In the Supreme Court	CA 7996/11
Sitting as a Court of Civil Appeals

 

 

Before:	Justice E. Rubinstein Justice Y. Danziger Justice Z. Zylbertal
The Appellants:	1. Safecom Ltd 2. David Zilberberg
v.
The Respondent:	Ofer Raviv
	Appeal against the Haifa District Court's judgment of August 28, 2011 in CF 542-04-09, given by His Honor Judge Dr. A. Zarnakin
Date of session:	Cheshvan 6, 5774 (October 10, 2013)
On behalf of the Appellants:	Adv. Nahum Gabrieli
On behalf of the Respondent:	Adv. Tamir Afori

JUDGMENT

 

Justice Y. Danziger

 

This is an appeal of the judgment of the Haifa District Court (His Honor Judge Dr. A. Zarnakin) of August 28, 2011 in CF 542-09-09, dismissing the Appellants' claim against the Respondent for the infringement of copyright in their technical drawings.

 

Factual Background

 

1.         Appellant 1, Safecom Ltd (hereinafter: "Safecom"), develops and markets products for the electrical backup of cable TV broadcasting systems, and the Appellant 2, David Zilberberg (hereinafter: "Zilberberg") is its manager and one of its shareholders. Zilberberg became acquainted with the Respondent when the latter sought to market Safecom's products to a company for which he worked, and he also connected Zilberberg to an American company, Innovative Solutions 21, Inc. (hereinafter: "the American company"), which led to the marketing of Safecom products in the USA. On June 18, 2002, an agreement was made between Safecom and the American company according to which the American company would be the exclusive distributor of Safecom products (hereinafter: "the Agreement"). The Agreement provided that ownership of all copyright, patents and other intellectual property rights connected with the products, including graphics, sketches and models, that were developed by Safecom would be retained by it. The Respondent had no formal status in the American company, but he was involved in the technical matters associated with marketing Safecom's products in the USA, and, in that context, he also took part in the preparation of technical drawings of Safecom products. In May 2005, the Agreement was terminated by Safecom, and in 2008, it learned of the filing of a patent application in the USA by the Respondent together with the American company's president, which concerned a voltage backup system for cable systems. In view of Safecom's complaint that the drawings underlying the patent application infringed its copyright in the drawings of its products, it filed suit in the District Court. By consent of the Respondent, the court awarded a provisional injunction. An objection filed against the registration of the American patent registration was dismissed.

 

2.         Safecom asserted that the Respondent had copied 14 original drawings that Zilberberg had prepared as part of a presentation for the Safecom products, which was furnished to the Respondent in 2003, when the agreement was still in force. According to it, the drawings that Zilberberg prepared were protected by copyright and owned by it, while the Respondent's drawings were absolutely identical and had been copied "one to one" and, as such, constituted an infringement of its right of reproduction. In order to emphasize the copying, Safecom pleaded that its drawings contained a mistake in the presentation of the switch box, and that mistake had been copied by the Respondent.

 

3.         The Respondent, for his part, asserted that the claim was governed by American law because the alleged infringement had been committed in the USA, and since that law had not been proven, the claim should be dismissed. According to him, under American law the claim would be dismissed because of the applicable American rules of fair use. In regards the very infringement, the Respondent pleaded that since the act was governed by the Copyright Act, 1911 (hereinafter: "the Old Law") it was first necessary to prove that the alleged infringement also constituted an infringement under the Copyright Law, 5768-2007 (hereinafter:  "the New Law"). According to him, under section 21 of the New Law, the copying of a work that is deposited for public inspection constitutes permitted use and no infringement is therefore involved. As regards the alleged copying, the Respondent pleaded that there was no relevant similarity between the Safecom drawings and his drawings, either visual or substantial. According to him, there are approximately 32 elements in the patent application drawings, while in the presentation there are only 19. This is because of the difference between the technology used in order to manufacture Safecom's products and that presented in the patent application. The Respondent further pleaded that the similarity between the drawings lay in their common functionality in a manner that does not afford protection. The Respondent also pleaded that he was party to making the drawings and therefore had a right of ownership in the Safecom drawings, and that the Agreement did not apply to him because he was not an employee of the American company. The Respondent also filed a counterclaim, but since no appeal has been brought in respect of it, we need not refer to it here.

 

The District Court's Judgment

 

4.         The District Court first dismissed the Respondent's claim that the matter is governed by American law. The court held that the Respondent had received the presentation in Israel.  It was therefore reasonable to assume that the act of copying had also been performed in Israel, and it had not been proven otherwise. In any event, the court held that the Respondent did not dispute the court's jurisdiction to try the matter in accordance with domestic law when the provisional injunction application had been considered, and he was therefore estopped from pleading the same. As regards Israeli law, the court held that the Safecom drawings do indeed amount to a protected work, according to both the Old Law and the New Law. The court dismissed the Respondent's claim that the use he had made was permitted use under section 21 of the New Law since the section treats of  the use of works that have already been deposited for public inspection and not use which itself constitutes deposit for public inspection.

 

5.         As regards the alleged copying, the District Court first held that the Respondent was not a joint owner of the rights in Safecom's drawings, because, even if he was not one of the American company's formal officers, he did substantially function as such and the agreement should therefore be applied to him. The court nevertheless dismissed Safecom's claim that the Respondent had admitted copying the drawings. The court emphasized that the Respondent's claim with respect to the difference in the number of elements between Safecom's drawings and the drawings in the patent application had not been rebutted, and a visual similarity had therefore not been established. The court dismissed Safecom's claim with respect to copying the mistake in its drawings because, according to it, no mistake was in fact involved. Finally, the court held that because of the great functionality of the Safecom drawings, some similarity was obliged between drawings that sought to present a similar product, and Safecom's drawings, or a substantial part of them, had therefore not been copied.

 

            Hence, the appeal.

 

The Grounds of Appeal in Brief

 

6.         The Appellants – through their attorney, Adv. Nahum Gabrieli – argue that the District Court erred            when it held that there had been no copying in the instant case. According to them, they did not have to adduce direct evidence of copying the drawings because the law makes it possible to suffice with circumstantial evidence to prove copying. The Appellants assert that the access that the Respondent had to the drawings, which is not in dispute, together with the substantial similarity between their drawings and his, leads to the sole conclusion that there was copying. The Appellants emphasize the identical elements between their drawings and those of the Respondent that do not derive from the functional presentation of the products, like the same twists and turns in the lines that are shown on them. According to them, the Respondent himself admitted that there are many ways to draw the products concerned, and he even showed example drawings of similar systems that were different from the drawings in the instant case. Moreover, in principle it cannot be held that when functional technical drawings are involved, copying cannot necessarily be inferred. The Appellants add that the finding that the similarity between the drawings was not the result of copying is inconsistent with the relationship between the parties, as described above. Finally, the Appellants aver that the court was mistaken when it reviewed the substantial similarity on the basis of the number of elements appearing in each of the drawings, rather than a general impression of the substance of the part copied, which according to them, obliged the conclusion that there had been prohibited copying.

 

The Respondent's Reply in Brief

 

7.         The Respondent – through his attorney, Adv. Tamir Afori – argues that the District Court rightly distinguished between proving a visual similarity and establishing a substantial similarity. According to him, in the instant case there has not been copying, as a matter of fact, because even if it were established that he had access to Safecom's drawings, the court found, as a matter of fact, that there was no visual similarity between the works. According to him, in order to establish such a similarity, the Appellants should have produced an expert opinion insofar as the matter concerns a technical drawing. In any event, the Respondent asserts that there had been no copying of a substantial part that was original to the Appellants, and that the copying of parts of the work that are not original in any event does not amount to copying and to an infringement of any right of the work's owner. According to him, in the instant case works are involved, only parts of which are original, and it is necessary to carefully analyze whether the original parts that were copied constitute a substantial part of the Plaintiff's work. Since, in the instant case, functional works are involved, the respondent argues that only the identical copying of original parts should be regarded as an infringement of copyright. The Respondent emphasizes that after filtering out all the non-original parts of Safecom's drawings, what remains is at most a "copy" of curved lines that do not constitute a substantial part of the work.

 

8.         The Respondent adds that it was inappropriate to deny his rights in Safecom's drawings since he was a joint author of them because of the Agreement between Safecom and the American company to which he was not party, and it should therefore be held that he is a joint owner and joint author of the Safecom drawings. Furthermore, the Respondent asserts that it was inappropriate to hold that the law governing the infringement is Israeli law since the Appellants had not established that the infringement asserted by them was committed in Israel, and that burden rested with them. According to him, his agreeing to the award of a provisional injunction does not attest to his agreeing to conduct the principal case in accordance with Israeli law. Finally, the Respondent argues that even if he is not the owner of the Safecom drawings, he is still their joint author, and the use that he made of them is therefore a permitted use under section 27 of the New Law, which permits the author of an artistic work to make works that constitute a partial copying or derivative of it, even if he is not the owner of the right. Moreover, according to him, the use that he made of the drawings is also protected by virtue of section 20 of the New Law because it was done in legal administrative proceedings or, in the alternative, it was fair use under section 19 of the New Law.

 

9.         In the hearing before us an attempt was made to bring the parties to an overall understanding that would make the need for our ruling unnecessary, but that attempt was unsuccessful.

 

Discussion and Ruling

 

10.       This appeal raises questions at the very heart of copyright law, and that, essentially, address the foundations upon which the protection of works is based, and in particular, the matter of the author's originality; the distinction between idea and expression; and infringement of the right to copy the work. These questions are highlighted with regard to the protection of functional works, and they require elucidation and clarification. Having read the parties' summations and listened to their oral arguments in the hearing before us, I have reached the overall conclusion that the appeal should be allowed and the case should be remanded to the District Court in regard to the matter of relief. I shall also recommend that my colleagues do the same.

 

The Basis of the Protection of Works – Originality

 

11.       The requirement of originality has been recognized by this Court as a threshold for the existence of copyright in a work [for more on the originality requirement, see: Michael Birnhack, “The Requirement of Originality in Copyright Law and Cultural Control,” 2 Alei Mishpat 347, 352-355 (2002) (Hebrew) (hereinafter: "Birnhack")]. The development of the requirement in Israeli case law has been based on the provisions of the Old Law, despite the fact that the Hebrew version did not mention "originality", whereas the binding English version provides, in section 1, that copyright will be granted in respect of:

 

            "every original literary, dramatic, musical and artistic work…" [emphasis added  – YD].

 

            The requirement of originality was anchored in the New Law in section 4(a), which provides:

 

            "Copyright shall subsist in the following works:

            (1) original works that are literary works, artistic works, dramatic works or musical works, fixed in any form"  [emphasis added – YD].

 

12.       This Court reviewed the case law relating to the elements underlying the requirement of originality at length in CA 8485/08 FA Premier League Ltd v.  Israel Sports Betting Regulation Council (March 14, 2010) (hereinafter:  the Premier League case) [http://versa.cardozo.yu.edu/opinions/fa-premier-league-v-israel-sports-b.... It was held that the requirement of originality is analyzed on the basis of two main criteria – investment and creativity.

 

            In the scope of the investment criterion, the author must have invested certain labor in the work in order to gain the right to its rewards, similar to the theoretical basis for recognizing the right to "corporeal" property [see: the Premier League case, para. 26; CA 513/89 Interlego A/S v. Exin-Lines Bros SA, IsrSC 48(4) 133, 164 (1994) (hereinafter referred to as the Interlego case)]. This criterion is based on the labor approach and the theory of natural rights based on the teachings of the philosopher John Locke as theoretical justification for the grant of property rights generally and copyright in particular [for a broader discussion, see: Birnhack, pp. 373-375; Guy Pesach, “The Theoretical Basis for the Recognition of Copyright,” 31 Mishpatim 359, 386-391 (2001) (Hebrew) (hereinafter: "Pesach"); Justin Hughes, “The Philosophy of Intellectual Property,” 77 GEORGETOWN L.J. 287, 297-98, 302-10 (1988); Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” 102 YALE L.J. 1533 (1992)].

 

            In the context of the creativity criterion, which is based on the rationale according to which the purpose of copyright law is to enrich the creative world and the range of expressions available to the public, the nature of the investment, independently of its quantity, must be considered in order to show that it contributes to that purpose [see: Premier League, para. 27; Interlego, pp. 164-165]. This approach is based on a more social concept of copyright but, nevertheless, also on a utilitarian-economic approach, according to which a balance should be made between the cost – the incentive to be given to the author in the form of the monopoly granted to him in respect of the use and control of his work -- and the benefit of safeguarding the public domain for future work [see: Pesach, pp. 361-374; William M. Landes & Richard A. Posner, “An Economic Analysis of Copyright Law,” 18 J. LEGAL STUD. 325 (1989)].

 

            I would add that, in my opinion, in the scope of the originality requirement three subordinate elements should be identified, and in addition to the investment criterion and the creativity criterion, the origin criterion should be analyzed. By this I mean a requirement that the work should originate in the author and that it should not be based on another work – or in the words of my colleague Justice E. Rubinstein "original, meaning independent" [see: CA 3422/03 Krone AG v. Inbar Reinforced Plastic, IsrSC59(4) 365, 378 (2005); CA 360/83 Strosky Ltd. v. Whitman Ice Cream Ltd., IsrSC 40(3) 340, 346 (1985) (hereinafter: the Strosky case). For further on originality as origin, see Birnhack, p. 355-372].

 

13.       This Court has also considered the question of the nature and quantity of the originality requirement's elements that suffice to realize it. In respect of the investment criterion, it has been held that all that needs to be proven is a minimal investment of some human resource [see: Interlego, p. 173; Premier League, para. 34]. On the other hand, a quantitative definition of the requisite creativity is somewhat more complex and it appears that this Court has not yet fashioned a single formula for its realization.  Nevertheless, the definition of the requisite creativity for the protection of a work has been delineated in case law by a process of elimination. Thus, it has been held that the creativity criterion does not impose a particularly high threshold for the author, and that slight and even worthless creativity might sometimes suffice [see: Interlego, p. 173; CA 23/81 Hirschco v. Orbach, IsrSC 42(3) 749, 759 (1988) (hereinafter: the Hirschco case); CA 2687/92 Geva v. Walt Disney Co., IsrSC 48(1) 251, 257 (1993) (hereinafter: the Geva case)]. It has also been held that the work need not be novel in comparison with existing works in the same sphere [see Strosky, p. 257; Geva, p. 257].

 

14.       Because of the lack of any cohesive definition of the creativity requirement, and because of the absence of any controversy with regard to the definition of the investment necessary for the protection of a work, the possibility has been raised that a substantial investment in a work can compensate for a lack of creativity in such a way as will meet the requirement of originality and establish protection for the work. However, that approach was rejected by this Court long ago in Interlego, in which the approach of American law was adopted, as expressed in the American Supreme Court's judgement in Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 US 340 (1991) (hereinafter: the Feist case), according to which mere investment is not sufficient for the copyright protection of a work [see: Interlego, p. 165, 169; Premier League, paras. 36-38].

 

15.       To sum up the foregoing, the case law laid down by this Court is that for the grant of copyright protection in respect of a work, it must be established that an original work is involved, three subsidiary elements being analyzed – the origin criterion, the investment criterion and the creativity criterion – the existence of only one element being insufficient for the purpose of establishing originality.

 

The Protected Part of the Work – The Idea/Expression Dichotomy

 

16.       Before I move on to discuss the originality required for the protection of functional works, I wish to consider another basic rule concerning the copyright protection of works – the distinction between idea and expression. A basic principle of copyright law is that the idea that underlies a work will not be protected by the right, and that the protection is afforded only to the way in which it is expressed. This rule is embodied in section 7B of the Copyright Ordinance, which governs the instant case, and was subsequently anchored in section 5 of the New Law, which provides:

 

            "Copyright in a work as provided in section 4 shall not extend to any of the following, but copyright shall apply to the way in which they are expressed:

 

            (1)       an idea …"

 

17.       This Court has consistently emphasized the said distinction in its case law [see, for example: CA 10242/08 Mutzafi v. Kabali, (October 10, 2012), para. 24 (hereinafter:  the Mutzafi case); CA 2173/94 Tele Event Ltd. v. Golden Channels & Co., IsrSC 55(5) 529, 544 (2001) (hereinafter: as the Tele Event case); Strosky, p. 346; CA 139/89 Harpaz v. Achituv IsrSC 44(4) 16, 19 (1990)]. This distinction is based on the concept that the grant of protection to mere ideas would frustrate one of the major purposes of copyright law – the encouragement of creation and leaving sufficient "raw material" in the public domain [see: Tony Greenman, Copyright, vol. I, 75 (second ed., 2008) (hereinafter:  "Greenman")]. The distinction between idea and expression, in the context of textbooks for example, has sometimes led to the conclusion that the author's right has been infringed because of the fact that the expression of the method of study created by him (which constitutes a mere idea) has been copied [see, for example: Hirschco], but also sometimes to the opposite conclusion that all that has been "copied" is the actual idea that underlies the work [see, for example: Mutzafi].

 

18.       The rule that an idea is not protected and only the way in which it is expressed is protected overlaps the rule that facts per se are not protected. This rule finds expression when compilation works are involved, and it has been held that such works will only be protected insofar as the choice and arrangement of the raw materials – which constitute unprotected facts – meet the requirement of originality (see: Interlego; CA 2790/93 Eisenman v. Kimron, IsrSC 54(3) 817 (2000); Tele Event]. This requirement is  expressed in section 4(b) of the New Law, which provides:

 

            "… originality of a compilation means the originality of the selection and arrangement of the works or of the data embodied therein".       

 

            However, in view of the rising status of the creativity requirement and the determination that investment does not suffice to prove originality, it has been held that, in certain cases, a "compilation work" will not be sufficiently original and will therefore not gain protection [see: Premier League, paras. 51-54]

 

19.       We can see that the distinction between idea and expression is of major importance in copyright law, and that, in certain senses, it also overlaps the requirement of originality that underlies the copyright protection of works. The overlap between these two basic principles of copyright law is particularly relevant when functional works are involved, as will be explained below.

 

The Merger Doctrine and Functional Works

 

20.       Having regard to the distinction between idea and expression, the concept has developed whereby, insofar as a particular idea can be expressed in only a single way, then protection will not be given to a work that constitutes that expression. This concept has been called the "merger doctrine". The merger doctrine has received little reference in the case law of this Court [see: Geva, p. 262; CA 2682/11 Petach Tikva Municipality v. Zissu (May 20, 2013), para. 49]. The doctrine originates in American law, and its application in modern case law is based on the judgement in Baker v. Selden, 101 US 99 (1880) (hereinafter: the Baker case). In the Baker case, consideration was given to whether a book that presents a new method of bookkeeping and also includes blank forms that make it possible to implement the method, grants its author an exclusive right to use the actual method. The American Supreme Court laid down a rule in that case for use in analyzing works, the only or main use of which is utilitarian. The Court in that case held that:

 

            "… where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art and given therewith to the public" [ibid., p. 103].

 

            The federal courts in the USA have relied on this statement in order to develop the merger doctrine. The best-known judgment, which most broadens that doctrine, is Morrisey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. Mass. 1967) (hereinafter: the Morrisey case). In that case, it was held that when a single idea has a very narrow range of possible expressions, a work that constitutes one of the expressions is not to be granted copyright protection (ibid., pp. 678-679)]. Numerous federal courts have supported the rule in Morrisey, but dissenting opinions have also been aired [see: Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.18[C] (2002) (hereinafter: Nimmer)].

 

21.       Baker and its development in case law have been strongly criticized [see: Nimmer, § 2.18[C]. Firstly, it has been argued that in Baker itself, the American Supreme Court restricted the rule cited above solely to the right to use the method or idea given expression in the work, and that the use of the expression in order to present the method will constitute an infringement of the copyright, or in the words of the American Supreme Court:

 

            " The use by another of the same methods of statement, whether in works or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of copyright" [ibid., p. 103].

 

            Secondly, it has been argued that the distinction between copying the expression for the purpose of using the method (or idea), compared with copying the expression for the purpose of showing the method (or idea) is artificial. It has therefore been proposed to determine that copying for the purpose of using the idea will also constitute copyright infringement, and that all that should be permitted is the use of the method or idea for functional needs [see: Nimmer, § 2.18[C]-[D]]. This proposal is based on the understanding that copyright does not preclude reliance upon a work that constitutes a certain expression of an idea and presents a particular method in order to turn the method into a product. Such protection is only granted by patent law. For the purpose of demonstration, let us assume that a company manufactures a particular electrical product that is not per se protected by copyright. For the purpose of manufacture, the company produces drawings that constitute a protected work (as detailed at length below). In view of the proposition presented above, a competing company will not be able to copy the drawings, but assuming that the product itself is not protected by a patent or design, the competing company will be able to manufacture the product on the basis of the drawings without infringing copyright. I would immediately say that I accept this latter distinction, and in my opinion, it should be adopted.

 

22.       Despite the criticism that has been presented, it does appear that when there is a complete merger between the idea and its expression, and when there is only one way to express the idea, a consensus does exist that the work that gives expression to that idea will not gain copyright protection [see: Greenman, p. 83; Nimmer § 2.18[C][2]; Paul Goldstein, Copyright § 2.3.2 1 (1989)]. However, opinions are divided on the question when there are just a few possibilities of expressing the idea. According to one approach, as held in Morrisey, in such a case, copyright protection should also not be granted, but according to another approach, the work will be granted copyright, but it will only be infringed when there is absolute or almost absolute similarity between the works [see: Greenman, p. 83; Geva, p. 262]. This controversy is relevant, because, in the instant case, it is asserted by the Respondent that Safecom should have proven exact copying because its drawings constitute an idea that can only be expressed in limited ways (para. 12 of the Respondent's summations). In order to decide this controversy, in my opinion, reference may be made to the fundamental rule of copyright law presented above – the requirement of originality.

 

23.       Issues concerning the merger doctrine arise in many cases in respect of certain types of work. Thus, in the modern era, the question arises in respect of computer programs [see: Greenman, p. 81]. In addition, it has been asserted that the courts in the USA are expanding the application of the doctrine to visual works [for more on this, see: Michael D. Murray, “Copyright, Originality and the End of the Scenes a  Faire and Merger Doctrines for Visual Works,” 58 BAYLOR L. REV. 779 (2006)]. Another area in which the work, by its nature, raises issues concerning the merger doctrine is that of functional works. The instant case involves a functional work that is also a visual work. In fact, the merger doctrine can be well understood not only on the basis of the distinction between idea and expression, or to be more accurate, the merger between them, but also on the basis of the originality requirement, in particular insofar as it concerns functional works.

 

24.       In Interlego, President M. Shamgar considered at length the difficulties that the requirement of originality raises as regards functional works. One of President Shamgar's most important findings in this respect was that, in principle, a work is not to be denied copyright protection merely because it is functional [ibid., p. 160]. Nevertheless, President Shamgar held that in respect of these works the Old Law applies a filter in addition to the requirement of originality, which he called "the artistry criterion" [ibid., p. 173]. I would immediately explain that President Shamgar based the reference to that criterion on section 35(1) of the Old Law, which defines artistic work as works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art, and engravings and photographs [emphasis added – YD]. In the instant case, Safecom's drawings meet the exact definition of a "drawing" as an artistic work in accordance with section 35(1) of the Old Law, and on the face of it, the artistry criterion therefore does not apply to them directly. However, in my opinion, inspiration may be drawn from that criterion in order to interpret the application of the merger doctrine to Safecom's drawings, and to analyze their originality as a functional work.

 

25.       In Interlego, the difficulty that functional works pose for the requirement of originality was described in a way that very much brings to mind the principles of the merger doctrine. In President Shamgar's words:

 

            "When the form is dictated by the function, namely when the function limits the possible forms in which the product can be designed, then there is no justification for granting copyright to the form that is a product of functional-artistic judgement, since the protection that is given protects the function, not the author's original choice of the specific form. This is a circumstance in which the product's form is determined because of its functional task" (ibid., p. 177) (emphasis original – YD).

 

In fact, the words "function" and "form" can be substituted for the words "idea" and "expression". In order to resolve this problem, President Shamgar proposed six possible criteria for identifying the "artistry" of a work: the choice criterion; the author's intention criterion; the public acceptance criterion; the public's willingness to pay criterion; the minimal aesthetic standard criterion; and the art for art's sake criterion (ibid., p. 179). After a detailed discussion, President Shamgar proposed the "choice criterion" as the test appropriate to the examination of whether or not a work's expression derives solely from its functionality. He defined the criterion as follows:

 

            "The choice criterion: one of the characteristics of art is that it reflects the ability to express an idea in a variety of ways. As far as we are concerned here, this is a very broad criterion since it will be fulfilled whenever the creator of the functional product has the ability to choose between several options (ibid., p. 179).

 

            And following:

 

                        "It appears that in view of the purposes of copyright as indicated, and in light of the principles for the solution as formulated, the choice criterion should be regarded as a proper one in the context of examining the final product. That is to say, as long as the form obtained is one of several alternatives. The alternatives should be effective. An effective alternative is one that not only performs the functional task of the product but also meets the limited options of form existing in respect of future works deriving from the connection between function and form. There should be alternatives which, in addition to the functional task, meet the restriction of form that derives from the product's functional task or in other words, there should be several alternatives that all meet the restrictions of form that derive from the functional task" (ibid., p. 181).

 

26.       Applying the choice criterion can be of help in determining the proper protection of work regarding which it is asserted that its great functionality limits the ways for expressing the idea it represents. According to the choice criterion, the function or purpose for which the work is intended should be sought and an examination made as to whether the form of presenting that purpose – the expression – is accompanied by the author's choice from among several options that could achieve the same purpose. The application of this criterion might certainly lead to different conclusions with regard to different elements of the work. One can think of a functional work, some of the elements of which constitute essential expression of the purpose for which it has been created and therefore do not require the author to choose from alternatives when creating them, while at the same time, other elements are not dictated by its purpose, and it is clear that the author had a large range of possible choices with respect to the mode of expression. In view of this, one can again enquire into the controversy existing with regard to the relevance of the merger doctrine. As aforesaid, in my opinion when there is a solitary option for the expression of a particular idea, it is inappropriate to grant protection to that solitary mode of expression. However, when there are several possible expressions of a particular idea, even if they are very few, then in my opinion, having regard to the choice criterion, the author does have a choice among those possible expressions, and it is therefore inappropriate to deny copyright protection to the expression chosen. Nevertheless, I am willing to accept the approach that in such cases, when the number of options is very limited, then in order to prove copyright infringement, it will be necessary to apply the copying criteria strictly, and require that the work that is alleged to be an "infringing work" be almost absolutely the same as the protected work [see: Geva, p. 262; Strosky, p. 357; Greenman,  p. 83].

 

Copying a Functional Work

 

27.       The question of the criteria for copying in copyright law is an elusive one. Nevertheless, in the early 1970s, this Court laid down standards for the test in CA 559/69 Almagor v. Godik, IsrSC 24(1) 825 (1970) (hereinafter:  the Almagor case). The standards that were laid down in Almagor are still in use and were recently summed up by Justice Y. Amit in Mutzafi as follows:

 

            "(–)     It has to be proven that the defendant copied real and substantial parts of the plaintiff's work, the quality rather than the quantity being decisive.

            (–)       Copying can be inferred when the defendant had access to the plaintiff's work and the similarity between the works is of such an extent that it is unreasonable to suppose that it is the hand of chance.

            (–)       The accumulation of points of similarity is of importance. The more there are, the greater the concern that copying is involved.

            (–)       The question whether the similarity between the two works is sufficient to determine that copying of a real and substantial part is involved is one of fact and degree. The answer to the question should be given not on the basis of a mechanical comparison of a number of words or lines that are similar in the particular works, but in accordance with the judge's impression of the works as a whole" (ibid., para. 26).

 

28. Do these standards change when the protected work is a functional one? In my opinion, that question should be answered in the negative. As I have described above, functional works raise various difficulties at the stage of analyzing the requisite originality for the purpose of recognizing them as copyrighted works. However, once a functional work has passed the originality requirement stage and the choice criterion, it is a protected work in all respects, and substantial parts of it may not be copied. In this respect, even if only some of the elements that make up the functional work have passed the "choice filter", that does not affect their being work protected against copying.

          The only consequence of a work being functional concerns the standard for the analysis of copying when the protected elements constitute an idea that can only be expressed in a limited number of ways.. In such a case, a higher threshold will be necessary to establish copying, and almost absolute similarity between the protected elements and the allegedly copied elements will be required in order to establish that substantial similarity.

 

 

Were Safecom's Drawings Copied?

 

29.       Having considered the elements necessary to establish the protection of a work and prove its protection when the emphasis is on functional works, I shall now analyze whether, in the instant circumstances, Safecom's drawings amount to protected works, and whether the use that the Respondent made of them amounted to copying in infringement of the copyright.

 

30.       Firstly, it should be noted that drawings do generally meet the definition of an artistic work under section 35(1) of the Old Law, and, in any event, the Respondent does not assert that Safecom's drawings do not fall within the scope of the works to which protection is granted. Consequently, an analysis has to be made of whether the drawings meet the requirement of originality and, in such event, because they are functional works, whether they also meet the choice criterion. It is not without reason that it is said that a picture is worth a thousand words, and I shall therefore first present one of the parties' drawings as they appear in the comparative table that the Appellants filed (Exhibit 1 of their exhibits).

 

*  On the left – the Safecom drawing; on the right – the respondent's drawing

 

            The Safecom drawings portray an electrical product whose purpose is to provide electrical backup when there is a malfunction. The drawings show an illustration/photograph of the product with boxes at its sides in which there is text that expresses some electrical function, each of the drawings showing – on the product and between it and the boxes – lines and arrows that describe the electrical function that the drawing seeks to describe by visual expression. I would first state that I accept the Respondent's argument that the boxes, per se, like the text within them, do not amount to protected works. I also accept his argument that his drawings show a photograph of a product that is different from Safecom's, and that it is therefore not a copy. Nevertheless, that does not suffice as regards the question of the drawings' originality and the question of copying.

 

31.       It should first be noted that even if each of the elements of the Safecom drawings does not, per se, amount to an original work, that does not negate the possibility that the combination of the elements into a single visual work does amount to a compilation that affords protection to the way in which the elements are arranged, as opposed to the protection of each element individually [see: Greenman, pp. 119-124]. Nevertheless, even without finding that the Safecom drawings amount to an original compilation, in my opinion it can be found that they do constitute a sufficiently original artistic work.

 

32.       From looking at Safecom's drawings there appears to be no doubt that their purpose is to demonstrate the electrical process and the functions performed by the product that it manufactures. For the purpose of that demonstration, there is no doubt that it is necessary to use predefined expressions, such as the text that describes common electrical functions and such as showing the actual product to which the text relates. Together with that, Safecom's drawings also include lines and arrows that demonstrate the flow process described in the drawing. From looking at the drawings, it appears that this demonstration, which has a functional task, can be expressed in a large number of ways that can achieve the purpose, while Safecom chose a particular means of expression according to which the lines and arrows would be of a certain length and certain thickness, taking a winding course appropriate to the way in which it chose to position the product and the text boxes on the drawing. It is my opinion that Safecom's said choice affords it copyright protection in respect to the particular visual element that seeks to "correspond" with those elements that do not amount to a protected work.

 

33.       Having found that some of the elements of Safecom's drawings do amount to copyrightable artistic work, it remains to determine whether the Respondent's drawings constitute a reproduction of its drawings. I stated above that when a functional work is involved, insofar as there is a limited number of ways in which to express the underlying idea, it will be necessary to show that the work that is allegedly an infringement is almost completely the same as the protected elements in the functional work. I am prepared to assume, for the purpose of the discussion, that whether Safecom's drawings in whole constitute a protected compilation, or whether some of the elements are protected separately as an artistic work, the number of ways to give expression to a demonstration of the product's electrical process is limited. Nevertheless, even working on that assumption, from a comparison between Safecom's drawings and the respondent's drawings it appears that as regards the drawings marked Fig. 2 to Fig. 13, and Fig. 15 and Fig. 16 (Exhibit 1 of the Appellants' exhibits), the Respondent did make an identical (or at least almost identical) copy of the protected elements of the Safecom drawings in the form of the lines that describe the flow process.

 

34.       The Respondent asserts in this regard that filtering out the photograph of the product that was not copied and the elements that are not protected in the form of the boxes and the text on them, "at most what are left are… certain curved lines that describe the connections between the parts of the system. Curved lines in a drawing are not a 'substantial part' of the work. Real de minimus is involved" (para. 14 of the Respondent's summations). I cannot accept that argument. The fact that certain elements of the work are not copyrighted, whether because they are unprotected works, mere ideas or a complete merger between idea and expression, leaves those elements in the public domain and thereby permits their free use by anyone so desirous. However, when other elements of the work are copyrighted, it cannot be said that the fact that other elements of the work are not protected makes copying them insubstantial. Such a finding would negate the very protection of those elements, and that cannot be accepted. In my opinion, specifically when substantial elements of the work do not gain copyright protection and remain in the public domain, then copying all those protected elements will attest to the copying of a substantial part of the work, a fortiori when there is absolute, or almost absolute, similarity [on the substantiveness of the reproduction having regard to the amount of the copying, see Mutzafi, para. 91). This is especially so since there is no dispute that the Respondent did have full access to Safecom's drawings. It should be borne in mind that the Respondent could have made use of those unprotected elements of Safecom's drawings and added different visual descriptions to them that demonstrate the functionality of the drawings, and he could also have arranged the elements of the drawing differently, which would have achieved the functional purpose as well. Since the Respondent made exact use of Safecom's protected visual resources, he infringed its copyright in those elements.  Justice's Netanyahu's statement in Strosky is apt in this regard:

 

            "A general inverse relationship equation may be appropriate inasmuch as the less originality and intellectual effort in the work, the more exact the copying that is needed for its copyright infringement. According to this equation, it can be said that the originality and effort in the sign are modest, while the copy is almost exact. That suffices for infringement" (ibid., p. 357).

 

Permitted Uses

 

35.       Having found that the Respondent did infringe Safecom's copyright in its drawings, it remains to discuss the Respondent's arguments that his actions and the drawings that he made constitute permitted use according to the New Law and therefore do not amount to infringement. The Respondent bases his arguments on section 78(c) of the New Law, according to which an act that does not constitute an infringement of copyright in accordance with that Law will not constitute an infringement of copyright under the Old Law, despite its application in the circumstances. In view of that argument, it should first be determined whether the use of the work, in accordance with the uses that are defined in chapter four of the New Law as "permitted uses", constitutes copyright infringement. In my opinion, the answer to that is in the negative. In CA 5097/11 Telran Communications (1986) Ltd v. Charlton Ltd. (September 2, 2013) (hereinafter referred to as "Telran"), my colleague Justice Z. Zylbertal expressed the opinion that use in accordance with the uses defined in chapter four of the New Law cannot amount to a contravention of that law (ibid., paras. 28-30). That opinion is based both on the wording of the Law and on the perception that there are certain uses that, according to the purposes underlying copyright, amount to a right of the user and not merely a defense against contravention of the Law [for further, see Niva Elkin-Koren, “Users' Rights,” in Michael Birnhack & Guy Pesach, eds., Copyright (2009) 327 (Hebrew)]. I accept this position both as regards the finding that permitted use, as defined in chapter four of the New Law, does not constitute a contravention of the law, and as regards the finding that permitted use in fact constitutes a right that is granted to the user to make certain types of use of a work. I am conscious of the fact that this position is contrary to the holding of Deputy President E. Rivlin in CA 9183/09 Football Association Premier League Ltd. v. Anonymous (May 13, 2012) (hereinafter: the Anonymous case), para. 18 of his opinion, and in view of the existing disagreement, the time may have come for an extended bench to address this issue.

 

36.       Having found that permitted use does not amount to a contravention of the New Law, consideration should be given to the types of permitted use that are asserted by the Respondent in the instant case.

 

            Firstly, the argument Respondent raises avers that his use of Safecom's drawings is permitted use under section 20 of the New Law, which permits the use of a work in legal administrative proceedings to the extent justified having regard to the purpose of the use. I cannot accept that argument. I am prepared to assume for the purpose of the discussion that using the work for the purpose of presenting it to the registrar of patents in a particular country does constitute use in legal administrative proceedings, despite the fact that such a finding is not free of difficulties. However, the main element of this permitted use is the extent of the use, having regard to its purpose. In the instant case, the purpose of using Safecom's drawings and presenting them to the American Registrar of Patents in the patent registration application was the registration of a patent in respect of a product that competes with the one that Safecom markets. My opinion is that such use by a direct competitor, using the copyrighted work for the purpose of direct competition with the owner of the work, cannot amount to permitted use under section 20 of the New Law.

 

37.       Secondly, the respondent raises an argument that the use that he made of Safecom's drawings amounts to fair use, as defined in section 19 of the New Law. Section 19(a) of the New Law comprises an open list of types of use of protected works that will be permitted and fair. Section 19 (b) of the New Law enumerates four non-exclusive factors that are to be considered in order to determine whether a particular use amounts to fair use, including:

 

            "(1) the purpose and nature of the use;

            (2) the nature of the work of which use is made;

            (3) the extent of the use, qualitatively and quantitatively, in relation to the work as a whole;

            (4) the effect of the use on the value of the work and its potential market".

 

            This Court has held that "these are not essential or cumulative factors but a non-exhaustive list of parameters that might indicate the fairness of a particular use that is made of a protected work" [Anonymous, para. 19 of the opinion of Deputy President Rivlin].

 

            The four subordinate criteria listed in section 19(b) of the New Law are based on the subordinate criteria that have been laid down in the American Copyright Act [see: 17 USC § 107]. Empirical research that has been conducted attests that although the fourth subordinate criterion – the effect on the potential market – is most often mentioned as the decisive factor regarding the fairness of use, the first subordinate criterion – the purpose and nature of the use – does in fact have the most marked effect on the decision, the most influential factors being the commerciality and transformativeness of the use [see: Barton Beebe, “An Empirical Study of US Copyright Fair Use Opinions,” 1978-2005, 156 U. PENN L. REV., 549 (2008); Neil Weinstock Netanel, “Making Sense of Fair Use,” 15 LEWIS & CLARK L. REV. 715 (2011)]. It appears that these factors were also the most influential in this Court's ruling in Anonymous [ibid., para. 20].

 

            In the instant case, it appears that the use that the Respondent made of Safecom's drawings did not meet the standard of fair use. Thus, in the scope of the first subordinate criterion, it is clear that the Respondent's use was commercial because its whole purpose was to bring about the registration of a patent in respect of his product that competes with Safecom's product. Moreover, on analyzing the question of transformative use, it does not appear that the Respondent's use of the Safecom drawings led to the creation of a new expression, different from the original expression embodied in them. As regards the third subordinate criterion – the extent of the use – I have already found above that the Respondent made an exact, or almost exact, copy of Safecom's drawings, and the extent of the use is therefore full. Finally, having regard to the fourth subordinate criterion, it is clear that since the product marketed by the respondent directly competes with Safecom's product, there is no doubt that the use affects the potential market for Safecom's drawings.

 

            Incidentally, I would mention that I cannot accept the Respondent's argument that the American Patent Office has expressed its opinion that the use of a protected work for the purpose of a patent application amounts to fair use. From studying the opinion (which was annexed as Appendix J to the Respondent's volume of supporting documents), it appears that the American Patent Office means that the use of protected works that the Office itself makes in its relationship with those filing patent applications amounts to fair use [see: United States Patent and Trademark Office, USPTO Position on Fair Use of Copies of NPL Made in Patient Examination (January 19, 2012)].

 

38.       Thirdly, the Respondent contends that the use that he made of Safecom's drawings is permitted in accordance with section 27 of the New Law. Section 27 of the New Law provides:

 

            "Making a new artistic work which comprises a partial copying of an earlier work, or a derivative work from an earlier work, as well as any use of the said new work, are permitted to the author of the said earlier artistic work even where said author is not the owner of the copyright in the earlier artistic work, provided the new work does not repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

            In order to fall within the scope of the section, the Respondent must show that he was at least a joint author of the Safecom drawings. The District Court found that the Respondent had waived his rights in the drawings in favor of Safecom in the scope of the Agreement. The Respondent argues in this connection that even if he had waived his rights in the drawings, as regards the New Law he is still the first joint author of them. In my opinion, there is no need to rule on this issue because even if the respondent is a joint author of Safecom's drawings, section 27 of the New Law does not work in his favor in this case because the use that he made of Safecom's drawings amounts to an absolute, or almost absolute, copy of them. It cannot, therefore, be said that "partial copying" of Safecom's drawings, or a work deriving from them, is involved, and it can easily be found that the Respondent's drawings "repeat  the  essence  of  the  earlier  work  or  constitute  an  imitation thereof".

 

39.       Before concluding, I shall briefly consider the Respondent's argument concerning the law governing this case. According to the Respondent, copyright law is naturally territorial, as is the application of the Old Law. Since Safecom's drawings were copied in the USA, the Respondent asserts that the law governing the case is American law, which was not proven by the Appellants, and the appeal should therefore be dismissed. The District Court considered the Respondent's said argument and held that the drawings were not only copied in the context of filing the patent, but that the Respondent had received the presentation containing Safecom's drawings in Israel and copied them on the computer at his home in Israel. Consequently, the District Court held that Israeli law could be applied to the case. Those findings of the District Court are findings of fact, in which I have not found it appropriate to intervene at the stage of appeal. I would merely state that even were it appropriate to find that this case is governed by American law, that would not necessarily lead to the dismissal of the appeal in the absence of proof of the foreign law. This is particularly so when a sphere is involved that is regulated by numerous international conventions, which lead to relatively great conformity among the different state laws [see, for example: CA 169/94 Werner v. Amorim, IsrSC 50(3) 119, 124 (1996); CA 1227/97 Red Rock Quarry and Stone Works Ltd. v. Ibrahim IsrSC 53(3) 247, 259 (1999); CA 7687/04 Sasson v. Sasson (February 16, 2005), para. 10].

 

40.       In conclusion, I would recommend to my colleagues that we find that certain elements of Safecom's drawings amount to protected work, that 13 of the Respondent's drawings amount to an absolute, or almost absolute, copy of Safecom's drawings, and that the use that the Respondent made of the drawings does not amount to permitted use. I would also recommend to my colleagues that we remand the case to the District Court for ruling on the appropriate relief in respect of those infringements, and that the Respondent pay the Appellants' costs in the amount of NIS 40,000.

 

 

 

Justice Z. Zylbertal

 

            I concur.

 

 

 

Justice E. Rubinstein

 

A.        I concur in the illuminating opinion of my colleague, Justice Danziger.

 

B.        My colleague gave thorough consideration to a broad picture of copyright law, with regard to originality as a condition for the protection of a work, the protection of the way in which an idea is expressed, as opposed to the idea itself, and the criteria concerning works of a functional character, which is a complex matter in itself.

 

C.        I would like to add another criterion to all these – the common sense criterion, which might sound too broad because it can be said that common sense should guide us in every case, and on the other hand it is not necessarily the same for everyone in individual matters. However, by saying "common sense" in the instant case, I mean the accumulation of all the overall facts before the court.  When a work is involved, appearance or the sight of the eyes ("better is the sight of the eyes than the wandering of the desire", Ecclesiastes 6:9) is also acknowledged to be a significant parameter in intellectual property law (and see: CA 3422/03 Krone v. Inbar, IsrSC 59(4) 365, in respect of drawings as well. See also, inter alia, CA 7125/98 Mipromal v. Kalil, IsrSC 57(3) 702, 710 et seq.). Incidentally, the expression "the criterion of common sense" (in a slightly different sense) can be found in case law. See the statement by then Justice Grunis in ALA 5454/02 Taam Teva v. Ambrosia, IsrSC 57(2) 438, 453 (2005) citing this criterion per the learned commentator Seligson (Trademarks and Similar Law, (5733), 80-81 (Hebrew)) as regards the comparison of a conceptual message. And in the instant case, in preparing the file, when we – the bench – inspected the drawings involved, in our eyes there was a great similarity that was immediately conspicuous. Consequently, as I see it, the result that we have reached was required not only by common sense but also by the sight of our own eyes.

 

D.        Intellectual property law does, indeed, in many cases involve subtle nuances in respect of which it is frequently difficult to separate the wheat from the chaff, and much has been written about the difficulties of litigation in this sphere (see: D. Freiman, Patents (second printing, 2008) 7); but in my opinion, the case before us is not one of the difficult ones and anyone looking at the drawings that my colleague presented in his opinion (para. 30) needs no arcane language and can take them at face value, almost like the well-known definition by US Supreme Court Justice Potter Stewart concerning pornography, who said that it is perhaps difficult to define but "I know it when I see it".

 

E.         As aforesaid, I concur with my colleague's review, together with his cataloguing and arrangement of the matter.

 

F.         Before concluding, I would mention that Jewish law, especially in its modern embodiment, but even long ago, has considered the matter of intellectual property rights; see my opinion in CA 9191/03 V&S Spirt Aktiebolag v. Absolute Shoes, IsrSC 58(6) 869, 888-892, which also discusses (at p. 890, para. 18(3)) the Jewish law foundations of enforcement in intellectual property matters, and I would here emphasize the approaches of Jewish law that concern a another’s craftsmanship, trespass and theft, and more; in Krone, supra (at p. 379), I also considered the matter of a graphic pattern (or drawings) as a cause of action in Jewish law, and also see my opinion in ALA 7774/09 Weinberg v. Weisshof (2012) paras. 9 to 12 and the authorities cited there.

 

 

 

            Decided as stated in the opinion of Justice Y. Danziger.

 

Given this 15th day of Kislev 5774 (November 18, 2013)

 

 

 

Justice

Justice

Justice

 

 

 

 

 

            

 

At the Supreme Court sitting as the Court for Civil Appeals

 

C.A. 8954/11

                       

Before:                                                            The Hon. Deputy Chief Justice M. Naor

The Hon. Justice S. Joubran

The Hon. Justice N. Sohlberg

 

The Appellant:                                    John Doe

                                               

V e r s u s

 

The Respondent:                                 1. Jane Doe

The formal Respondent:                     2. Jane Doe

 

An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, dated October 11, 2011, by Justice Gila Knafi-Steinitz

 

 

On behalf of the Appellant:                Adv. Ephraim Abramson, Adv. Yifat Aran

 

On behalf of the Respondents:           Adv. Amir Fischer

 

 

Judgment

 

Justice Noam Sohlberg:

"All human beings have three lives: public, private, and secret".

(-Gabriel Garcia Marques-)

Table of Contents

The Parties and the Main Facts...................................................................................... 3

The Parties' Main Arguments in the District Court........................................................ 4

Abstract of the District Court Judgment....................................................................... 6

The Main Arguments of the Appellant in the Appeal.................................................... 9

The Main Arguments of the Respondent in the Appeal.............................................. 12

The Normative Framework.......................................................................................... 15

Freedom of Expression and Artistic Freedom............................................................. 16

The Autobiographical Composition............................................................................. 18

The Right to Privacy.................................................................................................... 21

The Right to Privacy – Scope...................................................................................... 23

The Justifications for the Right to Privacy.................................................................. 24

The Intrinsic Justification............................................................................................. 24

Instrumental Justifications........................................................................................... 25

The Right to Privacy and Intimate Relationships........................................................ 29

English Law................................................................................................................. 31

The European Court of Human Rights........................................................................ 35

Continental Law.......................................................................................................... 36

U.S. Law...................................................................................................................... 38

Interim Summary – Foreign Law................................................................................. 40

The Normative Balance between the Rights................................................................ 40

Proportionality in the Narrow Sense – a Balance of Profit and Loss.......................... 41

Freedom of Speech and the Right to Privacy.............................................................. 43

From the General to the Particular – the Right to Privacy and Freedom of Speech... 48

Degree of Fictionalization............................................................................................ 49

The Degree of Invasion of Privacy.............................................................................. 52

Protection of the Trust Relations between Couples..................................................... 52

Freedom of Speech...................................................................................................... 53

Concern of Literary Work being Shelved.................................................................... 54

Copyright and Defamation.......................................................................................... 56

Consent of the Respondent......................................................................................... 56

Conclusion................................................................................................................... 57

Prologue

1. An appeal on the judgment of the Jerusalem District Court in C.C. 3213/09, (Justice Gila Knafi-Steinitz) which granted the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him. In addition, the Appellant was charged to pay damages to the Respondent in the amount of ILS 200,000 for her non-pecuniary damages.
2. The core issue at the center of the discussion is the question of the proper balance between the right to freedom of expression and artistic freedom on the one hand, and the right to privacy and a good reputation on the other.

The Parties and the Main Facts

3. The Appellant – a married man and father of children, who lived with his family in Jerusalem, is the author of the novel contemplated in this suit (hereinafter: the "Novel").
4. The Respondent was employed in a cinema in Jerusalem during 2001, was at that time a student in an art institute, and was living with her partner in the vicinity of the Appellant's neighborhood in Jerusalem. The details of her life were the Appellant's inspiration in writing the Novel; the Formal Respondent – the publisher – published the Novel.
5. In 2001, the Appellant met the Respondent at her workplace in the cinema. With time, the connection between the two deepened, and turned from an "acquaintance" to a close and intimate relationship, which lasted some five years – first in secrecy, then disclosed to the people close to them, and eventually published in the Novel. Following the exposure of the romantic relationship between the two, the Appellant divorced his wife and the Respondent separated from her partner.
6. In the midst of the romantic relationship, the Respondent was diligently preparing her graduation project, as part of her last year of studies, which mainly focused on a relationship developing between a man and a woman.
7. At the end of 2004, the Appellant began a work of his own, a first novel focusing on the "drama of breaking up a family" (as stated on the back of the book). The Novel describes an emerging intimate relationship between a man of the Appellant's age, who is discouraged by a non-fulfilling marriage, and a young student, starting with their first meeting at a cinema. The male-protagonist's occupation is identical to that of the Appellant; the cinema is the one in which the Respondent was employed. In the Novel, at the beginning of their acquaintance, the male-protagonist is a married man, father of children and living with his family in Jerusalem, whereas the female-protagonist, a single young-adult woman, rents an apartment in Jerusalem, close to the home of the male-protagonist, where she lives with her partner. Upon the completion of the exhausting work of writing, the Novel was published. The publication of the Novel was accompanied by a marketing campaign in the media, including an interview in the weekend supplement of a widely distributed newspaper, a TV interview and articles in newspapers and various websites.
8. Immediately upon the publication of the Novel, the Respondent contacted the Appellant and the Publisher and demanded to immediately stop the marketing and distribution of the Novel, to recall all copies already distributed, and to compensate her for her damages. According to her, the book is an accurate autobiographical description of the author's life, and it includes descriptions pertaining to the intimate aspect of the relationship between them, while severely violating her privacy and committing libel and slander: "in writing and publishing the book you breached the law, fatally violated her privacy pursuant to the provisions of Sections 2(8), 2(9), 2(10) of the Protection of Privacy Law… and published libel against her under Sections 1 and 2 of the Defamation (Prohibition) Law…" (letter of the Respondent's attorney, Adv. Amir Fishcer). The Respondent further claimed that the unlawful use of her personal letters for the purpose of writing the Novel establishes an independent cause of action under the Copyright Law.
9. Upon receipt of the said demand, the publisher notified the Respondent, in an unusual step, and without admitting to her claims, that it decided to temporarily cease the distribution of the Novel until the dispute is resolved. To that end, the publisher contacted the retail chains and bookstores and asked to retrieve the copies of the Novel that were yet unsold.
10. After some communication between the parties, and as the Respondent's said demands were not entirely fulfilled, the suit contemplated herein was filed to the Jerusalem District Court. On June 9, 2009, the Jerusalem District Court (Justice H. Ben Ami) granted the Petitioner's motion for a preliminary injunction prohibiting the distribution of the Novel written by the Appellant (M.C.M. 7649/09). A motion for permission to appeal, which was filed with this Court (L.C.A. 5395/09), was denied by Justice (his former title) A. Grunis, in his decision dated August 27, 2009.

The Parties' Main Arguments in the District Court

11. The Respondent's position is that the publication of the Novel and the its distribution severely infringe on her right to privacy, in violation of the Protection of Privacy Law, and further blemish her reputation in violation of the Defamation (Prohibition) Law. According to her, other than changing the names of the protagonists of the Novel, there is complete congruence between herself in her real life and the literary character of the female-protagonist of the Novel. For example, according to the Respondent, the book describes in an autobiographical manner and in "frightening accuracy" the Appellant's life during the time he had an intimate relationship with the Respondent; the female-protagonist's character includes many identifying details that are unique to the Respondent and enable members of her family and acquaintances to easily identify her; in addition, the author did not withhold  the internal and external realms of the Respondent's life, including her body, feelings, weaknesses, her most private secrets, her sexual activity and preferences, as well as her most intimate relationships. Moreover, according to the Respondent, the Appellant in his book, made breaching use of both her letters and her art from the graduation project, without obtaining the required consent and in violation of the provisions of the Copyright Law. With respect to the Publisher's responsibility, the Respondent argued that it knew, or at least should have known, that this is obviously an autobiographical book, and is therefore also liable for the offense and tort. With respect to the damage, the Respondent mentioned the distress caused to her, and the concomitant injury to her future personal and professional life.
12. On the other hand, the Appellant argued that the Novel he wrote is merely a fictional composition, that the real-life persons were nothing but an inspiration, and that the Novel most certainly is not a complete autobiographical and true description of the author's life. Two opinions were submitted on behalf of the Appellant by two experts of the highest caliber in the field of literature: Prof. Ariel Hirschfeld and Prof. Hannan Hever. Prof. Hirschfeld summarized his opinion in several conclusions, inter alia, that "Reading the Novel… it is absolutely clear that it has no pretense to reflect or record actual reality" (para. 32); "Accepting the claim would be a far-reaching precedent, whereby the mere possibility to identify any realistic model for a fictional character, even in the private context known to just a few, will be a violation of the law. In such case, the judicial authority undertakes the re-definition of literature and its boundaries, thus damaging the deep and essential principle of fiction, that which enables the freedom to create and interpret the human reality in its entire complexity" (para. 34). Prof. Hever summarized his opinion with the conclusion that "reviewing the aggregate weight of the existing hints… unequivocally indicates that the book deals with a creation of fiction, rather than real-life reality, and that no 'autobiographical contract' is entered into by the author and his readers. Such conclusion rebuts any claim which is based on such argument" (para. 3.3).
13. The Appellant argues that the source of the identification of the Respondent is the "confirmation bias" – a phenomenon whereby people adhere to similarities and ignore the existence of differences. The Appellant further argued that the Respondent gave her consent and even her blessing to the writing of the Novel. The Respondent read parts of the draft of the book and knew it would be about the affair she had with the Appellant, and therefore will naturally also include intimate details. The Appellant argued that attention should be paid to the fact that the Respondent refrained from reading the book prior to its publication, and thus waived the option to control its content. Moreover, the Respondent's acts amount to "false representation" to the Appellant that she will not deny the publication. According to him, once the Respondent's consented to the publication of the Novel, her argument regarding violation of her right to privacy is precluded. With respect to the Respondent's argument regarding her right to good reputation, the Appellant relies on the testimony of the author Mira Magen, whereby the personality of the female-protagonist, as it is portrayed in the Novel, is endearing in the eyes of the readers. According to him, this is not a humiliating expression, thus, it does not constitute defamation. The Appellant further noted that the Respondent submitted no evidence of the possibility to identify her, and therefore no "actual" injury to privacy had been proved. The Appellant further claimed that insofar as any damage had been caused to the Respondent's privacy, it should be balanced against his freedom of expression and artistic freedom. In such a balance, the freedom of expression prevails. In response to the Respondent's argument with respect to copyrights of her letters, the Appellant argued that their use in his book falls within "fair use". Alternatively, he argued that the Respondent gave her consent for such use. To conclude, the Appellant noted that taking the book off the shelves is inconceivable, for that is a serious and severe injury to freedom of expression and artistic freedom.
14. The Publisher repeated in its arguments some of the arguments raised by the Appellant, and emphasized that he presented the Novel to it as a fiction, hence it did not know, nor could it know, that the Novel is actually based on real events. The Publisher further noted that the Appellant stated, within the agreement therewith, that "his book is a fiction novel… the characters mentioned in it are fragments of the author’s imagination. Any resemblance to reality or to real people is completely coincidental and resulting from the author's imagination or the acquaintances he had in the course of his life" (Section 1.1a of the agreement). The Publisher further noted its fair conduct, from the moment it learned of the Respondent's claims, upon which it put halt to the sales of the book and had it removed from the shelves.

