Right to Privacy

Hashavim H.P.S. Business Information, Ltd. v. The Courts' Administration

Case/docket number: 
HCJ 5870/14
Date Decided: 
Thursday, November 12, 2015
Decision Type: 
Original
Abstract: 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

In the Supreme Court sitting as the High Court of Justice

 

HCJ 5870/14

 

Before:                                    The Honorable Deputy President E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice U. Vogelman

           

 

The Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                    versus

 

The Respondent:

 

                                    The Courts’ Administration

                                   

                                    A petition for Order Nisi

 

Date of session:           11 Av 5775; July 27, 2015

 

Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

                                    On behalf of the Petitioner

 

                                    Adv. Avi Milikovski

                                    On behalf of the Respondent

 

Adv. Avner Pinchuk

                                    On behalf of the Association for Civil Rights in Israel

 

Adv. Assaf Pink

                                    On behalf of the Association for Digital Rights in Israel

 

 

 

Judgment

Deputy President E. Rubinstein

 

  1. This is a Petition challenging the decision by the Courts’ Administration (hereinafter: the Respondent), which requires signing a “Letter of Commitment” in order to gain access to its database of judgments and decisions. The “Letter of Commitment” includes, among others, a prohibition against indexing the information in a manner that would allow finding it on internet search engines such as Google and Bing. 

 

Background and Prior Proceedings

 

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

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

 

  1. On April 28, 2008 the Petitioner signed, per the Respondent’s demand, a letter of commitment whereby it obligated to post only documents that may be published subject to any law, and to not bring any civil claims against the courts’ administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013 the Respondent reached out the Petitioner and required, in order to continue the Petitioner’s access to the judgments database run by the court’s administration, the signing of an updated letter of commitment. Section 10 of the updated Letter of Commitment states that “I am aware that granting access to the information in my possession through open web search engines, such as the ‘Google’ web engine and others, may in itself constitute violation of privacy or constitute an unlawful publication, and thus I commit to take all necessary steps in order to prevent indexation of decisions and judgments passed through it in these web search engines.”

 

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

 

The Petitioner’s Claims

  1. The Petitioner’s arguments attack the decision by the Respondent on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is section 70 of the Courts Law [Consolidated Version], 5744-1984 (hereinafter: “The Courts Law”), which sets publishing of judgments as a rule and confidentiality as the exception. To the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of the authorization is particular serious, so it was argued, because we are concerned with primary legislation that infringes both the principle of a public hearing and the rights of the Petitioner – the right to free occupation, the right to property and the principle of equality. According the Petitioner, the decision was made by the Courts’ Manager, who is not authorized to do so. It was maintained that the Courts’ Manager fills a managerial role that is not necessarily held by a judge, and whose responsibility is limited to executing administrative arrangements set by the Minster of Justice under section 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 18, 2014 – is not within the Courts’ Manager’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in section 83(a)(2) of the Courts Law, which stipulates that “the Minister of Justice may enact in regulations – […] publishing courts’ judgments.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegates to the Courts’ Managers, such as hearing cases during recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters relating to publishing identifying details in courts’ judgments and decisions (hereinafter: Justice Englard Committee), and this still sits in consideration. The appointment of the committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate the authority to regulate this issue to the Courts’ Manager.

 

  1. As to the procedure by which the decision was made, it was argued this was made with a number of flaws. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes upon its right to make arguments as part of a proper administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a matter of mere formality, in a manner that does not substantively uphold the right to make arguments. Finally, that Petitioner maintains that the reasons given by the Respondent does not address the arguments raised during the hearing, and does not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not meet – substantively – the duty imposed on any administrative authority to give reasons.

 

  1. On the discretion level, the Petitioner has several arguments. First, it claimed that the decision was made for an unworthy purpose. This is so because the general public, as opposed to individual people, has no right to privacy. One’s right to privacy is considered by the court upon the submission of a motion to make a case confidential and there is no place – according to the Petitioner – to provide additional protection to the general public, at the expense of other values such as a public hearing. It was secondly argued, that the current state of the law grants paramount status to the principle of a public hearing, which prevails the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725- 1965. Thirdly, it was maintained that the decision by the Respondent violates the principle of equality because the meaning of the decision is limiting the access to judgments only to professional jurists, rather than the general public. In the Petitioner’s approach, this harms the group of unrepresented adjudicating parties who rely on themselves for legal representation. Fourth, it was argued that the decision is an infringement of the Petitioner’s freedom of occupation, as the operation of Takdin Light constitutes a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive mean, such as instructing the courts to reduce the publication of personal details which are not necessary for the decision.

 

The Respondent’s Arguments

  1. According to the Respondent, the principle of a public hearing does not require making court judgments accessible through web search engines, and in any event limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions on using the Courts’ Administration judgments database were already included in the Letter of Commitment from 2008, as to which the Petitioner makes not claim of lack of authority. It was also argued that the Respondent is subject to the Privacy Protection Law, 5741-1981 by virtue of it being an “administrator of a database” as defined by section 7 of that Law.

 

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

 

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

 

The Positions of Those Seeking to be Joined as Amicus Curiae

  1. In this case, two motions to be joined as amicus curiae were submitted. The first motion was submitted by the Association for Civil Rights (hereinafter: the Association), and the second by the Movement for Digital Rights (hereinafter: the Movement.) The two motions objected to granting the Petition, and these are their reasons: the Association’s motion describes how technological development brought upon a sharp change in the level of litigating parties’ exposure, though the legal rule remained as it was. This is still true while when the right to review judgments existed in the past, the infringement of privacy in times before the internet – a time when judgments were published in printed copies alone – was in effect highly limited (this is referred to as “practical obscurity”). Thus the Association argues that the new technological reality requires a shift from the binary approach of “private or public” to an approach of information accessibility. This approach considers not just the publishing of information but also the impact of publication. For example, the Association notes the report by the Committee for the Examination of Opening Israeli Courts to Electronic Communication, which mentioned the increased exposure of litigating parties as one of the considerations against direct broadcasting of court hearings. The Association also notes the “aggregation problem” whereby the accumulation of details of information – which each in itself raises no significant objection to its publishing – creates a real violation of privacy.

 

  1. The Movement argues, that publishing judgments in “closed” databases such as Takdin fully realizes the right to review, while only somewhat infringing upon privacy right. On the other hand, publishing judgments in “open” databases such as Takdin Light – the judgments therein may be located through web search engines – equally satisfies the right to review but severely violates the right to privacy. As to the claim regarding a lack of authority, the Movement claims that the Respondent’s authority is established in regulation 5(b) of the Courts and Labor Courts Regulations (Review of Files), 5763-2003 (hereinafter: Files Review Regulations) which states that “in a general permit for review, the Courts’ Manager may set any condition or arrangement necessary for the balance between the need to review and the potential harm to litigating parties or to third parties due to the review…” The Movement maintains that the Petitioner’s argument regarding flaws in exercising the administrative discretion must be rejected. It claims that permitting indexation in the Takdin Light website causes severe harm to the privacy of litigating parties, and the possibility of removing the document from the website for a fee does not qualify the harm. It was additionally argued that the operation of the Takdin Light website is particularly egregious because the Petitioner takes active steps to make the website appear as one of the first hits presented by the web search engines. So, for purposes of illustration alone, searching the name “Shnikav” in Google’s search engine produces reference to Takdin Light’s site on the first results page, despite the fact that there is no judgment which addresses a person of that name. It was argued that the referral to the Takdin Light website is par for the course of the Petitioner’s active steps which may mislead a person seeing that there are judgments for that same Shnikav, should that person fail to click the link and realize the mistake. We shall note here that the latter argument is not directly related to the petition at hand, but is raises a weighty issue which we see fit to address below.

 

Discussion

  1. In the hearing before us, the Petitioner’s attorney argued that though the Respondent does indeed have the authority to set technical limits for companies given access to the courts’ judgments database, but it is not within its authority to set substantive restrictions – which is the case before us. The importance of web search engines to the general public, who uses them as a nearly exclusive source for its legal knowledge, was emphasized. It was also emphasized that we are concerned with a matter of policy that necessitates an organized legislative process. Therefore, it was argued, the recommendations of the Justice Englard Committee must be made before making significant changes to the current situation. The Respondent’s attorney recognized that the demand to prevent the indexation prevents not just the ability to search litigants’ names, but also the ability to search “legitimate” legal terms such as “breach of contract in good faith”, but he claims that at this time it is technologically impossible to only partially prevent the process of indexation. The Respondent’s attorney further emphasized to us that the conclusion of the Justice Englard Committee’s work is yet unforeseeable and that it is necessary to take intermediate steps in order to prevent the harm currently caused to the privacy of litigating parties. The Association’s attorney stated that the state holds many databases, such as the land registry, the public’s full access to which via web search engines would cause a grave infringement to the public’s privacy, this despite the fact that even now it is possible to receive information from such databases through individual requests to the relevant bodies. The Movement’s attorney emphasized that the Petitioner’s conduct leads not only to over exposure of litigating parties, but also creates a misrepresentation whereby the name of a person appears in a judgment, even when reality is completely different (see paragraph 12, above). It was also argued, that the Respondent’s policy does not cause a real harm to the Petitioner, because the latter may become in possession of the judgments even were its access to the Respondent’s database to be blocked – this by copying the documents published on the Respondent’s website or by any other means.

 

Decision

  1. The matter before us raises complex questions as to the intersection between law and technology and serves as an important reminder to us – judges – that the judgments we write while aspiring to accomplish justice may, by virtue of their publication, cause injustice to litigating parties (see my decision in CA 438/14, John Doe v. The Israeli Database for Car Insurance (February 6, 2014) (hereinafter: the Car Insurance Database case.) This case is a testament again, as other cases in our times, that the law lags behind technological progress and the legal problems it poses, it chases them but does not catch up. This is the case in areas of the internet and the virtual, and this is the case in matter of intellectual property and others (see Michal Agmon-Gonen, The Internet as a safe Harbor:  Legal Regularization In Light of the Technological Possibilities for Circumvention and the Global Nature of the Net, Law, Society and Culture – Legal Net: Law and Information Technology 433 (2011), Amal Jabarin, The Role of Law in Regulating the Internet through the Perspective of Economics Approach to Law, Kiryat HaMishpat 7, 233 (2008)). In the introduction to the book Intellectual Property: Interdisciplinary Reviews (eds.: Miryam Markovitz-Bitton and Lior Zemer (in print)) I had the opportunity to say: “the chase after technology and its tentacles is not unique to the world of intellectual property. It applies to many areas in the law, in particular is the connection between the great virtual world to criminal law, defamation and many others, and the issues that arise from each of these.” This case reveals a conflict between the freedom of information and the public’s right to know (including corporate information) and the right to privacy, which elicits “genetic sympathy”, based in values, in order to prevent as much as possible that one’s past follow them indefinitely, and the computer after all does not forget.

 

  1. In this context, recall the judgment by the European Union Court of Justice which compelled Google to remove a link to a story that included details of an offence committed by a person many years prior (C-131/12, Google v. Agencia Espanola de Proteccion de Datos). Some have termed this the “right to be forgotten” (see Yehonatan Klinger, The Right to be forgotten? Apparently Not in Israel, in the blog Intellect or Insanity (February 2, 2015) http://2jk.org/praxis/?p=5368)). It should be noted that the “right to be forgotten,” as defined by the European decision, requires that the search engine examine individual requests to remove links, but the decision does not expand as to the considerations which must guide decisions regarding such requests. As a result, it is hard to say whether – according to the European Court – there is a “right to be forgotten” also from official and lawfully published case law. So far it seems that American law has not adopted the “right to be forgotten” (see the U.S  Court of Appeals for the Ninth Circuit in Garcia v. Google Inc., 786 F.3d 733, 745-46 (2015)). This comes from a long-standing general position of the superiority of free speech (see Steven Bennet, the “Right to be Forgotten”: Reconciling EU and US Perspectives, 30 Berkeley J of Int’l L. 161, 169 (2012)). In the Israeli context, we shall note that a certain aspect of this issue was regulated in the Criminal Registration Law, 5741-1981, which sets guidelines for running the criminal registration database – including the process of expunging (deleting registration) after 10 years have passed since the end of period of limitations on the conviction had elapsed (section 16 of the Law). The Law’s explanatory notes state that “the basic principle behind the proposal is that – aside from unusual matters – one should not be remembered by their wrongdoing for their entire lives and must be instead permitted to turn over a new leaf and that full rehabilitation and fully reintegration into society must be encourages.” (Bills 1514, 216; and see Nahum Rakover, The Status of an Offender who has Served His Sentence (5767-2007)).

 

  1. Back to the matter before us, the issue raised is whether indeed the step taken by the Respondent meaningfully and effectively contributes to protecting the right to privacy, and whether this contribution justifies the accompanied harm caused to the principle of a public hearing. The decision in this case will follow these steps: first, we shall explore whether the Respondent’s decision was made within its authority. Then we shall explore the process of making this decision and whether it maintained rules of natural justice. Finally, we shall examine the administrative discretion at the basis of the decision and its reasonability.

 

Authority

  1. The principle of administrative legality – which is the foundation for administrative law – instructs us that an administrative authority is limited in its action to the four walls it was granted by the legislature (HCJ 1/49, Bejerano v. The Minister of Police, IsrSC B 80 (1949) (hereinafter: the Bejerano case); HCJ 1405/14, Professor Salwin v. The Deputy General Director of the Ministry of Health (2014)). This is in contrast to a private citizen, who is free to do as she pleases so long that there is no law to limit her. In other words, the difference between the private and public entity is the premise as to the lawfulness of their actions. The administration requires individual permission, whereas the private citizen is free in the absence of a specific prohibition. Saying “From any tree of the garden you may eat freely; But from the tree of the knowledge of good and evil you shall not eat” (Genesis 2:16-17). The legislative authorization is not a mere technical legal requirement, but rather the administrative authority needs it in order to secure the public’s trust in its activity, which is funded by public resources (see Baruch Bracha, Administrative Law, vol. 1, 35 (5747-1986)). As said by the scholar Zamir: “The principle as to administrative legality is necessarily rooted in the actual nature of democracy. Democracy grants sovereignty to the people. The people is that who grants the government and any other administrative authority, through laws, all the authorities they hold and they hold but the authorities granted to them by law.” (Itzhak Zamir The Administrative Authority vol. A 50 (5756-1996) (hereinafter: Zamir). Moreover, in plain language free of legal jargon, an administrative authority’s exceeding of its authority holds totalitarian characteristics – law at one end and reality at the other. However, the administrative authority must not be paralyzed in its operation to the benefit of the many, and we shall return to this. As a general rule, that administration is granted the discretion as to whether and how to use the authorities granted to it, but there are instances where such discretion is particularly narrow, to the extent of imposing duties on the administration to exercise its authority (LCrimA 7861/03, The State of Israel v. The Local Council of the Lower Galilee, para. 16 of Deputy President Cheshin’s judgment (2006); Daphna Barak-Erez Administrative Law vol. A 216 (5770-2010) (hereinafter: Barak-Erez.))

 

  1. Authorization for the actions of an administrative authority need not be found explicitly in primary legislation. Rather, secondary legislation may also be recognized as a source for authorization (Zamir, 131.) However, where the administrative action infringes basic rights – authorization sourced in secondary legislation is insufficient. This was mandated by the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty: “One is not to violate the rights accordance by this Basic Law save by means of a law…” (emphasis added – E.R.) This provision was expanded through case law to include basic rights enshrined in other statutes (EA 92/03, Mofaz v. Chairman of the Central Elections Committee, IsrSC 57 (3) 793, 811, para. 17 of then Justice Matza’s judgment (2003)). A similar rule applies also to “primary arrangements” which require – due to their importance – anchoring in primary rather than secondary legislation. In the words of President Barak:

“It is a basic rule of the public law in Israel that where a government activity is based in a regulation or an administrative instruction, it is appropriate that the general policy and principal standards that guide the basis of the action be sourced in primary legislation which permits the regulation or the administrative instruction. In more ‘technical’ terms, this basic rule means that ‘primary arrangements’ that set the general policy and the guiding principles must be established by Knesset legislation, whereas the regulations or the administrative instruction must set only ‘secondary arrangements.’” (HCJ 3267/97, Rubinstein v. The Minister of Defense, IsrSC 52(5) 481, 502, para. 19 of President Barak’s judgment (1998); see also Gidon Sapir, Primary Arrangements, Iyunei Mishpat 32(1) 5 (5770-2010)).

 

  1. One of the issues that often lands on judges’ desks is the level of explicit required in an authorizing statute. That is – how specific must the statute be regarding of the administrative authority’s permissible activity. Recognition of implicit authority – authority that is not written explicitly into the language of the law – stems from common sense and life experience, which teach us that reality is infinitely more complex than the ability of a flesh and blood legislature to foresee in advance. Strict insistence over a high level of specificity may thus lead to debilitating the authorities of a public administration and to obstructing normal life. The words of scholar Margit Cohen are apt here:

“No legislative system, not even the most comprehensive one, can provide full responses to any possible situation, particularly when in a modern state, whose needs and conditions change rapidly. A lack of regulation may exist even when the system is still in the process of creation and coming together. Further, a system may be characterized by refraining from regulation through primary legislation, which is rotted in geranial parliamentary weakness or deliberate failure from addressing matters of great political sensitivity. When it is possible that the law does not regulate particular areas, the outcome of this must be examined in terms of the executive authority. One possibility may be avoiding action. However at the same time there is force to the argument that the government must act even in the absence of legal arrangements and that its power to do so results inherently from its nature and from its role.” (Margit Cohen, The General Authorities of The Executive Authority 8 (5763-2002)).

 

Recall here the decision by President Beinisch in HCJ 10203/03, The National Census v. The Attorney General, IsrSC 62(4) 715 (2008), where it was noted that the “level of specificity” must be determined according to the circumstances of the matter, including the “nature of the infringed right and the reasons behind it, the relative social importance of the right, the level of its infringement, its social consequences, the identity of the infringing authority and the context” (p. 82, see also Barak-Erez, 125). A mirror image of sorts to this holding was also established in HCJ 3933/11, Maccabi Health Services v. The Minister of Health, para. 35 of Justice Arbel’s judgment (2014), where it was held that a “level of specificity” must be low where it is necessary in order to authorize the administration authorities to protect basic rights. I will emphasize – as in other cases – common sense. It must be examined often whether the circumstances support strictness or a flexible approach, while inferring the intent of the legislature appropriately. The authority serves the public. Thus, to the extent that it is recognized that its authorities are exercised in good faith in order to provide service, the Court does not bar its actions. If, god forbid, it is clear that irrelevant considerations, arbitrariness, or lack of good faith taint the authority’s action, the approach would of course be different. The authority is not the master of the individual but rather its servant, as well as the servant of society as a whole, and balancing its authorities must carry that always, including when considering principled questions such as protecting one’s privacy and minimizing the harm as much as possible within the contours of the law.

 

  1. And from the general to the specific. The Courts’ Administration is regulated constitutionally in Basic Law: the Judiciary and in the Courts Law (Consolidated Version) 5744-1984. Section 24(1) of Basic Law: The Judiciary lists “the regulations of the administration of the courts, the establishment of such regulations and the responsibility to execute them” among the matters for which “instruction shall be set by law.” Section 82 of the Courts Law states that “(a) the Minister of Justice shall set the administration regulations of the courts and shall appoint, with the consent of the President of the Supreme Court, the Courts’ Manager, whether a judge or not; (b) the Courts’ Manager shall be responsible to the Minister as to the execution of the administration regulations”; see HCJ 4703/14, Sharon v. The President of the Supreme Court (November 30, 2014), paragraphs 10-11. Among others, it was said in paragraph 11 there that “the Manager… is charged with the administrative operation of the system…” and that he has additional authorities, as listed there. Do such authorities cover our matter as well?

 

  1. As recalled, the Respondent’s decision conditions continued access to its database upon barring the indexation of judgments found in the database. The practical meaning of this decision is that the Petitioner is barred from posting the pages of Takdin Light to web search engines and from attracting potential clients by doing so. The prevention of posting to web search engines may cause severe harm to the Petitioner’s business, as most of the visitors to its site arrive there through a “Google” search (it claims, as mentioned, that these are 94% of the visitors to Takdin Light, whose activity is responsible for about 20% of the Petitioner’s income.) It is clear that limiting the Petitioner’s ability to publish its services is a violation of the freedom of occupation itself (see HCJ 4000/93, Canval v. Israel Bar Association, para. 9 of President Barak’s judgment (1997)). The publication is an essential component in the chain of business activity, which of course includes many stages and cannot be reduced solely to the process of sale to end consumers. Harms to the chain of business activity – whether in the planning, production or marketing phases – may amount to a violation of the freedom of occupation. As a side note, I should point out that preventing commercial advertizing and publications may also constitute a violation of the freedom of speech, as said by Justice Dorner: “Commercial speech is not a step child to free expression, but it is among its organs” (HCJ 606/93, Kidum Entrepreneurship and Publishing Inc. v. The Broadcasting Authority, IsrSC 48(2) 1, 10 (1994)). It is true, that a violation of free commercial speech is less significant that harm to free political speech (HCJ 5118/95, Meir Simon Inc. v. the Second Authority for Television and Radio, IsrSC 49(5) 751 (1996); HCJ 15/96, Thermokir Horashim v. the Second Authority for Television and Radio, IsrSC 50(3) 397 (1996)), but this does not mean that commercial speech may be violated thoughtlessly. Therefore, before us is a not insignificant violation of the basic rights of a private body by a public body. Such violation requires authorization in primary legislation.

 

  1. As was already previously written, the Respondent does not point to a specific source of authorization for the basis of its decision, but rather argues that as a general rule there is no need for authorization in law. This is because, arguably, the law does not mandate publishing judgments on web search engines. For our purposes here, and without setting anything in stone, I am willing to assume that indeed the Respondent is not obligated to publish the judgments on web search engines, and that it is possible – from the law’s perspective – to be satisfied with publication through other means. However, the mere fact that the Respondent is under no duty to publish the judgments on search engines does not mean, necessarily and inherently, that it is permitted to prevent this from private bodies. The status of the Respondent’s authority to publish judgments – whether it is permissible or obligatory – is irrelevant to the issue of its authority to prevent publication by private bodies. These are two distinct actions – publishing and preventing publishing – each of which seemingly requires statutory authorization. Another interpretation – whereby it is within the authority of an administrative authority to prevent activity which it is not statutorily obligated to commit on its own – does not fit common sense and means the emptying of the principle of legality, which mandates that the individual is free to do as she pleases in the absence of any other legislative provision. We thus find, that the Respondent is not exempt from presenting a statutory source to authorize its decision. As written, the Respondent’s decision to limit the Petitioner’s access to the judgments database violates its freedom of occupation – and this, without authorization in primary legislation, must not be permitted.

