.yu.edu/opinions/doe-v-doe].

[27]      HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456 (1994) [https://versa.cardozo.yu.edu/opinions/dayan-v-wilk].

[28]      LCA 3614/97 Dan Avi Yitzhak, Adv. v. Israel News Corporation Ltd., IsrSC 53(1) 26 (1998).

[29]      HCJ 5917/97 Association for Civil Rights in Israel v. Minister of Justice, (2009).

[30]      CrimA 334/81 Hagenzer v. State of Israel, IsrSC 36(1) 827 (1982).

[31]      HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51(4) 367 (1997).

[33]      HCJ 5026/04 Design 22 v.  Ministry of Labor and Social Affairs, (2005) [https://versa.cardozo.yu.edu/opinions/design-22-shark-deluxe-furniture-ltd-v-rosenzweig].

[34]      LCrimA 1201/12 Kti’i v. State of Israel, (2014).

[35]      LCA 8019/06 Yediot Aharonot Ltd., v. Meirav Levin, (2009).

[36]      HCJ 2605/05 Academic Center of Law and Business, The Human Rights Department v. Minister of Finance, (2009) [https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance].

[37]      HCJ 4491/13 Academic Center of Law and Business v. Minister of Finance, (2014).

[38]      in AAA 3782/12 Tel Aviv District  Commander v. Israeli Internet Association, (2013) [https://versa.cardozo.yu.edu/opinions/tel-aviv-jaffa-district-commander-v-israel-internet-association].                                                                                                                                   

 

Israeli District Court judgments cited:

[39]      HCJ 5537/91 Efrati v. Ostfeld, IsrDC 46(3) 501 (1992).

 

American cases cited:

[40]      Garcia v. Google Inc., 786 F.3d 733

[41]      Baker v. Carr, 82 USC 691 (1962).

 

English cases cited:

[42]      R v. Sussex Justices, ex parte McCarthy, 1KB 256 (1924).

 

European Court of Justice cases cited:

[43]      C-131/12 Google v. Agencia Espanola de Proteccion de Datos, (2014).

 

 

 

Judgment

 

Deputy President E. Rubinstein:

 

  1. This Petition challenges the decision by the Courts Administration (hereinafter: the Respondent) requiring signing a “Document of Guarantee” in order to gain access to its database of judgments and decisions. The “Document of Guarantee” includes, inter alia, a prohibition against indexing the information in a manner that would allow finding it by means of internet search engines such as Goggle and Bing. 

 

Background and Prior Proceedings

 

  1. The Petitioner is a commercial company whose primary business is operating internet websites that provide the public with information for a fee. The relevant websites for our purposes are “Takdin” and “Takdin Light” (how nice it would be had a Hebrew term been found for “Light”), where judgments and other decisions (hereinafter, for the sake of convenience: “judgments”) of various courts may be found. The two websites comprise a similar collection of judgments that are “drawn” from the Respondent’s judgments database, but are distinguishable by the business model upon which they rely.

Access to Takdin is contingent upon a subscription fee of about NIS 2,000 a year, whereas Takdin Light allows the purchase of a digital copy of a single judgment for NIS 26. Even prior to purchase and without commitment, any person may use Takdin Light in order to locate a particular judgment and read its first 2,500 characters. The different business models led the Petitioner to decide to permit the indexing of Takdin Light, as opposed to Takdin. Indexing is a process that enables finding the website, or parts of it, through web search engines. In other words, when one searches for a name of person mentioned in a judgment using a web search engine, one will obtain a reference to the judgment in Takdin Light, but not to Takdin. It should be noted that according to the Petitioner, 94% of the visitors to Takdin Light arrive at the site through web search engines. A person whose name appears in a judgment posted on Takdin Light may submit a request to the Petitioner for removal of the document, which the Petitioner will immediately remove from the free site. However, the judgment will continue to appear as a hit on web search engines for several weeks. The Petitioner offers quick removal from the web search engines as well, for a fee of NIS 50, which is intended – according to the Petitioner – to cover its costs of contacting the web search engines.

 

  1. On April 28, 2008, at the Respondent’s demand, the Petitioner signed a guarantee whereby it promised to post only documents that may be published subject to any law, and to not bring any civil claim against the Courts Administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013, the Respondent contacted the Petitioner and required that it sign an updated guarantee in order to continue its access to the judgments database run by the Courts Administration. Section 10 of the updated Document of Guarantee states that “I am aware that granting access to the information in my possession through open web search engines, such as the “Google” web search engine and others, may itself constitute a violation of privacy or constitute an unlawful publication, and I therefore undertake to take all necessary steps in order to prevent indexing of decisions and judgments passed through these web search engines.”

 

  1. Following the letter, two meetings were held between the Petitioner’s attorney, and the legal advisors of the Courts Administration and the Ministry of Justice’s Information and Technology Authority (hereinafter ITA), which ended with the Petitioner being requested to submit technical information as to its activity. The information was provided by the Petitioner on May 16, 2013. On November 5, 2013, the Respondent notified the Petitioner that if it does not prevent indexing of the information it “draws” from the Courts Administration judgments database, its access to the database would be blocked as of January 1, 2014. The Petitioner was granted 14 days to submit its written objection. At the Petitioner’s request, it was granted an additional 21 days to submit its written response, which it submitted on December 17, 2013. On January 28, 2014, a meeting was held in the Respondent’s offices, during which the Petitioner was given the opportunity to supplement its arguments orally. On June 15, 2014, the Respondent notified the Petitioner that if the updated Document of Guarantee was not signed, access to the Courts Administration judgments databases would be blocked. On August 18, 2014, after several delays by the Respondents and several requests by the Petitioner for the reasons for the decision, an email was sent by the Courts Administration stating that a company that fails to sign the updated Document of Guarantee by September 8, 2014, would be disconnected from the judgments database. An explanatory letter from the Respondent’s legal counsel was attached to the email. It should be noted that the opinion by the ITA, which served the Respondent in making its decision, was not provided to the Petitioner, despite its request for it. On September 1, 2014, this petition was submitted against the Respondent. The Respondent’s attorney has consented that the decision dated August 8, 2014 will not go into effect until our decision in this petition. In the absence of a written response, due to a labor dispute with the State Attorneys Association, it was agreed at the hearing of March 4, 2015 that the hearing be adjourned, and that the postponed hearing would be conducted as if a an order nisi had been granted. We would further note that a class action submitted against the Petitioner is pending in the Tel Aviv Yafo District Court (before Deputy President I. Inbar) in ClassA 34134-01-12. The suit was filed by people who claim that their privacy was violated due to the publication of their names on the website. In accordance with the decision of the District Court from June 16, 2015, that case will continue to be heard after a decision is handed down in the present petition.

 

The Petitioner’s Arguments

  1. The Petitioner challenges the Respondent’s decision on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is sec. 70 of the Courts Law (Consolidated Version, 5744-1984 (hereinafter: “Courts Law”), which establishes the publication of judgments as the rule, and confidentiality as the exception. According to the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of authorization is particular egregious, it was argued, because we are concerned with a primary arrangement that infringes both the principle of open justice and the rights of the Petitioner – the right to freedom of occupation, the right to property, and the principle of equality. According the Petitioner, the decision was made by the Courts Administrator, who is not authorized to do so. It was argued that the Courts Administrator serves an administrative role that is not necessarily held by a judge, and his responsibility is limited to executing administrative procedures established by the Minster of Justice under sec. 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 8, 2014 – is not within the Courts Administrator’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in sec. 83(a)(2) of the Courts Law, which states: “The Minister of Justice shall regulate by regulations – […] the publication of judgments of courts.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegated to the Courts Administrator, such as hearing cases during the recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters related to publishing identifying details in court judgments and decisions, and this remains under consideration. The appointment of this committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate authority to regulate this issue to the Courts Administrator.

 

  1. As to the procedure by which the decision was made, it was argued that this was flawed in a number of ways. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes its right to be heard, which forms part of administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a mere formality that did not substantively fulfil the right to be heard. Finally, that Petitioner maintains that the reasons given by the Respondent do not address the arguments raised during the hearing, and do not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not substantively meet the duty of any administrative authority to state its reasons.

 

  1. On the level of discretion, the Petitioner presents several arguments. First, it argues that the decision was made for an improper purpose, inasmuch as the general public, as opposed to individuals, has no right to privacy. A person’s right to privacy is considered by the court upon the submission of a request to seal a file, and there are no grounds – according to the Petitioner – for providing additional protection to the general public at the expense of other values such as open justice. It was further argued that the prevailing law grants paramount status to the principle of open justice, which is superior to the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725-1965. Thirdly, it was maintained that the Respondent’s decision violates the principle of equality because the decision  limits access to judgments only to professional jurists, rather than to the general public. Under the Petitioner’s approach, this harms unrepresented parties who represent themselves in proceedings. Fourth, it was argued that the decision infringes the Petitioner’s freedom of occupation, as the operation of Takdin Light represents a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive means, such as instructing the courts to limit the publication of personal details that are not essential to the decision.

 

The Respondent’s Arguments

  1. According to the Respondent, the open justice principle  does not require making court judgments accessible through web search engines, and in any event, limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions upon using the Courts Administration judgments database were already included in the “Document of Guarantee” from 2008, regarding which the Petitioner makes no claim of lack of authority. It was also argued that the Respondent is subject to the Protection of Privacy Law, 5741-1981, by virtue of it being a “ data base manager” as defined by sec. 7 of that law.