Abstract of the District Court Judgment

15. The District Court first reviewed the main argument of the experts on behalf of the Appellant, Messrs. Hirschfeld and Hever that "the mere publication of a composition as a work of fiction, which has the common literary characteristics of a work of fiction, creates an inseparable border between the content of the work and reality, and bars the review of the content of that composition as a documentary work which records reality" (para. 30 of the Judgment). In addition, the Court addressed the experts' main concern whereby "adopting the alternative position, whereby a work of literature, even when declared to be fictional, might be perceived as a violation of privacy, may lead to a slippery slope…" (ibid). In the second stage, the District Court noted that in this case there is "a dilemma, pertaining to the tension between two important values, which are perceived as two basic rights in a free and democratic society: artistic freedom on the one hand, and the right to privacy on the other" (para. 31 of the Judgment). At the third stage, the District Court ruled that "neither one of these rights can be granted absolute protection, and it is therefore also not possible to adopt  the sweeping position that mere publication as part of a work of literature is sufficient to bar consideration of the violation of privacy argument on its merits. The same position was adopted by the legislator" (para. 36 of the Judgment). The District Court thus denied, de facto, the argument that a fictional novel in itself – by virtue of its literary definition – grants its author absolute protection against any claim of violation of privacy. At the same time, the District Court reserved and stated that "the argument of violation of privacy based on fictional literature will not be easily accepted. The author's argument of fiction… is a weighty argument which has a substantial contribution to the prevention of the violation of privacy", however, it is not enough to exclude it altogether (para. 37 of the Judgment). "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (ibid).
16. Thereafter, the District Court reviewed the contemplated literary work itself, i.e. – is this a fictional novel, or "documentary literature disguised as a fictional novel" (para. 37 of the Judgment). Following a meticulous review, the District Court ruled that the "character of the female-protagonist in the book includes many unique identification details that identify the Plaintiff therewith in a definite and unequivocal way" (para. 40 of the Judgment). Such unique details include her "…physical appearance, informative details regarding her age, unique occupation, place of studies, work place and residence, details pertaining to her unique art work, identifying details of the defendant, her partner, and events that took place in reality in the presence of third parties…" (ibid). The inclusion of the said identifying details led the District Court to the conclusion that "the Respondent's family members, associates and acquaintances, will unquestionably identify the Respondent as the female-protagonist of this book" (para. 41 of the Judgment). The District Court further stated, in response to the Appellant's argument, that in order to prove the identification, there is no need to present witnesses who will expressly identify the literary character with the Respondent. Such identification transpires, according to the District Court, from the book itself.
17. Having reviewed and considered the parties' arguments with respect to the violation of privacy, the District Court concluded that the violation of the Respondent's privacy derives from the aggregate weight of two main components:
    
    1. The numerous identifying details that indicate that the Respondent, who is not a public figure, is unmistakably the female-protagonist of the Novel written by the Appellant;
    2. The number of issues exposed in the book that pertain to the core of the individual's privacy, and their scope and nature.

The aggregate weight of these two factors, according to the District Court, "rebuts the author's fiction argument " (para. 51 of the Judgment), and turns the Novel to a documentary book disguised as a fictional composition. In other words, the author "abused the characteristics of fictional literature, in order to document his relationship with the Plaintiff, while severely damaging her privacy" (ibid). The District Court emphasized that the violation of the Respondent's privacy could have easily been avoided "insofar as her character… would have been camouflaged and made indistinct by disguising details". However, the District Court noted that the Appellant's insistence on including in his book many details that identify the Respondent as the female-protagonist of his book, and his choice to stay as close to reality as possible work against him: "instead of 'distancing' the work from the Plaintiff, and detaching it from the milestones of the reality of his relationship… the Defendant chose to firmly anchor it in a specific reality, known and recognized not only to himself and the Plaintiff, but also to numerous third parties" (para. 52 of the Judgment).

18. The District Court denied the Appellant's argument that the Respondent ostensibly gave her consent to the publication of the Novel. Relying on an "array of evidence" it was held that the Appellant failed to prove that the Respondent indeed gave her "informed consent, whether expressly or implicitly, for publications that contain violation of her privacy" (para. 59 of the Judgment). First, the book, in its full version, was never submitted for the Respondent's perusal – neither in its original nor in its final version – and her consent for its publication was not requested (ibid); second, the Appellant admitted that he initially considered publishing the book under a pseudonym, and contemplated this option up until the book’s publication (para. 60 of the Judgment); third, the Respondent's objection, prior to the book’s publication, to mentioning the name of the institute where she studied (para. 61 of the Judgment); fourth, the Appellant's response to the Respondent's arguments following the book’s publication (para. 62 of the Judgment); fifth, the "charged" and impressive testimony of the Respondent in the District Court (para. 63 of the Judgment). In conclusion, the District Court ruled that "not only did the Plaintiff not give informed consent to the violation of her privacy, but she clarified to the Defendant, prior to the publication, that she forbids him to include any detail that might lead to her identification in the book." (para. 65 of the Judgment).
19. Regarding the right to a reputation, the District Court ruled that the question whether the Novel refers to the Respondent in a "humiliating, offensive or demeaning" manner shall be decided according to an objective standard of the reasonable person. The mere fact that the Respondent is described in the Novel as "someone who carried an intimate relationship with a married man, and did that in parallel to the relationship with her partner at the time… someone who will trample anything in her way to reach her goals, and someone who is using people 'as if they were objects'" (para. 68 of the Judgment) in itself constitutes defamation.
20. The District Court denied the Appellant's arguments that various defenses are available to him under the Protection of Privacy Law and the Defamation (Prohibition) Law. Regarding the defense of public interest under Section 18(3) of the Protection of Privacy Law, the District Court held that "the Law… does not extend absolute protection to any literary composition… the Law only extends protection to the infringement of privacy when there is 'a public interest which justifies the infringement under the circumstances'" (para. 72 of the Judgment). The Appellant failed to establish any reason to justify the satisfaction of his freedom of expression in such an offensive manner, and it could have easily been satisfied by publishing the Appellant's artistic work without infringing the Respondent's privacy. Regarding the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law and Section 15(6) of the Defamation (Prohibition) Law, the District Court held that the violation was not in good faith. The Appellant acted to publish the Novel in its full version, and paid no attention to the Respondent's demands to refrain from publishing it.
21. With respect to the Respondent's arguments regarding violation of copyright of her letters, the District Court held that the proof of the infringement of privacy and the remedies resulting therefrom render the need to decide on the issue of copyright to the letters redundant. The District Court noted that even if the Appellant's acts do constitute a violation of the Respondent's copyright "this does not justify compensation beyond the compensation that was determined" (para. 80 of the Judgment).
22. Regarding the liability of the Publisher, it was ruled that its acts do not establish legal liability under Section 31 of the Protection of Privacy Law and Section 12 of the Defamation (Prohibition) Law. "In the matter herein, Defendant 2 did not have to know, on the basis of the facts available to it at the time of the book’s publication… that the book includes a violation of privacy with respect to the Plaintiff" (end of para. 85 of the Judgment).
23. Therefore, the District Court prohibited the publication of the book and its distribution. The monetary compensation to the Respondent, for her non-pecuniary damages, was set at ILS 200,000, after the District Court had considered the scope of the violation of the Respondent's privacy, nature of the publication, number of books distributed, pain and suffering caused to the Respondent, the Appellant's behavior, insisting on the publication of the Novel even after her requests and demands to refrain therefrom, and additional considerations.

The Main Arguments of the Appellant in the Appeal

24. According to the Appellant's position, the District Court erred in its interpretation of the Protection of Privacy Law. According to him, "the status of fictional works does not depend on the ability to identify their sources of inspiration but rather on the probability that their content would be attributed to the Plaintiff as a true description". In other words, "fictional compositions have a special status because of the interpretation of the text and not because the lack of identification of the sources of inspiration". The Appellant argues that "under the existing legal status, the attribution of the published content" to the Respondent requires the fulfillment of two cumulative conditions: first, the identification of the real character with the fictional one; and second, the interpretation of the literary text as a "true description" pertaining to the real person. However, according to the Appellant – in terms of what the law ought to be – the proof of another element should be required: "the proof of malicious intent on the author's part". Alternatively, the Appellant argues that lack of fulfillment of the said second condition is seemingly sufficient to grant the appeal herein, while reversing the judgment of the District Court.
25. The Appellant further notes that the common position in case law is that the Defamation (Prohibition) Law can be considered as a helpful tool in the interpretation of the Protection of Privacy Law. Pursuant to Section 3 of the Defamation (Prohibition) Law (concerning "means of expressing defamation"), omitting the name of the party injured by the publication "does not preclude defamation, provided that the content pertains to him"; i.e. – according to the Appellant, the Respondent must prove that the combination of the published content with external circumstances, indeed leads to the attribution of the published content to her. The Appellant further refers to the ruling of the District Court, whereby "A claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself" (see Para. 16 above). According to the Appellant, "reasonable reading of the Novel, which takes into account its metaphoric nature… does not lead to the conclusion that the content of the book is true and reflects the reality of the Respondent's life" (para. 39 of the Appellant's summations).
26. According to the Appellant, the test of the "ability to identify the injured person", which was adopted by the District Court, cannot be used as a single condition for the classification of a literary composition as a documentary text, for the purpose of implementing the Protection of Privacy Law and the Defamation (Prohibition) Law. Even more so, according to him, the sources of a fictional composition can almost always be identified. "The unwritten common contract between artists and art consumers in the western culture is that all those books that are published and distributed under the title of "Fiction" do not document reality but are a fiction for all intents and purposes". Moreover, the Appellant warns against the adoption of a legal policy that encourages lawsuits against authors, requiring them to "confirm or deny the degree of similarity between the book’s plot and the reality of their lives". According to him, this state of affairs places authors in an inherently inferior position, i.e. – the similarity is more easily noticed than the differences, in view of the proven existence of the psychological phenomenon called the "confirmation bias".
27. The Appellant argues that the discussion in the District Court’s judgment "was flawed by over-interference in considerations of artistic editing", and ignored the fact that, in any case, there was no proximate cause between the inclusion of the details in the Novel and the identification of the female-protagonist with the Respondent. According to him, the District Court erred in accepting the argument that his choice to write the Novel under his own name, rather than under a pseudonym, precipitates his identification with the male-protagonist, and consequently – the identification of the Respondent with the literary character of the female-protagonist.
28. The Appellant further disagrees with the District Court's ruling that the violation of the Respondent's privacy could have easily been avoided by blurring and camouflaging identifying details. According to him, such ruling is based on "retrospective wisdom", and therefore cannot attest to his "offensive" intent. In this context, the Appellant further notes that the Respondent's consent to a detailed description of her unique work of art in the Novel, realizing that the readers may associate her with the literary character, cannot be ignored.
29. According to the Appellant, the District Court erred in giving no weight to autobiographical artistic freedom. According to him, the book contemplated herein is nothing but a fictional Novel, and in any event the Court must balance the Appellant's autobiographical artistic freedom against the Respondent's right to protection of privacy. Denying the Appeal at bar, according to him, may put an end to autobiographical writing as a whole.
30. Moreover, the Appellant argues that the District Court erred in applying, de facto, a vertical balancing of rights rather than horizontal balancing; i.e. – prioritized the Respondent's right to privacy over the Appellant's freedom of expression. According to him, the District Court used a "statistical formula" whereby there is high probability that the Respondent will be identified in a manner that may lead to a violation her privacy. Alternatively, the Appellant argues that horizontal balancing implies that he should be allowed to make corrections to his work. In support, the Appellant notes that in the hearing held on June 13, 2011 before the District Court, he offered to delete parts of his book and change the characteristics of the female-protagonist, as will be required.
31. According to the Appellant's position, the District Court erred in ruling that the Novel is excluded from the defense of good faith under Section 18(2)(g) of the Protection of Privacy Law in the circumstances of Section 15(6) of the Defamation (Prohibition) Law. The Appellant supports his arguments, inter alia, on the testimony of his friend, who noted that the Appellant acted "under the belief that the Plaintiff will be glad and proud of the character whose creation was inspired by her, and of the entire Novel, which is an expression of appreciation of her graduation project". Therefore, according to the Appellant, the District Court erred in ruling that the "violation was not in good faith. The Appellant was informed that the Plaintiff objects to the publication, and he therefore cannot claim that he believed in good faith that he was entitled to do so".
32. The Appellant argues that "the appropriate balance between artistic freedom and the protection of privacy, in lawsuits pertaining to an argument of violation of privacy in fictional compositions, will be obtained by a test that will focus on the question whether the author acted with malicious intent". According to him, the factual matrix indicates that he had no "malicious intent" in publishing the book contemplated herein or at least in the humiliation of the Respondent. On the contrary, the close acquaintance with the Respondent and her behavior during their relationships "caused the Appellant to truly believe that the Respondent does not recoil from exposure", and even more so from the publication of a Novel for which she was the inspiration. Thus, this is not a violation of the Respondent's privacy that will prevail over the Appellant's freedom of expression. Moreover, the Appellant argues that mere negligence is insufficient in itself to hold the author of the composition liable, due to fear of "abuse" of fictional literature. However, under the circumstances herein, the District Court held that the Appellant's negligence in obscuring the identity of the source of inspiration for a character in the book is sufficient to justify the prevention of its publication and the prohibition of its distribution.
33. Based on the defense of "public interest" under Section 18(3) of the Protection of Privacy Law, the Appellant argues that there is "public interest" in the publication of the Novel contemplated here. "The Novel concerns a universal issue: romantic relationships, the world the man and the world of the woman, marriage, parenthood, love and its collapse… at the center of public discourse…". As evidence, the Appellant refers to readers' letters sent to him following the publication of the Novel which describe "a deep sense of identification with the protagonists". According to the Appellant, the position adopted by the District Court, whereby "literature will not be harmed if writers are prohibited from including [in the composition] details that enable the identification of the sources of inspiration" in fact seeks "to eat the cake and leave it whole". Adopting a judicial policy in the spirit of the aforesaid position, might condition on the artistic freedom of writers by stating: "you [authors – N.S.] may develop the fictional characters as you please, with the exclusion of details that later, potential injured persons may appear and argue to be exposing their identity". The Appellant again notes that he proposed to the District Court to allow him to edit the Novel such that details which may be viewed as "lacking public interest" will be omitted, and therefore, the extinction of the Novel as a whole is a disproportionate judicial ruling.
34. According to the Appellant, the District Court erred in imposing the entire legal liability on him. He believes that "pursuant to the consideration of fairness, he who benefits from an activity should bear the consequences thereof". The Appellant thus insinuates, indirectly, that liability should have been imposed on the Formal Respondent, as the publisher who gained most of the royalties resulting from the publication of the Novel. The Appellant further notes that "contributory fault, implied consent or at least voluntary assumption of risk on the Respondent's part should be added in the matter at hand" as she knew for three years that he was writing a Novel inspired by the relationship he had with her.
35. The Appellant further complains on the lack of balance, according to him, in the remedies ordered by the District Court. He believes that the District Court erred in not issuing a more proportionate injunction, i.e. – 'limited in time', or alternatively one that conditions the publication of the Novel on the omission or re-editing of parts thereof. The Appellant further challenges the amount of monetary damages awarded, which is not based on proven damage to the Respondent, and does not properly weigh additional considerations.

The Main Arguments of the Respondent in the Appeal

36. According to the Respondent, the Appellant, who neglected to attach his affidavit to the Exhibit Volume on his behalf, does not dispute the factual findings determined in the judgment of the District Court. Under these circumstances, his arguments related to the legal conclusions at the basis of the Judgment creates a difficulty with the line of argument on which his appeal is based.
37. The Respondent further notes that the District Court rightfully denied the Appellant's argument, whereby the publication of an intimate relationship guised as a literary Novel is allegedly sufficient to make the protection against an expected violation of privacy redundant. According to her, the Appellant seeks to add an "artificial defense" to the provisions of the Protection of Privacy Law and the Defamation (Prohibition) Law, in contrary to the position of the legislator.
38. The Respondent relies on the ruling of the District Court whereby the fiction argument used by the Appellant is an "empty shell" and that the Novel's storyline is an exact reflection of reality, including many events which took place and were experienced by the Appellant and the Respondent in the presence of third parties. The Respondent supports her arguments on the reasoning of the District Court’s Judgment for the denial of the Appellant's position that the Novel is a fictional composition, and in the holding that the Appellant's arguments regarding the tests that should be applied in the deliberation of a fictional composition are baseless.
39. The Respondent further argues that the Appellant's position that "lawsuits for damage to reputation and violation of privacy that pertain to fictional compositions, will only be accepted in exceptional and rare cases" does not contradict the judgment but rather supports it. The issue at bar is indeed an "exceptional and rare case".
40. The Respondent also refers to additional factual arguments raised by the Appellant, including the passing of time between the beginning of the intimate relationship between the Appellant and the Respondent, and the publication of the Novel. However, there is no need to provide further details within the Appeal herein. Moreover, the Respondent argues that the Appellant's attempted "comparison" – i.e. the comparison of his personal liability to that of the publisher, is irrelevant.
41. According to the Respondent, the Appellant's fear that "similarity is far more evident than differences" was considered by the District Court, which specifically qualified and clarified that “a claim of privacy violation based on fictional literature will only be accepted when the argument of fiction is prima facie unequivocally rebutted by the work itself " and where there is, in addition, "clear and inevitable identification".
42. The Respondent argues that the absurd expected outcome of "burial of masterpieces of the Hebrew Literature" described by the Appellant with respect to the Judgment of the District Court – has no grounds and is argued in vain. According to her, freedom of expression and artistic freedom will only be limited under "exceptional and extreme circumstances of certain and inevitable identification, and when the scope of the violation of privacy and damage to reputation and its magnitude, are that severe".
43. With respect to the Appellant's argument that a "third element" should be required – the establishment of malicious intent on the part of the author – the Respondent argues that such requirement imposes too heavy of a burden on the injured party – "to prove the veiled inner motivations of the perpetrator". Under the circumstances of the Appeal at bar, the Respondent believes that in light of her repeated pleadings not to publish the novel, the "malicious intent of the Appellant, and at the very least, his total apathy in view of the damage caused to the Respondent upon the publishing of the book – was also proven".
44. According to the Respondent, the Appellant's decision to publish the Novel under his own name contributed to her identification with the female protagonist of the Novel. According to her, the rulings of the District Court should not be viewed as "over-interference in considerations of artistic editing" but rather as an "obvious logical conclusion". The Respondent further denies the Appellant's argument that the District Court allegedly founded its conclusions on "hindsight", since "had she known of the many, more specific, details included in the book which lead to her identification, she would have overtly objected to the publication of the book". Not only did the Appellant deny the Respondent's pleas, he also ignored the pleas of his former wife and mother of his children, who appealed to him to avoid the publication of the Novel.
45. With respect to her alleged consent to include a detailed description of her unique work of art in the Novel, the Respondent refers to the factual ruling of the District Court in this respect: "all that was presented to her was a paragraph pertaining to her work". According to her, it was proved to the District Court that she had no knowledge of the Appellant's intention to include in the Novel descriptions that would violate her privacy and damage her reputation.
46. According to the Respondent, the superiority of the freedom of autobiographical expression in the American Law, on which the Appellant relies, exists "only in cases where it is intended to promote a justified public interest". Regarding the issue of public interest in publishing the Novel contemplated herein, the Respondent refers to the Judgment of Justice (his former title) A. Grunis in L.C.A. 5395/09: "In the matter at bar, the publication of the book does not reflect a public interest of high importance. The Respondent is not a public figure. The events which are argued to be described in the book occurred in private circumstances. The public has no special interest in these details" (ibid, Para. 6). Moreover, review of the judgments referred to by the Appellant clearly indicates that the infringements described therein are limited – in both scope and magnitude – in comparison to the damage caused to the Respondent; in any case – these are foreign judgments that do not bind the courts in Israel, which "already deliberated – in three different tribunals – the facts of the specific case at bar, and fully denied the thesis at the basis of the Appeal".
47. The Respondent argues that horizontal balancing between rights does not mean orders will be issued regardless of applicable law, but rather balancing between rights of equal standing and deciding which one will prevail under the circumstances of the case at hand. According to her, the District Court rightfully ruled that the Novel inflicts severe damage to her privacy and reputation, and that the Appellant and his book are not protected by the defenses prescribed by law. Moreover, the Respondent claims that the Appellant's proposal to allow the publication of the Novel subject to changes is merely a "manipulative empty proposal"; and putting a time limit of the publication, as he proposed, is expected to backlash in the future and hit her "again, and perhaps more severely than the first time".
48. With respect to the defense of good faith, the Respondent notes that this is a typical factual question that was discussed and decided by the District Court, and in which the appellate jurisdiction should not interfere. Moreover, according to the Respondent, the testimony of the Appellant's friend regarding his intentions in publishing the Novel is not free of doubt. The Appellant knew of the Respondent's demands and requests to refrain from publishing the Novel, thus it is unclear how he can  "hold the stick at both ends". According to her, the Appellant's criticism regarding the requirement of the artificial foundation to prove "malicious intent" in publications, should "be directed at the legislature that determined the limitations of the defense of good faith", and not at the Court.
49. With respect to the defense of "public interest", the Respondent claims that the Appellant relies in his arguments on the online response of an anonymous reader who said the book moved him. According to her, the Appellant's interpretation of the said term strips it of any content or meaning, and in any event – there is no room for comparison between the public interest and damage to the reputation of Captain R. (see C.C. (District Jerusalem) 8206/06 Captain R. v. Dr. Ilana Dayan (December 7, 2009); C.A. 751/10 John Doe v. Dr. Ilana Dayan (February 8, 2012) (hereinafter: "re. Captain R.") and the public interest in the publication of the Novel and the degree of the violation of the Respondent's privacy and damage to her reputation. In this context, the Respondent again refers to the above cited dictum of Justice (his former title) A. Grunis, that "the publishing of the book does not reflect a public interest of high importance". 
50. According to the Respondent, the Appellant's argument that "he who gains from the activity" should be held liable is unclear, and in any event – is not supported by the letter of the law. The Respondent further notes that attributing contributory fault to her own acts is inconsistent with the factual findings determined in the Judgment of the District Court.
51. The Respondent claims that the Appellant failed to present pertinent case law to support his argument that the monetary compensation awarded does not represent proper balance and proportion. On the contrary – the only judgment discussed in the Appellant's summation is the aforementioned re. Captain R., in which the District Court awarded non-pecuniary damages in the amount of ILS 300,000, which was later reduced by the Supreme Court to the amount of ILS 100,000. According to her, the scope of interference of the appellate jurisdiction in damages of that kind is restricted to exceptional cases only. Furthermore, according to the Respondent, the damages set by the District Court are significantly lower than the rate of statutory damages to which she is entitled in view of the magnitude of the violation of her privacy and damage to her reputation.
52. The Respondent further notes that the District Court refrained from deciding the copyright infringement cause of action on its merits. According to her, the Appellant's arguments with respect to both the issue of "fair use" and her alleged consent to the publication of the Novel, are inconsistent with the factual findings as determined in the judgment of the District Court. Additionally, as aforesaid, the District Court did not rule on the independent cause of action of copyright infringement, as it was content with the proof of the violation of the Respondent's privacy. However, the Appellant, on his part, did not bother to address this cause of action in his summations, and therefore, even on such grounds alone, his appeal cannot be accepted.

The Normative Framework

53. The decision regarding the nature of the relationship between "freedom of expression" and "the right to privacy" and the balance between them, is at the core of the social treaty. Section 1 of the Basic Law: Human Dignity and Liberty prescribes that “The fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel”. The "values of the State of Israel as a Jewish and democratic State" are embedded in the Basic Law (Section 1A) and they will guide us. We must turn to explore the fundamental principles at the basis of our legal system. Many pens have been broken, and many keyboards will be worn out in the attempt to define the proper balance between the contemplated basic values. The burden imposed on judges in decisions of a constitutional nature is a heavy one. The fear to possibly damage the freedom to create art, compositions which express the inner desires of the artist and are an inspiration the public, a model to be followed and identified with and at times even spark for social change, weighs against the fear to permit an invasion into the private realms of the individual. "The blessing is only found in that which is kept out of sight" (Bavli, Taanit H, B) with respect to issues pertaining to the inner-personal sphere of the individual. Emergence into the world, untimely and without the full consent of an individual, can actually destroy lives.
54. The proper judicial balance will be decided after examination of the conflicting rights in each case on its merits. The Appeal at bar concerns artistic freedom, including the autobiographical composition. Setting the boundaries of the exact applicability of this right, in consideration of its siblings in the family of rights – the right to a reputation and the right to privacy – is the essence of the Appeal at bar.

Freedom of Expression and Artistic Freedom

55. As is well known, freedom of expression is one of the pillars of our democratic governance, and is one of the basic anchors of the society in which we live. The importance of freedom of expression is amplified in the Israeli society, which is characterized by substantial, even polar, conflicts of opinion, on issues pertaining to the roots of human existence. Israeli law embodies perennial Jewish tradition which encourages dialogue, as concisely verbalized by the expression "these and these are the words of the living God" (both interpretations are legitimate) (Bavli, Eiruvin, 13, 2). Viewing the freedom of expression as a "superior" right (H.C.J. 73/53 "Kol Ha'Am Ltd. v. the Minister of Interior Affairs, PDI 7 871, 878 (1953) (hereinafter: "re. Kol Ha'Am") and as the "heart and soul of democracy" (Cr.A. 255/68 "the State of Israel v. Avraham Ben Moshe, PDI 22(2) 427, 435 (1968)) is grounded in the reality of life in Israel, as well as in the sphere of faiths and opinions which is at the basis of the definition of the State of Israel as a Jewish State.
56. In this sense, freedom of expression serves as a cultural anchor that is partially rooted in the democratic foundation of the State of Israel – "democracy is first and foremost a governance of consent – the opposite of a government based on force. The democratic process is therefore a process wherein the common goals of the people and the way to achieve them are selected through deliberation and verbal negotiation, i.e. by way of open settlement of the problems on the agenda of the State and free exchange of opinions in respect thereof" (re. Kol Ha'Am above, p. 876); the freedom of expression is also partially rooted in the Jewish foundation of the State – "and the entire dispute between the Tanaim, the Amoraim, the Gaonim and the Poskim, is in fact the words of the living God, and the Halacha includes them all; Moreover, this is the glory of the Holy Torah, whereas the Torah is read as singing, and the beauty of the song is the disparity of voices. This is the essence of music" (Aruch HaShulchan, Hoshen Mishpat, introduction). "Just as their facial features differ from one another, so their opinions are not identical, but rather they each have an opinion of their own… since Moses asked God, at death's door he said to him: oh Lord, the minds of each and all are revealed before you, and they are not one. When I pass, I plead you to appoint a leader that will be able to handle each and every one of them in accordance with his own mind" (Numbers Rabbah (Vilnius), Pinchas, Section 21;  for further detail see the dictum of Justice (his former title) M. Alon in E.A. 2/84, Neiman v. the Chairman of the Central Election Committee for the 11^th Knesset PDI 39(2) 225, 294-297 (1985); Aviad HaCohen "Freedom of Expression, Tolerance and Pluralism in Jewish Law" 45 Mincha le'Menachem (Hana Amit, Aviad Hachohen and Haim Be'er editors, 2007).
57. Hence, the freedom of expression in Israel stands on two foundations – Judaism and democracy (see the dictum of Justice (his former title) A. Barak in H.C.J. 6126/94 Senesh v. the Israel Broadcasting Authority PD 53(3) 817 (1999) (hereinafter: "re. Senesh").
58. Freedom of expression extends to artistic expression. This form of expression has unique characteristics, that require unique protection. The importance of art is in the development of human culture, and in being a means to express and execute one's inner wishes; its importance gives art its unique status. In his artistic work, the private boundaries of an artist are broken and place the artistic freedom as a social value. "Freedom of expression is the artist's freedom to open his heart, spread his wings and set his mind free" (H.C.J. 14/86 La'or v. the Council for the Review of Films and Plays PD 41(1), 421, 433 (1987). With respect to the scope of artistic freedom, it was held as follows: "Such freedom is more than the freedom to express commonly accepted opinions. It is the freedom to express deviating opinions, with which the majority disagrees. It is the freedom to not only praise the government, but also to criticize it. It is the freedom to create any work of art, whether of a divine artistic value and whether of no artistic value whatsoever, and even if it is – as the Council found – 'an offensive paste of erotica, politics and perversions of all sorts and kinds'" (ibid; on creation in Jewish law see: Alexander Ron "On Artistic Creation and Artistic Freedom" Parashat Ha'Shavua 63 (Truma, 5762)).
59. The status of artistic freedom is established, according to one doctrine, in the freedom of expression, i.e., freedom of expression in itself yields "the freedom of artistic work including literature and the various displays of visual art" (see: H.C.J. 806/88 Universal City Studios Inc. v. the Council for the Review of Films and Plays, PD 43(2) 22, 27 (1989)); according to another doctrine, the unique characteristics of the artistic expression require that artistic freedom be an independent right. "It can be seen as a standalone constitutional right. It is based in the perception of humans as autonomous creatures who are entitled to self-realization, both as creators and as consumers of art. Indeed, artistic freedom is the freedom of an artist to create. It is the freedom of choice with respect to the topic and its presentation, and the freedom of others to hear and comprehend" (H.C.J. 4804/94 Station Film Co. Ltd. v. the Council for the Review of Films and Plays, PD 50(5) 661, 677 (1997)).
60. I find no real difference between those who think that the status of the right to artistic freedom is that of a "primary right" and those who think it is merely a "secondary right" (for the distinction between a "primary right" and a "secondary right" see: Aharon Barak Proportionality – Constitutional Rights and Their Limitations 76-78 (2010) (hereinafter: "Barak, Proportionality"). Whether you support this position or the other, it is necessary to define and limit the characteristics of the right. This will be done according to the unique rationales on which it is founded. Such rationales form the "genetic code" of the right, and determine the scope of its applicability. They are conceived in the theoretical legal laboratory and move to the world of practice. The justifications can be viewed as the scalpel and hammer in the hand of the sculptor, assisting to clearly chisel the image of the right and distinguish between similar issues; "like silver touched by the silversmith – alloying and merging as he pleases" (the liturgical poem  "like substance touched by the artist", Yom Kippur prayer). In the realm of rights, the rule of "complete separation of realms" (Bavli, Brachoth 48, 2) does not apply. On the contrary, the rights are combined and integrated, sometimes to an inseparable degree. Chiseling is not an easy task, and it can occasionally upset one of the rights and its beneficiaries. The Court will not easily decide the exact scope of applicability of the right. Decisions of this kind have deep and wide impact, and may affect social life, commerce, culture, art, politics and more.

The Autobiographical Composition

61. Freedom of expression stands on three pillars: the exposure of the truth, personal wellbeing and its value in the democratic regime (see Aharon Barak "The Tradition of Freedom of expression in Israel and its Problems" Mishpatim 27, 223, 227-228 (5757)). These pillars do not equally support each and every instance of freedom of expression. Some instances are supported by all rationales; others are only sheltered by some. The strength of the rationales at the basis of each instance also varies. Examining the rationales and their strength will determine the level of protection extended to the expression. "Not all rationales [supporting the freedom of expression – N.S.] are equally present in all types of expressions. If an expression does 'not fall under' the rationales for freedom of expression, this may influence the degree of the legal protection extended thereto" (H.C.J. 606/93 Kidum Entrepreneurship and Publishing (1981) Ltd. v. Israel Broadcasting Authority, PD 48(2) 1, 12 (1994) (hereinafter: "re. Kidum"). The status of the autobiographical artistic freedom will be determined in light of the "quality" and "quantity" of rationales at its base. Prior to examining these rationales, we wish to post the following words as a guiding road sign: "The literature, painting and sculpture manifest the spiritual values which are inherent to the human soul; so long as there is a single drawing still concealed in the depth of our souls and yet unplaced on paper, art is obligated to produce it" (Rabbi Kook, Olat Reaya 2, p. 3).
62. The justification of personal wellbeing emphasizes that "without allowing people to hear and be heard, to read and to write, to speak or be silent, one’s humanity is flawed, since his spiritual and intellectual development are based on his ability to freely form his perspective" (see: H.C.J. 399/85 Kahana v. Israel Broadcasting Authority, PD 41(3) 255, 274 (1987) (hereinafter: "re: Kahana"). And elsewhere: "The importance of the principle [freedom of expression – N.S.] also lies in the protection that it extends to a distinctly private interest, i.e. the interest of each individual, by virtue of his humanity, to fully express his qualities and personal virtues; to nurture and develop its self to the maximum; to voice an opinion on any matter which he considers vital for him; in short – to speak his heart, so that life seem worthy to him (re: Kol Ha'Am p. 878). Case law further emphasized the close connection between this pillar of the freedom of expression – man's personal realization – and human dignity (see: Aharon Barak Human Dignity 717-721 (2014) (hereinafter: "Barak, Human Dignity")); it was held that "this argument [of personal wellbeing – N.S.] ties the freedom of expression to human dignity" (re. Kahana above, p. 273) and "what is human dignity without the fundamental right of a person to hear his fellow humans and make himself heard; develop his personality, form his perspective and achieve self-realization?" (P.P.A 4463/94 Golan v. Israel Prison Service PD 50(4) 136, 157 (1996)).
63. The autobiographical artistic freedom is in fact a manner of expression which materializes this justification almost in its entirety. Autobiographical writing is personal, intimate writing, which expresses the writer's life story. Such writing is a basic human need that is veiled in the hearts of many people. The execution, the relief experienced by the author when the drawing of ideas from the depths of his soul is completed, is the strongest evidence of the importance of the publication of an autobiographical composition. The expansion of the phenomenon of autobiographical writing, across all walks of life, is yet another evidence of the importance thereof to human development. We are no longer in the era when autobiographical writing is the realm of the few, those outstanding people who were lucky to describe, through the telling of their personal story, the story of their generation. Nowadays, every person with an internet connection and a keyboard can write his life story and publish it on the global network. Stories that were once secluded now move forward to the front of the stage, and stories that were previously published and famous now retreat into the background. Autobiographical writing is therefore of great importance, to the individual and society, for self-realization and the promotion of literary creation.
64. As aforesaid, the justification of the right to autobiographical creation does not end with the personal justifications for freedom of expression; societal justifications provide another plentiful source from which this right flows. Pursuant to the justification of exposure of truth "The freedom of expression must be guaranteed in order to enable the competition between various and diverse perspectives and ideas. From this competition – rather than from the dictation of a single governmental "truth" –the truth will arise, as the truth is destined to prevail in the battle of ideas" (re: Kahana, p. 273). The right to autobiographical artistic freedom assists the realization of this rationale. Seemingly, as the number of people who write their life stories will grow, human knowledge will grow respectively, as will the ability to reach the bottom of truth. Human knowledge is not equally dispersed in the town square. Groups with better exposure and accessibility to media have greater ability to communicate information. The existence of autobiographical writing will help us to break the "monopoly of knowledge" and also obtain information from non-conventional channels (for additional information see: Sonja R. West., The Story of Me: The Underprotection of Autobiographical Speech, 84(4) WASH. U.L. Rev.905, 944-948 (2006)) (hereinafter: "West").
65. The importance of autobiographical artistic freedom is also rooted in the democratic justification. "Freedom of expression is a pre-condition for the existence of democracy and its proper operation. Free voicing of opinions and their unlimited exchange between fellow men is a contitio sine qua non for the existence of social and political governance in which a citizen may fearlessly consider, through the study of information, what is required, as per his best understanding, for the benefit and wellbeing of the public and of individuals, and how the existence of the democratic governance and the political structure in which he lives can be secured… the democratic process is conditioned, as aforesaid, on the possibility to hold an open discussion of the problems on the agenda of a State, and the free exchange of opinions in respect thereof… it cannot be perceived that elections in a democratic regime be held if they are not preceded by an opportunity to exchange opinions and attempt mutual persuasion and without holding the deliberations and discussions that form public opinion, which has a vital role in every free regime. The above, as aforesaid, is as valid during elections as it is in other times" (H.C.J. 372/84 Kloppfer Nave v. the Minister of Education and Culture, PD 38(3) 233, 238-239 (1984)). The autobiographical artistic freedom cherishes the importance of the direct flow of information between the author and the public. Public channels of information are supervised by several "veto players" which prevent the free flow of information. Media, governmental censorship, the legal system and the laws, access to wealth – are just some of the barriers confronted by owners of information who seek its publication. The autobiographical artistic freedom gives importance to the direct encounter between author and readers. Furthermore, the autobiographical artistic freedom assists in making free expression more available to social and cultural minorities, which are under-represented in the central media, thus enriching the variety of voices heard in public. We have just recently witnessed the empowering and catalyst effect of autobiographical expression of experiences online on social and political revolutions in the neighboring Arab countries. This right is reinforced in this era of internet, where electronic means and media such as "Twitter", "Facebook" and blogs implement this idea in practice. Many scholars noted the connection between a wide spectrum of opinions heard in public and the existence of a lively and healthy democracy. The rules of democratic decision-making are the body; the freedom of expression is their soul. A democracy without freedom of expression is like a body without a soul. The autobiographical artistic freedom not only enables each citizen to vote and be elected, but also to influence society's cultural fabric (for an extensive review of the basis of the right to autobiographical writing, see: West, p. 948-957). Hence, the autobiographical composition is closely connected to the abovementioned three rationales of freedom of expression.
66. Its importance notwithstanding, freedom of expression, including the autobiographical artistic freedom, is not an absolute right, and it is not immune to restriction. "The freedom of expression and the artistic freedom are not the only values to be considered. A democratic society is based on a variety of values and principles, of which freedom of expression and artistic freedom are just a part of. The implementation of these diverse values and principles naturally mandates the restriction of the protection extended to the freedom of expression and the artistic freedom, to the scope that is required to protect such values and principles. My freedom of movement stops where your nose begins; my freedom of expression does not justify slander or libel against another person; it does not justify disclosing top state secrets or disturbing the peace; freedom of expression is not the freedom to give false testimony in court" (re: Senesh, p. 830). With this warning in our saddlebag, we will now review the right that collides with the autobiographical artistic freedom in the Appeal at bar – the right to privacy. 

The Right to Privacy

67.The right to privacy is a constitutional right. Section 7 of Basic Law: Human Dignity and Liberty instructs that:

“(a) All persons have the right to privacy and to intimacy.

(b) There shall be no entry into the private premises of a person who has not consented thereto.

(c) No search shall be conducted on the private premises of a person, nor in the body or personal effects.

(d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.”

The status of the right to privacy is also expressed in the case law of the Supreme Court as “one of the freedoms that shape the character of the regime in Israel as a democratic regime, and one of the supreme rights that establish the dignity and liberty to which a person is entitled as a person, as a value in itself” (Cr.A. 5026/97 Gilam v. The State of Israel (June 13, 1999) (hereinafter: “re. Gilam”); for further details, see HCJ 8070/98 The Association for Civil Rights in Israel v. The Ministry of the Interior, PDI 58(4) 842 (2004)).

68.The proper balance between the right to privacy and other rights was determined by the legislature in the Protection of Privacy Law. With respect to the interpretation of the act, case law has already been established whereby laws that were passed before the enactment of the basic laws will be interpreted in the spirit of the provisions of the basic law. “This law (Basic Law: Human Dignity and Liberty – N.S.) granted a super-statutory constitutional status to the right to privacy. This status should affect the interpretation of all of the laws, both those passed before the legislation of the basic law and those legislated thereafter. This constitutional status of the right to privacy should also affect the interpretation of the Protection of Privacy Law” (HCJ 6650/04 Jane Doe v. The Netanya Regional Rabbinical Court, PDI 61(1) 581, 602 (2006) (hereinafter: “re. Jane Doe”); for further details see F.Cr.H 2316/95 Ganimat v. The State of Israel, PDI 49(4) 589 (1995)).

69.The law’s protection of the right to privacy is relatively new. It began approx. one hundred years ago.The starting point of the discussion regarding the right to privacy, its status and its justifications was expressed in an important article from the beginning of the last century, in which Justices Warren and Brandeis pointed to the existence of the right to privacy (Samuel Warren & Louis Brandeis, The Right to Privacy, 4 H. L. R. 193 (1890) (hereinafter: “The Right to Privacy”). The innovation of the authors was not reflected in the creation of a right “ex nihilo”, but rather in conceptualizing its various appearances in legislation. This approach does not recognize the benefit inherent in defining privacy as an independent right. Privacy is limited to how it was defined in legislation and in case law, which must be interpreted narrowly in order to prevent double protection in view of the basic assumption that the legislature does not waste ink. A similar approach was initially established in the case law of the Supreme Court: “The Protection of Privacy Law is intended to create and define new boundaries, and there was therefore, no need to redefine existing offences as prohibited acts… why would the legislature deem fit to once again prohibit in later legislation acts of violence that have already been determined as criminal offences in the existing penal law, only to include them in the definition of a new prohibited act, alongside which a maximum penalty is set, which does not exceed the penalty for any one of the existing violent offences. This is double legislation, which is entirely unnecessary” (see the opinion of Justice (former title) M. Shamgar FH 9/83 The Military Appeals Court v. Vaknin, PDI 42(3) 837, 853 (1988); for further details see L.Cr.A 9818/01 Biton v. Sultan, PDI 59(6) 554 (2005)). The concept that deems the right to privacy as a right limited solely to its appearances in legislation and to a narrow interpretation thereof, did not last forever. The right to privacy soon acquired a permanent status in the family of constitutional rights. Buds of this concept are found in the opinion of Justice (former title) A. Barak in HCJ 2481/93 Dayan v. Major General Wilk, Jerusalem District Commander, PDI 48(2) 456 (1994) (hereinafter: “re. Dayan”): “Every person in Israel is ‘entitled to privacy’ (Section 7(a) of Basic Law: Human Dignity and Liberty)… now that is has been afforded a statutory constitutional basis, it must be interpreted from a ‘broad perspective’ ‘and with the understanding that we are concerned with a provision that determines ways of life’… a constitutional provision must be interpreted ‘with a broad outlook, and not technically’… hence the approach – which is accepted in enlightened democratic countries – that constitutional provisions must be interpreted ‘generously’… with a substantive approach and not a ‘legalistic’ approach… with a pertinent approach and not a ‘technical’ or ‘pedantic’ approach… against the background of this approach it may be ruled that the constitutional right to privacy extends, inter alia – and without any attempt to delimit the right with all of its aspects – to a person’s right to conduct the way of life he wishes behind closed doors, without outside interference. A person’s home is his castle, and within its confines he is entitled to be left to his own devices, for development of the autonomy of his will” (ibid, on page 470).

70.Indeed, “The kids which you left have become goats with horns” (Bavli, Brachot 63 p. A), the buds sprouted, and received precise and clear expression in the opinion of Justice (former title) A. Barak in re. Jane Doe (above, on pages 595-597): “The right to privacy is one of the most important human rights in Israel… its roots are deeply embedded in our Jewish heritage… it is therefore called for by the values of Israel as both a Jewish and democratic state. It is recognized by Israeli common law as a human right… in 1981 the Protection of Privacy Law was enacted. Privacy was defined in the law (Section 2) in a manner which does not ‘cover’ all accepted forms of privacy. With respect to a violation of privacy over and above the definition in the law, Israeli common law continues to apply… in 1992, a material change occurred in the status of the right to privacy… Basic Law: Human Dignity and Liberty explicitly recognized a constitutional right to privacy… a constitutional right to privacy was thus recognized at a broader scope than the scope of privacy in the Protection of Privacy Law. Indeed, by virtue of the basic law, privacy became a super-statutory constitutional right… any and all government authorities – including any court and tribunal in the state – must honor it”.

71.The right to privacy is a constitutional right. It must be interpreted in a “generous and broad” manner, according to its justifications, in order to realize the purposes underlying it. However, the scope of the protection of privacy will not be determined broadly or narrowly but rather precisely. For the purpose of balancing between clashing rights, when the court is faced with a decision which calls for the drawing of the exact outlines of the rights, the court will employ strict interpretation, examining which of the rationales realized in the manifestations of the rights before it must be preferred (see: Aharon Barak, Interpretation in Law, Vol. 3: Constitutional Interpretation 83-84 (1993) (“Interpretation in Law (Constitutional Interpretation); and – Aharon Barak, Proportionality in Law 94-97 (2010)). The accepted opinion in our law is that the scope of the constitutional right should not be reduced in order to take into consideration the collective or the right of others. These will be taken into account at the following stages of the constitutional analysis (ibid). Israeli law therefore distinguishes between the application of the right and its protection. The mere application of the right does not necessarily guarantee a comprehensive protection of it. Application is one thing and protection another. Broad interpretation does not equal full protection.

The Right to Privacy – Scope

72.The ambiguity of the right to privacy is well-known (see for example: Re’em Segev “Privacy, its Significance and Importance” Privacy in an Era of Change 25, 26 (Tehilla Shwartz Altshuler editor, 2012) and the authorities therein) (hereinafter: Segev “Privacy, its Significance and Importance””). This ambiguity, which in the opinion of some of the scholars is derived from the social character of the right and from its technological context, makes it difficult to define the exact boundaries of privacy (see for example: Michael Birnhack “Control and Consent: The Theoretical Basis of the Right to Privacy” Mishpat Umimshal 11 9, 13-19 (2008) (hereinafter: “Control and Consent”)). “The right to privacy is a complex right, whose boundaries are not easily determined” (see HCJ 1435/03 Jane Doe v. The Haifa Civil Service Disciplinary Court, PDI 58(1) 529, 539 (2003)).

73.In this appeal, we are exempt from deciding the definition of the exact boundaries of the right to privacy. We are concerned – in the book at bar – with the core of the right to privacy. “With respect to situations of ‘classic privacy’, there appears to be broad consent. For example, we agree that it is appropriate to protect the acts of a person in his own home, the content of telephone conversations or of sealed envelopes, and certain types of information, such as our medical condition, our sex life, … when an outside agent intervenes without our permission in any of the above, we feel that our privacy has been violated” (see ‘Control and Consent’ above, on page 13).

The Justifications for the Right to Privacy

74.Many justifications have been given in literature and case law for the right to privacy. There are those that rest on a personal basis and those that are based on social values. These justifications can be split into two separate categories: the first, intrinsic-inherent justifications; the second, instrumental-purposeful justifications. The distinction between the types of justifications is clear: the intrinsic justification deems the right as a purpose in itself; the instrumental justification deems the right as a means of achieving a nobler purpose.

The Intrinsic Justification

75.The intrinsic justification for privacy asserts that a violation of privacy is equal to a violation of a person’s dignity, welfare and his ability of self-realization. This outlook is based on the moral theory of the philosopher Immanuel Kant. According to Kant, man exists as an end in himself. Use of man as an object for the purpose of achieving another purpose constitutes a violation of his dignity:

“Man, and in general every rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end… Persons are, therefore, not merely subjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, i.e., exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

76.A person is not an “object”; he should not be used as a means to achieve other purposes. A person has emotions, feelings and desires. Blatantly ignoring these and crudely trampling them is intolerable. The mere violation of a person’s privacy is the prohibited act. Intrusion into and exposure of the private space renders the person a means for fulfilling the purposes of the exposer and intruder. Privacy is the heart and core of human autonomy. This is the space in which everything dear to a person, his emotions, his inner desires, his innermost secrets, are found; all of these are part of the heart and core of the right to privacy. Violation of these is a grave violation of the person’s dignity. In the words of the scholar Bloustein:

“The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.” (Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964) (hereinafter: “Bloustein”).

And in the words of the scholar Benn:

“To conceive someone as a person is to see him as actually a chooser, as one attempting to steer his course through the world, adjusting his behavior, as his appreciation of the world changes, and correcting course as he perceives his errors. It is to understand that his life is for him a kind of enterprise, like one’s own… To respect someone as a person is to concede that one ought to take the account of the way in which his enterprise might be affected by one’s own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration” (Stanley I. Benn, Freedom, and Respect for Persons, in Privacy & Personality 1, 9 (J. Roland Pennock and John W. Chapman eds., 2009)).

77.Indeed, the right to privacy is derived from the right to dignity and is closely related to it. “The right to privacy therefore concerns the person’s personal interest in developing his autonomy, his peace of mind, his right to be with himself and his right to dignity and liberty” (see C.A. 8483/02 Aloniel Ltd. v. McDonald, PDI 58(4) 314, paragraph 33 of the judgment of Justice E. Rivlin (March 30, 2004)); for further details see re. Jane Doe above in paragraph 10 of the judgment of Chief Justice A. Barak; Ruth Gavison “The Right to Privacy and Dignity”, Human Rights in Israel – An Essay Collection in Memory of H. Shelah 61 (1988)).

Instrumental Justifications

78.Further justifications deem the right to privacy as a means to achieve substantive purposes. The right to privacy is perceived as the basis of the individual’s wellbeing; as vital to ensuring relationships of trust between people, and particularly intimate relationships; as a means of ensuring proper community life; as a basis for the existence of a democratic regime.

79.Several theories point to the fact that privacy is important for the purpose of improving people’s personal wellbeing, and for the possibility of maximum self-fulfillment. Private space gives a person the possibility to meditate and challenge the common world view of the society to which he belongs. Private space allows a person to design his private home as he wishes. This space sometimes expresses the innermost secrets that a person, for his own reasons, does not wish to publicly reveal. A person is entitled to the possibility of building his world as he wishes, which cannot be done when he is being watched from all around. The social view is sometimes paralyzing, preventing the individual from undertaking original and bold action. Private space is where the individual can break the fixed social boundaries. Violating the private space denies the individual the possibility of creating a unique and individual personal world. Unique literary expression of this concept is found in George Orwell’s book “1984”, which has become one of the world literature’s invaluable assets. See the opinion of Justice Brandeis:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.” (Olmstead v. United States, 277 U.S. 438, 479 (1928).

And in the words of the scholar Bloustein:

“The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality… Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” (Bloustein, 1003).

For further details on the issue of personal wellbeing, see: R. v. Dyment, [1988] 2 S.C.R. 417. For further authorities, see: Michael Birnhack, Private Space: Privacy, Law & Technology 117-120 (5771) (hereinafter: “Birnhack, Private Space”).

80.A violation of privacy is a violation of personal autonomy. Tearing down the screen separating the private and the public realms violates a person’s right to conduct his life as he wishes. Some wish to conduct their liveson the radio waves, in the ‘big brother house’, or on the pages of the newspaper; others wish to live their lives peacefully and modestly, far from the spotlight, from the public eye, and from the lens of the camera. Exposure of privacy by another violates a person’s right to conduct his life as he wishes. “…The right to privacy draws the line between the individual and the public, between ‘me’ and society. It delineates a defined area in which the individual is left alone, to develop his ‘self’, without the intervention of others…” (re. Dayan above, on page 471).

“Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from this liberty” (Pavesich v. New England Life Insurance Co., 50 S.E. 68, 71 (Ga 1905)).

81.Note, the freedom of expression and the right to privacy do not merely clash; they also complement one another. A violation of privacy is sometimes also equal to a violation of the freedom of expression. The existence of a protected private space, to which the individual may withdraw, be alone, is sometimes a condition to the existence of creative activity. Creativity, which deviates from the existing social order, struggles to emerge under the penetrating gaze of the community. The screen of privacy protects the existence of the internal world. This world will be exposed to the audience when the screen goes up. Premature exposure and without consent of the unfinished product, will lead to failure; or as in the theatre world, will lead to harsh reviews which might leave the creative work in its unripe stage, and prevent its coming to fruition. Personal space is vital for the development and emergence of different ideas in the public realm. Individuals with free opinions are an essential ingredient for the existence of democracy. Without freedom of thought, made possible where there is a personal space, a healthy society cannot be developed. Indeed, the right to privacy is not necessarily contrary to the freedom of expression and creation, it also serves them.

82.The Torah describes the public setting in which the first Tablets of Stone [Luchot HaBrit] were given, and the breakage; and the second tablets that were given to Moshe Rabbeinu (Moses) alone, and were a masterpiece. The first tablets were given “amid great pomp and circumstance” (Rashi, Shemot 34, C) on Mount Sinai in front of the entire Jewish nation. The second tablets were given to Moshe Rabbeinu in silence: “No man may ascend with you nor may anyone be seen on the entire mountain. Even the flock and the cattle may not graze facing that mountain” (Shemot 34, C). It was stated thereon in Midrash Tanchuma ((Warsaw) Ki Tisa, 31): “The first tablets were given in public, and therefore the evil eye had control over them and they were broken, and here G-d told him there is nothing better than modesty”. We can see that modesty and personal space may produce great creation. The creation is not necessarily the result of the freedom of expression. It is actually the scaling down, the privacy, the modesty, that may be fertile ground for growth and renewal. The secret of the dialogue and actions taken between is the proof. Needless to say, humans, the crown of creation, are the result of the most intimate relationships. This teaches us that infinite exposure is not always a guarantee for creation; on the contrary, there are concealed areas that we must strictly preserve as such, not only as protection against harm, but in order to ensure productivity, creation and fulfillment. “And it is written ‘with the modest is wisdom’ (Mishlei 11, B), since wisdom connects two things, and it is the primordial power, as is known, and through this things change from one state to another, and this is the meaning of the verse ‘with the modest is wisdom’. Therefore, when you want to plant a seed and want it to change its form, you conceal it and insert it into the ground, so that it may arrive at its primordial state, which is wisdom, as is recalled” (Torat Hamaggid, Torah, Parashat Balak).

83.Harav Kook (Orot Hakodesh C, Part Two, Vol. Three, Title E) addresses the required balance between a person’s need to be alone and his need for company: “Out of these two opposing judgments, the noble person must stand in the midst of two tendencies: to separate himself and to draw close. With this, he attains conceptual purity, on the one hand, and the natural strength that exists in simplicity and natural freshness, on the other”. Harav Kook further eloquently writes in his essay “A time to be silent and a time to speak” (Orot Hakodesh, Part Two, Vol.  Three, Title H): “The structures of a person’s spirit suffer great destruction when the inner light of “a time to be silent” appears, when the holy and supernal muteness in the splendor of its glory and the gravity of its burden fills his entire soul. If he rebels against it and breaches it, this rebellion against the sovereignty of silence destroys all of its structures, all of the treasury of innocence and uprightness, of profundity and supernal connection, these are all shattered. And he will later need, if he wishes to build his ruins, to reestablish everything anew, and the wise person will be silent at that time. However, if a person gives silence its due when it first appears, it will perform its duty, establish its muteness, penetrate in its profundity and reach the perplexities of its depths, from which it will bring forth mighty foliage and branches with the power of great and fresh blossoming. The leaves will be filled with power and the expression of his lips will emerge. Then the “time to speak” will begin in its glorious majesty and the spirit of silence will be the angel that acts upon the outpouring of speech, which will flow like streams, with great abundance and all beauty. ‘[I] create the speech of the lips. Peace, peace, to the distant and to the near,’ says Hashem, ‘and I will heal him’.  Its fruit will be for food and its leaf for healing, freeing the mouth of the mute”.

84.The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the beady eye of the state is vital to the existence of a pluralistic society which gives a stage to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression. This position was recognized in the past by this court, which held that the right to privacy is “one of the freedoms that shape the character of the regime in Israel as a democratic regime” (see Paragraph 9 of the judgment of Justice H. Ariel in re. Gilam; see also: Campbell v MGN Ltd. [2004] UKHL 22 (hereinafter: “re. Campbell”). For an extensive review see: Annabelle Lever, Privacy Rights and Democracy: A Contradiction in Terms? 5 Contemporary Political Theory142 (2006)). And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

The Right to Privacy and Intimate Relationships

85.Further justification for the right to privacy is found on another level of the human existence – interpersonal relationships. “It is not good that man be alone” (Bereishit B, 18); “human beings are by nature political animals” (Aristotle, Politics, Book A, 27-28 (Rachel Zelnick-Abramovitz Editor, Nurit Karshon translator, 2009)); “either companionship or death” (Bavli, Taanit 23, p.1). These are a few of the texts written throughout the generations to describe the importance of relationships in the lives of humans. Each one of us is involved in many relationships: family; work; friends; acquaintances; neighbors; service providers. All of the above and many others encircle and surround our daily routine. Just as their facial features differ, their relationships differ. And in the case at bar: a father-son relationship does not resemble a relationship between husband and wife; between friends, between distant and close acquaintances; etc.

86.There are “certain relationships that require background conditions of privacy to enable their optimal existence” (Birnhack, Private Space above, on page 120). Deep friendships and connections between couples are built and based on keeping the most intimate of secrets. A world in which privacy is trampled and secrets become common is a world in which people will refuse to bare their soul to their friends for fear of it being exposed to the entire world. The same is true to professional relationships and friendships, a fortiori with respect to romantic relationships. In such relationships, couples mutually reveal to one another their most secret desires, wishes and aspirations. A partner also reveals to his partner his positions and opinions regarding work colleagues, family members, friends and previous partners. This sensitive information is given to the other partner on a silver platter, under the assumption that he will act as a loyal ally and confidant. This is the “unwritten” contract between partners in a long-term romantic relationship. These are the “terms of employment”. Any sensible person knows this. “The growth of a couple’s relationship… needs, inter alia, the couple’s privacy from the outside world. The privacy enables intimacy, which is a necessary condition for a couple’s relationship… the privacy allows trust between the couple and creates the space… where they can be authentic and gain each other’s support” (Birnhack, Private Space above, on page 121; for further references, see: Segev, Privacy, its Significance and Importance above, on pages 83-86).