 

  1. The Respondent argues that the Petitioner signed the letter of Commitment in 2008 demonstrates that it was within its authority to limit access to the database. Without causing offense, I believe this is an argument that is hard to accept. First, the letter of Commitment from 2008 is not similar to the current one. The first letter of Commitment is substantially limited and it primarily limits publications that are prohibited by any law. It seems that is not a meaningful limitation, as opposed to the current prohibition against indexation of judgments. In other words, it makes sense that conditioning access to the database was within the authority so long as the requirement was obeying the law, but not so when the requirement exceeds this. Second, and this is the main point, the Petitioner’s consent to signing a letter of Commitment is irrelevant to the question of authority. The authority requirement is not dispositive and the administrative authority may not exempt itself from it, even with the agreement of the parties. Recall, that one of the rationales at the foundation of the authority requirement is the people’s control, through its representatives, over the public administration. It is clear that the administration may not free itself from this control through the consent of one individual or another out of the general public. Appropriate here are the words of the scholar Shalev:

“Clearly, a contract that exceeds the lawful powers and authorities of the authority, as established by the authorizing law, is an unlawful contract that is therefore void. A contract may not expand the authority’s powers, or grant it authorities, or allow it to act outside of the bounds of its lawful authority. This is the distinction between the public administrative authority (aside from the state, whose powers and authorities are unlimited) and the individual: the authorities of the public authority and its capacity are restricted and thus her contracts as well require a statutory source.” (Gabriela Shalev Contracts and Tenders by the Public Authority 49 (1999); see also Barak-Erez, vol. 3 259.))

 

  1. The Movement for Digital Rights wished to defend the Respondent, and to find the source of the authority for its decision in regulation 5(b) of the Files Review Regulations. This is the language of the section:

“(b) The Courts’ Manager may establish in a general permit for review any condition or arrangement that is necessary in order to balance the need for review and the harm that may be caused to litigating parties or a third party due to the review, including redacting of details, limiting the number of reviewers and taking steps to prevent the identification of parties or people. Additionally, the Courts’ Manager may refuse to give a general permit of review or establish conditions or arrangements for its implementation considering the necessary resource allocation.”

 

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

 

  1. A different possibility that was presented was recognizing the Privacy Protection Law, 5741-1981 as a source behind the authority for the Respondent’s decision. According to this explanation, the Respondent is the “operator of a database” as defined by section 7 of this Law. Therefore, as revealed by the Respondent’s arguments, it is obligated to comply with section 8(b) of the Law: “No person shall use the information in a database that must be registered according to this section, but for the purpose for which the database was established.” This should be joined with section 17 of the Law whereby “an owner of a database, a holder of such database or the operator of a database, is each responsible for safeguarding the information in the database.” This is the root, it was argued, of the authority at the basis of the Respondent’s decision. I am afraid that this interpretation is not devoid of difficulties. The first difficulty is technical in its nature, and it concerns the question whether the Respondent operates a database for purposes of section 7 of the Law. If so – as the Petitioner’s attorney has noted – its judgments database is not registered in the register of databases. The second difficulty – and this is the main one – goes to the matter of the purpose of the Respondent’s database. On its face, and with no party claiming otherwise, the judgments database exists for the purposes of realizing de facto the principle of a public hearing. The Courts’ Administration collects the judgments, publishes them on its website and allows commercial websites direct access to them – all for the purposes of benefiting the public, so that “the wise may become wiser still” (Mishley, 9: 9). If so, does the indexation of judgments constitute a use that exceeds the purpose of which the database was established for? I believe that the answer is not in the affirmative. The indexation of the judgments constitutes in itself a “step up” in making legal material accessible to the general public, thus generally serving the purpose for which the database was established. Still, the “step up” in making judgments accessible creates a parallel increase in the violation of litigating parties’ privacy with the human sensitivities involved, and it is certainly possible that the administrative authorities must give thought to this and seek solutions (and of course this would naturally apply to the Justice Englard Committee) – however the administration must do all this only with permit and authority. This ends our discussion in the level of the authority, and a source for authorizing the Respondent’s decision – in its face, is nonexistent. Beyond the necessary scope, we shall continue our examination of the decision along the two other levels – the level of the procedure for making the decision and the level of the discretion upon which it relied.

 

Procedure

  1. After discussing the authority requirement that derives from the principle of legality, we shall address the requirement for proper administrative due process. Strict adherence to administrative due process is essential, and there is no need to elaborate (see Barak-Erez 262-63): meeting the requirements for a due process protects the values of fairness and equality; improves the quality of the administrative decision; allows the public to influence the decision in a democratic manner; ensures public trust in governance and administration; allows effective review over the operations of the administration; and of no less importance – prevents corruption, the creation of appealing loopholes and a slippery slope in the style of countries and administrations to which we do not wish to resemble. The duty to hold an administrative due process includes, among others, holding a hearing for parties who may be affected by the decision (HCJ 598/77, Eliyahu Deri v. The Parole Board, IsrSC 32(3) 161 (1978); LCA 2327/11, John Doe v. John Doe, para. 22 of Justice Danziger’s decision (2011)), giving reasons for the decision made (HCJ 142/72, Shapira v. The Israel Bar Association, IsrSC 25(1) 325 (1971); Yoav Dotan, Administrative Authorities and Elected Bodies’ Duty to Give Reasons, Mechkarei Mishpat 19 5 (5762-2002) (hereinafter: Dotan)), and exposing internal documents that substantiated it (HCJ 5537/91, Efrati v. Ostfeld, IsrDC 46(3) 501, 513, para. 21 of then Judge Cheshin’s opinion (1992); AAA  4014/11, Eid v. Ministry of Interior, para. 28 of Justice Barak-Erez’s judgment (2014)).

 

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

 

  1. As for the duty to give reasons, the Respondent noted in its letter from August 12, 2014, among others, that the rationale behind the decision was the desire “to protect the privacy of the litigating parties, private information about whom was exposed on the internet to any inquiring eyes” and that it “is permitted to put in place reasonable conditions to proportionately balance the principle of a public hearing and the interest in guarding the privacy of litigating parties before granting access to servers.” On its face, this is sufficient for meeting its administrative duty to give reasons for its decisions. Indeed, in a legal sense, in order to fulfill the duty to give reasons, there is no requirement that the reasons are lawful or based in law. See for this issue, the words of the scholar Y. Dotan:

“Even a decision whose reasons are completely wrong – is a reasoned decision. The flaw in the decision is a substantive flaw on the merits, but it is not a flaw to the procedural duty to give reasons. When the authority gave reasons – and even reasons that are completely wrong, the reasoning ‘played its part’ and it is now possible to subject the decision to review on the basis of the reasons given.” (Dotan, 50).

 

These things are presented for the completeness of the legal picture, but in simple terms, god help an authority whose reasons are wrong and god help a public the reasons of whose servants are wrong, because – in other words – they may not be performing their duties adequately.

 

  1. And now – to the Respondent’s decision not to disclose the ITA opinion, upon which it relied its policy as to the indexation of judgments, to the Petitioner. As noted above, the representative of ITA refused to send to Petitioner the opinion (see the email from November 21, 2013.) Seemingly, there is no substantive reason not to disclose the legal opinion since it does not concern national security, confidential methods of action or protecting the privacy of a third party (Barak-Erez 506-508.) And still, and without setting things in stone, it should be noted that it is not impossible that the ITA opinion constitutes “internal consultation” for the purposes of section 9(b)(4) of the Freedom of Information Law 5758-1998, which exempts the administrative authority from providing such information (AAA 9135/03, The Council for Higher Education v. Ha’aretz Newspaper Publishing, IsrSC 60(4) 217 (2006)). It therefore appears that the issue is whether the Respondent met its administrative duty to permit the Petitioner to review documents that informed its decision (see HCJ 7805/00, Aloni v. The Jerusalem City Comptroller, IsrSC 57(4) 577, para. 18 of Justice Procaccia’s judgment (2003)). Let us note, that the Petitioner continued its long email correspondence with the Respondent without referencing the matter again, in a manner that may be understood as the Petitioner’s abandoning its request to review the opinion. We shall further note that the Respondent did properly give reasons for its decision (see paragraph 26, above.) As known, not every flaw in an administrative decision would inherently and necessarily lead to its voidance (CA 4275/94, The Stock Exchange v. The Torah Literature Database Management Ltd., IsrSC 50(5) 485, 509 para. 22 of then Justice Orr’s opinion (1997); AAA 2339/12, Shohat v. The Kfar Saba Local Committee for Planning and Construction, para 49 of Justice Shoham’s judgment (2013)). It therefore seems, without making any determinations in the matter, that it would not be appropriate to void the decision because of the Respondent’s refusal to disclose the opinion.

 

The Discretion

  1. So far we have been concerned with the source of the authority to make the decision, and the way in which it was made. We now open the “black box,” and look inside at the decision itself and its content. At the outset, we shall note that this Court does not rush to intervene in the discretion of an administrative authority, and particularly not where we are concerned with decision that are within its professional expertise (HCJ 338/87, Margaliot v. The Minister of Justice, IsrSC 42(1) 112, 116, para. 6 of Justice Bach’s judgment (1988); HCJ 7510/05, Lotan v. the Minister of Industry, Commerce and Employment, para. 23 of Justice Joubran’s Judgment (2006)). Still, we would not be performing our duties properly were we to shut our eyes to administrative decisions that substantially and extremely exceed the range of reasonability. The requirement of reasonability it closely linked to the authority requirement, and both are founded upon the democratic rationale that was reviewed above (see para. 15.) As noted, the administrative authority is limited in its actions to the four walls defined by the legislature – as the representative of the general public. It is easy to see that those four walls do not house decisions that are extremely unreasonable, as this was not the legislature’s intent. As was said by then Justice Barak:

“The balance between the different interests was charged by the legislature to the Second Respondent, and so long as it weight appropriate considerations and attributed proper weight to them, we shall not intervene. But if the considerations of the Second Respondent are based in a lack of good faith, arbitrariness, discrimination or unreasonableness – we shall not hesitate to intervene.” (HCJ 148/79, Sa’ar v. The Minister of Interior, IsrSC 34(2) 169, 178, para. 8 of his judgment (1979)).

 

Clearly, balancing conflicting interests is no simple task, which is often likened to an acrobat’s walk of a tightrope with the interested parties pulling at either end of the rope. Therefore, with the assumption of good faith, only a serious divergence from the range of reasonableness shall give rise to judicial intervention in the balancing decision made by the administrative authority. (HCJ 910/86, Ressler v. The Minister of Interior, IsrSC 42(2) 441, 518, para. 7 of President Shamgar’s judgment (1988)). In the case before us, the necessary balance is between the right to privacy of litigating parties on one hand, and the principle of a public hearing and the Petitioner’s freedom of occupation on the other. Note, that we are not required to make categorical determinations as to whether privacy must prevail or whether a public hearing and the freedom of occupation should. Were I to follow my heart, I believe I would have proposed to prefer privacy. But instead the question before us is whether the benefit to the protection of privacy, which results from the Respondent’s concrete decision (which prohibits the indexation of judgments by bodies granted direct access to its judgment database), outweighs the harm caused to the principle of the public hearing and the freedom of occupation due to the decision (see and compare CA 8954/11, John Doe v. Jane Doe, para. 121 of Justice Sohlberg’s judgment (2014)).

 

  1. Let us open with the right to privacy, which was said to “draw the line between the individual and the general public, between ‘me’ and society. It creates a space where one is left alone, to develop her ‘self’, without another’s involvement” (HCJ 2481/93, Dayan v. the Commander of the District of Jerusalem, IsrSC 48(2) 456, 470, para. 16 of then Deputy President Barak’s judgment (1994)). Indeed, one’s privacy is one’s castle. This castle is exceedingly chipped away at with the progress of technology and there are those who believe privacy is a thing of the past (A. Michael Froomkin, The Death of Privacy, 52 Stan. L. Review. 1461 (2000); see also Yair Amichai-Hamburger and Oren Paz, Anonymity and Interactivity on the Internet: The Right to Privacy as a Multi-Dimensional Concept, Privacy in The Time of Change 201 (5772-2012)), and in practical reality this is not far. The ability to photograph and record on a mobile phone that is accessible to many, and in technologically advanced societies almost to everyone, has drastically reduced privacy. However, this does not mean that the value of protecting privacy is lost to the world. Indeed, the new era brings with it new tools – with both blessings and curses – but I believe this does not necessitate complete abandonment of human dignity and his good name. The words of the scholar M. Birnhak are apt here: “Technology has a complex relationship with the legal right to privacy, similarly to the relationship between the right and social norms. At times technology affects the content of the social norm and/or the legal right, and at times the law and/or social norms influence technology. At times the law cooperates with technology and at times they compete.” (Michael Birnhak, Private Space: The Right to Privacy Between Law and Technology 45 (2011); see also Michael Birnhak, Control and Consent: The Theoretical Foundation of the Right to Privacy, Mishpat U’Mimshal 11 9 (2008)). The proper relationship with technology is not a binary. Instead we must seek a middle ground that allows us to enjoy the fruits of technology while limiting the harm to individual rights, which often follows it. This resembles the tale in the Talmud Bavli (Hagiga, 15, 72) about Rabbi Meir who studied under Elisha Ben Abuyah, one of the Tannaim who was considered heretical and hence was referred as the “Other One” in the Talmudic language. The Talmud commends Rabbi Meir for “eating the content and discarding the shell.” In other words, Rabbi Meir wisely adopted the positive sides of his teacher without taking also the other side. Jewish law considers privacy protection, among others, through the concept of “harmful watching” – an injury one causes another by looking into his domain. About the verse “What benefit is there in Jacob’s walk through Israel’s houses,” (Arithmoi, 24, 5) Rashi says instead “What good is in the houses – for no doors are direct at each other.” Bilam commends the People of Israel for their conduct to protect the right to privacy (Eliyahu Lifshitz, The Right to Privacy in Jewish Law and in State Law, Weekly Parasha 33 (2011); see also the Talmudic Encyclopedia, vol. 8 “harmful watching – Heizek Reiya”; Gidon Klogman, On Harmful Watching, Iyunei Mishpat 5 425 (1975-76); Sharon Aharoni-Goldenberg, Privacy on the Interment in the Prism of Jewish Law, HaPraklit 52, 151 (2013)). Let us recall once more, that the matter here does not necessitate weighing the right to privacy as a whole, but only the added harm to the privacy of litigating parties, which may be caused when indexing of judgments mentioning their names is permitted to bodies with direct access to the Courts’ Administration’s judgments database.

 

  1. The principle of a public hearing is an individual subset of the ideology of transparency more broadly, about which I wish to say a few words. The policy of transparence enjoyed a boost in the past years through the Freedom of Information Law, 5758-1998. This Law’s primary novelty is in the message that public information is public property – rather than the property of the administration, who holds it in trust. The Law’s explanatory notes state that: “… the seeker of the information needs not specify in the request for information, which is submitted in writing, the reason for which the information is sought… This approach is rooted in the recognition that because the information is in effect an asset among public assets, there is no significance to the question why the information is necessary to its owner.” (Explanatory Notes for section 7 of the Freedom of Information Bill, 5757-1997, Bills 2630; see also Hillel Sommer, The Freedom of Information law: Law and Reality, HaMishpat 8 437 (5763-2013)). Similar and well-known comment is found in the case law, as early as in HCJ 142/70, Shapira v. The Jerusalem District Committee of the Lawyers’ Bar, IsrSC 25(1) 325, 331 (1971), where then Justice H. Cohen wrote:

 

“The claim that in the absence of statutory duty to disclose, one may conceal rather than reveal – may be made by an individual or a private corporation… but it cannot be made by a public authority who fulfills duties under law. The private domain is not as the public domain, as the former does as it may will. If it wishes, it provides and if not it refuses. Whereas the latter is wholly created in order to serve the general public, and it has nothing of its own: all it has is put to it in trust, and in itself it has no rights or duties additional to those, or separate and different to, those which derive from such trust or that were granted to it or imposed upon it by virtue of statutory provisions.”

 

Indeed, as noted in the case law and in the Law’s explanatory notes, receiving public information is a “property” right which does not require special reasons, but I wish to point out to one benefit of opening government databases to the general public. Databases are an asset that may be useful to young entrepreneurs who may derive great public benefit from the information granted. Take for example, on the public level, the organization “The Workshop of Public Knowledge” which launched internet tools such as “Open T.B.A.” (www.opentaba.info) - a project for mapping city construction plans in a user friendly manner, which relies on information from the Israel Land Authority; or the “Open Journalism” project (www.opa.org.il) which makes accessible a multi dimensional database of newspapers which were scanned over the years by the national library and made it searchable. Such projects and others similar to them illustrate the added value the public brings when the gateways to public information held by administrative authorities are open to it. Of course, granting public information is not a process free of challenges and concerns (see Aharon Barak, Freedom of Information and the Court, Kiryat HaMishpat 3, 95, 105 (5763-2003), but public officials must also remember the benefits to it. And now specifically to the principle of a public hearing: the case law mentions three reasons to protecting this principle (see LCA 3614/97, Adv. Dan Avi Yitzhak v. The Israel News Corporation Ltd., IsrSC 53(1) 26, 45, para. 6 of Justice Goldberg’s judgment (1998) (hereinafter: the Avi Yitzhak case); HCJ 5917/97, The Association for Civil Rights in Israel v. The Minister of Justice, para. 18 of President Beinisch’s judgment (2009)). First, recognizing a public hearing as an integral part of the public’s right to know – a right which naturally derives from the existence of a democracy. As put by James Madison, who was among the drafters of the United States Constitution and a President of the United States: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” (Letter by Madison to William Barry – an American statesman – dated August 4, 1822.) Second, the principle of the public hearing contributes to the improvement of the quality of legal products, as a result of exposing the proceedings to the scrutiny of the general public. Apt here are the words of Justice D. Levin (CrimA 334/81, Haginzar v. The State of Israel, IsrSC 36(1) 827, 832 (1982):

 

“A major rule it is in the law, that the court adjudicates in public. This is a pillar of both criminal and civil procedure, and one of the most important means to ensure an impartial trial and a due process. On one hand, this principle opens the court up to exposure to the public and to its judgment insofar that conducting an objective trial, in judgment and discretion. On the other hand, the litigating parties, too, stand before the public, who hears everything and being aware of the facts presented to the court, may – according to the information in its possession – appropriately offer evidence to refute them. Therefore, parties may beware and be cautious to suggest to a presiding judge facts that are not reliable or have not been corroborated.”

 

Third, the principle of the public hearing is essential to the existence of public trust in the judicial system, and this additionally to the first two reasons already mentioned, and without connection to them. The sentence appearing in The Federalist (as translated by Aharon Amir, edited by Yael Hazoni, with the introduction by Ruth Gavison and Ellen Shapira, 2001), on page 388, whereby the judicial branch is the least threatening of them all to the political rights enshrined in the United States Constitution, as it “Has no influence over either the sword or the purse,” is well known. Put differently, the judiciary does not set the budget and does not head the public administration (The Federalist Papers, No. 78.) Another important element was added to this famous quote – and it is paramount in our matter – by Justice Felix Frankfurter of the Unites States Supreme Court, and it is that the Court indeed lacks a purse or a sword, but it does have at its disposal the public trust. (Baker v. Carr, 82 S. Ct 691 (1962)). The principle of the public hearing is not foreign to Jewish law (see Yaron Unger and Yuval Sinai, Public Hearing in Jewish Law, The Center for the Application of Jewish Law, (5775-2014)). We shall mention here the words of scholar Haim Cohen in his book The Law (p. 443), that the sources of Jewish law effectively enshrine the principle of the public hearing, without explicitly naming the concept:

“The widow who asserted exercising the commandment of impregnation by her husband’s brother ‘went to the elderly at the gates’ (Deuteronomy 25, 7). And ‘Boaz came to the gate’ and purchased all that Elimelech had and took Ruth of Moav as a wife before ‘all the people at the gate and the elderly’ (Ruth 4, 1 and 11). The judges (and the police men) were commanded to be present at ‘all of your gates’ (Deuteronomy, 16, 18) and they brought the prodigal son to justice ‘to the elderly of his city and the gate of his place’ (there, 21, 19). Ezra called his court to convene ‘on the street of the house of God,’ under the sky (Ezra 10, 9), and the Sanhedrin sat in its chambers at the Temple, which it convened with all 71 members. But when it sat with 23 members to adjudicate it sat at the ‘entrance to the Temple Mount’ or the ‘entrance to the auxiliary’ (Sanhedrin 88, 2), a place that was open to all the people, as the auxiliary was ‘filled with Israel’ (Yoma 1, 8).”

 

All these sources have a similar trend – holding law at the most public location out of recognition that justice must be seen and not just made (R v. Sussex Justices, Ex Parte McCarthy, 1KB 256 (1924)).

 

  1. The third value relevant to our matter is freedom of occupation. Freedom of occupation is one of the only basic rights which was enshrined in a specific basic law – Basic Law: Freedom of Occupation. Even before this Basic Law was enacted – on 11 Shvat 5709 – this Court ruled that any citizen may work in any vocation he sees fit to choose (see the Bejerano case). It was said of freedom of occupation that it “derives from the autonomy of private will. It expressed one’s self-definition. Through freedom of occupation one may designed his personality and his status and contribute to the social fabric. This, under the values of the State of Israel as a democratic state as well as under its values of a Jewish state. Occupation makes one unique and gives expression to God’s image within him (see Rabbi Eliezer’s Mishna (Analau edition, New York, 1934), parasha 20, on p. 366)” (HCJ 1715/97, The Israeli Investment Managers’ Guild v. The Minister of Finance, IsrSC 51(4) 367, 385, para. 15 of President Barak’s judgment (1997)). Indeed, the principle of freedom of occupation is required by the State of Israel being a Jewish and democratic state. The sources of Jewish law recognized work as a primary and constitutive component of human life. Here are some of the words of Rabbi Nathan: “How to love work? It teaches us that a person must love work rather than hate it, because as the Torah was given to us by  covenant so has the work was given to us by covenant (emphasis added – E. R.), as it was said ‘six days you shall work and you completed all your work and the seventh day rest for the sake of your God (Exodus 20, 9)” (Noscha A, chapter 11). The value of work appears also in the words of the Rambam who stated that “it is better to remove the skin of animals than to say to the people ‘I am a great scholar, I am a Cohen – you must support me.’ And thus under the orders of our sages, some of whom where great scholars and some of whom chopped wood and carried the beams and fetched water for gardens and made iron and coals and who did not ask from the public and did not receive when given.” (Rambam’s Mishna Torah, Matnot Aniyim, 10, 18 Halacha.) And see also in the Q+A of Mishpatei Uziel (Rabbi Ben-Zion Meir Chai Uziel, Israel, The 20th Century) vol. 4, sign 44, whereby one of the commandments performed through Jewish work is that the employer “finds (for the employee – E. R.) work to strengthen him that he does not need from others and does not ask, and this was called ‘and you held him.’” (Leviticus, 25, 35). However, similarly to the Israeli law (HCJ 5026/04, Design 22 v. The Ministry of Employment and Welfare, para. 6 of President Barak’s judgment (2005)), Jewish law recognizes that freedom of occupation – despite its significance – is not an absolute right. This particularly when we are concerned with unfair competition, which is prohibited as “going into the art of his colleague” (see Talmudic Encyclopedia, vol. 23 “going into the art of his colleague”). Thus, in the Q+A Igrot Moshe (Rabbi Moshe Feinstein, the United State, 20th Century), Yoreh De’ah, part 2, sign 98, describes a case of a butcher who joined a guild of butchers with the agreement that the shall not compete with them. Eventually, the butcher left the town and opened a butchery in a nearby town. It was decided that the butcher was prohibited, under his own commitment, from doing so, as the commitment outweighed the freedom of occupation under the circumstances.