 

  1. The Respondent argues that there was no flaw in the decision-making process. The Petitioner was granted the right to make arguments both in writing and orally, given several postponements, and it was agreed to delay the date on which the decision would come into effect. The Respondent claims that an administrative authority is under no duty to accept the arguments raised at a hearing, and thus the lack of a change in its position does not reveal any defect in the hearing process. Additionally, the Respondent’s letter from August 18, 2014 includes detailed reasons for the decision, so there was no defect in regard to the duty to state reasons.

 

  1. On the discretion level, the Respondent notes the harm caused to the privacy of litigating parties as a result of publishing their names on web search engines –  harm that is distinguishable from publishing their names in “closed” legal databases such as Takdin, which are used primarily by jurists and lawyers for professional needs. It was also noted that exposing the names of parties on web search engines creates a “chilling effect” that discourages people from turning to the courts in a manner that harms the right of access to the courts. The Respondent argues that this harm is primarily acute in regard to the labor courts, where employees who approach the courts fear that publishing their names may limit their chances of finding future employment. It was therefore argued that reversing the Respondent’s decision would infringe the right of access to the courts, and not the other way around. In this context, we would note the Petitioner’s response claiming that it is unclear what factual data grounds the Respondent’s arguments, as the number of those making recourse to the courts increases each year. It was emphasized that preventing publication of judgments on web search engines is not equivalent to a “gag order” because the judgments still appear on different internet websites in a manner that balances open justice on one hand and the right to privacy on the other. It was also argued that the Respondent’s decision does not violate the principle of equality, and that the argument was raised for financial motivations alone. As for the violation of freedom of occupation, the Respondent noted that not every administrative decision with implications for a business entity can be considered a violation of freedom of occupation. In this regard, it was argued that to the extent there is a violation of freedom occupation, it is proportionate in light of the alternative violation of the privacy of litigating parties. The Respondent argues that it explored employing less restrictive measures, “however that examination has, at this time, yielded no results.” Finally, it was claimed that although the decision may not be optimal, this does not warrant legal intervention, which is reserved only for decisions that are unreasonable.

 

The Positions of Those Seeking to Join as Amicus Curiae

  1. In this case, two request to be joined as an amicus curiae were submitted. The first request was submitted by the Association for Civil Rights (hereinafter: “ACRI”), and the second by the Digital Rights Movement (hereinafter: “the Movement.”) The two requests objected to granting the petition for the following reasons: ACRI’s request describes how technological development brought about a sharp change in the level of litigating parties’ exposure, though the legal principle remained as it was. Thus, while the right to examine judgments existed in the past, the infringement of privacy prior to the internet – when judgments were available only in printed copies – was very limited in practice (this is referred to as “practical obscurity”). Thus, ACRI argues that the new technological reality requires a shift from the binary approach of “private or public” to an approach of information accessibility. This approach considers not just the publishing of information, but also the impact of publication. For example, ACRI notes the report of the committee established to examine opening the courts to electronic media coverage, which noted the increased exposure of litigating parties as one of the considerations against direct broadcasting of court hearings. ACRI also notes the “aggregation problem” whereby the accumulation of details of information – where each detail in itself raises no significant objection to its publication – creates a real violation of privacy.

 

  1. The Movement argues, that publishing judgments in “closed” databases such as Takdin fully realizes the right to review, while only somewhat infringing privacy rights. On the other hand, publishing judgments in “open” databases such as Takdin Light – where the judgments may be located through web search engines – equally satisfies the right to review but severely violates the right to privacy. As to the claim of a lack of authority, the Movement argues that the Respondent’s authority is established under reg. 5(b) of the Courts and Labor Courts (Examination of Files) Regulations, 5763-2003 (hereinafter: File Review Regulations) which states that “The Courts Administrator may, in a general examination permit, establish any condition or arrangement necessary to balance between the need to examine and the potential harm to litigating parties or to third parties due to the examination…” The Movement maintains that the Petitioner’s argument regarding flaws in the exercise of administrative discretion must be rejected. It claims that permitting indexing on the Takdin Light website severely harms the privacy of litigating parties, and the possibility of removing the document from the website for a fee does not remedy the harm. It was additionally argued that the operation of the Takdin Light website is particularly egregious because the Petitioner takes active steps to make the website appear as one of the first results presented by web search engines. So, for purposes of illustration alone, searching a randomly selected name on Google’s search engine will produce a reference to the Takdin Light website on the first results page, even though there is no judgment that refers to a person by that name. It was argued that the referral to the Takdin Light website is a result of the active steps adopted by the Petitioner that may mislead a person seeing that there are judgments in regard to the name entered, should that person fail to click on the link and discover the mistake. We would note here that the latter argument is not directly related to the present petition, but is raises a serious issue that we will address below.

 

Discussion

  1. In the hearing before us, the Petitioner’s attorney argued that although the Respondent does indeed have the authority to set technical limits for companies granted access to the courts’ judgments database, it is not within its authority to set substantive restrictions – which is the case before us. The importance of web search engines to the general public, which uses them as an almost exclusive source for its legal information, was emphasized. It was further emphasized that we are concerned with a matter of policy that necessitates a proper legislative process. Therefore, it was argued, we should wait for the recommendations of Justice Englard’s committee before making significant changes to the current situation. The Respondent’s attorney recognized that the demand to prevent indexing prevents not just the ability to search for the names of litigants, but also the ability to search “legitimate” legal concepts such as “good-faith breach of contract”, but he claims that there are currently no technological means for partially preventing indexing. The Respondent’s attorney further emphasized that the conclusion of the work of Justice Englard’s committee’s work cannot be expected for some time, and that intermediate steps are required  to prevent the current harm to the privacy of litigants. The Movement’s attorney stated that the state manages many databases, such as the Land Registry, to which unfettered search-engine access would cause a grave infringement of the public’s privacy, despite the fact that, even now, it is possible to obtain information from such databases through specific requests to the relevant bodies. The Movement’s attorney emphasized that the Petitioner’s conduct leads not only to over exposure of litigants, but also leads to misrepresentation by showing that a person’s name appears in a judgment, even when the reality is completely different (see para. 12, above). It was also argued, that the Respondent’s policy does not cause real harm to the Petitioner because even were its access to the Respondent’s database blocked, it could obtain the judgments by copying the documents published on the Respondent’s website or by any other alternative means.

 

Decision

  1. The matter before us raises complex questions regarding the intersection of law and technology, and serves as an important reminder to us – judges – that the judgments we write while aspiring to accomplish justice may, by virtue of their publication, cause injustice to litigating parties (see my opinion in CA 438/14  A. v. Israeli Automobile Insurance Database [1] (hereinafter: the Insurance Database case.) This case again demonstrates, as other cases of this era, that the law lags behind technological progress and the legal problems it poses, it chases them but does not catch up. So it is in regard to the internet and virtual reality, and in regard to intellectual property and more (see: Michal Agmon Gonen, The Internet as a Refuge? Legal Regulation in light of the Potential for Technological Bypassing and the Globalization of the Internet, Law, Society and Culture – Legal Net: Law and Information Technology 433 (2011) (Hebrew); Amal Jabarin, The Function of Law in Organizing the Internet from the Perspective of an Economic Approach to Law,, 7 Kiryat HaMishpat  233 (2008) (Hebrew)). In the introduction to the book Intellectual Property Law: Interdisciplinary Analysis (Miriam Marcowitz-Bitton and Lior Zemer, eds. (2015) (Hebrew)), I had the opportunity to say: “The chase after technology and propagation is not unique to the world of intellectual property. It applies to many areas of law, in particular in regard to the tremendous virtual world even in criminal law, defamation and much more, and the questions raised by each of these.” This case raises a conflict between freedom of information and the public’s right to know (including commercial information) and the right to privacy, which elicits a moral “genetic sympathy”  that, as far as possible, one not be indefinitely haunted by one’s past , but the computer never forgets.

 

  1. In this context, we would note the judgment by the European Court of Justice that compelled Google to remove a link to a story that included details of an offence committed by a person many years prior (Google v. Agencia Espanola de Proteccion de Datos [43]). Some have termed this the “right to be forgotten” (see Yehonatan Klinger, The Right to be Forgotten? Apparently Not in Israel, on the blog Intellect or Insanity (February 2, 2015) http://2jk.org/praxis/?p=5368) (Hebrew)). It should be noted that the “right to be forgotten”, as defined by the European decision, requires that the search engine examine individual requests to remove links, but the decision does not go into detail as to the considerations that must guide decisions regarding such requests. As a result, it is hard to say whether – according to the European Court – there is also a “right to be forgotten” from official, lawfully published case law. So far, it seems that American law has not adopted the “right to be forgotten” (see the Ninth Circuit’s decision in Garcia v. Google Inc. [40], 745-46 (2015)). This comes from a long-standing, principled view of the preeminence of freedom of speech (see Steven Bennet, The “Right to be Forgotten”: Reconciling EU and US Perspectives, 30 Berkeley J of Int’l L. 161, 169 (2012)). In the Israeli context, we would note that a certain aspect of this issue was regulated in the Criminal Register and Rehabilitation Law, 5741-1981, which establishes guidelines for running the criminal register database – including the process of expunging the record ten years after the period of limitation for the conviction has elapsed (sec. 16 of the law). The law’s explanatory notes state that “the basic principle behind the bill is that – with the exception of unusual matters – a person should not be remembered by his wrongdoing for his entire life, and should, instead, be permitted to turn over a new leaf, and that full rehabilitation and reintegration into society should be encouraged.” (and see Nahum Rakover, The Status of an Offender who has Served His Sentence (2007) (Hebrew)).

 

  1. To return to the matter before us, the issue raised is whether the step taken by the Respondent does, indeed, meaningfully and effectively contribute to protecting the right to privacy, and whether this contribution justifies the harm caused to the principle of open justice. The decision in this case will proceed in three stages: first, we will examine whether the Respondent’s decision was made within the scope of its authority. Then we will examine the decision-making process and whether it abided by the rules of natural justice. Finally, we will examine the administrative discretion grounding the decision and its reasonableness.