87.A special place is kept for intimate long-term relationships between couples, and particularly for married life. The commitment created between two spouses is not limited to economic arrangements. These constitute the body of the marriage, while the trust and love create its soul. Marriage is based on “love, friendship, peace and companionship”. One acts as the other’s “confidant”. The self-sacrifice, the strong friendship, the endless empathy, these are the essence of married life. “Therefore a man shall leave his father and his mother and cling to his wife and they shall become one flesh” (Bereishit B, 24). The separateness becomes oneness. The day-to-day challenges that couples face, maintaining the relationship, household, professional career and childrearing, all constitute a quasi- “melting pot” for this personality merger. Many studies have indicated that the mental identity of spouses changes with time. The partners go from separate beings to a single family unit (see, for example: Milton C. Regan, Family Law and the Pursuit of Intimacy 147 (1993)). Spouses are exposed to one another, in happiness and in sadness, in times of hardship and crisis, as well as in times of success and comfort. They share with one another their thoughts and feelings about what goes on around them. In many relationships, spouses read one another, like an open book - “no secrets escape them”. True in this regard are the words appearing in the traditional deed of conditions: “and from this point forth, the said couple will act jointly with love and affection, and will not conceal or hide or lock away from one another…” (Q&A Nachlat Shiva, Shtarot, Part I). It would not be superfluous to note in this context the degree of closeness between a husband and wife, inter alia, in relation to the laws of testimony (disqualification of a husband’s testimony also disqualifies the wife’s testimony) and the laws of agency (a husband is appointed as an agent for his wife for things that others cannot do as her agent). I will also mention the provisions of Section 3 of the Evidence Ordinance [New Version], 5731-1971 that “In a criminal trial, one spouse is not competent to testify against the other”.

88.The right to privacy in its romantic form is in fact the right of the spouse not to be exploited by his spouse. A situation in which one spouse reveals to the other spouse everything that is on his mind, and the other spouse uses the information for his own purposes – is intolerable. A legal regime that does not prevent this does not protect the unwritten contract of marriage. The privileges between various individuals in society are regulated in legislation. Is it conceivable that the law, which regulates attorney-client relations; doctor-patient relations; psychologist-patient relations; bank-customer relations; will not extend its protection and defend the most sensitive relationship in a person’s life – between man and wife, between spouses?! (For further details, see: Hanoch Dagan & Carolyn J. Frantz, Properties of Marriage 104 Colum. L. Rev. 75, 82-83 (2004) and the authorities appearing therein). It is for good reason that the “public hearing” principle which was set forth in Section 68(a) of the Courts Law [Consolidated Version], 5744-1984, whereby “court hearings will be open to the public”, retreats in “family matters, within the meaning thereof in the Family Court Law, 5755-1995”, pursuant to the provisions therein in Section 68(e)(1).

89.The culmination of the joint spousal relationship is embodied in long-term relationships, with a joint economic regime, regardless of whether we are concerned with the institution of marriage or with common-law partners. These relationships include an increased duty of care vis-à-vis the joint intimate space of the couple. Even romantic relationships that are not characterized by a full economic partnership establish an individual ‘fiduciary duty’ to protect the spouse’s intimate space. The opening of the intimate space to the other partner occurs in the early stages of the relationship. The protection of this space will emerge at the initial stages of the intimate relationship.

90.These are the main justifications for the right to privacy. However, before we begin discussing the proper balance, we will take a look at comparative law for support in deciding the legal issue that was placed at the center of the appeal at bar.

English Law

91.In the past decade, the right to privacy has acquired a place of honor in English case law. In the past, the only grounds for a suit for a violation of the right to privacy was a breach of confidence, which requires three separate elements to be proven: (1) the nature of the information that was revealed mandates protection of its confidentiality; (2) the information was transferred under circumstances which establish a duty of confidence; (3) misuse or unauthorized use of the information (for further details, see: The Law of Privacy and the Media 163-222 (Mark Warby, Nicole Morehman and Iain Christie eds., 2011 (hereinafter: “The Law of Privacy and the Media”)). However, in 2008, the House of Lords adopted, in re. Douglas v. Hello! Ltd. [2008] 1 A.C. 1 (H.L. 2007) (appeal taken from Eng.), an additional independent cause of: ‘misuse of private information’. While the cause of breach of confidence emphasizes the breach of the confidential relationship between the parties, the cause of misuse of private information “highlights” the violation of privacy even without the existence of a confidential relationship. See Paragraph 51 of the opinion of Lord Hoffmann in re. Campbell (above):

“The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity - the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people.”

92.The said legal development expresses the rise of the importance of the right to privacy in English law. This right, which was defined, in practice, as a right pertaining to an ‘in personam’ relationship became an ‘in rem’ right. The cause of ‘misuse of private information’ requires the following two conditions to be proven: (1) the information that was misused is indeed information that is protected by the right to privacy, as it appears in the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the “European Convention for Human Rights”); (2) examination of the balance between the freedom of expression and the right to privacy, as they appear in the European Convention for Human Rights, tips the scale in the direction of the right to privacy (see, for example: re. Campbell above and: The Law of Privacy and the Media above, 226).

93.In the said re. Campbell, the House of Lords required The Mirror magazine to pay model Naomi Campbell damages following publications regarding drug rehabilitation treatments which she underwent – a publication that amounts to a violation of her privacy. The judgment discusses at length the nature of the cause of ‘misuse of private information’. With regards to the first condition, which concerns the definition of the information that is protected by the right to privacy, the House of Lords referred to the “reasonable person” test, which was determined around a decade prior thereto in re. ABC, in which the motion of a plant owner to identify the methods of killing opossums at his plant as information protected by the right to privacy was denied:

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behavior, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63).

[Emphasis added – N.S.].

94.On a side note, we will mention that the same test was adopted in the case law in New Zealand (see, for example: P v D [2000] 2 NZLR 591) and it is also supported in academic literature (see, for example: William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960)). Moreover, see Paragraphs 20-21 of the opinion of Lord Nicholls of Birkenhead in re. Campbell, in which it was held that in terms of the question of whether the information is protected under the right to privacy, the rights of others or other interests that may be harmed due to prevention of the publication should not be taken into account. These will be considered at the stage of the balancing of the rights. The guiding question at the initial stage is whether the injured party had a “reasonable expectation of privacy” with respect to the facts that were exposed:

“20. … article 10(2), like article 8(2) [of the European Convention for Human Rights – N.S.] recognizes there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant's private or family life.

21. Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.

[Emphasis added – N.S.]

95.It was further held in re. Campbell that the manner in which the clashing rights will be balanced will be decided in each case on its merits. Freedom of expression does not prevail in principle over the right to privacy. It is necessary to meticulously examine the clashing rights in each and every case, and to refrain from determining a generic hierarchy between the two rights (see, for example: In re S [2004] Fam 43 (C.A. 2003)). In balancing between the two rights, i.e. the protection of privacy on the one hand, and the freedom of expression on the other, it is necessary to examine whether the infringement of privacy is supported by the existence of a ‘sufficient public interest’. Against the background of the aforesaid, it appears that reporting on a private person who is undergoing rehabilitation treatments, although they are a public figure, does not fulfill the said condition:

“I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilized values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favor of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicized in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognized and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatsoever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information”.

(Re. Campbell above, in Paragraphs 55-56 of Lord Hoffmann’s judgment).

[Emphasis added – N.S.].

In other words:

“The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it.”

(Ibid, in Paragraph 157 of the judgment of the Baroness Hale of Richmond).

96.Re. McKennitt, the circumstances of which are relevant to the appeal at bar, discussed the suit of Ms. McKennitt, a Canadian folk singer, whose main claims were based on an infringement of her privacy (see Mckennitt v. Ash [2008] QB 73 (C.A. 2006) (hereinafter: “re. Mckennitt”)). In 2005 (before the House of Lords adopted, as stated in Paragraph 91 above, an additional independent cause of ‘misuse of private information’), the singer’s friend published a book which exposed extensive parts of her private life, including: details regarding her relations with her late fiancé, her health, and details about her sex life. It was ruled that because of the trust relationship that prevailed between the singer and her friend, the publication of the book fell under the duty of confidence (the ‘breach of confidence’), and that it fulfilled the following three elements: (1) a friendship trust relationship existed between the parties; (2) the nature of the information that was published mandates maintaining its confidentiality; (3) misuse and unauthorized use was made of the information.

97.However, in another case, English case law recognized ‘the right to tell one’s own story’ where the information is “joint” and was acquired in an experience common to the two partners. A v B [2003] Q.B. 195 (C.A. 2002) (hereinafter: re. A v B). At the center of the case was a famous soccer player who had casual extramarital sexual relations with two women, and petitioned against a newspaper article based on their testimonies. It was ruled that the women have the right to publish their story, and it prevails over the soccer player’s right to prevent the publication. The freedom of expression was preferred over the right to privacy. The main grounds for dismissing the soccer player’s petition were based on the short acquaintanceship between the couple, which did not establish for any one of the parties an expectation of a ‘fiduciary duty’ (ibid, in Paragraph xi):

“The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right. While recognizing the special status of a lawful marriage under our law, the courts, for present purposes, have to recognize and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it”.

[Emphasis added – N.S.].

98.Thus, in re. McKennitt above, the court distinguished the case before it from the A v B case, ruling that the latter concerned a casual sexual relationship, and as such does not prevent either one of the partners from describing his story at the expense of the other party. However, it was clarified that in a stable and lasting relationship, by virtue of which a ‘duty of confidence’ arises, the right to privacy will prevail over the freedom of expression:

“…the relationship between Ms. Mckennitt and Ms. Ash…was miles away from the relationship between A and C and D. In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the woman up they realized that they were entering into a relationship of confidence with him …” (Paragraph 30).

99.On a side note we will point out that the fundamental position of the English legal system with respect to the status and scope of the right to privacy was adopted, with minor changes, by other common law courts (see, for example: Canada – Aubry v Les Éditions Vice Versa Inc [1998] 1 SCR 591; New Zealand – Hosking v Runting [2005] 1 NZLR 1).

The European Court of Human Rights 

100.‘Privacy’ law developed in English law under the patronage of the European Convention for Human Rights and its interpretation by the European Court of Human Rights. It is only natural that we examine the position of the ‘bride’ in the issue laid before us.

101.Re. Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR 2012 (hereinafter: “re. Von Hannover”) concerned the claim of several members of the Monaco royal family against a German newspaper which published their pictures while they were on a private vacation. It was ruled that in the clash between the freedom of expression and the right to privacy, it is necessary to consider the following criteria: (1) the extent of the contribution to public debate; (2) whether the person is a public or private figure; (3) the conduct of the person with respect to violation of his privacy prior to the publication; (4) the content, form and consequences of the publication; (5) the circumstances in which the information was obtained.

102.We will now explore the nature of these criteria: (1) it was ruled that the contribution to public debate is not limited to political matters or to matters pertaining to crime and corruption. Information that is relevant to the field of entertainment and sport also contributes to public debate. However, rumors regarding marital difficulties of a public figure or financial difficulties of a person from the field of entertainment are not protected by this defense; (2) it was ruled that reporting on a person holding a public position is not similar to reporting on a private person. While reporting on a public figure is indeed essential to the existence of a democratic society, reporting on a private person is not required to such an extent; (3) it was ruled that past cooperation of the subject of the publication with the media will work against him. However, not all cooperation with the media can serve as an argument that legitimizes the publication; (4) and (5) it was ruled that the other elements serve as indicators that attest to the extent of the violation. Thus, for example, a publication in a national newspaper is in no way similar to a publication in a journal intended only for workers of a certain sector. 

103.In re. Axel Springer AG v. Germany [GC], no. 39954/08 ECHR 2012, a similar suit was heard regarding the publication of a report on the arrest of a German celebrity. The European court reiterated the tests determined in re. Von Hannover above, stating (in Paragraph 93) that in balancing between the rights, both the manner in which the information reached the publishing party and the extent of its credibility must be addressed.

Continental Law

104.The German legal system developed a three-stage test in order to handle situations in which it is alleged that the right of a person to privacy has been violated. First, the extent of the violation of privacy is examined; second, the justifications for the violation are examined, for example: public interest and the consent of the subject of the publication; third, an examination is carried out of the proper balance between the violation of privacy and the right exercised, while addressing the manner and scope of the publication and subjective matters (such as: intention to harm). However, insofar as the violation of privacy touches on the “core of human life”, the said balancing will not be conducted at all, and the publication will be prohibited (for an extensive description regarding the development of the German law and further authorities, see: Paul M. Schwartz & Karl-Nikolaus Peifer, Prosser's Privacy and the German Right of Personality: Are Four Privacy Torts Better than One Unitary Concept?, 98 Cal. L. Rev. 1925 (2010) (hereinafter: “Prosser’s Privacy”). Translations of the judgments are taken from this article). As a consequence, a violation of the core of the right to privacy will not be allowed, even where it is balanced against a broad public interest:

“Even serious public interests cannot justify encroachments of this area; an evaluation according to the principle of proportionality does not take place” (BVerfGE 80, 367 (1998) NJW 1990 563)”.

105.In 2008, the German Federal Constitutional Court issued a judgment in a similar case to the case at bar: (BVerfGE 119, 1 (Ger.) 61 NJW 39 (2008) (Ger.)) (a detailed description of the judgment appears in Prosser’s Privacy above on pages 1932-1937). According to the facts of the judgment, Maxim Biller (hereinafter: “Biller”) published, in 2003, a novel revolving around a romance between an author by the name of ‘Adam’ and an actress by the name of ‘Esra’. The novel describes the gamut of difficulties faced by the couple, and references, inter alia, the character of ‘Esra’s’ family and her fatalistic personality, including: her mother’s arrogant character; details regarding her daughter who was born from her first marriage, and a description of the sexual relationship between them. According to Biller’s former partner, there is a considerable similarity between her character in real life and the character of the protagonist as described in the story’s plot (‘Esra’). According to her, the novel contains many intimate details in connection with the relationship she had in the past with the author of the work – Biller, without obtaining appropriate consent. Her mother further stated that the novel contains intimate details that publicly expose her personality which is presented in the novel in a negative light.

106.At the initial stage, the court dealt with the examination of the artistic medium through which the violation of privacy was committed. Ostensibly, the book written by Biller is a fictional novel, any connection between which and reality is completely coincidental. However, according to his former partner, the novel contains precise details and in fact constitutes a ‘memoir’ (i.e. an autobiography) in the guise of a novel. At the second stage, the court examined whether readers belonging to the broad social circle of the average person (such as: the injured party), as distinguished from the circle of celebrities and public figures, could indeed identify her by reading the novel. Examining the extent of the novel’s classification as fiction or biographical will be examined in view of the social circle, i.e. – identification of the character described in the novel by the social circle, is nothing but a presumption that the novel is based on real life – ‘roman à clef’. Case law has developed a dual test intended to help identify the character described in the novel: One, the degree of similarity between the literary character and the real character; two, the degree of the violation of privacy. An intermediate violation of privacy may be remedied by a weak likeness between the literary character and the real character; and vice versa, a weak violation of privacy may be remedied by a stronger similarity between the real character and the literary character. Consequently, German case law developed a two-stage test: (a) is the literary character indeed identified by the close social circle; (b) is the degree of the violation of privacy neutralized through the ‘fictionalization’ of the character described in the plot. We therefore have a quasi- ‘parallelogram of force’ between the extent of the identification and the severity of the violation.

107.After examining the evidentiary matrix, the claim of Biller’s partner that she may be identified by reading the novel, was accepted. Conversely, her mother’s claim was rejected. Once it was ruled that it was indeed possible to identify Biller’s partner, the court examined the violation of the right itself. Due to the fact that the violation is at the core of the right to privacy, and as such cannot be remedied, the publication of the novel was prohibited.

108.From inspection of French case law, a similar approach can be identified (for a specification, see: The Law of Privacy and the Media above, on pages 155-159 and the authorities cited therein) (the article below: Privacy in Europe and the Common Law). The source of the protection of the right to privacy is embedded in Section 9 of the Code Civil [C. CIV.] (in its translation into English):

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

109.Throughout the years, the French courts have developed two main principles when dealing with a violation of privacy: (a) there is no hierarchy among the competing rights; each competing right has the same normative status; (b) all measures taken in the course of the balancing must be proportional.

110.Against the background of the said principles, it was held that freedom of expression will prevail where there is a public interest with respect to a certain event (‘fait d'actualité’) or when there is a significant contribution to public debate. Examination of the existence of the public interest in the framework of French law is similar to examination of the public interest in the case law of the European Court of Human Rights, as specified above. The right to privacy will prevail over freedom of expression only where the violation is in the ‘intimate dimension of private life’ (for further details and references, see: Helen Trouille, Private Life and Public Image: Privacy Legislation in France, 49 (1) I& C. L. Q. 199 (2000), and: Privacy in Europe and the Common Law above, on pages 155-159).

U.S. Law

111.Freedom of expression is established in the First Amendment to the Constitution, an amendment which has received immortal status in U.S. case law, to the point that it is hard to overstate its importance (see, for example, U.S. law on prior restraint: Near v. Minnesota, 283 U.S. 697 (1931)). In contrast, the right to privacy is not established in the Constitution. Indeed, since the above key article of Justices Warren and Brandeis (The Right to Privacy above) the status of the right to privacy has changed. However, it still remains constitutionally inferior to the freedom of expression.

112.U.S. law recognizes four tort causes of action for a violation of privacy (see Restatement (Second) of Torts, § 652 (1977)). From the causes of action, the one relevant to the case at bar is: ‘public disclosure of private facts’. The cause of action is defined thus (ibid, 652D):

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public”.

In order for a cause of action by virtue of ‘public disclosure of private facts’ to rise, the plaintiff is required to prove that: (1) the publication concerns matters pertaining to his private life; (2) the information that was published is highly offensive to a reasonable person; (3) the information that was published is not of legitimate public concern.

113.U.S. case law has focused on the definition of legitimate public concern. Its existence is dependent on proving a logical nexus between the private information that was exposed and the existence of a legitimate public concern (see, for example: Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)) (hereinafter: “re. Seabury”). This causal link was generously and broadly interpreted in case law (ibid).

114.In a series of judgments concerning the publication of autobiographical works, it was explicitly held that the existence of a ‘legitimate public concern’ prevails over a person’s right to privacy. Thus, for example, in the said re. Seabury, a suit was heard in connection with the exposure of information relating to the conduct of the plaintiff’s marital and domestic life. In the book, which was published by her former husband’s brother and focused on the relationship between the two brothers, details were included pertaining to her marital life. She, on her part, petitioned the court to prevent the publication and distribution of the book. However, her suit was dismissed with prejudice in view of the existence of a ‘logical nexus’ which falls under the constitutional protection:

“A review of the record in this action clearly shows the requisite logical nexus. An account of the author's close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection” (ibid, on page 397).

[The emphases have been added – N.S.].

115.In 2004, another lawsuit was heard concerning a violation of privacy, following the publication of an autobiographical work (Bonome v. Kaysen, 17 Mass. L. Rep. 695 (Mass. Super. Ct. 2004)). ‘Kaysen’, a well-known author, wrote a book entitled ‘The Camera My Mother Gave Me’, which describes her coping with severe pain in her genitals. The book documents the impact of her said medical condition on the intimate relations with her partner, ‘Bonome’. ‘Bonome’ is presented in the book in a negative light, and it is suggested that he attempted at one point to rape Kaysen, after she refused to have sexual relations with him. ‘Bonome’s’ claim against the publication and distribution of the book was dismissed with prejudice because there was a ‘legitimate public interest’ in the publication of ‘Kaysen’s’ autobiographical book. The courtaddressed the difficulty inherent in an autobiographical story containing the experiences of two separate partners. Although the autobiographical story of one is a violation of the other’s privacy, recognition of ‘Kaysen’s’ right to expose the private information establishes the logical nexus required between the information exposed and the public interest, in order to justify the publication thereof.

“As noted above, there is an additional interest in this case: Kaysen’s right to disclose her own intimate affairs. In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story – which inextricably involves Bonome in an intimate way. In this regard, several courts have held that where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Id.; Anonsen, 857 S.W.2d at 705-06; Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident”.

Interim Summary – Foreign Law

116.The case law in England, Germany, France and of the European Court of Human Rights leans towards granting extensive protection to the right to privacy versus the freedom of expression. Conversely, the U.S. system has adhered to granting a weak status to the right to privacy.

We will now examine our “homegrown” law on the issue of the relationship between the right to privacy and the freedom of expression.

The Normative Balance between the Rights

117.The right to privacy is a relative right. Freedom of expression is also not an absolute right. As such, it is necessary to balance them, one against the other, and against parallel rights and other interests. In the appeal at bar, we are witnessing a “frontal clash” between the right to privacy and the freedom of expression. What is the law when two constitutional rights clash with one another? The freedom of expression and the right to privacy are rights that are shaped as principles, and hence the clash between them is not an abstract clash, without any foundation in legislation. On the contrary, the parties’ claims are based on and supported by the legislation itself. Section 2 of the Protection of Privacy Law prescribes that the “publication of a matter pertaining to the private life of a person, including his sexual history, or his health, or what he does in private” is included in this violation. The law does not deem this determination to be an absolute matter, and instructs in Section 18(3) of the Protection of Privacy Law that the violation is permitted if there is a “public interest therein that justifies it under the circumstances, and provided that if the violation was by way of publication – the publication was not false”. We therefore have before us a question regarding the interpretation of the provision of the said Section 18(3). This balance is, naturally, an interpretational-constitutional balance. “It takes into consideration the in-principle importance of each one of the rights and its weight at the point-of-decision. It reflects the balance conducted within the bounds of proportionality in its narrow sense in the limitation clause” (see Barak, Proportionality in Law above, on pages 124-125).

Proportionality in the Narrow Sense – a Balance of Profit and Loss

118.The test of proportionality in the narrow sense examines the existence of “a proper correlation between the benefit that the policy produces and the damage that it causes” (see HCJ 3648/97 Stamka v. The Minister of the Interior PDI 53(2) 728, 782 (1999)). “It is necessary to examine whether a proper ratio exists between the public benefit derived from the act of legislation whose legality is considered and the damage to the constitutional right caused by such act of legislation” (see HCJ 2605/05 College of Law & Business v. The Minister of Finance, Paragraph 50 of the judgment of Chief Justice D. Beinisch (November 19, 2009)).

119.At the center of the proportionality test – in its narrow sense – is the following question: does the weight of the benefit derived from the realization of one right exceed the weight of the damage that will be caused to the other constitutional right. This weight is neither measurable nor quantifiable, but rather metaphorical weight derived, inter alia, “from political and economic ideologies, from the unique history of each and every country, from the structure of the political and governmental system” (see Proportionality in Law above, on page 431) from the specific legal tradition and various social values.

120.We are not concerned with comparing the weight of the two constitutional rights themselves, i.e. the weight of the right to privacy on the one hand and the weight of the freedom of expression on the other. The question put to our decision is different and limited in scope: is the weight of the marginal benefit derived as a result of realization of one right greater than the marginal damage that will be caused to the other right. As stated at this court in another case: “The question is whether the blanket prohibition is proportionate (in the narrow sense)? Is the correlation between the benefit derived from achieving the proper purpose of the law (to reduce as much as possible the risk from the foreign spouses in Israel) and the damage to the human rights caused by it (a violation of the human dignity of the Israeli spouse) a proportionate one? The criterion we must adopt is a value one. We must balance between conflicting values and interests, against a background of the values of the Israeli legal system. We should note that the question before us is not the security of Israeli residents or protecting the dignity of the Israeli spouses. The question is not life or quality of life. The question before us is much more limited. It is this: is the additional security obtained by the policy change from the most stringent individual check of the foreign spouse that is possible under the law to a blanket prohibition of the spouse’s entry into Israel proportionate to the additional violation of the human dignity of the Israeli spouses caused as a result of this policy change? (HCJ 7052/03 Adalah The Legal Center for Arab Minority Rights in Israel v. The Minister of the Interior, PDI 61(2) 202, Paragraph 91 of the judgment of Chief Justice A. Barak (2006)).

121.The question at the center of the appeal at bar is not which is preferable, freedom of expression or the right to privacy; but whether the weight of the benefit that will grow from the prevention of publication of the book at bar – which violates the right to privacy – is greater than the weight of the damage that will be caused to the freedom of expression as a result of the prevention.

122.In determining the weight of the rights placed on the scales, three criteria must be addressed: the importance of the right; the probability of the violation or realization of the right; the magnitude of the violation or the realization. With respect to the importance of the right, it has already been ruled that despite the identical constitutional status of the members of the family of rights, the social objectives established and protected by such rights are not identical. “Not all constitutional rights are equal in importance, and consequently nor is their specific weight. The importance of a constitutional right and the importance of preventing its violation are determined according to the basic perceptions of society. They are impacted by the cultural history and the character of each and every society” (see Barak Proportionality in Law above, on page 443). There is another distinction between the core of the right and its margins. Protection of the core of the right is not the same as protection of its margins. Relevant in this regard is the opinion of Justice (former title) A. Barak in HCJ 5016/96 Horev v. The Minister of Transportation, PDI 51(4) 1, 49 (1997): “Within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered to political expression is superior to that allotted commercial expression. In the context of a certain aspect of a right (such as political speech), a violation at the core of the right is not the same as a violation in its margins”.

123.The “geographic location” of the specific case is determined in view of examination of the rationales underlying the manifestation of the right with which we are concerned. “Although all expressions are included in our system in the one ‘category’ of freedom of expression, not all types of expressions enjoy equal protection. The basic criterion for determining the extent of the protection for a certain expression is the social importance of the expression, and particularly its importance in realizing the objectives underlying the freedom of expression” (F.Cr.H 7383/08 Ungerfeld v. The State of Israel, Paragraph 28 of the judgment of Justice (former title) E. Rivlin (July 11, 2011); for example: protection of the freedom of commercial expression is not the same as protection of the freedom of artistic expression; their importance is different (the above re. Kidum; see and compare: HCJ 5432/03 Shin - The Israeli Movement for Equal Representation of Women v. The Council for Cable TV and Satellite Broadcasting, PDI 58(3) 65, 82 (2004); HCJ 4644/00 Jafora-Tabori Ltd. v. The Second Authority for Television & Radio, PDI 54(4) 178, 182 (2000)). Similarly, the protection of freedom of expression in relations between individuals is not the same as protection of freedom of expression in relations between an individual and the government: “The scope of the individual’s right to freedom of expression against the state is more extensive than the individual’s right to freedom of expression against another individual” (Barak Human Dignity, above on page 723).

124.Note, it is necessary to be careful of being ‘swept away’ in the ideological level. The value must not serve as a veil against an interest. Sometimes, the ideological robe, the shell, the external covering, is void of any moral content and is actually an interest-oriented (financial, personal or other) dispute. In situations such as these, there is nothing in the manifestation of the right with which we are concerned other than what it comprises. In this case, values which do not underlie the limited manifestation should not be read into it in an artificial and forced manner. These are the situations in which the right of one individual to personal wellbeing clashes with the right of another individual to personal wellbeing. In such a case, we should not wear ideological dress nor be blinded by an ideological argument. The value is, as a matter of fact, an interest, and the Talmudic question then arises “why do you think your blood is redder than anyone else’s” (Bavli, Pesachim 25, B). In these situations, there is no need to examine the “clash of civilizations” between the basic rights. The specific issue of division of the “personal wellbeing” between the litigants may be decided without requiring the in-principle decision.

125.The probability of the violation in the realization of the right, and the magnitude of the injury, also affects the relative weight of the rights on the constitutional scales. A highly probable violation is not the same as an improbable violation; the violation of a single right is not the same as a violation of many rights; a severe injury is not the same as a minor injury; the violation of a right in relations between individuals is not the same as a violation of a right in relations between an individual and the government.

Freedom of Speech and the Right to Privacy
 

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126. In the proper balance between the right to privacy and freedom of speech, it is first necessary to examine the degree of compatibility of the right at hand with the rationales it is based upon. Accordingly, first to be examined is the extent of the expression's contribution to public debate against the severity of the infringement on the right to privacy. An expression that greatly contributes to public debate will be given priority on the constitutional scale when weighed against a medium-level invasion of privacy; infringement on the core of privacy will be afforded protection from a medium-level infringement on freedom of speech. Indeed, an issue that is important in and of itself is the existence of a parallel infringement, similar in degree, such as a collision between an expression that greatly contributes to public debate and severely impinges on the core of privacy. I need not resolve this issue in this appeal. Such a decision will require a meticulous examination of the details of the case in question. The appropriate balance, to my mind, is this: preferring an infringement on the fringes of the right to privacy to the alternative of an infringement on the core of freedom of speech, and preferring an infringement on the fringes of freedom of speech to the alternative of an infringement on the core of the right to privacy.

 

127. An aid as to the degree of infringement on the right to privacy is to be found in the examination of numerous characteristics, including: (1) the "geographic" location of the infringement on the right, at its core or on its margins; (2) the nature of the relationship and the duties of trust between the parties; (3) the publicness or privacy of the figure; (4) the manner of publication; (5) the way in which the information came to the knowledge of the promulgator; (6) the conduct of the person with respect to invasions of his privacy prior to the publication; (7) the infringement, whether one-time or continuous. These criteria and others like them assist the presiding judge in deciding the severity of the injury.

 

128. In deciding the matter at hand, we have adopted an arrangement similar to the one practiced in the European legal systems. These legal systems are better suited to our legislative and constitutional structure. Let us keep in mind and give heed: turning to comparative law harbors both peril and blessing. The blessing lies in learning from the experience of others, as articulated by Justice Holmes "The life of the law has not been logic, it has been experience" (Anonymous [Holmes], Book Notices, 14, Am. L. Rev. 233, 234 (1880)). Comparative law allows us to enrich our world, learn and acquire knowledge.  However, alongside the blessing, there is also danger - "The root of faith is the root of rebellion" – learning in the "copy-paste" method is not appropriate. Each and every system has its unique characteristics: the values underpinning the system, a legislative and constitutional structure, national history, political ideologies and more. These unique elements affect the rulings of the court: "It is a burden that we bear to be careful not to be captivated by foreign legal systems, and primarily – to know to distinguish and choose between principles and doctrines and manners of thought and solution techniques – in which inspiration and wisdom can be found – to specific solutions and details that we will leave unnoticed. Indeed, comparative law expands the mind, it enriches with knowledge and wisdom, rescues us from provincialism, yet, at the same time, let us not forget that it is ours and our situs that we are dealing with, and let us beware of an imitation of assimilation and self-deprecation" (L.Cr.A. 8472/01 Maharshak vs. the State of Israel, PD 59(1)442, 474 (2004)); and in other words: "This comparative law – whether on the international level or the state level – holds great importance … however, every country has its own problems. Even if the in-principle considerations are similar, the balance between them reflects the uniqueness of every society and the characteristics of its legal arrangements … indeed, that is the power and these are the limits of comparative law. Its power lies in the expansion of the interpretational field of vision and horizon. Its power lies in the guidance of the interpreter as to the normative potential held by the legal system … its limits are in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it treats individuals and society. Indeed, comparative law is like an experienced friend. It is advisable to listen to his good advice, but it should not replace self-decision" (see H.C.J. 4128/02 Adam Teva V'Din – Israel Union for Environmental Defense vs. the Prime Minister of Israel, PD 58(3)503, 515-516 (2004)).

 

129. As aforesaid, the American legal system places supreme importance on freedom of speech. Only rarely will freedom of speech retreat therein before the right to privacy. This legal perception is not in line with the common standard in common law and continental law jurisdictions. It is based on the First Amendment to the Constitution, whose status and importance in American case law and culture is a well-known fact that requires no proof. American legal policy reflects, de facto, a nearly generic preference of freedom of speech over the right to privacy.

 

130. Should we learn from the European legal systems or follow in the footsteps of their American counterpart? As for myself, the answer is clear, and results from the remoteness of the American system from the Israeli constitutional tradition, from the legal framework and from our Hebrew legacy (see and compare: Eli Salzberger and Fania Oz-Salzberger, "The Tradition of Freedom of Speech in Israel", Quiet, Someone is Talking! The Legal Culture of Free Speech in Israel, 27 (Editor: Michael Birnhack, 2006)).

 

131. On the constitutional level – the status of the right to privacy as a basic right is established in Section 7 of Basic Law: Human Dignity and Liberty. Freedom of speech is absent from this law. Without delving into the thick of the question – of whether freedom of speech is included in the constitutional rights contained in the Basic Law – it is undisputed that "Freedom of speech is not within the rights explicitly enumerated in the Basic Law". Even those who include freedom of speech in the Basic Law believe that it is derived from the principle of human dignity and self-fulfillment (see: Interpretation in Law (Constitutional Interpretation) above, on pages 427-428). For details and references on this matter see also: Hillel Sommer "The Non-Enumerated Rights – of the Scope of the Constitutional Revolution" Mishpatim 28 257, 318-322 (5757)). The adoption of an outlook that grants freedom of speech "supreme status" over the right to privacy has no footing either in the constitutional text itself or in its reasoning. As may be recalled, when the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation were legislated, the Basic Law: Freedom of Speech and Organization Bill was also submitted, but failed to pass into a law in the Knesset (see Bills 5754 101).

 

132. On the theoretical level, it is possible to base a chronological approach of "[T]urn from evil and do good": preventing an invasion of privacy first and realizing artistic freedom later. This, in order to prevent creative work whose glory would come from trampling over others: "Man is like the tree of the field and speech is his fruit…and just as a bad fruit does not emerge from a good root and a good fruit does not emerge from a bad root, so is man's speech when he quarrels with his fellow man and insults him, this indicates that the root from which the insult comes is bad, and therefore the insult is within him, because the bad thing coming out of him is present in him, and where the trunk of the tree is flawed so is what will come out of it" (the MaHaRal, Netivot Olam [Paths of the World] B, Netiv HaShtika [Path of Silence], Chapter A). This issue deserves thought and contemplation, as to both theory and practice. As for me, I agree with the words of Justice I. Amit in Re. Captain R. (above, in paragraph 5 of the judgment): "Since the legislature has chosen, in the Basic Law:  Human Dignity and Liberty, to elevate the right to dignity and understate freedom of expression, I believe weight should be ascribed to that, in the sense that it may not be predetermined that in a collision between the two, the weight of the right of expression will prevail. I will note that in many judgments we find reliance on the judgment in Re. Avneri as part of the reasoning for a preconceived preference of freedom of speech, but one should bear in mind that this judgment was rendered prior to the enactment of Basic Law: Human Dignity and Liberty. In my mind, when the matter at hand pertains to a collision between freedom of speech and the right to a good name in a private lawsuit under the Defamation Prohibition Law – to be distinguished from a collision between freedom of speech and other values, such as the protection of public feelings – the balance should be carried out ad hoc, and one should beware of a formula that includes a "coefficient" or "power multiplier" that favors freedom of speech". These words also coincide with the aforementioned statements by Prof. Barak, whereby "The scope of the individual's right to freedom of speech against the State is more comprehensive than the individual's right to freedom of speech against another individual" (Barak, Human Dignity, above on page 723). Hence, in the balance between the freedom of speech of one individual and the privacy of another individual, freedom of speech is not to be given automatic precedence nor granted "super-status".

 

133. On the legislative level – the Protection of Privacy Law prescribes in Section 18(3) that "In any criminal or civil proceeding for infringement of privacy one of the following may constitute a good defense … there is public interest in the infringement which justified it under the circumstances of the case". The language of the law does not provide a sweeping protection to any infringement that has a public interest. This language expressly deviates from its American counterpart, which offers protection to any expression of public interest and spares any further examination of the magnitude of the infringement. This is not our way. We hold America in esteem, but we do not acquire all of the goods it offers. It is not for naught that the Israeli legislature rejected the proposal to omit the words "which justified it under the circumstances of the case" (see: Eli Halm Protection of Privacy Law 235 (2003)) (hereinafter: "Protection of Privacy Law"). Case law states: (C.A. Registrar of Databases vs. Ventura, PD 48(3)808 827 (1994)): "The question that needs to be examined in order to establish the protection of Section 18(3) of the law is not whether the public has an interest in the information, but rather whether there is a cause that justifies the invasion of a person's privacy in order to satisfy such public interest". This position has also been expressed in literature: "It is not sufficient that the invasion pertained to a public interest, but rather it has to be clear that there was a public interest in the invasion itself. That is to say, the fact that the subject-matter of the publication in general is of public interest will not lead to the application of the protection. The person advocating it will need to persuade that the public interest required him to invade another's privacy. The question of existence of a public interest cannot be examined by the court merely according to a general formula, and it will need to give heed to the circumstances of the matter adjudicated before it, in order to decide whether the invasion of privacy is justified under such circumstances" (Ze’ev Segal "The Right to Privacy versus the Right to Know", Iyunei Mishpat 9 175 193 (1983)). For additional information see also: Ruth Gavison "Prohibition on a Privacy Invading Publications – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204-214 (Editor: Ruth Gavison, 1982)).

 

134. Our Jewish Heritage – the right to privacy seeps through the slits of the comprehensive writings of Jewish law. Prohibitions on defamation, gossip, Herem De-Rabbeinu Gershom [Ban of our teacher Gershom], Heizek Re'iyah [damage by seeing], are only a few of the many appearances of the right to privacy in Hebrew law (see, for example: Nahum Rakover Protection of Privacy (2006); Itamar Warhaftig A Person's Privacy– the Right to Privacy in the Halacha (2009)). We cannot specify and enumerate its various appearances here, and we will therefore make do with a brief review of an issue that is close to the matter at hand – the "Bal Ye'amer" [not to be told] prohibition. This prohibition is defined in the Talmud (Bavli, Yoma D, B) as follows: "Whence do we know that if a man had said something to his neighbor the latter must not spread the news until he tells him ‘go and say it’? From the scriptural text: The Lord spoke to him out of the tent of meeting, le’emor [saying] ". This prohibition was interpreted in the answers of Rabbi Haim Palachi (Q&A Hakakei Lev, Part A, Yoreh De'ah, Title 49 (hereinafter: "Hakakei Lev Q&A"): "And it further appears to my humble mind to say that even if a person sends a letter to his friend, the friend who received the letter is forbidden to disclose the contents of the letter to others. Even if it concerns nothing unusual, contains no secret nor something indecent nor damage to the writer of the letter, there is a prohibition to disclose, as stated in the Gemara, [when] anything told to a friend is not to be told, until he says so. All the more so where disgrace or a secret are concerned, and damage arises when it is disclosed". Indeed, under Jewish law, a person is prohibited from revealing the secrets of his fellow man, not only on grounds of gossip, but also in order to prevent harm. As articulated by Rabbi Yonah Girondi: "And a person must conceal the secret his friend will confidentially reveal to him, even though revealing that secret is not a matter of gossip, because revealing the secret will cause harm to its owner and a reason to breach his intentions… because the person revealing the secret has only just left the path of modesty, and here he is violating the will of the owner of the secret" (She'arei Tshuvah Part C, Title 225). Therefore, revealing a secret is not only a betrayal of trust, but also a blatant invasion of the private space of the owner of the secret and a "breach of his intentions", i.e., - impingement on his liberty. Another opinion was expressed by Rabbi Haim Palachi, whereby the person who discloses the secret of another person, steals the other person's proprietary right to the secret he told him: "Veritably stealing his mind, which is at the hidden depths of his heart" (Q&A Hakakei Lev above, ibid).

 

135. The formal course for our reference to Jewish law, Section 1 of the Foundations of Law Act, 5740-1980, prescribes as follows: "Where the court, faced with a legal issue requiring determination, finds no answer thereto in the statues or case law or by analogy, it will determine in the light of the principles of freedom, justice, equity and peace of Israel's heritage”. Basic Law: Human Dignity and Liberty outlined, in Section 2, its purpose to establish "The values of the State of Israel as a Jewish and democratic state". It appears unnecessary to discuss the level to which Jewish law is obligatory in the Israeli legal system. It is our privilege that the tradition of Israeli law does not begin in 5708, upon the establishment of the State of Israel, but is rather rooted in a tradition of thousands of years. A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law and holds the protection of a person's privacy in high regard. As articulated by Chief Justice A. Barak: "Reference to the fundamental values of Jewish law is not reference to comparative law. It is a reference to the justice of Israel. It is a mandatory reference" (Aharon Barak A Judge in a Democratic Society 290 (2004)).

 

136. The proper position in a collision between the rights in question – I believe it is the one warranted by reality – is the examination of every case on its merits, without an in-principle ruling as to the precedence of one right over the other. A severe infringement of freedom of speech would outweigh a light and a medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and a medium infringement of freedom of speech. This rule must be put into practice whenever the rights collide with one another. It is not for us to complete the task, but neither are we free to avoid it.

From the General to the Particular – the Right to Privacy and Freedom of Speech

137. We must take several steps in order to analyze the novel at the center of the appeal before us, determine the severity of the infringement on rights, the damage of the collision between them and the balance required under the circumstances of the matter: firstly, we will discuss the degree of fictionalization of the protagonist and the similarity to reality; secondly, we will examine whether the invasion of the Respondent's privacy is at the core of the right to privacy or at its margins, and discuss the degree of the injury; thirdly, we will examine the severity of the possible violation of freedom of speech.

Degree of Fictionalization

138. Two opinions by senior scholars in the field of global and Hebrew literature – Prof. Ariel Hirschfeld and Prof. Hannan Hever – have been placed before the District Court. In the opinions, the scholars impressively explained why the novel in question belongs to the category of fiction literature and is not classified under the autobiographic-historic category. Whilst "The historian claims that what he writes really happened", the novelist claims "that what he wrote did not happen but rather could have happened". In short, "The historian has a truth claim. The novelist has no truth claim" (see Hirschfeld, in Sections 7 and 8). Hirschfeld continues to examine in detail the creative work of the Appellant and proves, based on its internal and external attributes, the elements of pattern and style thereof, that this text belongs to the literary-fictional type. His fellow scholar, Prof. Hannan Hever, reaches a similar conclusion. According to his position "The distinction between an autobiographic novel and a fictional novel does not depend upon the closeness or remoteness of its plot from the reality of the novelist's life. It is an objective test that is derived from the interpretation of the reasonable reader to the gamut of indications in the novel". After "considering the cumulative weight of the indications found in the novel" Hever reached the conclusion that these indicate "unequivocally that the book deals with the construction of fiction rather than actual reality and that no 'autobiographical contract' was reached between the writer and his readers". Prof. Hever even went as far as to say that "this conclusion refutes any claim based on this argument" (see Hever, in Section 3). A similar conclusion was expressed in the affidavit of the writer Mira Magen, who accompanied the Appellant in the "labor pains" of the book.

 

139. The coming together of different worlds of content harbors both a blessing and a peril. The blessing – in mutual enrichment, in learning from the different and the similar; and the peril – the blurring of the lines that separate the disciplines. Different purposes lie at the basis of law and literature. The roles of law – the resolution of disputes, the imposition of order and the administration of justice – are not in keeping with the objectives of literature, which are the creation of art in and of itself and the creation of meaning for man, as Prof. Hirschfeld says. At times, law and literature go hand in hand, and then law girds up its loins and fights in the defense of literature, but at times – it fulminates against it. The definition of a creative work as fictional, in one area – literature – does not compel a similar definition in another area – law. "Every State in its own script and every people in its own language". The basic assumptions that underlie the different disciplines sometimes lead to opposite definitions and conclusions. That is also the case in the matter at hand.

 

140. Literary fiction expresses an "unwritten contract" between the reasonable reader and the writer. One of the terms of the contract is the lack of connection between the creative work and reality. This is not the case where legal fiction is concerned. The law, contrary to the literary-professional position expressed by the expert professors in the opinions, does not render its judgment in a binary world in which the work is categorized into one compartment and not the other. The law examines the degree to which the work is fictional. At times, the work slightly resembles events that occurred in real life; at times the work is based on such events, but without a full compatibility; and at times, such events are reflected in the actual work word for word. The examination of the degree of fiction is not a theoretical matter. It will be carried out according to the extent of the reader's acquaintance with the events that appear in the work. At times, only the soul mate of the real-life character would be able to recognize the events described through the lines. However, at times, close acquaintances of the character would also be able to recognize it. And sometimes its distant acquaintances, and sometimes the nameless amorphous reasonable reader would be able to identify it. Adopting a legal policy that is based on the literary worldview of the scholars Hirschfeld and Hever is inappropriate. Such a policy would allow those who so seek to publicize things that amount to invasion of privacy and defamation under a literary-fictional guise. The reasonable reader would view the literary manifestation and would be able to ignore the real-world one. However, the acquaintances and cherishers of the real figure would easily recognize it, process the information in their consciousness, and arrive at real-life conclusions; not fictional ones. This would open the door to the nullification of the laws of privacy protection and defamation prohibition.

 

141. Examining the degree of fiction of the creative work before us indicates that the character of the female protagonist includes numerous and unique identifying details, which enable the recognition of the Respondent. Among these, we can enumerate the description of her physical appearance, details of her age, unique occupation, her place of studies, her workplace and her place of residence, details of her special creative work, identifying details of the Appellant, her partner, and events that occurred in reality in the presence of third parties. In its judgment, the District Court correctly articulated these details (ibid, paragraph 40):

 

"a.        The female-protagonist is described in the book when meeting the male-protagonist [as being[ at the age of the Plaintiff at that time, and as someone who studies in the same institution and in the same department as the Plaintiff had, and works at the same place and in the same position as the Plaintiff had. The Plaintiff resided with her partner at the time relevant to the claim in the area described in the book, her partner’s also lived in the immediate area of the location described in the book. The female-protagonist has the same number of siblings as the Plaintiff and her parents are of the same ethnic origins as the Plaintiff's parents.

 

b.         The physical appearance of the female-protagonist as described in the book bears a great resemblance to the physical appearance of the Plaintiff, including her hair, the color of her eyes and the presence of tattoos in locations similar to the ones specified in the book. The book describes many additional details with respect to the female-protagonist's appearance, her hobbies and her past; however, these are less pronounced for the identification of the Plaintiff with the female-protagonist.

 

c.         The book describes, as aforesaid, the Plaintiff's graduation project. The book includes a conceptual description of the project and describes all of the stages of preparation of the project as well as its visual appearance. It is a unique project that had been publicly presented as the Plaintiff's graduation project in the presence of her teachers and schoolmates and consequently also identifies the Plaintiff. The vast volume apportioned in the book to the work and the stages of preparation thereof also points the finger, in and of itself, at the Plaintiff.

 

d.         The descriptions of the male-protagonist in the book in a manner which identifies him as the Defendant also contribute to the identification of the Plaintiff, as the Defendant's partner at that time, as the female-protagonist. A fact to be added thereto is that the book was written by the Plaintiff [sic; should be "Defendant"] under his own name, in the first person, and this too contributes to the identification of the Plaintiff by her immediate environment, which knew her to be the Defendant's partner.

 

e.         The book includes events that undisputedly occurred in reality, in the presence of third parties, and which enable the identification of the Plaintiff as the literary character in the eyes of the persons who were present in the events or had heard about them from the parties".

 

142. These details – factual findings determined by the District Court, and there is no cause to intervene therein or change them – tip the scale and mandate the conclusion that the Respondent can be recognized as the female-protagonist of the Appellant's book. On the whole, according to the nature of the details and their accumulation, there is basis for recognition by the reasonable distant acquaintance, a colleague, a classmate and a potential student. To this we must add that it is the course for juicy details such as these to reach broader circles. A description of physical appearance in a novel is not generally etched in the mind of the reader, and it is temporary and passing. On the other hand, a description of the character's sexual habits and details of her doings in the bedroom fulfill voyeuristic urges and serve as juicy raw material, tradable currency.

 

143. A side note on the opinions of the experts, Prof. Hirschfeld and Prof. Hever: A light and superficial perusal of the theoretical literature that addresses fiction gives rise to distinctions which were not mentioned in the opinions at all, and mainly, the existence of midpoint intermediate definitions between fiction and documentary, such as the Roman à clef genre. For some reason, the experts chose not to present the court with the theoretical definitions and sub-definitions for the term "fiction", which are extensively discussed in research literature. That is a problem with that. As a result, Prof. Hever decisively determined in his opinion that his own conclusion "refutes any claim based on this argument". There is no room for a conclusion such as this in an expert opinion. The expert is required to opine in the field of his expertise, not to overstep the jurisdiction of the court.

The Degree of Invasion of Privacy

144. As aforesaid, with respect to the invasion of privacy, we make a distinction between an impingement on the core of privacy and an impingement on the margins thereof. The core of the right – intimate details of a person's life – "the inner circle of life". The margins of the right – details that belong to the external space of a person's life – "the external circle of life". In this appeal, we are not required to discuss the "twilight zone" that lies between the margins of the right and its core. We are concerned here with a clear infringement on the core of the right. The book includes "a detailed description of matters pertaining to the private life of the Plaintiff… a detailed description of the Plaintiff's relationship with the Defendant, including events, conversations and descriptions that are unmistakably intimate. The book includes a description of the Plaintiff's relationship with her former partner until their breakup, with the parents of her partner and with her own parents, including statements made by the Plaintiff with respect to her parents in personal conversations she had with the Defendant. The Plaintiff rightly claims that the book comprehensively, and without any camouflage, describes her most intimate relationships, exposes her thoughts, feelings, desires, secrets and sexual life. All in such a manner that the Plaintiff's life, down to the most intimate details, is spread out as an open book before the readers" (paragraph 49 of the judgment of the District Court). Descriptions of this type constitute a severe impingement on the very core of the right to privacy.

Protection of the Trust Relations between Couples

145. "Acquire a friend for yourself". This sound advice, which is based on nature and human need, is given to us by Rabbi Joshua Ben Perachia (Mishna, Avot, 1, 6). "And how will one acquire a friend? This teaches that a person should acquire a friend with whom to eat… and read … and reveal all of his secrets, the secrets of the Torah and the secrets of worldly things". (Avot de Rabbi Natan 8, 3). A person needs a friend; man and woman need one another. "Either friendship or death" (Bavli, Bava Batra 16, 2). The relationship between a man and his friend and between a man and his wife serves as a haven for a person, a protected and safe place. The outside world, it is strange and alienated. A man's home is his castle. In the public domain, a person is constantly under a scrutinizing and inspecting eye. In private, in the privacy of his own home, together with a friend or a spouse, a person has a piece of land, physical relaxation and peace of mind. This relationship is characterized by a high level of trust between the parties. At its peak, the friends and the spouses accept each other, as they are, unreservedly. Relationships such as these encourage a person to open his heart and share his secrets with another. Unlike the scale armor that a person wears when going out into the outside alienated world, relationships like these are characterized by removal of the outer layer and exposure of the inner world. In the course thereof, the spouse is stripped bare, physically and spiritually, before the other spouse. A worthy legal regime grants protection to such a relationship. Secrets and details revealed in the framework of interpersonal relationships, in which there is a high expectation for trust relations, are worthy of legal protection. Words such as these were stated by the English Court:

 

"There could be hardly be [sic] anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed". (Argyll v. Argyll [1967] Ch. 302, 322).

 

For additional information see also: Nigel Lowe & Gillian Douglas, Bromley's Family Law 113-118 (2007).

 

146. The Appellant and the Respondent had a longtime romantic relationship that lasted approximately five years. In the course of their acquaintance, the Respondent separated from her partner, and the Appellant divorced his wife. Clearly such a stable and lengthy relationship gives rise to an enhanced duty of loyalty. In exposing intimate details, which one of the parties learned about during the couple’s relationship, there is severe harm to the rationale at the base of the protection of privacy and to the inclination to safeguard and protect the existence of interpersonal relationships. Naturally, the context in which the details were disclosed, and the ones for which the question of exposure is on the table, also adds to the depth and to the weight of the invasion of privacy in the case at bar.

 

147. Interim Conclusion: After examining the degree of fiction in the creative work and the degree of infringement on the right to privacy, we have learned that there is little fiction and great harm. This is a creative work, a novel, in which the reasonable distant acquaintance may recognize the Respondent. It is a grave infringement on the core of the right to privacy, the trust relationship between a couple. The inevitable result is that publishing the novel will cause a severe and intense invasion of the Respondent's privacy; the identification and the injury join together to create heavy weight on the side of privacy on the constitutional scale.

Freedom of Speech

148. The extent of the violation of freedom of speech will be examined according to its underlying rationales. We will distinguish between rationales that reflect extensive social values such as: human dignity, the exposure of truth, and the importance of freedom of speech in a democratic regime. Realizing these values through the examined expression elevates the protection of the expression to a high level and the freedom to express it. On the other hand, insofar as the expression primarily stands on the basis of personal wellbeing, the value will be reduced to interest level, simultaneously reducing the degree of protection of the freedom to express it. This is not a binary choice. Many expressions contain several elements that stem from different rationales. The court is entrusted with the task of deciding the dose of the rationales fulfilled by the expression.

 

149. The novel authored by the Appellant embodies artistic freedom. This specific manifestation does not merit as severe a protection as its fellow political expression (see and compare: Barak, Human Dignity, above on page 731), but nor does it descend to the bottom tier, like its commercial counterpart. As such, it fulfills different values that underpin freedom of speech – the exposure of truth, and the importance of freedom of speech in a democratic regime – but it does not involve a full realization of these rationales, which are wholly realized in political expressions. Artistic freedom is also known for its self-serving personal aspect. The creator wishes to glorify his name and make himself renowned. The weighting of these rationales indicates that the expression before us realizes freedom of speech to a medium degree. Ideal and interest are intermingled therein. The violation of freedom of speech in the case at bar is also not of the severe type, as it does not originate in censorship on the part of the governing authorities, but rather in the Respondent's legal action as a person concerned with protecting her right to privacy. The balance between a serious and severe infringement of the right to privacy against a medium violation of freedom of speech tends toward the protection of privacy.

Concern of Literary Work being Shelved

150. According to the Appellant, denial of the appeal "might lead to absurd results" and to the shelving of important literary work based on "actual" events. Counsel for the Appellant quotes the CEO of the publisher, who protested against such legal policy in his testimony at the District Court: "In fact, what will be asked of me, is not to prove that things happened, but rather to prove that things never happened … I will have to prove that the fictional protagonist did not have such a neighbor … how can you prove what did not happen … any work whatsoever is impossible if we come to that place, which I find preposterous … it is the absolute paralyzing of original creative work" (page 110 of the court transcript). The Appellant also notes a considerable list of important literary works that would have been shelved and never published, according to the legal policy set by the District Court.

 

151. The Appellant claims that "The judgment may have… destructive implications on an entire branch of literary writing. Its practical implication is that writers writing an autobiography or an autobiographic novel are prohibited from relating a relationship with another person and sharing with the public, through the work, experiences that they themselves had had in that relationship". In conclusion, the Appellant calls upon the court to stop and ask itself "Would I be willing to apply the exact same criteria to one of the masterpieces of Hebrew literature? Were I to ignore the identity of the Appellant and visualize Amos Oz, or David Grossman, or Meir Shalev before me – would I then too arrive at the same outcome?"

 

152. I have done as the Appellant directed. I turned to ask myself, would I indeed be willing to adopt similar criteria in other situations? But I will first say a few words. The utilitarian argument regarding the increase of the aggregate wellbeing of society as a result of the publication of literary works has great charm. It is supposedly simple: in situations where the right of one private individual collides with the right of another person, which has a high aggregate benefit, the second right should be preferred.

 

153. However, this argument bears a twofold flaw: firstly, the protection of human dignity also rises from utilitarianism itself, since a society that throws human dignity down the gutter significantly reduces the aggregate wellbeing. This principle was not overlooked by the father of the utilitarian doctrine, John Stuart Mill, who, in his book "On Liberty", determined that aggregate benefit and utility also rise from a regime that protects human rights. This utility should be taken into account when examining the aggregate wellbeing regime in situations of human rights' violation. A similar position is brought in Midrashei Chazal [the writings of our sages may their memory be blessed] that addressed the construction of the biblical Tower of Babel: "Rabbi Pinchas says that there were no stones there to build the city and the tower, so what did they do? They fashioned bricks and burned them as artisans of earthenware until they built it seven miles high … and if a man fell down and died they paid him no heed and if a brick fell down they sat and wept and said when would there be another to replace it" (Pirkei de Rabbi Eliezer(Higger), Chapter 24). The preference of brick over man – this is what stands at the heart of Chazal's criticism of the Babylonian tower.