 

  1. As mentioned, balancing between values is not easy task at all. For such purposes the Court requires the three tests of proportionality, which make concrete the general concept of reasonability (see Barak-Erez, vol. 2, 771.) The first test is the test of the suitable means, which examines the likelihood that the administrative decision will indeed achieve its purpose. The second test is that least restrictive means test, which considers the existence of alternatives that realize the same purpose, but are less restrictive of individual rights. Finally, the third test is the test of the proportional means, which examines the weight of the benefit of reaching the purpose against the weight of the cost of harm to individual rights. A reasonable administrative decision is one that meets all the tests describes. Failing to pass one of these tests means that a decision is not reasonable. Recall, that extreme unreasonableness may lead to judicial intervention that would void the decision.

 

  1. The proportionality principle – on its three tests – appears in Jewish law as well. Here are a few brief examples. First, the suitable means test. In the RIBASH Q+A (R. Itzhak Bar Sheshet, Spain and North Africa, 14th -15th centuries) sign 484 discusses the issue of incarceration of debtors – those who do not pay their financial debts. The RIBASH rules that such incarceration is legitimate only where the debtor hold assets and that it is likely that the incarceration would persuade him to pay his debts. On the other hand, when we are concerned with a person of no means, incarceration is ineffective and in any case should not be used (see also Rambam’s Mishna Torah, The Laws of Lender and Debtor, chapter 2, Halacha 1; Menachem Elon Human Dignity and Liberty in Enforcement (5724-1964)). Second, the application of the least restrictive means test can be seen in the rulings of the Rambam in his writing of Mishna Torah, Laws of Murderer and Protection of Life, chapter 1. The Rambam finds that where one chases after another in order to kill him – and this is the source for the “sentence of the pursuer” – any person in Israel is commanded to stop the pursuer and even kill him if need be (Halacha 6.) Rambam qualifies this, by finding that the permission to kill the pursuer exists only where there is no way to achieve the goal – rescuing the pursued – through less harmful alternatives in terms of the pursuer (Halacha 7). In his words:

“… Since the pursuer would be killed, if it is possible to save him for his limbs – such as striking him with an arrow or a rock or a sward and that his arm may be amputate or his leg may be broken or that he may be blinded this must be done, and where it is impossible to save the other but for killing the pursuer then they must kill him.”

 

Third, the proportional means test: the constituting source for this matter is mentioned in Masechet Avot, chapter 2, Mishna 1 – “and the cost of a Mitzvah must be calculated against its benefit.” We must balance conflicting considerations, when each may be correct and appropriate in itself. In the words of Rabbi Shlomo HaCohen Rabinovitz (the first Admor of Rdumsk) (Poland, the 19th century) in his essay Tiferet Shlomo “One may have a level and scales of justice in his hands must always think of the cost of a Mitzva against the benefit of it and the benefit of an offense against the cost of it. When often it seems fitting in his heart to perform a Mitzva that he may pray with greater holiness and cleanliness, in order that he may forget his offense against the laws of the Torah on the other hand. In conclusion, here are the words of Rabbi Moshe Chaim Lucato, Italy-Holland-Israel, 18th century) in his well known book Mesilat Yesharim, chapter 3.

 

“And I see a person’s need to be exact and to weigh his ways everyday as the great merchants who always navigate their businesses so that they may not go bad, and he sets times and hours for it so that it is not random, but with great regularity, as it is the father of productivity. And sages may their memory be a blessing instructed us explicitly of the need for such calculations, and this is what they said (Bavli, Baba Batra, 78): therefore the governors may say let us calculate, and those who control their nature and impulses shall say let us calculate the calculations of the world – the cost of a mitzvah against its benefit and the benefit of an offense against its cost.”

 

  1. Let us turn to applying these tests to the case before us. As noted, we must begin with the question whether the means realizes the end. In other words, does the Respondent’s decision not to permit the indexation of judgments by the Petitioner indeed protects the privacy of the litigating parties. I am afraid that the answer is not in the affirmative. The Respondent wishes to prevent the location of judgments through web search engines by using search terms, but this is not the outcome of its decision, so it seems. The Respondent’s decision limits the indexation of judgments by those granted direct access to its case law database, but it does not effectively limit its indexation by third parties who may post them to its site.

 

  1. In order to understand the issue and its significance, we must discuss two factual elements. First, the likelihood of passing on the judgments to a third party. One of the central characteristics of the information age is the speed and ease with which information passes from one person to another with the push of a button. This is true for information protected under copyrights (Niva Elkin-Koren, Copyrights and Competition – from a Market of Copies to a Regime of Policing, Din U’Dvarim 485, 541 (2006); see also Niva Elkin-Koren, The New Brokers in the Virtual ‘Market Square’, Mishpat U’Mimshal 6, 381 (2003)), let alone where we are concerned with judgments which inherently are subject to no copyright limiting their dissemination (see section 6 of the Copyright Law, 5768-2007). Let us further recall that the Petitioner is a commercial corporation who profits from disseminating judgments. That is, passing the judgments to a third party is under no doubt, but should assumed to be fact. Second, indexation by a third party: it is important to emphasize that indexation is the default and that preventing indexation is an active choice made by the owner of a website. As a result, almost any third party who may publish the judgments on its website – for instance a website of a law firm or a news site – would inherently result in their finding on web search engines. It is unnecessary to note that the privacy of a litigating party is violated as a result of the mere finding of a judgment – which includes his personal details – on a web search engine, and the identity of the website to which the search engines refers does not negate this infringement. Therefore, it is reasonable to assume that ever where the Respondent’s decision to take effect – the search of a litigating party’s name on a search engine would still lead to his judgment, were it to be published by anyone.

 

  1. Having said all this, there is still room to believe that the Respondent’s decision would prevent the indexation of some judgments, this because, one may think, not all the judgments published in the Petitioner’s website would be copied and published on websites of third parties. Let us recall that the Petitioner’s website includes most of the decisions and the judgments handed down in courts in Israel. Those judgments that are not copied are “spared” the indexation process thanks to the Respondent’s decision which prevents the Petitioner from indexing the judgments on its website. Seemingly – small consolation, but there is room for doubt here as well. Naturally, the most problematic judgments in terms of the privacy of litigating parties may be those which create the greatest interest among the general public. Hence the concern that judgments containing sensitive and personal details about litigating parties will not remain on the Petitioner’s website as a “stone unturned” (Bavli, Avoda Zarah, 8, 2.) In any event, a complete “seal” or close to it is not what we are concerned with here at all.

 

  1. We therefore learn that the Respondent’s decision seemingly does not fulfill its purpose, or sadly – does so partially and insufficiently. This simply means that this point is greatly important. Let us continue to the next test – the least restrictive means test. This test as well does not shed a positive light on the Respondent’s decision. As noted, the Respondent’s goal – which is positive in its essence, on a human and value level – is the prevention of infringement to the privacy of litigating parties, which is caused by locating their judgments on web search engines. By doing so, the Respondent draws a “line in the sand” and states that posting on the internet (for instance on the Respondent’s website) in and of itself is proportionate, but this is not the case for locating the judgments in web search engines. We addressed above the practical aspect of the distinction between the internet and web search engines and later we shall also address the aspect of the legal norm. We shall now consider the issue of alternatives.

 

  1. I myself believe, that there are several alternative means that realize the purpose in a similar manner (and perhaps even more so) without harming the Petitioner’s freedom of occupation or the principle of a public hearing. Apt for this issue the words of then Justice Orr (the Avi Itzhak case 82, para 46 of his judgment):

“Another aspect which the Court must consider when deciding whether to prohibit a publication or to temporarily suspend it, goes to the existence of other authorities granted to the Court, which may satisfy the ‘need’ to protect one’s good reputation. The principle is that the use of the means of publication prohibition must be ‘a last resort’. This is a drastic means, whose harm to the public hearing is difficult and egregious. Using this means may prevent, to a great extent, the effective publicness of hearings. Therefore, the Court may seriously consider the matter of whether alternative means that are less restrictive and which may realize the purpose of preventing unnecessary harm to the good reputation of a plaintiff, exist.”

 

Indeed, it seems the proper way to prevent publication of sensitive information in web search engines does not include the prohibition of some indexation or another, but it must simply be ensured that sensitive information is not found in a judgment, even before it is published to the general public – and this may be done in several ways. The Respondent may conduct refresher trainings to the administrative and legal staff on issues of privacy in writing judgments; it is possible publish the judgment to the litigating parties alone, several days before publishing on the internet, while providing the parties with opportunity to seek the redaction of irrelevant personal details (this is the path of American law. See Fed. R. Civ. P. 5.2(e); fed. R. Crim. P. 49.1(e); Fed. R. Bankr. P. 9037(e); see also Conley, Datta & Sharma, Cyberlaw: Sustaining Privacy and Open Justice, 71 Md. L. Rev. 772, 781-82; see and compare Australian law Rule 2.29 of the Federal Court Rules 2011, made under the Federal Court of Australia Act 1976; it is not unnecessary to mention that it is possible to find American judgments through the web engine “Google Scholar”.) In this context, I shall note that in the United States there are courts which use an algorithm that scans the judgment – before its publication – and searches for sensitive information that may be contained in it such as ID numbers (see, for example, in the State of Florida “Online Electronic Records Access Application” 27, 2014, which appears on the Florida courts’ website – www.flcourts.org.) Additionally it is possible to write judgments and pleading papers in formats that do not leave a possibility for leaking personal details that are not necessary, and this is not a pie in the sky (see Yehonatan Klinger, Protection of Privacy in Writing Judgments: The Defect is in the Design, on the blog Intellect or Insanity, https://2jk.org/praxis/?p=5387 (March 29, 2015)). And in the Vehicle Insurance Database case, I had to opportunity to say the following:

“I recall from my days as a judge in the District Court a long time ago, that I wondered why the names of parties are published in family cases. Indeed that was close to two decades ago, and there were yet to be the developed databases there currently are or the computerization, and judgments therefore were not in the public domain to the same extent. Today, when by easy typing and minimal effort it is possible to access all of case law, the potential harm to those whose health details may be exposed is greater.”

 

Indeed there are things that today are thoughts of the heart and tomorrow are reality. All the steps mentioned above – which are not mutually exclusive of each other – may reduce the infringement upon the privacy of litigating parties without harming the Petitioner’s freedom of occupation or the principle of a public hearing.

 

In conjunction to the steps mentioned, there are additional steps that may be promoted on a legislative level. Thus, it is possible to initiate a proposal that would establish that the names of litigating parties be published by initials alone, as it is done to some extent in other countries (see, for example, in France: Commission Nationale de I’informatique et des libertes (CNIL), Deliberation N. 01-057 of 29 November 2001, and in Belgium – Commission de modernisation de l’ordre judicaire, “Rapport consacre a la question de la publication des decisions judiciaries: La plume, le Pelikan et le nuage,” 30 Juin 2014.) It shall be noted that a similar proposal was indeed raised in Israel, but it did not successfully make its way through the legislative process (The Courts Bill (Amendment – Non-Mention of Names in Judgments), 5768-2007; see also Tomer Moskovitz, Protection of Privacy in Courts’ Publications – Is it Proper to Publish Names in Judgments?, Mishpatim 18 431 (1989). Let us recall here that the legislative branch is aware of the harm done to the privacy of litigating parties as a result of publishing judgments, and operates in order to balance between this harm and the principle of a public hearing. This, section 10(4)(b) to the Family Courts Law, 5755-1995 states that most family cases be adjudicated confidentially and in closed hearings, and as a result their publication (and see section 70(a) of the Law) is in the absence of parties’ names but as “Anonymous v. Anonymous” (and see on the other hand the Courts Bill (Amendment – Requiring Publication of Judgments and Decisions of Family Courts), 5771-2010; see also Rina Bogush, Ruth Halperin-Kedari and Eyal Katvan, The ‘Hidden Judgments’: The Impact of Computerized Databases on the Creation of the Legal Knowledge Body in Israeli Family Law, Iyunei Mishpat 34 603 (5771-2011)). A Similar provision, in regards to juveniles’ cases, is found in section 54(2) of the Juvenile Law (Adjudication, Penalty and Manners of Treatment) (Amendment n. 14), 5768-2008 (see also the Court’s Bill (Amendment – Prohibition of Publication of Minors’ Names in Civil Proceedings), 5769-2009). Another examples is amendment n. 77 of the Courts’ Law which states that “No one shall publish the name or identification number of a litigating party who claims recovery for bodily injuries…” From the collection of all this it appears that this is not a legislative vacuum in which the Respondent operates but in regards to an issue to which the legislature’s eye is open “from the beginning of the year and until the end of it” (Deuteronomy 11, 12) and it is possible that there may be more to come.

 

  1. And now to the third stage in the proportionality test, where narrow proportionality is examined. Does the benefit of the decision outweigh its cost? Does the protection extended to the privacy of litigating parties as a result of the Respondent’s decision is worthy of the harm to public hearings and to freedom of occupation? Is the “narrow equal the harm” (Book of Esther, 7, 4). This test is on its face redundant in light of our prior holdings whereby no source of a lawful authority was found for the decision (para. 25), it seems not to have realized its purpose (paras. 37-38) and it was selected despite the availability of less restrictive alternatives (para. 40.) However, I shall briefly address this test.

 

  1. Section 68 of the Courts Law mandates that as a rule, “a court shall adjudicate in public”, at the same time the Law includes various circumstances where publishing in regard to a judicial proceeding may be prohibited (see LCrimA 1201/12, Kti’i v. The State of Israel, para. 18 of Justice Hendel’s judgment (2014), which reasons the principle of a public hearing the while giving a narrow interpretation for exceptions.) Indeed publishing judgments, inherently, causes conflict between the right to privacy and the principle of a public hearing. The Law authorizes the judge to determine on a case by case basis according to the circumstances of the matter at hand (see my opinion in LCA 8019/06, Yediot Aharonot Ltd., v. Meirav Levin, para. 5 (Oct. 13, 2009)). As my collogue, President Naor often says – the law derives from the facts. The Respondent’s decision, on the other hand, summarily privileges the right to privacy, without giving space to the significant difference between different judgments – criminal or civil, judgments and interim decisions, different trials and others. Furthermore, the “immunity from indexation” which the Respondent’s decision provides – and as noted, there is doubt whether judgments are not to find their way to web search engines anyway (paras. 37-38 above) – is not limited to the personal details of litigating parties, but applies to the entire judgment as a whole. It is here that we should mention that the Israeli legal system belongs, in many of its principles, to the tradition of the common law, where judgments constitute a significant part of the law itself (see section 20 of Basic Law: The Judiciary). I would not be overstating to say that in the absence of access to judgments – there is no updated possibility of knowing what the law is in Israel in its entire scope. In other words, The Respondent’s decision may limit intrusive searches into the lives of litigating parties and therein lies its benefit, but this may also prevent a renter of an apartment from knowing what a lack of good faith in performing a contract means in the updated interpretation of this Court.

 

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

 

In Conclusion

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

 

  1. It should be noted that this decision is not at all endorsement of any of the Petitioner’s activities. The pending class action suit against it shall be determined according to the discretion of the presiding court. Additionally, during the adjudication of the case weighty arguments have been raised in regard to actions taken by the Petitioner in order that the search for one’s name on a web search engine may lead to the website it owns, in a manner that misleads to believe that such person appears in the judgment, even if reality is completely different (see para. 12 above.) These claims were raised incidentally and have no direct connection to the petition at the center of this judgment. Naturally, no in depth discussion was held regarding them and of course no evidentiary proceedings. Without setting anything in stone, and without making factual findings that the petitioner acts in some manner or another, I will briefly note that this is a problematic practice that is not consistent with the language of the law, certainly not with its spirit or purpose. This judgments considered the violation of privacy caused to a person, a search of whose name leads to a judgment where his name is mentioned, this cannot be equated to the violation of privacy caused to a person a search of whose name on a web search engine leads to a judgment which appears misleadingly to be connected to him. The harm in the second case is egregious particularly in light of its allegedly deliberate character. Of its face, a violation of privacy caused incidentally is less severe compeered to a harm causes deliberately and by motivation of profiting a commercial company (see and compare HCJ 2605/05, The Academic Center for Law and Business, The Human Rights Department v. The Minister of Finances, para. 33 of President Beinisch’s decision (2009)). The Respondent is assumed to have explored the matter in depth, and to the extent there is truth to the claim – will work to eliminate the phenomenon, as it was said “banish evil from your midst” (Deuteronomy 17, 7.)

 

  1. I shall therefore propose to my colleagues that we issue an absolute order whereby the Respondent’s decision is voided. I shall propose under the circumstances not to make any order as to cost.

 

 

 

                                                                                    Deputy President

 

Justice E. Hayut:

 

I join the position of my colleague the Deputy President E. Rubinstein whereby the order nisi must be made absolute and the Respondent’s decision be made void. For purposes of this conclusion, it is sufficient that the Respondent’s decision from August 18, 2014 was made in the absence of explicit lawful authorization, which is required in light of the gravity of the relevant rights – freedom of occupation, the principle of public hearing, and freedom of expression on the one hand and protection of privacy on the other (as to the relationship between the scope of an authorizing provision and the strength of the relevant protected right see also HCJ 4491/13, The Academic Center for Law and Business v. The  Government of Israel (July 2, 2014)).

 

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

 

                       

                                                                                                Justice

 

Justice U. Vogelman:

 

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

 

We are in the midst of an information revolution that was brought by the internet age. Information that was once accessible only to experts in their field is now accessible to anyone who seeks in, quickly and easily. The law lags behind, as it usually does, these developments which regularly require new interpretations to old legislation – in the spirit of the times and the technological advances – and the different balances that may alter established decisions (see, for instance, my opinion in AAA 3782/12, Tel Aviv-Yafo District Police Commander v. The Israeli Internet Association (March 24, 2013.)) The judiciary authority is not exception, and it too must rethink certain issues. Such is the issue before us today, which was raised in light of the Respondent’s demand that the Petitioner (and other legal databases) sign a “Document of Guarantee” whereby it commits to take all necessary steps in order to prevent the indexation of decisions and judgments given to it. The decision to require the Petitioner’s signature on this Document of Guarantee was made – according to the Respondent in its papers – in light of the scope and severity of privacy violations suffered by litigating parties, a violation which the Respondent believe may be reduced by way of preventing the indexation of judgments on  search engines. This, because the principle of a public hearing does not require, in the Respondent’s approach, making the information in the judgments accessible to the public specifically through web search engines.

 

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

 

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

 

As said, I join the decision of my colleague according to which the Respondent’s decision must be voided.

 

 

                                                                                                Justice

 

 

 

It was decided as said in the opinion of Deputy President E. Rubinstein.

 

Handed down today, 30 Heshvan 5776, (November 12, 2015)

 

 

 

Deputy President                                            Justice                                                 Justice

 

Ben Meir v. Prime Minister

Case/docket number: 
HCJ 2109/20
Date Decided: 
Sunday, April 26, 2020
Decision Type: 
Original
Abstract: 

The petitions in this case challenged the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), to collect, process and use “technological information” regarding persons who had tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asked that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.

 

In granting the petitions, the Court (per President E. Hayut, Deputy President H. Melcer and Justice N. Sohlberg concurring) held that the Enabling Decision passed constitutional review under the exigent circumstances at the time it was made, but that further recourse to the ISA for the purpose of contact tracing would require primary legislation in the form of a temporary order that would meet the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty.

 

The Court further held (per President E. Hayut, Deputy President H. Melcer concurring, Justice N. Sohlberg dissenting) that due to the fundamental importance of freedom of the press, ISA contact tracing of journalists who tested positive for the virus would require consent, and in the absence of consent, a journalist would undergo an individual epidemiological investigation, and would be asked to inform any sources with whom he was in contact over the 14 days prior to his diagnosis.

 

President E. Hayut: The Enabling Decision establishes a primary arrangement in substance. It infringes such basic as the right to privacy, and it extends the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law sufficed to permit expanding the authorities of the ISA as established in Government Decision No. 4950.

 

Urgency can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements. Inasmuch as the outbreak of the crisis met the narrow test for a severe and imminent threat to the state’s citizens and residents, and in view of the urgency for instituting the arrangement at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision was not repugnant to the primary arrangements principle.

 

An arrangement of a temporary character, defined as limited in time when it was established, requires reexamination every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation.

 

The question of the “proper path” for addressing the authorization of the ISA is not a technical matter. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions”. This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch.

 

Primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. In appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution for legislation in a situation characterized by a lack of information and frequent change.

 

Under the unique, exceptional circumstances, and given the timeframe imposed by the rapid spread of the virus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, if the ISA’s continued involvement is required in order to stop the epidemic after the force of the Enabling Decision lapses on April 29, 2020, then steps must be taken to establish it in primary legislation in order to allow for the participation of the Knesset. Such legislation should be provisional in nature, and should be enacted as a temporary order.

 

The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.

 

When an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated. When we are concerned with information collected by the security agencies, transparency should be very strictly observed. The shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them.Therefore, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.

 

The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. The term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation.

 

At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic met the said test. However, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must be grounded in appropriate, primary legislation, such as a provisional temporary order. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.

 

Justice N. Sohlberg (Concurring): Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic presented such a danger.

 

(Dissenting): Inasmuch as the principle of journalistic privilege is rooted in case law, it would seem problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press.

 

When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested, of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone.

 

Deputy President H. Melcer (Concurring): Until the enactment of primary legislation in the form of a temporary order, there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.

 

The proper course at present,  is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity

 

In the current emergency, it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe.

 

Any arrangement that may be made in the future should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioners in HCJ 2141/20:               1.         Adalah – Legal Center for Arab Minority Rights  in Israel

                                                            2.         The Joint List

Petitioner in HCJ 2187/20                              The Union of Journalists in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

Attorney for the Petitioner in HCJ 2109/20: Pro se

Attorneys for the Petitioner in HCJ 2135/20:  Dan Yakir, Adv., Gil Gan-Mor, Adv.