 

Authority

  1. The principle of administrative legality – which is the foundation for administrative law – instructs that the actions of an administrative agency are limited to the powers granted to it by the legislature (HCJ 1/49 Bejerano v. Police Minister [2] (hereinafter: the Bejerano case); HCJ 1405/14 Professor Slavin v. Deputy Director General of the Ministry of Health [3]). This is in contrast to a private citizen, who is free to do as he pleases as long as there is no law to limit him. In other words, the difference between the private and public entity is the premise as to the lawfulness of their actions. The administration requires specific permission, whereas the private citizen is free in the absence of a specific prohibition – much like: “You may freely eat of every tree of the garden; but of the tree of the knowledge of good and evil you shall not eat” (Genesis 2:16-17). The legislative authorization is no mere technical legal requirement, but rather the administrative body requires it in order to secure the public’s trust in its activity, which is funded by public resources (see Baruch Bracha, Administrative Law, vol. 1, 35 (1986) (Hebrew)). As stated by the learned Prof. Zamir: “The principle as to administrative legality necessarily derives from the very nature of democracy. Democracy grants sovereignty to the people. It is the people who, through laws, grant the government and every other administrative agency all the authority they hold, and they hold only that authority granted to them by law.” (Itzhak Zamir, Administrative Authority, vol. 1, 50 (1996) (Hebrew) (hereinafter: Zamir). Moreover, in plain language free of legal jargon, an administrative agency that exceeds its authority adopts totalitarian characteristics – there is the law and there is reality. However, the administrative agency must not be paralyzed in its operation on the public’s behalf, and we shall return to this. As a general rule, an agency is granted discretion as to whether and how to exercise the authority granted to it, but there are instances in which such discretion is particularly narrow, even to the extent of imposing a duty upon the agency to exercise its authority (LCA 7861/03 State of Israel v. Lower Galilee Local Council [4], para. 16 of the opinion of Deputy President Cheshin; Daphna Barak-Erez, Administrative Law, vol. 1, 216 (2010) (Hebrew) (hereinafter: Barak-Erez)).

 

  1. Authorization for the actions of an administrative body need not be found explicitly in primary legislation. Rather, secondary legislation may also be recognized as a source of authority (Zamir 131.) However, where administrative action infringes basic rights – authority grounded in secondary legislation is insufficient. This is established under the Limitations Clause in sec. 8 of Basic Law: Human Dignity and Liberty: “There shall be no violation of rights under this Basic Law except by a law  …” (emphasis added – E.R.) This provision was developed in the case law to include basic rights enshrined in other statutes (EA 92/03 Mofaz v. Chairman of the Central Elections Committee [5], 811, para. 17 per Justice Mazza (2003)). A similar rule also applies to “primary arrangements” which – due to their importance – must be grounded in primary rather than secondary legislation. In the words of President Barak:

 

A basic rule of public law in Israel provides that where governmental action is enshrined in a regulation or an administrative guideline, then the general policies and basic criteria constituting the basis of the action must be established in legislation, pursuant to which the regulation was enacted or the administrative decision adopted. In more “technical language" – under this basic rule, “primary arrangements” that determine general policy and the guiding principles, must be anchored in a statute (Knesset Legislation), whereas regulations or administrative guidelines must only determine “secondary arrangements”. (HCJ 3267/97 Rubinstein v. Minister of Defense [6], 502, para. 19 of the opinion of President Barak; also see: Gideon Sapir, Primary Arrangements, 32(1) Iyunei Mishpat 5 (2010) (Hebrew)).

 

  1. One of the issues that often lands on a judge’s desk is the level of specificity required in enabling legislation. That is – how explicit must the statute be in terms of the agency’s permitted activity. Recognition of implicit authority – authority that is not written explicitly into the language of the law – stems from common sense and life experience, which teach us that reality is infinitely more complex than the ability of a human legislature to foresee. Strict insistence upon a high degree of specificity may thus lead to paralysis of the public administration and to disruption of normal life. The words of  Prof. Margit Cohn are apt here:

 

No legislative system, not even the most comprehensive one, can provide full responses to any possible situation, particularly in a modern state, whose needs and conditions change rapidly. A lack of regulation may exist even when the system is still in the process of creation and forming. Further, a system may be characterized by refraining from regulation through primary legislation, which is rooted in geranial parliamentary weakness or deliberate failure to address matters of great political sensitivity. When the possibility exists that the law does not regulate particular areas, the outcome must be examined in terms of the executive. One possibility may be avoiding action. However, at the same time there is force to the argument that the government must act even in the absence of legal arrangements and that its power to do so results inherently from its nature and from its role. (Margit Cohen, General Powers of the Executive Branch 8 (2002) (Hebrew)).

 

We would note in this regard the decision by President Beinisch in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [7], where it was noted that the “threshold of specificity” must be determined according to the circumstances of the matter, including the “the nature of the violated right and its underlying rationales, the relative social importance of the right, the magnitude of its violation, its social ramifications, the nature of the offending authority and the context” (p. 82  (para. 12); also see: Barak-Erez, 125). A mirror image of sorts to this holding was established in HCJ 3933/11 Maccabi Health Services v. Minister of Health (para. 35 of Justice Arbel’s opinion) (2014), where it was held that a “threshold of specificity” must be low where it is necessary in order to authorize the administrative agencies to protect basic rights. I will emphasize – as in other cases – common sense. We must often examine whether the circumstances support a strict or a flexible approach, while inferring the legislative intent appropriately. The administrative agency is the public’s servant. Thus, to the extent that recognition of its good-faith exercise of its authority enables it to provide the service, the Court will not bar its actions. If, Heaven forbid, it is clear that irrelevant considerations, arbitrariness, or a lack of good faith taint the agency’s action, the approach would of course be different. An administrative agency is not the master of the individual but rather its servant, as well as the servant of society as a whole, and that must always be borne in mind in striking the balance in the examination of its authority, including when considering principled questions such as protecting one’s privacy and minimizing the harm, as much as possible, within the boundaries of the law.

 

  1. And from the general to the specific. The Courts Administration is constitutionally regulated in Basic Law: The Judiciary and in the Courts Law (Consolidated Version), 1984. Section 24(1) of Basic Law: The Judiciary lists “rules as to the administration of the courts, the making thereof and responsibility for their implementing” among the matters that “shall be prescribed under Law.” Section 82 of the Courts Law states: “(a) The Minister of Justice shall prescribe rules for the administration of the courts and shall appoint, with the consent of the President of the Supreme Court, the Courts Administrator, whether he is a judge or not; (b) the Courts Administrator shall be responsible to the Minister for the execution of the administrative rules” (see: HCJ 4703/14 Sharon v. President of the Supreme Court [9], paras 10-11). Paragraph 11 of that judgment states, inter alia, that “the Administrator… is charged with the administrative operation of the system…” and that he has additional authorities, as listed there. Do such authorities cover our matter as well?

 

  1. As noted, the Respondent’s decision conditions continued access to its database upon barring the indexing of judgments found in the database. The practical meaning of this decision is that the Petitioner is barred from posting the pages of Takdin Light to web search engines and from attracting potential clients by doing so. Preventing posting to web search engines may cause severe harm to the Petitioner’s business, as most of the visitors to its site arrive there through a “Google” search (it claims, as mentioned, that these are 94% of the visitors to Takdin Light, whose activity is responsible for about 20% of the Petitioner’s revenue). It is clear that limiting the Petitioner’s ability to publish its services is a violation of freedom of occupation itself (see HCJ 4000/93 Knebel v. Bar Association [10], para. 9 of President Barak’s opinion). Publication is an essential component in the chain of commercial activity, which of course includes many steps and is not limited solely to the process of sale to end users. Harm to the chain of commercial activity – whether in the planning, production or marketing phases – may amount to a violation of the freedom of occupation. As a side note, I would point out that preventing commercial advertising and publications may, in parallel, also constitute a violation of freedom of speech, as stated by Justice Dorner: “Commercial speech is not a step child to freedom of expression, but is one of its organs” (HCJ 606/93 Kidum Promotions and Publishing Ltd.. v. Broadcasting Authority [11], 10). It is true, that a violation of the freedom of commercial speech is less significant than harm to freedom of political speech (HCJ 5118/95 Meir Simon Ltd.. v.  Second Authority for Television and Radio [12]; HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [13]), but this does not mean that commercial speech may be violated thoughtlessly. Therefore, we have before us a not insignificant violation of the basic rights of a private body by a public body. Such violation requires authorization in primary legislation.

 

  1. As has already been noted, the Respondent does not point to a specific source of authority as the basis of its decision, but rather argues that, in principle, there is no need for authorization in law. This, it is argued, is because the law does not require the publication of judgments on web search engines. For our purposes here, and without setting anything in stone, I am willing to assume that, indeed, the Respondent is not obligated to publish the judgments on web search engines, and that it is possible – from the law’s perspective – to be satisfied with publication by other means. However, the mere fact that the Respondent is under no duty to publish the judgments on search engines does not inherently mean that it is permitted to prevent this by private bodies. The status of the Respondent’s authority to publish judgments – whether it is permissible or obligatory – is irrelevant to the issue of its authority to prevent publication by private bodies. These are two distinct actions – publishing and preventing publishing – each of which seemingly requires statutory authorization. Another interpretation – whereby it is within the authority of an administrative agency to prevent activity that it is not legally obligated to perform itself – does not comport with common sense, and it empties the principle of legality – that an individual is free to do as he pleases in the absence of any other legal provision – of all meaning. We thus find that the Respondent is not exempt from presenting a statutory source authorizing its decision. Thus, as noted, the Respondent’s decision to limit the Petitioner’s access to the judgment database violates its freedom of occupation – and this, without authorization in primary legislation, must not be permitted.