 

154. Secondly, there are situations wherein we decide that the protection of human dignity is more important than the accomplishment of other social values. This is the case, for example, in legal policy on experiments in humans. The benefit held in this type of experiment and the aggregate wellbeing expected therefrom could have a crucial effect on the future of the whole of mankind. Despite this, the law has chosen to apply a restraining legal policy that takes a firm hand against these, in order not to violate human dignity. A similar principle is reflected in the words of Chazal who determined that "So great is human dignity that it overrides the negative commandments of the Torah" (Bavli, Berachot 19, 2).

 

155. Clearly, one must not underestimate the importance of the artistic freedom in general, and the autobiographical one in particular. It should be granted an honorary place in the Israeli realm of rights. As a rule, the court will not prevent the publication of an autobiographic novel. Prior restraint is a highly rare act. However, it is possible that as a result of the legal policy outlined in the judgment of the District Court and now adopted in our ruling in this court, mankind as a whole will suffer the loss of several literary works. This argument, as aforesaid, does not deny our ruling. There are values that merit even the loss of several "good books". Man before book. Books are meant to serve mankind, not the other way around, in the sense of "a maidservant who inherits her mistress" (Mishlei, Book of Proverbs 30, 3). It appears that the Appellant's words of "cultural ruin" and of his own work which "went up in flames" were overstated, to the point that he has forgotten which is the cause and which is the effect.

Copyright and Defamation

156. The District Court found, as mentioned, that there was no need to rule on the Respondent's arguments with respect to Appellant's infringement on her copyright to her letters – which he had used in his book – because there was anyway no justification to award additional monetary compensation beyond the compensation for invasion of privacy. The Appellant did not address this cause of action in his summations. There is therefore no need to address this issue in the framework of the appeal at bar. Likewise with respect to the Appellant's claim that the publication of his book does not constitute publication of defamation against the Respondent. According to him, the District Court erred in finding that "The Plaintiff (the literary character) is described in the book as a woman who had an intimate relationship with a married man and did so in parallel to her relationship with her then partner. She is further described as someone who is willing to trample over anything that stands in her way to her goals, and as someone who uses people 'as if they were objects'" (paragraph 68 of the judgment). The Respondent, on her part, claims that this ruling of the District Court should also remain unchanged. In my opinion, this matter too does not require a ruling in the framework of the appeal at bar, as it has no bearing on the remedies.

Consent of the Respondent

157. Section 1 of the Protection of Privacy Law prescribes that "A person will not invade the privacy of another without his consent". The Appellant claims that once the Respondent expressed her consent to the writing of the book, its publication is no longer a prohibited invasion of privacy. The District Court discussed this argument at length and its conclusion was resolute: "It should be determined that not only did the Plaintiff not give her informed consent to the invasion of her privacy, but the Plaintiff also made clear to the Defendant before the publication that she forbids him from including in the book any details that may lead to her identification" (paragraph 65 of the judgment). I accept the ruling of the District Court, based on the materials brought before it. It is a ruling on a matter of fact. As known, the court of appeals is not in the habit of intervening in matters of this type, and there is no good reason to deviate from the rule. I will, however, briefly address the legal aspect of consent to invasion of privacy.

 

158. It is inarguable that the Respondent expressed before the Appellant her objection to the publication of the book several times. According to the Appellant's claim, this objection was preceded by consent. What is the nature of this consent and can one withdraw therefrom?

 

159. Various scholars have expressed their position that "Consent may be compared to a contract, and the principles of contract law will apply to consent" (Protection of Privacy Law above, on page 45); and that "There is no impediment to the application of the principles of contract law to consent" (Private Space, page 100). Despite the noticeable similarity, scholars have pointed to the difficulty in the "blind application" of contract law: "Although it appears that the principles of contract law apply to the element of 'consent', the protection of privacy laws give rise to dilemmas that are not always resolvable through contract law. Thus, for example, it may be that a person who gave consent will withdraw the consent he gave: the basic principle in contract law mandates enforcement of the obligation. However, in our opinion, this remedy is not necessarily suitable in the event of withdrawal of consent to relinquish the right to privacy. The personal nature of the consent to relinquish privacy and the elevation of the right to privacy to the rank of a basic right, require the interpreter to use additional tools to examine 'the consent', in addition to contract law. When a person withdraws his consent to relinquish his privacy, one should not, in our opinion, impose the ordinary law of enforcement on him and publish information that invades his privacy in reliance on previous consent. A person should be allowed, primarily in circumstances that concern intimate information, the ability to withdraw his waiver of his right to privacy against monetary compensation if the party who relied on the waiver of privacy has been damaged as a result" (see Protection of Privacy Law above, 46; for similar positions see: Private Space above, page 100-104); The Law of Privacy and the Media above, on pages 537-538).

 

160. It appears to me that a person's consent to invasion of his privacy is not the final word. The constitutional status of the right, the hard personal nature of invasion of privacy, may place the remedies for the withdrawal of consent in a position that differs from the one under contract law. Enforcement may possibly be unjustified in circumstances of severe invasion of privacy, compared with monetary compensation that may be justifiably awarded due to the withdrawal of consent, if it caused damage. According to a "parallelogram of force" between the severity of the invasion of privacy and the validity of the consent, the milder the invasion the greater the chances of receiving an enforcement remedy; the more grave the invasion, the more the balance will tilt towards avoiding enforcement, while granting the possibility of a compensatory remedy. In the case at bar, as aforesaid, the District Court rightly ruled that there had been no consent. There had been the explicit objection of the Respondent to the inclusion of a detail that could bring to her identification.

Conclusion

161. The Appellant's freedom of speech "collides" with the Respondent's right to privacy. His artistic freedom, as reflected in the book he has written, harms the Respondent's good name. The autobiographical work has many notable virtues. However, the book in question is actually a documentary book disguised as a work of fiction – as the District Court has ruled – and its invasion of the Respondent's privacy is grave and severe. We are concerned here with two constitutional rights – freedom of speech and the right to privacy - and, in principle, neither takes precedence over the other. In our ruling, we have examined whether the weight of the benefit that will arise from the fulfillment of one right exceeds the weight of the damage incurred by the other right. Our in-principle conclusion is that on the constitutional scale, freedom of speech will prevail in a situation of mild and medium infringement on the right to privacy against a severe violation of freedom of speech; the right to privacy will prevail when the violation of freedom of speech is mild or medium and faced with an intense impingement on the core of privacy. We implemented the principle, according to the circumstances of the matter and the book in question, and we have found that there is little fiction and great harm. A grave and severe invasion of the Respondent's privacy, whereas, on the other hand, there is a medium violation of the Appellant's freedom of speech. The identification of the Respondent in the Appellant's book as the female-protagonist, together with a detailed description of her inner life circle, including matters that are manifestly intimate, outweigh, in their aggregated weight, the infringement on the Appellant's freedom of speech, in which ideal and self-interest are intermingled.

 

162. Were the Appellant seeking to hold a photography exhibition in which he displayed the Respondent with him in the nude, it appears that an injunction would have been issued, in order for him not to do so. All the more so the book, where he portrayed the Respondent's body in her own bedroom and also exposed the depths of her soul and her innermost secrets. It is thus just that the District Court issued a permanent injunction prohibiting the publication of the book.

 

163. Therefore, I propose to my fellow-justices to deny the appeal and leave the judgment of the District Court standing. I further propose that the Appellant be charged with the payment of trial costs and legal fees to the Respondent in the amount of ILS 75,000.

 

 

 

Justice

 

Deputy Chief Justice M. Naor:

1. My fellow-justice, Justice Sohlberg, has laid out an extensive review. It appears to emerge from his review that were the case before us heard in the courts of the United States – the result would have been different. The result of disqualifying a book that has been written is a difficult result and ought to be kept for exceptional cases. I am afraid that the case at hand is such a case.

 

2. It appears that in his book, more than the Appellant sought to write about the female-protagonist, he actually sought to write of the male-protagonist, the experience of a man who leaves his home mentally and physically in a gradual process, first for short-lived affairs, and eventually for a relationship with the female-protagonist. The relationship with the female protagonist began when the male-protagonist was married and the relationship continued after the male-protagonist left his home. The work describes the difficulties in the relationship of the male-protagonist with his longtime wife, and with his children, difficulties that eventually also harm his relationship with the female-protagonist, for whom he cannot make room for in his world. It is not the female-protagonist who is at the center of the plot, although the female-protagonist and other women (to a lesser degree) hold an important place in the plot. The plot is centered on the man who leaves his home.

 

However, in his writing, at the center of which is the male-protagonist, the author has breached permitted boundaries and severely invaded the Respondent's privacy. Things could have been written differently to begin with. My fellow-justice rightly noted, following the findings of the District Court, that things were written in such a manner so that even a distant person who knows the Respondent would recognize that it was about her. The standard sentence appearing on the internal side of the book cover, that the plot of the book and the characters mentioned therein are all the product of the author's imagination and that any connection to living persons or characters is purely coincidental – does not reflect the situation as it truly is. This being the case – there was no room for various descriptions, which it would not be right to specify, that run as a common thread throughout the entire book. There was also no room to share with the reader the heroine's secret thoughts and her sex life. The Appellant wrote his book as he did while ignoring that grave invasion. We cannot illustrate the severity of the invasion with the details contained in the book, because such details would also constitute an invasion of privacy. It is sufficient for me to note that my words with respect to the serious invasion have been written after reading the book in full.

 

Although, as aforesaid, it could have been done differently to begin with. In the hearing we suggested allowing non-trivial changes in the book, but this was not achieved. We cannot assume the role of "chief editor" and the role of the one directing changes in a literary novel in a judgment. According to my impression, things could have been written differently to begin with, without significantly compromising artistic freedom, yet the Appellant wrote what he did in a manner that completely ignores the harm to the Respondent.

 

3. Despite the considerable difficulty I feel as to the need to censor a literary work – at the end of the day, I join my opinion with the opinion of my fellow-justice, Judge Sohlberg, and all while emphasizing that disqualifying a literary work should be done in rare cases. However, the case before us is, as aforesaid, such a case.

 

Deputy Chief Justice

 

Justice S. Joubran:

1. I concur with the thorough and comprehensive judgment of my fellow-justice, Justice Sohlberg. I will briefly note the reasons specified by my fellow-justice that have led me to this conclusion.

 

2. Firstly, the case before us gives rise to a complex question pertaining to the correct balance between the Appellant's freedom of speech and the Respondent's right to privacy in the framework of Section 18(3) of the Protection of Privacy Law, 5741-1981 (the "Protection of Privacy Law"). The section prescribes a balance between the right to privacy and the freedom of speech and public's right to know. In this context, I agree with the approach of my fellow-justice, whereby it is the court's role to pour substance into this basic formula, and in the case at bar – interpret it in view of constitutional principles (paragraphs 53, 68 of his opinion; L.C.A. 6902/06 Zadik vs. Ha'aretz Newspaper Publishing, paragraph 10 (August 13, 2008)).

 

3. In my opinion, in the balance between two constitutional rights of equal status, the highroad is to take a conciliating approach with the aim of allowing both rights to coexist by means of a proportionate impingement on one at the expense of the other (see and compare: H.C.J. 2481/93 Dayan vs. Chief of the Jerusalem District, 48(2)456, 474-475 (1994); A.P.A. 398/07 The Movement for Freedom of Information vs. the Tax Authority, paragraph 53 (September 23, 2008) ; A.P.A. 9341/05 The Movement for Freedom of Information vs. the Government Companies Authority, paragraph 31 (May 19, 2009); Ruth Gavison "Prohibition on a Privacy-Invading Publication – the Right to Privacy and the Public’s Right to Know" Civil Rights in Israel – a Collection of Essays in Honor of Haim H. Cohn 177, 204, 219 (1982)). In this spirit, we have tried to conciliate between the parties in the hearing we held on the appeal, and to reduce the invasion of the Respondent's privacy and allow the publication of the book. However, most regrettably, this attempt was unsuccessful. Only then, in the absence of the option to reconcile the rights, the path of a binary decision should be taken and one right preferred over the other (see: H.C.J. 1435/03 Jane Doe vs. the Disciplinary Court for State Workers Haifa, PD 58(1)529, 537-539 (2003)).

 

4. Secondly, the scope of the protection of speech is determined according to the rationales it fulfills. This court has held that the three rationales underpinning freedom of speech are the exposure of truth, individual self-fulfillment and the reinforcement of democracy (H.C.J. 399/85 Kahana vs. the Israel Broadcasting Authority, PD 41(3)255, paragraphs 14-16 of the judgment of Justice (his former title) A. Barak (1987) (hereinafter: "Re Kahana"); Ilana Dayan-Orbach "The Democratic Model of Freedom of Speech" Iyunei Mishpat 20 377 Chapter A (1996)).

 

5. In my opinion, although it is undisputed that the Appellant's book is protected under free speech, most of its underlying rationales (with an emphasis on the exposure of truth, as will be specified here) do not apply to the work, certainly not fully. In this context, I will note that a considerable part of the Appellant's claims, both before us and before the District Court, was based on the argument that this is a work of fiction, and therefore cannot in fact invade the privacy of the Respondent. In view of this, I accept the position of my fellow-justice that the rationale of "exposure of truth" does not fully apply to the book (paragraph 149 to his opinion). It is noted that it is written in the beginning of the book, black upon white:

 

"The plot of the book, the characters mentioned therein and their names are all the product of the author's imagination. Any connection between the plot of the book and events that occurred in real life, as well as between the characters mentioned herein and their names and characters or names of persons, living or dead, is purely coincidental".

 

6. In this state of affairs, I find it difficult to determine that the book helps "To ensure freedom of speech in order to enable various and diverse ideas and views to compete with one another. From this competition – and not from a governmental dictation of a one and only 'truth' – will truth float and rise up, as, in the end, the truth will prevail in the battle of ideas" (Re Kahana, in paragraph 14). In view of this, I believe that the scope of protection to be granted to the book is not broad whilst on the other side stands the Respondent's right to privacy in its clearest sense, and the latter should prevail.

 

7. On these grounds, I concur with the judgment of Justice N. Sohlberg.

 

 

Justice

 

Ruled as aforesaid in the judgment of Justice N. Sohlberg.

Rendered today, Nissan 24, 5774 (April 24, 2014).

Permitted for release today, Iyar 22, 5774 (May 22, 2014).

 

 

The judgment was sent in its entirety to the parties' counsels, and, at our request, they suggested light changes and omissions in order to prevent a situation where the contents of the judgment reveal details whose publication would undermine the injunction prohibiting the publication of the book. The main omissions and changes were incorporated into the language of the aforesaid judgment. We therefore allow the release of the judgment in its reduced format herein, while the prohibition on exposure of the names of the litigants and identifying details about them, as well as the judgment in its full format, still standing.

 

Deputy Chief Justice                               Justice                                            Justice

 

__________________

The copy is subject to editing and wording changes. Heb 11089540_009.doc

Information Center, Tel. 077-2703333; website, www.court.gov.il

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

Before Agranat P., Sussman J., Landau J., Berinson J. and Manny J.

 

 

Editor's synopsis -

            Section 4 of Basic Law: The Knesset, requires that elections to the Knesset shall be "general, nationwide, direct, equal, secret and proportional". Sections 4 and 46 of this Law require that any amendment to section 4 be approved by an absolute majority of the Knesset. In 1969, the Knesset passed a Law providing public financing of the election campaign for the seventh Knesset, scheduled to be held in 1970. According to the provisions of this Law, which was not passed by an absolute majority, such funding is granted solely to party factions which are represented in the outgoing Knesset.

           

            The Petitioners contend that the funding provisions of the new Law are void for two reasons. The Law was initiated by several members of the Knesset as a private bill, whereas legislation that imposes a financial burden on the Treasury must be initiated by the government. By providing public financing only for existing party groups, the Law infringes upon the requirement in section 4 of the Basic Law that elections be "equal" and is therefore invalid since it was not passed by the absolute majority required under section 46 of the Basic Law, i.e., a majority of the members of the Knesset, at each stage of the legisation.

           

            The court issued an order nisi, calling upon the Minister of Finance and the Government Comptroller, to show reason why an order should not be issued directing the Minister to refrain from making any expenditure under the election financing Law and directing the Comptroller to refrain from performing any act which the said Law authorises or requires him to perform. The Respondents appeared in opposition to the order nisi.

               

                The court ruled that the order nisi be made absolute, holding:

           

1.      Whatever may be the law in England, there is no rule in Israeli law that forbids members of the Knesset from initiating a private bill that imposes a financial burden on the Treasury.

           

2.      All of the other terms in section 4 of the Basic Law, "general, nationwide, direct, proportional", relate both to the right to vote and to the right to be elected. There is no reason not to give the word "equal" a similarly broad meaning.

 

3.      The absolute denial of any funding to new party groups is a substantial violation of the principal of equality established in section 4 of the Basic Law, and therefore requires the support of an absolute majority of the Knesset at each stage of the legislation.

 

Note - The Knesset thereafter amended the Law to include financing for new party groups. The amendment was passed by an absolute majority of the Knesset members, although it is possible that such a majority was not required since, arguably, the new Law, as amended, satisfied the requirement of equality. At the same time, the Knesset enacted a second Law, also by absolute majority, which retroactively confirmed the validity of all legislation concerning election procedures that had been enacted previously. The effect of the Confirmation Law was to prevent judicial review of all such legislation previously enacted, even if it violated one of the entrenched provisions.

 

            For a later case dealing with the requirement of equality as it relates to public financing of elections, see the Rubinstein case, infra, p. 60. For a case dealing with the implications of the requirement that elections be "equal" with respect to public broadcasting time allowed each party, see the Agudat Derekh Eretz case, infra, p. 21. Both cases concerned legislation passed after the Confirmation Law, though the effect of the Confirmation Law was considered by the court in the Agudat Derekh Eretz case.

           

Israel case referred to:

[1]   E.A. 1/65, Yeredor v. Chairman of the Sixth Knesset EIections Committee 19 P.D.(3)365.

 

The Petitioner appeared in person.

 

M. Shamgar, Attorney-General, and Z. Terlo, Director-General of the Ministry of Justice, for the Respondents.

 

 

 

 

 

JUDGMENT

 

            LANDAU J.: On April 30, 1969 this court issued an order nisi against the Minister of Finance, to show cause why he should not refrain from any expenditure under section 6 of the Knesset and Local Authorities Elections (Financing, Limitation of Expenses and Audit) Law 1969 (hereinafter: the Financing Law); and against the State Comptroller - why he should not refrain from any act which he is directed or authorised to implement pursuant to sections 11 and 12 of the Financing Law. The order nisi was issued on the petition of Advocate Dr. A. Bergman, on two principal grounds: one related to the manner in which the Financing Law was initiated and the other to the manner in which this Law was passed in the Knesset.

           

            The first argument is that since the Financing Law imposes a monetary burden on the Treasury, it could only have been initiated by the Government. In fact the Law was initiated by six Knesset members as a private bill (see H.H. 807). The Petitioner bases this argument on the English constitutional practice that finds expression in section 87 of the Standing Orders of the House of Commons, of 1958 (Halsbury-Simonds, vol. 28, p. 442). The Petitioner argues that these directives embody an important and necessary constitutional principle that the legislative branch may not decide on a monetary expenditure on its own initiative, as it does not bear the responsibility for finding sources of revenue to balance the new expenditure.

 

          The Petitioner's second argument is that the passage of the Financing Law was invalid and in violation of the principle of the equality of elections as provided in section 4 of Basic Law: The Knesset (hereinafter: the Basic Law). According to section 46, which was added to the Basic Law in 1959:

         

The majority required under this Law to amend sections 4, 44 or 45 will be required for resolutions of a plenary meeting of the Knesset at every stage of the legislation, other than the debate upon a motion for the agenda of the Knesset. For the purpose of this section "amendment" - either express or implied.

         

          And section 4 of the Basic Law reads:

         

The Knesset shall be elected by general, national, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset.

         

          The first reading of the Financing Law was passed by the Knesset by a majority of 24 to 2 (D.H., Sixth Knesset, Fourth Session, p. 1377), that is, by less than a majority of the number of Knesset members (61). As for the third reading, the Knesset records (ibid., p. 1674) state merely that the Law was "adopted", without a recorded count of the votes. The Petitioner argues that this session too was not attended by a majority of the Knesset members, and the Attorney-General, who appeared for both the Respondents, did not dispute that. In any event this is immaterial, since section 46 requires a "special" majority at every stage of the legislation.

         

          This petition raises potentially weighty preliminary questions of a constitutional nature, relating to the status of the Basic Laws, and to the justiciability before this court of the issue of the Knesset's actual compliance with a self-imposed limitation in the form of an "entrenched" statutory provision, such as section 4 of the above-mentioned Basic Law. However, the Attorney-General relieved us of the need to deliberate the matter by stating on behalf of the Respondents that they "do not take a position on the question whether the legal validity of a legislative enactment is a justiciable matter before this court, since they are of the opinion that the petition must fail on the merits". He so stated in his heads of argument and repeated it in his oral argument on the return day, and when asked what position he would take if the court found the petition substantiated, he replied that in such event he would put himself at the court's disposal to make his submissions on the question of justiciability. It is therefore up to the court to decide whether it wishes to examine the question of justiciability of its own accord. We have decided not to do so because, for obvious reasons, the substantive problems raised here require urgent resolution, whereas clarification of the preliminary constitutional questions would entail separate, lengthy deliberation. We therefore leave the question of justiciability open for further consideration and, clearly, nothing in this judgment should be taken as an expression of opinion on that matter. The Respondents have also not disputed the Petitioner's standing to file the petition, so that question also does not arise before us.

 

            We now return to the Petitioner's two arguments. The first can be answered briefly. Whatever the law in England - and we find it unnecessary to delve into that question - our law has no statutory provision to prohibit members of the Knesset from initiating a private bill that imposes a monetary burden. Indeed, the Knesset Rules adopted by this body under section 19 of Basic Law: The Knesset indicates the contrary. In the seventh chapter of the Rules, entitled "Debate on Bills of Knesset Members", rule 105(a) provides: "Every member of the Knesset may propose a bill". There is no limitation as to the content of the bill. Section 5 of the Law and Administration Ordinance, 1948, provides that

           

the budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State

           

and again nothing is said as to the manner of initiation of such budgetary legislation on the part of the legislature. The Financing Law here considered is sui generis: it is not a budgetary law in the technical sense, since it does not authorize the government to expend money but rather obliges the Minister of Finance to put certain sums at the disposal of the Chairman of the Knesset. There are no special provisions in our positive law as regards the procedure for enacting a statute of this kind. The Minister of Finance will have to find sources of finance for the monetary expenditure involved in the implementation of this Law, and if he encounters difficulty in doing so that is a matter which, constitutionally speaking, pertains to the relations between the legislative branch and the executive branch, which does not concern this court.

 

            That leaves the principal question: does the Financing Law contradict section 4 of the Basic Law? First, however, we wish to make it clear that this court ought not involve itself in the debate conducted in the Knesset and by the general public concerning the system of state financing of the general activities of the political parties and their specific activity in the elections campaign. Much has been said and written about the deficiencies of this system from the public perspective, while respected members of the Knesset representing a large majority of the House, including the initiators of the Law, have defended this system as necessary in our political reality. They stress, on the one hand, the improvements brought about by this Law compared to the previously prevailing state of affairs, especially as regards limitations on election expenditures and their auditing - two subjects that have no necessary connection with the matter of state funding; and they endeavour, on the other hand, to appease the critics by pointing to the experimental character of the entire Law which is intended to apply only to the seventh Knesset elections.

 

            This entire public debate falls outside the range of our judicial interest - the problem before us is confined within its legal framework. What is the Petitioner's legal argument? He argued, half-heartedly, that "it is doubtful whether the allocation of funds to political parties is an allocation for purposes of state", citing an opinion of the Massachusetts Supreme Court that such is not an expenditure for a "public purpose" in the sense of that state's constitutional law (197 N.E.2d 691). We have no similar provision in our law, which suffices to dispose of this argument. For us, therefore, the question is framed within the context of section 4 of the Basic Law alone. In this respect the learned Attorney-General argued that there is no contradiction between equality in the elections as secured under section 4 of the Basic Law and the provisions of the Financing Law. He contended that the entire section 4 deals only with the elections system in its technical sense, as evidenced by the marginal heading of the section, and that the principle of equality it embodies means only that each voter has one vote of equal weight - that and no more. In support of this argument he referred us to the legislative history of this provision, which has its origins in the Mandate period, in rule 4 of the Knesset Israel Elections Regulations of March 1, 1930, and also to the constitutions of other countries in which the principle of "one man one vote" finds explicit recognition. He argued that this technical principle should not be confused with the fundamental principle of equality for all before the law, which is likewise expressed in various constitutions. But we do not have a written constitution. It is true that we too recognize the equality of citizens before the law as a fundamental principle of our constitutional regime, yet that principle has not been embodied in a written constitution or even in a provision of a basic law that requires a special majority for amendment. Hence there is nothing to prevent the legislature from deviating from this principle even in a law passed by an ordinary majority. The Financing Law should be seen as part of the Elections Law, and section 4 of the Basic Law itself says that the Knesset shall be elected "by general elections in accordance with the Knesset Elections Law". In any event, if the Financing Law deviates at all from the principle of equality, it is but a minor deviation which is to be accepted so that other important goals are achieved, such as preventing the undue fragmentation that could result from too rigid an application of the equality principle in financing.

           

            With all due respect we must dismiss this argument because it does not answer adequately the Petitioner's main complaint: that limitation of the funding to parties represented in the present, sixth Knesset exclusively, is prejudicial to equality of opportunity for those new candidates lists that seek to take part in the campaign for the seventh Knesset elections but were not represented in the sixth Knesset.

 

            We do not accept the argument that section 4 of the Basic Law merely prescribes technical directions regarding the conduct of the elections. We are prepared to assume that the draftsmen of this section envisaged primarily the principle of "one man one vote" when they prescribed that the elections should be "equal". But we do not believe that this exhausts the full meaning of the programmatic provision in the Basic Law. Each of the adjectives "general, national, direct, relative" has two facets: they address both the right to elect and the right to be elected, and there is no reason why the word "equal" should not be given the same broad meaning. This is indicated by the order of the sections: first section 4 with its general significance, and then the more specific provisions in section 5 regarding the right to vote, and in section 6 - regarding the right to be elected. Were it otherwise, and the word "equal" referred only to the right to vote, it would have been more natural to include the idea of "one man one vote" in section 5.

           

            If the principle of equality in section 4 extends to the right to be elected, it must also find expression in an equality of opportunity for the various candidates lists that contend in the Knesset elections. For in our elections system the election candidates join in candidates lists that are submitted either by a party group of the outgoing Knesset or - in the case of a new list - by 750 voters (section 4 of the Knesset Elections Law [Consolidated Version], 1969). In this way the individual candidate aspires to achieve his set goal, and by the same token the will of the individual voter is realized in voting for the list.

           

            This interpretation of the equality provision in section 4 is consistent with the fundamental principle of the equality of all persons before the law. To be more precise, it applies as an emanation thereof in the specific area of the law of elections. But it can also exist independently without resting upon a provision in a written constitution that expressly declares the principle of the equality of all persons before the law. We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime. It is therefore only right - precisely in the borderline cases, where a statutory provision can be construed in two ways - that we prefer the construction that upholds the equality of all persons before the law over one that sets it at naught. This fortifies our construction of the equality provision in section 4.

           

            After all, what is the simple meaning of the words "equal elections"? What would we say, for example, about a statutory provision that allowed only one list of candidates? Could such elections be called "equal" because each voter still has one vote? Or, assuming the Financing Law determined that only the largest party was entitled to state funding - we would certainly regard that as a glaring violation of the equality principle in section 4. In other words, this section has the potency to prevent violations of equality also beyond the narrow confines of "one man one vote".

 

            Before we examine the Financing Law in light of our above-mentioned comments, we wish to note three preliminary points. First, a Law of the Knesset is presumed to be valid as adopted. Therefore this court's primary inclination must be to uphold the law and not to strike it down, even when the argument against it is that it contradicts an "entrenched" statutory provision (and it is stressed again that everything here said presupposes that the matter is justiciable before this court). Second, we are in an area that is far removed from the idea of equality before the law in its simple classic meaning, that is, equality of rights for the citizen as an individual. There is no better example of this classic meaning than the rule of "one man one vote". This equality must be guarded without compromise. However, as we draw away from this fundamental meaning of the principle of equality before the law, so it clashes with other important principles to which it must defer. Thus, for example, in the Yeredor case[l] this court affirmed a decision to disqualify a list of candidates whose purpose was to undermine the existence of the State of Israel. Likewise, with regard to the matter of state funding for the elections: all agree that the political parties should not be equated absolutely with each other by being allocated equal funds, regardless of the party's size, although the campaign needs of a small party might require as much of these means as a larger party. And all agree furthermore that the principle of equality in financing should not be applied in such a way as to encourage the submission of candidates lists that would not have formed at all were it not for the temptation that they would receive an advance against the funding. We also know of phenomena of inequality in the general election laws, primarily the minimum percentage of votes required in order to gain representation in the Knesset, and similarly the requirement that a new list must deposit a bond, and the fact that its representatives do not participate in the election committees except as observers after publication of the list. All these restrictions inevitably derogate from absolute equality. It was not argued here that for this reason they are invalid. Third, and related to the preceding point, the issue before us - state financing of elections - is complicated and complex by its very nature and its legislative solution entails diverse practical considerations that require special expertise, which this court lacks.

           

            Without overlooking all this, we have concluded that the absolute denial of funds to new lists of party candidates substantially prejudices these lists' equality of opportunity, thus violating the equality principle in section 4 to an unjustifiable degree that goes beyond a minor deviation from that principle. We have already mentioned the provision in the Knesset Elections Law that allows any 750 voters to submit a candidates list. This opens the doors of the Knesset to new party groups. Such opportunity is one of the hallmarks of our democratic regime in general and our elections system in particular. It might be argued that the situation of a new list in the elections to the seventh Knesset is no worse than it was in the elections to the sixth Knesset, since such a list can still finance its election expenditures from private sources. We would answer that this is not the correct comparison to make; rather the current situation of such a list should be compared with the current situation of the existing party groups, and, if so, it is clear that the new list is at a real disadvantage compared to the others, because these are entitled to receive substantial sums from the state coffers to finance their expenditures whereas the new list is denied that right.

 

            In the Knesset debates on the Financing Law, the merits of a method of finance based on the balance of party power in the outgoing (sixth) Knesset was contrasted with a method based on the new party balance in the incoming (seventh) Knesset. The Knesset preferred the first method and one of its main reasons for so doing was the danger that short-lived lists would be formed because of the temptation to receive an advance on the funding allocation. This danger can be countered without causing the inequality that we have found to be unlawful, by promising a new list funding without an advance payment and only retrospectively after it has stood the test of the elections and gained at least one seat. All this on condition that the list has consented in advance to the audit by the State Comptroller in accordance with the Financing Law, and has met all the other conditions specified in the Law. It appears to us that provisions of this nature could still be added to the Financing Law without undue difficulty, without changing the existing provisions as regards the parties represented in the sixth Knesset and without overturning the entire situation, so as to avoid the apprehended inequality. It need hardly be said that in making this suggestion we in no way presume to encroach upon the sovereignty of the Knesset as the legislative authority.

           

            The Knesset accordingly has two courses from which to choose: it can reenact the financing provisions in the Financing Law, despite their inherent inequality, if the majority required under sections 4 and 46 of the Basic Law is mustered; or it can amend the Law so as to remove the inequality, and we have indicated above a possible way of doing so.

           

            We therefore make absolute the order nisi in the sense that the first Respondent, the Minister of Finance, is to act pursuant to section 6 of the Financing Law only if the financing provisions in the Law are reenacted with the required majority, or if the Law is amended so as to remove the inequality contained therein. We see no need to issue any order against the State Comptroller. Respondent no. 1 shall pay the Petitioner his costs in the petition.

           

            Judgment given on July 3, 1969

            C.A. 141/54

 

           

LILY WOLFF-BLOCH AND ANOTHER

v.

JERUSALEM DISTRICT ASSESSING OFFICER

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[March 6, 1956]

Before Cheshin D.P., Sussman J.,  and Witkon J.

 

 

Income Tax - Income Tax Ordinance - Expenses incurred in production of income - Dentist - Period of study abroad - Expenses of - Whether for purpose of preserving existing asset.

 

            The appellant, a dentist who had travelled to the U.S.A., and had spent 10 weeks there studying the latest developments in her profession, claimed the expenses so incurred by her as a deduction for purposes of income tax on the ground that they were incurred "in the production of income." The Assessing Officer refused to allow the deduction and this decision was upheld by the District Court.

 

            Held, allowing an appeal (Cheshin D.P. dissenting), that the expenditure incurred by the appellant was incurred for the purpose of preserving "an existing asset" and could properly be deducted.

           

Palestine case referred to:

 

(1)   Income Tax Appeal 11/45; Mendel Scharf v. Assessing Officer, Jerusalem, (1946), 13 P.L.R. 89.

 

Israel case referred to:

 

(2)   Income Tax Appeal 1/49, Tel Aviv; A.B. v. Tel Aviv Assessing Officer, (1950/52), 7 P.M. 79.

 

English cases referred to:

 

(3) Simpson v. Tate; [1925] 2 K.B. 214.

(4) Lomax (Inspector of Taxes) v. Newton; [1953] 2 All E.R. 801.

(5) Mitchell (Inspector of Taxes) v. B.W. Noble, Ltd,; [1927] 1 K.B. 719.

(6) Spofforth and Prince v. Golder (Inspector of Taxes); [1945] 1 All E.R. 363.

           

American cases referred to:

 

(7) Coughlin v. Commissioner of Inland Revenue; 203 F. 2d. 307.

(8) Welch v. Helvering; (1933) 290 U.S. 111, 54 S.Ct. 8.

 

Dori for the appellants.

Shimron for the respondent.

 

WITKON J: This is an income tax appeal. The appellant, a dentist by profession, travelled abroad for further study, and the question is whether she may deduct the expenses of her journey from her income for the purposes of calculating her tax. The facts are undisputed. The appellant practises in a special branch of dentistry called orthodontics, and in that profession she serves in the capacity of director of the orthodontic department of the Strauss Health Center in Jerusalem as well as in her private clinic. In 1951, she spent some two-and-a-half months in the United States for the purpose of further study, and her expenses were expenses she incurred for this purpose only. The expert witness, Dr. Levin-Epstein, gave evidence  - and I emphasize this - that further study of that kind is not available in Israel, and that a person of professional status such as the appellant is obliged to go abroad from time to time to study new methods and to observe for himself the progress of scientific knowledge and techniques, if he wishes to maintain his standard as an expert in his field. In actual fact, the witness was not prepared to affirm that but for that journey the appellant's earnings would be expected to drop or to dwindle. But he did confirm (if his confirmation were necessary) that the professional standard determines the size of the fee - meaning that even if the doctor does not maintain his standard on material grounds alone, his standard nevertheless innuences the extent of his earnings.

 

            The Assessing Officer did not allow the deduction of this expense and the District Court confirmed his decision. The question is not of the easiest. As is well known, capital expenditure cannot be deducted from income, while income expenses alone, that is expenses incurred by the tax-payer in the course of producing his income, may be so deducted. The law distinguishes between the source of income and the income itself, that is to say, between the process of producing and its capital framework and structure. The rule is that expenses, relating to the production of income, laid out in that same process may be deducted, whereas expenses relating to the capital structure of the earnings may not be deducted. Here, however, we must make a reservation and distinguish between two kinds of expenses relating to capital: those intended to create or improve a capital asset, and those intended only to preserve an existing asset. Expenses of the second sort may also be income expenses, with a recognised place among the remaining current expenses in a profit-and-loss account which the earner has incurred in the process of producing his income. For the notion "income" includes the idea that in the course of producing the fruits, the capital shall remain untouched and preserved in its entirety. Whoever examines the list of expenses in section 11(1) of the Income Tax Ordinance, will discover that the majority are expenses relating to capital assests, such as interest, rent, repairs and depreciation; nevertheless they may be deducted, since they are not directed to the production of a capital asset or its improvement but to its preservation only. This is true not only of corporeal capital Assets; expenses laid out for the purpose of preserving incorporeal assets, such as goodwill, are deductible.

           

            We shall examine the present question in the light of those rules. I have no doubt that the professional standard of a doctor or member of any other liberal profession is a capital asset, and it follows that the expenditure incurred by the appellant in her journey relates to the source of her income and not to the process of producing the income. But, as stated, the question is whether that expense was directed to the production of a new capital asset or to the improvement of an existing capital asset, or whether her purpose was but to preserve the asset in its existing state. Appellant's counsel was not unaware of this problem, and he emphasized again and again in all his submissions, both in the District Court and before us, that the object of the journey was not to add to the appellant's professional standard, but to save it from falling. According to the submission of counsel for the appellant, the present case is thus distinguishable from the case of the lawyer who travelled to England and completed his studies at the Bar: Scharf v. Assessing Officer (l), as well as from the case of the accountant who travelled to South Africa in the hope of finding new clients and expanding his earnings: A.B. v. Tel Aviv Assessing Officer (2). The expenses of those two, the lawyer and the accountant, were laid out for the purpose of improving their position. The appellant, however, went away for further study not for the purpose of improving her position, as she contends, but for the sake of preserving what exists, since if she does not succeed in bringing her professional knowledge up to date from time to time, she will ultimately lower her standards and cease to be a leader in her profession.

           

            As stated, this case concerns an incorporeal asset. Corporeal capital assets have secured the recognition of the legislator as to their temporariness, and the law seeks in several ways to save the owner of the asset from losing his capital in the course of producing his income. One way is to allow the cost of repairs according to section 11(1)(d) of the Income Tax Ordinance. Another way is to deduct the amount of depreciation from the income, by taking into consideration the fact that the value of the asset depreciates during the period of its life on account of wear and tear. Many complain of the fact that the law does not also take into consideration the "wear of human capital" that serves as a source of income in every livelihood which derives from the physical or mental force of man. But even if the legislator had given thought to the matter, it is impossible to say that the expert knowledge and skill of a professional man are subject to wear and tear from their use, in the way that machinery wears out from use. It cannot be said that the professional standard of a person of professional status is expected to "wear out"; but it is possible that it runs the danger of "obsolescence". The law takes into consideration the obsolescence of plant and machinery that have become useless and the owners of which sell them in order to change them, and do not obtain for them a price equal to their capital price with a deduction for the amount of depreciation given them in the past. That is a loss flowing from the fact that the machine can no longer compete with more modern machinery and must be sold before its owner has taken full advantage of the annual rate of depreciation. And if a machine is liable to become obsolete as compared with more modern machines, so, too, will the expert knowledge and skill of a professional man. The knowledge and skill themselves have not been affected or become worn, but new inventions and methods have appeared to take the place of the old and have affected their value as profit-bearing assets.

 

            If we ask in what way the law takes into consideration incorporeal capital assets, we shall see that until the amendment of the law in 1952, a deduction was allowed of a sum equal to the capital price of the old asset (less the total amount of the past depreciation and the sale price) or a sum equal to the capital price of the new asset which ever was the smaller sum. This provision, which was contained in section 11(1)(c), was repealed with the imposition of income tax on capital profits according to section 5A, and thereafter a person must seek compensation for his losses in consequence of obsolescence within the framework of the provisions of section 5A(11)(e) or 5A(12), namely, by way of set-off against a capital profit or by way of increasing the capital price of the new asset for the purposes of depreciation or for the purposes of calculating the capital profit at the time of its sale.

           

            It is clear that the appellant cannot rely on any provision such as the provision in section 11(1)(c), first because it has been repealed, as I have said; secondly, because it was limited to certain corporeal assets; and, thirdly, because in point of fact that provision did not allow the expenditure of a sum of money on the purchase of the new asset, but the deduction of such amount of depreciation for the old asset as had not been taken advantage of as a consequence of its early sale, with the proviso that that deduction should not be greater than the price of the new asset. But I have referred here to the case of obsolescence and have spent some time on it because it shows us, in my opinion, that the loss in consequence of obsolescence is indeed a capital loss, yet nevertheless the deduction formerly allowed for it by section 11(1)(c) was charged to the profit-and-loss account, meaning that it is a burden on income revenue. The rule is that the profit-and-loss account may not be charged with a capital loss, and that includes a loss resulting from wear and tear and obsolescence; whereas the law allowed the deductions set out in section 11(1)(c) and (i) for obsolescence and for depreciation as exceptions to that rule, meaning that no deductions will be allowed outside that statutory framework.

 

            But that does not settle the problem arising here. Deductions for depreciation and obsolescence, within the meaning of sections 11(1)(c) and 11(1)(i), are chargeable to income with which the taxpayer is able to restore to himself capital that has been reduced as a consequence of the wear to the asset, or capital that has been lost, completely or partially, as a consequence of the obsolescence of the asset before its due time. The fact is that a person seeking such deductions cannot do so except within the existing statutory provisions. The appellant, however, did not seek such deductions, but rather, according to her contention, is entitled to deduct a certain expense that she incurred in order to maintain her professional standard. We must weigh that argument according to the rules applicable. I have already noted that if the expense was indeed incurred in connection with a capital asset, but not for the sake of producing or improving it, but for the sake of preserving it - and that within the framework of acts pertaining to revenue from the organic point of view - then there is room for allowing the deduction of that expense. In my opinion, the question is, in the end, whether the purpose of the expense was to create a new asset or to improve an existing asset or whether the purpose was to preserve an asset in its existing condition.

           

            No clear answer is to be found in the English cases. The authorities for the most part deal with assessments under Schedule E, namely, "wage-earning" taxpayers. But it is well-known that the provision in Rule 9 applies to such assessments, and that it is so narrow that hardly any expenses are allowable save those that, if not incurred by the employee, would involve him in a breach of duty towards his employer. Accordingly, the court has not allowed even membership fees in a learned society or subscriptions to scientific periodicals: in the cases of Simpson v. Tate (3), and Lomax v. Newton (4), the court allowed special expenditures as a consequence of compulsory participation in conferences, but no other expenses the outlay of which was not one of the conditions of service. The Royal Commission on the Taxation of Profits and Income considered this question in its Final Report (London, June 1955, Cmd. 9474), and stated: --

 

            "The present form of the Rule bears hardly upon persons of professional status in another way. We do not use the word "professional" here in any precise sense: we have in mind all those persons in office or employment whose work is of such a kind that they are expected to employ in it an equipment of expert or specialised knowledge. Doctors, teachers, lawyers, scientific workers, clergymen fall into this category. Such persons require to maintain and often to increase their professional equipment of knowledge, and it must often be quite impossible to relate the expenses of so doing to any specific obligation in performing the duties of a particular period. Their obligation is not only to be skilled in learning but to remain skilled in learning as conditions change. The expenses of so doing are represented by subscriptions to professional and learned societies, purchases of books and magazines, attendance at conferences, travel for research, purchase of instruments, etc. Yet, under the present rule, the Revenue is forced into making what seems to us rather unreal distinctions between what an employer insists upon and what he does not, between what a person is obliged to do in the performance of his duty and what it is desirable that he should do in order to be able to perform his duty: and between current expenses of maintaining knowledge or skill for one post and capital expenses of acquiring improved knowledge or skill to qualify for another post. It is not to be wondered at that the administration of Rule 9 is attended by rather widespread dissatisfaction."

 

Further on, the Royal Commission suggests a relaxation of the severity of Rule 9 and to exclude from it the test of the essentiality of the expenditure from the point of view of a condition of a contract of service. The fact is that the Commission did not propose that this amendment should bring in its wake the allowing of all the expenses referred to in the above passage or that it would have the effect of wiping out all distinction between the employed and the self-employed worker. Such amendment, the Commission stated, ''will not provide for the expense of 'self-improvement', except so far as such expense is fairly related to the duties of the current employment. " But it is precisely from that reservation that one is given to understand that as far as the independent person of professional status is concerned, a certain liberality is followed in allowing such expenses.

 

            I have no doubt that in the United States, the appellant would have succeeded in her appeal. In the case of Coughlin v. C.I.R. (7), the United States Court of Appeals (Second Circuit) dealt with the appeal of a lawyer, an expert in taxation, who laid out lecture-fees, travelling and living expenses, while taking part in the Annual Institute on Federal Taxation which took place in New York, and who wished to deduct his expenses from his income. The appellant was a partner in a firm of lawyers in the town of Binghamton, and it was necessary that at least one of the partners be an expert in tax matters, and that he should remain an expert and should know his way around all the changes and innovations in the law and the case-law. His partners relied upon his special expert knowledge. The case was conducted as a test case, and representatives of the New York State Bar Association and representatives of the American Medical Association also took part in it. The court decided in favour of the taxpayer. Admittedly, it was not essential that the taxpayer should bring his knowledge up to date in that field, and he would have remained a lawyer and partner in his firm without that, but he was under a moral and professional duty to maintain his expert knowledge. To quote from the judgment of the court (loc. cit. (7), at pp.309-310) :--

           

"...Here the petitioner did not need a renewal of his license to practise and it may be assumed that he could have continued as a member of his firm whether or not he kept currently informed as to the law of Federal taxation. But he was morally bound to keep so informed and did so in part by means of his attendance at this session of the Institute. It was a way well adapted to fulfil his professional duty to keep sharp the tools he actually used in his going trade or business. It may be that the knowledge he thus gained incidentally increased his fund of       learning in general and, in that sense, the cost of acquiring it may have been a personal expense; but we think that the immediate. Over all professional need to incur the expenses in order to perform his work with due regard to the current status of the law so overshadows the personal aspect that it is the decisive feature.

           

            "(2) It serves also to distinguish these expenditures from those made to acquire a capital asset. Even if in its cultural aspect knowledge should for tax purposes be considered in the nature of a capital asset as was suggested in Welch v. Helvering (8), the rather evanescent character of that for which the petitioner spent his money deprives it of the sort of permanency such a concept embraces."

           

            I agree with the ruling that was laid down in that judgment, and in my opinion it ought to serve as a guide to us. I see no need for dwelling at length on the English authorities in connection with expenses that a person bears in order to preserve his moral standing and his good name. Such expenses were allowed in several cases (for example, Mitchell v. Nable (5)), and not allowed in others (for example, in Spofforth and Prince v. Golder (6)), because the court thought that that was an expense of a personal nature and not solely professional. In the present case, there is no fear that the expenditure, in whole or in part, is personal. In my opinion, the sole question is whether this expenditure is designed to preserve an existing asset or whether it is calculated to add to and improve it. The test is, what is the asset? If one regards the knowledge and skill of a professional person altogether as one single whole, which we previously called "professional standard", then it may be said that the expenditure is designed to preserve the asset, whereas if we break down the generality of knowledge and skill into parts and examine each one of them separately, we will find that every bit of knowledge and every new method that the appellant learnt in her journey constitutes a new asset, an addition to the existing capital. I prefer the first approach to the second. A bare asset such as "professional standard" exists as a whole, and as long as the nurturing of that asset does not exceed the bounds of preserving what exists and is not designed to provide the professional man with another standing or another standard, an expense incurred by its owner for that purpose ought not to be regarded as a capital expense.

 

            I have not overlooked the fact that this decision is likely to present assessing officers with difficult problems. Not only must they distinguish between personal expenditure and expenses connected with a profession, but they must also examine every professional expense of the kind in question and decide on its substance from the point of view of the professional standing of the particular taxpayer before them. They must consider each case according to its circumstances. But I do not think that the problem arising here is different in nature or more difficult than the problems that assessing officers deal with in relation to other taxpayers. Whenever the expense in question is not incurred for the purpose of the production or supply of goods or services, but in connection with capital serving as a source of income, the question always arises as to what that connection is: was the money expended for the purpose of producing the asset or for the purpose of preserving it? I have no doubt that only in rare cases will the taxpayer be able to prove, as the present taxpayer has proved, that he really incurred the expenses of travelling abroad for the purpose of "further study" in the sense stated here. If the Assessing Officer, or the District Court on appeal from him, had found as a fact that the travelling expenses were not incurred in the present case for the sake of preserving an existing asset, but for the purpose of improving it, we should not have interfered with his decision if it had been based on the evidence. The advertising expenses of a business man serve as an example of an expense which may be an income expense or a capital expense, depending on the extent of the business and the expense. The question is one of degree. In the present case, evidence was brought which supports the taxpayer's contention, and that being so, we have only to examine the legal conclusion that the court arrived at on that evidence. That conclusion appears to me to be erroneous, as I have endeavoured to explain, and for that reason I am of opinion that the appeal should be allowed, and that the assessment should be amended as prayed for in the notice of appeal.

           

SUSSMAN J. I agree.

 

CHESHIN D.P. I regret that in the circumstances of the present case I cannot recognise the fine distinction between further study for the purpose of acquiring new knowledge and further study for the purpose of maintaining a professional standard. If the appellant had contended that she had forgotten her learning, or part of her learning, and proceeded overseas in order to revive her memory, she would have been entitled to demand a deduction within the framework of section 11(1) of the Income Tax Ordinance, as if all the trouble she had gone to and all the expenses she had incurred were designed only to restore the sources of creation of her income - that is to say, her medical knowledge - to their former state. But she did not so contend and she did not do so. She travelled abroad in order to complete her professional studies, that is, to observe for herself modern developments in the branch of medicine in which she is engaged, and to gain some idea of and add to her knowledge of techniques and new methods of treatment. I do not regard that act as an effort to maintain a professional standard, like the repairs that have to be done to machinery and tools of work which serve as a means of acquiring income. It is plain from the evidence that no danger threatened the appellant's position as a dentist, and that her income would not have dropped even if she had not travelled for the purpose of further study. I do not dispute the fact that the new knowledge which the appellant gained will be of great use to her, and will even increase her earnings in the future; but the further study here was, in my opinion, capital investment, a capital expense directed to the capital structure of the appellant's earnings, and it should be regarded as improvements, the expenses incurred in the making of which are not deductible according to section 12. For that reason, I should be disposed to dismiss the appeal.

 

            Appeal allowed

            Judgment given on March 6, 1956.