Attorney for the Petitioner in HCJ 2141/20: Hassan Jabareen, Adv., Suhad Bishara, Adv.

Attorney for the Petitioners in HCJ 2187/20: Moran Svorai, Adv.

Attorney for Respondents 1-7 in JCJ 2109/20 & Respondents in HCJ 2135/20: Reuven Eidelman, Adv., Shosh Shmueli, Adv.

Attorney for Respondents 8-9 in HCJ 2109/20: Avital Sompolinsky, Adv.

 

 

Petitions for order nisi and interim order

 

Israeli Supreme Court cases cited:

[1]       HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, (April 7, 2020) [https://versa.cardozo.yu.edu/opinions/yedidya-loewenthal-adv-v-prime-minister]

[2]       CA 6455/19 Yeruhamovich v. Official Receiver, (Jan. 28, 2020)

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

[4]       HCJ 4491/13 Academic Center of Law and Business v. Government of Israel, (July 2, 2014)

[5]       HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016) [summary of judgment: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]       HCJ 5936/97 Oren Lam v. Ben Tzion Dal, Director-General Ministry of Education, Culture and Sport, IsrSC 53(4) 673 (1999) [https://versa.cardozo.yu.edu/opinions/lam-v-dal]

[7]       HCJ 7510/19 Orr-Hacohen v. Prime Minister, (Jan. 9, 2020)

[8]       CrimA 1302/92 State of Israel v. Nahmias, IsrSC 49(3) 309 (1995)

[9]       CA 439/88 Registrar of Databases v. Ventura, IsrSC 48(3) 808 (1994)

[10]     LCA 2558/16 A. v. Claims Officer of the Ministry of Defense, (Nov. 5, 2017)

[11]     AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority, (May 19, 2005)

[12]     LCA 8954/11 Doe v. Doe, IsrSC 66(3) 691 (2014) [https://versa.cardozo.yu.edu/opinions/doe-v-doe]

[13]     HCJ 8070/98 Association for Civil Rights in Israel v. Minister of the Interior, IsrSC 58(4) 842 (2004)

[14]     HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-israel-police]

[15]     HCJ 6298/07 Ressler v. Knesset, (Feb. 21, 2012) [https://versa.cardozo.yu.edu/opinions/ressler-v-knesset]

[16]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[17]     HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services, (May 8, 2012)

[18]     HCJ 466/07 MK Zahava Gal-On v. Attorney General, (Jan. 11, 2012) [https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]

[19]     HCJ 7040/15 Hamad v. Military Commander in the West Bank, (Nov. 12, 2015)

[20]     LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality, (July 27, 2017)

[21]     Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[22]     CrimApp 8823/07 A. v. State of Israel, IsrSC 63(3) 500 (2010) [https://versa.cardozo.yu.edu/opinions/v-state-israel-0]

[23]     AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority, (Feb. 11, 2008)

 

United States Supreme Court cases cited:

[24]     United States v. United States Dist. Ct., 407 U.S. 297 (1972)

[25]     Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

 

Judgment

(April 26, 2020)

 

President E. Hayut:

            The joined petitions before us challenge the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), with the consent of the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee, to collect, process and use “technological information” regarding persons who have tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asks that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.

            I will already note at the outset that the petitions were also originally directed at an additional Government Decision of March 16, 2020 (which was amended pursuant to remarks by this Court on March 25, 2020), that authorized the Israel Police, by virtue of Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations), to supervise the isolation requirement and enforce it upon those required to remain in isolation. This was to be accomplished by authorizing the police to receive location-data samples from the telecommunication companies in order to check whether the address where a person was required to isolate matched the location of that person’s cellphone. On March 23, 2020, the Governmental Respondents informed the Court that they intended to enshrine the police authorization in this regard in primary legislation, subsequent to which the Criminal Procedure (Enforcement Authorities – Telecommunication Data) (Temporary Order – Novel Coronavirus) (Receiving Location Data for the Purpose of Supervision of Isolation Orders) Bill, 5780-2020 (hereinafter: the Telecommunications Data Bill) was presented to the Knesset plenum. The Telecommunications Data Bill passed its first reading, but on April 23, 2020, the Respondent informed us that following several debates in the Foreign Affairs and Defense Committee, the Government decided not to present the Bill for second and third readings in the Knesset at this time. The Governmental Respondents further informed us that on April 22, 2020, the Police Regulations will expire, and that the authorities granted thereunder would not be exercised at this time.

            Therefore, for the present, the hearing in regard to the Police Regulations, and the interim order requested in that regard by the Petitioners in HCJ 2141/20, has become moot. This judgment will, therefore, focus upon the Enabling Decision in regard to the activity of the ISA.

 

Factual Background

1.         These are days of  national and worldwide crisis of dimensions and scope the likes of which we have not known (see: HCJ 2435/20 Loewenthal v. Prime Minister [1], para. 1 (hereinafter: the Loewenthal case). The coronavirus epidemic that began to spread throughout the world several months ago, and that has cost so many lives in various countries, did not spare the State of Israel. Since the first infected person was discovered here, two months ago, there have been over 15,000 verified cases, and some 200 people have perished from the illness. For about a month, the majority of Israeli citizens have been sequestered in their homes, and the education system is closed. Many economic branches are at a standstill, while others are on the verge of collapse or their activity limited, and the resulting daily economic harm to the marketplace approaches more than a billion shekels. The data of the government agencies shows that there are more than a million unemployed in Israel. Entire cities and towns have been placed under quarantine, and movement between cities has been prohibited for days at a time. The activity of Ben Gurion Airport has been disrupted and almost brought to a standstill. This year, we celebrated Passover with only our nuclear family members who live with us, and the situation in some countries – including countries with advanced, developed health systems – is even worse.

2.         In order to contend with the spread of the virus, the Israeli Government adopted a policy of “social distancing”, and the isolation of verified patients and those who came into close contact with them. To that end, a number of very exceptional steps were adopted over time, among them, authorizing the ISA to aid in epidemiological investigations through the use of the technological means at its disposal, for the purpose of identifying, as quickly as possible, the route of the movement of anyone who tested positive for the virus during the 14 days prior to the diagnosis, and locating all the people who were in that person’s close proximity for more than a quarter of an hour (hereinafter: contacts).

            In this regard, we would note that the ISA was originally authorized to perform the said activity by promulgating emergency regulations (hereinafter: the ISA Regulations). The original petitions challenged that decision, focusing upon issues related to the authorities granted to the Government by virtue of a Declaration of a State of Emergency, and the possibility of promulgating emergency regulations for the purpose of contending with a civilian health crisis, like the spread of the coronavirus epidemic. Following the hearing of the original petitions, on March 19, 2020, an interim order was granted that stated in regard to the ISA Regulations that “if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision,” and the restricting of the ISA Regulations only to verified patients.

3.         Following the swearing-in of the 23rd Knesset, the Arrangements Committee was established on March 24, 2020, along with several temporary Knesset committees, among them the Knesset Foreign Affairs and Defense Committee and the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee (hereinafter: the Services Committee). That same day, the Government passed Decision no. 4916, according to which the ISA was authorized, by virtue of sec. 7(b)(6) of the ISA Law, to collect and process “technological information” regarding persons who have tested positive during the 14 days prior to their diagnosis, for the purpose of identifying that person’s route of movement and identifying the people who were in that person’s close proximity during that period, so that the Ministry of Health could instruct them to self-isolate at home.

4.         Section 7(b)(6) of the ISA Law permits the Government to authorize the ISA to perform activities in an area that is not among the core areas of its authorized activity under the ISA Law, subject to meeting the conditions set forth under the section, which we will address below, and subject to the consent of the Service Committee. The Government’s decision was therefore presented to the Service Committee, which held five debates on the issue, three of which were unprecedented public hearings. In the public hearing on March 26, 2020, conducted as a video-conference – with the participation of representatives of the Knesset and the relevant government agencies, and public representatives, including representatives of some of the Petitioners – questions were raised in regard to the period during which the use of the surveillance authorizations granted to the ISA would be required. The representatives of the Ministry of Health pointed out that the use of these authorizations would be necessary as long as the Government’s policy is premised upon home-isolation of those who have come into close contact with people who have tested positive. They added that, in their opinion, in the event of a decision to relax the isolation policy, the use of the ISA for tracking would not become superfluous, but on the contrary – to the extent that restrictions would be eased, the need for the ISA’s “contact tracing” would become all the more necessary. In view of these circumstances, the Ministry of Health stated that it was unable to delimit the timeframe in which the ISA’s assistance would be required.

5.         On March 29, 2020, the Security Committee held a closed-door session, and the open session continued on March 30, 2020 – this time, only with the participation of members of the Knesset and the Government. The debate addressed four possible paths for authorization of the ISA’s use of its technological resources for the purpose of epidemiological investigation: (1) amending the ISA Law in a regular legislative process, and adding the said authority to the law; (2) enacting a separate law designated for that purpose; (3) promulgating emergency regulations by the Government, by virtue of sec. 39 of Basic Law: The Government, similar to the approach adopted prior to the swearing-in of the 23rd Knesset that was the subject of the original petitions; (4) granting Government authorization to the ISA to conduct this activity by virtue of sec. 7(b)(6) of the ISA Law, by means of an enabling decision.

            The Committee’s legal advisor, Advocate Miri Frenkel-Shor, presented the advantages and disadvantages of each of the alternatives, and recommended adopting the last approach, i.e., that of an enabling decision, which was actually implemented following the swearing-in of the 23rd Knesset.

6.         The Service Committee held another meeting, on March 31, 2020, in which it approved Government Decision No. 4950 – i.e., the Enabling Decision – following several changes and amendments made pursuant to comments by the Service Committee. This decision grants the ISA the authority “to receive, collect, and process technological information for the purpose of aiding the Ministry of Health in carrying out an examination in regard to the 14 day period prior to the diagnosis of the patient, for the purpose of identifying location data and routes of movement of the patient and identifying persons who came in close contact with that person, in order to locate those who might have become infected by that person” (sec. 2(a) of the Enabling Decision). At present, the Enabling Decision will remain in force until April 30, 2020, and its definition of “patient” was restricted in accordance with the decision of this Court in the interim order. The term “close contact with a patient” was defined as – contact that is likely to lead to infection in accordance, to the extent possible, with the clinical directives presented by the Ministry of Health in regard, inter alia, to the distance from the patient and the period of exposure, as shall be established in instructions that will be published on the Ministry of Health’s website, which will be updated from time to time, and brough to the attention of the Service Committee. General directives were established in regard to the protection of the information and its processing by the ISA. A provision was added that establishes that while the Enabling Decision is in force, the Minister of Health will periodically examine the need for the continued assistance of the ISA, in view of the restrictions upon activity imposed upon the public, or the availability of alternatives for achieving the purpose of the decision. In addition, a duty to notify the Service Committee was established, requiring that details in regard to the number of patients for whom the Ministry of Health requested the collection of data, the number of persons located by the ISA due to their proximity to a patient, and the steps taken by the Ministry of Health on the basis of the requested data, be presented to the Committee every six days, and to the Attorney General every three days.

7.         The mechanism established in the Enabling Decision for permitting assistance from the ISA and for employing its technological means for tracking contacts is as follows: after diagnosing a patient with a positive laboratory test for the virus, the Ministry of Health requests that the ISA track the patient’s movement over the course of the 14 days prior to the diagnosis, and identify the people who were in the patient’s proximity for more than a quarter of an hour during that period. To that end, the Ministry of Health gives the ISA the patient’s name, identification number, cellphone number, and the date of the diagnosis. At that point, the patient is sent a text message informing him that his particulars have been given to the ISA. After processing the necessary information, the ISA informs the Health Ministry of the route of the patient’s movement over the 14 days prior to the diagnosis, and details of the relevant contacts. These details include the name of anyone in close contact with the patient, as defined in the Enabling Decision, their identification number, telephone number, date of birth, and the date and place of exposure. At this point, a text message is sent to each of the people whose particulars were transferred to the Ministry of Health as persons who had come into close contact with the diagnosed patient, and they are asked to begin self-isolation at home for 14 days, and to report that on the Ministry of Health’s website.

8.         In view of this development, we permitted the Petitioners in all the petitions to amend their petitions accordingly. The amended petitions were submitted on April 5, 2020, the responses to them were submitted by April 12, 2020, and the hearing, which was held on April 16, 2020, was broadcasted to the public by livestream. With the consent of the Petitioners, a closed-door, ex parte hearing was also held in the course of the hearing, and the Respondents agreed that the petitions would be deemed as if an order nisi had been granted.

 

Arguments of the Parties

9.         The Petitioner in HCJ 2109/20, Advocate Shachar Ben Meir, the Petitioner in HCJ 2135/20, The Association for Civil Rights in Israel, the Petitioners in HCJ 2141/20, The Adalah – Legal Center for Arab Minority Rights in Israel and the Joint List Knesset faction (hereinafter: Adalah and the Joint List), and the Petitioner in HCJ 2187/20, The Union of Journalists in Israel (hereinafter: the Journalists Union) (hereinafter jointly: the Petitioners) all argue that authorizing the ISA to address a civilian public-health issue is contrary to the ISA Law, and that the Government’s Enabling Decision in this regard was ultra vires. According to the Petitioners, the ISA, as the preventive security agency of the State of Israel, is only authorized to conduct security-related tasks, and therefore sec. 7(b)(6) of the ISA Law – which allows the Government, with the consent of the Service Committee, to authorize the ISA to carry out tasks in another area for the purpose of protecting and advancing “other essential national security interests” – should be narrowly construed. According to the Petitioners, this section should be understood as permitting such activity only in regard to security threats in the “narrow” sense. Alternatively, the Petitioners argue that even if sec. 7(b)(6) of the ISA Law be given a broader interpretation, permitting the ISA to act in extra-security areas, that authority should be exercised only in extreme cases, which the current matter is not. Adalah and the Joint List further argue that the Enabling Decision violates fundamental individual rights, and therefore, in substance, it constitutes a primary arrangement. In their view, sec. 7(b)(6) is merely a “basket clause”, and therefore such a decision cannot be made in reliance upon it.

10.       The Petitioners further argue that the powers granted to the ISA by the Enabling Decision violate individual rights and fundamental principles of the system. Primarily, they argue that the constitutional right to privacy is violated, and Adalah and the Joint List are of the opinion that there is also a no-lesser violation of the constitutional right to dignity. The Petitioners do not dispute that the Enabling Decision was made for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state, nor that there is a rational connection between that purpose the chosen means, but they are of the opinion that there are less harmful means than those chosen, and that the harm caused by those means exceeds its benefit. In this regard, the Petitioners argue that choosing the ISA to carry out a civilian public-health task fundamentally alters the checks and balances of a democratic society, in which mass surveillance of citizens by the security services should be reserved for specific needs of protecting state security. Therefore, they argue, the task should have been assigned to civilian agencies, like private companies, the Ministry of Health, or at least the Israel Police. The Petitioners further insist that the mechanism established by the Enabling Decision is inconsistent with the applicable norms for the protection of the privacy of databases, particularly in view of the compulsory character of the mechanism and the associated lack of transparency.

11.       On its part, the Journalists Union raises arguments concerning the implications of the Enabling Decision for journalists in the State of Israel. According to the Journalists Union, the Enabling Decision infringes freedom of the press and the confidentiality of journalists’ sources, as it may create a chilling effect upon sources, who may fear exposure to “location tracing” performed by the government authorities. The Journalists Union stresses the importance of protecting journalistic sources, particularly in these unusual times, and emphasizes that the number of persons holding press credentials in Israel is not great – totaling some 5,000 persons. Therefore, in its view, the danger of excepting that group from the established arrangement is defined and limited. The Journalists Union therefore petitions for excepting journalists from the application of the Enabling Decision, or at least, that special conditions be established for exercising the authorities therein in regard to journalists.

12.       As opposed to this, Respondents 1-7 in HCJ 2109/20, which are the relevant governmental organs (hereinafter: the Government Respondents), and Respondents 8-9 in HCJ 2109/20 and HCJ 2135/20 – the Knesset and the Chair of the Service Committee, Knesset Member Gabi Ashkenazi (hereinafter: the Knesset Respondents) (jointly: the Respondents), argue that the phrase “other national interests vital to the national security of the state” in sec. 7(b)(6) of the ISA Law encompasses broader areas than security in the narrow sense, in view of the language and purpose of the section. It is further argued that the epidemic caused by the coronavirus, and the need to confront it and stop its spread, fall within the scope of cases in which the ISA can be empowered by virtue of sec. 7(b)(6) of the ISA Law. The Government Respondents do not deny that that the Enabling Decision infringes the constitutional right to privacy, but they are of the opinion that the violation is proportionate. The Government Respondents further note that, at the outset, the Ministry of Health conducted individual epidemiological investigations in which each confirmed patient was interviewed, and his movements over the two weeks prior to his isolation were published on the website of the Ministry of Health and the broadcast media. But as the number of confirmed cases in Israel rose, individual interviews became impractical, and the professionals in the Ministry of Health concluded that the use of technological means was required in order to identify the movement of those positively diagnosed  as quickly as possible, and in order to locate all the people who were in close proximity of such persons for more than a quarter of an hour during the 14 days prior to the positive diagnosis. To that end, the Ministry first considered employing technologies offered by private companies, but those alternatives were found to be inadequate, and attempts to obtain the assistance of large international companies that have technological means that might be of use did not receive positive replies. Assigning the task to the Israel Police, which would receive the telecommunications data from the telecommunications companies, was also considered, but the relevant professionals found that there was a clear gap between the ability of the Police and that of the ISA in this regard. The Respondents further emphasize that the undeniable infringement of the right to privacy must be viewed against the right to life of the citizens and residents of the State of Israel, and the stability of the Israeli marketplace. According to the Respondents, under these circumstances, the weight of the latter rights and interests exceeds that of the violation of the right to privacy.

13.       As for the arguments of the Journalists Union, the Respondents argue that the powers granted under the Enabling Decision do not infringe freedom of the press, as claimed. This is so, inasmuch as if a journalist is positively diagnosed, his personal details will only be provided to the ISA and the Ministry of Health (and only to those granted access to the data in those bodies). The Respondents emphasize that the process of locating and processing the technological information in regard to the patient’s contacts is largely automatic. They further point out in this regard that the possibility of excepting journalists and others entitled to privilege was considered, but the importance of saving lives and stopping the chain of transmission is greater than the need to protect privileges.

 

Examination and Decision

14.       The central question before the Court concerns the legality and constitutionality of authorizing the ISA to employ the means at its disposal to assist the Ministry of health in conducting epidemiological investigations by collecting and processing “technological information”. Examining this question requires addressing it on three levels: First, in terms of authority – we must examine whether sec. 7(b)(6) of the ISA Law grants the Government the authority to employ the ISA in a purely civilian area that concerns a danger to public health. For that purpose, we must construe the meaning of the phrase “other essential national security interests” in sec. 7 of the ISA Law. Second, if the answer to the first question is positive, then we must further enquire as to the whether it was proper, under the circumstances, to use a Government Decision under sec. 7(b)(6) of the ISA Law for the purpose of empowering the ISA, or whether it would have been preferable to enshrine that authority in primary legislation. Lastly, if the answer to the second question is that it was not necessary to enshrine the authority in primary legislation, then we must consider whether the Enabling Decision is proportionate. That, given the undeniable infringement of human rights resulting from authorizing the ISA to act as stated.

 

The Issue of Authority – The Normative Framework

15.       The ISA Law was enacted in 2002, reflecting the view that the activity of the preventive security service of the State of Israel should be addressed in appropriate primary legislation that would define its authority, establish its subordination to the civil authorities, and the oversight of its activity. For the matter before us, the provisions concerning the purpose of the ISA, detailed in sec. 7(a) of the Law, and its functions, as detailed in sec. 7(b) are of relevance. These sections state as follows:

7.         (a)        The Service is responsible for protecting state security, the democratic regime and its institutions against terrorist threats, terrorism, subversion, espionage, and revealing state secrets, and the Service will also act to protect and advance other essential national security interests of the State, as the Government shall decide, and subject to any law.

(b)       For the purpose of subsection (a), the Service shall perform the following tasks:

(1)       Frustration and prevention of illegal activity intended to harm state security, the democratic regime or its institutions;

(2)       Protecting people, information and places as decided by the Government;

(3)       Establish directives in regard to security classification for roles and positions in the civil service and other bodies, as shall be decided by the Government, with the exception of elected officials and judges, and establishing the security compatibility of a person for a classified role or position, including by means of polygraph examination, as shall be established in rules. For the purpose of this section: “Judges” – a person holding judicial authority under Basic Law: The Judiciary, with the exception of candidates for judgeships and a military judge under the Military Justice Law, 5715-1955;

(4)       Establishing security procedures for bodies as decided by the Government;

(5)       Conducting intelligence research and providing advice and situation evaluations to the Government and other bodies as decided by the Government;

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State;

(7)       Collection and acquisition of information for the protection and advancement of the matters detailed in this section.

 

            The parties to the petitions are divided as to the meaning of the phrase “essential national security interests of the State” that appears twice in sec. 7 of the ISA Law. According to the Petitioners, the ISA Law expresses a sensitive balance between granting very broad powers to the ISA, on the one hand, and restricting the use of those powers solely for security purposes, on the other hand. The Petitioners argue that coronavirus epidemic – as complex and difficult as it may be – is not among the situations that would justify “crossing the Rubicon” and authorizing the ISA to employ its abilities – that are rooted in preventive security – in order to assist in performing epidemiological research in the framework of a health crisis that does not present a threat to the very existence of the state. As opposed to this, the Respondents are of the opinion that the use of the term “national security” rather than “state security” in sec. 7 of the ISA Law indicates that it is possible to authorize the ISA to carry out missions that are not “security related” in the narrow sense. However, the Respondents agree that expanding the ISA’s activity beyond the narrow area of security for which it is responsible is problematic, and must be resorted to only in exceptional cases.

            In order to resolve the dispute between the parties as to the proper interpretation of the provisions of sec. 7(b)(6), we must make recourse to our system’s accepted rules of interpretation.

 

Section 7(b)(6) of the ISA Law – The Interpretive Process

16.       The interpretive journey begins with the language of the provision we seek to interpret (CA 6455/19 Yeruhamovich v. Official Receiver [2], para. 9 (hereinafter: the Yeruhamovich case)). Section 7(b)(6) of the ISA Law speaks of “Activity in another area […] intended to protect and advance essential national security interests”, and it would appear that the words “national security” are the key words requiring interpretation.