 

  1. The Respondent argues that the Petitioner signed the Document of Guarantee in 2008, which demonstrates that it holds the authority to limit access to the database. With all due respect, that argument is hard to swallow. First, the Document of Guarantee from 2008 is not identical to the current one. The first is substantially limited, and primarily limits publication prohibited by law. That would not appear to be a meaningful limitation, as opposed to the current prohibition against indexing judgments. In other words, it makes sense that conditioning access to the database was done with authority when the requirement was to obey the law, but it not so when the requirement exceeds this. Second, and this is the main point, the Petitioner’s consent to signing a document is irrelevant to the question of authority. The authority requirement is not dispositive, and the administrative agency cannot not exempt itself from it, even with the agreement of the parties. Recall that one of the rationales underlying of the requirement of authority is the people’s control, through its representatives, over the public administration. It is clear that the administration may not free itself from this control through the consent of one individual or another of the general public. In this regard, the words of Prof. Shalev are apt:

Clearly, a contract that exceeds the lawful powers and authorities of the agency, as established by the enabling law, is an unlawful contract that is, therefore, void. A contract may not expand an agency’s authority, grant it authorities, or allow it to act outside of the bounds of its lawful authority. This is the distinction between a public organ (other than the state, which holds unlimited power and authority) and the individual: the authority and capacity of a public agency are restricted, and thus its contracts, as well, require a statutory basis. (Gabriela Shalev, Contracts and Tenders by the Public Authority 49 (1999) (Hebrew); also see: Barak-Erez, vol. 3, 259.))

 

  1. The Movement for Digital Rights wished to come to the Respondent’s aid, and find the source of the authority for its decision in reg. 5(b) of the Examination of Files Regulations. This is the language of the section:

 

(b) The Courts Administrator may, in a general examination permit, establish any condition or arrangement necessary to balance between the need to examine and the potential harm to litigating parties or to third parties due to the examination, including redacting details, limiting the number of examiners, and taking steps to prevent the identification of parties or people. Additionally, the Courts Administrator may refuse to grant a general examination permit, or establish conditions or arrangements for its implementation in view of the required resource allocation.

 

These words are all well and good, but still – this is secondary legislation that cannot serve as a source for violations of fundamental rights. As noted above, administrative decisions that infringe basic rights – and such is the decision before us – must pass muster under the Limitations Clause, whose first element is authorization in primary legislation. Additionally, it is highly doubtful whether the Examination Regulations are relevant to the matter here, because commercial companies that enter into contracts with the Courts Administration – such as the Petitioner – do not do so on the basis of a general examination permit. Rather this is a completely different procedure.

 

  1. Another possibility that was raised was recognizing the Protection of Privacy Law, 5741-1981 as a source for the authority for the Respondent’s decision. According to this explanation, the Respondent is the “data base manager” as defined under sec. 7 of this law. Therefore, according to the Respondent’s arguments, it is obligated to comply with sec. 8(b) of the law: “No person shall use information in a data base that must be registered under this section, except for the purposes for which the data base was set up.” This should be read together with sec. 17 of the law whereby “The owner of a data base, the possessor of a data base and the manager of a data base are each individually responsible for the protection of the information in the data base.” This, it was argued, is the source of  authority for the Respondent’s decision. I am afraid that this interpretation is not problem free. The first problem is of a technical nature, and concerns the question whether the Respondent operates a database for purposes of sec. 7 of the law. If so – as the Petitioner’s attorney has noted – its judgments database is not registered in the Data Base Registry. The second problem – which this is the main one – goes to the matter of the purpose of the Respondent’s database. On its face, and with no party claiming otherwise, the judgments database exists for the practical purpose of realizing the principle of open justice. The Courts Administration collects the judgments, publishes them on its website, and allows commercial websites direct access to them – all for the purposes of benefiting the public, in the sense of “Instruct the wise and they will be wiser still ” (Proverbs 9:9). If so, does indexing judgments deviate from the purpose for which the database was created? In my opinion, the answer is no. Indexing judgments is a “quantum leap” in making the legal material accessible to the general public, and thus serves the purpose for which the database was established form the outset. Still, the “quantum leap” in making judgments accessible creates a parallel increase in the violation the privacy of litigants, with all the related sensitivities, and it is certainly possible that the administrative bodies must consider this and seek solutions (and of course, Justice Englard’s committee will surely do so, as well) – however, the administration must only do all this with permission and authority. This ends our discussion of the source of the authority, and on its face, there is no source for the Respondent’s decision. Although no longer required, we will continue our examination of the decision in terms of the two remaining stages – that of the process for making the decision, and that of the discretion upon which it relied.

 

Process

Having discussed the authority requirement that derives from the principle of legality, we will now address the requirement for administrative due process. Strict adherence to administrative due process is essential, and there is no need to elaborate (see Barak-Erez 262-63). Meeting the due-process requirements protects the values of fairness and equality; improves the quality of the administrative decision; allows the public to influence the decision in a democratic manner; ensures public trust in governance and administration; allows effective review over the activity of the administration; and of no less importance – prevents corruption, the creation of temptations, and a slippery slope in the style of countries and administrations to which we do not wish to resemble. The duty to observe administrative due process includes, inter alia, holding a hearing for parties who may be affected by the decision (HCJ 598/77 Eliyahu Deri v. Parole Committee [14]; LCA 2327/11 A. v. B. [15], para. 22 of Justice Danziger’s opinion), stating the reasons for the decision (HCJ 142/70 Shapira v. Bar Association [16]; Yoav Dotan, The Duty to Give Reasons in Administrative Law, 19 Mechkarei Mishpat (2002) (Hebrew) (hereinafter: Dotan)), and disclosing internal documents that substantiated it (HCJ 5537/91 Efrati v. Ostfeld [39] , 513, para. 21 of Judge Cheshin’s opinion; AAA 4014/11 Eid v. Ministry of Interior [17], para. 28 of Justice Barak-Erez’s opinion).

 

27.       In this context, it would appear that the Petitioner’s arguments as to the procedural process touch on three aspects: the hearing, the reasoning, and the disclosure of internal documents. I will already note that I do not believe the arguments should be accepted. We are not concerned with a “grab” under the cover of darkness, but a serious, lengthy administrative process throughout which the Petitioner was permitted to express its opinion as to the decision, and indeed, several extensions were provided for that purpose (see the email correspondence between the Respondent and the Petitioner of Nov. 18, 2013; Dec. 26, 2013, and July 1, 2014.) The opportunity to be heard was provided both orally and in writing, with the Petitioner furnishing the Respondent with relevant information. Accepting the Petitioner’s argument that the fact that the Respondent did not change its mind during the hearing indicates that the hearing was conducted for appearances’ sake alone would mean imposing a duty on administrative bodies to necessarily change their positions as a result of a hearing. This, of course, is unacceptable, and it is hard to believe that the Petitioner itself holds this view.

 

28.       As for the duty to state reasons, the Respondent noted, in its letter of August 12, 2014, inter alia, that the rationale behind the decision was the desire “to protect the privacy of litigating parties, whose private information was exposed on the internet to any inquiring eyes” and that it “is permissible to put in place reasonable conditions to proportionately balance the principle of open justice and the interest in guarding the privacy of litigants before granting access to servers.” On its face, this sufficiently meets the administrative duty to state reasons for its decisions. Indeed, in a legal sense, in order to fulfill the duty to state reasons, there is no requirement that the reasons be legally grounded. See in this regard, the words of the Prof. Y. Dotan:

           

Even a decision whose reasons are entirely defective is a reasoned decision. The flaw in the decision is a substantive flaw on the merits, but it is not a flaw in the procedural duty to state reasons. When the agency stated its reasons even reasons that are entirely defective – the reasoning “played its part”, and it is now possible to subject the decision to review on the basis of the reasons given. (Dotan, 50).

 

The above is presented to complete the legal picture, but in simple terms, woe to an administration whose reasons are wrong and woe to a public the whose servants employ defective reasons. Simply put – they may not be performing their duties properly.

 

29.       And now to the Respondent’s decision not to disclose to the Petitioner the ITA opinion upon which it based its policy as to the indexing of judgments. As noted above, the representative of ITA refused to send the Petitioner the opinion (see the email from Nov. 21, 2013.) There would appear to be no relevant reason not to disclose the legal opinion, since it does not concern national security, confidential methods or the protection of the privacy of a third party (Barak-Erez 508-509.) And still, and without setting things in stone, it should be noted that it is not impossible that the ITA opinion constitutes “internal consultation” for the purposes of sec. 9(b)(4) of the Freedom of Information Law, 5758-1998, which exempts an authority from providing such information (AAA 9135/03 Council for Higher Education v. Ha’Aretz Newspaper Publishing [18]). It therefore appears that the issue is whether the Respondent met its administrative duty to permit the Petitioner to review documents that informed its decision (see HCJ 7805/00 Aloni v. Jerusalem City Comptroller [19], para. 18 of Justice Procaccia’s opinion). Let us note that the Petitioner continued its long email correspondence with the Respondent without referencing the matter again, in a manner that may be understood as the Petitioner’s abandoning its request to examine the opinion. We would further note that the Respondent did properly give reasons for its decision (see para. 26, above.) As we know, not every flaw in an administrative decision will inherently and necessarily lead to its voidance (CA 4275/94 Stock Exchange v. Management of the Torah Literature Database Ltd. [20], 509 para. 22 of Justice Orr’s opinion; AAA 2339/12 Shohat v. Kfar Sava Local Planning and Construction Committee [21], para 49 of Justice Shoham’s opinion). It would, therefore, appear, without making any determination in the matter, that it would not be appropriate to void the decision because of the Respondent’s refusal to disclose the opinion.