H. C. J 125/49 JULIETTE COLETTE AMADO v. 1. DIRECTOR OF THE IMMIGRANTS' CAMP, PARDESS HANNA 2. YOSEF AMADO In the Supreme Court sitting as the High Court of Justice. [April 16, 1950] Before: Smoira P., Dunkelblum J., Assaf J., Cheshin J., and Agranat J. Habeas Corpus - Order for custody of children by foreign court - Enforcement of order by High Court - Recognition of foreign judgment - Family Law - Interests of children paramount consideration. Subject to the paramount consideration of the interests of the children concerned, where a competent foreign court has granted a right of custody to husband or wife, the High Court will issue an order of habeas corpus to enforce that right. Radoyevitch v. Radoyevitch (1930 Sess. Cas. 619) referred to. A Civil Court in Paris granted a decree of divorce to the petitioner and second respondent (being respectively the wife and the husband), who were French nationals domiciled in France, and declared that the petitioner was entitled to the custody of the children, a girl aged seven years and a boy aged four and a half years at the time of the application, but ordered that the second respondent have access to them at stated times. On one of these occasions the second respondent smuggled the children out of France and brought them to Israel, where they were living with him in an immigrants' camp. The Paris Court reaffirmed the petitioner's right to custody and annulled the second respondent's right of access. The petitioner applied for an order in the nature of habeas corpus against the second respondent. It was her intention to take the children back to France; the second respondent declared that he would bring up and educate the children in Israel. Held: making absolute an order to deliver the children to the petitioner, 1. If the actual right to custody was the subject of a bona fide dispute, petitioner's claim would be a matter of personal status which must be brought before the District Court or the Rabbinical Court. But here the question of custody had already been determined, and since the application was to enforce a right already judically recognised, the High Court had jurisdiction to grant an order in the nature of habeas corpus. 2. A foreign judgment given by a competent court which determined the right to custody of the children of a marriage as a matter incidental to a decree of divorce, is a judgment in rem binding on all the world, and will be recognized in Israel, subject to the question of the welfare of the children. 3. A foreign judgment validly pronounced is presumed to be free of error both as to fact and as to law, and it is immaterial, from the point of view of its recognition in Israel, that it may be subject to appeal. 4. The fact that the parties, who bad been married in Paris both by civil process and before a Rabbi, had not been divorced in accordance with Rabbinical Law, might render invalid a second marriage contracted by either of them, but it could not affect the question of custody of the children. 5. In the circumstances of this case, and for the reasons set out in the several judgments of the court, the interests of the children were not such as would require the court to decline to give effect to the foreign judgment. Palestine cases referred to : (1) H.C. 24/40; Morris Louis Silverman (Caspi) v. Pearl Buxenbaum (Harubi), and others; (1940), 1 S.C.J. 95. (2) H.C. 118/43; Joseph Flint v. E. Jones and another; (1944), 1 A.L..R. 4. (3) H.C. 45/43; Levana Bar-Emun v. Moshe Bar-Emun; (1944), 1 A.L.R. 34. (4) C.A. 85/40; Jamil Abyad v. Isaac Ancona and another; (1944), 1 A.L.R. 34. English cases referred to: (5) The Queen v. Maria Clarke; (1857), 119 E.R. 1217. (6) Antoniye M. Radoyevitch v. Florence M. Webb of Radoyevitch; 1930 S.C. 619. (7) Salvesen of Von Lorang v. Administraton of Austrian Property; (1927) A.C. 641. (8) Stuart v. Moore; (1861) 9 H. L. Cas. 439. American cases referred to: (9) Halvey v. Halvey; 67 S. Ct. 903. Stoyanovsky for the petitioner. Michaeli for the second respondent. Glucksmann, Deputy State Attorney, for the Attorney-General. SMOIRA P. The petitioner, the mother of two children, applied to this court for an order in the nature of habeas corpus against their father, the respondent, directing him to deliver their two children into her care. She also asked for an interim order pending a final order. Both the father and the mother are French nationals. An affidavit submitted to us by the petitioner in support of her application contained the following allegations. The petitioner is the mother of the two infants, Jules Regine Amado, born on March 28, 1943, and Gilles Henri Amado, born on July 16, 1945. On June 2, 1949, the Civil Court in Paris granted a decree of divorce in favour of the petitioner against her husband, Yosef Amado. According to the decree, the custody of the children was granted to the petitioner, and their father was ordered to pay the petitioner the sum of 8,000 Francs a month for the maintenance of each of the children. The father was permitted to see the children twice a month and to have them with him during the second half of the school vacations. In accordance therewith, the petitioner handed the children over to the father on September 1, 1949, and the father was to have returned them to the mother on October 2; but the father failed to do so. The father, moreover, did not pay the mother the children's maintenance from June 1949 onwards, and on October 98, 1949, on a charge of "neglect of family" he was sentenced in absentia to four month's imprisonment, and ordered to pay the mother 20,000 Francs and the costs of the case. Since the mother could not find the children, she applied to the court in Paris. and on December 12, 1949, obtained a further judgment putting an end to the father's right to see the children or to have them with him. The petitioner attached to her petition a certified copy of that decision, which may be translated as follows: "Session of the Court (référé) of December 12, 1949, before the Deputy President and his assistant, the Registrar, undersigned, hearing the case in the absence of the President. "Whereas according to the judgment given in the presence of the parties by Tribunal No. 4 of this Court on June 2, 1949, a decree of divorce was made in favour of the wife, "And whereas that judgment granted to Mme. Amado the custody of the two children, Jules Régine, born on March 28, 1948, and Gilles Henri, born on July 16, 1945, and ordered the terms of that judgment to be carried out for the time being (exécution provisoire), ''And whereas it has been proved that Amado was sentenced by Tribunal No. 14 of this Court to four months' imprisonment for neglect of family, "And whereas, on the other hand, it has been proved that Amado, into whose care the children were committed during the second half of the long vacation, has disappeared with them and has not returned to his place of abode, "And whereas in view of the gravity of that act, Mme. Amado ought to be allowed to seize the two children committed to her custody in any place where they may be found and that any right of M. Amado to access to the children ought to be ended completely, "And whereas the matter is urgent, "Therefore, on the grounds aforesaid, we decide in the absence of Amado, who did not appear in the case although he was lawfully summoned, that as regards the substantive matter the parties must apply to the Court, but from now on and for the time being in view of the urgency, we authorise Mme. Amado to seize the infants Jules Régine and Gilles Henri Amado, the custody of whom was granted to her by this Court, in any place where they may be found, with the assistance of the Police Commandant and, if need be, with the assistance of the armed forces; "Finally terminate the right of M. Amado to access to the children, "Order the execution of this order for the time being and immediately, and even before its registration, because of its urgency, "Appoint M. Statte to deliver this order to the defendant who has not appeared and to preserve this order. "Given in Paris on the 12th day of December, 1949." (Signatures and certifications) When the mother discovered that the father had left France with the children and was keeping them in an immigrants' camp in Pardess Hanna in Israel, she, too, left France in the footsteps of the father and the children, and she also is at present in Israel. While she was trying in France to discover the whereabouts of her children, she says that she learned from her friends that the father had threatened to take revenge if they tried to take his children away from him, and for that reason did not turn directly to him and demand the return of the children to her. According to her, she even feared for the lives and safety of her children when the father should find out about her applying to this court. The petitioner is a teacher in a secondary school in Paris, and earns her own and her children's upkeep, and her parents in Paris have supported her whenever her husband has refused to carry out his obligations towards the family. Relying on this affidavit, this court issued an order nisi against the first respondent, the director of the immigrants' camp, Pardess Hanna, and against the father, the second respondent, to appear and show cause why they should not bring the said minor children before this court, and why they should not be delivered to the petitioner, and an interim order was further made directing the father to deliver the children to the first respondent, to remain in his care and control until the final hearing of the matter, and ordering the said director, for the well-being and safety of the children, not to permit the father to be in the company of the children unless a responsible person is also present and in charge. An affidavit in opposition that was filed by the father in reply to the order of habeas corpus did not, in fact, deny the main facts set out by the petitioner in her petition, save that the father states that he has never said that he would kill the children, their mother and himself if they tried to take the children from him. Tie describes this as a pure fabrication and the product of the petitioner's diseased imagination and as an illegitimate means of influencing the courts. As for the decree of divorce made against him on June 2, 1949, he argued that the judgment is not final and absolute, that he, the husband. has lodged an appeal against it, through the offices of his lawyer, to the Court of Appeals in Paris, and that the appeal has not yet reached its turn for hearing. According to him, the petitioner deliberately refrained from producing to this court a copy of the decree of divorce, since from its contents one might learn the nature of the proceedings before the court in Paris, the petitioner's character and the background to the family dispute. Dr. Stoyanovsky, counsel for petitioner, in reply to a question put to him by the court, confirmed that an appeal against the decree of divorce of June 2, 1949, was lodged before the respondent left France. The respondent devoted a large part of his reply to the order nisi to allegations against his wife, the petitioner, allegations that he also brought before the court in Paris in the divorce case. According to him, his wife does not attend to the running of the household or to the care of the children. She left their home because a man of no principles, a trickster from Bulgaria. by the name of Michael Ibenoff, who purported to found a special mystic sect at Sévres in France, introduced his wife into the sect together with many other women. At one time, this matter caused a considerable scandal in France, and Ibenoff was sentenced by a French court to four years' imprisonment and deportation from the country. The respondent sought to prove his allegations in the French court, in particular that his wife was suffering from mental disease as a result of Ibenof's influence, and that she was incapable of looking after the children; and he complains that the French court granted a decree of divorce against him without referring to his defence and found that the substance of his allegations were a ground for a religious divorce. He fears that his children will not receive a Hebrew and Jewish upbringing if they remain in the custody of the petitioner, especially in France or some similar place, and even fears that the mother will convert them to the Christian faith, or to the sect of that same Bulgarian who still has his followers in France amongst the women believers. He says that whenever he met his children, they were very depressed and would tearfully recount to him that their mother was not in fact looking after them, and they besought him to save them. Accordingly, out of concern for the fate of the children and in order to enable them to live traditional Jewish lives, to which he had always been devoted despite his living in the Diaspora, and in order to put at the disposal of his people the benefit of his skill and knowledge as a doctor, he decided to immigrate to Israel with his children. The father states that the children have been happy since they have been with him in Paris and in Israel. He has made endeavours to place the children in a suitable educational institution or in Youth Aliya 1) These are the main outlines of the story which was presented to as in the affidavits of the mother and the father. The examination of the mother and the father by counsel for the parties revealed the following additional facts : Dr. Amado was born in Izmir and went to France at about the age of 14 where he received his education. He is a doctor and is now 43 years of age. His wife, a native of France, is a teacher in a secondary school in Paris, and she is 30 years old. The couple were married in 1942, both according to civil law and Jewish law, before a rabbi in France. According to the petitioner it was her parents, and not her husband, who insisted that the marriage be solemnized before a rabbi. No steps have yet been taken towards obtaining a divorce according to Jewish law. She is ready to receive a religious divorce after the civil decree of divorce becomes final. At first the mother educated the children herself, and later entered them in a kindergarten conducted in accordance with the Montesori system, and if the children are committed into her hands by this court, she will take them to France and bring them up as heretofore. The mother confirmed, in answer to a question by the father's counsel, that the director of the kindergarten is a Jewess who has been converted to the Christian faith, and added that in the institution there are also two Israeli girls who are learning the Montesori system. She denied that the director of the institution asked her to send her children to take lessons in the Catholic catechism and she said that, if the latter were to do so, she would immediately withdraw the children from the institution. She further testified that her hus band had never objected to the children being educated in a Montesori institution. She describes her husband's fear lest she introduce her children into the Christian faith or Ibenoff's sect as a pure fabrication. Her husband contended in the divorce case that she belonged to the Ibenoff sect and that her state of mind had been influenced by Ibenoff. She had, indeed, on the advice of one of her teachers at the University, once taken an interest in Ibenoff's books, but had at no time belonged to that sect. She received a letter from Ibenoff dated March 31, 1945, and a photostat copy of it was produced to the court by counsel for the respondent. In that letter, Ibenoff invited her to go one morning to Sevres in order to participate in the prayers and exercises at break of day. In response to that letter, the petitioner visited Sevres, and on one or two later occasions visited Ibenoff's home together with her husband and children. According to her, Ibenoff's sect appeared to be a philosophical sect. Her husband also went to meetings of the sect, and at no time did he say to her that it was a sect of madmen, and that contact with members should be avoided. The petitioner knows that Ibenoff was sentenced in 1948 to four years' imprisonment for offences of inciting children to acts of indecency and immorality. She had indeed been impressed, at first, by the theories of Ibenoff, the central theme of which was the bringing closer together of the spirit of the East to the spirit of the West, but when she saw that his acts bore no relation to his preaching, she became confused. When she heard of the charges against Ibenoff, she said to one of her acquaintances that she was about to lose a good friend who had guided her with his advice. But the case affected her relationship with Ibenoff and his sect. She had taken an intellectual interest in the sect, and now all that was over for her. She had discovered that his ideas are also to be found in another philosophy, in a less complex form. The petitioner denied in her evidence any connection between the Ibenoff affair and her divorce petition. In reply to the respondent's contention that she is not capable, mentally or emotionally, of looking after the children, the petitioner testified that at the time of her studies she interested herself in the humanities, French literature, Latin, Greek and philology in general. She holds the degree of licencie (agrege) es. letters. At the secondary school in Paris she serves in the dual capacity of French teacher and secretary to the management. The number of pupils at the school is 1,100, between the ages of 11 and 19. There are at least eighty teachers engaged in teaching there; there is an assistant mistress in the school who deals with medico-social problems, and the petitioner has to examine all the social cases and the question of giving scholarships, which calls for the examination of the cases and of the family background of the pupils. As for the children's state of mind, she testified that from time to time, when the children returned from their visits to their father, they related to her what the father had said about her, and were very irritable and upset. The father gave evidence, inter alia, that he received no official notice of the decree of divorce of June 2, 1949. He saw an unconfirmed summary of the divorce decree in July, 1949, in his lawyer's file, and it may be that the decree was also delivered to tile latter. He presumes that an appeal was lodged on September 7, 1949; on September 14 he left France. He has not received to this day any news of the lodging of the appeal. He was present with his wife at the time of the first "reconciliation" hearing on April 14, 1948. In the first "no-reconciliation" order, the custody of the children was provisionally granted to his wife, and he was given access to them once a fortnight. On July 16, 1948, a second hearing took place for the purpose of reconciliation. Then, too, he was present with his wife. The existing order regarding the custody of the children was confirmed. He appealed against both the orders relating to the right to the children's custody. The appeal was heard on February 17, 1949, and he did not succeed in his appeal. On March 28, 1949, he filed a petition with the court known as référés, asked that they return his children to him, and set out his grounds for the petition. As a result of that petition, the court appointed a lawyer to examine the children's condition. According to the witness, the lawyer did not carry out his task properly. Instead of visiting the children at their place of residence with the petitioner's father, they were brought to the lawyer's offices, and the latter stated in his report that the children were in a normal state of health, and that they were being well looked after. The father knew that he had to return the children to their another on October 2, 1949, but, he states, he took them with him in order to save them. He has never said that his wife was out of her mind, but said that she showed signs of mental instability. He is still of that opinion after hearing her in this court. According to him, he did not live specifically in accordance with Jewish tradition, but he has been a Zionist for some time and his family is Zionist. He holds a number of invitations to Zionist meetings from the year 1947. He was a member of the Zionist Doctors' Association in Paris. There are three main legal questions which arise from the petition under consideration. (a) If the petitioner should have filed an action in the district court for custody of the children, is she nevertheless entitled to apply to this court for a. writ in the nature of habeas corpus? (b) If a petition for habeas corpus is a proper remedy, will this court recognise the decisions of the court in France, which granted the petitioner the custody of her children, as a basis for its decision on such a petition? This second question gives rise to two subsidiary questions:- (1) Does the fact that the French decree of divorce is still subject to appeal affect the petitioner's present right to the custody of her children? (2) Does the fact that the couple are not as yet divorced according to Jewish law prevent or delay the recognition of the decisions of the court in France relating to the right of custody? (c) If the answer to the last question is in the negative, does the rule that the benefit of the children is the real test justify this court in the present case in altering the decisions of the court in France regarding the right to the custody of the children? The first of these three questions is one of the jurisdiction of this court in the hierarchy of courts in Israel. The father's counsel, Mr. Michaeli, argued that the matter in question is not in the nature of habeas corpus, which is included within the jurisdiction of the High Court of Justice by section 7(a) of the Courts Ordinance, but is a case between parents over the right to the custody of the children, and is therefore one of the matters of personal status of foreigners and within the jurisdiction of the District Court (Article 64 and Article 51 of the Palestine Order in Council, 1922). On the other hand, the petitioner's counsel, Dr. Stoyanovsky, emphasized at the outset of his argument what he is not asking of this court. He stated that he is not asking for execution of the divorce decree granted by the Tribunal in Paris on June 2, 1949, or of the order made by the same court on December 12, 1949. He is not, moreover, asking for guardianship of the children for the mother. He is not even claiming the right to custody of the children, for he says that the mother is legally entitled to the custody of the children by virtue of the judgment and the orders made in France in favour of the mother. He is no longer in need of a determination of the right of custody in favour of the mother by this court. His application is for recovery of the custody and possession of the children of which the father has deprived the mother in an unlawful manner, and accordingly the children are in the unlawful custody of the father. For that reason, he contends, the matter falls within the scope of section 7 of the Courts Ordinance and the jurisdiction of the High Court. Before I consider the authorities, let me examine the two provisions of the law on which each one of the opposing parties relies. The definition of matters of personal status in Article 51 of the Order in Council speaks of "suits regarding marriage or divorce. . . guardianship" and others. Section 7(a) of the Courts Ordinance, which provides for the exclusive jurisdiction of the High Court of Justice, speaks of "Applications (in nature of habeas corpus proceedings) for orders of release of persons unlawfully detained in custody." In the present case, the divorce proceedings have already taken place in France, and it has been decided in favour of the petitioner that she is entitled to the custody of the children. There is no disputing the fact that the respondent took the children into his custody in breach of what was decided by the courts in France and brought them to Israel. Indeed, he contends that there were grounds and reasons for his doing so. But the fact remains that he is the one who had defied the courts in France. Counsel for the mother once more emphasizes that she is not asking for her right to the custody of the children to be determined. That right has been determined for her abroad, and therefore there is no case here in a matter of personal status. In bringing her petition in the nature of habeas corpus before this court, she relied on decisions made in her favour abroad in order to found her contention, which is the basis of her petition, that the children are in the hands of the father in unlawful custody, and therefore she claims their release. I do not hesitate to say that this contention seems to me to be sound. To start with, I shall consider the question as if the decisions in the mother's favour had been made here in Israel. The question as to what is the binding force of decisions made abroad (the second of the three questions above mentioned) is a problem of private international law, which I shall consider later. In order to make absolutely plain the question of jurisdiction and the definition of the border-line between a claim for custody and a petition for habeas corpus, it would be better to regard the matter separately from any problem of private international law. In this respect, the two parties were right in citing as authorities on the question of jurisdiction the judgments of the Supreme Court (during the period of the Mandate) which were delivered in cases in which no question arose as to the effect of a foreign judgment in this country, for the question of jurisdiction and the definition of the border-line between a case concerning the right to custody and a petition for habeas corpus is a question that arises, as I have already mentioned, from the provisions relating to the jurisdiction of the different courts in Israel. Counsel for the respondent cites as authority Silverman v. Buxenbaum and others (1). The truth of the matter is that that authority is not on all fours with the present case. That judgment contains only a few lines, and one gathers that the case concerned a family dispute which broke out over the question whether a child that was staying with relatives of his deceased mother should remain with them in accordance with his mother's will, as it was alleged, or should return to his father, and the father filed a, petition for habeas corpus. No judgment had been given in that matter before it came before the High Court. During the course of the hearing, the father undertook "to apply to the appropriate court to have these matters settled", and all that the court decided was that the child would remain with the mother's relatives until a decision was given on the part of the competent court. It is difficult to see how counsel for the respondent can rely on that judgment. On the other hand, counsel for the petitioner cited in support of the jurisdiction of this court authority from the following two judgments : Flint v. Jones and another (2); Bar-Emun v. Bar-Emun (3). The first judgment, Flint v. Jones (9), was delivered in a case based on a petition of habeas corpus. The petitioner, the father, demanded the handing-over to himself of his son from his divorced mother and her second husband. The petition was founded on a judgment of the Principal Rabbinical Court of Jaffa and Tel Aviv, according to which the custody of the child had been given to the mother until he reached seven years of age, and thereafter to his father. The mother, apparently, refused to obey the judgment of the Rabbinical Court, although at first the child had been handed over to the father but had been taken away from school after that by the mother's second husband without the knowledge of the father. The court acceded to the father's petition, issued an order nisi in the nature of habeas corpus against the mother and her second husband and, in the absence of an affidavit by the respondents, made it absolute. In the second case, Bar-Emun v. Bar-Emun (8), the petitioner (the mother) obtained a judgment of the Rabbinical Court against her husband, and this ordered the child to be delivered to the mother, but the Execution Office refused to execute the judgment, on the ground that the child was in the hands of her father-in-law, and the latter had not been a party to the case. Later, the mother sought the execution of a second judgment of the Rabbinical Court, which had been given in the absence of the father-in-law, for the delivery of the child to her. The Chief Execution Officer refused to execute that judgment also, since the child's grandfather had never consented to the jurisdiction of the Rabbinical Court, whereupon the mother applied to the High Court of Justice on a petition of habeas corpus, and won her case. The common denominator in the two cases - Clint 6. Jones (2), and Bar-Emun v. Bar-Emun (3) - is that the right to the custody of the children had been considered and determined by a competent court before the matter came before the High Court, and this court, relying in each case upon the decision previously given by such competent court, issued the order of habeas corpus. Admittedly, neither of those two judgments is of much value in deciding the problem that we are considering, for the first one was given without any reply on the part of the respondent, and neither of them defined the borderline between a case based on the right to custody and a petition for habeas corpus. But the judgments were given on the assumption that habeas corpus is the remedy wherever it is preceded by a decision of a competent court as regards the right of custody. That assumption is, indeed, correct. The rule may be expressed in this manner : so long as the right to the custody of the child has not yet been determined by the competent court, and the very right itself is the subject of a bona fide dispute, this right can only be determined by the court. A claim of this kind is a matter of personal status which, in accordance with Articles 47, 51-54, and 64 of the Palestine Order in Council, 1922, is within the jurisdiction of the District Court both as regards Israel nationals and as regards foreigners or, under certain conditions, is within the jurisdiction of the religious courts. Where the right has been determined by a competent court in favour of one of the parents, and the parent acts in breach thereof, and takes the child out of its lawful custody or continues to detain it unlawfully, then the remedy is the filing of a petition in the nature of habeas corpus. If it be said that a petition to take a child out of the hands of a person unlawfully detaining it is indeed a form of petition of habeas corpus, because you are demanding to put an end to the detention, but that the demand to deliver the child to whomsoever is entitled to possession of it is a claim to the right of custody, the judgment in Queen v. Clarke (5), decided in 1857, shows us that the two demands cannot be separated, for they are linked to one another. In that judgment, Lord Campbell C.J. said :- "The question then arises, whether a habeas corpus be the proper remedy for the guardian to recover the custody of the child, of which he has been improperly deprived. Certainly the great use of this writ, the boast of English jurisprudence, is to set at liberty any of the Queen's subjects unlawfully imprisoned; and, when an adult is brought up under a habeas corpus, and found to be unlawfully imprisoned, he is to have his unfettered choice to go where he pleases. But, with respect to a child under guardianship for nurture, the child is supposed to be unlawfully imprisoned ashen unlawfully detained from the custody of the guardian; and when delivered to him he child is supposed to be set at liberty." The rule is thus summed up in Halsbury, Hailsham Edition, Vol. 9, page 717, article 1219:- "A parent, guardian, or other person who is legally entitled to the custody of a child can regain such custody when wrongfully deprived of it by means of the writ of habeas corpus. The unlawful detention of a child from the person who is legally entitled to its custody is, for the purpose of the issue of the writ, regarded as equivalent to an unlawful imprisonment of the child." (Compare also, Halsbury, Vol. 17, p. 666, article1383.) As is well known, the institution of Habeas corpus is likewise one of the corner-stones of the Constitution of the United States, and therefore it may be worth mentioning that there, too, it serves as an appropriate remedy for carrying into effect a decision which has been given on the question of the right to custody of the children in a previous divorce case. See the Corpus Juris Secundum, Vol. 89, Title "Habeas Corpus", section 46, p. 586, and the judgment of the United States Supreme Court of the 3lst March, 1947, in the case of Halvey v. Halvey (9). As regards the value of American judgments on questions of the kind under discussion here, see Dicey, Conflict of Laws, 6th Edition, pp. 10, 11 (note 16). I have dwelt at some length on the first question although I have no doubt as to the true position. A number of cases have recently come before this court in the form of habeas corpus in matters concerning the right to the custody of children, and this is the first case in which we have been called upon to give judgment upon it : and I hope that my expanding on the subject here at some length will enable future cases to be dealt with more briefly. The second question that arises here is, what is the force of the judgments and orders made in France in relation to the courts of our country? Must this court recognize those decisions as a basis for its decision in the case under consideration? That is, as stated, a problem of private international law. Authority for that may be found in Abyad v. Ancona (4), in which the Supreme Court confirmed what had been decided in the Haifa District Court by Evans, R.P., in these words:- "The defendant argues that the Order in Bankruptcy made in Egypt must come within the Ordinance Cap. 75 or else is of no effect. Similarly he argues that all international law is founded in treaties and that before the Courts could give any effect to this order there must be some agreement or treaty on the matter between the Palestine and Egyptian Governments. We do not agree with either proposition. It is true that agreements have been made regarding reciprocal enforcement of judgments, but these are largely matters of procedure. The Courts had to consider the weight and effect to be attached to foreign judgments long before. The Defendant says we are not bound by what is called Private International Law. We think we are. Those Rules (i.e. the rules of private international law) enforced in the English Courts are part of the English Law to which we must have recourse in the absence, as admittedly here, of any local provisions on the matter in question. Rules 124 and 125 of Dicey's Conflict of Laws show clearly that an order, such as that of the Egyptian Court... would be effective in England... and must therefore be treated as effective here for the same purpose." Now let us examine the English rules of private international law in this field as applied to the present case. A first general principle is to be found in Dicey's book on the Conflict of Laws (6th Edition, 1949, p. 11) :- "Any right which has been acquired under the law of any civilised country which is applicable according to the English rules of the conflict of laws is recognised and, in general, enforced by English courts, and no right which has not been acquired in virtue of an English rule of the conflict of laws is enforced or, in general, recognised by English courts." In explanation of that rule, it is stated there (p. 11) :- "Their object and result is to render effective in one country, e.g., England, rights acquired in every other civilised country, e.g., France or Italy, the law of which (of France or of Italy) is applicable according to the English rules of the conflict of laws." That is the general rule; and what are the particular rules touching the present case ? Rule 71 in Dicey's book (p. 868) says: - "The Courts of a foreign country have jurisdiction to dissolve the marriage of any parties domiciled in such foreign country at the commencement of the proceedings for divorce. This Rule applies to - (1) an English marriage; (2) a foreign marriage." Rule 83 (p. 400):- "Any foreign judgment is presumed to be a valid foreign judgment unless and until it is shown to be invalid. " Rule 84 (p. 401):- "A valid foreign judgment is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either)(1) of fact; or (2) of law " Rule 93 (p. 430):- "A valid foreign judgment... of divorce... has in England the same effect as a decree of divorce...granted by the Court in England, as regards the status of the parties to the marriage which is dissolved..." As to the particular item in the matter under consideration, the right to the custody of the children, an incidental remedy generally given in a divorce case, the following is to be found in the commentary in Dicey to Rule 71, p. 878 :- "There is also a lack of ad hoc authority as to the extent to which English Courts will recognise the power of foreign Courts to exercise control in matters of the property and parental rights of the persons whose marriage is affected by their decrees similar to that exercised by English Courts when granting ancillary relief in matrimonial causes. But the principle that similar authority should be conceded to foreign Courts is implicit in the cases which decide that the ancillary decrees of foreign Courts will not be recognised if the principal decree cannot be recognised in England." In illustration 5 (ibid., p. 878) :- "H and W are divorced by a Court in France, where they are domiciled, and the custody of the child is given to the father. W takes the child to England. He claims the custody of the child, and is entitled to the aid of the English Courts, which will, however, have regard to the welfare of the child." In the commentary to the aforementioned Rule 93 (ibid., p. 431) :- "Subject to the paramount consideration of the welfare of the children, effect would presumably be given in England to a foreign decree dealing with custody of children in connection with matrimonial questions, as a similar power belongs to English Courts." As authority for that, the judgment in Radoyevitch v. Radoyevitch (6), is cited (note 64). The considerable importance attached to that judgment for the problem with which we are dealing immediately becomes apparent, and so I propose to quote at length from the judgment of Lord President Clyde:- "The petitioner was at the date of his marriage to the respondent and is still a domiciled Jugoslavian, resident in Belgrade. The respondent was at the date of the marriage a Scotswoman, and the marriage took place in 1921 in London. The parties lived together in Belgrade until after the birth of their only child, a daughter, in 1922. Thereafter the respondent, taking the child with her, came back to this country, where she and the child have since remained. In 1928 the petitioner raised an action before the Spiritual Court of the Archbishopric of Belgrade against the respondent for divorce on the ground of desertion, and for custody of the child of the marriage... the Spiritual Court granted decree of divorce, and ordered the child to be delivered to the petitioner... The Supreme Spiritual Court (in Jugoslavia) approved of it subject to certain modifications, one of which was to give the respondent right of access... The respondent refuses to obtemper the order of the Spiritual Courts, and the present petition is brought in order to invoke the aid of this Court (in Scotland) in making it effective. "The important point in the case is raised by...the respondent's contention... namely, 'that, it being highly prejudicial to the health, welfare, and interests of the child that her custody should be awarded to the petitioner, the petition should be refused.' It will be - observed that this contention assumes that the question of awarding the custody of the child to one or other of the parties is an open question in this Court, notwithstanding the foreign judgment; and the assumption may be at first sight warranted by the fact that the prayer of the petition includes a crave that the petitioner should be found entitled to the custody. But, as appears from the averments in the petition, the petitioner's real case is that the foreign judgment already entitles him to the custody; and therefore any finding of the kind prayed for can only refer to a finding that the petitioner is - in respect of the foreign judgment - so entitled. Nevertheless, the respondent argued that the circumstances alleged by her provide sufficient grounds on which this Court should refuse its aid in making the foreign judgment effective. The petitioner's answer was two-fold; he maintained that this Court has no jurisdiction to review or alter what has been judicially done by the competent Court of the domicile, but is bound to give effect to its judgment. ...It is to be observed that... none of the allegations made by the respondent... relate to circumstances which were not extant and fully known to the respondent prior to the proceedings in Belgrade, and therefore pleadable by her - quantum valuerint- in those proceedings. It is also to be observed that there is nothing in the proceedings before the foreign Court, as far as appears from the pleadings in the present petition or from the documents before us, which is inconsistent with our Scottish notions of substantial justice. "The unlimited scope attributed in Administrator of Austrian Property v. Von Lorang, (1997) A.C. 641, to the doctrine of the universally binding effect of foreign judgments in rens goes to support the petitioner's argument. The custody of a child, like its tutory (which may or may not include the right of custody), is clearly a question of status; and proceedings for the disposal or regulation of the custody must therefore be regarded as proceedings in rens. The foreign judgment was pronounced in an undefended action, and was thus a decree in absence, although preceded by inquiry. In a case not dealing with status this might perhaps be enough to prevent the judgment from being res judicata between the petitioner and the respondent...; but the specialty of a foreign judgment in rem is that, so long as it is pronounced by the competent Court of the domicile, it is binding (alike as between the parties themselves and in questions with third parties) upon the Courts of this country without further inquiry. Accordingly, the petitioner's argument is that the status rights of the parents to the custody of the child of their marriage (which status rights constitute the res) have been conclusively adjudicated upon by the competent court of their foreign domicile that is, of the husband's domicile, which is also the domicile of the child - and that this Court is precluded from inquiring into any of the matters with which the respondent's answers are concerned. The fact that the child is for the time being resident in this country and within the jurisdiction of this Court has no importance, according to the petitioner's argument, except as calling for the aid of this Court in giving executive effect to a judgment which is conclusively binding upon it. "But, after all, an appeal to this Court for that purpose is an appeal to its jurisdiction for aid in carrying out the foreign judgment, and necessarily assumes that the jurisdiction can be legitimately used for that purpose, in some way or other, over both the respondent and the child, notwithstanding that both the child in particular - are of foreign domicile. The assumption is of course well founded. In the case of Stuart v. Moore (9 H.L.C. 439; 11 E.R. 799), (in which the guardians in England claimed the handing over of an infant who was in Scotland) Lord Chancellor Campbell said this :- 'The Court of Session had undoubted jurisdiction over the case. By their nobile officiunt conferred upon them by their Sovereign as parens patriae it is their duty to take care of all infants who require their protection, whether domiciled in Scotland or not. But I venture to repeat what I laid down for law in this House near twenty years ago, 'that the benefit of the infant is the foundation of the jurisdiction, and the test of its proper exercise'." "In considering the benefit of the child, it must be kept in mind that neither in such a case as Stuart v. Moore, nor in the present case, are we concerned with any question about the choice between two claimants or candidates for the child's tutory or custody. There is already a tutor or custodier duly appointed by the Court of the foreign domicile; and the benefit of the child is relevant only to the question whether we should lend our aid by ordering delivery of the child to that tutor or custodier". Lord Sands, concurring in the judgment of the Lord President, said :- "The question before us is whether this child falls to be handed over to the custody of her father in Belgrade, or to be allowed to remain with her mother in Scotland. We are bound to regard that question in the same impartial manner us would the Court of a third country - say France - if the child were found temporarily there, and a competition arose in a French Court between the father and the mother. When the matter is so regarded, I think the law is clear. "As your Lordship in the chair points out, this application is not in substance an application to us to determine a question of custody. It is an application to us to give effect to a judgment upon that matter which has already been pronounced by a Court of competent jurisdiction." The Court of Session examined only the terms of transfer of the child from Scotland to Belgrade and the terms of her reception there in surroundings that were unfamiliar to her. After tile court had received satisfactory answers it decided that the mother should deliver her daughter to the petitioner. I have quoted that Scottish judgment in detail, because it is the only one which deals exactly with the question before us in this case, and both in the actual facts and in the arguments, there is great similarity between the two cases. In the same way that counsel for the petitioner repeatedly emphasized before us that he is not asking us to determine the mother's right to the custody of her children, but for the recovery of the custody established in her favour by a competent foreign court, so that approach is prominent also in the Radoyevitch case (6) and was accepted there. As for private international law, the principle was unhesitatingly established in that judgment, that a foreign judgment, which determines incidentally to a divorce the right of one of the parents to the custody of the children, will be recognised. The importance of that judgment is the emphasis therein that the decision concerning the right to custody of children is in the nature of a decision in rem, with all the wide implications inherent in such a decision, binding as it does the whole world. We shall have no difficulty in arriving at a conclusion, on the basis of the rules that we have quoted from Dicey's book and of what we have quoted from the judgment in Radoyevitch (6), that we must recognise the decisions of the French Court that determined the right to the custody of the children in favour of the mother, the petitioner. There is no disputing the fact that the court in France was the competent court to try and to decide the question of the divorce between the parties. The father was present at the trial, and was represented by a lawyer. His argument that, since he was no longer in France when the court delivered its further decision of December 12, 1949, the court had no jurisdiction to make it, is an absurd argument. Here is a father who has flouted and defied the court's decision and has smuggled the children away from their mother, and yet argues that he was tried in his absence. In fact, the petitioner was entitled to found her petition to us on the main divorce decree which was granted on June 2, 1949, and which gave her the right to the custody of her children. The respondent had no real argument to raise against the content of the decree and the decisions that came after it, and, furthermore, could hardly have done so, seeing that according to the rules that we quoted above, there can be no appeal here against a foreign judgment, which is presumed to be extant and effective, on account of an error in the facts or the law. In so holding, it must be said at the same time, that the respondent did not succeed in showing us any error whatsoever in the law or on the facts in the proceedings in France. Counsel for the respondent tried indeed to argue even before us that, in any event, we should not recognise the decisions made in France on two grounds : (a) because the divorce decree is still appealable, and the rule is that foreign judgments are recognised only when they are final; (b) this court, he contends, will not regard the divorce decree as binding so long as the husband and wife have not become divorced by a religious divorce according to Jewish law, and if the actual divorce itself cannot be recognised, then the incidental decisions of the question of the right of custody cannot be recognised. Both arguments are untenable. Admittedly, it is right that, according to the rules of private international law, a foreign judgment is recognised only when it is final and conclusive. As regards a judgment in personam, the matter is covered by Rule 86 (see p. 403 in Dicey's Conflict of Laws). Moreover, as regards a decree of divorce, the question of "finality" is mentioned in the commentary to Rule 93 (p. 431). But in the same place, in Rule 86, it is laid down that a foreign judgment can be final and conclusive even when it is subject to appeal and notwithstanding that an appeal against it is pending abroad where it was given. (Compare also Martin Wolff, Private International Law, paragraph 242, p. 266.) In fact, the opposite view for which counsel for the respondent contended before us would put at nought the intention of the foreign court. For the French court held, even before it gave its judgment on the actual divorce, in its previous decisions, where the father himself gave evidence, that the mother was entitled to the custody of the children; and the judgment of June 2, 1949, it held that the orders concerning the handing over of the custody of the children to the mother were to be executed for the time being, notwithstanding any appeal and without giving security. It is clear that the intention of the court there was not to retract from the weight of its decision by the use of the word "provisoire", and to say that the handing-over of the right of custody was only for the time being. On the contrary, it regarded as urgent the arrangement of the right of custody in favour of the mother, and so, as can be seen from the insertion of the words "notwithstanding any appeal and without giving security", it provided for the immediate execution of its orders concerning the right of custody. As for the second argument concerning the absence of a religious divorce according to Jewish law, counsel for the petitioner was right in saying that we are not dealing with the question of the possibility of a second marriage on his part or on hers. It is clear that, according to Jewish law, such second marriage is forbidden, in spite of the civil divorce, unless preceded by a religious divorce. But, as stated, that question does not arise here. We are here dealing with the question of the effect of the decisions in France relating to the right of custody. The divorce decree, as a civil divorce, is effective according to French law, which applies to the parties according to Israel law (Article 64 of the Order in Council, 1922)1), and therefore the same part dealing with the right to the custody of the children is also effective. (Incidentally, the question of the right to the custody of the children can also arise, according to Jewish law, even while the marriage still subsists though the parents are separated.) . The result is that neither the appeal lodged in France nor the absence of a religious divorce, will entitle us to defer the recognition of the decisions made in France concerning the right to the custody of the children. That brings us to the last point, and that is whether the benefit of the children requires us to alter the decision of the French court. It is agreed that the established rule, and the one which most appeals to the intelligence, is that the benefit of the children must be decisive in exercising judicial discretion, even in cases of habeas corpus. But what are the factors to be taken into account in such judicial discretion? The opinion of the children themselves as to whom they want to go to cannot be sought when they are of such a tender age as are the children in the present case, in particular in habeas corpus proceedings. If authority is required for that, it may be found in the above-mentioned judgment of Queen v. Clarke (5), and in Eversley on Domestic Relations, (pp. 418-423). The parents' opinions are completely at variance. The father contends that the children are depressed when they return from a visit to the mother, and the mother contends that they are irritable when they return from their visit to the father. Their views, therefore, are of no assistance. Even taking into account the requirement of the benefit of the children, the court will not readily alter the decision of the court abroad concerning the right of custody. It is clear that each case has to be considered according to its special nature, and no hard and fast rule can be laid down here. But it may generally be assumed that before the court abroad there were more data to assist in weighing the matter than before the tribunal which is called upon afterwards in another country to recognise the former judgment. There is also special significance in the length of time that has elapsed between the decision of the original court and the decision required from the court in the other country on the strength of the judgment given abroad. In the present case, the court in France, before which all the data were available, including an examination of the state of the children, decided a short while ago in favour of the mother. What in essence did the father contend before us in order to move us to alter the decision of the court in France regarding the custody of the children? Mainly the Ibenoff affair, that I mentioned in some detail in setting out the facts. I assume that for a certain period, the mother (petitioner) was influenced by that person and his opinions, until he turned out to be a criminal. But there is no ground for not believing her, that since then, the man and his system mean nothing to her. There is no foundation for assuming, on the basis of what we heard in evidence from the two parties, that that affair influenced or will influence in any way her capacity as educator of her children. Furthermore, there is no argument here that the husband could not have put forward in the French court, and now he comes before us and claims a new factor in deciding the question of the custody of the children. We know from his evidence and from the divorce decree that the respondent certainly argued the matter of Ibenoff, and not only did the court not accept his argument, but viewed the very fact of his making allegations against his wife arising out of the Ibenoff affair as a serious insult and a grave reflection on her, and as a sufficient ground for divorce. If the French court, which was so close to the "atmosphere", held thus, are we here going to differ from it on that point? He further argued, that his wife lacks the necessary mental stability, and therefore her influence is harmful to the children. That argument, too, was submitted to the French court at various stages in the proceedings, was heard and rejected outright. Now the petitioner has given evidence before us, was examined by counsel for the respondent, and by her own counsel. Her replies were completely balanced and she gave the impression of a restrained person, despite the difficulties she has been through. We have heard about her position in the secondary school in Paris in which there are 1100 children. There, she is not only a teacher, but also assistant to the Board of Directors in dealing with medico-social questions. We have no reason for dismissing the petitioner as not being a satisfactory mother and educator, or for departing for that reason from the decisions of the court in France. Lastly, the respondent father appealed to this court saying that the custody and education of the children should be committed into his hands, contrary to what was decided in France, in view of the fact that he wishes to give them here a national-Jewish upbringing that they cannot receive in France. His counsel added that the rule of public policy calls for such a decision by us. I have the feeling that there is a lack of sincerity in the father's statements in this connection. We have not heard that before the divorce he objected to the method of education given to the children in the school in France, or that he did anything in order to give his children a Hebrew or Jewish education. According to the evidence before us, it is to be assumed that if there remained a spark of Jewish tradition in the Amado family, that spark was rather to be found in the mother's family. The suspicion which the husband projected into the atmosphere of the court, that the mother was likely to convert the children to another religion, was rejected by the mother with disgust, and I have no reason to doubt the sincerity of her words. As for public policy, this court and every judge in Israel would obviously be pleased if every Jewish child that immigrates into the country were to receive his education in Israel. But this is not the way to encourage the immigration of Jews to the Land of Israel. Heaven forbid that we should turn our country into a refuge for people who, during the course of quarrels in their married lives, smuggle their children away in contravention of the law and of justice. That way brings no blessing either to the country or to the children. My conclusion is that, from the point of view of the benefit of the children also, there is no ground for altering the decision of the court in France which gave the mother the right to the custody of her children. Accordingly, the order nisi should be made absolute as against the second respondent. DUNKELBLUM J.: I agree with the judgment of the learned President, and with its reasoning and conclusions. AGRANAT J.: I concur in the opinion of the learned President both as to the result at which he arrived and as to the grounds upon which he relied. CHESHIN J.: I concur without hesitation in the learned President's opinion, insofar as it relates to the first two questions raised in his judgment, namely, that the matter in question was rightly brought by way of petition in the nature of "habeas corpus", and that in the light of the principles of private international law, this court is required to regard the decision of the French court, which entitled the mother to the custody of the children, us the basis for its own decision. The third question however - and it is, in the opinion of all the authorities, the decisive question - namely, whether the benefit of the children requires that that decision be maintained or altered - this question, I must confess, gave me much ground for thought both while the parties and their counsel argued their case before us and when examining the great and varied mass of authorities which were brought to our attention. which the learned President dwelt at some length in his judgment, the father demanded, on the strength of a Jugoslav judgment, to have their eight-year-old daughter, born to them in Jugoslavia and taken by the wife to Scotland when she was a few months old, removed from the custody of his wife and handed over to him. Lord Sands, one of the three judges who composed the court, asked himself the question in this form : is the Scottish court bound to commit the child into her father's custody in Belgrade, or to permit her to remain with her mother in Scotland? The learned judge came to the conclusion that the court should examine the matter from an objective point of view, in the way that, say, a French court might have done, if the child had found her way temporarily to France and her father and mother were carrying on a legal battle in the same court over the right to have the child with them. "When the matter is so regarded," concludes Lord Sands, "I think the law is clear." The Lord President of the Court of Session, Lord Clyde, says in the same case :- "It is quite impossible for us to make up our minds on the balance of advantages and disadvantages ...attendant on Jugoslavian or on Scottish nationality, or on the social or educational associations of either country, and I do not conceive that such a balance could be reasonably or fairly applied to the problem of the child's welfare, even if we thought ourselves able to make it." (p. 627). I dare to express a doubt whether those considerations that were in the mind of the Scottish court, and those only, must be in our minds when we come to deal with a problem of the kind that arises in the present case. An Israel court, in determining the fate of a Jewish child within its jurisdiction, is not entitled to ignore the special position of the Jewish people or of the individual Jew among the nations of the world, and to say to itself, in the words of Lord Clyde, or by way of the illustration that Lord Sands brought : "Let us assume that we are sitting as an English Court in England or an American Court in America." This court and its members are not sitting in vacuo, cut off from reality and from the people among whom they work and create, sharing their ambitions, experiences and desires, and they are not always required to confine themselves within the four corners of a rule and to see everything from the aspect of the letter of the law applicable in other countries. In this respect, one might say that Israel is not like all other nations, and a Jugoslav child whose Scottish mother has brought him with her from Belgrade to Scotland is not the same us a Jewish child whose Jewish father has brought him to Israel from the lands of the Diaspora. The vast majority of the Scottish people resides in its own homeland, and the dangers of becoming assimilated and vanishing do not face them. In the last war, it was not bereaved of a third of its people on account of their being Scottish, and the people of Scotland living in other parts of the world are not subject to perpetual persecution and discrimination on account of their race, and the stock from which they spring. The same applies to the English, to Americans and to Jugoslavs. The Israel nation, alone of all the nations, during all the long years of its exile and through all the lands of the dispersion, almost without exception, has been wantonly persecuted for its religion, its race, its customs, its culture. Whole communities of Jews have been condemned to physical and spiritual destruction and have been utterly destroyed, and others are fighting a desperate struggle for their religion, their culture and their very existence. So well known is it that it requires no proof, that millions of our brethren, among them children of tender years, and youngsters who had hardly left their nurseries and whose parents had at one time taken them with them from the Land of Israel and brought them to the lands of the Diaspora, have been wiped out in our days and before our very eyes and the eyes of the whole world, by one of the "advanced" nations of civilisation, thinking up methods of killing which the Devil himself could scarcely have conceived, contrary to the law of nations and humanity. Can a court in Israel forget this story of annihilation, when it comes to consider the question of removing one of its children from Israel? And are we required to shut our eyes to the reestablishment of Israel in its own land, and the consequences involved for every Jew because of his being a Jew in the achievement of the hope of generations for the return of its people to its own country? The ingathering of the exiles is not just an empty phrase, and each one of us here today, and each one who is not with us today, is fully and clearly cognisant of the fact, that every Jew who immigrates to Israel aids not only the restoration of the nation and the building of the land, but also ensures his own security and future and the security and future of his children and family. A child from Israel who becomes rooted in the land of his forefathers has been freed from the dangers of assimilation and annihilation. The benefit and security of the children whose fate this court has been called upon to settle have to be seen in the light of these and similar considerations. Furthermore, in the case of Radoyevitch (6), the Scottish mother objected to the handing over of her daughter to the Jugoslav father, and gave her reasons for so doing in a long series of arguments and replies; but it was apparent there - and the Lord President, Clyde, comments thereon - that none of the mother's arguments were new, and that she could have submitted them to the Spiritual Court in Jugoslavia before the latter decided on the matter of the right of custody. She did not do so, and was therefore out of time. That, however, is not the position in the present case. Here there has been a change, an enormous change, since the day on which the French court gave its judgment. The father has opened a new chapter in his life. He has decided to settle among his own people, and to bring his children up in the spirit of Israel. I was not particularly impressed with the argument of counsel for the mother, that the father immigrated to Israel because he had kidnapped his children from their mother's home, and because he could find no other place to which to take them. The opposite is true : he took his children with him because he had made up his mind to abandon the life of exile and to live a Jewish life in his own land. It is true that he grew up and was educated in foreign surroundings, and that national values were not of particular importance to him, and that his children have been brought up in that spirit, too. But his intentions are not to be dismissed on account of his past. An enormous change of values has taken place in the outlook and inclinations of many Jews of the Diaspora since the last World War, and in particular after the establishment of the State of Israel. The fact is that he has immigrated to Israel and has brought his children with him. The fact is that, in court, he expressed his desire once more to live with his wife a normal family life, forgetting the past, should she desire to settle in Israel, but she persists in her refusal and she is content with life in the Diaspora. The fact is that, when the children were transferred to a hospital at the commencement of the Festival of Passover, he would not rest until he had succeeded in moving this court to order the children's transfer to a Jewish institution until after the Festival had ended. On the other hand, although she gave her consent to that transfer, the actual entering of the children into a non-Jewish institution was done at the mother's request, and she was not troubled by the fact that the children would be during the Festival and the intermediate days in non-Jewish surroundings. In those circumstances, I am prepared to believe the father when he declares on oath that "out of concern for the fate of the children and a desire to give them traditional Jewish lives... I decided to immigrate to Israel and to live here a quiet, Jewish life, to devote my life to bringing up my children and together with that to put my skill and knowledge in the science of medicine at my people's disposal." I weigh against that the personality of the petitioner - the mother - with her emotional tendencies, to the extent that they were revealed to us in these proceedings. I stated at the outset of my remarks that I am in full agreement with the learned President, that since the French court has committed into her hands the custody of the children, the right to custody is hers. But since the benefit of the children as at today is the true test which must apply, in view of the above stated considerations, me are not free to overlook any of the facts. The words of Lord Sands in the Radoyevitch case (6) are enlightening, when he declares in this connection :- "It is the duty of this Court to extend protection to every child found within its jurisdiction, and it may in certain cases be our duty to extend such protection even against a claim based upon a legal award of custody. The Court will not de plano in every case order delivery to the legal custodian." (p. 628). In other words, it is one thing to treat a judgment of a foreign court with the respect which is its due, and in certain cases also to recognise it, particularly in the light of the principles of private international law, it is quite another matter to consider the benefit of the child. The latter is settled according to the outlook and discretion of the judges who are called upon to determine it in each and every case according to its particular circumstances. There they are not tied to universal principles. You cannot draw an analogy in this type of case from the rules of private international law, nor will such rules be in any way affected even if the court does not uphold to the letter the judgment of the foreign court. From that point of view, considerable importance attaches to the character and capabilities of the mother, who demands for herself the upbringing of her children and the whole of their future. It must be mentioned at the outset that she gave me the impression of being a somewhat fanciful spirit, who has not yet found the way of life suitable to her. In her adolescent years, she engaged in the science of philosophy, and under the guidance of one of her teachers at the University, the Greek teacher, a near and enchanting world was opened before her in the theory of a certain Bulgarian named Michael Ibenoff. For a number of years she studied this theory, and even began to correspond, after her marriage, with Ibenoff, the creator of this theory. I did not succeed in understanding the niceties of this theory, but I heard from the petitioner that it discloses the ways of the East to the peoples of the West, that is to say, a sort of harmonious intermingling of the two differing worlds. While she is engaged in this study, Ibenoff invites her to his home, and somewhat surprisingly she becomes involved, at her very first meeting, in a conversation about her marriage to her husband. Afterwards, Ibenoff invites her - and she accepts his invitation to be present at a ceremony of "breathing exercises of the Yogi kind", "accompanied by beautiful Bulgarian songs", conducted at the first rays of dawn by men and women in the fields near the town of Sevres in France. We were given no explanation, and we do not know to this day, how this idolatry, carried on at an hour which is neither day nor night and when the whole world is fast asleep, is designed to bring the East closer to the West, but we do know that Ibenoff also founded a mystic sect, and that it was his wont to work up women and virgins from among the female followers of his sect into a frenzy, and to incite youngsters to acts of indecency and immorality. We further know that this Ibenoff, who was once given the name of the Bulgarian Rasputin by the French press, was finally caught red-handed and sentenced by a French court to four years' imprisonment. The petitioner served as a disciple to this charlatan, she participated several times in meetings of members of his mystic sect (according to her, together with her husband), and the petitioner was invited to send her children to the school that was about to be founded by the followers of that same sect. In this school, the petitioner explains and declares, it was proposed to introduce the theories of Ibenoff. When Ibenoff was put on trial, the petitioner was at a complete loss and said to one of her acquaintances, as she herself admits in her evidence : "I am utterly confused because I am about to lose a dear friend who has guided me with his advice and led me in the paths of life." In her evidence, she indeed declares that she has drawn away from Ibenoff's sect and today she no longer interests herself in it, "because it is possible to find it (that is, the philosophy of life that Ibenoff preached) in any other philosophy without complications", and she sends her children to a State school, of which by coincidence - or perhaps not by a coincidence - the headmistress, as teacher and principal, is a converted Jewess. The story of the petitioner's relations with Ibenoff and his mystic sect was indeed recounted to the French court, and from the fact that the children were eventually placed in the hands of the petitioner, it is plain that that court found nothing objectionable in her and her character; but the Ibenoff affair is not at an end, since the second respondent - the husband - has lodged an appeal against the judgment, and we do not know what will be the result of that appeal. However, more important than that is that there were not before the French court - nor could there be - the facts that came into existence, as stated, after the giving of the judgment; and it is all the more obvious that it did not take into account those considerations with which we are faced. That court regarded the children as it would regard French children, whereas we regard them as we would regard Israel children, whose father seeks to have them regarded as attached to the body of their resurrected nation. The revival of a nation in its land means the revival of every member of the House of Israel, and the benefit of an Israel child requires that he be formed in the likeness of his people, on the soil of his homeland, and that he should grow and be educated a free person among his brothers, the children of his people, without the marks of a bowed head and an inferiority complex so characteristic of the Jew in the Diaspora in his relations with the people among whom he lives, even though he be born there. From that point of view, that is, from the long-term and final point of view, I do not hesitate to express the opinion that the benefit of the children requires a decision that their place is here in Israel, amongst their people, and by the side of their father. We have, however, still not exhausted the problem, for there is another side to the coin which is no less important : that is the short-term aspect of the matter, the prosaic question as to what the children will eat today and what they will wear tomorrow. The petitioner, in her affidavit, speaks of herself as being a secondary school teacher in France, and earning enough for her own and her children's upkeep. Moreover, she says, her parents have supported her in the past, whenever the second respondent has refused to carry out his obligations towards his family. It seems that those parents are good Jews, and at least in their home they carry on the tradition and customs of Israel. The petitioner even mentioned in her evidence that her mother bad at the time objected to her grandchildren, the children of the petitioner and the second respondent, learning Christian religious studies in the school in which they were being educated, and this objection fell on willing ears so far as the petitioner was concerned. Those statements, whether in writing or made orally, were not denied by the second respondent. On the other hand, it appears that the material position of the second respondent is by no means bright. In his affidavit, he speaks of "prospects of getting settled in his profession in Israel" (paragraph 19), of prospects "of entering my children into a suitable educational institution or into Youth Aliya ...with the assistance of one of the social workers ...in Pardess Hanna" (paragraph 13). But all that is, at the very best, no more than a sort of good hope for the future, and it has not got beyond the stage of prospects. There is nothing positive. At the moment, the children are running around in an immigrants' camp, without supervision and without the presence of relatives which are so necessary to children of tender age (the girl is about seven and the boy about four-and-a-half), subject to the kindness of good people and living on a pittance. When the children became ill on the eve of Passover (and it turns out that their illness was not so dangerous), they had to be transferred to hospital, where they could receive the necessary treatment. We do not know what will happen to them tomorrow, or how the father proposes to supply his children with their most vital needs. At the moment, their sustenance is poor. They have no corner of their own, and even the roof above their heads is not permanent. In the Radoyetvitch case (6) also, in which the Court of Session held that, from the legal point of view, the father was entitled to have the child in his possession, the court was not in a hurry to hold in favour of the father, but demanded satisfactory guarantees to ensure that the child would take root in the land to which the father proposed to take her, taking into account her age, her sex and the fact that she had grown up without any knowledge of her country's language. In this respect, the words of the Lord President, Clyde, are enlightening. The learned judge puts it this way :- "We must in the first place, be fully informed of the petitioner's plans for taking delivery of the child and for its safe conduct to Belgrade, ...and we must be satisfied that he is at the present time in a position to carry those plans out. In the second place, we must be fully informed of the arrangements made by him for the proper reception in Belgrade (with a view to education and upbringing) of this girl of eight years of age, who when she first comes under his care) will be unable to communicate her needs or wishes to those around her, unless they have some knowledge of English. We must also be satisfied that he is at the present time in a position to carry out whatever arrangements for these purposes he may have made." If such is the position of a father, claiming his right on the decision of a court which has already decided in the matter, how much more so in the case of a father whose actual right is still in dispute. When I weigh that short-term view in my mind, it seems to me - and not without considerable hesitation - that despite the long-term view, and notwithstanding the father's good intentions, it would not be right to leave the children's fate hanging on a thread. For that reason, and that reason alone, I, too, think that the order should be made absolute. ASSAF J.: I concur with the learned President on the question of this court's jurisdiction to try the matter before us, brought by way of a petition in the nature of habeas corpus, and also on the question of giving recognition to the judgment of the court in France. In relation to the question whether the benefit of the children requires us to alter the decision of the French court, I admit to considerable hesitation and heartsearchings, similar to those which my learned colleague, Cheshin J., has discussed at some length, although I do not feel the same certainty that he has as to the sincerity of the respondent's statements in relation to the upbringing of the children - that he wants to educate them in a traditional Jewish spirit - seeing that they were made after domestic peace had been shattered, and strife had come in its stead. Further, from the evidence of the respondent in court, it is clear that he was not one of those people who maintain the Jewish tradition, and before the divorce case did not object to the method of education that the children received in France. In his affidavit, the respondent states that, in order that domestic peace be restored, he is prepared to forgive his wife her past offences and to live with her a normal family life, but the serious allegations he has made against her throw doubt on whether he feels the same way as he declares. Counsel for the respondent contended that, if the petitioner were to decide to remain in Israel and leave the children, who are still very young and in need of a mother's care, with her, he would have nothing left to argue; but since she does not propose to do so, and since she is still not divorced from her husband according to Jewish law, he relies on the express passage in the Mishnah 1) that "a man may compel all his household to go up with him to the Land of Israel, but none may be compelled to leave it" (Ketuboth, 110b; Shulhan Aruh, Even Ha'Ezer, 75), and accordingly a husband is entitled to demand of his wife that she, too, immigrate to the Land of Israel. But it seems to me that that rule cannot be relied upon in the present instance. It is obvious that the rule was intended for normal cases, where the husband and wife are living together in the customary way and in the manner of Jewish people, and the husband proposes to immigrate to the Land of Israel while the wife is opposed to immigration, on the ground that it involves the giving up of their established home, the ardours of travel and the liky, or out of lack of desire to leave their former place of residence, where her father's household, her relatives and friends live; but in the present case, where the couple are living separately as the result of a serious quarrel that has already lasted a number of years and where a divorce petition was filed more than two years ago, the better view is that a husband cannot demand that his wife leave her father and mother in the land of her birth and the place where she is earning her living and go after him to the Land of Israel, without being certain that she will lead there a happy life. That can only be done by way of request and compromise and not by compelling her to do so and deeming her a rebel for that reason alone, if she refuses. That being so, we return once more to the question of giving effect and recognition to the French court's decision as it stands, according to which the custody of the children has been accorded to the petitioner. After consideration I, too, agree with the opinion of the learned President and my other learned colleagues, that the former situation should be restored by making the order nisi absolute. SMOIRA P. Accordingly, we make the order nisi absolute as against the second respondent. In doing so, we express the hope that the petitioner will not enforce her legal rights to their full extent, but will see her way clear to make some arrangement which will enable the father to see his children from time to time. Order nisi made absolute against the second respondent. Judgement given on April 16, 1950.

 

C.A. 118/51

 

 

NEW ZEALAND INSURANCE CO. LTD. AND ANOTHER

v.

IZHAK YOUVAL (SALZMAN)

 

 

In the Supreme Court sitting as a Court of Civil Appeal.

[June 4, 1953]

Before: Silberg J., Assaf J., and Landau J.

 

 

 

Conflict of Laws - Palestine Order in Council, 1922, Article 46 - English law to be applied - English law, when applied as foreign law and not by virtue of Article 46, to be proved by experts - Principle of identity of laws - Contract of marine insurance - Ottoman Maritime Code, 1863, s. 193.

 

                The plaintiff, a Haifa merchant, insured with the defendant, a company having its head office apparently in New Zealand and a branch in London, a consignment of 100 watches despatched to him from Paris. The policy, made in Haifa and mentioning the London branch, was in English and contained a "lost-or-not-lost" clause. In fact the watches had been sent from Paris twenty days before the issue of the policy, but this fact was not disclosed to the underwriters. The consignment was stolen while in transit in France, and only seven watches were recovered. It was impossible to determine whether the theft had been committed before or after the date of the policy. The District Court gave judgment against the defendants for the value of 93 watches, holding that the information relating to the prior despatch of the watches had not been withheld by fraud on the plaintiff's part, and that there was no duty on him to volunteer it.

 

                Held, allowing an appeal and remitting the case to the District Court for further consideration:

               

                1. The question what was the law applicable to the contract, being one of conflict of laws to which no local law extended or applied, must be determined in accordance with the English common law by virtue of Article 46 of the Palestine Order in Council, 1922.1)

               

                2. Quaere, whether the English law rule is that in the absence of an agreement to the contrary a contract of marine insurance is governed by the law of the place where the underwriter carries on his business.

               

                Spurrier v. G.F. La Cloche 1902 A.C. 446 and

                Greer v. Poole (1879) 5 Q.B.D. 272 considered.

               

                3. There was no evidence before the court to prove either what was the country in which the underwriter carried on business or, assuming it to be England, what the provisions of the English law were. As distinct from a case in which English common law is applicable under Article 46, it is necessary to prove such law by expert evidence when it is to be applied as a foreign law.

 

                4. In the absence of evidence, it must be presumed that the law of the defendant's place of business is identical with the local law.

 

                5. A question of marine insurance is comprehensively answered by the Ottoman Maritime Code, 1863, and there is no occasion to turn to English law under Article 46. On the contrary, the Code must be interpreted in the light of the French law from which it was derived.

               

                6. By Article 193 of the Ottoman Mercantile Code 1) a contract of insurance will be cancelled in the event of the non-disclosure of a fact which, had it been known to him, would have prevented any ordinary, reasonable underwriter from consenting to the conditions included in the policy.

               

                Accordingly:

               

(a)          The question does not depend upon whether the assured knew or did not know of the loss of the watches, or whether he acted fraudulently or not.