            The term “national security”, and the aspects comprises, does not have a universally accepted definition (Greg Carne, Thawing the Big Chill: Reform, Rhetoric and Regression in the Security Intelligence Mandate, 22 Monash U. L. Rev. 379 (1996) (hereinafter: Carne)). The conceptions of security differ from country to country. They derive from their different characteristic security challenges, and from the differences between the bodies and institutions responsible for security in each state. Even in Israel, the concept of “national security” does not have a comprehensive statutory or case-law definition, and therefore, it is possible that its scope may differ in regard to different matters, in accordance with the context in which it appears.

            In the present matter, it may be possible to argue that the language of sec. 7(b)(6) of the ISA Law does not allow for authorizing the Israel Security Agency to engage in matters that are not in the field of security. As opposed to this, the legislature chose to employ two different terms is sec.7 – “national security” and “state security” – and we presume that the legislature did not do so for esthetic purposes, as a mere “linguistic adornment”. For interpretive inspiration, the Government Respondents went to great lengths in comparing other laws that employ the term “national security”, noting that this term has been broadly construed in various contexts, including aspects of national resilience in the socio-economic sphere. The Government Respondents further pointed to decisions in the field of international law in which the term “national security” was construed as comprising, inter alia, economic crises. Therefore, from a linguistic perspective, we cannot rule out the interpretation suggested by the Respondents, according to which the use of the term “national security”, as opposed to “state security”, granted the Government – by virtue of the section and the consent of the Security Committee – the authority to extend the activity of the ISA to another area that is not at the core of security activity, to the extent required for the purpose of protecting and advancing “essential national security interests” related to security in the broad sense. We would emphasize that in their arguments, all of the Respondents stress that we are not speaking of any “national interest” in any sphere, but rather the authorization applies only to exceptional cases in which there is an essential need to do so.

17.       In terms of the interpretive possibilities that the language “tolerates”, we must choose the interpretation that best realizes the normative purpose under examination (see: the Yeruhamovich case, para. 9). The subjective purpose of the law can be learned from its legislative history. In this regard, the fact that the Knesset Respondents went to the trouble of presenting the transcripts of the deliberations of the Knesset committees that addressed the enactment of the relevant section of the ISA Law is worthy of note and praise. These transcripts, which were classified until now under sec. 6(b) of the ISA Law and restrictions imposed by the Knesset Rules of Procedure, were appended, with the consent of the parties, as appendices to the Knesset’s response thanks to its efforts to permit their release. Although parts of the transcripts were blackened out for reasons of national security, they can serve to show the purpose of sec. 7(b)(6) of the ISA Law, and the serious reflection in its enactment.

18.       The Israel Security Agency Bill, 5758-1998 (hereinafter: the Bill) was submitted by the Government in 1998. In that framework, the original language of sec. 7(b)(6) established that one of the tasks of the Service was “activity in another area decided by the Government, with the consent of the Knesset Secret Service Committee, intended to protect and advance essential interests of the state”. In the course of the deliberations on the Bill, several members of the Subcommittee for the ISA Law expressed the fear of the possibility that the Government might improperly exploit the authority established under sec. 7(b)(6) of the Bill, and significantly expand the powers of the ISA to areas that deviate from the security matters for which it is expressly responsible. Thus, Knesset Member Ze’ev Binyamin Begin noted that the phrase “essential interests of the state” is understood as referring to “market, economic, and perhaps social” interests, and warned that the use of this power for such purposes might violate individual rights in matters that have nothing to do with security (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 24, 1998, pp. 23, 31). Knesset Member Ran Cohen joined in expressing those fears, emphasizing that “the ISA should deal with security matters, and the police should focus on purely civilian matters” (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 26, 1998, p. 10). Professor Mordechai Kremnitzer, who attended one of the sessions, was of the opinion that the ambiguous description of the ISA’s tasks, particularly the possibility for significantly expanding them by virtue of sec. 7(b)(6) of the Bill, might lead to the Government employing the ISA for purposes for which it was not created.

19.       In view of these comments, the end of sec. 7(b)(6) of the Bill was changed to “essential national security interests of the State”. Then Deputy Attorney General Meni Mazuz explained that this change was meant to limit the scope of the provision in the original Bill, explaining as follows:

The term “national security” is somewhat broader than the term “security” in its narrow sense. For example, if an enemy state intends to flood the State of Israel with counterfeit money, that is something that could harm national security, in the sense that the state could collapse. These are matters that are not security in the sense we are used to, of armed security, terror, army (transcript of the meeting of the Subcommittee for the ISA Law of Dec. 30, 2001, p. 33).

 

            The Deputy Attorney General went on to present a number of examples from areas that might be considered “essential national security interests of the State”. In this framework, he noted such economic issues as industrial espionage and transnational crime, as well as serious international crimes, and “things that are done around the world in which an organization like the ISA or parallel organizations have a certain professional advantage over the regular police” (ibid., p. 40). The ISA Legal Advisor at the time, Advocate Arie Rotter, later explained that the term “essential national security interests”, as such, allows for granting authority to the ISA “in a broad manner, beyond security matters” (Arie Rotter, The Israel Security Agency Law – Anatomy of a Law, 75, fn. 202 (2010) (hereinafter: Rotter) (Hebrew)). Ultimately, on Feb. 11, 2002, the ISA Law was approved by the Knesset plenum, and the language of sec. 7(b)(6) of the Law is the amended language of the Bill that we have just examined.

20.       As we see from the legislative history described above, due to reservations expressed by Knesset Members in regard to the significant expansion of ISA authority, the possibility of the Government employing the ISA was restricted only to areas directly related to the national security of the State. In this regard, it would appear that sec. 7(b)(6) of the ISA Law was not intended, as a rule, to expand the role of the ISA to civilian areas. However, from the discussions of the Bill, we learn that it was the legislative intent to include matters that deviate from the narrow meaning of “national security”.

21.       As for the objective purpose of sec. 7(b)(6) of the ISA Law and its ramifications for the interpretation of the term “national security”, an overly broad, ambiguous definition of the expression “national security” in this context might loosen the reins and permit employing the ISA’s abilities for missions that have absolutely nothing to do with the purpose of a preventive security organization. As noted, the ISA Law limits the purpose of the ISA, and grants it defined tasks that are meant to enable the State of Israel to contend with the security threats that are part of our daily reality, primarily by means of collecting preventive intelligence, providing personal protection for personages, and other security activities (see: Eli Bachar, Legal Advice in a Security Service, 52 (2013) (Hebrew); Isser Harel, Security and Democracy, 162 (1989) (Hebrew); for a comparative survey, see Ariel Zimmerman, The General Security Services Bill – A Comparative Study, (Israel Democracy Institute, 1997) (Hebrew)). To that end, it was provided with broader tools and means than those given the police, which contends with civilian threats and maintaining public order (and compare, for example, the powers of the ISA under sec. 11 of the ISA Law with those granted to the police in this regard in the Criminal Procedure (Enforcement Authorities – Telecommunications Data), 5768-20017). This established the balance between the security needs of the State and the foundations of our democratic regime, primary among them, respect for the rights and freedoms of the individual and the principle of the rule of law. Employing the abilities of the ISA in regard to the State’s citizens and residents who intend it no harm comprises a threat to the existence of a democratic society that, as a rule, is willing to abide a certain, limited and defined infringement of human rights, and occasionally even of the rule of law, in regard to threats to its continued existence. Expanding the situations in which recourse can be made to the preventive security service thus raises serious fears.

22.       For the sake of comparison, in strategic papers published by the United States government over the last few years, the term “national security” comprised such aspects as cyber threats, natural disasters, drug trafficking, shortages of natural resources, and even epidemics (see: Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577, 1722 (2011) (hereinafter: Donohue)). In regard to the latter, it would appear that the original intention was to epidemics resulting from biological warfare, but the federal government of the United States expanded the definition to epidemics not deriving from warfare (see, in this regard, the government’s response to the SARS epidemic in 2003, and to swine flu in 2009: Donohue, p. 1734). However, in view of the inherent ambiguity of the term “national security”, the American courts warned against exploiting its use, and expanding it in a manner that would infringe fundamental rights (see, e.g., United States v. United States Dist. Ct. [24], 314: “Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent”; and see how the United States Supreme Court addressed the broad and “malleable” use of national security considerations in the framework of the war on terror: Hamdi v. Rumsfeld [25], 520). This fear of the expansion of the meanings given to the term “national security” has been expressed over the years, inter alia, in Europe, Australia, and Canada (for an expanded discussion, see: Frank Foley, The Expansion of Intelligence Agency Mandates: British Counter-terrorism in Comparative Perspective, 35 Rev. Int. Stud. 983, 984-989 (2009); Carne, 381-385, 390-391).

            Therefore, there were those who were of the opinion that adding to the tasks of the ISA required the strictest test of protecting and advancing essential national interests for the prevention of an existential threat (see and compare: Rotter, pp. 17-18). As opposed to this, given the complexity of a changing reality, it is possible to accept the view that in certain, defined circumstances, the term “national security” may encompass a broader range of threats than those that are actually existential.

23.       In my opinion, sec. 7(b)(6) of the ISA Law should be construed as a provision that permits the Government to delegate authority to the ISA even in areas that do not concern security in the narrow sense, but the test that should be adopted for the term “national security” in this regard is that of a severe, imminent danger to the citizens and residents of the State or its regime”. In other words, as we move further from the core of security activity, the Government bears the burden of demonstrating that the situation is indeed one that presents a severe, imminent danger to the citizens of the State of Israel or to the national regime to an extent that requires mobilizing all its forces, among them its security services, in order to meet the challenge. This construction is necessary in view of the linguistic difficulty in interpreting the section, the limitation of its scope of incidence that can be discerned from its legislative history, and the emphasis – in Israel and abroad – upon preventing unchecked expansion of the powers of preventive security agencies.

            And note: the severe, imminent danger test that I believe should be adopted in this matter comprises two dimensions – a substantive dimension and a time dimension. The substantive dimension imposes a particularly high threshold of danger to the citizens and residents of the state. This does not necessarily mean an existential threat or a man-made subversive threat, but it is clear that the intention is not to the usual threats to public order that the police and civilian enforcement authorities contend with on a daily basis. As for the time dimension, the immediacy requirement requires that the danger must be such that there is no real, available possibility for developing more appropriate alternatives for confronting it before it is realized. In other words, the expansion of the powers of the ISA by virtue of sec. 7(b)(6) of the ISA Law beyond security matters in the narrow sense is not for an unlimited time period, and it is possible only as long as the immediacy requirement remains, and no other means are available for similarly addressing the severe threat. These strict requirements are necessary in view of the aforementioned fear of authorizing a preventive security service and employing its resources – which are neither transparent nor known, for understandable reasons – such that they be employed in an area that is not of a security nature in the narrow sense, and against citizens and residents of the state who intend it no harm.

24.       In summary, sec. 7(b)(6) of the ISA Law was intended to permit the Government – with the consent of the Security Committee – a certain measure of flexibility in regard to authorizing the ISA to act in circumstances that were unforeseen when the law was enacted. However, the section’s language, legislative history, and objective purpose show that the term “national security” in sec. 7(b)(6) is only slightly broader than the term “state security”, and in appropriate circumstance it can also comprise severe, imminent threats that do not derive from active subversion against the State and its institutions by some hostile entity. However, in expanding the ISA’s activity beyond the core areas of its security mandate in the narrow sense, we are concerned with the very limited expansion applicable to those rare, exceptional cases in which there is a severe, imminent threat to the citizens and residents of the state or its regime, carried out under strict restraint and supervision, and only temporarily.

 

From the General to the Specific: Is the Coronavirus Epidemic comprised by the Term “National Security”?

25.       As we have already noted in various recent decisions, like most countries, we are currently in an emergency situation unlike any we have previously experienced. As Justice I. Amit wrote in regard to another petition addressing the coronavirus epidemic, this situation leads us “from a legal standpoint … through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom” (the Loewenthal case [1], para. 1). In the course of his statement to the Knesset Secret Service Committee, the Director General of the Ministry of Health, Mr. Moshe Bar Siman-Tov, referred to the current situation as “an unparalleled situation in modern times” (transcript of the meeting of the Service Committee of March 26, 2020, pp. 4-5). The National Security Council holds overall responsibility for the crisis, and its span of control for that purpose encompasses most government agencies, the Bank of Israel, the Airports Authority, the National Parks Authority, the IDF, the Israel Police, and other security and civilian entities mobilized in support.

26.       Under these exceptional, unprecedented circumstances, it would appear that even if we are not concerned with security needs in the narrow sense, the outbreak of the coronavirus crisis meets the conditions of the test for a severe, immediate threat to national security, as construed above. These unique circumstances, regarding which the Ministry of Health explained that “every passing hour is important” (statement of Deputy Attorney General Raz Nizri in the transcript of the meeting of the Service Committee of March 26, 2020, p. 24), required mobilizing the ISA in order to provide a quick, effective response to the significant challenge of  preventing the spread of the coronavirus, and permitted authorizing it for that purpose by virtue of sec. 7(b)(6) of the ISA Law.

27.       We should emphasize that not every threat to public health can be deemed a severe, imminent danger to the citizens of the state. However, the country’s situation following the outbreak of the coronavirus – which presents an exceptional challenge to the health system, and comprises devastating consequences in other areas, first and foremost, the economic security of far too many of the country’s families – justifies the finding that the current crisis passes through that narrow gate that permits the rare, exceptional expansion of the ISA’s authority by virtue of sec. 7(b)(6) of the Law. The Legal Advisor of the Service Committee aptly summarized this in stating: “It cannot be said that the ISA cannot be assigned this task in the framework of its purpose as established by law, when we are concerned with a serious, exceptional and unprecedented event, and the situation in which the state now finds itself. But this must be done with restraint, with sharp clarification that we are concerned with an exceptionally extreme situation, while emphasizing the fact that this authority is not at the core of the classic role of the Service, and that it cannot serve as a precedent for the future” (transcript of the Service Committee session of March 30, 2020, p. 3).

 

Authorizing the ISA by means of a Government Decision for contending with the Coronavirus Epidemic

28.       The next issue that must be addressed concerns the question whether the path chosen for the purpose of activating the ISA, and employing it for confronting the coronavirus is the appropriate path, or whether that authorization should be given by means of primary legislation. In this regard, Adalah and the Joint List argued that authorizing the ISA to conduct widespread tracking of citizens for civilian purposes contradicts the principle established in the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [3]) according to which there is an interpretive presumption that the legislature did not intend to authorize the executive branch to establish primary arrangements – i.e., arrangements that enshrine general policy and fundamental criteria in matters that violate basic individual rights or other matters of primary importance (HCJ 4491/13 Academic Center of Law and Business v. Government of Israel [4], para. 26, per President Grunis (hereinafter: the Academic Center case); Yoav Dotan, Non-Delegation and the Revised Principle of Legality, 42 Mishpatim 379, 414 (2012) (Hebrew)) – in the absence of express authorization by the legislature permitting the executive branch to establish a primary arrangement in a particular matter (the Academic Center case, para. 26, per President Grunis).

29.       The Enabling Decision does, indeed, establish a primary arrangement in substance, that permits the ISA to carry out widespread “contact tracing” of the state’s citizens and residents in order to protect public health and prevent the spread of the epidemic. This decision infringes basic rights, primary among them the right to privacy – a violation cannot be denied, as will be explained below – and it also expands the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law expressly permits expanding the authorities of the ISA as established in Government Decision No. 4950.

            It has been held that the urgency of the arrangement can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements (see: HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 61, per Justice N. Sohlberg). Having found that the outbreak of the crisis met the narrow test for the existence of a severe and imminent threat to the state’s citizens and residents, and particularly in view of the urgency inherent in activating the arrangement as pointed out by the professional entities in the Ministry of Health, I am of the opinion that at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision is not repugnant to the primary arrangements principle. As noted, as it presently stands, the decision will remain in force until April 30, 2020. Can it be held that the force of the Enabling Decision can be extended again, rather than address the role of the ISA in the coronavirus crisis in primary legislation?

            In my opinion, the answer is no.

30.       When we are concerned with an arrangement of a temporary character, that was defined as limited in time when it was established, the need to reexamine the process for enshrining that arrangement, and the question of the sufficiency of the authorization upon which it was based, arise every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This is particularly the case inasmuch as several weeks have passed since Decision No. 4950 was made, during which the Knesset could have conducted a substantial debate, and could have properly enshrined the authorization of the ISA in primary legislation. This fact tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation (see and compare the Rubinstein case [3], which held that sec. 36 of the Defense Service [Consolidated Version] Law, 5746-1986, which grants the Minister of Defense authority to exempt a person from military service “for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons”, could not serve as sufficient authority for granting comprehensive exemptions to yeshiva students “for whom Torah is their calling”). This conclusion is brought into sharper view in the present case in light of the Government’s notice in these petitions that it is currently considering the possibility of relying upon sec. 7(b)(6) of the ISA Law for the purpose of a further expansion of the ISA’s activities in the framework of confronting the coronavirus epidemic.

31.       We would emphasize that the question of the “proper path” for addressing the authorization of the ISA is not a technical matter that can be taken lightly. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions” (the Rubinstein case [3], p. 108 [para. 22, per President A. Barak]). This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch (Daphne Barak-Erez, Citizen-Subject-Consumer: Law and Government in a Changing State, pp. 42-43 (2012) (Hebrew)). An additional advantage to conducting a legislative process was well expressed by Justice D. Dorner in HCJ 5936/97 Lam v. Dal [6], 864 [para. 9]):

… generally speaking, the legislative process in the Knesset is more complex, protracted and expensive than the administrative process.  Nonetheless, efficiency is not necessarily an advantage where there is a question involving infringement of the freedom of occupation.  It is precisely the “cumbersome” nature of primary legislation and the requirement of a majority of the people’s representatives in order to pass a statute which provide a kind of institutional guarantee that basic rights will not be violated except where necessary.

 

            An up-to-date example of this can be seen in the developments described at the beginning of this opinion in regard to the legislative steps taken in order to enshrine the authorities that had been granted to the police in emergency regulations promulgated by the Government, which authorized the police to obtain location data from the telecommunications companies of persons required to remain in isolation. The Bill passed a first reading, but pursuant to the opinion of the Knesset Legal Advisor, the Arrangements Committee did not permit holding all three readings that day. In the course of preparing the Bill for a second and third reading, four in-depth meetings were convened by the Foreign Affairs and Defense Committee, which invited experts in the field of privacy protection, public health experts, and civil society organizations. In view of the reservations expressed in the meetings, the Government requested that the Bill not proceed at this time, the Police Regulations elapsed, and the police location-tracing of those required to be in isolation ceased. These developments illustrate the clear advantage of conducting a full legislative process in the Knesset, even at times of emergency, and particularly when a violation of individual rights is concerned.

32.       All of the Respondents insisted that primary legislation presents difficulties under the circumstances, primarily because it can permanently enshrine an exceptional authority and thus create a problematic precedent for the future. However, we should bear in mind that primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. Thus, in appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution, in general, for legislation in a situation characterized by a lack of information and frequent change (see: Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            To this we should add the fact that the current Government – the 34th Government – serves as a caretaker government whose powers, in general, are more limited than those of a regular government (HCJ 7510/19 Orr-Hacohen v. Prime Minister [7], para. 10). Indeed, the Service Committee of the newly sworn-in Knesset is conducting close, continuous parliamentary oversight – which has even led to the introduction of changes to the ISA’s authorities under the Enabling Decision. However, the temporary Service Committee, composed of a small number of Knesset Members, cannot serve as a substitute for 120 elected Knesset members. Moreover, it should be borne in mind that, as a rule, the meetings of the Service Committee are classified. In the present matter, the Services Committee did, in fact, decide that three of five of its meetings on the Enabling Decision would be open to the public, and representatives of the public, academia, and civilian and security bodies were heard. That is praiseworthy, but it is an exception that is not characteristic of the regular work procedures of the Committee.

33.       Under the unique, exceptional circumstances that developed, and especially given the timeframe imposed by the rapid spread of the coronavirus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, I am of the opinion that the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which, as noted, constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, we cannot but conclude that if the ISA’s continued involvement is required in order to stop the epidemic even after the force of the Enabling Decision lapses on April 39, 2020, then the Government must take steps to establish the basis for such involvement in primary legislation in order to allow for the participation of Knesset Members from all the factions in the decisions related to this important issue. Such legislation should be provisional in nature, and should be enacted as a temporary order.

34.       However, as the attorney for the Knesset Respondents emphasized in the hearing, exhausting the legislative process demands time. Under these circumstances, if the Government continues to be of the opinion that authorizing the ISA for the tasks imposed upon it is still required, the Knesset should be allowed to proceed with the legislation in expedited, but not hasty proceedings that will allow for public comments and appropriate deliberations. Nonetheless, and given the fact that the Enabling Decision will expire on April 30, 2020, I am of the opinion that if the legislative process will move forward, it will be possible to extend the force of the Enabling Decision for a short additional period, not exceeding a few weeks, for the purpose of completing that process.

 

Before concluding – On Violating the Right to Privacy

35.       Having found that the Enabling Decision can no longer be relied upon for the purpose of providing for the ISA’s involvement in the coronavirus crisis after the decision expires, there is no need to examine whether the Enabling Decision meets the proportionality requirement. Nonetheless, inasmuch as the parties argued this point at length, I think it proper to make a few observations in regard to the proportionality of the infringement of the right to privacy caused by the Enabling Decision.

36.       Undeniably – and the Respondents all concede this – the Enabling Decision leads to a serious violation of the right to privacy and intimacy. This right, which achieved constitutional status upon the enactment of Basic Law: Human Dignity and Liberty (sec. 7 of the Basic Law), and was enshrined in other legislation even prior to that, most prominently in the Protection of Privacy Law, 5741-1981, and was recognized in case law as one of the most important human rights (see: CrimA 1302/92 State of Israel v. Nahmias [8], 353; CA 439/88 Registrar of Databases v. Ventura [9] 835). Moreover, on more than one occasion, the case law has stated that the right to privacy “is one of the freedoms that shape the character of the Israeli regime as democratic” (LCA 2558/16 A. v. Claims Officer of the Ministry of Defense [10], para 39, per Justice D. Barak-Erez;  and see: AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority [11], para. 41, per Jusitce E. Arbel). Similarly, my colleague Justice N. Sohlberg wrote in LCA 8954/11 Doe v. Doe [12], 740 [para. 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 watchful eye of the state is vital to the existence of a pluralistic society which gives freedom 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 … 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.

 

37.       In the present matter, the Chair of the Service Committee, Knesset Member Gabi Ashkenazi, addressed this issue in the course of the deliberations on the Enabling Decision. He observed that authorizing the ISA to employ its technological resources for “contact tracing” grants “the State authority to invade the private areas and spaces of the citizens of the State of Israel” (transcript of the meeting of the Service Committee of March 30, 2020, pp. 39-40). President Grunis once noted, as well, that such cases present “concern about the excess power of the State, which may gather extensive information about citizens and residents and may abuse such information” (HCJ 8070/98 Association for Civil Rights v. Minister of the Interior [13], 856). “This concern increases as the government acquires more sophisticated means, making more extensive infringement of privacy possible” (HCJ 3809/08 Association for Civil Rights v. Israel Police [14], para. 5, per President Beinisch).