 

The Discretion

30.       So far, we have been concerned with the source of the authority to make the decision, and the way in which it was made. We now open the “black box” and look inside at the content of the decision itself. At the outset, we would note that this Court does not rush to intervene in the discretion of an administrative authority, and particularly not where we are concerned with decisions that are within its professional expertise (HCJ 338/87 Margaliot v. Minister of Justice [22], , 116, para. 6 of Justice Bach’s opinion; HCJ 7510/05 Lotan v. the Minister of Industry, Trade and Labor [23], para. 23 of Justice Joubran’s opinion). Still, we would not be performing our duties properly were we to shut our eyes to administrative decisions that substantially and extremely exceed the scope of reasonableness. The requirement of reasonableness is closely linked to the authority requirement, and both are founded upon the democratic rationale that was reviewed above (see para. 15.) As noted, the administrative agency is limited in its actions to the boundaries defined by the legislature as the representative of the general public. It is easy to see that those boundaries do not comprise decisions that are extraordinarily unreasonable, as this was not the legislative intent. As stated by Justice Barak:

 

The legislature entrusted the balancing of the different interests to Respondent 2, and as long as it employed appropriate considerations and attributed proper weight to them, we will not intervene. But if the considerations of Respondent 2 are flawed by a lack of good faith, arbitrariness, discrimination or unreasonableness – we will not hesitate to intervene. (HCJ 148/79 Sa’ar v. Minister of Interior [24], 178, para. 8 of his opinion).

 

Clearly, balancing conflicting interests is no simple task, and it is often likened to an acrobat’s walking on a tightrope held at either end by the interested parties. Therefore, assuming good faith, only a serious deviation from the scope of reasonableness will give rise to legal intervention in the balance struck by the administrative agency (HCJ 910/86 Ressler v. Minister of Defence [25], 518, para. 7 of President Shamgar’s opinion). In the case before us, the required balance is between the right to privacy of litigants, on one hand, and the principle of open justice and the Petitioner’s freedom of occupation on the other. Note, that we are not required to make categorical determinations as to whether privacy must prevail or whether open justice and freedom of occupation should. Were I to follow my heart, I believe I would have proposed to prefer privacy. But instead, the question before us is whether the benefit to the protection of privacy that results from the Respondent’s concrete decision (which prohibits the indexing of judgments by bodies granted direct access to its judgment database), outweighs the harm caused to the principle of open justice and freedom of occupation arising from the decision (see and compare: CA 8954/11 Doe v. Doe, para. 121 of Justice Sohlberg’s opinion).

 

31.       Let us begin with the right to privacy, which “draws the line between the individual and society. It defines the boundaries within which the individual is left to himself for the development of his own individuality, without the interference of others ” (HCJ 2481/93 Dayan v. Jerusalem District Commander  [27], 470, para. 16 of Deputy President Barak’s opinion). Indeed, one’s privacy is one’s castle. This castle’s walls are increasingly  weakened by the progress of technology, and there are those who believe that privacy is a thing of the past (A. Michael Froomkin, The Death of Privacy, 52 Stan. L. Rev. 1461 (2000); see also Yair Amichai-Hamburger and Oren Paz, Anonymity and Interactivity on the Net: The Right to Privacy as a Multi-Dimensional Concept, in T. Altschuler (ed.), Privacy in an Era of Change 201 (2012) (Hebrew)), and in reality, this is not far from the truth. With the ability to photograph and record on a mobile phone that is accessible to many, and in technologically advanced society, to almost everyone, privacy has drastically been eroded  by “the mighty waves of the sea” (Psalms 93:4). However, this does not mean that the value of protecting privacy is lost to the world. Indeed, the new era brings with it new tools – with both blessings and curses – but I believe this does not necessitate complete abandonment of human dignity and the right to one’s good name. The words of the Prof. Birnhak are apt here: “Technology has a complex relationship with the legal right to privacy, like the relationship between the right and social norms. At times, technology informs the content of the social norm and/or the legal right, and at times the law and/or social norms influence technology. At times the law cooperates with technology, and at times they compete.” (Michael Birnhak, Private Space: The Right to Privacy, Law and Technology 45 (2010) (Hebrew); see also Michael Birnhak, Control and Consent: The Theoretical Basis of the Right to Privacy, 11 Mishpat U’Mimshal 9 (2008) (Hebrew)). The proper relationship with technology is not a binary. Instead we must seek a middle ground that allows us to enjoy the fruits of technology while limiting the harm to individual rights that often follows it. This resembles the tale in the Babylonian Talmud (Hagiga, 15b) about Rabbi Meir who studied under Elisha Ben Abuya – a Tanna who studied and interpreted and was referred to as “The Other” by the Talmud. The Talmud commends Rabbi Meir that “he ate the fruit and threw away the peel.” In other words, Rabbi Meir wisely adopted the positive side of his teacher without accepting the other side. Jewish law considers privacy protections, inter alia, through the concept of “harm through watching” – an injury one causes another by looking into his domain. Commenting on the verse “How fair are your tents, O Jacob, your encampments, O Israel,” (Numbers 24:5), Rashi says instead “How fair are your tents – Because he saw that the entrances to their tents were not directly opposite one another”. Balaam commends the People of Israel for their conduct that protected the right to privacy (Eliyahu Lifshitz, The Right to Privacy in Jewish Law and in State Law, 33 Parashat HaShavua (2011) (Hebrew); see also the Talmudic Encyclopedia, vol. 8 “Hezek Reiya”; Gidon Klogman, On Hezek Re’iya, 5 Iyunei Mishpat 425 (1975-76) (Hebrew); Sharon Aharoni-Goldenberg, Privacy on the Internet through the Prism of Jewish Law, 52 HaPraklit 151 (2013) (Hebrew)). Let us again recall  that the present matter does not requireweighing the right to privacy as a whole, but only the added harm to the privacy of litigating parties that may be caused when the indexing of judgments mentioning their names is permitted to bodies with direct access to the Courts Administration’s judgments database.

 

32.       The principle of open justice is a specific aspect of the concept of transparency in the broad sense, about which I wish to say a few words. The policy of transparency has been reinforced over the last few years through the Freedom of Information Law, 5758-1998. This law’s primary innovation is in the message that public information is public property, rather than the property of the administration, which holds it in trust. The law’s explanatory notes state that: “… the seeker of the information need not specify in the request for information, which shall be submitted in writing, the reason for which the information is sought…”. This approach derives from recognizing that because the information is, in effect, a public asset, there is no significance to the question why the information is necessary to its owner.” (Explanatory Notes to sec. 7 of the Freedom of Information Bill, 5757-1997; also see: Hillel Sommer, The Freedom of Information Law: Law and Reality, 8 HaMishpat 437 (2013) (Hebrew)). A similar, well-known statement can be found in the case law, as early as in HCJ 142/70 Shapira v. Bar Association [16],  331,  where Justice H. Cohn wrote:

           

The claim that in the absence of a legal duty to disclose, one may conceal rather than reveal,  may be made by an individual or a private corporation… but it cannot be made be an authority performing its legal duty. The private domain is not like the public domain, as the former acts in regard to what is its own. If it wishes, it gives and if not, it refuses. Whereas the latter is wholly created in order to serve the general public, and it has nothing of its own: all it has, it holds in trust, and it, itself, it has no rights or duties additional to those, or separate and different from those that derive from that trust, or that were granted to it or imposed upon it by virtue of statutory provisions.

 

Indeed, as noted in the case law and in the law’s explanatory notes, receiving public information is a “property” right that does not require special reasons, but I wish to point out one benefit of opening government databases to the general public. Databases are an asset that may be useful to creative entrepreneurs who may derive great public benefit from the information granted. Take for example, on the public level, the organization “The Public Knowledge Workshop”, which launched internet tools such as “Open City Planning.” (www.opentaba.info) – a project for mapping city development plans in a user-friendly manner, which relies on information from the Israel Lands Authority; or the “Open Journalism” project (www.opa.org.il), which provides access to a very large database of newspapers that were scanned over the years by the National Library, and made it searchable. Such projects, and other similar ones, demonstrate the added value the public brings when the gateways to public information held by administrative authorities are open to it. Of course, granting access to public information is not a process free of challenges and concerns (see Aharon Barak, Freedom of Information and the Court, 3 Kiryat HaMishpat 95, 105 (2003) (Hebrew)), but public officials must also remember its benefits. And now specifically to the principle of open justice: The case law mentions three reasons for protecting this principle (see LCA 3614/97  Dan Avi Yitzhak, Adv. v. Israel News Corporation Ltd.[28],  45, para. 6 of Justice Goldenberg’s opinion (hereinafter: the Avi Yitzhak case); HCJ 5917/97 Association for Civil Rights in Israel v. Minister of Justice [29], para. 18 of President Beinisch’s opinion). First, recognizing that open justice is an integral part of the public’s right to know – a right which naturally derives from the existence of a democratic regime. As put by James Madison, who was among the drafters of the United States Constitution and a President of the United States: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” (Letter by Madison to William Barry – an American statesman – dated August 4, 1822.) Second, the principle of open justice contributes to improving the quality of the legal product by exposing the proceedings to the scrutiny of the general public. The words of Justice D. Levin are apt here (CrimA 334/81 Hagenzer v. State of Israel [30]:

           

That the court adjudicates in public is a leading principle of law. This is a one of the central pillars of both criminal and civil procedure, and one of the most important means intended to ensure a fair and impartial trial. On the basis of this principle, the court’s actions are open to public scrutiny and judgment insofar as conducting the trial with objectivity, judiciously and with discretion. On the other hand, the litigating parties, too, stand before the public, which hears everything, and knowing the facts presented to the court, may – according to the information in its possession – appropriately offer evidence to refute them. Therefore, parties may beware, and perhaps be deterred from presenting uncorroborated or unreliable facts to a presiding judge.