 

(b) The "lost-or-not-lost" clause proved that the mere fact that the watches had already been despatched at the date of policy could not have affected the underwriters' estimate of the risk insured.

 

(c)           The question whether the non-disclosure of the fact that the watches were already in transit for twenty days at the time when the insurance was applied for affected the validity of the contract depended upon whether that period was so long in reference to the circumstances that an ordinary, reasonable underwriter would regard it as increasing the risk he had underwritten. That question should be answered by the District Court.

 

                Case remitted accordingly.

 

Palestine cases referred to :

(1)          C.A. 123/41 - Gustav Weil v. Barclays Bank (D.C. & O.), Haifa Branch; (1941) 2 S.C.J. 354.

(2)          C.A. 259/41 - Leopold Baef v. The Palestine Building Syndicate, Ltd.; (1942) 1 S.C.J. 82.

(3)          C.A. 73/43 - L. v. L; (1943) 1 A.L.C. 245.

 

Israel cases referred to:

(4)          C.A. 37/48 - Bank Hapoalim Ltd. v. Ya'acov Kravtsov; (1948/9) 1 P. 44.

(5)          C.A. 130/50 - Amal Ltd. v. Yehoshua Shindler; (1952) 6 P.D. 710.

(6)          C.A. 37/49 - Gila Cohen Rapoport v. Sara Paldwrowski; (1950) 4 P.D. 645.

(7)          C.A. 51/49 - Yosef Yazdi and Others v. Rivka Yazdi; (1950) 4 P.D. 762.

(8)          C.A. 167/47 - Binyamin Minkowitz v Zalnan Fishtsner & Others; (1948/49) 1 P. 49.

(9)          C.A. 65/49 - Moshe Freisler v Fritz Weiss; (1951) 5 P.D. 878.

 

English cases referred to :

(10)        Spurrier and Another v. G.F. La Cloche; (1902) A.C. 446.

(11)        Greer v. Poole and Others; (1880) 5 Q.B.D. 272.

 

Solomon for the appellant.

Meridor for the respondent.

 

                SILBERG J. This appeal concerns marine insurance and the question that has been raised before us is :what is the position in law of an assured who keeps silent and does not disclose to the insurance company that the goods have already been sent from the place of despatch, that they have been lost en route, and that it is not known whether such loss occurred before the contract was made or thereafter. The difficulties of this case are increased by the fact that the policy contained the well known "lost-or-not-lost" clause and that it did not restrict the insurance to future risks only.

               

2. The material facts are set out below, and particular importance must be attached to the relevant dates :

 

                (a) In 1947 the plaintiff Mr. Izhak Youval (Salzman), began business as an importer of watches. His method of operation was to send gold ingots to Prance for the purpose of being worked and mounted, and filled by the Lanco Company into watches which be later re-imported into Palestine as finished goods. One of these orders was carried out in the middle of March, 1947. It concerned some 250-300 watches which were to be sent from France to Haifa in small batches. At the same time the plaintiff informed the Lanco Company that he had opened a bankers' credit in its favour in connection with this order. Several months passed and after a great deal of correspondence the company at last telegraphed to the plaintiff on June 20, 1947, that it was about to send him 100 watches and requested him to have them insured. And indeed after seven days - that is on June 27th, 1947 - the watches were despatched from a Post Office in Paris. The company then wrote to the plaintiff to that effect in a letter which had left Paris on July 5th and which reached the plaintiff between the 10th and 12th but not later than the 15th of the same month. On receipt of the letter the plaintiff transferred by telegram to the Lanco Company the cost-price of the watches in accordance with the bill which was attached to the letter. On the 16th of July, Mr. Israel Salzman - the son of the plaintiff and the manager of his business - went to the office of Hamisrad Hameouhad Leahrayout Ltd., the agents of the appellant, the New Zealand Insurance Co. Ltd. There he spoke to Mr. Frankel, the clerk in charge and requested him to insure 100 gold watches against loss and damage for up to 800 Palestine Pounds from the Post Office in Paris to Rehov Herzl, Haifa. Frankel agreed, Salzman paid the premium and the next day, that is on July 17, 1947, an insurance policy on behalf of the New Zealand Insurance Company was issued as requested and delivered to the plaintiff. At the time when Salzman requested the insurance to be effected he did not inform Frankel that the watches had already been sent from Paris; on the other hand he was not asked by Frankel whether the watches had already been sent or not. I shall deal with this point further in the course of this judgment.

 

                (b) Several months passed but the goods failed to reach their destination. The plaintiff inquired as to the meaning of this. The company tried to put him at his ease and investigations were made in France until finally - in February 1948 - it appeared that the watches had been stolen on the way and had disappeared, and that only seven of them had been recovered in Marseilles. From a letter which the plaintiff received towards the end of 1949 from the French Railways we learn that the person who stole the watches was found and arrested on or about July 26, 1947 but - as the Company adds regretfully - "the thief did not indicate the exact date on which the theft was committed."

               

                (c) The plaintiff applied to the agents of the Insurance Company and asked to be indemnified in respect of the damage (which according to the policy was payable in Haifa). The agents refused, their only ground being :

               

                "There is no evidence that the goods which were insured were still in existence when you requested the insurance to be made. It is obvious that a contract of           insurance can be made only in respect of existing goods and not on goods that are non-existent. Consequently we have to reject the claim."

 

                Because of this refusal the plaintiff lodged a claim before the District Court, Haifa, against the New Zealand Insurance Co. Ltd. and (alternatively) against the Hamisrad Hameouhad Leahrayout Ltd., and asked for judgment against them in respect of the damage in the sum of L.P. 8.- for each of the 93 watches that had been stolen and not recovered or the sum of L.P. 744.-in all, together with interest and costs. In paragraph 5 of the statement of claim the plaintiff writes :

               

                "5. The loss of the said 93 watches took place subsequent to July 17, 1947. Alternatively, the plaintiff claims that even if it should appear that the said watches were lost between June 27, 1947, and July 17, 1947, the first defendant is liable for the damage."

               

                The defendants' main defence, as set out in paragraphs 5 and 6 of their statement of defence, was as follows:-

               

"5. The date of validity of the said policy was from July 17, 1947, in respect of the said goods provided that the said goods were at that time in transit through the post from France to 44, Rehov Herzl, Haifa.

6. According to the plaintiff, the goods were sent by post from France on June 27, 1947. The defendant was not liable for any loss to the goods during the period between June 27, 1947 and July 17, 1947. lf the goods were lost then their loss took place before the date of the policy and no liability lay on the defendant in respect of goods that were not in transit in the post before the policy came into force."

 

In addition to the above, the defendants added a vague and laconic plea in their statement of defence. Paragraph 7 reads as follows:

 

"7. The insurance policy does not cover the case in question.''

 

                No explanation was given as to why or wherefore. To the simple reader this sentence is nothing but a mere abstract and a more concentrated resume of the pleadings set out in paragraphs 5 and 6 of the statement of defence which I have set out.

               

                (d) From the letter of Hamisrad Hameouhad Leahrayout Ltd. rejecting the claim and from the statement of defence of the defendants, it is clear that, at the begining, the dispute centred on one small point. It was confined to the question whether the insurance company was or was not liable for loss which had taken place before the insurance policy was issued. But during the trial in the District Court and as a result of the evidence produced by each side, the area of dispute was widened considerably - with the consent it would seem of both parties - and the defence of the defendants began to be concentrated on another point. Put very shortly it was this : that because young Salzman, when effecting the insurance, was silent about the goods having already been sent from the place of despatch and did not disclose this fact to the insurers, the Company was not liable to pay for the damage even if the goods were lost after the issue of the policy. From the point of view of the trial this change of front was legitimate and I am not prepared to consider it per se as being fatal to the defence. (Compare Bank Hapoalim Ltd. v Ya'acov Kraftsov (4), Amal Ltd. v. Yehoshua Shindler (5), and there is no difference in this connection between a cause of action and a ground of defence). But the lateness of the plea is an indication of the fact that the defendants themselves did not attach much importance to Mr. Salzman's failure to disclose the date of despatch of the watches. And the learned judge would do well, when the case is remitted to him, in the light of the directions at the end of this judgment, to give this point due consideration and the necessary weight, taking into account all the other factors.

 

                (e) The learned judge did not accept the pleas of the defendants and gave judgment against the New Zealand Insurance Co. for the amount claimed. He struck out the claim against the second defendants (Hamisrad Hameouhad Leahrayout) as it was entered alternatively - "only in the event of it appearing that the second defendant was authorised to act in the name of the first defendant in the said matter", (see paragraph 6 of the Statement of Claim) - and it appeared that the Company was in fact entitled to act in the name of the first defendant. The question which the learned judge put to himself in the fact instance was - did Mr. Salzman know on July 16, 1947, or did he not know that the goods were lost ? And he held that Mr. Salzman did not know of the loss of the goods. Salzman had not been asked by Frankel if the goods had been dispatched from Paris or not, and - in the opinion of the learned judge - Salzman was under no obligation on his own initiative to mention the date of despatch of the goods. The policy contained the clause 'lost or not lost' and the company was also liable for loss which had occurred before the contract was signed. It followed from these findings - and the learned judge gave judgment to that effect - that the company could not escape the liability it had undertaken towards the plaintiff. And it is against this judgment that the appellants are now appealing. Both parties are agreed that the insurance in question is marine insurance and has to be interpreted according to the general rules that apply to this particular branch of insurance.

 

3. Before I deal with the legal liability of the insurance company arising out of the policy I should like to mention a preliminary point which I regret to say was not sufficiently considered during the hearing. The question is : which law applies in order to discover where legal liability lies? The choice here is between the Ottoman Commercial Code - which was introduced locally by statute and which was based on the French Commercial Code - and the marine insurance rules of the English common law, or even perhaps - as we shall see further on - between these laws and both the common law and the statutory law of the foreign country to which the insurance company belongs. We listened to many ingenious arguments from counsel for the appellants, Mr. Solomon, but almost all of them were based on the well known rules of the English common law and only incidentally and en passant did he touch on some sections of the Ottoman Code. Mr. Meridor, on the other hand, was more cautious and more comprehensive but he too founded interesting arguments on the principles of the common law applicable in the English law of marine insurance. It seems to me with all respect, that both learned counsel have failed somewhat to give sufficient importance to the basic problem. They dealt with it - I would almost say - with reticence and this is a pity for without doubt they could easily have made a valuable contribution to the solution of this important question. In any case and whatever may be the result of this "reticence" of theirs, we are most grateful to both counsel for the wide range of their arguments, for they have thereby shown us interesting points of similarity and enabled us to examine and consider the differences - if any - of the various systems of law in their approach to the problem before us.

 

4. The question therefore is which law governs marine insurance in this case? And this question has two aspects.

                (a) In view of the fact that there are clear provisions in the local Ottoman mercantile law - that is to say, the Commercial Code, on this very subject, may we apply the English common law rules respecting insurance?

               

                (b) Considering that the contract in question is an insurance contract written in a foreign language, made with a foreign company whose place of domicile is in a foreign country (New Zealand or England) are we not bound in this case to apply the "national" law of the company, that is to say, the law in force in its "place of business"?

               

5. We shall first deal with the second question which is the more difficult of the two. For the answer to it can help us in solving the first problem. This is the question relating to private international law, and for its solution we must turn to the English Common Law. That is because on this subject there is no local law - apart from some rules in connection with personal status - and here Article 46 of the Palestine Order in Council automatically applies. Under this Article we are obliged in the absence of a local law, to apply the principles recognised by the English common law.

 

                But when we come to examine the English legal literature which deals with this branch of the subject we come across a special - almost peculiar - rule regarding the law that applies to such policies of insurance. The most forceful expression of the rule is found in the well known book on Private International Law by Wolff, second edition, p. 486, where it is said :-

               

                "Insurance contracts, except for contracts for re-insurance between companies, will in case of doubt be governed by the law of the insurer's place of business. The same is probably true of most other kinds of contracts that are concluded under typical conditions set up by great industrial, commercial, or railway companies, contracts 'where one will predominates, dictating its law not to single individuals but to an undetermined collectivity and leaving to those who want to enter into an engagement nothing more than unreservedly to accept the terms of the contract, to adhere to them' ...Such mass contracts, concluded under identical conditions ...can maintain their uniformity only if they are all governed by the same law, and there is a strong inference that this is the law of the place of the enterprise."

 

                A statement of much wisdom and weight ! But I am very doubtful if it truly and correctly sets out the position as it is in English law. The quotation in the above statement is taken from the French book of Saleilles, "De la declaration de la Volonte", and it certainly cannot be considered as an authority binding on our courts.

               

                Of greater weight is another authority which is cited by Wolff - that is the case of Spurrier v. G.F. La Cloche (10). But on examining the judgment itself we see that Wolff's opinion as it was expressed by him was not adopted by the English judges but that they made it subject to several qualifications which blunt its edge and deprive it of its potential sting.

               

                For what were the facts in that case? A resident of Jersey (one of the Channel Islands belonging to Britain) insured his stamp collection against loss and fire with an English company. The policy was in English and not French which is the language of this English island - and it was signed in Jersey by the agents of the company. The policy contained a condition to the effect that all disputes between the company and the assured regarding liability to pay for any damage or the amount or extent involved had to be submitted to arbitration in accordance with the Arbitration Act 1889, or any other amending act and that a decision of the arbitrators was a condition precedent to any claim for damages being made against the company unless the company admitted liability to pay the amount claimed. This condition precedent is illegal according to the laws of Jersey - because it restricted the jurisdiction of the courts - but valid according to English law. The question arose whether this was an "English contract" which had to be interpreted according to English law or a "Jersey contract" which had to be interpreted according to Jersey law ? The answer was that the contract was English. And this is what Lord Lindley said in his speech in that case :-

 

                "Their lordships are of opinion that, although this policy was made in Jersey, and any money payable under it would have to be paid to the assured in Jersey, the nature of the transaction, the language in which the policy is expressed, and the terms of the agreement and of the conditions, all show that the contract between the parties is an English contract and that wherever sued upon its interpretation and effect ought, as a matter of law, to be governed by English and not by Jersey law. The intention of the parties is too plain to be mistaken; the contract to pay out of the funds of the company is of itself very significant; and the reference to the English Arbitration Acts shews that the arbitration proceedings were to be conducted according to English law and no other." (Ibid., p. 450).

 

And the plaintiff's claim was dismissed in consequence.

 

                We see here something which very often happens in English judgments because of the well known reluctance of English judges to create "dangerous" precedents. The decision was based not on one but on many facts, so that the ratio decidendi of the judgment is in effect the result of all the facts taken together. We do not know what their lordships would have decided if the policy had been drawn up in the language commonly used in Jersey nor if the policy had not mentioned the English statutes although the language of the policy was English. As an authority, therefore, this judgment is meagre indeed and it cannot support the aside and sweeping generalisation as expressed above by Wolff in his book. It should also be noticed that the question in that case concerned the validity of a condition specified expressly in the body of the policy whereas Wolff's opinion, if correct, would mean that in connection with the whole problem of liability ensuing from the contract, one would be obliged as a matter of course to apply the "national" law of the policy - and for this proposition this English case is certainly no authority.

 

6. A similar rule to that propounded by Wolff is found in Dicey's book where Wolff is quoted (in one of the notes) as authority for it and an English judgment given in 1880 is cited in further support. I refer to Dicey's Conflict of Laws, sixth edition, p. 674 :

 

                "Rule 149 - A marine insurance policy issued by an underwriter carrying on business in England is governed by English law, except in so far as the policy stipulates that it be construed or applied in whole or in part according to the law of a foreign country."

 

As a comment on this rule it is said :

 

                "This Rule is an application of the general principle that in the absence of an agreement to the contrary, a contract of marine insurance in governed by the law of the country in which the underwriter carries on his business."

 

Immediately after this it is added:

 

                "This will, as a rule, also be the lex loci contractus and the lex loci solutionis."

               

                It is said here "as a rule", that is to say, not always. This means that in the opinion of Dicey the rule will also apply in the case where the lex loci contractus is different from the law of the country where the underwriter carries on his business. But what is the authority for this? We do not have to search long for it because the author himself tells us whence it comes. He directs as to a judgment given in Greer v Poole (11), and (in comment 1) says, citing the words of Lush L.J. :

               

                "It is no doubt competent to an underwriter on an English policy to stipulate, if he thinks fit, that such policy shall be construed and applied in whole or in part according to the law of any foreign state, as if it had been made in and by a subject of the foreign state, ...but, except when it is so stipulated, the policy must be construed according to our law, and without regard to the nationality of the vessel." (ibid. p. 674).

 

                Again we are bound to be not a little disappointed when we examine the original judgment and inquire into the facts as they appear from the pleadings and the judgment itself. An English merchant insured with an English firm of underwriters certain goods which were on a French ship proceeding from Lagos to Marseilles. The ship whilst on the high seas was involved in a collision which caused it, but not its cargo, damage and was towed to Gibraltar for examination and repairs. The owner of the ship, for lack of funds mortgaged both ship and cargo with a certain money lender to obtain the money necessary. The ship was repaired and proceeded to Marseilles. The money lender claimed back the loan and the owner of the cargo - the English merchant above mentioned - had to pay from his own pocket some money to release the goods from the money lender. The question arose whether the English underwriters were liable to pay these costs. The problem was this - was the loss a 'loss by perils of the seas' and therefore also included in the insurance covered by the policy, or was it not such a loss and therefore not covered by that policy? This is a question of law which is dealt with by both French and English law - only the French answer is positive and the English - negative. The question therefore is which law applies in this case? And the answer of the English court was that English law applied - because as appears in our citation 'the policy must be construed according to our law without regard to the nationality of the vessel', and the underwriters were consequently not liable to pay for this damage.

               

                Does this judgment support the sweeping statement that all English marine insurance policies even if effected abroad are to be interpreted according to English law? This does not seem to me to be the case. In all the facts mentioned in that case both by counsel for the parties and by the judge, there was not even the slightest hint that the insurance contract in question was made outside England. Had this been the case there would have been no doubt that counsel for the merchant-plaintiff would have pointed it out. Further the words which Lush J. used in parenthesis - "as if it had been made in a foreign state" - indicate that the policy was not effected in a foreign country. We are entitled therefore to presume that all the "factors" in that case were English: the merchant who was insured, the underwriters who effected the insurance, their place of business and the place where the contract was made - all except the ship, which had French nationality. The choice in that case therefore was not between the law of the place of business of the underwriters on the one hand, and the law of the place where the contract was made on the other, but between the law of the place where both the underwriters had their business and the contract was made, on the one hand, and the law of the country to which only the ship carrying the cargo belonged, on the other. Placed with this uneven choice there was no room for hesitation, and so the court ruled in favour of English law. In any case, one cannot take this judgment as authority - and perhaps Dicey himself did not mean - that an English policy will always be interpreted according to English law even if the contract of insurance was effected outside England.

 

6. But - and this is the last point which is decisive here - even if we were to adopt the method of Wolff and Dicey in solving this problem and be ready to accept all the consequences involved in it, we would still not be able to answer the question before us. This is simply because we do not know two facts - I repeat, two facts: (a) Where is the place of business of this company - is it in London or New Zealand? (b) What is the national law of the place of business of this company? Even if we were to suppose - and this would be highly arbitrary on our part - that as far as the assured in Palestine was concerned ''the place of the company's business" was its London branch, the name of which appeared at the bottom of the policy, we still do not know as a matter of law what is the law on marine insurance which is in force in England as well as what legislation on the subject has been enacted there at least since the year 1906. We have to be careful not to be confused by, and to avoid the mistake of relying purely on, outward similarities. If by following the rule proposed by .Wolff and Dicey, we have to ascertain the law which is in force in England on the subject, this will not be the English common law which, through article 46 of the Order in Council, has become our "own" local law, but the English law as a foreign law consisting of both common law as well as statutes.  This law we have to apply by reason of the principles of Private International Law because of the "foreign quality" of the company in the same way as we would have had to apply American law, for example, had "the place of business" of the company been in New York. This English law as a "foreign law" and especially the statutory part of it, cannot be considered as "a notorious fact that requires no proof." Even though it is "English" it has to be proved like all foreign law by evidence of experts and not by reference to text books. For the content of a foreign law is a question of fact and not a question of law (See Weil v. Barclays Bank (1); Baer v. The Palestine Building Syndicate, (2); L. v. L., (3); and no judge may decide what the foreign law is from personal knowledge except on the most simple points where proof by experts is manifestly unnecessary (See Dicey, ibid. p. 868). The problem here is certainly not one that can be considered as simple as this. Possibly, as regards English law, the position was different on this point when Palestine was a British Mandated territory. But now that Israel is an independent State there is no justification for this difference. We therefore cannot apply in this case foreign marine insurance law unless this law has been proved before the court below and this has not been done. And because this law has not been proved and as a matter of law we do not know what it is - indeed we do not even know where to look for it, whether in New Zealand or England - we will have to fill the void by adopting the well known fiction of Private International Law which is known as the principle of "identity of laws". As is well known, according to this principle the court must presume - generally speaking - that the foreign law which has not been proved is identical with the local law respecting the matter in question. (Dicey, ibid. Rule 194 pp. 866-867; Rapaport v. Paldwrowski (6); Yazdi v. Yazdi (7). We thus in effect return by a round about way to the local law which must apply, although formally we do so by introducing it in the garb of "foreign law".

 

7. Consequently whether the view of Wolff and Dicey is correct or not, in the appeal in this case at any rate, we must apply the local law because the "national law" of the policy, which is different from it, has not been properly proved.

 

8. We therefore come back to the first question : what is in first this local law? Is it local law in the narrow sense, that is to say, the Ottoman Law of Marine Insurance, or does it also include the recognised principles of the English common law which have become part of the "local law" in its widest sense through the directive of Article 46 of the Palestine Order in Council, as it has been interpreted? It seems to me that as far as this question is concerned there is no doubt whatsoever. Following precedents from the days of the Mandate, this court has ruled that the courts of this country are not required to apply the English common law "in respect of any legal problem requiring solution if the question can find some kind of answer in parallel provisions of the law of Palestine even though it is incomplete and faulty", Minkowitz v. Fishtner (8). And how much more so is this the case when the legal problem, as the one before us, has been provided for in the local law by a statute which is neither incomplete nor faulty? The main question to be answered in this appeal is what is the effect and consequence of silence on the part of the assured concerning the first that the goods had already been despatched? And this question of silence on the part of the assured is answered fully and exhaustively in a special section of a local statute - that is to say, section 193 of the Ottoman Maritime Code, 1863, which is in force in this country by virtue of the first part of Article 46 of the Palestine Order in Council. As is well known, this Ottoman Law adopted most of the principles of the corresponding French law (Second Book, Chapters 1-14 of the French Maritime Law 1807), and most of its sections were copied word for word. On this subject therefore French law is one of the sources of our own law and we can refer to it - without resorting to the evidence of experts - in order to clarify terms common to both. On the other hand, because of the very close similarity between the two laws, it is particularly important to notice those few instances where the text of the Ottoman law differs from that of the French law. (Compare the judgment of Agranat J. in Freisler v. Weiss (9).)

 

9. When we come to compare article 198 of the Ottoman Maritime Code with Article 848 of the French Commercial Code from which it was copied we notice at once just such a difference. This article of the Ottoman Code is different in that it has a further provision and contains half of a long paragraph which does not appear in Article 848 of the French Code.

 

                The relative articles of these two laws read as follows:

               

Article 848 du Code de Commerce (in French):

                "Toute réticence, toute fausse déclaration de la part de l'assuré, toute différence entre le contrat d'assurance et le connaissement qui diminueraient l'opinion de risque ou en changeraient le sujet, annullent l'assurance..."

               

Article 193 du Code de Commerce Maritime (Ottoman) :

                "Rend le contrat nul pour l'assureur, toute reticence, toute fausse déclaration de la part de l'assuré, toute différence entre le contrat d'assurance et le connaissement, qui diminueraient l'opinion du risque, ou en changeraient le sujet, et qui serait de nature à empêcher le contrat ou en modifier les conditions, si l'assureur eut été avert du véritable état des choses..."

               

                In translation the articles read as follows:-

               

Article 848 of the French Commercial Code:

               

                "Any silence, false declaration on the part of the assured (or) any difference between the policy of insurance and the bill of lading that is likely to diminish the assessment of the risk or to change the subject matter, cancels the insurance..."

               

Article 193 of the Ottoman Maritime Code:

                "The contract will be cancelled as far as the assured is concerned by reason of any silence, false declaration on the part of the assured, (or) any difference between the policy of insurance and the bill of lading that is likely to diminish the assessment of risk or to change the subject matter and which by its nature would have prevented the agreement being concluded of would have called for different conditions if the undertwriter had been informed of the true state of the facts..."

               

                This translation needs amplification because it lacks something - as happens in all translations - that something which is lost when the text of a passage is transmitted from one language to another. It is not necessary that the reticence, the declaration etc. should actually diminish the assessment of the risk. It is sufficient for them to appear as being "likely" to. This is in my opinion the nearest word that conveys in translation the meaning of the original language used by the authors of these two laws.

               

                Let us now compare the language of these articles. The words at the end of Article 193 of the Ottoman Code, which I have quoted in italics, do not appear at all in Article 848 of the French Code, as we have already noticed. And it is not for nothing that these words were added. It means - and one cannot escape from this conclusion - that the Turkish legislator was unwilling to invalidate an insurance policy by reason of silence, for example, except where not only would the silence, that is to say the non-disclosure of a fact, be likely to diminish the assessment of the risk, but where also the opposite, that is to say where the disclosure of the fact would "by its very nature" have prevented the conclusion of the agreement or changed its terms.

               

10. And one may well ask what is the meaning and significance of this additional condition? Logically speaking it is not certain that it would follow automatically from the very change in the assessment of the risk. For if the silence of the assured as regards the real facts have the effect on the underwriter of diminishing in his view the amount of the risk, then surely the opposite, that is disclosure of the real facts, must have the effect of increasing in his view the amount of the risk and his reaction would no doubt be either to refuse to insure because it would not pay him to do so or to change the terms in his favour by asking for a higher premium etc. The underwriter knows the terms of his policy well and presumably would not neglect his interests. And if so, how has the Ottoman legislator helped in this by amending Article 348 and what further provision has he added to the previous single condition it contained? On the other hand we cannot possibly ignore the clause that has been added and certainly this was not done just to make it look more attractive. We must, therefore, do our utmost to give the language some sort of practical significance and the only question is what and how?

 

11. It seems to me that our dilemma can be solved only in one way, that is by putting special emphasis on the words "which by its nature would" which appear in the clause that was added by the Ottoman legislator - either to introduce something new or to increase the emphasis, so as to remove doubts and avoid mistakes. What emerges is that the criterion must be objective and general and not individual and personal (that is to say taking into consideration the special mentality of a particular under-writer). The fact which the assured did not disclose should be of such a nature that had it been disclosed it would have prevented any reasonable underwriter from consenting to the conditions which had been agreed upon. This is the objective quality which if present makes a policy null and void even if the assured had no intention of deceiving. For "dolus" is not necessary to render a policy void on the ground of silence on the part of the assured, as a contract can be avoided on this ground even if the assured acted in good faith. According to the well known commentators Ripert, Lyon-Caén and Dalloz (Ripert, Précis de Droit Maritime, 6-ème éd. paragraph 594); Lyon-Caèn, Traité de Droit Commercial, 5-ème éd. paragraph 1447; Dalloz, Code de Commerce, Article 348) this is the position in French law. And on this point, at least, the French opinion is sufficient legal authority as to the way the term, as used in the Ottoman Law, should be interpreted because the whole conception of silence was copied by the Ottoman legislator from French law.

 

                The importance of the innovation or the emphasis in Article 193 becomes much clearer when this objective quality is absent. That is to say where even though the knowledge of the fact, which the assured had not disclosed, was most likely to increase the measure of the risk in the view of this particular under-writer, and so naturally either prevent the conclusion of the contract or cause a change in its terms, yet it was not a fact which by its very nature, generally and objectively speaking, was likely to have any influence on an ordinary reasonable under-writer. In such a case - this is the effect of Article 193 - the silence per se would not be a ground for cancelling the contract of insurance and only when other factors are added, such as, for example, an intention to deceive, will it become void or voidable in accordance with the accepted rules of the general law of contract. This is the only interpretation - so it seems to me - which it is possible to give to what has been added to Article 193 by the Ottoman legislator. Without it it is impossible to find any justification for the addition of this second qualification.

               

12 Having investigated the legal background of the problem, let as now consider the grounds of the appeal in the light of the above principles. We need deal, in my view, only with the following three points raised by the appellant.

               

                (a) That the learned judge was wrong in making the verdict depend on whether Salzman knew or did not know of the loss of the watches at the time when he applied for the insurance policy;

               

                (b) that the bare fact that the watches had already been despatched from Paris at the time when the insurance policy was applied for was important in itself as it was likely to have an influence on the assessment of the risk and that it was the duty of Mr. Salzman to inform Mr. Frankel of it even assuming that he (Salzman) did not know or even suspect that the goods had been lost;

               

                (c) the appellant's third point, pleaded in the alternative, was that even if the watches had not been lost before the 16th of July, the day when the policy was applied for, they had already been on the way for some 20 days and that therefore Mr. Salzman was in duty bound to disclose this fact to Mr. Frankel because this long delay alone would have increased the amount of the risk in the view of Frankel and would certainly have caused him to refuse to issue the policy as he expressly testified before the court.

               

13. With regard to the first point, I am of the opinion that counsel for the appellant is correct. As I have already pointed out under the conditions specified in Article 193, the cancellation of the contract because of the silence of the assured does not depend on the intention of the assured to defraud. The contract is cancelled as a matter of course even if the assured did not know or did not suspect that the goods had been lost. The learned judge was wrong therefore in his approach when he held that the deciding factor was whether the assured knew or did not know of the loss of the said goods.

 

14. On the other band I am not prepared to accept the second contention of counsel for the appellants. As Mr. Meridor rightly points out, the answer to this contention is contained in one of the terms of the policy itself. For as will be remembered the policy includes the "lost or not lost" clause. "lost or not lost" in this case means on the way from Paris to Haifa - for the basic purpose of the insurance was to cover the loss that might occur during the transit of the watches from the post in Paris to Haifa. The defendants too in their defence (paragraph 5) speak of the validity of the policy in connection with the transit of the watches from France to Haifa. Hence the language of the defence clearly indicates the possibility that the goods had already left Paris and that even so the underwriter agreed to take the risk on himself. Consequently, therefore, he cannot complain and say that the non-disclosure of this fact increased his estimate of the risk. In the circumstances the underwriter should have been more cautious in his assessment of the whole risk which he was taking on himself. A hint, and also authority for this, can be found by comparing the language of Articles 210 and 212 (second paragraph) of the Ottoman law to which Mr. Meridor has drawn our attention. It is very possible that the position in English law is different as counsel for the appellants claims, and it is also possible that it is exactly the same as counsel for the respondents maintains. In any case, for the reasons given above, English law does not apply here.

 

15. As regards the third point, whether it is correct or not depends on the answer to another question which the learned judge, because of his approach to the problem, did not find necessary to give - although he had enough evidence before him to enable him to decide one way or the other.

 

                In paragraph 11 of this judgment I explained the criterion that is given in Article 193 for annulling a contract of marine insurance on the ground of the silence of the assured. This criterion is objective and the question which the court has to put to itself is shortly this : Was knowledge of the fact which the assured had not disclosed likely to increase the assessment of the risk in the view of any reasonable underwriter and so naturally to prevent him from consenting to the conditions which had been agreed upon, or not ? In the context of the facts of this case, the question would be this: Was knowledge of the despatch of the watches from Paris some 19-20 days previously likely to increase the assessment of the risk in the view of a reasonable underwriter - and not just Mr. Frankel - when this ordinary underwriter was prepared to issue a "lost or not lost" policy and to accept responsibility also for past losses? The answer to this obviously depends on the answer to the question, what is the period of time which such a consignment usually takes to arrive at Haifa from Paris, and whether a delay of some 20 days on the way was likely or not to arouse suspicion in the mind of an ordinary underwriter that it had been lost. The learned judge could have decided that point as he had before him evidence from both parties. But he did not consider it necessary to do so as he had held the defendants liable by reason of the criterion he had chosen, as explained above. This is, in my opinion, the only question which is still left open and on the answer to it would depend the fate of the claim. As we cannot decide this point in this court the case will have to be remitted to the District Court for a decision to be given there in the light of the evidence it had brought before it.

               

                I am of the opinion therefore that the appeal must be allowed, that the judgment of the District Court be set aside and the case remitted to it for completion, subject to the following directions.

               

                That the learned judge who heard the case should decide on the evidence which he had before him - without receiving further evidence - whether the delay of 19-20 days in the months June-July 1947, whilst these watches were on the way from Paris to Haifa, was unusual or not. Should the learned judge, after hearing the parties, hold on the evidence before him, that the defendants had succeeded in proving that this delay was unusual he should give judgment in their favour. Should he hold otherwise - he should give judgment in favour of the plaintiff.

 

ASSAF, J.: I concur.

 

LANDAU, J.: I concur.

 

Appeal allowed, judgment of the District Court set aside, and case remitted.

Judgment given on June 4, 1953.

 

Deputy President Landau: In this Further Hearing we are required to reexamine the rulings that emerge from the opinions of my esteemed colleagues, Shamgar J and Berinson J, in this Court's C.A. 723/94. In that case, by a majority decision over the dissenting opinion of my esteemed colleague Ben-Porat J, the court accepted the appeal of the Respondents before us, Ha'aretz Newspaper Ltd. and others, against the Petititioners, The Israel Electric Corporation, Ltd. and Yaacov Peled, and rejected the Petititioners' claim for the payment of damages for defamation. (The District Court's judgment was published in District Court Judgments 1975, at page 671, and the judgment in the appeal was published in 31(2) P.D. 281.) Of the two majority Opinions in this case, my esteemed colleague Shamgar J ranged extensively across the issues and rendered novel holdings concerning the law of defamation that have far reaching consequences, while Berinson J based his decision on narrower grounds, limited to the application of the provisions of the Law Forbidding Defamation, 5725-1965, to the facts of the case, without expressing any opinion concerning the questions of principle dealt with in my esteemed colleague's judgment. Therefore, my esteemed colleague's judgment concerning those questions expressed his views only. Nevertheless, it is clear that even as such, because of its extensive intellectual apparatus, this judgment might become accepted in the future as binding and give guidance to many concerning their conduct and their claims, unless we come to different conclusions in this Further Hearing.

 

            After much consideration, I have concluded that I must disagree with my esteemed colleague on the following three issues: First, as concerns the preferred status he attaches to the principle of free speech in our legal system over a person's right to his good reputation. Second, with regard to the manner in which he interprets the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law), especially paragraph 15(4), which provides the defendant a defense for expressing an opinion in good faith. And third - and Berinson J joined my esteemed colleague in this matter - as to the manner in which they construed the article which was the subject of the claim and applied the Law to it. I will set forth my position on these issues in that order.

           

            My esteemed colleague writes as follows at page 240:

           

"The relationship between defamation and freedom of speech has been defined in various ways and approaches. The difference between these approaches is expressed principally in fixing the status of the two subjects in relation to each other, that is, whether they are treated as two separate fields with equal status, or whether they are regarded as values, one of which deserves preferential treatment and whose importance therefore outweighs the other, either in general or in particular circumstances."

 

            Immediately thereafter, he refers to the American cases, starting with those earlier decisions in which the judges "regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness", and later, on page 241, the decision of the Federal Supreme Court in New York Times v. Sullivan [18], according to which -

           

"with regard to defamatory matter concerning holders of official or public office, the view that designates the laws forbidding defamation as an exception to free speech and no more, has been abandoned in the United States ... for some considerable time in favor of the principle that gives higher standing to the right of expression of opinion on matters of public interest concerning the holders of official or public office."

 

            That American case held that publishing untrue facts concerning a public office holder is protected, unless it be proved that the defendant knew that the statements were false or was indifferent to the question whether they were true or not. My esteemed colleague adopted this view, and after noting the importance of the principle of the right to free speech, in the spirit of the judgment in Kol Ha'am [1], he said further, on page 243:

           

"The previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status.... Any limitation of the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but, rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it."

 

            I asked myself, from what source did my esteemed colleague draw support for such forceful comments on a matter of greatest constitutional importance, other than the American law in New York Times v. Sullivan [18]. He also mentions the Hilron case [2], which dealt with the proper relationship between a legislative enactment and the principle of freedom of gainful employment. But the views expressed at the particular place referred to in that judgment, page 653, are those of my esteemed colleague which are the minority view. My own opinion, that of the majority, stated on page 650, was that "the labor of interpreting legislation must be done without any particular widening or narrowing tendency...." And in the Further Hearing in that case, (F.H. 27/76 [3]) the majority again agreed with my view and my esteemed colleague Kahan J said, at page 22:

           

"I do not in any way minimize the importance of the basic right to freedom of employment. However, it is well known that the legislator has restricted this right in various enactments and in various ways, based on the view that the public good requires the imposition of these restrictions.... When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent...."

 

            And, closer to our matter, concerning what has been said in our judgments hitherto on the relationship between freedom of speech and defamation, I quote the words of Olshan J, in C.A. 90/49 [4], at page 597:

           

"... So long as a law exists that recognizes a person's right that his good repute not be impugned, it is in the public's interest that this right be honored and not be injured. If someone wishes to enjoy the right to freedom of speech and abuses such freedom, intentionally or otherwise, and in so doing injures another person's right, it is not unjust that he should be responsible toward the person so injured, and there is no ground for complaint that this entails some restriction on the citizen's right of free expression.

 

But each flower has a thorn. Since every publication involves some risk that it might contain something that could injure another person, this is likely to restrain all initiative for criticism or to disseminate information, even when the public good or that of the state require that such criticism be heard and that such information be disseminated.

 

Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

Agranat J said in Cr. A. 24/50 [5], at page 1160:

 

   "Our point of departure is the general assumption of the common law - which also applies in this country as well - that each person has the right to freedom of speech and freedom of expression. The objective of the local criminal law that establishes the offenses of distribution of defamatory material orally and publication of written libel, is to restrict this basic right when a person abuses it.... However, the law recognizes that, in certain conditions, the general good demands - so that the said basic right not be emptied of its content - that a person not be punished for publishing slanderous matters, since the harm which would be caused to the public by excessive restriction of freedom of speech and freedom of writing is preferred in the eyes of the law to the causing of any private injury."

 

            My esteemed colleague brought the final sentence of this quotation, on page 296, as being on all fours with the New York Times decision [18]. I do not agree: in my opinion, they are on all fours with the previous American precedents that my esteemed colleague summed up in the following words on page 240:

           

            "There were those who regarded the laws of defamation as an exception to the right of freedom of expression and defined them as prohibitions which impinge on this right and limit its absoluteness."

 

            In the Kol Ha'am case itself [l], at page 880, Agranat J explained the relationship between freedom of speech and the necessity to preserve public security in the following words:

           

"The principal cause for this complexity is the competition between two types of interests, each of which is of considerable social and political importance."

 

And earlier, at page 879, he said:

 

"The right of free speech is not absolute and unlimited, but a relative right, which can be restricted and controlled to preserve other important social and political interests which, in certain circumstances, are considered paramount to the interests which are secured by the exercise of the principle of freedom of speech. The fixing of the boundaries of the exercise of the right of freedom of speech and the press is therefore a process of balancing various competing values and choosing among them."

           

            While he thereafter describes the right of free speech as "a supreme right ... that is the condition precedent for the exercise of practically all the other basic freedoms", at page 878, he immediately adds: "One must distinguish between freedom and anarchy" and he recalls at that point his words in the Gorali case [5], and Lord Kenyon's dictum: "Freedom of the press is dear to England but anarchy of the press is an abomination in England".

           

            In my opinion, these arguments remain strong, even after the provisions in the Criminal Law Ordinance and the Civil Wrongs Ordinance concerning defamation have been replaced by the Law Forbidding Defamation, 5725-1965. Accordingly, freedom of speech does not enjoy a superior status as opposed to other basic rights, but in Agranat J's words, it is

           

          "a process of balancing various competing values and choosing among them".

           

            This is not the "vertical" grading of a "superior right" against an ordinary right but the horizontal fixing of the boundaries of rights that have equal status, without any tendency to prefer one particular right as defined by legislation at the expense of its fellow right. From this it follows that one must interpret the statutory right according to its plain meaning in accordance with the legislature's intention, and not place some unwritten right above it.

           

            So far as I am aware, the idea of a superior right that stands above the written law has appeared thus far only once in our decisions, in the separate opinion of Sussman J (as his title was then) in E.A. 1/65 [6], at page 389. Sussman J's inspiration for this was the opinion of the Supreme Court of West Germany, which placed basic constitutional norms above even the written constitution. This view has been subjected to considerable academic criticism (Guberman, Israel's Supra-Constitution (1967) 2 Israel Law Review 445). Agranat P.J. did not follow this path. He interpreted the Knesset Election Laws in the light of the constitutional principles laid down in the Declaration of Independence. In this regard he followed the path he himself had laid down in the Kol Ha'am decision [1], without any tendency to limit the written law by way of interpretation.

 

            To be more precise, what is at stake here is the citizen's freedom as opposed to his right, that is to say, his freedom to say what he wishes and to hear what others wish to say, as opposed to his right not to have his honor and good name impugned. If there is indeed any place for grading the two vis-a-vis each other, I would place the right above the freedom. (On the definition of a right as opposed to a freedom, see H.C. 112/77 [7], at p. 662.) It appears that this is how the draftsmen of the proposed bill, Basic Law: The Rights of Man and the Citizen (Proposed Bills 5733-1972, p. 448), to which my honorable colleague referred, presented the issue. Compare the right to express one's opinion, which appears there as a relative right, which may be restricted, according to section 11(b) "by legislation intended to ensure the existence of the democratic regime ... to protect the rights of others...", with section 3 to the effect that "each person is entitled to the lawful protection of his life, his body, his mind, his honor and his good repute," which apparently cannot be restricted, according to the draftsmen's intent, by any legislation. Placing the right to good repute on the same level as the right to life calls to mind our sages' statement: "Whoever insults his fellow man in the presence of others is considered as if he sheds blood". Today we call this "character assassination". (Concerning the rulings of Jewish law that stress the importance of the dignity of man among the legal values deserving of protection, see the study by Dr. N. Rakover, "The Protection of the Dignity of Man", volume 54 in the series of researches and articles on Jewish Law published by the Ministry of Justice.) Accordingly, if the right of free speech is a "superior right", how should we denominate man's right to the protection of his honor and good name? As for me, this illustrates the problematic aspect of any written declaration of rights. See the example given in Chafee, Free Speech in the United States, p. 31, of a man who was brought before a judge because he had thrown his arms about and struck someone in the nose. He asked the judge if he did not have a right to throw his arms about as he wishes in a free country, to which the judge replied: "Your right to throw your arms about ends precisely at the point at which your fellow man's nose begins".

    

                   I propose that we not be so captivated by the precedent in the New York Times case [18], which so strongly influenced my esteemed colleague's opinion. As said, it was there decided that one who publishes criticism of a public official concerning a public matter is not liable for slander, even if his statements are false, so long as the publication was made in good faith. Justices Black, Douglas and Goldberg went so far as to say that this also is the case even when the publication was malicious - all this to preserve the principle of freedom of speech and the press contained in the First Amendment to the Constitution, which has become, in the fundamentalist view of Justice Black and his followers, an iron cast rule that cannot be limited in any way. I am certain that had the Bill of Rights in America contained a provision similar to that in section 3 of the proposed Basic Law in this country - and I do not know why one's right to his good repute was not recognized as one of the citizen's rights - the American Supreme Court would not have established such a far reaching rule. Under that ruling one may impugn a public servant with no factual basis, for example, by saying that he accepted a bribe, unless (according to the majority view) the person defamed can prove that the slanderer acted with malice. Another American judge, Judge Friendly, has already commented on this in the Federal Court of Appeals in Pauling v. News Syndicate Co. [19]. He asks: if it is permitted to defame a public official for accepting a bribe, what is the difference between that and defaming a person for giving a bribe to the public official? And what about a person who is not a public official, but he takes part in debate on a matter of public importance during the course of which he defames another person? Is he the next in line to receive immunity for his statements? Indeed, in Rosenbloom v. Metromedia [20], the majority of the Federal Supreme Court expanded the New York - Times rule [18], so that it also includes a private person, provided that the slander relates to a matter of public interest. The truth is that the opinions given there are so varying that it is difficult to discover any clear line. Gertz v. Welch Inc. [21], which my colleague referred to at page 241, constitutes a retreat from that extreme majority view, but the decisions still contain a great deal of inconsistency and confusion.

      

            In the American legal literature, one hears criticism of and disagreement with the New York Times precedent. In an article, "Access to the Press - A New First Amendment Right" (1967) Harvard Law Review 1641, Professor Jerome A. Barron disputes the Supreme Court's decision and sees in its attitude to the First Amendment as assuring "a marketplace of ideas", a "romantic" notion that is totally unrealistic. (See pages 1642 and 1656 et seq.). The press and other mass media, which in our day and age are the main providers of information and opinion to the public, are not a free market, but are in the hands of a small group of monopolists. A realistic view of the First Amendment compels the conclusion that freedom of expression is somewhat slender if it can be exercised only by the grace of those who operate the mass communications media (id., at p. 1648). He therefore proposes to secure by law to any person who is attacked by a newspaper the right of access to the newspaper so that he may bring his position to the notice of the same readers before whom he was defamed (and not just by means of a letter to the editor, which the editor may publish or not as he wishes). If no such right will be recognized, there will be considerable inequality between the owners of a newspaper and the ordinary citizen.

 

            The ruling of the New York Times case [18], was not accepted in other countries where the common law applies. Fleming says on this subject in his "The Law of Torts", 4th edition, at p. 512:

           

          "...Our law does not esteem freedom of speech and of the press even in matters of public concern sufficiently high to clothe false statements of fact with qualified privilege, let alone elevate it to a constitutional guarantee as in the United States."

           

            Gatley on Libel and Slander, 7th edition, p. 223, dismisses the New York Times case [18], with the following comment:

           

          "It is submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility and leave them open to others who have no respect for their reputation."

           

            In his detailed written summations Dr. Goldenberg, counsel for the Petitioners, sets out the laws of other common law countries throughout the world. Not one of these countries has adopted the American ruling. Mr. Lieblich, on behalf of the Respondents, did not deal with this particular matter. He restricted himself in his brief to a discussion of the legal questions that arise in Israeli and English law.

 

            In E.A. 1/65 [6], which was referred to above, Agranat J quoted with approval Witkon J's words in H.C. 253/64 [8], at p. 679:

           

"It is not an isolated phenomenon in the history of states having a well-functioning democratic regime that various fascist and totalitarian movements rose against them and used those very same rights of the freedom of speech, of the press and of association which the state accords them, to conduct their destructive activities under their protection. Those who saw this during the days of the Weimar Republic will not forget the lesson".

 

            It is worth recalling that one of the most effective means used by Hitler and his cronies to bring down the democratic Weimar regime in Germany was by the uncontrolled defamation of the heads of the state, by spreading lies about their conduct, while the courts did not respond approriately in the libel cases that were filed (on this matter see the article by David Riesman, "Democracy and Defamation: Fair Game and Fair Comment", (1942) Columbia Law Review 1085).

           

            This author's opinion is (id., at p. 1090):

           

"Whereas in Germany libel law was one of the cumulative factors in the Nazi triumph, in England there is evidence that the severity and impartiality with which the law of libel is enforced has measurably served to check the rise of demagogic fascism."

 

            These words contain a warning to those who are prepared to give excessive free reign and ignore the dissemination of libellous material against public persons, for fear that the protection of the right of free speech as an absolute value might be harmed. But one must be concerned that history might repeat itself. I have before me a copy of the judgment of the Supreme Court of Illinois, of January 17, 1978, in the matter of The Village of Skokie v. The National Socialist Party, [22]. The court there allowed a march by the National Socialists bearing swastikas in a Chicago suburb with a large Jewish population. The judges felt themselves forced to decide as they did by the First Amendment to the Constitution. This should cause us to ponder the matter.

 

            Thus, one must find the correct point of balance between this principle and the protection of the honor of a public servant who is attacked. I do not propose, heaven forbid, to belittle the importance of the role of a free press to criticize governmental acts and to uncover undesirable public matters and bring them to the public attention. But I deny the assumption that a responsible press cannot carry out these functions unless it is given the freedom to defame persons under the cloak of "fair criticism".

           

            I have propounded these matters concerning the New York Times decision as if the subject before us was tabula rasa, without a solution in statutory law. But, in fact, that is not the case, because we have section 15(4) of the Law which contains a full answer concerning the defense of fair criticism for a publication that expresses an opinion concerning the conduct of a person who acts in a public function or in connection with a public matter. We must interpret this provision, enacted by the legislature, as it is written and in its spirit. Precedents from other countries may assist us in our deliberations, but we should not attribute to them undue weight. My esteemed colleague has interpreted our law narrowly, and in that regard I disagree. In my opinion, we should interpret this section just as any other provision of a statute, first and foremost according to the ordinary meaning of its words. Because of our differing approaches, our resulting interpretations differ, too. My esteemed colleague concludes his opinion by saying (at p. 268) that -

           

            "It is our task to maintain this defense [for expressing an opinion in good faith], in practice and according to the letter of the Law and its intention and the tendencies that lie at its base." (Emphasis added.)

           

            And there is no doubt that the tendency to preserve the "superior standing" of freedom of expression strongly influenced his restrictive interpretation of the protection given to an impugned person against defamatory matters published against him.

           

            I will now turn to the second part of my discussion and will begin by copying the language of section 15(4):

           

          "15. In a criminal or civil action for defamation, it shall be a good defence if the accused or defendant made the publication in good faith under any of the following circumstances:

            …

           

                 (4) the publication was an expression of opinion on the conduct of the injured party in a judicial, official or public capacity, in a public service or in connection with a public matter, or on his character, past actions or opinions, as revealed by such conduct".

           

            I believe that this section together with the matters set out in section 15 give us a proper solution to the problem of balancing the conflicting values of freedom of expression and the protection of a person's honor and good name.

           

            The language of the section teaches us that it provides a "good defense" for two types of expression of opinion.

           

(a) the expression of an opinion concerning the injured party's conduct in a judicial, official or public function, in a public service or in connection with a public matter.

 

(b) the expression of an opinion concerning the injured party's character, past actions or opinions, as revealed by such conduct.

 

            Grammatically, the concluding words "as revealed by such conduct" apply to the second situation only and not to the first. It is clear, however, that the two components are present in the first situation as well: the injured party's conduct (in a judicial. official or public capacity, in a public service or in connection with a public matter) on the one hand, and the expression of an opinion by the defendant, on the other hand. And it is essential that the defendant's opinion relate to the injured party's conduct. From the opening portion of section 15 it is clear that the publication of the expression of opinion must be made in good faith, but it need not be the truth, that is to say, factually accurate. If this were not the case, there would generally be no need for the special defense accorded by section 15(4) and all the other sub-clauses in section 15. Section 14 gives a full defense, in any event, for publication of a truthful opinion, if the publication is a matter of public interest. Only if there is no public interest in the publication does the publisher need the defense provided in section 15, if it is a true opinion.

 

            From the language of section 15(4), therefore, one learns that publications falling within its purview must contain the following true elements:

           

(a) reference to the injured person's conduct in a judicial, official or public capacity, or in connection with a public matter (or to his character, past actions or opinions, as revealed by such conduct) ;

 

(b) the expression of the accused or the defendant's opinion concerning one of the matters mentioned in (a).

 

            There is a basic difference between these true elements, in that element (a) must refer to correct facts, whereas with regard to (b), in certain situations the publisher has a defense against criminal and civil liabilty even if the expression of opinion was not the truth.

           

            As said, with regard to the description of the conduct, the publication must relate to true facts. On this matter there is already established precedent in this court interpreting the provisions of the 1965 law: C.A. 34/71 [9], at p. 528; C.A. 30/72 [l0], at p. 236. I am prepared to restrict this requirement as set forth by my esteemed colleague, Ben-Porat J, in her Opinion in the appeal which is the subject of this Further Hearing (at p. 284), that one must read into section 15 of the Law that portion of section 14 concerning the defense of truth: that the defense should not fail for the sole reason that the defendant was unable to prove the truth of an incidental detail that does not contain substantial injury. I also agree with my esteemed colleague (at p. 278) that the publisher must set forth at least the main facts on which his opinion is based. I would add that the publisher does not have to particularize facts which are in any event publicly known and which, therefore, need not be repeated in the publication which was made. However, I do not agree with my esteemed colleague's statement at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought. The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

            I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion. At page 257, he relies upon the words of Justice Brennan in the New York Times case [18]. I have dealt extensively with that judgment. I will now add that in my opinion it is clearly contrary to the correct interpretation (which is not a restrictive construction) of the provisions in our law. I will add also that the New York Times case itself does not speak of the publication's dominant character, but permits the publication of inaccurate facts concerning a public figure without regard to the dominant nature of the publication.

           

            My colleague referred at this point in his Opinion to an inaccurate fact which has been intermingled with the expression of an opinion. I cannot accept this intermingling theory, in principle, because in my opinion any publication seeking the protection of section 15(4) must make a clear separation between the description of the facts and the expression of an opinion concerning those facts. The very mixing of these two elements might make the writing unclear and allow the insertion of libellous and untrue facts into the opinion. The writer must indicate on which facts he is relying, and these facts must be accurate (except for incidental facts that are not substantially harmful), and having set forth the facts, he may then draw his conclusions from them by way of expressing an opinion, provided he clarifies and distinguishes between a fact and an opinion. On this matter, I am prepared, together with my esteemed colleague, to adopt that part of Odger's book which she brings at page 277. If the setting forth of the facts is separated from the expression of opinion by way of conclusion drawn from those facts, it is as if the publisher says to the public that read or hear him: "These are the facts concerning this person's conduct and this is my opinion about that conduct. And now you, the reader, judge if you accept my opinion based on those facts". Such a presentation of matters is not forbidden by section 15(4), and if the opinion is expressed concerning one who fulfills a judicial, official or public function, or a person in the public service or in connection with a public matter, the injured person will have to accept the situation, even a wrong conclusion that the publisher has drawn from those facts, if the expression of opinion by way of drawing conclusions complies with the remaining requirements of the law. The remarks of an Australian judge on this topic, brought by Gatley at page 298, hit the mark:

 

"To state accurately what a man has done, and then to say that (in your opinion) such conduct is dishonourable or disgraceful, is a comment which may do no harm, as everyone can judge for himself, whether the opinion expressed is well founded or not. Misdescription of conduct, on the other hand, only leads to the one conclusion detrimental to the person whose conduct is misdescribed, and leaves the reader no opportunity for judging for himself the character of the conduct condemned, nothing but a false picture being presented for judgment." Per Windeyer J. in Christie v. Robertson (1889) 19 N.S.W.L.R. at p. 161 [17].

 

            From what I have just said in relation to the "dominance" theory, it is clear that I disagree not only with my esteemed colleague but also with Berinson J, who said (at p. 269):

           

"Finally, I agree that from a legal point of view the author would have done better to have separated facts from opinions, to have commenced with facts and ended with an opinion; and he did not do that. In one part of the article he also mixed and joined together facts and opinions. To my mind this is not significant. What is important is whether the article established an adequate factual foundation the conclusions expressed and the criticism contained in it.... I agree with Justice Shamgar's analysis of the facts and his finding that basically they are correct, and that any inaccuracies are of secondary importance."

           

            I understand from these remarks that Berinson J supports the idea of "dominance" in the publication. I will deal later on with the question whether these inaccuracies, which were intermingled with the opinion and the criticism, were indeed secondary in their importance.

           

            With regard to the defense under section 15(4), the Law does not recognize any distinction between the owner of the newspaper and its editor or any other person who makes a publication. The claim that the owner of a newspaper and its editor have superior standing was rejected in earlier stages of these proceedings, C.A. 213/69 [11], in which this Court struck out the claim of a defense under section 15(2), and held, based on the ruling in C.A. 90/49 [4], that the law applicable to newspapers is the same as that applicable to any other person, with regard to the duty of publication, that is to say, he may not rely on the defense under section 15(2) when such a defense is not available to another person. So, too, C.A. 552/73 [12]. And if a newspaper does not have superior standing with respect to section 15(2), then the same is true with regard to the defense for expression of opinion in good faith under section 15(4).