38.       The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.

            As for the identity of the entity employing the said means – employing tools that were developed for the purpose of fighting against hostile elements, and aiming them at the State’s citizens and residents who do intend it no harm is a step that might cause any lover of democracy to lose sleep. To this we may add that according to documents published by the Israel Democracy Institute (hereinafter: the Institute), the apparatus employed in Israel that will be used to locate contacts with validated patients is carried out with the aid of the preventive security organ, is exceptional on the international landscape (see: Tehilla Schwartz Altshuler & Rachel Aridor-Hershkovitz,  Surveillance During a Pandemic - International Comparison, (Israel Democracy Institute, March 25, 2020); Rachel Aridor-Hershkovitz,  A Comparative Survey of Europe and the United States – Contact Tracing as a Means for Fighting the Coronavirus, (Israel Democracy Institute, March 31, 2020) (Hebrew)). This fact was not lost upon the Service Committee, which noted in this regard that the Government respondents must make a real effort to show the Service Committee “alternative tools like those available in other countries” (transcript of the meeting of the Service Committee on March 30, 2020, p. 40).

            As for the nature of the chosen means – in order to examine the level of conformity of the mechanism established in the Enabling Decision to the prevailing norms for protecting privacy in databases, we can turn to the legislation that treats of these subjects, and draw inspiration from comparative law in regard to accepted norms in the field of protection of privacy in the administering of sensitive databases (Michael Birnhack, Public Privacy by Design: The Case of Data Transfer to Political Parties, 12 Haifa Law Rev. 15, 25 (Hebrew) [English abstract]. An examination of the mechanism established in the Enabling Decision shows that there was a real effort to circumscribe and confine the infringement of privacy by adopting some of the primary norms prevailing in the field of protection of privacy of databases (see, e.g: secs. 5,7,9,10,15 and 16 of the Enabling Decision). However, the consent of the individual to collecting the information is a “central pillar” of the protection of the right to privacy (Michael Birnhack, Private Space: The Right to Privacy, Law and Technology 252 (2010) (Hebrew)). This is so because when an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated (Michael Birnhack, Control and Consent: The Theoretical Basis of the Right to Privacy, 11 Mishpat uMimshal 9, 13 (2008) (Hebrew); and see the Joint European Roadmap towards lifting COVID-19 Containment Measures of April 15, 2020, which explains that the use of cellphone applications for “contact tracing” must be carried out with full respect for the principles of protection of privacy, including that their use be voluntary).

            In addition, when we are concerned with information collected by the security agencies, transparency should be very strictly observed. In this regard, we would emphasize that the shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them (Amir Cahane, The Chilling Effect: Online Surveillance in the Days of Corona, CSRCL Blog (March 16, 2020)). However, there is some justification for the view that it is “desirable to remove much of the cloak of secrecy surrounding the ‘digital means’ […]. Even if these means in themselves must remain confidential (in order to maintain special intelligence collection capabilities)” (ibid.). Therefore, it would appear that in the present matter, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded.

39.       It cannot be denied that despite the infringement caused by employing the ISA’s tracking mechanism, that mechanism has significant advantages. Its use makes it possible to locate persons who came into close contact with a Corona patient quickly, and that makes a real contribution to saving lives and protecting public health by severing the chain of transmission. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.

40.       Striking the necessary balance is significantly influenced by the point in time when it is made. At the beginning of the outbreak of the virus in Israel, the choice to use the means available to the ISA derived from the “need to provide an effective means at record speed, and that was provided by the Service a short time after the Ministry of Health requested its help” (para. 163 of the Government’s Response of April 12, 2020). However, with the passage of time, it could be expected that in view of the Respondents’ own position that we are concerned with a highly effective means whose harm is undeniable, a serious effort would be made to find alternatives like those adopted elsewhere in the world, among them, use of the “HaMagen” application developed by the Ministry of Health, which are all based upon obtaining the consent of the person being tracked. This was also made clear in the meetings of the Service Committee, in which it was stated that “the State is obligated, together with its use of this exceptional means, this unprecedented means by the Israel Security Agency whose role is different and that was established for another purpose, to examine other, different alternatives” (transcript of the meeting of the Service Committee of March 30, 2020, p. 40). The Service Committee even suggested that seeking an alternative to the said means should be carried out by a competent professional entity that would conduct an organized study with the cooperation of experts in the field (ibid.).

41.       Indeed, the efforts to locate an effective alternative must continue uninterrupted. This conclusion can also be learned from the Enabling Decision itself. Section 13 states that “over the course of the period when this decision is in force, the minister of Health will consider the need for continued recourse to the Service, bearing in mind the restrictions upon the public’s activity imposed by the Government, or the existence of alternative possibilities for achieving the objective of the decision”. This provision reflects the understanding that in view of the extraordinary nature of the means currently in use, the government authorities must always consider whether the immediate needs still justify the severe means that it is employing. The Service Committee addressed this in stating:

Over the course of all the deliberations, the Committee stated that it was not comfortable with the use of the tool, and that it views it as something temporary. I find the need to state that again. The entire situation is exceptional – so we are permitting it with constraints and balances. But if it goes on, we will not be able to continue with this situation. We are not hiding this. We are saying this to everyone concerned. This is not the primary purpose of the ISA. It was not created for this purpose. The State will have to find alternative solutions, significantly reduce the use, or stop it as soon as possible (transcript of the meeting of the Service Committee of March 31, 2020, p. 34).

 

42.       In seeking such an alternative, consideration must be given to the substantive flaws in the current mechanism, and must particularly consider whether it is possible to achieve the necessary, important advantages by means of a transparent, voluntary mechanism.

 

The Journalists Union Petition

43.       The Journalists Union’s petition argues that the powers granted to the ISA in the Enabling Decision violate freedom of the press and the confidentiality of journalistic sources. It further explains that the problem does not end with the question of whether there is actually a technical fear of exposing of sources, but that the very use of a mechanism that affords a preventive security organization a possibility of tracking the “technological information” in all that regards journalists creates a chilling effect that could deter their sources.

44.       In the course of the hearing before us on April 16, 2020, we suggested that the Government Respondents consider a path agreed to by the journalists, by which a list of journalists holding press credentials would be given to the Ministry of Health, and that the Ministry would ask a journalist who tests positive for the virus to consent to providing his details to the ISA. If such consent be given, the mechanism would operate in the usual way. If the journalist would refuse, he will be granted 24 hours to petition the court for an order preventing the transfer of his data to the ISA. At the same time, he will undergo an individual epidemiological investigation, and will be asked to sign a declaration that he undertakes to inform any journalistic sources with whom he was in contact over the 14 days prior to his diagnosis. The Government Respondents considered the suggestion, and informed us, on April 20, 2020, that they could not agree to it. Instead, they offered a different path to which the Journalists Union did not agree.

45.       One cannot overstate the importance of freedom of the press in a democratic state, and preserving this principle is of particular importance during a national crisis of the type we are currently experiencing. In the hearing, the Journalist Union’s attorney pointed out that at this time of “social distancing”, most contacts with sources are conducted by telephone, and do not involve physical meeting. In the ex parte hearing, it was clarified that physical meeting is necessary for “contact tracing” by means of the mechanism employed by the ISA. Therefore, adopting the path that we have now suggested is, in any event, of limited scope, and is not expected to raise and particular difficulty. That being so, I am of the opinion that it should be applied as of the date of this judgment, and that we can expect that an arrangement in this spirit will be included in future legislation.

 

Conclusion

46.       These are unusual times. The outbreak of the coronavirus, and its spread throughout the world, have changed how we live. Under these unique, exceptional circumstances, the Government made a decision to employ technological means at the disposal of the ISA in order to perform epidemiological investigations, with the purpose of locating those who came into close contact with persons who had tested positive for the virus, and to inform them that they had to isolate themselves at home. The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. In my view, the term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation. At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic did, indeed, meet the said test. However, for the reasons stated above, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must me grounded in appropriate, primary legislation, such as a provisional temporary order. This is so given the fact that the means chosen by the State in the framework of the Enabling Decision is invasive and cannot be taken lightly. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. These extraordinary means were adopted in regard to a rare, extraordinary crisis by any metric. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.

47.       Therefore, if my opinion be accepted, I would recommend to my colleagues that we grant the petitions in the sense that, subject to what is stated in para. 34, above, as of April 30, 2020 it will not be possible to authorize the ISA to aid in confronting the coronavirus outbreak by means of the mechanism established under sec. 7(b)(6) of the ISA Law, and that should the State seek to continue to employ the means at the disposal of the ISA, it must take steps to establish that authorization in primary legislation. I would further recommend to my colleagues that in regard to journalists, the outline set out in para. 44, above, will be employed.

 

Justice N. Sohlberg:

1.         I concur in the considered opinion of my colleague the President, as well as with the opinion of my colleague the Deputy President in regard to the precautionary principle. On the margins of the matter, I will note an addition and register a reservation.

2.         Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls – by the language of the law and its legislative purpose – within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic indeed presented such a danger. Just as IDF soldiers are working to offer help in the city streets and in the homes of citizens, so the members of the ISA were mobilized to confront the harm of the coronavirus. The pressing needs of the hour required that such action be taken. The involvement of the ISA, and its attendant the shroud of secrecy, are “not pleasant but not terrible” (in the lenient view), and in any case not intolerable (in the strict view) due to the exigencies of the situation. In any case, the weeks that have passed, and the danger that is no longer what it was, require that we return to the “high road”, i.e., primary legislation, preferably as a temporary order, to allow for the participation of all of the Knesset members in the required decisions. The Government’s Enabling Decision will lapse in the coming days, and if the legislative process begins before that, it will be possible to extend the Government’s decision for the period required for a proper process by a legislature that proceeds quickly.

3.         Without detracting from my colleague’s correct statements on the right to privacy and intimacy, I would like to this: At the present time, when privacy and intimacy are notoriously trampled and “location data” are transmitted in every direction, it would seem to me that the violation of the “marginal utility” of privacy caused by the involvement of the ISA, in the manner that it is carried out, can be tolerated. Indeed, in these difficult times, all are required to show general civic responsibility and solidarity. It is reasonable to assume, and recent opinion polls indeed show a humane readiness to relinquish some measure of privacy in order to aid in the early detection of those infected. There is a clear willingness to stand strictly upon individual rights, due to a sense of responsibility for others and for society.

4.         A person with the coronavirus who has infected those around him – family, congregation, friends – suffers greatly. The Government Respondents correctly state that “the dignity of every person, as such, is expressed in his willingness to defend his family and himself, to act altruistically, and to aid in the defense of others” (para. 219 of the Government’s Response). Indeed, more than the violation of privacy, we have here protection of human dignity and liberty, the saving of one’s own life and that of his neighbor. And note: there is more work to be done to protect and ensure privacy and intimacy, and we must do it, but not necessarily in the given crisis that pits the right of privacy against the right to life and health of people and of the entire public – a life-threatening danger in the plain sense – and a real fear for Israel’s economy.

5.         As for the Journalists Union’s petition, my colleague the President and my colleague the Deputy President are of the opinion that there should be a special approach that would include a 24 hour hiatus during which a journalist who tests positive for the coronavirus can petition the court for an order that would prevent transferring his particulars to the ISA (paras. 44-45 of the opinion of the President; para. 7 of the opinion of the Deputy President). I hold a different view in this regard. It would seem to me that with all due respect for the importance of freedom of the press and journalistic confidentiality, inasmuch as the principle of journalistic privilege (which is, as we know, a relative privilege) is rooted in case law, it would appear to me to be problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press. I am not an expert on leaks, but it would appear reasonable – and so the Journalists Union’s attorney affirmed – that most of a journalist’s contact with sources is conducted by telephone. There is no fear of exposure in regard to such sources. The only fear, and it is very remote, is of the exposure of a source who physically meets with the journalist. And why is that a remote fear? Because the data processing mechanism operates automatically, and as a rule, the files produced are not opened except when a person who receives a text message from the Ministry of health (informing him that he must self-isolate due to exposure to a person who tested positive for Covid-19) questions the accuracy of the information, or in the course of an examination of random samples. Even then, there is only a miniscule chance that such a random examination might specifically hit upon the file of a journalist of such fame that his name will be recognized by the person performing the examination. When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested (paras. 6 and 7 of the Response of April 20, 2020), of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone. I will suffice with that.

6. As stated, I concur in the opinion of my colleague the President, subject to the above.

 

Deputy President H. Melcer:

1.         I concur in the comprehensive opinion of my colleague President E. Hayut.

            However, in view of the importance of the matters under discussion, I will allow myself to add several insights and emphases.

 

The Question of Authority

2.         The question presented to us was whether the Israel Security Agency (hereinafter: ISA or the Service) could be authorized to receive, collect, and process “technological information” concerning persons who tested positive for Covid-19 and those who were in close contact with them, and transfer that information to the Ministry of Health.

            The Respondents argued that the matter fell within the compass of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter: the ISA Law), which states as follows:

For the purpose of subsection (a) [which establishes the purpose of the ISA and its role – H.M.], the Service shall perform the following tasks:

[…]

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State.

            My colleague the President ruled that if the above conditions were met (a Government decision with the consent of the Knesset Secret Services Committee), and in view of the current extraordinary, special situation resulting from the coronavirus epidemic, then while there was a severe, immediate danger to the state’s citizens and residents due to the spread of the virus, it was possible to make limited (in time and substance) use of that subsection, and to make the Enabling Decision and its accompanying arrangement (hereinafter, together: the Enabling Decision).

            Under the circumstances, I concur with this limited ruling, as well as with the reasoning of my colleague the President and what derives therefrom, i.e., that for the purpose of fulfilling this role, the ISA (by means of its staff) is authorized to receive, collect and process “technological information”, and transfer it to those duly authorized in the Ministry of Health, in accordance with secs. 8(a)(1) and (2) and (3) of the ISA Law, and all bearing in mind that the said special activity is intended – under the time, event, substance and place conditions – to protect and advance essential national security interests of the State (that deviate from national security in the narrow sense).

            My colleague Justice N. Sohlberg notes in this regard – by way of comparison – the activity of IDF soldiers in the city streets and in citizen’s homes at this time, and I would like to point out that in order to permit such activity – when necessary – at the time, in 1995, legislative amendments were made (in sec. 18 of the Law and Administration Ordinance, 5708-1948, and sec. 26A of the Defence Service (Consolidated Version) Law, 5746-1986 (hereinafter: Defense Service Law)). See: Defence Service (Amendment No. 7 and Temporary Order) (Service in the Police and Recognized Service) Law, 5755-1995 (hereinafter: Amendment 7).

            In accordance with Amendment 7, sec. 18 of the Law and Administration Ordinance states that the armed forces of the State “shall have authority to do all lawful and necessary acts for the defence of the State and for attaining its national-security objectives” (the emphasized words were added by Amendment 7 in 1995). Pursuant to that, the said Amendment also added sec. 26A to the Defence Service Law, which provided for the possibility of recognized service, that the Minister of Defense would establish by order, with the consent of the Government and the Knesset Foreign Affairs and Defense Committee, in one of the following:

(2)       Service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required.

            For a detailed discussion of Amendment 7 and the possibilities it presents, see: my opinion in HCJ 6298/07 Ressler v. Knesset [15]; my article: The IDF as the Army of a Jewish and Democratic State, in Volume in Honor of Prof. Amnon Rubinstein – Law and Man, 14 Mishpat v’Asakim 347, 358-364 (Sept. 2012) (Hebrew).

            We thus find that in special, exceptional circumstances, and in a defined situation, it is possible to authorize the IDF and the ISA to act for the purpose of attaining national-security objectives that go beyond the defense and security of the State (in the narrow sense).

3.         Moreover, sec. 7(b)(6) of the ISA Law, together with the provisions of the ISA Law that I noted in para. 2, above, provides express authority to perform the activities under discussion in the petitions (under the conditions we established) – in the sense of the first condition of the Limitations Clause in sec. 8 of Basic Law: Human Dignity and Liberty (that is, that the violation be by a law, or by virtue of express authorization in such law). See the majority opinion in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [16] (hereinafter: the Mifkad Haleumi case).

            That case also provides an answer to the argument that the matter should have been arranged (if at all) in a primary arrangement (by primary legislation). Also see: my opinion in HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services [17]. However, in view of the significant dissent of President D. Beinisch and Justice E. Hayut in the Mifkad Haleumi case, it would seem to me that when the stage of pressing need for acting by virtue of sec. 7(b)(6) of the ISA ends (on April 30, 2020), it would be proper to arrange the matter – to the extent that it may still be relevant – in primary legislation by way of a temporary order, as recommended by my colleague the President and my colleague Justice N. Sohlberg, as long as such legislation meets all the other conditions of the Limitation Clause.

            I will now briefly turn to the matter of the proportionality of the path chosen and the arrangement set forth.

Examination of the Path Chosen and the Proportionality of the Arrangement

4.         The path chosen (authorizing the ISA by virtue of sec. 7(b)(6) of the ISA Law) was one of four alternatives examined, and that, after the Government had previously promulgated emergency regulations by virtue of sec. 39 of Basic Law: The Government.

            It seems to me that until the date set (April 30, 2020), that was, indeed, the preferable course under the circumstances. There are several reasons for this:

  1. Emergency regulations do not require any “approval” (other than their promulgation by the Government, and submitting them to the Knesset Foreign Affairs and Defense Committee at the earliest possible date after their enactment – see: sec. 38(a) of Basic Law: The Government).
  2. Emergency regulations, by virtue of sec. 39(c) of Basic Law: The Government, may alter any law, temporarily suspend its effect or introduce conditions, unless there be another provision by law (see, in this regard: sec. 12 of Basic Law: Human Dignity and Liberty). Here we should note, however, that after presenting the emergency regulations to the Knesset Foreign Affairs and Defense Committee, the Knesset may – by law or a decision of a majority of the members of the Knesset – revoke the emergency regulations (see: sec. 39(f) of Basic Law: The Government).

Thus, until the enactment of primary legislation in the form of a temporary order (if at all), there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.

At this point we should note that the Service Committee (chaired by MK Gabi Ashkenazi) admirably fulfilled its role in this regard, and conducted in-depth deliberations (some of which were open to the public) on the Enabling Decision that is the subject of the petitions, and added restrictions, changes, and various duties of notification (it also instigated the process that led to halting the advancement of the law to amend the Telecommunications Data Law – see para. 1 of the opinion of my colleague the President).

5.         Without detracting from what is stated in para. 4, above, concerning the choice to follow the course of an enabling decision until nowthe proper course at present, to the extent that it may be needed, is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity (compare: Ittai Bar-Siman-Tov, Parliamentary Activity and Legislative Oversight During the Coronavirus Pandemic – A Comparative Overview (2020); Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            This is the place to make a few observations on the path established – which is the subject of these proceedings – without deciding upon the matter for the future, inasmuch as Prof. Sigal Sadetzky, Head of Health Services in the Ministry of Health, who appeared before us, informed us that the possibility of continuing, and even expanding the arrangement is being considered.

6.         The arrangement adopted in the Enabling Decision (after the changes introduced by the Service Committee), and the date established for its termination (April 30, 2020) met the criteria for proportionality under the Limitations Clause.

            In the framework of the third component of the proportionality requirement, I previously recommended the Precautionary Principle, which under certain circumstances is the lesser evil, inasmuch as better safe than sorry (see my opinion in HCJ 466/07 Gal-on v. Attorney General [18] (hereinafter: the Galon case); and see the opinion of my colleague Justice N. Sohlberg in HCJ 7040/15 Hamad v. Military Commander [19]; LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality [20], para. 37 and the references there; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [21], per Justice M. Mazuz writing for the Court).

            In the current emergency situation due to the Corona epidemic (as opposed to the disagreements that arose on the Gal-On case in this regard), it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle, and they are, indeed, doing so. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe. This is the case when there is a perceived significant threat of wide-spread, irreversible harm, even if it is only of low probability, and when there is no proven scientific certainty that the harm will be realized (the Gal-On case, paras. 34-42 of my opinion [paras. 17-24 of the English summary].

            Nevertheless, even the said principle requires setting limits, or as my colleague Justice E. Rubinstein expressed it in the Gal-On case, cautions must be adopted even in regard to the Precautionary Principle. In order to pass the proportionality test stricto sensu (or “the relativity test”, as my colleague Deputy President E. Rivlin called it in CrimApp 8823/07 A. v. State of Israel [22], and Prof. A. Bendor in his article Trends in Israeli Public Law: Between Law and Judging, 14 Mishpat uMimshal 377 (2012)) that caution requires, in my view, not to continue with the Enabling Decision (other than for a short period after April 30, 2020, as recommended by my colleague the President in para. 34 of her opinion), and to replace it (if at all) by a temporary order in primary legislation.

            There are a number of reasons for this:

  1. Over and above the need for immediacy, use of the Precautionary Principle requires – beyond immediacy – parliamentary oversight even in emergency situations (this is so even in the opinion of critics of the principle, like Prof. Cass R. Sunstein, in his book Laws of Fear: Beyond the Precautionary Principle, p. 214 (2005)).
  2. The existence of alternative, more proportionate means for achieving the same or similar purpose must be examined (both in terms of the second subtest for proportionality under the Limitations Clause, and under the third subtest of proportionality stricto sensu).
  3. We must beware of sliding down the “slippery slope” in the use of the means that will be permitted or their continuation (see: Elyakim Rubinstein, On the Danger of the Slippery Slope, Parashat HaShavua, no. 65 (Ministry of Justice) (Hebrew); Dr. Menachem Finkelstein, The Slippery Slope, Judge Baruch Judges Bulletin, no. 4, p. 1 (Feb. 2011) (Hebrew), and see: AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority [23], para. 7(1) of the opinion of my colleague Justice E. Rubinstein, who stated:

Open for Me an opening like the eye of a needle and I will open for you an opening that wagons and carts can pass through (Shir HaShirim Rabba 5).

            In the hearing in the present matter, Prof. Saditzky explained that serological tests will be approved in the next few days, and that they may be able to replace – by mass testing (with immediate results) – the need to locate those who were in contact with persons who tested positive (in this regard we would emphasize that until now, due to the lack of sufficient test kits, and at the instruction of the Ministry of Health, not everyone who was located by the ISA as having been in contact with a person who tested positive was necessarily tested).