 

Third, the principle of open justice is essential to the existence of public trust in the judicial system, and this in addition to the first two reasons already mentioned, and independent of them. A well-known phrase in The Federalist, states that the judicial branch is the least threatening of all to the political rights enshrined in the Constitution, as it “has no influence over either the sword or the purse”. Put differently, the judiciary does not set the budget and does not head the public administration (The Federalist Papers, No. 78.) Another important element was added to this famous quote by Justice Felix Frankfurter of the Unites States Supreme Court – and it is paramount in our matter. It is that the Court indeed lacks a purse or a sword, but it does have public confidence in its moral sanction (Baker v. Carr [41]). The principle of open justice is not foreign to Jewish law (see Yaron Unger and Yuval Sinai, Public Hearing in Jewish Law, The Center for the Application of Jewish Law, (2014) (Hebrew)). We would recall the words of Justice Haim Cohn in his book The Law (p. 443 (Hebrew)), that the sources of Jewish law effectively enshrine the principle of open justice, without explicitly naming the concept:

 

            The widow who sued her levir went “to the gate to the elders” (Deut. 25:7):  “And Boaz went up to the gate” and purchased all that Elimelech had and took Ruth the Moabite as his wife before  “all the people who were at the gate, and the elders” (Ruth 4:1 and 11). The judges (and officers) were commanded to be present in “all your towns” (Deut. 16:18), and the rebellious son was brought to trial “to the elders of his city at the gate of the place where he lives” (ibid., 21:19). Ezra called his court to convene “in the open square before the house of God” under the open sky (Ezra 10:9), and the Sanhedrin sat in the Chamber of Hewn Stone in the Temple when it convened in its full panel of seventy one, but when it a twenty-three-member panel convened to adjudicate capital cases, it sat at the “entrance to the Temple Mount” or the “entrance to the Temple courtyard” (TB Sanhedrin 98b), which was open to all the people, as the courtyard “was full of Israelites” (Mishna Yoma 1:8).

 

All these sources share an identical trend – holding trials in the most public location, recognizing that not only must Justice be done, but it must also be seen to be done (see: R v. Sussex Justices, ex parte McCarthy [42]).

 

33.       The third value relevant to our matter is freedom of occupation. Freedom of occupation is one of the only basic rights enshrined in a specific Basic Law – Basic Law: Freedom of Occupation. Even before this Basic Law was enacted – on 11 Shevat 5709 [Feb. 10, 1949] – this Court ruled that any person may work in any vocation he chooses (see the Bejerano case [2]). It has been said that freedom of occupation “derives from the autonomy of private will. It is an expression of a person’s self-definition. Through freedom of occupation a person molds his personality and status, and contributes to the social fabric. This is the approach under the values of the State of Israel as a democratic state as well as under its values as a Jewish state. A person’s  work makes him unique and is an expression of God’s image within him (see: The Mishna of Rabbi Eliezer (Enelow edition, New York, 1933), parasha 20, on p. 366)” (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [31], 385, para. 15 of President Barak’s opinion). Indeed, the principle of freedom of occupation is required due to the State of Israel being a Jewish and democratic state. The sources of Jewish law recognized work as a primary, constitutive component of human life. As stated in Avot de-Rabbi Natan: “Love work. How so? This teaches us that a person must love work rather than hate it, for just as the Torah was given to us in a covenant so has work been given us in a covenant (emphasis added – E. R.), as it says “six days you shall labor and do all your work and the seventh day is the Sabbath of the Eternal your God (Exodus 20:9)” (Version A, chap. 11). The value of work also appears in the works of Maimonides, who wrote that “it is preferable to skin animal hides than tell people ‘I am a great sage, I am a Priest –support me.’ Thus our sages commanded. There were great sages who were wood cutters, porters of beams, water carriers for gardens, iron smelters and makers of charcoal who did not ask anything from the public and did not accept what was given to them.” (Maimonides, Mishna Torah, Gifts to the Poor, 10:18.) And also see: Responsa Mishpatei Uziel (Rabbi Ben-Zion Meir Chai Uziel, Israel,  20th Century) vol. 4, chap. 44, according to whom one of the commandments observed through Jewish work is that the employer “finds (for the employee – E. R.) work to strengthen him so that he does not need charity from others and does not ask, of which was said: ‘you shall maintain him.’” (Lev., 25:35). However, similarly to Israeli law (HCJ 5026/04 Design 22 v.  Ministry of Labor and Social Affairs [33], para. 6 of President Barak’s opinion), Jewish law recognizes that freedom of occupation – despite its significance – is not an absolute right. This is particularly so when we are concerned with unfair competition, which is prohibited as “going into the art of his colleague” (see Talmudic Encyclopedia, vol. 23). Responsa Iggerot Moshe (Rabbi Moshe Feinstein, United State, 20th Century), Yoreh De’ah, part 2, chap. 88, describes a case of a butcher who joined a group of butchers under an agreement that he would not compete with them. Eventually, the butcher left the town and opened an abattoir in a nearby town. It was decided that the butcher was prohibited to do so by virtue of his agreement, , which took precedence over freedom of occupation under the circumstances.

 

34.       As noted, balancing values is not an easy task. For that purpose, the Court makes recourse the three tests of proportionality that bring the general concept of reasonableness “down to earth” (see Barak-Erez, vol. 2, 771.) The first test is the rational connection test, which examines the likelihood that the administrative decision will indeed achieve its purpose. The second test is the least restrictive means test, which examines the existence of alternatives that would realize the same purpose, but that infringe individual rights to a lesser degree. Finally, the third test is the proportionality test, which examines the benefit of attaining the purpose against the cost of harm to individual rights. A reasonable administrative decision is one that meets all the tests described. Failure to meet one of these tests means that the decision is not reasonable. Of course, extreme unreasonableness may lead to judicial intervention that would void the decision.

 

35.       The proportionality principle – in its three tests – appears in Jewish law as well. Here are a few brief examples. First, the rational connection test. Responsa Rivash (R. Isaac Ben Sheshet Perfet, Spain and North Africa, 14-15 centuries), chap. 484, discusses the issue of the incarceration of debtors who do not pay their financial debts. Rivash finds that such incarceration is legitimate only where the debtor holds assets and it is likely that the incarceration will persuade him to pay his debts. On the other hand, when we are concerned with a person of no means, incarceration is ineffective and should not be used (see also Maimonides, Mishna Torah, The Laws of Lender and Debtor, 2:1; Menachem Elon, Human Dignity and Liberty in the Methods of Enforcement of Judgments (1964) (Hebrew)). Second, the application of the least restrictive means test can be seen in the rulings of Maimonides in the Mishna Torah, Laws of the Murderer and Protection of Life, chap. 1. Maimonides rules that when a person pursues another in order to kill him –the law concerning a “rodef” – any person in Israel is commanded to stop the pursuer and even kill him if need be (Halacha 6). Maimonides qualifies this in ruling that  the pursuer may only be killed when there is no way to achieve the goal of rescuing the pursued by alternative means that would be less harmful to the pursuer (Halacha 7). In his words:

           

… Since he continues his pursuit, he should be killed. If it is possible to save the pursued by injuring one of the pursuer’s limbs, such as striking him with an arrow, a rock, or a sword, and cutting off his arm or breaking his leg, or blinding his eye, that is what should be done. But if it is impossible to save the other except by killing the pursuer then they must kill him.

 

Third, the proportional means test: the constitutive source for this matter is mentioned in Tractate Avot, chap. 2:1: “And consider the cost of the loss of a commandment against the reward for its fulfillment.” We must balance conflicting considerations, as each may be correct and appropriate in itself. In the words of Rabbi Shlomo HaKohen Rabinowicz (the first Rebbe of the Radomsk Hasidic dynasty, Poland, 19th century) in his book Tiferes Shlomo: “A person should hold a level and scales of justice in his hands in order to calculate the cost of the loss of  a commandment against its reward,  and the reward of a transgression against its loss. For sometimes a person may give so much thought and consideration to the performance of a commandment or to praying with greater holiness and cleanliness, that he may, as a result, not realize that in doing so, he is transgressing the laws of the Torah on the other hand.” In conclusion, here are the words of Ramchal (Rabbi Moshe Chaim Luzzato, Italy-Holland-Israel, 18th century) in his famous book Mesilat Yesharim, chap. 3:

 

I see a need for a man to be meticulous and weigh his ways each and every day, like the great merchants who continuously evaluate all of their business matters in order that they not be ruined. He should set fixed times and hours for this weighing so that it not be haphazard but rather done with great regularity, for it yields great results. Our sages of blessed memory explicitly taught us the need for this accounting, as they said (TB Bava Batra 78b):
“therefore the rulers said, let us enter into an accounting” (Num. 21:27). Therefore, the rulers of their inclinations said come and consider the accounting of the world – the loss of a commandment against its reward, and the benefit of transgression against the loss.

 

36.       Let us now apply these tests to the present case. As noted, we must begin with the question whether the means realize the end. In other words, does the Respondent’s decision not to permit the indexing of judgments by the Petitioner indeed protect the privacy of litigating parties. I am afraid that the answer is not in the affirmative. The Respondent wishes to prevent finding judgments through web search engines by using search terms, but it would appear that this is not the outcome of its decision. The Respondent’s decision limits the indexing of judgments by those granted direct access to its case law database, but it does not effectively limit its indexing by a third party who may post them on its site.