           

            With regard to the scope of the right to expression of opinion in good faith (as opposed to the presentation of the facts), I am prepared to accept Justice Brennan's remarks in the New York Times case [18], which my colleague cites (at pp. 244-245), that the debate concerning disputed public matters may be "uninhibited, robust and wide open". This is necessary so as not to stifle the free clarification of political and other disputes in which the public has an interest. Here, freedom of expression overrides the policy of protecting the individual's good name. But our law sets limits to this freedom. (a) The opinion must be expressed in good faith (the opening part of section 15) and (b) the publication must not exceed that which is reasonable in the circumstances set forth in section 15(4). And while requirement (b) appears in section 16, which deals with presumptions concerning good faith, one may derive from this a substantive requirement that the opinion expressed must also be reasonable. On this point I agree with the broad language that my esteemed colleague brought from the English cases:

 

"In this regard, it is sufficient that a reasonable man could have reached the defamatory conclusion from the facts set out in the publication, and that the facts upon which he relied were brought in the body of the publication".

 

            But once again, the facts on which the expression of opinion or criticism is based must be correct, and it is not sufficient that the weight of the accurate facts is dominant with regard to the inaccurate facts, in the total picture.

           

            My esteemed colleague said (at p. 262):

           

            "As explained above, the purpose [of sections 15 and 16 of the Law] is to open the door to criticisms and to protect them against defamation actions, even if it transpires that the opinions expressed are not founded on truth and even if the thinking expressed therein is not consistent with what the court considers logical."

 

            Dr. Goldenberg attacked this statement, but it seems that his criticism was based on a misunderstanding. My esteemed colleague spoke here (and he will certainly correct me if I have misunderstood him) only of the expression of an opinion "that is not grounded in the truth", and he did not intend to say that the facts upon which the opinion or the criticism was based need not be truthful. With that I too agree, provided that the expression of the opinion was honest and reasonable, (but I did not agree, as aforesaid, that it is sufficient if the dominant character of the factual basis for the criticism be truthful).

           

            I have now reached the last part of my Opinion, in which I will examine the publication which is the subject of the Petitioners' claim. The article was brought in its entirety at pages 230-23l and I will not set it out again. No one disputes any longer that the Respondents did not establish the truth of the statement in the article that "actually, the Electric Corporation is not really interested to get rid of the car. It hopes that after some time, when the public will have forgotten the incident, the car will be returned to serve the retiring Director General...." On the other hand, the Petitioners did not prove that the Respondents published the article's contents in bad faith. In this context it should be remembered especially that the fourth Respondent turned to the first Petitioner's spokesman before the publication occurred and asked for his reaction, but the latter refused to give any reaction (as a result whereof the Petitioner was awarded nominal damages in the amount of one pound only).

 

            Before I examine the contents of the article, I will dispose of Mr. Lieblich's claim that, since the majority judges in the appeal concluded that the article in its entirety was primarily a good faith expression of opinion, this is a finding of fact, and this court's practice is not to intervene in such findings in a Further Hearing, because Further Hearings are not intended to serve such a purpose, while on the other hand, it was proper for the majority judges to contradict the District Court's findings, because the question of classifying the article's contents is a question of law. Mr. Lieblich's claim is self-contradictory. It is correct that the question concerns the application of the law to the facts, and if the law was not interpreted correctly, then its application to the facts may contain a legal defect which can be corrected in an appeal and also in a Further Hearing. In my opinion, this is what happened in this case, because the majority opinion in the appeal contains novel holdings which ought not to be supported and they influenced the majority's interpretation of the provisions of the Law and, as a result thereof, also the way in which the Law was applied to the facts.

 

            I agree with my esteemed colleague that the question here is that of classification of the article's contents. The article charged that the Petitioners intended to mislead the public - to calm down the criticism of the purchase of an expensive car for the second Petitioner during a period of financial cutbacks by means of the fraudulent assertion that the car would be sold, whereas in fact this was merely a subterfuge, because their true intention was that the vehicle would be returned for the second Petitioner's use when the hue and cry will have died down.

Was the attribution of this intention to the Petitioners a factual claim - and a false fact - or was it only the expression of an opinion? My esteemed colleague concluded that based on the dominant character of the article, this was only an expression of opinion and Berinson J thought that the Respondents mixed fact and opinion together, but he did not consider that of any import.

 

            Dr. Goldenberg suggested a standard for distinguishing between determining facts and expressing an opinion (in paragraph 18 of his summations):

           

'"A fact' is not only a primary fact but also a factual conclusion, presented to the reader as a factual datum. 'The expression of an opinion,' by contrast, is the rendering of an expression of value, ('good', 'bad', 'appropriate', 'inappropriate', 'proper', 'improper', and the like), that is to say: the making of a normative value judgment on the facts in their widest sense (including factual conclusions)".

 

            This standard seems to me too narrow, because the attribution of this or that intent to the injured party, too, such as fraudulent intent, can be an expression of opinion by way of drawing a conclusion from the detailed facts, even if it is not a normative judgment. But, as I set out above, in order for the attribution of a particular intention to be the expression of opinion, the publisher must first set forth all the facts upon which he attributes that intent to the injured party. In this way, the expression of an opinion can also be correct or incorrect, true or false, whereas Dr. Goldenberg's standard of making a normative judgment does not state "correct or incorrect", but "appropriate or inappropriate" and the like.

           

            I will illustrate my words by reference to the contents of the article in issue: the attribution of fraudulent intent appears in true places, in the first part of the article and in its second part. The second part states, based on the facts previously brought out:

           

            "From this, the Goldberg agency's clerks concluded that the Electric Corporation was not interested in selling the car and was only interested in gaining time until the public furor would die down ...."

 

            In other words, the Goldberg agency clerks drew their conclusions from the facts which were set out and the fourth Respondent agrees with this conclusion. If that were all, I would have said that this is expression of an opinion concerning the corporation's intent, which does not necessarily have to be true for the Respondents to enjoy the protection of section 15(4), and all that remains to be done is to see whether the conclusion which was drawn is not unreasonable based on the facts set out. However - and this is the important point - there is also the first part of the article in which the writer states categorically that: "actually, the Electric Corporation is not really interested to get rid of the car". This is a clear finding of fact, that is the article's sting, without any factual foundation having been laid for it in what was said earlier. This part of the article gives the ordinary reader the impression that the writer has information on the basis of which he establishes it as a fact that the Corporation does not intend to sell the car. That is to say, he does not invite the reader to judge, based on facts which he has set out, whether it is reasonable to draw this conclusion, but the writer has already judged for himself, as it were on the basis of evidence which he does not disclose, and he encourages the reader to accept his judgment without exercising his own criticism. Such a presentation of fact is done at the writer's risk and if he is not able to establish its truth, he must bear the consequences. It is true that there also is the second part of the article in which the matters are presented as the conclusion drawn by the clerks at the Goldberg agency, with which the writer agrees, and that one should generally read the article in its entirey in order to discern its nature. But one must also remember that the ordinary reader of the newspaper does not analyze the material presented to him in great detail, but the general impression is what counts, and this impression is very much influenced by the order in which the matters are set forth. If a certain impression is created at the beginning of the article, it will not easily be erased by other matters which appear later. At the very least it may be said that this article mixed factual statements and the expression of opinion in a way that the reader cannot separate them - and this is sufficient ground on which to hold the respondents liable.

 

            On the basis of the above, I would set aside the judgment of the majority in the appeal and I would hold the Respondents liable, as did the District Court in its judgment.

           

            After writing this Opinion, I received a copy of Sir Zelman Cowen's book "Individual liberty and the Law" published by Eastern Law House, Calcutta & Oceana Publications Inc., Dobbs Ferry, New York. This is a collection containing the Tagori Lectures that the author presented at the University of Calcutta. The learned author (who is now the Governor General of Australia) discusses in these lectures the fundamental problem of preserving the individual's right to his good name and privacy as against the freedom of the press. I have no doubt that this book will become a leading book on this subject. I note with some satisfaction that much of what I have said here accords with this authority's opinion. (And as chance would have it, the title for the first part of the book is "The Right to Wave My Arm"). The perusal of the chapters in the book that cite extensive authorities that were not before me has broadened my understanding and deepened my thinking concerning the matters we have dealt with in this Further Hearing. There is no room here to describe even its principal contents. The reader will find there a complete analysis of the American decisions, beginning with New York Times v. Sullivan [18], in a very critical light. The author's conclusion is that the publication of that opinion was no occasion for "dancing in the streets", as one American professor suggested (see pp. 47, 63). After studying this important book, I am reinforced in my view that we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws.

 

            Kahan J: I agree.

           

            Etzioni J: I respectfully concur fully with my esteemed colleague, the Deputy President's judgment, in its entirety. However, in light of the very wide ranging arguments which my esteemed colleagues Shamgar and Ben-Porat JJ have set forth, and of the new and far reaching precedents which were established in C.A. 723/74, as the Deputy President notes, I find it proper to add a few remarks of my own, particularly with regard to the question whether the principle of freedom of expression is superior to the right of a person to his good name, in the hope that I will not detract thereby from the Deputy President's comprehensive remarks.

           

            In C.A. 30/72 [l0], which the Deputy President has referred to, I discussed the strict rules of Jewish law concerning a man's right to the protection of his good repute, as expressed in the well known sentence from the book of Ecclesiastes: "Better a good name than good profits". I also quoted there from Maimonides, Laws Concerning Beliefs, chapter 9, that a person who disparages his friend, even when saying the truth, nevertheless commits an act of speaking with an evil tongue. Still, I set out there that a public person is subject to public criticism and exposure. And in Cr.A. 364/73 [13], I expressed my opinion that the judiciary, too, is not immune from this criticism. In that judgment, which concerned a person who was charged with criminal contempt of a judge, I said:

 

"There is often a clash between two principles in this matter. One is the principle of respecting the judicial system while the other is freedom of expression and criticism, including criticism of the judicial system and the judges".

 

And I added:

 

"It is not always easy to tell which principle to prefer in each case. And if from time to time it turns out that a judge suffers unfair criticism, well this is the unavoidable price of the democracy in which we live. Only in totalitarian countries does the citizen not dare to criticize the regime and the courts."

 

And, further on, I said:

 

"Such criticism must be fair, restrained and based on the issues. Nevertheless, it should not be silenced when from time to time it crosses the bounds of good taste".

 

            I have quoted the above matter so as to show that I am not lightly disposed to limit the citizen's and the press' right of criticism regarding the acts of public figures, including judges themselves, as long as such criticism is within accepted bounds of fairness. As for me, I see no conflict between these two principles of freedom of expression and criticism and the protection of a person's good name.

           

            I expanded on this matter in another case, C.A. 552/73 [12], where the question arose whether the award of high sums of damages for defamation might repress freedom of the press. I allow myself to repeat what I said on that occasion:

           

"I am far from denigrating the importance of the existence of a free press in Israel. However, when is that the case - when this freedom is not abused. When we speak of the freedom of the press, we mean principally the freedom to publish a clear and true account of events that occur in the country and the ability to criticize them freely, without fear of official censureship on political or other grounds. However, this freedom is not a license to issue defamatory material without any factual basis".

 

And I also added there:

 

"If the newspaper crosses the boundary of reasonableness, it can no longer enjoy any privilege by claiming that the imposition of heavy damages could harm freedom of the press."

 

            It is clear, therefore, that there is no ground to prefer the principle of freedom of expression over that of a person's right to his good name.

           

            And if there be any need to cite additional authority beyond that which my esteemed colleague has brought, I find such in the rules of professional ethics that were adopted by the Press Council and were set out in the Annual Book of Journalism, 5738-1978, in an article by Advocate Rotenstreich, "Guarding Freedom of the Press." I quote three of those rules, numbers 1, 3 and 6:

           

"1. Freedom of the press and expression are man's basic rights, a cornerstone of his freedom and his rights in a democratic society. This right achieves its fullest and most comprehensive expression to the extent that journalists remember and take care to preserve their moral duty to truth and accuracy in the collection of information and its distribution - and by considering the acts, the thoughts and the sensibilities of the public."

 

"3. The journalist's and the newspaper's calling is to furnish to the public reliable information and interpretation which accords with the facts."

 

"6. Ridicule, inciting against a person and unfounded accusations - for example, on the basis of personal, national, ethnic, religious or racial background - are serious offenses for journalists. The journalist and the newspaper must respect every person's good name and private and family life.

 

If the publication has injured someone's honor and good name, he should be given the opportunity to publish a reply. The journalist and the newspaper must be particular concerning accuracy and to prevent the reader from drawing wrong conclusions." (Emphasis added - M.E.)

 

            From these provisions we see that even those who are particularly concerned to protect freedom of the press do not adhere to the principle that this freedom has superior status, but take particular care that a journalist who publishes his words to the public will exercise his legitimate and desired right of public criticism without belittling his other duty, to be exacting in preserving the facts that are the basis of such criticism.

           

            As my esteemed colleague the Deputy President has already pointed out, the Respondents in this case did not comply with this duty, and I therefore agree with his opinion, with all due respect.

           

            Ben-Porat J: There remains for me only to concur in the opinion of my esteemed colleague the Deputy President. His remarks complete what I omitted in my own remarks in the original hearing.

           

            I also concur in the remarks made by my esteemed colleague Etzioni J.

           

            Shamgar J: 1. I have read with interest the remarks of my esteemed colleague, the Deputy President, which represent the majority view in this Further Hearing, and out of respect to the position taken by my esteemed colleagues, I have also reexamined my own judgment in C.A. 73/74 (hereinafter - the previous hearing). My conclusion is that I disagree with the views expressed by my esteemed colleagues in this Further Hearing and I do not see my way clear to change the views I expressed in the previous hearing.

           

            2. The text of the article and the facts of the event will not be set out here once again, although their study is, of course, an essential condition for the evaluation of the substance of the publication that is the subject of this case, its connection to the proven facts, the classification of its parts - whether as facts or as the expression of opinion to which section 15(4) of the law applies - and the drawing of conclusions concerning proof of the existence of any of the circumstances specified in section 16(b) of the Law which deal with presumptions of lack of good faith.

           

            It is unnecessary to add that I also will not repeat here in detail my conclusions and my thoughts which were set out extensively in the judgment in the previous hearing, and for the reasons therefore, I refer the reader to what I said in the previous hearing.

           

            Since the inquiry in this Further Hearing has been very widespread, and in order to fix correct bounds, it will not be superfluous, I think, to state that we deal here with a defined segment of the law forbidding defamation, that is - a publication that relates to a matter of public interest and deals with the conduct of an official or public functionary.

           

            3. My esteemed colleague, the Deputy President, disagrees with my stand, as he says, in these three respects:

           

(a) The preferred status granted by our law, in my opinion, to the right of freedom of expression.

 

(b) The meaning of the provisions of the Law Forbidding Defamation, 5725-1965 (hereinafter - the Law) in general and of section 15(4), especially and primarily the manner in which those provisions should be interpreted.

 

(c) The application of the defense set forth in section 15(4) of the Law to the article which is the subject of this litigation.

 

            4.As I have said, the majority of my esteemed colleagues disagree with my basic position, which I set forth in the previous judgment and according to which -

         

   "the previously described character of freedom of expression as one of the fundamental constitutional rights gives it superior legal status. The obligation to maintain this right serves as a guideline to fashion and shape laws and to test the legality of acts of the authorities. This also has consequences for the legal interpretation of every written law. Any limitation on the boundaries of this right and of its extent, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum scope and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature's words.... Freedom of expression and a provision of law that limits it do not have equal and identical standing, but rather, to the extent consistent with the written law, one should always prefer the maintenance of the right over a provision of law that tends to limit it. In sum, the standard of judgment that establishes the protection of freedom of expression as the primary consideration when it clashes with another right should be given full expression, not only when the legislature enacts the law's provisions, but also in the interpretation of the law and the application of its provisions to circumstances in which its actual essence and performance are tested in practice" (Emphasis added - M.S.).

 

            It follows that acceptance of this legal point of departure, that recognition of the basic freedoms is an essential part of the law in Israel. entails the conclusion that the basic freedoms are part of the law. as per their name and their purpose, that is to say, as basic rules that guide and give structure to forms of thought and legal interpretation and influence them by their spirit and direction. The result is, among other things, that to the extent that the matter can be reconciled with the written law, one should always prefer the existence of freedom of expression as opposed to its limitation and restraint. It goes without saying that I agree that when a court is called upon to interpret the provisions of a law that has implications for freedom of speech, the court may not declare that the law is void if it contains express and unequivocal provisions that forbid the exercise of that right or establish a specific limitation on it, in particular circumstances. But whenever the legislature's words leave room for interpreting the law one way or another, that is whenever the modes of interpretation allow a choice between a strict interpretation that tips the scales in favor of curtailing freedom of expression and an alternative liberal method, then the second method should be adopted, which will protect and establish freedom of expression to the extent possible.

 

            My esteemed colleague, the Deputy President, is not ready to lend his hand to this approach, and as he hinted, his attitude derives, to a certain extent, from the difficulties inherent, in his opinion, in any written declaration of rights, that is to say, from his doubts concerning the necessity of giving constitutional standing to the basic rights.

           

            In this context, freedom of expression has been called "an unwritten right", but this does not reduce its legal standing in any way. Our Israeli common law has not yet been transformed into written law, and despite legislative efforts to convert unwritten principles into written rules, it should be assumed that there will remain legal precedents that do not find expression in any particular legislative enactment. As is well known, this does not in any way detract from their standing in our system of law.

 

            In taking exception to the standard for interpretation which I set forth in my Opinion, the Deputy President refers, among other things, to the remarks of my esteemed colleague, Kahan J, in F.H. 27/76 [3]:

           

"When the legislator has expressed his view in clear terms in a particular law, the court must interpret that law according to its plain import and the legislator's intent".

 

            With all due respect, this is not at all the question before us in this case: so long as this court has no power of constitutional review, it is obvious that a clear and unequivocal statutory provision must be interpreted according to its plain import and meaning, even if that law curtails a basic freedom. The standard or the guideline to which I referred above becomes important, as I explained, when the matters are not clear and unequivocal, when the text of the law allows room for judicial discretion and when the question arises in this connection, what is that intention that should be read into the legislature's words.

           

            More particularly, the legislature did not lay down unequivocally that any person who transmits a fact inaccurately, whether slight or serious, important or marginal, substantive or irrelevant, will always be liable for having committed a tortious act, without more. Were that the case, there would be no place for the thesis I have set forth. But that is not the way in which the legislature works. It defined defamation but also set up frameworks to clarify and to classify published matter, it established the importance of good faith and created defenses and mitigations which would apply to different publications, even though they are defamatory. Among other things, the legislature defined those circumstances which will raise a presumption that the publication was not done in good faith and opened the door thereby, that the opposite conclusion will be drawn on certain facts. These special defenses are a clear sign that, in certain circumstances, the legislature chose to prefer freedom of expression even though the publication injures someone's honor.

           

            This reflects a basic approach which, in my opinion, should be extended and applied whenever the court concerns itself with the interpretation of the Law or the meaning of a publication, as for example, when writings that criticize a public authority can be understood both as expressing an opinion and as stating a fact. To sum up my view, I can best refer once again to part of those quotations which were brought by my esteemed colleague in his Opinion from Olshan J (as was his title then) in C.A. 90/49 [4], which include the following selection:

           

            "Therefore, the law distinguishes between ordinary cases in which defamatory material is published and exceptional cases, in which the public good is preferred over the individual's right, even if this causes a certain amount of injustice to the individual."

 

            So, too, Agranat J's view (as was his title then) in Cr. A. 24/50 [5], at p. 1160:

           

"The law recognizes that, in certain particular circumstances, the public good requires that a person not be punished for distributing defamatory material, so that the above-mentioned basic right [freedom of expression - M.S.] not be emptied of all content, because the danger of harm that would be caused to the public by over-restriction of freedom of speech and writing is given preferred consideration over the injury to one individual."

 

            And in H.C. 73/53 [1], Agranat J called freedom of expression a superior freedom that is a condition precedent to the exercise of almost all the other freedoms.

           

            I do not disagree with my esteemed colleague that one must distinguish between freedom and anarchy and that certain freedoms must be qualified, in given circumstances and conditions, for the public good. However, the question always is where to draw the line and what is the proper guideline for marking the limits. It may not be inferred from my esteemed colleague's remarks, which appear to set up a person's right to his honor and his good name as paramount to the right of freedom of expression, that he believes that it is always forbidden to publish a libel, regardless of the circumstances. For that would render the provisions in the Law that establish defenses when the published words are defamatory empty of all content. So, too, one should not infer from the protected and preferred status given to freedom of expression that it may never be qualified in the slightest.

           

            To sum up, when the law provides defenses whereby, in specified circumstances, things said or written will not be regarded an offense or a tort even though their content is defamatory, the basic approach takes on great importance: whether it is severe, restrictive and guided by a narrowing yardstick, that seeks to impose the fear of the law on marginal cases, such as those which we will deal with shortly, in which insignificant and unimportant inaccuracies have been intermingled in the writing that is essentially the expression of opinion concerning the improper conduct of a public functionary. Or, perhaps we should interpret the writing - to the extent possible - liberally, and perceive the defenses defined in the written law as an expression of a desire not to harm or impede the free expression of criticism concerning public matters, beyond the necessary minimum.

           

            5. The majority Opinion expresses the view that, instead of giving interpretive superior status to the principle of freedom of expression, one should undertake "a process of balancing the competing values on the scales and choosing among them". This does not provide an answer to the question how one should interpret the provisions of a given law. The process of balancing competing values describes the starting line of interpretation, but it does not provide criteria or value weights with which to do the work of interpretation. Furthermore, I fear that the result of comparing values without setting forth criteria for evaluating their respective weights will be that, in each case, the court will apply whatever criterion appears appropriate in the circumstances, according to the best understanding of the particular panel that happens to be sitting. In other words, the decisional framework which contains a guideline of value, namely, the object of maintaining a fundamental freedom, will be exchanged and replaced by an unpredictable paternalistic and arbitrary framework. With all due respect, this is most unsatisfactory, and I am certain that it also will not bring about clear and consistent decisions.

 

            6. For the purpose of emphasis and clarification, my esteemed colleague referred to the German experience, that is to say, the theory that the weakness of the German law of defamation during the period of the democratic Weimar regime that preceded Hitler was used by the enemies of democracy as a very effective weapon to undermine democratic regime. For support, he referred to the article by David Rieisman which was published in the Columbia Law Review in 1942. It seems to me that the long period that has passed since then has given us a wider historical perspective for the understanding of the many and varied factors that led to the rise of the Nazi regime in Germany and I am certain that a broader analysis, today, would disclose that the relative importance of the German libel laws in this context, as opposed to other factors and elements, was not great. However, the principal matter is that one must be cautious when it comes to imposing restraints on freedoms merely because a totalitarian movement of one type or another managed to take advantage of such restraints for its nefarious purposes. Such an approach, itself, can lead to dangerous and far reaching conclusions. It is better to avoid analogies whose relationship and similarity to our political and social realities and our system of law are flimsy and slight, particularly when this very month two foreign journalists were put on trial in Moscow for defaming officials of the Soviet broadcasting authority.

           

            I only repeat what is well known, from the statement of one of the great men of the generation, when I conclude my discussion of this point by saying that the democratic system of government has many weaknesses, one of which undoubtedly is that the freedoms it allows can be used by persons of evil intent. But, at the same time, we accept the fact that we have yet to find any better system of government, be it for the individual, for society as a whole, or for the proper balancing of the needs and the rights of both.

           

            7. I will now proceed to the second question, namely, what is the correct interpretation of the Law. At the beginning of his discussion of this topic, my esteemed colleague refers to the defenses which the Law provides. But it should be emphasized here that we are not talking about defenses for the protection of the injured party, as might be understood from his discussion and his conclusions, since he considers my interpretation to be narrowing. By calling chapter 3 of the Law "Permitted Publications, Defenses and Mitigations", the legislator intended to refer to publications permitted to the publisher and defenses and mitigations for the defendant and not for the plaintiff.

           

            However, the conflict between us does not rest on the question of whether my interpretation is narrowing or widening. All that I sought to express in my Opinion in the previous hearing was that the text of our Law, including section 15(4), is consistent with the basic precepts which I put forward and does not conflict with them, and that it can be interpreted so as to preserve its fundamental purpose, namely, to forbid the publication of defamation while providing proper protection for those publications that are essential to the existence of a free society .

           

            The judgment in the Sullivan case [18], as any other foreign precedent, could not have been cited by myself as a binding precedent and the description of its holdings was a presentation of the views and basic tendencies accepted in this field in the United States, which I proposed be adopted because they are consistent with our own written law. In other words, our legal criterion in this matter is exhausted by sections 15 and 16 of the Law, but it is up to us to decide what content to give to this legislation and what meaning to attribute to it.

           

My esteemed colleague said, among other things that -

 

   "we stand in this matter at a parting of the ways between the permissive American approach, which is liable to lead us astray, and the healthier approach that prevails in all other common law countries and that is in accord with our laws".

 

            With all due respect, I disagree with the assertion that there is a unitary accepted approach to this matter in the common law countries other than the United States. And precisely Sir Zelman Cowen's book, to which the esteemed Deputy President referred, cites the varied tendencies and views, that often contradict each other. (Compare, for example, the conflicting proposals concerning the status of newspapers with regard to the law of libel and the conclusions of the New South Wales Law Reform Commission, 1968, with those of the Shawcross Committee (The Law and the Press, 1965).) But furthermore, I would not incline to give approbation to the English libel laws, which only recently it was stressed require correction (see the report of 1975) and as to which Lord Diplock previously said:

           

          "...the law of defamation... has passed beyond redemption by the courts."

           

            8.         With regard to the interpretation of section 15(4) of the Law, in my opinion, the dispute turns primarily on one issue, namely, the significance of the incorporation of secondary factual allegations within a publication that is primarily (dominantly) the expression of an opinion. Still, I conclude that my esteemed colleague did not see fit to adopt the rest of the lower court's conclusions in this matter, with which I disagreed, viz.:

           

(a) that the concepts good faith and truth are always linked together with regard to the protection against libel, which, in my opinion, contradicts the provisions of section 16(b) of the Law, and

 

(b) it appears from the District Court's analysis of the issues that every expression of opinion must meet the test of reasonableness in the eyes of the court that sits in judgment, that is to say, it is not the departure from the bounds of reasonableness in expressing the opinion in the circumstances of the case that determines, but the general reasonableness of the opinion in the eyes of the court.

 

            My esteemed colleague correctly states with regard to (a) above, that the expression of an opinion need not necessarily be the truth - that is to say, factually correct - else generally there would be no need for the special defense provided by section 15(4) of the Law.

           

            We will not deal with his remarks concerning item (b) above.

           

            On the other hand, he disagrees with the following matters said in the previous judgment at p. 256:

           

"The question may be asked, what is the law when a factual assertion is intermingled with the expression of an opinion in respect of which the defense of good faith contained in section 15(4) is sought? The answer is that the circumstances set out in the various sections of section 15 classify the publication according to its dominant character. In other words, the type and category of the publication as establishing a fact or expressing an opinion will be determined by its essential nature that is divined from its general import in the eyes of a reasonable reader, and it will not lose its character as a publication expressing an opinion merely because some fact was included, if that does not change its essential feature as described."

 

In this context, my esteemed colleague says:

 

"I do not find support for this in the language of sections 15 or 16, to which my colleague referred later on in his Opinion."

 

            According to my scheme, it is not necessity to seek support for this particular point in the words of sections 15 or 16. The yardsticks set forth in section 15 of the Law should be interpreted according to their substance and their clear direction, and in a manner so as not to draw from the text unnecessary strictness. Moreover, the presumptions created by the legislature in section 16 and the imposition of the burden of proof which derives therefrom support the opinion that the legislature intended to relax the publisher's burdens, if he acts without malice. Therefore, the mingling of a factual detail in a publication which is by its dominant nature an expression of opinion need not be interpreted in a limiting fashion, and it would appear from further on in his Opinion that my esteemed colleague treated an ancillary fact in the publication in the same manner, without relying on a specific provision in the written law.

 

            Incidentally, one can find expression of a similar approach in the current opinion in England and, I referred in this context, for the purposes of comparison, to section 6 of the Defamation Act, 1952, and also, to no little extent, to the remarks of Denning J in Slim v. The Daily Telegraph [15], to which I will refer again later on.

           

            I am also pleased that my esteemed colleague agrees that the defense under section 15 is not lost merely because the defendant does not prove the truth of an ancillary fact that is not seriously harmful, even though that section of the Law does not contain an express provision to this effect. Were the Law to be interpreted strictly, on the basis of its express provisions alone, one would have to conclude from the inclusion of such a provision in section 14, on the one hand, and its exclusion from section 15 which concerns us here, that such an ancillary fact would in fact undermine the defense.

           

            It is unnecessary to add that this interpretive difficulty does not arise according to my method.

           

            I incline to conclude that the difference between my esteemed colleague's approach on this particular point and mine is not a conflict of principle but stems from the difference between establishing the principle and applying it.

           

            Essentially, one's basic approach bears on the evaluation of the significance of the intermingling of a factual detail in the expression of an opinion. publications concerning public matters are not always written in the same manner as one would prepare a legal opinion or legislation, and the application to them of a picayune yardstick that demands strict compartmentalization of fact and opinion and judges every slight deviation harshly could impose a heavy burden on freedom of expression. I agree that this strict view was stated expressly in the 1911 edition of Odgers, but I believe that since then we have seen the first signs of a more liberal approach. perhaps it would be correct if I quote once again Denning L.J.'s words in Slim v. Daily Telegraph Ltd. [15], at p. 503:

           

            "...These comments are capable of various meanings.... One person may read into them imputations of dishonesty, insincerity and hypocrisy .... Another person may only read into them imputations of inconsistency and want of candour .... In considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put on the words. The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it .... I stress this because the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to 'write to the newspaper': and the newspapers should be free to publish his letter. It is often the only way to get things put right."

 

            And at page 198 of the judgment in London Artists [16], which I also referred to in my previous judgment, Denning J categorized a particular letter as a combination of facts or as opinion on the basis of -

           

            "... a fair reading of the whole letter ...",

           

a yardstick which I would adopt in the matter before us.

 

            9. I now come to the third topic, the interpretation of the article itself:

           

            With regard to the factual inaccuracies in the article, I can do no more than repeat my previous remarks at page 263 of the original judgment, as follows:

           

"Even if these ancillary facts contain inaccuracies, these are so secondary in their meaning and their importance that there is nothing in them to change the writer's conclusion: similarly, I fail to grasp the importance of the claim that since the car was returned to the Goldberg agency on 29.11.1966 (not immediately after the Respondent's public statement of 8.11.1966) it was in the agency's custody only for three and a half months instead of 'more than four months', as said in the article; so, too, it is of no importance that it was not 'the agency's clerks' who drew the conclusion described in the article, but only one clerk, since this particular clerk was the one directly responsible for carrying out the assignment to sell the car, who dealt with the matter directly until he concluded what he concluded and reported that his assignment was finished. Who was more familiar with the matter than he and more competent to communicate his impressions of the matter? The court concluded that his statements were not merely some malicious irrational personal speculation when it learned that many of the Electric Corporation's employees also thought that the offer to sell the car was a bluff. The factual description of the offers for sale which preceded the publication of the article is well founded and the lower court made no finding rejecting Mr. Sapir's testimony on this point. Moreover, Mr. Goldberg's letter of 15.3.1967, on which the Respondents relied, shows that there were offers from car dealers, 'who thought they could get the car at this price,' and the price set forth in the letter is 24,000-25,000 Israeli pounds."

 

            Given the light weight of these inaccuracies, the defense of good faith set forth in section 16 of the Law applies to this article, as I said at pages 264-266 of my judgment:

           

"With regard to section 16(b)(1): in the light of Mr. Amir's testimony, there is no basis to attribute to the fourth Appellant the lack of faith in the publication's truthfulness. On the contrary, Mr. Amir apparently believed sincerely in the truth of his impression and conclusions and conveyed them to the fourth Appellant.

 

 The lower court was of the opinion that this did not add an aura of veracity to the author's conclusion, but that is not so. The circumstances as a whole gave Mr. Amir's story the image of truth and reason, since the corporation had shown no initiative and outstanding passivity in everything related to the sale: no offers of sale were published in the press and no notice of tenders was announced, no price was fixed for the car by the Respondents, the offers made received no attention and no attempt was made to negotiate with the bidders in order to persuade them to raise their offers. Instead of cleaning the car, which was covered by dust, to impress potential purchasers, it was confined, to the Respondents' knowledge, in a warehouse in which it disappeared completely from view and the passing time reduced the prospects of selling it. In this last connection, it was immaterial whether the beginning of the 1968 model year had already arrived, or whether it was a few months off, as, in any event, the natural passage of time, if not halted, brought the former event closer every day, and the aging process of the car, which was a 1966 model, continued to progress. All of these facts, which were mentioned in part in the article, gave Mr. Amir's words the appearance of authenticity, and this had direct implications concerning the conclusion as to the author's good faith.

 

Nor can one charge the fourth Appellant with failing to take reasonable measures to discover whether the publication was true, since he approached the first Respondent whose spokesman refused to speak to him. The lower court was of the opinion that since the fourth Appellant was well aware of the reasons for this refusal, he should have sought alternative sources of information in order to fulfil the obligation set forth in section 16(b) (2). I do not see any basis for this opinion. The corporation's refusal, whatever its real reason may have been, could only have added to the suspicions in the circumstances, and that is a considered risk which anyone who refuses to react must take. Whoever approaches a public authority with a request to react is not obliged to interpret silence on the part of the authority to its advantage, but is entitled to suspect that there is something behind it. In any event, anyone who refuses to react cannot complain afterwards that the publisher did not find an alternative source of information to circumvent the barrier he himself created by his refusal.

 

The court is not one of the contesting parties but must examine whether the presumption of good faith arises or whether the Plaintiff has succeeded to rebut it, and to this end it has at its disposal the criteria laid down by Law. From the wording of section 16(b)(2) it follows, inter alia, that the plaintiff may try to prove the absence of good faith by producing evidence that the publisher 'had not, prior to publishing it [the matter published] taken reasonable steps ascertain whether it was true or not'. But this provision of the Law does not merely provide a way to rebut the presumption. It also provides ground to infer that if the Defendant took steps in advance to ascertain whether the matter published was true or not, that is a sign that he has passed one of the good faith tests, and the defense remains valid as long as it is not rebutted in one of the other ways laid down in section 16(b)."

 

            With regard to section 16(b)(2), my esteemed colleague commented on the fact that the fourth Respondent sought to speak with the first Petitioner's spokesman, but he refused to react and he noted that, as a result thereof, the first Petitioner was awarded damages in the amount of one pound only.

           

            But the proofs in the lower court also indicated that the second Petitioner is the person who gave the order not to reply to the Respondent's approach, but for some reason the lower court did not draw any conclusion in connection with that.

           

            10. The majority Opinion and I disagree whether to categorize a certain sentence in the article as fact or opinion ("actually, the Electric Corporation is not really interested to get rid of the car") and over the significance of mixing finding facts with the expression of opinions. I viewed this sentence as the expression of an opinion, that arises as a conclusion from the facts given in the earlier part of the publication, whereas my esteemed colleagues regard it as a factual claim. As to my view of the matter, I can do no better than to refer once again to what I said at page 264 of my previous decision and to the selection quoted above from the judgment in Slim [15], according to which, the substance of the publication should be judged, among other things, after a fair reading of the whole.

 

            11. To sum up the matter, the stricter standards which my esteemed colleagues have adopted as the test for examining factual inaccuracies and the interpretation with regard to classification of some of the matters set forth above, causes the majority to find fault with the publication at issue.

           

            I regret this for two reasons:

           

            First, I fear that this may be interpreted as a restraint and limitation on the principles concerning freedom of expression which have been crystallized in our legal system ever since the establishment of the State and particularly since the decision in the Kol Ha'am case [1]. Second, the failings which are uncovered from time to time in our public service are not rarities and not infrequently the citizen faces obstinacy, bureaucratic arrogance, indifference, and an unwillingness to practice fiscal economy and even worse. Efficient and free criticism of the conduct of public authorities, including the government companies that provide public services, is an essential means for correcting these improper practices. If the citizen fears that the every factual inaccuracy, no matter how trivial or slight, might involve him in legal proceedings, and that every doubt that arises from his text will be interpreted strictly, he will be in fear of those who control unlimited funds in the public purse to conduct their litigation, he will not dare to protest and the criticism will be stifled before it has been uttered. The yardsticks for the limits of permitted criticism of those holding official or public office which have been adopted in the United States and whose underlying approach - as distinguished from its detailed application - can be adopted in my opinion within the framework of our written law, were not created in a vacuum. They are not the fundamentalistic views of judges of the school of Justices Black and Douglas, because it was not their opinion that prevailed in the Sullilvan case [18]. This conclusion arises from the need to create efficient checks and proper balances in a free society against the development, and even victory, of those who would take wrongful advantage of the powers and authority of public office, because the private citizen dares not to open his mouth. It is unnecessary to add that the public does not only feed on abstract declarations concerning the existence and importance of basic freedoms, but it is also awake to their actual application in practice. The Supreme Court of the United States was aware, therefore, of the risk that arises from the blocking of criticism beyond the extent required by the law, however pure the motives may be. In the words of Sussman J (as his title was then) in H.C. 206/61 [14], at p. 1728:

 

"True democracy will be measured especially by the standard whether criticism will be published and heard, for without that, the regime of parliamentary democracy will fall into an abyss".

 

            What I have said here concerning the essential role of criticism applies, of course, to the bureaucratic system in general, and the fact is that in this case before us, too, the Petitioners altered their original decisions only as a result of the criticism that was expressed in the press. It matters not one iota that they were unwilling to admit at any stage that they had in fact erred. Restraint of criticism based on picayune demands concerning ancillary factual matters may create serious dangers far in excess of those which could result from the mixing of inaccurate ancillary facts into an article whose dominant character is legitimate criticism of the conduct of a public official in the performance of his duties, and which did not exceed the bounds of fair comment in those circumstances.

           

            Accordingly I would dismiss the Petition.

           

            Decided, by majority opinion, to void the judgment of the majority in the Appeal and to hold the Respondents liable as did the District Court. The Respondents are to pay, jointly, to the Petitioners, costs in the sum of IL30,000, in the Appeal and the Further Hearing together.

           

            Judgment given on 24 Av 5738 (August 27, 1978).

CHESHIN J. giving the judgment of the court. On December 6, 1948, an order nisi was issued by this court calling upon the respondents to appear and show cause why they should not be restrained from placing the petitioner on trial before the Special Tribunal of the Defence Army of Israel on a charge of murder under section 214(b) of the Criminal Code Ordinance. 1936, and section 97 of the Army Code, 1948, and why they should not release the petitioner from custody.

           

2. The facts, as detailed in the affidavit of the petitioner, are not in dispute, and may be summarised shortly as follows:

 

            The petitioner, Shmuel Lahisse, an officer of the rank of first lieutenant, served in the Defence Army of Israel as a Company Commander. On November 12, 1948, he was arrested by order of the prosecutor of "A" Command, and was charged with the murder of a number of persons in the village of Hula, Lebanon, on October 31, 1948, and November 1, 1948.

           

            On December 2, 1948, the petitioner was brought to trial before the Special Tribunal of the Defence Army of Israel sitting in Haifa. After the charge had been read to him, but before he had pleaded to the charge, his counsel submitted that the tribunal had no jurisdiction to consider the offences charged, as it was clear from the information itself that the acts constituting the offence had been carried out beyond the borders of Palestine and, therefore, outside the jurisdiction of the tribunal. The tribunal, by majority decision, dismissed this contention, and counsel for the petitioner requested an adjournment in order to enable them to apply to this court for a ruling on the question of jurisdiction. The tribunal held unanimously, "that there is no justification for acceding to the request of the Defence", but it adjourned the hearing to another date - in its own words - "as an exception and having regard to the unusual matter arising in this case and the serious penalty to which the accused" (the petitioner) "will be liable in the event of his conviction". At the same time the tribunal hinted, in the course of its decision, that ''the Defence is entitled to make use of this delay for the taking of such steps as it sees fit". The accused then petitioned this court and, as above stated, an order nisi was issued.

 

3. Before considering in detail the principal submissions of counsel for the parties we would like to refer, although the matter may not be strictly relevant, to the following point, because it is one that gives rise to much discussion in cases of this nature. The point is this : In section 10 of his petition the petitioner submits that "the decision of the Supreme Court, sitting as the High Court of Justice... binds all the courts in the country, including military tribunals". Mr. Cohn, the State Attorney, who appears on behalf of the respondents, does not deny the soundness of this contention, and the affidavit of the President of the Special Tribunal before whom the charge against the petitioner was heard, the third respondent before us, makes no reference to this submission. In the absence of any reference to the point in the affidavit it is unnecessary to deal with it at any length. It appears, however, from the detailed record of the proceedings before the Special Tribunal - which was annexed to the petition - that this question was the subject of lengthy discussion and argument, and the President of the Tribunal made some remarks which seem to throw doubt on the competence of this court to interfere in proceedings before the military courts. In one of its decisions it was held by the Special Tribunal that:-

 

            "There is no authority in the law of the State for the submission:

 

            (a) that the High Court of Justice may intervene in the course of proceedings before a military tribunal:

           

            (b) that a military tribunal is bound in any way by the decisions of any civil court...".

           

            It was this very decision which induced counsel for the petitioner to make the submission contained in paragraph 10 of the affidavit which he filed, and since the question of the "superiority" of the civil as against military courts is raised in this court all too frequently, it is imperative that something be said here on this subject which will constitute an "authority", or, at least, something in the "nature of an authority".

           

4. The Army Code, 1948, from the provisions of which the military tribunals derive their jurisdiction, is modelled upon the English Army Act. This Act does not lay down specifically the relationship between the civil courts and military tribunals. Learned jurists in England, however, regard the military tribunals as part of the general system of courts for certain purposes, and in the course of time a number of principles which indicate the de facto relationship between these courts have been laid down by the courts and legal writers. A number of these principles are cited in the Manual of Military Law, in Chapter 8 of which the following is laid down:1)

 

            "The members of courts martial... are, like the inferior civil courts and magistrates, amenable to the superior civil courts for injury caused to any person by acts done either without jurisdiction, or in excess of jurisdiction... Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law".

 

            '"The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which, it is competent to try, or by other conditions which the law makes essential to the validity of its proceedings and judgments. If the tribunal fails to observe these essential conditions, it acts without jurisdiction... The result of acting without jurisdiction is that the act is void, and each member of the court-martial... is liable to an action for damages".

 

            "The proceedings by which the courts of law supervise the acts of courts-martial... may be criminal or civil... Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, i.e., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a court-martial by writs of prohibition or certiorari.

 

            "The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right".

           

            "Disobedience of a prohibition is a contempt of court, and as such punishable by fine and imprisonment at the discretion of the court which granted the writ “.

           

5. These principles are laid down in respect of the courts of England, but as it is not disputed that the military tribunals in this country are also part of the system of the courts generally, it may be assumed that they also apply to the relationship between the civil and the military courts in Israel. Since this is so, this court is competent to direct military tribunals, through orders issued by it, to refrain from considering a particular matter, and it is the duty of the military tribunal to which the order is addressed to comply with its terms. Section 58 of the Army Code, 19481), is entirely irrelevant. This section, which for some reason has been given the title "The supremacy of Military Tribunals" - is merely designed to provide that a soldier who has committed an offence and is arraigned in criminal proceedings before a civil court is not released thereby from also being tried for the same offence before a military tribunal. It can on no account be deduced from the language of the section, however, that military tribunals are never subject to the authority of this court, even when they purport to arrogate to themselves jurisdiction which in law they do not possess.

 

6. Mr. Cohn, in the course of his argument before as, submitted that in fact only a small number of applications for a Writ of Prohibition had been made to the civil courts in England, and even those which had been made, were dismissed. If this be the fact, it merely shows that those responsible for prosecutions in the military tribunals in England are very careful in their work and are anxious not to bring matters before the tribunals which are beyond their jurisdiction, or that the few applications which were in fact brought were not sufficiently well based to succeed. This does not show that a civil court will never intervene in the work of a military tribunal. The Manual of Military Law, which I have quoted, deals also with this point, and it is said there, at page 123:

 

"Although the writ of prohibition has never actually been issued to a court-martial, there seems no doubt that it might issue in a proper case".

           

7. We make these comments in the belief that the question of the "superiority" of military tribunals over civil courts will no longer trouble the judges who sit on such tribunals nor those who plead before them.

 

8. Turning now to Mr. Cohn's reply on behalf of the respondents, we find it is divided into two parts. The first includes those arguments which deal, in the main, with the submission that the petitioner's application to this court is premature. The second contains Mr. Cohn's arguments on the merits of the petition. We shall deal with these submissions separately.

 

9. In the first place, it is submitted by Mr. Cohn that this Court should not accede to the prayer of the petitioner, since the regular work of the military tribunals would be seriously hampered if it be held that any person charged before them is entitled, at any time, to apply to this court for a writ of mandamus or a writ of prohibition. It is emphasised by Mr. Cohn that he makes this submission on the specific instructions of the third respondent, the President of the Special Tribunal, which dealt with the case of the petitioner. In our opinion this argument discloses no ground for dismissing the petition, and there is no need to deal with it at any length. Where a person accused before a military tribunal requests a postponement of the proceedings in order to petition this court, the military tribunal may dismiss the application and proceed with the case, if this appears to it to be the correct course. Where, however, a person accused petitions this court and demands justice, it is right that he should be heard, and the doors of the court should not be closed against him merely to suit the convenience of the military tribunal. On no account are the basic rights of a citizen to be withheld on grounds such as these. If, indeed, a military tribunal acts in a particular case without jurisdiction, a serious infringement of the rights of the citizen has taken place, and this court will not hesitate to hear his petition, nor will it pay any regard to the degree of inconvenience which may be caused to the military tribunal in its work.

 

10. The second submission of the State Attorney is that this court will not usually intervene when another remedy is available to the petitioner. According to this argument the petitioner in this case must first be tried before the military tribunal. If he is convicted, he will be able to appeal against the judgment as is provided in the Army Code, 1948. If the judgment on the appeal does not satisfy him, he may apply to the responsible authority for a pardon. If at that stage too he feels aggrieved - only then may he petition this court. As a general rule the principle stated above is a sound one, and this court has in first acted upon it in innumerable cases. The jurisdiction of this court is derived from the second paragraph of Article 43 of the Palestine Order in Council, 1922, and section 7 of the Courts Ordinance, 1940. The second paragraph of Article 43 of the Order in Council provides that: -

 

"The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice".

           

Section 7 of the Courts Ordinance provides, inter alia, that: - "The High Court of Justice shall have exclusive jurisdiction in the following matters: -

 

            (a)        ..................

           

            (b)        orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts".

           

            In the light of these two provisions this court (in the time of the Mandate) gave a number of directives to indicate in which cases it will intervene and in which cases it will refrain from intervening; see, for example, Havkin v. Inspector-General of Police and Prisons (1) which sets forth the principles which had been laid down in a number of earlier decisions. Today, however, it is beyond doubt that this court will certainly intervene by the issue of a Writ of Prohibition, where an inferior court in a particular case proposes to assume jurisdiction it does not possess. The present case is not similar to one in which it may be said to the petitioner, as was said to him in the case of Barakat v. Maronite Ecclesiastical Court (2), "You have the right not to appear before the body which wishes to try your case if in fact it does not constitute a proper court; wait until actual steps are taken against you, for at this stage of the proceedings you have suffered no injury".

           

            In the case before us the petitioner does not deny that the body which proposes to try him is in general a legal and competent tribunal to deal with the cases of soldiers. His contention, however, is that in this particular case it is wholly incompetent to demand of him that he account for his actions. He is, moreover, not entitled to refuse to obey the summons of the tribunal - he is compelled to appear before it. It would be unjust, therefore, to compel the petitioner first of all to stand trial, and later to be subject to the several stages of the proceedings, with a serious charge carrying a heavy penalty hanging over him, and only after the trial has run its full course to appear here and show that all the proceedings were invalid. At this stage there is no place other than this court to which the petitioner can turn for relief. It seems to us, therefore, that this is one of the eases in which this court is entitled to come to a decision in accordance with both the second paragraph of Article 43 of the Order in Council, and section 7 of the Courts Ordinance.

 

11. The third submission of the State Attorney is that this court should not intervene during the proceedings of the Special Military Tribunal, since section 40 of the Army Code, 1948, deprives it of the right to interpret that Code. That section, which is headed "Interpretation of the Code", provides that "The Presidency of the Supreme Tribunal and any 'sitting' of the Supreme Tribunal shall be competent to interpret this Code should they deem it necessary so to do, and such interpretation shall be binding unless set aside by the Minister of Defence." As I have said, nothing is further from the intention of Mr. Cohn to deny the jurisdiction of this court. On the contrary, he has emphasisd time and again that this court is competent to make orders against military tribunals, and the presidents and judges of such tribunals. In his opinion, however, one power alone has been denied this court by the section cited, and that is the power to interpret the Code and the principles to which it gives expression. It can only be concluded, therefore, that section 40 impliedly deprives this court altogether of the power to consider any matter connected with the soundness of this submission.

 

12. We would point out that section 40, as is the case with many other sections in the Code, is drafted negligently and carelessly, and is defective both in what is lacking and in what is superfluous. It provides, for example, that "a sitting of the Supreme Tribunal" shall be competent to interpret the Code, but we do not know the nature of such a "sitting". Is it intended to refer to every panel of judges "of not less than twenty-one in number" spoken of in section 341), or only to the three or five judges of whom a tribunal is constituted for a particular purpose, as stated in section 361). If the intention is to refer to all the judges sitting together, why are they described by the name "sitting" and not "panel of judges", the name which appears in the marginal note to regulation 34? And if it is intended to refer to a tribunal as ordinarily constituted, sitting for the purposes of a particular case, the question arises whether it is only the Supreme Tribunal which is competent to interpret the Code? Have the inferior military tribunals been deprived of this power ? If so, how is it possible to imagine that an ordinary military tribunal will consider a case in accordance with the Code without being competent to interpret it? And how did the Special Tribunal, which dealt with the case before us, reach its decision if not by interpreting the Code? Moreover, section 40 provides that "such interpretation shall be binding". On whom shall it be binding? Shall it bind every inferior military tribunal in every case brought before it, or only a single particular military tribunal dealing with a particular matter brought before it? And what about the Superior Military Tribunal itself? Will an interpretation given by one "sitting" bind another "sitting" of the same tribunal, or not? And was it the intention that such interpretation should also bind other courts - such as this court - or not? It is elementary principle that an ordinary civil court is not to be deprived of jurisdiction otherwise than by an express provision or an implied intimation in the body of the law itself. (See, for example, section 8(3) of the Registrars Ordinance 1936: section 45 of the Constituent Assembly Elections Ordinance, 1948; regulation 5 of the Emergency (Requisition of Property) Regulations 1948). It would seem, therefore, that the only remarkable feature of this regulation is that the presidency of the Supreme Military Tribunal - although this presidency is not a tribunal in the accepted sense of the term and is also not included in the judicial administration as detailed in regulation 7 - is also competent to interpret the Code, and its interpretation, as also the interpretation of "every sitting of the Supreme Military Tribunal" shall be binding "unless rejected by the Minister of Defence" Their interpretation "will be binding", excludes a case in which their interpretation has not yet been given. In the case before us no interpretation has yet been given by the bodies mentioned in regulation 40, and for this reason this court is competent to interpret the Code for the purpose of this case.

 

13. We now come to deal with the principal submissions of counsel for the parties. As I have said, the petitioner was brought to trial before the Special Military Tribunal under section 214(b) of the Criminal Code Ordinance, 1936, and section 97 of the Army Code. All the arguments of counsel for the parties were concentrated on the exact interpretation which is to be given to section 97, and indeed the fate of the application depends upon which version is accepted by the court.

 

14. Section 97 of the Army Code, 1948, provides:

 

            "(97) Every soldier who, within the framework of the army or by reason of his belonging to the army commits an offence punishable under the general criminal law which is in force or will from time to time be in force in the State and for which belonging to the army does not expressly release the offender from liability, may be tried for such offence before a military tribunal and shall be liable to the same punishment as that to which he would be liable in the ordinary courts".

           

            It is difficult to say that this provision is short and clear, and it is no wonder that the parties before us differ as to its meaning.

           

            Mr. Geiger, counsel for the petitioner, interprets this regulation so as to deprive a military tribunal of the power to try a soldier who has committed an offence under section 214(b) of the Criminal Code Ordinance, 1936, beyond the borders of Palestine. His submission may be framed as follows : when a soldier is tried before a military tribunal for an act which constitutes an offence under the existing criminal law, it must first be ascertained whether, according to that law, the accused would be liable to be punished were he to be tried before the ordinary courts. Counsel stresses the words "commits an offence which is punishable under the existing criminal law", and concludes from this that any act, even if it constitutes an offence, which for any reason would not be punishable by the ordinary courts, is also not punishable by military tribunals. One of the limitations on the powers of the ordinary courts, so counsel continues, is contained in section 6 of the Criminal Code Ordinance, 1936. This section provides : "The jurisdiction of the Courts of Palestine for the purposes of this Code extends to every place within Palestine or within three nautical miles of the coast thereof measured from low water mark".

           

            From this it follows, counsel submits, that the general criminal law recognises only the territorial jurisdiction of the ordinary courts, and not jurisdiction as to persons who commit offences outside the territory. The only exception is that contained in section 5 of the Ottoman Law of Criminal Procedure 18791) which is still in force. Every section of the Criminal Code Ordinance which creates an offence, therefore, must be read together with section 6 of that Ordinance, in order to test whether or not the courts have jurisdiction.

 

15. Applying this test, counsel submits, it is clear that had the petitioner in the case before us been brought to trial for the offence charged before an ordinary civil court, that court would have had no jurisdiction to try the case since the offence charged was committed in Lebanon. That being so, the special Military Tribunal also has no jurisdiction to try the petitioner, since the act in respect of which he is charged before that tribunal does not constitute "an offence punishable under the existing criminal law".

 

16. Mr. Geiger finds support for his submission in the concluding portion of section 97. This section, in speaking of the punishment which may be imposed by a military tribunal for an offence described in the opening portion thereof, provides that the accused "shall be liable to the same penalty as could have been imposed upon him in the ordinary courts". Had a person in the position of the accused been tried before the ordinary courts, so the argument proceeds, he would not have been liable to any penalty at all since, as the offence was committed beyond the borders of Palestine, such court would have had no jurisdiction to try the case. This being so the petitioner, in terms of the concluding portion of the section quoted, is also not liable to any penalty before the Special Tribunal, and if there is no penalty there is no jurisdiction, and there can be no trial.

 

17. Mr. Geiger has not overlooked section 3 of the Army Code which provides that "the Army Code, 1948, shall be binding upon the army and all its institutions and units, and upon soldiers of all ranks whether within the State or beyond its borders". In the first place, however, he submits that this section applies the Code only in respect of the offences set forth in the Army Code itself, that is to say, military offences, and not in respect of other offences which are civil in character and to which the Criminal Code Ordinance - including the limitation in section 6 thereof - applies. According to this argument, therefore, the Army Code, 1948, binds the army, its institutions, units, and soldiers, wherever they are, but only in respect of the offences set forth in that Code, and not in respect of an offence which is stated in the general criminal law. Mr. Geiger further submits in the alternative that the words "beyond its borders" in section 3 mean beyond the borders of the State of Israel, and beyond the borders of the area which was once covered by the Mandate, and was called "Palestine". From this it follows that the Army Code, 1948, binds the army, its institutions, units, and soldiers both in the State of Israel and in Palestine, but does not apply to acts performed by a soldier in Hula in Lebanon - a place beyond the borders of Palestine.

 

18. In explanation of this latter interesting conclusion Mr. Geiger relies upon a number of ordinances, regulations and proclamations. His contention may be put in this way: On May 14, 1948, there was the declaration of the establishment of a Jewish State, namely, the "State of Israel". The Declaration of the establishment of the State, which is published in Official Gazette No. 1, page 1, draws a distinction between the "State of Israel" and "Eretz-Yisrael".1) The "State of Israel" extends only over a portion of "Eretz Yisrael". In terms of section 1 of a proclamation published the same day a legislative authority, the Provisional Council of State, was constituted, and by virtue of the powers conferred upon it, it enacted the Law and Administration Ordinance, 1948. In terms of section 11 of that Ordinance there shall remain in force in the State of Israel ''the law which existed in Palestine on 14th May, 1948". It follows that the limitations on the powers of the legislative authority which applied previously under the law "which existed in Palestine" were not repealed and are still in force. Article 38 of the Palestine Order in Council, 1922, as amended by the Order in Council (Amendment) 1935, provides that "Subject to the provisions of any part of this Order or any Ordinance or Rules, the Civil Courts hereinafter described, and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine".