            Thus, given that until now there was no available alternative for achieving the objective of locating those who had come into contact with persons who had tested positive for the coronavirus, or to identify those who had contracted the virus, those who had not, and those who had developed antibodies, and the ISA had the ability to use its resources to help in this area (and thus, the situation differs in regard to what the ISA stated in the Gal-On case), it was possible to utilize the mechanism at the ISA’s disposal for this purpose, since it met all three criteria of proportionality, including the third subtest of relativity, inasmuch as: One who saves a single life “is considered as if he has saved an entire world” (Mishna Sanhedrin 4:5; Maimonides, Mishne Torah, Laws of the Sanhedrin 12:3).

            However, it would be appropriate to reexamine the entire complex (which was also the recommendation of the Service Committee), and this should be done by the entire Knesset in the timeframe set by my colleague the President in para. 34 of her opinion, while considering the alternatives that have been created in the meantime. In any case, any arrangement that may be made in the future (if at all) should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.

            This framework should also address the matter of journalistic privilege, which was raised in the Journalists Union’s petition, which I will address in the following subsection.

 

The Issue of Journalistic Privilege

7.         Journalistic privilege raises a special problem, inasmuch as the arrangement deriving from the Enabling Decision may infringe the confidentiality of sources that is fundamental to investigative journalism in general, and at present, in particular, as well as freedom of the press (Dr. Yisgav Nakdimon, Journalist’s Privilege (2013) (Hebrew)).

            In the present matter, I believe that the approach we have recommended, as set out in paras. 44 and 45 of the opinion of my colleague the President, is appropriate, and it would be appropriate to adopt it in any additional arrangement that may be made (if at all), and should be followed from now. This is required by the rule established in HCJ 3809/08 Association for Civil Rights v. Israel Police [14], mutatis mutandis to the present matter, (in that case, I was of the minority opinion that the rule should be extended to all case of privilege, and in the course of the hearing, it became clear that this is indeed the practice in regard to members of Knesset). My colleague Justice N. Sohlberg’s fear for the health of the source will, in any case, be resolved, inasmuch as the approach requires that the journalist himself warn his source.

 

Conclusion

8.         This case raised new issues that the world, the medical profession, and the legal field had not yet encountered. In this judgment, we tried – with the help of the authorities who addressed the entire issue and the accepted legal principles – to treat of a situation and provide solutions that, on the one hand, would save lives, while on the other hand, would protect the accepted constitutional rights by means of appropriate balancing and proportionality. We may hope that we will no longer have need for all of these in the foreseeable future, and that we will see better days. Let us hope.

 

            Therefore, it is unanimously decided to grant the petitions in HCJ 2109/20, HCJ 2135/20, HCJ 2141/20 in the sense that as of April 30, 2020, it will not be possible to authorize the ISA to aid in contending with the outbreak of the coronavirus by means of the mechanism established in sec. 7(b)(6) of the ISA Law, and that if the State seeks to continue to employ the means at the ISA’s disposal, it must act to establish such authority in primary legislation. To the extent that such legislation will progress, it will be possible to extend the force of the Enabling Decision for a short, additional period that shall not exceed a few weeks, in order to enable the completion of that process.

            It is further decided my majority decision (President E. Hayut and Deputy President H. Melcer concurring, and Justice N, Sohlberg dissenting) to grant the petition in HCJ 2187/20 in the sense that, in regard to journalists holding press credentials, the arrangement set out in para. 44 of the opinion of the President will be followed.

 

Given this day, 2 Iyyar 5780 (April 26, 2020).

 

 

           

 

 

 

 

Ben Meir v. Prime Minister

Case/docket number: 
HCJ 2109/20
Date Decided: 
Thursday, March 19, 2020
Decision Type: 
Original
Abstract: 

In response to the corona virus epidemic, the Israeli government promulgated two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to aid in the national effort to limit the spread of the new corona virus), 5780-2020; (2) Emergency Regulations (Location Data), 5780-2020. The regulations permit the collection, processing and use of “technological data” of persons who have contracted the new corona virus (hereinafter: the virus), in order to combat the spread of the corona epidemic.

 

On Wednesday, March 18, 2020, a petition was filed in the High Court of Justice challenging the constitutionality of the regulations, as well as the lawfulness of the regulations in the absence of parliamentary oversight. Two additional petitions were filed on the following day.

 

On Thursday, March 19, 2020, the Supreme Court, sitting as High Court of Justice (President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg), held a hearing on the petitions, and issued an interim order prohibiting the implementation of the regulations in the absence of parliamentary oversight.

Voting Justices: 
majority opinion
Full text of the opinion: 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioner in HCJ 2141/20:                             Adalah – Legal Center for Arabl Minority Rights in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

Petitions for order nisi and interim order

 

Decision

 

1.         These three petitions challenge the Government’s decision to promulgate two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to aid in the national effort to limit the spread of the new corona virus), 5780-2020 (hereinafter: the ISA Regulations); (2) Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations). The regulations permit the collection, processing and use of “technological data” of persons who have contracted the new corona virus (hereinafter: the virus), in order to combat the spread of the corona epidemic.

2.         In a hearing on the petitions today – March 19, 2020 – serious legal issues were raised concerning – inter alia – the absence of parliamentary oversight of the process of promulgating the regulations and the manner of their implementation, as well as constitutional questions that require examination.

3.         The petitions in HCJ 2135/20 and HCJ 2141/20 were filed immediately prior to the time set for the Respondents to submit their response to the petition in HCJ 2109/20, which had been filed on the previous day. That being the case, the Respondents did not have sufficient time to prepare their written response to the arguments raised in these two petitions prior to the hearing. The Respondents requested that we permit them to submit a supplementary response in this regard. In view of the urgency of the matter, we order that it be submitted by Sunday at five p.m. In their supplementary response, the Respondents will address the following fundamental questions:

            (a)        Does the declaration of a state of emergency under sec. 38 of Basic Law: The Government also relate to emergency situations that do not arise from security concerns?

            (b)       Can the Israel Security Agency be granted authority to act in areas that do not concern state security by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002?

            (c)        Does sec. 39(d) of Basic Law The Government, which states: “Emergency regulations may not […] infringement upon human dignity”, impose an absolute restriction upon violating the right to human dignity, or is such a violation subject to the conditions established under sec. 12 of Basic Law: Human Dignity and Liberty?

4.         At this stage, we are making an interim order, stating:

A.        As regards the ISA Regulations – if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision.

B.        Without derogating from the above sec. A., the ISA Regulations will be implemented at this stage exclusively for the purpose of locating persons who were in the vicinity of persons with a positive laboratory result for nCoV, and in accordance with the classified directives presented to us ex parte, with the consent of the Petitioners, which were approved by the Attorney General.

C.        If a decision is made to impose a general closure before Tuesday, March 24, 2020, it will be possible to reexamine the need for implementing the authorities under the ISA Regulations and the compatibility of the interim order with that situation.

D.        At this stage, and until another order, there shall be no implementation of the authorities granted under the Police Regulations. In this regard, we would note that in the hearing before us, the Respondents informed the Court that, at this stage, the procedure mentioned in sec. 4(A2) of the Criminal Procedure (Enforcement – Authorities Telecommunication Data) Law, 5768-2007) (hereinafter: the Telecommunication Data Law), which was added to that law by virtue of the Police Regulations, had not been completed. Therefore, these regulations have, in any case, not been implemented. It was further explained that, at this stage, there is no intention to make use of the authorities granted to the police under these regulations by virtue of sec. 4(A1)(1)(a) of the Telecommunications Data Law.

5.         When the material mentioned in para. 3, above, ahs been collected, we will decide upon the how these all these petitions shall proceed.

Given this day, 23 Adar 5790 (March 19, 2020).

Association for Civil Rights in Israel v. Israel Police

Case/docket number: 
HCJ 3809/08
Date Decided: 
Monday, May 28, 2012
Decision Type: 
Original
Abstract: 

 

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

 

Petitions concerning the constitutionality of some of the arrangements prescribed in the scope of the Criminal Procedure Act (Powers of Enforcement – Communications Data), 5768-2007, which came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”) and enables the Israeli investigatory authorities to obtain communications data from all the communications companies – the various cellular or landline telephone companies and Internet providers. Obtaining those data does not include obtaining the content of the messages transmitted. The petitions essentially revolve around the right to privacy in the modern era. At the heart of the petitions is the balance between, on the one hand, concern regarding government’s over-intrusion into the individual’s life hand due to increasing technological abilities, and the importance of recognizing the advantages that technology provides as a tool to ensure security and public order on the other. The petitioners concentrated their constitutional arguments around the three main aspects of the Act: the ability to obtain a judicial order under section 3; the ability to obtain an administrative order without a court procedure under section 4; and the establishment of a database run by the investigatory authorities under sections 6 and 7.

 

The High Court of Justice (in an extended panel of seven Justices, and decision authored by then President D. Beinisch) dismissed the petitions on the following grounds –

 

There is no question, in view of the authorities established in the Act, that the Act does indeed unconstitutionally infringe on the right to privacy.

 

The Petitioners asserted that in addition to infringing on privacy, the act implicates legally recognized rights involved in the professional privileges including the right to representation, freedom of the press, free association, free expression, freedom of occupation, religious freedom and more. The concept of privilege in our legal system essentially extends professional privilege to the content of conversations between the professional, who may enjoy professional privilege (hereinafter referred to as “professional”), and the privileged person. It does not extend to the very existence of a connection with the professional. The purpose is to allow the privileged person a realm of free communication between them and the professional. The exception is the case of journalists (their case is different because the very identity of the person who contacts a journalist can constitute part of journalistic privilege in order not to expose the journalist’s source despite the protection available to such source). The Petitioners were unable to demonstrate that the Communications Data Act per se, which does not permit the transmission of message content, infringes on the various different professional privileges established by legislation and the case law. Even were there an infringement, it is marginal. It does not reach the core of the right that benefits from extensive protection. Consequently, nor was it found that it was possible to show infringements to other rights that privilege is designed to protect. Nevertheless, for the purposes of the discussion, the Court assumed the ability to obtain professionals’ communications data does constitute an indirect infringement of the right of privacy.

 

Of course mere infringement of the right of privacy – and its indirect outcomes – does not sufficiently warrant striking down the Act. The Act’s infringement of the constitutional right must meet the requirements in the limitations clause of Basic Law: Human Dignity and Liberty. Should it appear that the infringement does meet those requirements, there will be no reason to find the Act unconstitutional.

 

Since the petitioners also agree that the purpose of the Act – to provide the Police and the other enforcement authorities with effective tools to fight crime in the developing modern world, to facilitate the prosecution of offenders, and to enable quick responses to urgent situations (for example when human life is at stake or offenders who have already committed offences need to be traced immediately) – is worthy, and since it is clear that the Law is not inconsistent with the values of the State of Israel, the discussion focused on analyzing the proportionality of sections in question. Based on a narrow interpretation of these sections, the Court concluded that the Act is proportional, as it properly balances the purposes of the Act and any infringement on the right of privacy.

 

Under section 3 an investigatory authority, as defined in the Act, may request a magistrates’ court’s permission to obtain communications data. The Court held that although the language of sections 3(a)(2) and (3) do prima facie permit investigatory authorities to request a court order to obtain communications data in order to achieve general objectives, the investigatory authority is not actually authorized to do so.

 

The proper constitutional interpretation of sections 3(a)(2) and 3(a)(3) of the Communications Data Act, which is consistent with the language and purposes of the Act, is that the investigatory authorities may ask a court for an order according to the Act merely for the purpose of detecting concrete offences or offenders (in order to detect a particular offender or investigate or prevent a particular offence that is anticipated or being performed), and not for the purpose of general intelligence activity related to any offences or offenders. Given this interpretation, the arrangement prescribed in section 3 meets all three of the proportionality criteria. This interpretation is consistent with the State’s position as well as the prevailing constitutional concepts in legal systems similar to ours.

 

The Court dismissed the Petitioners’ request to apply the Act in its entirety, particularly section 3 – which sweepingly applies to misdemeanours – to felonies. Moreover, the Court did not see fit to narrowly interpret section 3 to provide for court orders only where misdemeanours of particular level of seriousness or  where communications data is an inherent component of the crime (for example computer hacking) are involved. Because the mechanisms existing in the Act – and essentially the judicial review of the application – can, certainly at present, adequately address to the Petitioners’ concern about the arrangement’s improper use.

 

Section 4 authorizes the Police or the Military Police CID (but not the other investigatory authorities) to urgently obtain communications data regarding felonies only through an administrative – rather than judicial – order, effective for 24 hours. Section 4 lacks is silent on limits that are included in section 3, such as discretion but primarily the limitation on transferring a professional’s communications data (according to these sections, where there is authorization of a competent officer, who believes it is urgently necessary to do so, it is prima facie possible to transfer a professional’s communications data without restriction) (hereinafter referred to as “the administrative arrangement”). The Court held that, ab initio, given the specific purpose of section 4 and the limited potential of infringing the privilege of most professionals due to obtaining the data permitted by the Act, the absence of specific reference in this section to the context of professionals does not render in disproportional, a fortiori in view of the proper interpretation of the section (as detailed below).

 

In terms of the exercising the authorities under sections 3 and 4 of the Act, the provisions do not provide for an order in circumstances where the purpose of the order is general intelligence activity for the detection of offences.

 

The Court further held that exercising the authority in section 4 of the Act should be interpreted to sparingly permit obtaining communications data, in extreme cases, for the purpose of dealing with offences that require it and only in urgent cases where a court order clearly cannot be obtained according to the procedure prescribed in section 3 due to circumstances such as saving of life or other serious circumstances. Certain considerations, including that the subscriber is a professional, the extent of his involvement in the offence, the type of data sought, the degree of urgency, the severity of the offence and other considerations must always be taken into account (that is that in exercising section 4, the narrow arrangements prescribed in section 3 can help to identify relevant factors for exercising the discretion).

 

Nevertheless, different treatment of journalistic privilege is appropriate. The State therefore acted properly when it prescribed that a procedure involving journalists would trigger special conditions. Restrictions on the use of orders, as detailed in section 4, are required by the purpose of the Act and the balance necessary for achieving this purpose. The Court accordingly held that when the subscriber is a journalist who is neither a suspected nor the victim of the offence, order to obtain communications data of the traffic type under section 4 will not be granted.

 

As for the sections 6 and 7 which regulate the database – the Court did not find it appropriate to intervene in these sections’ establishment of a database to be kept by the investigatory authorities, so as to limit the ability to keep in the database identifying information of anyone whose telephone number is unlisted. Having held that the Act should not be interpreted to permit the database to be used for general Police intelligence or infrastructure activity and assuming this will in fact be done, there is no justification to limit collecting certain numbers in the database in a way that would enable people who choose to conceal their information from the eyes of law enforcement authorities.

 

In view of all this the Court held that the arrangements prescribed in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, indeed meet the requirements of the limitations clause and do not constitutionally justify intervention. Additionally, the Court found that review of the Act as a whole, together with all the arrangements and internal balances it includes, led to the conclusion that intervention was not justified.

 

Nevertheless, the Court emphasised that the enforcement authorities are tasked with considerable work in the proper exercise of their powers, and must exercise strict caution and care while applying the Act solely to the necessary extent and degree, bearing in mind it may infringe on certain rights. The Knesset and the Attorney General, who are legally responsible to regularly review the extent of the Act’s application, also shoulder a great responsibility.

 

In conclusion, the Court dismissed the Israel Bar’s Petition that the Act should prescribe that obtaining communications data in violation of the Act cannot serve as admissible evidence in legal proceedings. The Petition to mandate judicial review of administrative orders under section 4 before any use of evidence obtained through the administrative order, was also rejected.

 

Justice E. Arbel: Joins the Court’s opinion and adds two observations. According to her, section 4(b) of the Act, which limits granting a permit to a period of no more than 24 hours, should be interpreted as prohibiting a competent officer from renewing the permit at the end of that period or some time thereafter. It should also be interpreted to require the competent officer to secure a court order under section 3 of the Act, as is necessary after 24 hours. That interpretation prevents infringement of the right of privacy beyond the necessary (Deputy President E. Rivlin concurred with this observation). Moreover, according to Justice Arbel, there should also be judicial review over the implementation of section 4 by ex post facto approval of the permit. Justice Arbel reaches this conclusion by analogizing the provisions of section 5(d) of the Secret Monitoring Act with regard to the retroactive judicial review of permits granted in urgent cases without a permit from the court.

 

Justice H. Melcer differs from the President’s opinion on two points: (a) the protection the Act affords anyone in the context of professional privilege applies by law, including case law; (b) the proper constitutional interpretation of section 4 of the Act and the limits of its use. His view on both points leads to a constitutional-interpretive conclusion that a competent officer, as defined by section 1 of the Act, may not act according to section 4 of the Act when professional privilege prima facie applies. The only way to try to obtain communications data in such cases necessitates a court’s approval according to section 3 of the Act (and in particular section 3(b)), subject always to the provisions of law (including case law).

 

In light of all this, the Petitions were unanimously dismissed. Regarding the interpretation of sections 3, 6 and 7 of the Act, the Court decided according to President (Ret.) D. Beinisch’s opinion with all other Justices concurring. Regarding the interpretation of section 4 of the Act, the majority decided joined President (Ret.) D. Beinisch’s opinion, that the power prescribed in that section can also be exercised when a “professional’s” communications data are involved, subject always to the limitations and reservations detailed in the opinion. Justice H. Melcer, in his dissent, believed that the power prescribed in section 4 cannot be exercised in order to obtain a permit under the Act in the case of a “professional”.

 

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Author
concurrence
Author
concurrence
Non-writer
majority opinion
Full text of the opinion: 

In the Supreme Court

Sitting As the High Court of Justice

HCJ 3809/08

HCJ 9995/08

 

Before:

Her Honor, President (Ret.) D. Beinisch

His Honor, President U. Grunis

His Honor, Deputy President E. Rivlin

Her Honor, Justice M. Naor

Her Honor, Justice E. Arbel

Her Honor, Justice E. Hayut

His Honor, Justice H. Melcer

 

 

 

 

The Petitioner

in HCJ 3809/08:

The Association for Civil Rights in Israel

 

 

The Petitioner

in HCJ 9995/08:

The Israel Bar

 

 

AGAINST

 

 

The Respondents in HCJ 3809/08:

1. The Israel Police

2. The Military Police CID

 

3. The Police Internal Investigations Department of the Ministry of Justice

 

4. The Securities Authority

 

5. The Antitrust Authority

 

6. The Israel Tax Authority

 

7. The Minister of Justice

 

8. The Knesset

 

9. Bezeq, The Israel Telecommunications Corp. Ltd

 

10. Pelephone Communications Ltd

 

11. Cellcom Israel Ltd

 

12. Partner Communications Ltd

 

13. MIRS Communications Ltd

 

14. HOT Telecom LP

 

15. Netvision 013 Barak Ltd

 

16. 012 Smile Communications Ltd

 

17. Bezeq International Ltd

 

 

The Respondents in HCJ 9995/08:

1. The Minister of Justice

2. The Israel Police

 

3. The Military Police CID

 

4. The IDF Military Police Internal Investigations Unit

 

5. The Securities Authority

 

6. The Antitrust Authority

 

7. The Israel Tax Authority

 

8. The Knesset

 

 

Amicus Curiae in HCJ 3809/08:

The Press Council

 

 

     

 

Petitions for the award of an order nisi

 

Date of Sessions:

28th Shevat, 5769 (February 22, 2009)

 

23rd Cheshvan, 5770 (November 10, 2009)

 

 

On behalf of the Petitioner in HCJ 3809/08:

Adv. Dori Spivak

 

 

On behalf of the Petitioner in HCJ 9995/08:

Adv. Dan Hay; Adv. Kobi Sade

 

 

On behalf of the First to Seventh Respondents in HCJ 3809/08 and HCJ 9995/08:

Adv. Dana Briskman;

 

 

On behalf of the Eighth Respondent in HCJ 3809/08 and HCJ 9995/08:

Adv. Roxanna Scherman-Lamdan

 

 

On behalf of the Tenth Respondent in HCJ 3809/08:

Adv. Guy Flanter; Adv. Abayansh Tasma

 

 

On behalf of the Eleventh Respondent in HCJ 3809/08:

Adv. Jonathan Hamo; Adv. Asher Doga

 

 

On behalf of the Twelfth Respondent in HCJ 3809/08:

Adv. Amir Vang

 

 

On behalf of the Ninth and Thirteenth to Seventeenth Respondents in HCJ 3809/08:

No appearance

 

 

On behalf of the Press Council (Amicus Curiae):

Adv. Orna Lin; Adv. Vered Kinar

 

 

 

JUDGEMENT

 

President (Ret.) D. Beinisch

 

The petitions, which have been joined, concern the constitutionality of some of the arrangements prescribed in the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 that was published in the Official Gazette on December 27, 2007 and came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”), which permits the Israeli investigatory authorities to obtain communications data of telecommunications subscribers generally, as they are defined in the Communications (Telecommunications and Broadcasting) Act, 5742-1982 (hereinafter referred to as “the Communications Act”).

 

General

 

1.         It is common to say that we are now living in what is called the “information age,” an age in which advanced technology makes it possible to transmit large-scale data in respect of the world around us immediately. Infinite information flows through various media – especially the Internet and the cellular communications related to it – providing a rapid answer to all the issues that concern us in our lives. The general public takes an active and intensive role in the flow of information and it streams data into the information market that affects different strata of the fabric of our lives.

 

As everyone knows, the technological age has not stopped developing merely with the creation of infrastructure for the ongoing transmission of information, and over the years modern technologies have also been created to enable gathering the information that flows in the virtual world and processing and analyzing it according to the different needs of those who have the ability to do so. Combining the ability to transmit information rapidly and the ability to gather it has given various entities – from State authorities, through private corporations to organized crime – a wide variety of tools and abilities they did not previously have.

 

This is also the background to the enactment of the Communications Data Act – the subject matter of the petitions – which resulted from an attempt to regulate how the various State authorities’ powers to obtain communications data on Israel’s residents are exercised in the course of performing their public duties, as well as to regulate how those data are kept by the authorities. This is of particular relevance in terms of how enforcement agencies follow the Act when performing their duties, and it necessitates a balance between the purpose of enforcement and the infringement of individual liberty.