 

37.       In order to understand the issue and its significance, we must address two factual elements. The first is the likelihood of passing on the judgments to a third party. One of the central characteristics of the information age is the speed and ease with which information passes from one person to another at the push of a button. This is true for information protected under copyright (Niva Elkin-Koren, Copyrights and Competition – Subjecting Copies to a Licensing Regime, 2 Din U’Dvarim 485, 541 (2006); see also Niva Elkin-Koren, The New Brokers in the Virtual “Market Square”, 6 Mishpat U’Mimshal 381 (2003)), and all the more so where we are concerned with judgments that are inherently not subject to copyright that would limit their dissemination (see: sec. 6 of the Copyright Law,  5768-2007). We should further bear in mind that the Petitioner is a commercial company that makes its living from disseminating judgments. That is, passing the judgments to a third party is in no doubt, but should assumed to be an unalterable fact. The second element is that of indexing by a third party. It is important to emphasize that indexing is the default and that preventing indexing is an active choice made by the owner of a website. As a result, almost any third party that might publish the judgments on its website – for instance a website of a law firm or a news site – would inherently result in their being found by web search engines. It is superfluous to note that the privacy of a litigating party is violated by the very fact of finding of the judgment – which includes his personal details – through a web search engine, and the identity of the website to which the search engines refers does not negate this infringement. Therefore, it is reasonable to assume that even were the Respondent’s decision to take effect – the search of a litigant’s name on a search engine will still lead to his judgment if it be published by anyone.

 

38.       Nevertheless, it is still possible that the Respondent’s decision would prevent the indexing of some judgments, inasmuch as it is reasonable to assume that not all the judgments published on the Petitioner’s website would be copied and published on the websites of third parties. We would recall that the Petitioner’s website comprises most of the decisions and judgments handed down by the Israeli courts. Those judgments that are not copied are “spared” the indexing process thanks to the Respondent’s decision that prevents the Petitioner from indexing the judgments on its website. Seemingly small consolation, but there is room for doubt here as well. Naturally, the most problematic judgments, in terms of the privacy of the litigants, may be those that create the greatest interest among the general public. Hence, the concern that judgments containing sensitive, personal details about litigants will not remain on the Petitioner’s website like “a stone that none can turn” (TB Avoda Zarah 8b). In any event, a we are not concerned here with “hermetic” sealing, or anything close to that.

 

39.       We therefore find that the Respondent’s decision would not seem to achieve its purpose, or at least, does so partially and insufficiently. Clearly, this point is of considerable importance. Let us continue to the next test – the least restrictive means test. This test, as well, does not shed a positive light on the Respondent’s decision. As noted, the Respondent’s goal – which is basically positive from a moral and human perspective – is to prevent the infringement of the privacy of litigants caused by finding their judgments on web search engines. By doing so, the Respondent draws a “line in the sand” and states that posting on the internet (for example, on the Respondent’s website) in and of itself is proportionate, but this is not the case in regard to finding the judgment through the use of web search engines. Above, we addressed the practical aspects of the distinction between the internet and web search engines and below we shall also address the normative aspect. But now we will consider the question of alternatives.

 

40.       I  believe that there are several alternative means that realize the purpose to a similar degree (if not more so) without violating the Petitioner’s freedom of occupation or the principle of open justice. The words of Justice Orr (the Avi Itzhak case [28], 82, para. 46 of his opinion) are apt:

 

Another aspect which the Court must consider when deciding whether to prohibit or temporarily suspend publication, concerns the existence of other authorities available to the Court that may satisfy the “need” to protect one’s good reputation. The principle is that prohibiting publication must be “a last resort”. We are concerned with a drastic measure that poses serious harm to public hearing. Adopting this measure may largely prevent the effective publicness of hearings. Therefore, the court should seriously consider the availability of less harmful alternatives that may realize the purpose of preventing unnecessary harm to the good reputation of the plaintiff.

 

Indeed, it seems that the proper way to prevent publication of sensitive information on web search engines should not include a prohibition of some form of indexing or another, but rather ensure, prior to publication to the general public, that sensitive information not be included in a judgment. This can be achieved in several ways. The Respondent can conduct refresher training for the administrative and legal staff on issues of privacy in writing judgments; the judgment can be made available to the litigating parties alone, several days prior to publication on the internet, while providing the parties with the opportunity to request the redaction of irrelevant personal details (this is the approach in American law. See Fed. R. Civ. P. 5.2(e); Fed. R. Crim. P. 49.1(e); Fed. R. Bankr. P. 9037(e); also see: Conley, Datta & Sharma, Cyberlaw: Sustaining Privacy and Open Justice, 71 Md. L. Rev. 772, 781-82; see and compare: Australian law Rule 2.29 of the Federal Court Rules 2011, made under the Federal Court of Australia Act 1976; it is not superfluous to note that American judgments can be found through the web engine “Google Scholar”). In this context, I would note that in the United States there are courts that use an algorithm that scans the judgment – before its publication – and searches for sensitive information that may be contained in it, such as social security numbers (see, for example, in the State of Florida “Online Electronic Records Access Application” 27, 2004, which appears on the Florida courts’ website – www.flcourts.org). Additionally, it is possible to write judgments and pleadings in formats that do not allow the for the possibility of leaking unnecessary personal details. This is not something that is humanly unattainable (see Jonathan Klinger, Protection of Privacy in Writing Judgments: The Defect is in the Design, on the blog Intellect or Insanity, https://2jk.org/praxis/?p=5387 (March 29, 2015) (Hebrew)). In the Insurance Database case [1], I had to opportunity to say the following:

            I recall from my days as a judge in the District Court, a long time ago, that I wondered why the names of parties are published in family law cases. Indeed, that was close to two decades ago, when today’s indexed databases and computerization were not yet available, and judgments were, therefore, not in the public domain to the same extent. Today, when all of case law can be accessed by a few easy keystrokes  and minimal effort, the potential harm to those whose health details may be exposed is greater (para. 6).

 

Indeed, things that  are now only imagined, become  tomorrow’s reality. All the steps mentioned above – which are not mutually exclusive – may reduce the infringement of the privacy of litigants without infringing the Petitioner’s freedom of occupation or the principle of open justice.

 

In conjunction with the steps mentioned, there are additional steps that may be promoted on a legislative level. Thus, it is possible to initiate a proposal that would establish that the names of litigants be published by initials alone, as it is done to some extent in other countries (see, for example, in France: Commission Nationale de I’informatique et des libertes (CNIL), Deliberation N. 01-057 of 29 November 2001, and in Belgium – Commission de modernization de l’ordre judicaire, “Rapport consacré à la question de la publication des decisions judiciaries: La plume, le Pelikan et le nuage,” 30 Juin 2014.) It should be noted that a similar proposal was indeed made in Israel, but it did not successfully make its way through the legislative process (The Courts Law (Amendment – Non-Mention of Names in Judgments) Bill, 5768-2007; see also Tomer Moskovitz, Protection of Privacy in Court Publications – Is it Proper to Publish Names in Judgments? 18 Mishpatim 431 (1989) (Hebrew)). We would note that the legislative branch is aware of the harm done to the privacy of litigants as a result of publishing judgments, and is acting to strike a balance between this harm and the principle of open justice. Thus, sec. 10(4)(b) of the Family Courts Law, 5755-1995, states that most family cases be heard behind closed doors, and as a result, they are published without the names of the parties as “A. v. B.” (see: sec. 70 (a) of the law; but see the Courts Law (Amendment – Requirement of Publication of Judgments and Decisions of Family Courts) Bill, 5771-2010; also see: Bryna Bogoch, Ruth Halperin-Kaddari and Eyal Katvan, “The Hidden Text of Law”: The Digital Databases’ Effect on the Creation of the Knowledge Base in Israeli Family Law, 34 Iyunei Mishpat 603 (2011) (Hebrew)). A Similar provision, in regard to juveniles, is found in sec. 54(2) of the Youth (Trial, Punishment and Modes of Treatment) (Amendment no. 14) Law, 5768-2008 (see also the Courts (Amendment – Prohibition of Publication of Names of Minors in Civil Proceedings) Bill, 5768-2009). Another example is amendment no. 77 of the Courts Law which states that “No one shall publish the name or identification number of a party claiming damages for bodily injuries…” From all this it would appear that the Respondent is not operating in a “legislative vacuum” but on an issue that the legislature watches “from the beginning of the year and until the end of the year” (Deut. 11:12), and there may be more to come.

 

41.       And now to the third proportionality test, which examines proportionality stricto sensu. Does the benefit of the decision outweigh its cost? Does the protection provided by the Respondent’s decision to the privacy of litigants justify the harm to open justice and to freedom of occupation? Is the “trouble commensurate with the annoyance” (Esther, 7:4). This test becomes manifestly redundant in light of our earlier holdings that there is no source of lawful authority for the decision (para. 25), it does not appear to realize its purpose (paras. 37-38), and it was adopted despite the availability of less restrictive alternatives (para. 40.) However, I will briefly address this test.