 

            From this it follows that the territorial jurisdiction of the courts of the State of Israel is in fact more limited than that of the courts which existed in the time of the Mandate, for the area of jurisdiction of the courts of the State of Israel only extends over the area of the State, while the area of jurisdiction of the courts in the time of the Mandate extended over the whole area of "Eretz-Yisrael".

           

19. The Provisional Council of State, in enacting section 1 of the Area of Jurisdiction and Powers Ordinance, 1948, opened the door for extending the areas in which the law of Israel will apply. That section provides : "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." In this extension, however, there are limitations. Firstly, it is necessary that the extended area be defined by a proclamation of the Minister of Defence as being held by the Defence Army of Israel. Secondly, it is necessary that such extended area be situated within the borders of Palestine - even if it be beyond the borders of the State of Israel. In no circumstances, however, may it extend beyond the borders of Palestine.

 

20. The result, so counsel submits, is that if we read section 3 of the Army Code in the light of all the statutes and proclamations to which I have referred, the meaning of that section is as follows : The Army Code binds the army both within the State and beyond its borders that is to say, beyond the borders of the State of Israel, but not beyond the borders of Palestine. This being so, and the village of Hula in Lebanon being beyond the borders not only of the State of Israel but also of Palestine, and seeing it has not been defined by the Minister of Defence as an area which is held by the Defence Army of Israel, the Army - Code does not apply to it, and the military tribunals have no jurisdiction to try a person for an offence committed by him in that village.

 

21. In view of the authorities which apply to this case these arguments, though forceful, do not appeal to us. Section 97 of the Army Code is of course of decisive importance. The correct intention of that section may be discovered by considering the sections which precede it. Section 97 is found in that chapter of the Army Code which deals with the various types of offences. All the preceding sections, starting with section 77, specify the offences for which a soldier is liable to be tried, and lay down penalties attaching to them. Almost all of these offences are of a military character and are not mentioned in the general criminal law. On the other hand, the general criminal law details numerous offences of a civil character of which there is no mention in sections 77-96 inclusive of the Army Code. Were it not for section 97 a military tribunal would not be competent to try a soldier for one of the offences included in this last group of sections referred to. This section introduced two innovations:

 

            (a) the offences specified in the general criminal law are also offences under the Army Code and may therefore be dealt with by military tribunals.

           

            (b) the penalties which may be imposed upon a soldier by military tribunals in respect of such offences are those laid down in the general criminal law.

           

            This section, therefore, serves as a channel through which all the offences specified in the general criminal law flow into the Army Code, thereby adding to the list of offences already specified in the preceding sections. The opening words of the section "commits an offence punishable under the general criminal law" refer to a soldier who has committed an act regarded by the general criminal law as a punishable offence - that is to say, an act for which a penalty has been prescribed. This is the substantive portion of the law regarding military tribunals and it bears no relationship whatsoever to the question of the jurisdiction of the ordinary courts. Let us suppose that a person is charged before the District Court of Haifa with an offence committed by him within the area of jurisdiction of the District Court of Jerusalem. It is clear that the District Court of Haifa has no jurisdiction to try and punish the accused. This in itself, however, in no way affects the fact that the act committed by the accused is in the nature of a punishable offence. The District Court of Haifa has no jurisdiction but the offence is still an offence which is punishable under the Criminal Code.

           

22. This is what is intended by the opening words of section 97. Where a soldier is charged before a military tribunal under a section of the Criminal Code, the opening words of section 97 require that that Code be consulted in order to determine whether the act of the accused constitutes an offence for which a penalty is prescribed. At this stage no reference should be made to section 6 of the Criminal Code, for that section deals not with offences and punishments but with the jurisdiction of the general courts, while we are concerned with the military courts.

 

23. In the same way in which the offences described in the general criminal law are introduced into the Army Code by the opening words of section 97, so the penalties attaching to such offences are introduced by the concluding words of the same section. There may be some force in the submission of Mr. Geiger that the words "shall be liable to the same punishment as that to which he would be liable in the general courts" in the concluding portion of the section, force as to ask whether the person in question would be liable to be punished had he been charged before an ordinary court, and I attach importance to the words "to which he would be liable". The person charged in this case would not be liable to be punished in a general court - not because there is no offence, but because in terms of section 6 of the Criminal Code such court would have no jurisdiction to impose the punishment. This submission, however, goes not to the jurisdiction of the military tribunal but to the merits of the case. It must be made, therefore, before that tribunal when all the other submissions of the defence on the merits of the case are presented to that tribunal.

 

24. It must be borne in mind, moreover, that the opening words of section 97, in speaking of the offence, are directed not to a particular person charged nor to a particular offence, but to offences generally ("an offence punishable"). As against this, the concluding words of the section speak of the punishment to which a particular accused may become liable. It follows, therefore, that the jurisdiction of the military tribunal is to be determined by the following two factors:

 

(a)    whether the accused committed an act which constitutes an offence under the Criminal Code;

 

(b)   whether a punishment for such offence is prescribed by the Criminal Code.

 

The question whether or not a particular person charged is liable to be punished for a particular act does not require consideration of the jurisdiction of the military tribunal but of the charge itself, that is to say, whether or not upon that charge the accused is liable to be punished. That is a matter for the military tribunal - and not for this court.

 

25. We find support for this opinion in section 3(b) of the Criminal Code Ordinance, 1936. That section provides that "The provisions of this Code shall be without prejudice to . . . .

 

(b)   the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine Courts in respect of acts done beyond the ordinary jurisdiction of such Courts;"

 

            In other words, the legislature has left the door open for itself to enact laws in the future (and to provide therein also for what has happened in the past) whereby courts will be competent to try and punish persons for acts committed by them which fall beyond the ordinary jurisdiction of such courts, without their being limited by the provisions of the Criminal Code Ordinance (referring, apparently, to section 6 of that Ordinance). The Army Code must be regarded as one of those laws.

           

26. To sum up our consideration of this problem, therefore, section 97 was not intended to introduce into the Army Code the whole of the existing Criminal Code, but only specific sections thereof, namely, those which deal with particular offences and the punishment for such offences, and no more.

 

            The Criminal Code Ordinance, for example, devotes a whole chapter (chapter 4) to "General Principles relating to Criminal Responsibility". For the purposes of the Army Code, however, sections in the Ordinance creating an offence must not be read together with the sections of that chapter, since a whole chapter of the Army Code, namely, part 3, chapter I, is also devoted to these and similar matters. Moreover, the expression "offence" itself is defined differently in the two statutes. It follows from this that it is not the whole of the Criminal Code that has been introduced into the Army Code by section 97, and that section 6 of the Criminal Code Ordinance falls outside the Army Code which contains a parallel provision in section 3 thereof.

           

27. Even if this is not so, and section 6 of the Criminal Code Ordinance is included in the Army Code by virtue of section 97, that Code also includes section 3(b) which, as I have said, renders section 6 inapplicable.

 

28. We shall now examine the nature of Mr. Geiger's second submission. As we have already said, it is his contention that the Special Military Tribunal lacks jurisdiction because even if the Army Code, by virtue of section 3, binds the army and its soldiers also beyond the borders of the State of Israel, it does not apply to them beyond the borders of Palestine, and the act in respect of which the petitioner is charged took place beyond the borders of Palestine. There is no doubt that a number of legislative provisions published after the declaration of our political independence distinguish between the area which is included in the State of Israel and the area which is outside the State of Israel, but within the borders of Palestine, and lay down a number of provisions relating to those areas of Palestine which have been defined by the Minister of Defence as occupied areas. This distinction, however, between the "State of Israel" and "Palestine" does not appear in section 3 of the Army Code. That section applies the Army Code to the army wherever it is, whether within the State or beyond its borders - the words "beyond its borders" are without limitation.

 

29. Two further submissions have been advanced by Mr. Geiger:

 

            (a) just as no extra-territorial jurisdiction has been conferred upon the civil courts, the military tribunals have no such jurisdiction;

           

            (b) if, indeed, it was the intention of the Minister of Defence to confer extra-territorial jurisdiction upon the military tribunals by section 3 of the Army Code, that section would be ultra vires.

 

30. In support of these submissions Mr. Geiger relies upon the case of Attorney-General v. Nikolaiovitch (3) and upon obiter dicta in the judgment. In that case a number of persons were charged under the Immigration Ordinance with assisting Jewish refugees to immigrate to this country. It was proved that the act committed by the accused had been performed beyond the territorial waters of Palestine. It was accordingly held by the court that since it exercised no authority over the place where the offence was committed it had no jurisdiction to deal with the matter. The Supreme Court (in the time of the Mandate), sitting as a Court of Appeal, upheld the judgment, relying upon the English case of Macleod v. Attorney-General for New South Wales (4).

 

            The facts in Macleod's case were as follows: The appellant, a resident of New South Wales, married a woman in America during the life of his former wife. Upon his return to New South Wales he was charged with the crime of bigamy and upon the basis of a statute which made the marriage of a second wife in any place whatsoever, during the lifetime of the former wife a criminal offence, was duly sentenced. The Court of Appeal in New South Wales upheld this judgment. The decision, however, was reversed by the Privy Council which held that the statute in question must be very strictly interpreted, and that the words "in any place whatsoever" meant any place within the area of New South Wales and not outside it.

           

            The Privy Council went on to point out that were the position otherwise it would mean that the colony of New South Wales assumed jurisdiction over every place in the world. The assumption of powers such as these, which exceeded those conferred upon the colony, was inconceivable. The Privy Council cited with approval the remarks of Baron Parke in Jefferys v. Boosey (5) that,

           

            "It is clear that the Legislature has no power over any person except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.”

           

The Court in the case of Nikolaiovitch (3), when dealing with the principle laid down in Macleod's Case (4), pointed out obiter that had it been the intention of the legislature in enacting the Immigration Ordinance to empower the courts of this country to deal with offences committed beyond its territorial waters, it could not have done so because of the limitations upon its own powers. For these reasons Mr. Geiger asks us to conclude that even under section 3 of the Army Code the area of jurisdiction of the Special Tribunal in this case does not extend beyond the borders of Palestine since that section is to be strictly interpreted.

 

31. These arguments too, which were advanced by Mr. Geiger with much ingenuity, do not appeal to us. It is an important principle of the common law that the area of jurisdiction of the courts extends over the area of the State alone, and that they have no jurisdiction in regard to offences beyond the borders of the State - that is to say, that the criminal jurisdiction of the courts is territorial and not personal (see Archbold's Pleading, Evidence and Practice in Criminal Cases, thirty first Edition, page 25). The Privy Council in Macleod's Case (4) reached its decision upon the principles of the common law which have been introduced into the framework of our criminal law by section 6 of the Criminal Code Ordinance. In England too, however, that principle is subject to limitation and change, and it does not apply when the jurisdiction of the courts has been expressly extended by the legislature. Thus it is said by Archbold, (ibid),

 

            "The jurisdiction of the Courts of British colonies is limited to offences committed within their territories unless express legislation otherwise provides".

           

and at page 26 he says,

 

            "in the case of British subjects who have committed offences abroad there are many exceptions to the common law rule by virtue of specific statutes".

           

We have already seen that the Ottoman Law also recognised personal jurisdiction in the special case dealt with in section 5 in the Ottoman Code of Criminal Procedure, and it is not impossible that this is also the intention of section 3(b) of the Criminal Code Ordinance. Section 3 of the Army Code is then only another example of this. This section confers jurisdiction upon military tribunals to try a military offender who has committed an offence beyond the borders of the State. In other words the jurisdiction of military tribunals is personal and is unlimited by geographical boundaries. Moreover, as we have already seen, the words "beyond its boundaries" are intended to refer to any area beyond the borders of the State, without limitation.

 

32. We now come to deal with the second argument of Mr. Geiger that if that was indeed the intention of section 3 of the Army Code, then that section is ultra vires. Mr. Geiger bases this submission upon Article 38 of the Order in Council, the Declaration of the State of Israel and the first Proclamation made on May 14, 1948, section 11 of the Law and Administration Ordinance, and section 1 of the Areas of Jurisdiction and Powers Ordinance.

 

            There would have been substance in this submission of Mr. Geiger had the Army Code, 1948, been enacted by virtue of the Palestine Order in Council. That, however, is not the case. The Code was enacted in the exercise of powers conferred upon the legislature after the establishment of the State. It is stated at the commencement of the Emergency Regulations Army Code, 1948, that they were made by virtue of the powers conferred upon the Minister of Defence by Section 9 (a) of the Law and Administration Ordinance, 1948. Section 9(b) of the Ordinance provides that,

           

            "An emergency regulation may alter any law, suspend its effect or modify it..... "

           

It is true that in terms of section 11 of the Ordinance

 

            "The Law which existed in Palestine on the 14th May, 1948, shall remain in force"

           

but there are added immediately the additional words,

 

            "in so far as there is nothing therein repugnant to this Ordinance or to other laws which may be enacted by or on behalf of the Provisional Council of State . . . . ."

           

Section 2(a) of the Law and Administration (Further Provisions) Ordinance, 1948, moreover, explains section 11 of the Law and Administration Ordinance, 1948, in providing that

 

            "Where any Law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 14th May, 1948, the earlier Law shall be deemed to be repealed or amended even if the new Law contains no express repeal or amendment of the earlier Law".

 

It follows therefore that whatever may be the effect of Article 38 of the Order in Council and section 6 of the Criminal Code Ordinance, 1936, there can be no doubt whatsoever that section 3 of the Army Code, 1948, repealed or amended or replaced all earlier provisions in the Law as was the case, as we have seen above, with the specific statutes in England which modified the principle applied by the common law. It follows therefore that by virtue of this section a military tribunal is competent to try a soldier who has committed an offence under the Army Code (this including an offence under the general criminal law which has been introduced into the Army Code under section 97) beyond the State of Israel, or beyond the area of Palestine to which the Mandate applied. Since this is so, the Special Tribunal constituted for the purpose of dealing with the offence committed by the petitioner in the village Hula in the Lebanon was also competent to try the case.

 

33. We desire in conclusion to mention one other argument of the State Attorney. He submitted at the outset of his argument that since the Minister of Defence had dealt neither directly nor indirectly with the matter of the petition there was no necessity to join him as a respondent. In any event, he continued, the name of the Minister should be deleted from the petition so as not to hinder him in the exercise of the powers conferred upon him by section 40 of the Army Code.

 

            It might be proper to examine this submission but in view of the conclusion which we have reached, as set forth above: we do not deem it essential to deal with it here since, in any event, the court has refused the petitioner the relief which he seeks.

           

            In view of what we have said it has been decided to discharge the order nisi granted upon the application of the petitioner.

           

                                                       Order Nisi Discharged.

                                                       Judgment given on February 1, 1959.

HCJ 891/05 – f

CA 2617/00

 

 

Petitioner in HCJ 891/05:  Tnuva Co-op for Marketing of Agricultural Produce in Israel Ltd.

 

Appellant in CA 2617/00:  Kinneret Quarries (limited partnership)

 

v.

 

Respondents in HCJ 891/05:      1.     The Agency Authorized to Grant Importation

Licenses – The Ministry of Industry, Trade and Employment

2.     The Minister of Industry, Trade and Employment

                                3.     The Minister of Finance

                                4.     The Minister of Agriculture and Rural

Development

                                5.     The Israel Dairy Board (formal respondent)

 

Respondents in CA 2617/00:      1.     The Nazareth Illit Local Planning and Building

Committee

2.The District Appeals Committee – Northern District

3.The Galilee Society – The Arab National Society for Health Research & Services

4.Israel Lands Administration – Northern District

 

 

 

The Supreme Court

 

Before Registrar Y. Mersel

 

 

Application for costs

 

For petitioner in HCJ 891/05: Yossi Levi

 

For appellant in CA 2617/00: Yehuda Tunic

 

For Respondents in HCJ 891/05: Avi Licht

 

For Respondents in CA 2617/00 Isaiah Etgar, Itamar Shai

 

 

DECISION

 

1.     A party initiates legal proceedings.  The proceedings are concluded.  The question of costs, including attorneys' fees, arises.  It is determined that one party shall be charged with the other party's costs.  What rate of costs and attorneys' fees shall be awarded?  Is a party entitled to full reimbursement for all his expenses, and the entire amount of attorneys' fees that he paid his attorney ("real costs")? These are the questions that arise in the proceeding before me.

 

The Facts and Proceedings

CA 2617/00

 

2.     In this case, appellant submitted a contempt of court application.  The basis for the application was appellant's claim that respondents are running a quarry on the "Arab el Hayib" site (hereinafter - "the site"), despite the judgment, which determined that the permit for non-conforming use at this site is to be revoked, and that, in any event, no quarry should be run on it.  Respondents filed a response, requesting the rejection of the application.  Appellant then submitted an application to abate its application, as, according to its argument, it became aware that the facts basing its application had changed, and that the activity at the site is no longer operation of a quarry, rather construction of a military base.  Respondents consented to abatement of the application, but respondents no. 1-3 demanded their costs and even requested exemplary costs.  In my decision of February 6 2005 I decided to abate the application regarding contempt of court.  I further decided that petitioner was to be charged with the costs of respondents no. 1-3, as what it discovered in retrospect regarding the use of the site, it could have known in advance, and in any event, it did not explain otherwise, and in any case it should be charged with the costs of respondents no. 1-3 for that application.  Due to the charge for costs, the parties were given an opportunity to make their arguments regarding the rate of costs which should be awarded in this case (my decision of February 6 2005).  Respondents no. 1-3 accordingly submitted a bill including charges for attorneys' fees totaling 32,250 NIS (plus VAT).  They further argued that the circumstances of the case were fitting for an award of "exemplary costs".  Appellant, in its response, argued that its conduct does not justify awarding "exemplary costs".  Regarding the requested amount of costs, it argued that the document submitted is only a bill, not a receipt or an attorneys' fees agreement, and that the date of the bill is after the date of the abatement application, and even after my decision of February 6 2005, and in any case the amount appearing on it should not be awarded.

 

HCJ 891/05

 

3.     In this petition, petitioner attacked respondents' decision not to grant it a license to import milk powder from the US in 2005, which was necessary for petitioner's commercial activity.  It was argued, inter alia, that respondents' decision on the subject was not legal, as it had been determined in previous proceedings (HCJ 8258/03) that petitioner was to be granted sufficient time to initiate legal proceedings if the government should decide upon a policy that would prevent granting a license for importing milk powder, yet such time was not granted, and a new decision on the subject was not made by the government, and in any case – so it was argued – the decision not to grant a license for importing milk powder at that time was not legal, and should be annulled.  In a decision of January 26 2005, respondents' response to the application was requested.  In their response, respondents argued that petitioner had been given a hearing, and that in accordance with it, the intention is to recommend to the government that petitioner – as a monopoly in the milk market – not be allowed to import milk powder.  However, it was clarified in the response, that due to the date that the decision was made on the subject, the policy that had been employed vis-à-vis petitioner would not be changed, and it could import milk powder in 2005 as it always had.  In response to that declaration, petitioner filed an application for abatement of the petition and charging respondents with costs.  The petition was abated (February 23 2005).  Regarding costs, respondents left the decision of that request to the discretion of the Court.  In my decision of March 31 2005, I ordered that the respondents be charged with petitioner's costs, as it had been proven that the change in respondents' policy regarding granting a license to import milk powder had come about as a result of the filing of the petition.  Having no details regarding petitioner's costs, I requested the parties' stances regarding the amount of costs.  In an affidavit by the deputy director of the financial department of petitioner (of April 18 2005), it was argued that the filing of the petition involved direct costs of 103,739 NIS, including attorneys' fees (97,914 NIS); court fees (825 NIS), and auxiliary costs (5000 NIS).  In response, respondents again left the decision regarding the amount of costs to the discretion of the court, while emphasizing that there had been no hearing of the petition on the merits, and that the petition had been satisfied within a short time. 

 

4.     Due to the amounts of costs requested in both cases, and the scope of the disputes between the parties, the hearing of the two cases was unified on June 6 2005.  In the decision it was noted that "in both proceedings before me, a similar question arises: the question of the costs which should be awarded… the question before me is whether it is legal to award amounts of costs totaling the 'real costs' which were actually spent, or the standard for awarding costs – including attorneys' fees – should be different".  The parties supplemented their arguments before me on this matter.

 

The Arguments of the Parties

 

5.     According to the argument of petitioner in HCJ 891/05, as well as respondents no. 1-3 in CA 2617/00, they should be awarded the amount of costs which were actually spent ("real costs").  The basic principle should be that once it has been determined that a party has won the proceedings and the relief he petitioned to receive, the other party must reimburse him for the expenses he bore in order to attain the relief.  According to precedent  – so it was claimed – a party who has won a case shall not come out of the litigation against his rival with a loss, and thus there is a duty to reimburse for the entire amount of attorneys' fees that was paid.  That is the point of departure.  However, the court of course also has discretion and may consider various factors regarding the amount of costs, including the date on which the proceedings came to a close, and the reasonableness of the costs and the attorneys' fees, considering the character of the case.

 

6.     Appellant in CA 2617/00 argued, in its response, that the amount of costs requested is absolutely unreasonable.  Costs should be based upon the actual investment of the party.  In any case, its own bona fide conduct should be considered in deciding upon the amount of costs to be awarded.  Respondents in HCJ 891/05 added that attorneys' fees and costs actually spent are a relevant consideration which can be taken into account, but that they are not a central component.  The entirety of the circumstances of the case should be considered, including the character of the suit and its level of complexity; the relief requested and the relation between it and the relief that was granted; the extent of work invested by the party in the proceeding, and the attorneys' fees that the party paid or promised to pay.  It was further argued that the amount of costs that is actually awarded in this Court in similar cases is approximately 10,000 – 15,000 NIS, and that should be seen as a guiding standard, from which there is no justification to deviate in the circumstances of this case.  It was further noted in the response that the State is the trustee of the public, and should not be obligated to pay high costs, especially when it is not customary to charge petitioners who filed baseless petitions with costs.  Last, it was argued that it is difficult to appraise the State's costs if it wins a case, and thus real costs should not be awarded, as that will lead to a lack of balance between the State and other parties.

 

The Disputed Question

 

7.     Indeed, the factual and procedural circumstances in each of the two cases before me are different, but they share one common legal question, which is: when it has been decided to charge a party with legal costs, including attorneys' fees (hereinafter – "costs"), what is the standard according to which the amount of those costs will be decided?  The main dispute centers around the question whether costs should be "real", that is, the costs which were actually paid by the party (or those he promised to pay), or another standard, e.g. reasonable costs, or minimal costs.

 

The Normative Framework

 

8.     In civil proceedings, the awarding of costs – which the registrar of the court, inter alia, has jurisdiction to do (section 99 of the Courts Law [consolidated version], 5744-1984) – is arranged in a number of provisions in the Civil Procedure Regulations, 5744-1984 (hereinafter – "the regulations").  These provisions apply, in principle, to proceedings in the High Court of Justice as well (see the High Court of Justice Procedure Regulations, 5744-1984, regulation 20(b)).  The general provision on the issue is determined in regulation 511(a) of the regulations, according to which "at the end of the hearing of every proceeding, the Court or the registrar shall decide, regarding the case at hand, whether or not to charge a party for the other party's attorneys' fees and legal costs".  Pursuant to the regulations, an award of costs can be made in two main ways: one is by an express determination of the amount of costs, and the other is by a determination that the party must pay costs, without determining their amount.  Where the amount of costs is expressly determined, regulation 511(b) adds that "if the Court (or registrar) decides to charge a party with costs, the Court (or registrar) may determine the amount of costs according to its (or his) discretion, subject to regulation 512".  Regulation 512, whose title is "Determining the Amount of Costs", determines that:

 

"(a) if the Court (or registrar) determined the amount of costs, it (or he) may award it, both regarding attorneys' fees and regarding legal costs, with one total amount for attorneys' fees and one total amount for legal costs, provided that subject to subsection (b), the amount of attorneys' fees shall not be lower than the minimum rate determined for attorneys' fees in the Israel Bar Rules (Minimum Rates), 5737-1977 (hereinafter – the minimum rate), unless the Court orders payment of a lower rate, for special written reasons.

(b) In giving an order for costs and in determining their amount, the Court or registrar shall consider, inter alia, the value of the relief disputed between the parties, and the value of the relief granted at the end of the trial, and may also consider the way that the parties conducted the hearing.

(c)….".

 

         

9.     As mentioned above, the Court can decide to charge a party for costs without determining their amount.  Such a situation is dealt with by regulation 513, which states that:

 

"If the Court or the registrar awards costs without determining their amount, the amount of costs will be the aggregate of the following, unless the Court or the registrar rules otherwise:

(1) Court fees, expenses for recording the Court protocol, copying it or photocopying it, expenses for serving Court documents pursuant to regulation 475a, stamp tax, witness pay, doctors' and other experts' fees, lodging and travel expenses for those who are in Israel, and any other expense legally listed in the suit file – as determined by the Chief Clerk of the Court according to the material in the file, with no need to file an application and ex partes;

(2) The rest of the costs of the trial as assessed by the registrar, according to a written or oral application, after the parties have been given a chance to make their arguments, if he is of the opinion that said costs were reasonable and necessary in order to conduct the trial".

 

10.   Thus, the regulations grant discretion to the Court on the question whether to award costs, as well as on the question of the amount of costs to be awarded.  However, meticulous reading of the above quoted regulations reveals that, practically, the limits of that discretion are not sufficiently defined.  When a court charges costs whilst determining their amount (regulation 512), although the regulation determines a minimum amount, from which it can also deviate (the minimum attorneys' fees set out in the Israel Bar Rules (Minimum Rate), 5737-1977 (hereinafter: the minimum fee; but see the Israel Bar Rules (Recommended Minimum Rate), 5760-2000)), there is no determination in the language of the regulations of the regular standard according to which it is supposed to award costs.  True, regulation 512(b) determines criteria, on the basis of which the Court can be guided in determining the amount of the costs, including the value of the relief and the conduct of the parties.  However, other than said instruction, it is not clear what the point of departure is regarding the amount of costs to be awarded.  That lack of clarity appears not only in the case that the Court determines the amount of costs expressly.  Indeed, regulation 513(1) sets out a list of types of costs whose amounts appear to be the amount the party paid for them, e.g. court fees, experts' fees, et cetera.  However, regarding the other types of costs – including attorneys' fees – the regulations do not determine their amounts; instead, they determine that a party will be charged with them if the Court is "of the opinion that said costs were reasonable and necessary for conducting the trial".  However, the language of the regulation does not clarify what that reasonableness is, and in what circumstances it will be decided that a certain expense – including attorneys' fees paid by a party – is necessary for conducting the trial.  In order to clarify what needs to be clarified, we must turn to, and examine well, the purposes and the principles at the basis of a decision to charge a party for costs of trial.  We now turn to that examination.

 

Awarding Costs

 

11.   Legal proceedings cost a lot of money.  That cost naturally includes the cost of conducting the proceedings for the court system.  True, in most proceedings the party who initiates the suit pays a Court fee.  But that fee, paid to the state treasury, is but a participation in the cost of the proceedings for the court system (see and compare HCJ 6490/05 Nader Mohammed Ali Sabih v. The Commander of The Army Forces in the West Bank (yet unpublished)).  It does not represent the actual cost of the proceedings.  In that state of affairs, there are countries in which the party who loses the legal proceedings is charged to pay considerable costs to the state, on principle (compare regulation 514 of the regulations).  Thus it is, for example, in Swiss law (see WALTER J. HAPSCHEID, DROIT JUDICIARE PRIVÉ SUISSE (1981) 295) and in German Law (PETER L. MURRAY & ROLF STRUNER, GERMAN CIVIL JUSTICE (2004) 341).  However, that is not the question before me, and we shall not examine it further.  In the cases before me, the question is of the expenses of the parties, and not of the Court.  Indeed, legal proceedings cost the parties a great deal of money, both in litigation expenses themselves and in the attorneys' fees that they have promised to pay and have paid.  Who must pay for these costs of the parties?

 

12.   Different legal systems have different solutions to that fundamental question.  In most of the systems, the rule is that the party who lost in the legal proceedings is charged with the costs of the party who won.  So it is in Israel (see YOEL SUSSMAN, SEDER HADIN HA'EZRACHI (7^th ed., Shlomo Levin ed. 1995) 540-541), and so it is in English law (NEIL ANDREWS, ENGLISH CIVIL PROCEDURE (2003) 825).  Thus is the law in additional countries such as Italy (MAURO CAPELLETTI & JOSEPH M. PERILLO, CIVIL PROCEDURE IN ITALY (1965) 247); in Germany (PETER L. MURRAY & ROLF STRUNER, supra, at 341); Sweden (RUTH BADER GINSBURG & ANDERS BRUZELIUS, CIVIL PROCEDURE IN SWEDEN (1965) 367-368, and Bengt Lindell, "Sweden", in INTERNATIONAL ENCYCLOPEDIA OF LAWS – CIVIL PROCEDURE (1996) 163); in Canada (BRIAN A. CRANE & HENRY S. BROWN, SUPREME COURT OF CANADA PRACTICE (1996), 83); and in Australia (B. C. CRAINS, AUSTRALIAN CIVIL PROCEDURE (3d ed. 1992) 486).  However, even though that is the common approach, it is not the only one.  In the United States, subject to a number of exceptions, a different system is common, according to which each party pays for his own expenses, whether he won or lost in the legal proceedings (GEOFFREY C. HAZARD & MICHELE TARUFFO, AMERICAN CIVIL PROCEDURE (1993) 96).  It seems that this is also the fundamental approach of Jewish law (see Eliav Shohatmen, haChiuv baHotsa'ot baPsikat Batei haDin haRabani'im [Court Expenses in Rabbinical Court Decisions], DINEI YISRAEL 10-11 (5741-5743) 263; see also Eliezer Shenkolewski, Hotsa'ot Mishpat, 12 TECHUMIN (5751) 335.  Indeed, every system has its advantages and disadvantages, and there is no arrangement of the subject that escapes criticism (N. Rickman, The Economics of Cost-Shifting Rules, in REFORM OF CIVIL PROCEDURE (A. A. S. ZUCKERMAN & ROSS CRANSTON eds. 1995) 327).

 

 

 

The Amount of Costs

 

13.   As mentioned above, the law in Israel has long been that, in general, the loser is the party that bears the winner's legal costs (see, e.g. Goldstein supra, at p. 496).  That is the well known rule of "if you lost – you pay the costs" (see CA 26/56 Ta'am haChayim Ltd. v. Asri, 11 PD (1) 550, 553).  We shall take a close look at that rule – which is uncontroversial in the case before me – and analyze its character.  That examination will reveal that in fact, the principle according to which the party who lost the proceedings must pay the winner's costs, in and of itself, is not necessarily a determination regarding the amount of those costs.  It is therefore not clear whether the charge is of costs that were actually paid, of reasonable costs, of minimal costs, or maybe punitive costs.  The question therefore presents itself again: when a party is charged with the other party's costs, what should the amount of the costs be?

 

14.   One possible way of solving this question is on the basis of characterization of the legal basis of awarding costs, and as a derivative of it, the question of the amount (compare AAA 10219/01 Mis'viv l'Agam Ltd. v. The Municipality of Ramat Gan, 57 PD (2) 97, 100).  Thus, for example, the charge for legal costs can be viewed as a tort obligation (ex delicto), or a "quasi-tort" obligation.  Barak, P. discussed this idea, stating that "the right to costs is granted to the winner by force of tort law.  When a person carries out a legal proceeding against another person, and it ultimately turns out that a reasonable person would not have carried out such a proceeding, he commits a tort against him.  At times the elements of the tort of oppression will be fulfilled (section 60 of the Torts Ordinance [new version]); at times the elements of the tort of negligence will be fulfilled (sections 35 & 36 of the Torts Ordinance [new version])" (see BAA 663/90 A. v. The District Committee of the Israel Bar, 47 PD (3) 397, 403; CA 243/83 The Municipality of Jerusalem v. Gordon, 39 PD (1) 113).  The awarding of legal costs by courts is understood as a "procedural 'shortcut', intended to make possible efficient realization of the substantive right to compensation" (see BAA 663/90 supra, at p. 403). If the charge for costs is essentially a tort obligation, its amount should make the entitled party whole (see DINEI HANEZIKIN – TORAT HANEZIKIN HAKLALIT (GAD TADESCHI, ed. 1976) 25).  The amount of costs that a court should award, then, subject to the duty to mitigate damage, is that of the real costs; in other words, expenses that were actually paid by the winning party.  However, this approach is not devoid of problems.  The main difficulty in it is the fact that in most cases, it cannot be determined that the proceeding was a baseless proceeding pursued maliciously that constitutes the tort of oppression, or that there was fault in pursuing it, to the point of negligence.  The loss of the legal suit does not, in and of itself, mean that the suit was misguided and unjustified from the very beginning (see Zvi Zylbertal, Hotsa'ot leTovat haMedina [Costs Awarded to the State], 15 MISHPATIM (5746), 389, 393).  Assigning liability ex post whilst assigning blame ex ante is problematic (Robert E. Keeton, Conditional Fault in the Law of Torts, 72 HARV. L. REV. (1959) 401).  In most cases it cannot be determined that by the very litigation of the proceeding the party acted unreasonably or unfairly (Shalev Ginossar, Abuse of Process, 17 ISR. L. REV. (1982) 401, 424); Shalev Genosar, Mitrad la'Yariv [Nuisance between Litigants], 2 MISHPATIM (1970) 221), and charging him to pay the costs of the other party on that basis raises difficulty (see Stephen Goldstein, The Influence of Constitutional Principles on Civil Procedure in Israel, 17 ISR. L. REV. (1982) 467, 497).  As has been shown, considerable difficulty arises from the attempt to deduce the amount of costs from the tort character of that obligation.

 

15.   The attempt to base awarding of costs on a punitive basis also runs into difficulty.  Awarding costs is not punishment of a party who has lost for dragging his adversary to court.  The amount of costs awarded in any case is not punitive, and should not be higher than the expenses that were actually paid out.  It was for good reason that the Supreme Court accordingly ruled that "awarding of costs is not intended to punish the party who lost his suit" (see CA 161/77 Haifa Assessing Officer v. Paz Oil Company Ltd., 31 PD (3) 505, 513) and that the Court has no jurisdiction to award punitive costs (CA(L) 551/83 Berger v. Ventura, 36 PD (1) 266, 270-271).  Indeed, the obligation to pay costs is a unique obligation.  It was rightly said that the jurisdiction to obligate a party to pay costs – an obligation ex lege in the regulations – is a "hybrid" obligation (see Ginossar supra, at p. 425; Zylbertal supra, at p. 394).  It is not a tort obligation par excellence, and it is not a punitive obligation.  It is an obligation by force of the law, which leaves discretion to the Court.  In any case, the amount to be awarded cannot be deduced from the very fact of the obligation to pay costs.

 

The Purpose of a Party's Obligation to Pay his Adversary's Legal Costs

 

16.   Indeed, the answer to the question what, in principle, is the amount of costs which the loser of the proceeding must pay, is to be derived from the purpose of the obligation to pay costs.  The principled decision regarding the obligation to pay legal costs is based upon a number of trends and basic principles which are to be balanced: one principle is ensuring the right to access to justice.  It is no longer controversial that said access is a basic right of the individual (CA 733/95 Arpal Aluminium Ltd. v. Klil Industries Ltd., 51 PD (3) 557; Yoram Rabin, Zchuyot Chevratiyot me'haSphera haDiunit, ZCHUYOT KALKALIOT, CHEVRATIOT U'TARBUTIOT BAYISRAEL [ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN ISRAEL] (YORAM RABIN & YUVAL SHANY eds. 2004) 765.  It also entails the entire public's interest in the rule of law and the enforcement of the law.  The question whether a party can afford the price of the proceedings, as well as the question whether he must pay the costs of the adversary party, thus has implications upon the right of access to the courts, and the ability to realize that right.  Over-deterrence of parties should be avoided (compare ANDREWS supra, at p. 827).  The second principle is the protection of the individual's property rights.  Obliging a party to pay for legal costs, whether his own, if he won the proceeding, or the expenses of the adversary party, if he lost the proceeding, can be considered an impingement upon the property of an individual.  Every rule regarding awarding of costs inherently includes objectives regarding protection of property rights.  The third principle is equality between the parties.  In light of the considerable cost of legal proceedings, every arrangement of awarding costs has a different affect upon parties with different financial ability.  Thus, for example, ordering a party to pay the costs of the other party is more meaningful for someone with little resources than for a person with money.  However, a rule according to which each party pays his own costs also acts differently upon parties with different financial ability.  The question arises, whether a given costs arrangement impinges upon the right to equality, or realizes it (see, e.g., Chen Barir, Bituach Hotsa'ot Mishpat [Legal Expense Insurance], 15 MISHPATIM (1985) 105, 131; HAZARD & TARUFFO supra, at pp. 209-210).  Last, arrangements for awarding legal costs are related to management of the resources of the judicative system, as it can be argued that the policy employed by the courts regarding awarding costs affects the number of proceedings heard in the courts, the essence of those proceedings, or the way they are litigated by the parties.  It can prevent baseless suits and cumbersome litigation tactics (compare ANDREWS supra, at p. 826, and Dirter Leiopold, Limiting Costs for Better Access to Justice –The German Experience, REFORM OF CIVIL PROCEDURE (A. A. S. ZUCKERMAN & ROSS CRANSTON eds. 1995) 265). 

 

Full ("Real") Costs or Partial Costs

 

17.   Different balancing points between the various rights and interests I have discussed can lead to different approaches regarding the question what amount of costs should the losing party be obligated to pay.  As a matter of principle, it seems that there are two main approaches on the issue: one approach is the "real" costs approach.  According to that approach, a party who litigated a legal proceeding and lost it, must pay the costs that the adversary party actually paid, regardless of their amount.  He must pay the costs of litigating the entire proceeding, including the attorneys' fees of the winning party, be their amount as it may.  That approach is, prima facie, based upon a sentiment of justice, according to which it is unjust if a person who won a legal proceeding loses money (see Zylbertal supra, at p. 394).  That approach involves deterring parties in certain cases from litigating baseless proceedings and from wasting precious judicial time.  It assumes a proper constitutional relationship between the property right of the party who won the proceeding (see further SHLOMO LEVIN, TORAT HAPROTSEDURA HAEZRACHIT – MEVO V'IKRONOT YESOD [THE THEORY OF CIVIL PROCEDURE – INTRODUCTION AND BASIC PRINCIPLES] (1999) 26-27).  Its objective is preventing a situation in which enforcement of a right whilst preserving the rule of law is not worth the cost (compare Lindell supra, at p. 163).  However, this approach has disadvantages of its own.  There is concern that awarding full costs will create unjustified inequality toward parties who do not have sufficient financial capability, as well as of over-deterrence of such parties, who will fear being obliged to pay the full costs of their richer adversaries – costs which will, naturally, be even higher than theirs.  Furthermore, there is concern that ultimately, awarding "real" costs will unnecessarily make the cost of legal proceedings more expensive, and in the words of Landau J., "this crawling inflation intended, prima facie, to benefit the winning party, will ultimately take its revenge against the entire public, by great increase in the expense of proceedings in the courts (see CA 621/68 Guttman and Sons, Insurance Co. Ltd. v. Hillel, 23 PD (1) 305, 308).  Against this background, great criticism has even been made of the arrangement in English law, in which there is jurisdiction to award actual costs, which are actually indemnity costs, and a custom of doing so (see ANDREWS, supra, from p. 831).  According to the criticism, the cost of legal proceedings, and the legal costs awarded in this way, are too high, and a reform in this field should be advanced, whilst placing a limit upon the amounts of costs awarded (see Lord Woolf's report, ACCESS TO JUSTICE – FINAL REPORT (1996) 78; see also A. A. S. Zuckerman, Lord Woolf's Access to Justice: Plus ça change…", 59 MODERN L. REV (1996) 773).

 

18.   The other approach regarding the amount of costs is that even though the party who lost the case must pay the costs of the party who won, that does not lead to awarding the full costs that were actually paid, rather, as a matter of principle, a lower amount should be awarded.  Lying at the basis of this approach is the idea that over-deterrence of parties should be prevented, while preserving the equality between them (compare CA 647/79 Iwon v. The Assessing Officer, 35 PD (4) 645).  It assigns great weight to the right of access to justice.  That approach also prevents unnecessary enrichment of the winning party – or his attorney – on the basis of awarding of excessive costs which are unnecessary (see CA 541/63 Reches v. Hertsberg, 18 PD (1) 120, 128).  It prevents seeing the judicial process as a "gamble".  At the same time, this approach also raises significant difficulties, as there is a certain extent of injustice when a party wins the case but does not win all of his costs.  That is an impingement upon his property right.  The rule of law, and law enforcement, are liable to suffer damage.  Awarding partial costs constitutes an incentive to litigate, and can encourage baseless proceedings, or improper conduct of the litigation.  It even involves a dimension of uncertainty, as the party cannot expect the amount of costs he will receive if he wins the case, and thus cannot plan his conduct in a sufficiently informed fashion. 

 

The Proper Amount of Legal Costs

 

19.   What, therefore, is the proper approach on this issue?  My answer to the question is: in principle, and as a point of departure, real costs are to be awarded to the party who won the case; in other words, the expenses that he actually paid or obligated himself to pay.  However, that is but a point of departure.  It is not the endpoint, as the Court must examine the amount of costs alleged, and verify that they are reasonable, proportionate and necessary costs for litigating the case, considering the entirety of the circumstances of the case.  The attorneys' fees and costs which were actually paid are thus relevant data in the framework of awarding costs, however, they are not exclusive data (compare CA 9535/04 The "Bialik 10" Faction v. The "Yesh Atid LaBialik" Faction (yet unpublished).  Costs are not a prize or bonus for the winning side, rather, a reimbursement of necessary and appropriate costs of the proceeding (compare CRAINS supra, at p. 488).  Thus, not necessarily every expense actually paid must be reimbursed, if it was not necessary for conducting the litigation and it is based completely upon the party's  overcautious conduct (compare Rechberger supra, at p. 71).  The costs must be proportionate to the proceeding itself and its essence, as that prevents putting excessive cost upon the loser, and encourages appropriate conducting of litigation on the part of winners (compare Lownds v. Home Office, [2002] 1 W. L. R. 2450, Woolf, J.).  Awarding costs and attorneys' fees is thus based upon employment of objective discretion in every case, each according to its circumstances.

 

20.   This approach, according to which real costs are to be awarded, subject to their being reasonable, necessary and proportionate, is based upon a number of reasons: first, in my opinion, such a rule reflects an appropriate synthesis of both aforementioned approaches, and it can realize the advantages of both of them, whilst minimizing their disadvantages.  The point of departure, according to which the costs that will be awarded will be real costs, advances justice toward the party who won the proceeding, and protects his property, as well as advancing, to a certain extent, efficient conduct of worthy cases in the courts.  On the other hand, subjecting that point of departure to the requirements of reasonableness, necessity and proportionality, considering the entirety of circumstances of the case, is intended to prevent a situation in which the costs awarded are too high, causing over-deterrence of parties, creating inequality, needlessly making legal proceedings more expensive, and impinging upon access to justice.  Second, although the language of the regulations does not determine the amount of damages to be awarded, in both regulation 512 and regulation 513 there are elements of the idea that it is not necessary for the amount of costs awarded to always be the full amount.  Thus, regulation 512(a) refers the adjudicator to the minimum rate for attorneys' fees in the Israel Bar Rules; regulation 513(2) determines that the amount of costs to be awarded shall be the amount that was actually paid if the registrar "is of the opinion that said costs were reasonable and necessary in order to conduct the trial".

 

21.   Third, it appears that, practically, the caselaw of this Court for years supports such a rule.  In the aforementioned CA 541/63, Berenson J. stated that "lacking a special reason to justify not awarding costs or awarding reduced costs for a party that won the case, it is appropriate to award payment of his full costs, so that he does not suffer a loss" (ibid, at p. 127).  This approach was repeated in additional judgments (see CA 208/66 Bank HaPoalim Ltd. v. Estate of Kali, 20 PD (4) 169, 170; CA 600/67 Haifa Assessing Officer v. Berger, 22 PD (2) 490, 491; CA 300/77 Rosner v. Binyanei T. L. M. Construction Company Ltd., 32 PD (3) 682, 689; CA 3769/97 Dahan (incapacitated) v. Dani, 53 PD (5) 581, 598).  At the same time, this basic principle was subjected to the standard of reasonableness:  first, on the basis of the assumption that the minimum rate of the Israel Bar constitutes a standard for the reasonableness of costs (see CA 309/59 Chevrat Mifalei Mayim Ltd. v. Fishov, 14 PD (2) 1121, 1140-1142; CA 600/67 supra, at p. 491; CA 403/78 Chevrat Mivnei Ta'asiya Ltd. v. Orenstein, 33 PD (1) 105, 108), but doubts were later expressed regarding the minimum fee as an appropriate standard for examining the reasonableness of the costs (CA 309/59 supra, at p. 1138; compare CA 77/85 The Electric Company – Jerusalem District Ltd. v. The Electric Company of Israel, 39 PD (2) 592; Yehuda Savir, Schar Tirchat Orech Din va'Yitsiot baBeit haMishpat – Gisha Chadasha, 28 HAPRAKLIT (1972) 477).  It has been said that "it is a minimum limit, and it seems that years ago it became meaningless in practical life" (see CA 9535/04, supra).  Note, finally, that the minimum rate's status today is but a recommendation, and the force of the reference in regulation 512(a) regarding this matter has in any case been weakened (see section 81 of the Israel Bar Law, 5721-1961 as amended in 5753; the Israel Bar Rules (Recommended Minimum Rate), 5760-2000).  The conclusion stemming from this caselaw, and from the weakening of the minimum fee, is that the point of departure in costs caselaw should be the expenses that were actually paid by the party – so that he does not suffer a loss (compare The Supreme Court President's Instruction of February 6, 1998, 51 PD (1) 1).  S. Levin J. discussed that, stating:

 

"There is no doubt that in the past, in certain cases, it became customary to award parties only a small part of the fees they paid their attorneys, and thus the party who won his case suffered a loss.  It is my opinion that the time has come to break free from that custom, and to award parties who have won their cases the appropriate amount, considering all the circumstances, even if in certain cases it is higher than the minimum rate (see CA 611/89 Drucker Zacharia Contracting Company v. Nachmias, 46 PD (2) 60, 68; CA 27/81 Module Mechanical Engineering Company Ltd. v. Imco Industries Ltd., 37 PD (1) 211, 213)."

 

The costs to be awarded are thus usually "real" costs.  However, these costs must be reasonable.  That reasonableness is no longer necessarily the same as the minimum rate in the Israel Bar Rules.

 

22.   The fourth reason for the conclusion I have reached is the fact that this standard is the common one regarding the amount of costs in many legal systems in which the rule is that the loser pays the winners' costs.  In them as well it has been determined that the point of departure is that the amount of costs to be awarded is the total of expenses actually paid, subject to their being reasonable, necessary and proportionate in the circumstances of the case (see PETER HURST, CIVIL COSTS (2d ed. 1995) 51-52).  So it is in Sweden (see GINSBURG & BRUZELIUS, supra, at p. 369); in Denmark (see Peter Fogh & Frants Dalgaard-Knudsen, "Denmark", INTERNATIONAL CIVIL PROCEDURE (CAMPBELL & CAMPBELL eds. 1995) 75, 115); in Australia (see CRAINS supra, at p. 488); in Austria (Walter Rechberger, "Austria", INTERNATIONAL ENCYCLOPEDIA OF LAWS – CIVIL PROCEDURE (1996) 70); and in South Africa (Roshana Kelbrick, "South Africa", INTERNATIONAL ENCYCLOPEDIA OF LAWS – CIVIL PROCEDURE (1996) 98).  Even English law, which is strict in its approach toward real costs, acknowledges a type of costs that, although they are real in character, must at the same time be reasonable and proportional ("standard costs" – see ANDREWS, supra, at p. 830).  Indeed, comparative law as well supports this conclusion.  Indeed, the appropriate rule is that the legal costs awarded be those that were actually spent, conditional upon their being reasonable, necessary and proportional, according to the circumstances of the case.

 

What are Reasonable, Necessary and Proportional Costs?

 

23.   There are different approaches regarding the determination whether an amount of costs in a given case is reasonable, necessary and proportional.  One way is to expressly determine in statute what reasonable amounts of attorneys' fees and expenses are, whereas if a party chooses to spend beyond that determined amount, he is responsible for it, and will not be awarded reimbursement for the extra amounts, even if he wins the case.  That, for example, is the approach in Germany, in which maximum amounts of costs are determined in law (MURRAY & STURNER, supra, at pp. 346-347).  However, that is not the way chosen by the Israeli regulations.  Israeli law takes a second approach, according to which the adjudicator has discretion to examine when the real costs are not reasonable, necessary or proportional in the proceedings, and to lower them accordingly.  What are the principles that guide this discretion?

 

24.   Attempts to lay out hard and fast rules will not succeed, due to the great scope of imaginable cases and circumstances, as well as those which, as reality teaches us, the future yet holds.  Nonetheless, in the language of the regulations, in the caselaw of the courts, and in comparative law (see, e.g. 10 HALSBURY'S LAWS OF ENGLAND (4^th ed.) pp. 21-22), one can find guidelines and considerations that may be taken into account, among the other considerations, in the framework of the objective examination of reasonableness of the real costs of a winning party: first, the minimum rate is not usually used as a standard for determining costs.  It is the bottom limit.  It is however clear that when the costs actually spent are within the amounts determined in the minimum rates, there is usually no difficulty determining that such costs are reasonable.  Second, the conduct of the parties to the proceedings, including the way they conduct the proceedings (see regulation 512(b) of the regulations; SUSSMAN supra, at p. 541; Zylbertal supra, at p. 392).  "The way a party acts is an important component in determining attorneys' fees and costs" (CA 9535/04 supra).  In principle, the losing party does not therefore have to bear extra costs which the winning party spent due to negligence in conducting the proceedings, or overcautious conduct which is not needed in order to attain justice or protection of his rights (compare Kelbrick, supra, at p. 98).  Third, the requested relief or the size of the disputed amount (see regulation 512(b) of the regulations; SUSSMAN supra, at p. 541); there must be a proportional relationship between the requested relief – and the relief granted – and the attorneys' fees and costs (see CA 77/85 supra; CA 9535/04 supra; and HURST supra, at p. 52).  Fourth, the complexity of the case and the time invested in preparing it can be considered (see CA 762/76 Katz v. The Menachem Amir Co. Ltd., 32 PD (2) 500, 502).  It was justly said that attorneys' fees are for the effort expended, and are not compensation (see CA 309/59 supra, at p. 1140).  It follows naturally that the question whether the handling of the case required special skill and expertise can be important.  Last is the importance of the case for the parties.  To the extent that the case's objective importance to the party is supreme, or even critical, it is natural that he will wish to expend more resources in the litigation, and such expenditure will be more reasonable.  The examination is therefore one of the "retrospective interest" of the parties to the proceedings (see Habscheid supra, at p. 296).  Furthermore, in the framework of the importance of the case, additional aspects related to the importance of the issue raised in the case and the public interest in it can be examined (compare CA 9535/04 supra).  Indeed, the list of considerations is not a numerus clausus.  Each case must be examined according to its circumstances.

 

25.   Before returning to the circumstances of the cases before me, and the applications for costs in them, two comments should be added: the first regards the burdens of proof when dealing with costs.  Indeed, the caselaw recognition of "real" costs as a point of departure means that the party claiming the costs is the one who must prove their actual amounts.  Thus, for example, by submitting the attorneys' fees agreement (see Supreme Court President's Instruction of February 6 1998, supra); detailing the work invested in the case; the basis for charging attorneys' fees, and evidence of actual payment or charging of such a payment.  If the actual expenses have been proven and detailed, the burden is transferred to the other party – who lost the case – to show why the requested amount should not be awarded, considering the reasonableness of the expenses, their necessity and their proportionality.  However, parties and their attorneys routinely apply for award of costs without detailing the requested expenses (and attorneys' fees).  In such a situation, the applicant for costs should be seen as leaving the decision regarding costs to the discretion of the court, which will determine the reasonable, necessary and proportional amount of costs in light of the circumstances of the case before it.  The other comment regards the status of the State as a party in the framework of applications to award costs and attorneys' fees.  Indeed, as a matter of principle, and if there is no other justification to decide otherwise, the State should be seen as no different than any other party regarding charging the State with costs.  True, charging the State with costs is like charging the entire public with them, but when the charge is justified on the merits and reasonable in its amount, the amount of costs should not be lowered simply since the State is the party bearing them, as otherwise, the winning party bears the cost of conducting the proceeding for the entire public.  Furthermore, there is indeed difficulty in proving actual expenses paid by the State, if it wins the proceedings and requests assessment of its costs.  However, in this context, there is no prima facie reason not to use the standard used in those cases in which a party does not prove its actual expenses, which is a standard of the reasonableness of the expenses considering the circumstances at hand.  When the State wins – as a party – in a proceeding, there is no justification for it not being awarded its reasonable costs, considering the entirety of the circumstances of the case.

 

Implementation in the Cases Before the Court

 

HCJ 891/05

 

26.   Petitioner in this proceeding argues that the expenses it actually paid total 103,739 NIS.  Evidence to prove these costs was submitted, including detail of the billed hours and attorneys' fees, and receipts for expenses paid.  Respondents in this petition do not dispute the amount of expenses actually paid.  That is, therefore, the point of departure.  Examination of the rest of the circumstances of the case reveals that although the attorneys' fees are higher than those determined in the minimum rate, that does not, as aforementioned, indicate unreasonableness.  The value of the relief petitioner petitioned for was considerable, and it regarded a necessary component of petitioner's business activity, as well as the import quota for the entire 2005 year.  According to the petition, "importation of milk powder is an integrative part of the regular production scheme of the milk business in Israel . . . every delay in allocating import quotas is liable to cause severe breakdowns in supply of milk products to the local market, especially in the summer months, in which milk production decreases".  It was argued before me that the value of the import license totals "tens of millions of NIS".  Against this background, it is clear that petitioner chose to conduct a legal proceeding on the issue, and needed appropriate legal counsel.  It is also clear that there is a reasonable proportion between the value of the disputed issue and the attorneys' fees paid.  The petition itself is 25 pages long, and includes extensive description of the prior proceedings and the relevant legal framework.  There is no claim, or basis to claim, that petitioner was negligent in its conduct, or took legal steps and paid large unnecessary expenses.  However, the fact that the entire proceeding ended without a hearing on the merits, a short time after its filing in this Court, is to be granted weight.  It is further noted that petitioner did not attach its attorneys' fees contract, and it is thus impossible to know the basis of the hourly fees of the attorney and the legal clerk who worked on the case.  Those figures are important in assessing the reasonable attorneys' fees in the circumstances of the case.  Last, despite the importance of the issue, it seems that the case itself is not particularly complex – factually or legally – and revolves around the legality of the public agency's conduct in light of prior proceedings.  In that state of affairs, my conclusion is that respondents should be charged with costs the amount of which is reasonable in the circumstances of the case (5,825 NIS) and attorneys' fees paid by petitioner totaling 60,000 NIS.  Indeed, the amount of costs may be higher than the amount of costs awarded at times in various proceedings before this Court.  However, the test for that is not arithmetical, rather substantive.  As awarding of costs is based, in light of the aforementioned, upon examination of actual expenses in each specific case and their reasonableness, the amount of expenses, in and of itself, cannot be compared to anything but the amount in cases that are similar.  As in this case actual expenses were claimed and proven at the amount stated above, the award of costs should be based upon that proven amount.

 

 

CA 2617/00

 

27.   Respondents no. 1-3 in this proceeding submitted, as evidence, a "bill".  There is no detail before me of the work done in its framework.  No attorneys' fees agreement was attached.  The basis for the charge is not clear.  Furthermore, there is no evidence of actual payment of the requested amount.  In such a situation, it is difficult to adopt the amount argued by respondents no. 1-3 as actual expenses.  Against that background, it appears that reasonable and proportional attorneys' fees for filing the response to the proceeding initiated by appellant totals 10,000 NIS, and that is the amount appellant shall be obliged to pay respondents no. 1-3 in this proceeding.  I further add that despite the arguments of respondents no. 1-3 regarding appellant's conduct, I do not award an amount higher than that stated above.  Even though appellant is charged with costs, that does not lead, in and of itself, to an award of high costs – "exemplary costs". 

 

28.   The result is that respondents no. 1-4 in HCJ 891/05 shall pay petitioner's costs totaling 5,825 NIS and attorneys' fees totaling 60,000 NIS.  Appellant in CA 2617/00 shall pay the attorneys' fees of respondents no. 1-3 totalling 10,000 NIS.

 

Given today, 23 Sivan 5765 (June 30 2005).

 

Yigal Mersel, Judge

 

Registrar