 

42.       Section 68 of the Courts Law states that, as a rule: “A court shall sit in public”. At the same time, the law includes various circumstances in which publication of a judicial proceeding may be prohibited (see LCrimA 1201/12 Kti’i v. State of Israel [34], para. 18 of Justice Hendel’s opinion, which explains the principle of  public hearing, while narrowly construing the exceptions). Indeed, publishing judgments inherently causes conflict between the right to privacy and the principle of public hearing. The law authorizes the judge to determine each case on its merits, in accordance with the circumstances of the matter (see my opinion in LCA 8019/06 Yediot Aharonot Ltd., v. Meirav Levin [35], para. 5). As my collogue President Naor often says – the law derives from the facts. The Respondent’s decision, on the other hand, sweepingly privileges the right to privacy, without allowing for the significant difference between different judgments – criminal and civil, judgments and interim decisions, different instances, and so forth. Furthermore, the “immunity from indexing” provided by the Respondent’s decision – and as noted, there is doubt whether judgments will not find their way to web search engines anyway (paras. 37-38 above) – is not limited to the personal details of litigants, but applies to the entire judgment as a whole. Here we should mention that the Israeli legal system, in many of its principles, is part of the Common Law in which judgments constitute a significant part of the law itself (see sec. 20 of Basic Law: The Judiciary). I would not be exaggerating in saying that in the absence of access to judgments, there is no way of knowing the present state of the law in Israel in its entire scope. In other words, the Petitioner’s decision may limit intrusive searches into the lives of litigants, wherein lies its benefit, but this may also prevent a tenant from knowing how a lack of good faith in performing a contract is currently understood by this Court.

 

43.       We would also note in this context that the Petitioner’s website includes the possibility of searching for judgments using the names of the parties, and the Respondent’s decision does not prohibit this. This means that anyone could – for an appropriate fee – enter a legal database, such as the one appearing on the Petitioner’s site, and search the names of their acquaintances. In other words, to the extent that the Respondent’s decision may indeed “rescue” a certain number of sensitive judgments from indexing, the gains in terms of the privacy of litigants will be limited only in that, in order to find them, it would be necessary to enter – with a click of a button – a legal database and pay a certain fee. I do not, of course, take this lightly, but I believe it is difficult to accept the argument whereby this state of affairs – where a judgment that is accessible and searchable on an internet database – provides practical obscurity, in contrast to the current state where a judgment may be found through web search engines. A similar matter was discussed in the opinion by the Israeli Democracy Institute in regard to the Protection of Privacy Protection Law (Amendment – The Right to Be Forgotten) Bill, 5775-2015. In that opinion, Dr. Shwartz-Altshuler writes that: “The Bill before us actually exacerbates the technological difficulty because it addresses only the removal of results from search engines, without removing the original pages containing the information. Would anyone think of removing a book from a library catalogue without first removing the book itself from the shelf? At the end of the day, a possible outcome of the Bill would be deepening the gap between those who know how to access information that does not appear on web search engines and those who do not and who are dependent upon them” (p. 4 of the opinion.) Therefore, what we see is that the gains for privacy – if any – are small, whereas the costs to open justice, and primarily to freedom of occupation, are great. It is hard to accept that a decision that brings us to this situation should stand, with all due regard for its worthy motives.

 

Conclusion

44.       Should my opinion be accepted, the Respondent’s decision would be voided, such that the Petitioner may continue to have access to the judgments database without committing to block its website to web search engines. There is no doubt in my mind that the Respondent operated out of positive motives and out of desire to take the initiative in light of the significant changes that the internet age brings. However, I am afraid that such decisions require that the legislature decide upon the proper regulation of the matter. The recommendations of Justice Englard’s committee, upon their submission, will surely be of assistance in this task. In the meantime, there may be new technological developments that will allow the matter to be refined further. This decision does not mean that the Respondent must sit idly by and observe the changes brought by time. Indeed, there are many steps open to the Respondent, and some were mentioned explicitly above (para. 40).

 

45.       It should be noted that this decision is not an endorsement of any of the Petitioner’s activity. The pending class action against it will be determined according to the discretion of the presiding court. Additionally, in the course of the hearing, weighty arguments were raised in regard to actions taken by the Petitioner in order that a search for a person’s name on a web search engine will lead to the website it owns, in a manner that creates a misrepresentation that such a person appears in a judgment, even if the reality is completely different (see para. 12 above.) These claims were raised incidentally and have no direct connection to the petition that is the focus of this judgment. Naturally, no in-depth discussion was held regarding them, and of course, no evidentiary proceedings. Without setting anything in stone, and without making factual findings that the Petitioner acts in some manner or another, I will briefly note that this is a problematic practice that is not consistent with the language of the law, and certainly not with its spirit or purpose. This judgment considered the violation of privacy caused to a person when a search of his name leads to a judgment where his name is mentioned. This cannot be equated to the violation of privacy caused to a person when a search of his name on a web search engine leads to a judgment that misleadingly appears to be connected to him. The harm in the latter case is particularly egregious in light of its allegedly deliberate character. On its face, a violation of privacy caused incidentally is less severe than harm caused deliberately and due to the profit motives of a commercial company (see and compare: HCJ 2605/05 Academic Center for Law and Business, The Human Rights Department v. Minister of Finance [36], para. 33 of President Beinisch’s decision). We assume that the Respondent will examine the matter in depth, and to the extent there may be truth to the claim, will work to eliminate the phenomenon, in the sense of “you shall purge the evil from your midst” (Deut. 17:7).

 

  1. I would therefore recommend to my colleagues that we  make the order absolute, such that the Respondent’s decision is voided. Under the circumstances, I would recommend that we not make any order as to costs.

 

                                                           

Justice E. Hayut:

 

I concur in the opinion of my colleague Deputy President E. Rubinstein whereby the order nisi should be made absolute, and the Respondent’s decision be declared void. For the purpose of this conclusion, it is sufficient that the Respondent’s decision of August 18, 2014 was made in the absence of explicit lawful authorization, which is required in light of the gravity of the relevant rights – freedom of occupation, the principle of open justice, and freedom of expression on the one hand, and protection of privacy on the other (as to the relationship between the scope of enabling legislation and the strength of the relevant protected right, also see:  HCJ 4491/13 Academic Center of Law and Business v. Minister of Finance [37]).

 

Balancing the values and the basic rights noted is no simple task, and my colleague the Deputy President discussed this in his illuminating opinion. This balance ought to be designed and regulated by the legislature or according to its explicit authorization. In the absence of such authorization, I concur in the opinion of my colleague that the decision that is the subject of the Petition, made by the Respondent on August 18, 2014, was made without authority.

           

                                                                                   

Justice U. Vogelman:

 

I concur with the outcome reached by my colleague Deputy President E. Rubinstein in his comprehensive opinion, whereby the order nisi must be made absolute, and that the Respondent’s decision in question must be voided, as well as with my colleague’s main reasons as detailed below.

 

We are in the midst of an information revolution that was brought by the internet age. Information that was once accessible only to experts in their field is now accessible to anyone who seeks it, quickly and easily. The law, as usual, lags behind these developments which regularly require new interpretations of old legislation – in the spirit of the times and the technological advances – and different balances that may alter established decisions (see, for instance, my opinion in AAA 3782/12 Tel Aviv District  Commander v. Israeli Internet Association [38]). The judiciary is not an exception, and it, too, must rethink certain issues. Such is the issue before us today, which was raised in light of the Respondent’s demand that the Petitioner (and other legal databases) sign a “Document of Guarantee” whereby it commits to take all necessary steps in order to prevent the indexing of decisions and judgments it receives. The decision to require the Petitioner’s signature on this Document of Guarantee was made – according to the Respondent’s pleadings – in light of the scope and severity of privacy violations suffered by litigants, a violation that the Respondent believes may be reduced by preventing the indexing of judgments on web search engines. This is so because, in the Respondent’s view, the principle of open justice does not require making the information in the judgments accessible to the public specifically through web search engines.

 

The Respondent’s considerations are indeed worthy. But what is their outcome? Reuven, who is a lawyer, searches for Shimon’s name in a legal database – Takdin, for example – to which he has access by virtue of his profession. The search leads him to a judgment where Shimon’s name is mentioned as someone who was a party to a legal proceeding, served as a witness in the proceeding, or played any other relevant part in it. Levi, who is not a lawyer, searches for Shimon’s name on Google. Through Takdin Light, the search leads Levi to that same judgment that Reuven found. The Respondent’s decision seeks to deny Levi the ability to locate the judgment through the web search engine in order to reduce the infringement of Shimon’s privacy. The upshot is that lawyers, jurists, and those with access to legal databases will be able to find what they are looking for, but not the general public. The ability to locate judgments is not eliminated then, but rather only those with access to the various legal databases – access that requires not insignificant funds, as well as research skills that are not necessarily acquired by the general public – may locate them. In my opinion – in light of the nature of the rights at stake, and in light of its significance and broad consequences, such a decision – which requires striking a delicate balance among a variety of relevant considerations that may pull in opposite directions – requires a legislative anchor, which is not present in our matter.

 

This is the case on the level of authority. As to the discretion level – indeed it is possible that, as my colleague put it, the Respondent’s decision would save several judgments from indexing, but this is insufficient. First, as noted, it is doubtful whether the privacy of litigants (as well as others mentioned in various judgments, to their benefit or not) is ensured through the Respondent’s decision, given the option available to third parties to publish the various judgments on their sites. Second, and more importantly, this harm can be reduced through alternatives, a few of which my colleagues presented in his opinion, including, for example, advance delivery of judgments to parties in order that they may request redaction of private and irrelevant details; computerized scanning of judgments designed to locate sensitive information; and various legislative steps (see para. 40 of my colleague’s opinion). All of these are available without at all minimizing the duty to ensure that sensitive information – certainly that which is not material to determining a dispute – is not included in a judgment, even in advance of its publication to the general public, which is a duty imposed primarily upon judges. In view of all this, the Respondent’s decision, despite its clearly good intentions, is flawed, in my view, in terms of discretion as well, as explained by my colleague.

 

As said, I concur in the decision of my colleague that the Respondent’s decision must be voided.

 

                                                           

Decided as stated in the opinion of Deputy President E. Rubinstein.

 

Given this day, 30 Heshvan (November 12, 2015)

 

 

 

 

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