 

2.         The Communications Data Act prescribes arrangements, as detailed below, which enable investigatory authorities – the Israel Police, the Military Police CID, the Military Police Internal Investigations Unit, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – to obtain communications data of telecommunications subscribers generally. According to the Act, a telecommunications subscriber is anyone who receives telecommunications service. The Act defines “telecommunications” as “broadcasting, transfer or reception of signs, signals, writing, visual forms, sounds or information by means of wire, wireless, an optical system or other electromagnetic systems.” Therefore, a telecommunications subscriber is anyone who makes use of a telephone, mobile phone or computer for the transfer of messages of any type (conversations, text messages, email and the like.) This means the Act makes it possible to obtain communications data from all the communications companies – the various different cellular and line telephone companies and Internet providers. The communications data covered by the Act include subscriber data, which include the subscriber’s identifying particulars, details of his means of paying for the service, the address where the telecommunications device used by him is installed and more; location data, which include pinpointing the peripheral equipment in the subscriber’s possession; and traffic data, which include details of the type of message transmitted, its duration and scope, identification details of the subscriber who is the source of the message and also the subscriber to whom it is addressed, the time of the message’s transmission and more. The Act clarifies that obtaining those data does not include obtaining the content of the messages transmitted. The ability to obtain the content of communications messages is limited, and it is regulated by the Secret Monitoring Act, 5739-1979 (hereinafter referred to as “the Secret Monitoring Law,”) that is not subject to constitutional review here.

 

In brief, it can be said that the Act regulates three major aspects. The first concerns granting the relevant authorities power to obtain an ex parte order for obtaining communications data. The second is issuing an administrative permit, without filing a motion with a court, to obtain communications data in the cases detailed in the Act. The third is a database set up by the Israel Police to include several sets of data prescribed in the Act.

 

3.         Two similar petitions challenge the Act, focusing on complaints related to those three arrangements (hereinafter “the petitions.”) On April 28, 2008 the Association for Civil Rights in Israel filed a petition in which the Association maintains, in a nutshell, that the arrangements established by the Act to obtain communications data infringe the right to privacy disproportionately, and that the Act, as it is, is therefore unconstitutional. On November 26, 2008 the Israel Bar filed a petition aiming, in a nutshell, to limit the Act’s application to those who have privilege (hereinafter referred to as “professionals,”) such as attorneys and their clients, and also to restrict the ability to use the information collected under the Act as evidence in court proceedings. At a later stage the Press Council joined the first petition as amicus curiae, seeking to emphasize the harm anticipated from implementing the Act on journalists and their work because of the possibility created by some of the Act’s provisions that journalists’ sources would be exposed. With the State’s oral consent, given during a hearing held before us on February 22, 2009, these petitions were heard as if a provisional order had been issued.

 

Discussion

 

4.         The petitioners’ arguments in the petitions are rooted in constitutional law, which are the foundation for the constitutional challenge against the Act. We shall therefore review their arguments according to the process of constitutional review accepted in our jurisprudence; in the first stage we shall review whether the Act does indeed infringe upon a protected constitutional right; in the second stage we shall review whether the Act meets the requirements of the Limitations Clause – whether it is for a proper purpose and whether it meets the criteria of proportionality accepted in our case law. In this latter respect we shall focus the discussion on the three main arrangements that make up the Act, which the petitioners’ arguments mainly target . Alongside this, we shall consider whether the Act overall, given all of its arrangements, meets the criteria of proportionality. After all this we shall consider several other arguments made by the petitioners.

 

Does the Act Infringe a Protected Human Right?

 

The Right to Privacy in the Information Age

 

5.         The petitioners’ central complaint is that the Communications Data Act infringes the constitutional right to privacy. The right to privacy is enshrined in section 7 of Basic Law: Human Dignity and Liberty, which is titled “Privacy” and provides as follows:

 

“(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, or on or in his body or personal effects.

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

 

In light of the clear, express language of the Basic Law, it appears we need not go into the extensive case law that has elucidated these express statements for the purpose of these petitions. Instead, suffice it for us to refer to the classic definition of the right to privacy, developed by Warren & Brandeis back in 1890, as “the right to be let alone” (S.D. Warren, L.D. Brandeis, The Right to Privacy, 4 Harv L. Rev. 193 (1890)). As was held in the past, the right to privacy “draws a domain in which the individual is left to himself, to develop his ‘self,’ without the involvement of others (and see HCJ 2481/93, Dayan v. The Jerusalem District Commander, IsrSC 48(2) 456, 471 (1994) and the references there,) and as such it is worthy of constitutional protection.

 

Nevertheless, given current reality it would be difficult for us to discuss the right to privacy without giving weight to the complexity of protecting it in the modern age because of the challenges that modern technology poses to the proper protection of the right (Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, at 35-36, 44-55, 57-88 (5771) (hereinafter: “Birnhack”); David Brin, The Transparent Society – Will Technology Force Us to Choose between Privacy and Freedom?, at 3-26 (1998)).

 

On one hand, it is clear to everyone that modern technological resources give those with access to them – be they the State or private individuals – numerous very sophisticated tools to penetrate a person’s private domain that used to be considered almost inaccessible: means of surveillance and identification, computerized search methods and organized data collection in electronic databases. On the other hand, at the same time technology also provides tools that make greater protection of privacy possible, enabling the blurring of identity in the virtual domain and the performance of acts in the real world that used to necessitate complete exposure: from economic interactions through to the creation of virtual, interpersonal connections. For us, this complexity means an ambivalent attitude to the adoption of such technologies and their role in protecting the constitutional right to privacy. Moreover, it is not unusual these days to hear arguments that the behavior of individuals in the information age can be regarded as their implied waiver of privacy rights. This is in light of a prima facie informed choice by individuals in society to conduct social, political and economic interaction over the Internet and cellular communications, with clear knowledge of the potential exposure of that information (see further, Birnhack, at 267). It should be noted that only recently the significance of this implied waiver arose in a decision by the United States Supreme Court that came down on January 23, 2012 (United States v. Jones, hereinafter: “Jones,” available at http://www.supremecourt.gov/opinions /11IsrSCf/10-1259.IsrSCf). All these aspects demonstrate to us the complexity of imposing constitutional balances and delineating the boundaries of the right to privacy in the present age. We have borne this complexity in mind when ruling on the petitions.

 

The complexity of positioning the boundaries of protection of privacy is particularly highlighted against the background of the “concern about excess power of the State, which may gather together under its control extensive information about citizens and residents and may abuse such information” (Then Justice A. Grunisin HCJ 8070/98, The Association for Civil Rights in Israel v. The Ministry of Interior, IsrSC 58(4) 842, 856 (2004)). This concern increases as the government gains more sophisticated means, making more extensive infringement of privacy possible. On the other hand, it is also clear that modern technology is a vital, important tool in the hands of the government, a tool that significantly assists the government in performing its duties. In fact, barring the authorities from making reasonable, balanced use of technological tools available to them could significantly impair their ability to perform their law enforcement duties. This is because technological progress and the tools that it develops are not only in the authorities’ possession but are also extensively used by both small and large criminal groups that long ago realized their advantages strongly facilitate their objectives (see also Birnhack, at 175-176). In this technological battle, which continues to be waged, he who lags behind is likely to have the lower hand. It can therefore be said that the authorities must almost certainly keep their hands on the technological pulse and rapidly adopt advanced tools and systems to help them do their work.

 

We considered this complexity in the past in a discussion that was focused on the proper regulation of the laws of search regarding “intruding” into one’s computer:

 

““Needless to say that due to the potential infringement of the individual’s rights when intruding into computer material, such regulation is essential and therefore ought to be completed soon. In the present era, computers have become a prime work tool and means of communication and an almost infinite archive that stores one’s memories, the fruits of his work and his negotiations (as to the potential infringement of one’s rights when intruding into computer material, see Sharon Aharoni-Goldenberg, Hacking into Computer Systems – the Ideal and Actual Scope of the Offense, The David Weiner Book on Criminal Law and Ethics 429 (2009) (hereinafter: ‘Aharoni-Goldenberg’). At the same time, the intensive use of computers also makes them a treasure trove of incriminating evidence and relevant information that can and should be used by investigatory authorities in their battle against lawbreakers and criminals. The complexity and sensitivity of the subject makes it necessary for the Act’s adaptation to technological innovation and the potential harm that follows technology, to be undertaken not only seriously and responsibly but also with due speed” (CrimLA 8873/07, Heinz Israel Ltd v. State of Israel, (unreported, January 2, 2011) para. 17 of the opinion).

 

The statement is also apt herein.

 

The balance between these extremes – the concerns of government’s over-intrusion into the individual’s life, on the one hand due to increased technological capabilities, and the importance of recognizing the advantages that technological resources provide as a means to ensure security and public order, on the other hand – is what lies at the heart of the petitions herein. Making these balances is undoubtedly intricate. In our opinion we shall examine whether the balance the legislature reached in the Act’s arrangements meets the constitutional criteria recognized in our legal system.

 

In this context we would mention that this complexity – which affects the right to privacy in the modern era – is certainly not specific to Israel, and many countries seek to contend with it. As mentioned, as recently as January 23, 2012 the United States Supreme Court decided Jones, which is important to this issue. In that case the question that arose was whether attaching a GPS tracking device to a person’s private vehicle amounted to a search, which is protected by the Fourth Amendment to the United States Constitution. The United States Court unanimously held that the search violated the Constitution and that an appropriate judicial order was therefore necessary. Nevertheless, the Justices were split on the proper criterion for the application of the Fourth Amendment – whether it should be in the context of the doctrine of trespass under common law (the majority opinion) or in the scope of the criterion adopted in Katz v. United States, 389 U.S. 347, namely the “reasonable expectation of privacy” (the minority). The ability of different criteria to adapt to the changing technological environment that makes the physical dimension underlying the search less relevant given the technological surveillance capabilities that the authorities currently possess was, among other things fundamental to the difference in opinions between Justices.

 

6.         We would also mention the important protection of the right to privacy provided by the Protection of Privacy Act, 5741-1981, which preceded the Basic Law and prohibits infringement of privacy. Although the Protection of Privacy Act expressly provides that a security authority is immune from responsibility under that statute, the exemption is limited to “an infringement reasonably committed in the course of their functions and for the purpose of carrying them out” (section 19(b) of that Act.)

 

Infringement of the Right

 

7.         The Act relevant to these petitions makes it possible, as noted, to obtain communications data relating to the conversations between a subscriber and other parties, the type of messages that the subscriber transmits, their scope, duration and more. In fact, as its language additionally reflects, the Act permits obtaining all the information concerning the message transmitted, other than its contents. In addition, the Act allows obtaining extensive information about the subscriber, independently of the message he transmitted – the subscribers’ current location (looking back and to the future), address, the means of payment used to purchase the device in his possession and more. In its general wording the Act allows obtaining communications data about any person involved in an offense, whether he is the victim, suspect or someone else who can lead investigatory entities to a clue. Moreover, though incidentally, the scope of the powers granted by the Act includes the authority to obtain other communications data relating to other individuals who are not necessarily involved in any offense, with whom the person who is involved in the offense has been in touch.

 

On its face, reviewing the powers granted by the Act suffices to reach the conclusion, which even the State does not dispute, that the Act indeed violates the constitutional right to privacy. Clearly, in surveillance of a subscriber, the investigatory authority can observe his habits in using a mobile phone, a computer or the Internet and thereby locate his social network and his activity both during working hours and in leisure time. Even assuming that the surveillance is justified and even if the subscriber is somehow involved in an offense that should be prevented, there is no doubt that his privacy is infringed when his moves are studied in such a way. Clearly, the surveillance of someone, even for the purpose of a criminal investigation, can reveal other details, the knowledge of which constitutes an infringement of the person’s privacy, such as health problems, consumption habits, sexual preferences and the like. The very knowledge of them infringes the person’s privacy after the data is obtained and they certainly have potential to infringe his privacy when they can be used for the purposes of investigation. This is also the case in respect of third parties with whom the individual involved in the offense has any contact. In their petition, the petitioners draw a scenario similar to that described by George Orwell in 1984. Even without finding that we have already reached such a horrifying scenario, there is no doubt that the feeling of surveillance – the knowledge that the investigatory authorities are watchful and can scrutinize anyone, anywhere and at any time – has a disciplining effect on a person’s behavior even in the private domain (Michel Foucault, Discipline and Punish: the Birth of the Prison, 195-228 (1977); Bart Simon, The Return of Panopticism: Supervision, Subjection and the New Surveillance, 3(1) Surveillance and Society 1-20 (2005)). Such being the case, it appears that we can assume that the Communications Data Act does indeed infringe upon the constitutional right to privacy.

 

8.         As to the extent of the Act’s infringement of the right to privacy, the petitioners compare the infringement of privacy caused by the Act and that caused by the Secret Monitoring Act. According to them, the infringement is on a similar scale, which, in the appropriate cases, necessitates a comparison between the various arrangements in the Secret Monitoring Act and the Act relevant to these petitions. The State again emphasized to us that, in its view, the comparison is not appropriate and that the infringement caused by the Communications Data Act is not similar to that caused by the Secret Monitoring Act. Thus, it was explained, for example, that the Communications Data Act does not permit actual listening to conversations or reading written transmitted messages, while the Secret Monitoring Act allows far greater exposure of one’s privacy. According to the State, the infringement caused by the Communications Data Act is more akin to that caused by search warrants and production orders of different types.

 

It seems that the State’s position is accepted in other legal systems. Thus, for example, American legislation distinguishes between four basic categories of electronic surveillance (see the Electronic Communications Privacy Act 1986 (ECPA) established by Chapter 18 of the United States Code (hereinafter: “USC”), the first category, and the greatest infringement of privacy, is secret monitoring (which is regulated by Chapter 1 of the ECPA). The other categories are perceived as constituting lesser infringements of privacy: electronic tracing devices (which in certain respects provide information similar to location data in the Israeli statute) are perceived as infringing privacy less than secret monitoring; obtaining data from communications service providers (similar in part to subscriber data in Israel) is a category whose infringement is even lower (the obtaining of which is regulated by the Stored Communications Act, which is part of the ECPA); and finally what are known in American law as pen/trap taps (electronic surveillance devices that make it possible to obtain data in real time about telephone numbers that have been dialed and received on a particular telephone device) that are defined as the least infringing surveillance category. In this context we would first note that the United States Patriot Act (2001) extended the definition to additionally include data about Internet addresses. Second, American courts are split as to whether permitting the use of these surveillance devices also permits obtaining data on the location of cellular phones (see further: Deborah F. Buckman, Allowable Use of Federal Pen Register and Trap and Trace Device to Trace Cell Phones and Internet Use, 15 ALR Fed. 2d 537 (2006)). This difference in the extent of the infringement is demonstrated in different arrangements formulated in American law for the different categories’ application, which include looser requirements as the infringement caused is mitigated. The same is the case regarding different data that can be obtained from communications providers under the Stored Communications Act mentioned above, which sets different arrangements depending on the type of data sought and distinguishes, for example, between identification data, which can also be obtained through an administrative subpoena (§2703(c)2, Chapter 18 of the USC), and the contents of transmitted messages, which require a search warrant with judicial authorization (§2703(a)(b)). Thus, according to American law’s approach, in light of the relatively limited infringement caused by obtaining data through surveillance devices of the pen/trap taps type, it was held in Smith v. Maryland, 442 US 735, 745 (1979) that individuals have no inherent expectation of privacy in the telephone numbers that they voluntarily dial. Consequently, it was held there that a motion to obtain such data cannot be considered a “search,” as protected by the Fourth Amendment to the Constitution and therefore investigatory authorities need not meet the requirements necessary for obtaining a search warrant. Nevertheless, as stated above, on January 23, 2012, the United States Supreme Court unanimously held in Jones that fitting a GPS tracking device to one’s private motor car and monitoring his movements for 28 days did constitute a “search” that is protected under the Fourth Amendment to the Constitution and therefore did necessitate an appropriate judicial order. English law also draws a similar distinction in protecting content data compared to communications data (see, for example, section 1 the Regulation of Investigatory Powers Act, 2000, c. 23 (Eng.) (hereinafter: “the RIPA,”) which requires an order for obtaining the contents of communications, as opposed to sections 21 to 25 of the same Act that grant powers to numerous authorities to obtain other communications data.)

 

It should be said that the parties’ positions regarding the extent of the infringement upon the right to privacy as a result the Communications Data Act impacted those parties’ positions regarding the Act’s arrangements and their proportionality. We have given consideration to these aspects and reached the overall conclusion that for the purposes of the petition we need not decide whether the infringement of the right to privacy in the Act is greater or less than the infringement of privacy resulting from the Secret Monitoring Act. It should not be overlooked that given modern technology, the State’s position creates a somewhat artificial distinction between content data and data, the obtaining of which the Act permits, because it appears that the differences between them are not so clear (see further Omer Tene, Look at the Pot and See What Is in It: Communications Data and Personal Information in the 21st Century, in Legal Net: Law and Information Technology 287 (Niva Elkin-Koren and Michael Birnhack eds., 2011). However, for the purpose of these petitions we need only find that the Communications Data Act indeed infringes upon the constitutional right to privacy, and we do not consider it necessary to establish strict rules on the relationship between the data obtained under the Secret Monitoring Act and the data obtained under the Act subject to our review.

 

In any event, it is clear that such infringement in itself does not render striking down the Act as unconstitutional. Investigatory powers, like penal powers, for the most part inherently infringe protected human rights. We must therefore analyze – under our accepted constitutional system – whether the infringement of the constitutional right which results from the Act’s implementation meets the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty. Should it become clear that the infringement meets such requirements, there would be no constitutional reason to strike down the Act.

 

9.         However, before moving on to study the conditions of the Limitations Clause, in view of the petitioners’ pleas, we must also review whether alongside the right to privacy, the Act infringes other protected rights. According to the Israel Bar, In addition the infringement of privacy, the Act does infringe other rights, namely the rights embodied in the professional privileges that have been recognized by statute and case law, including the right to be represented by defense counsel, freedom of the press, freedom of association, free expression, freedom of occupation, freedom of religion and more. Naturally, the Bar devoted most of its arguments to the infringement that the Act causes, as it argues, to attorney-client privilege and to the client’s right to be assisted by an attorney, even when the attorney is not at all involved in the offense.

 

Indeed, as a general rule, it can be said that the infringement of privilege established in statute might infringe the rights the privilege protects. Among other things, as the State also mentions in its reply from January 11, 2009, the infringement of attorney-client privilege might infringe the client’s due process rights. Similarly, infringing the privilege of a journalist’s source might lead to an infringement of the journalist’s freedom of expression. Moreover, infringing the privilege of other professionals presumably impairs – if only to a certain extent – their professional activity. On its face, professionals’ freedom of occupation is thereby also infringed because such infringement erodes their ability to assure their clients’ absolute confidentiality about the very relationship with them, which is an important aspect to many clients, especially when the mere need for the professional is something that the client wishes to conceal, for example need for psychological treatment or support by the social services.

 

Nevertheless, according to the State, the Communications Data Act – which as mentioned, prohibits the transmission of message content – does not infringe upon the various different professional privileges (except in the case of journalists, as discussed below.) This is because obtaining data concerning the very relationship between the privileged person and the professional is not within the scope of the privilege recognized by the Israeli legal system.

 

10.       Courts have reviewed the extent of the various different professional privileges several times in the past and have held that professional privileges essentially extend to the content of the conversations held between the professional and the privileged person but not to the very existence of a relationship with the professional. The purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional. Therefore, it appears that there is merit to the State’s position that, generally, when the statute does not permit obtaining the contents of the conversation it does not infringe upon the protection that the privilege affords to the privileged person. (See also on medical privilege: HCJ 447/72, Dr Bernardo Ismachovitz v. Aharon Baruch, Tel Aviv and Central Investigatory Assessing Officer, IsrSC 27(2) 253, 259 (1973) (Justice Y. Sussman); on attorney-client privilege: MP 227/83, Eliyahu Miron et al v. State of Israel, IsrSC 45(1) 62, 79 (1983) (Judge Z Cohen); MP (TA) 1529/83, Israeli, Yerushalmi, Cohen & Co. v. State of Israel, DCJ 5746(3) 265 (1985), which was upheld in HCJ 301/85, Jacob Israeli v. Israel Levy, Deputy Chief Secretary of the Tel Aviv – Jaffa District Court, IsrSC 40(1) 159 (1986)). See also Gabriel Kling, Ethics in Advocacy 418 (2001). See also in American Law: Baird v. Koerner 279 F. 2d 623 (9th Cir. 1960).

 

It is fitting here to emphasize that professional privilege, including attorney-client privilege, is for the benefit of the client, not the professional, as has already been held:

 

“The privilege in section 90 above is that of the client and is first and foremost designed to guarantee an honest and open relationship between him and the attorney when the latter’s professional services are needed, without the client being concerned or afraid that matters or documents disclosed during the consultation or handling of his case will ever be used against him without his consent” (BAA 17/86, John Doe v. Israel Bar, IsrSC 41(4) 770, 778 (1987), Justice M. Beiski).

 

As for journalists, the situation is slightly different. We have already discussed the importance of free press in many decisions by this Court as well as the difference between journalism and other professions. Thus, in CFH 7325/95, Yedioth Aharonoth et al v. Kraus et al, IsrSC 52(3) 1, 53 (1998) Judge Y. Zamir stated that:

 

“A free press is not only a necessary result of democracy but it is also a necessary condition for democracy. It is a necessary condition for a representative regime, for fair and functioning governance and for human liberty. It can in fact serve as a litmus test for democracy: there is free press, so there is democracy; there is no free press, so there is no democracy. One of the main functions of the press in a democracy is to regularly and effectively criticize and check all the state agencies, and first and foremost the government. To enable the press to perform that function properly, it must be free of supervision or other government involvement.”

 

As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such sources. This Court, by Justice M. Shamgar, discussed the protection afforded a journalist’s source in the Tzitrin case (MP 298/86 Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District IsrSC 41(2) 337 (1987)). Justice Shamgar stated there: “protection of sources of information necessary for the performance of a journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for assurance that the source will not be revealed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (id., at 358). We shall return to this relevant distinction below when we come to discuss its significance in respect to the various arrangements concerning those who have privilege.

 

To summarize, given the concept of privilege in our legal system, apart from the case of journalists, the petitioners were unable to demonstrate that the Communications Data Act per se infringes the various professional privileges created by statute and case law. To the extent that there is an infringement, it is marginal to the protected right and not at its core, which enjoys broad protection. Consequently, nor have we found it possible to show infringements to other rights intended to be protected by the privilege.

 

Nevertheless, and for the purposes of the discussion here, we are willing to assume the possibility of obtaining communications data about professionals also constitutes a derivative infringement of the right to privacy. Consequently, when analyzing the infringement of the right to privacy as detailed above, it is proper to review it – together with the right’s derivatives by applying the Communications Data Act in light of the Limitations Clause.

 

The Limitations Clause

 

Proper Purpose

 

11.       The purpose of the Act, as put to us by the State, is to give the Police and other investigatory authorities effective tools for the battle against crime in the developing, modern world. According to the State, the dramatic development of the modern world of communications has not passed over criminals, and the media have become a convenient platform to improve the means of communication and commission of crimes. Consequently, enforcement authorities must contend with such capabilities and at the same time improve their own. It was therefore argued that an inability to obtain communications data would place law enforcement authorities at a significant disadvantage compared to criminals, both when it comes to detection and when it comes to gathering the evidence for their prosecution. In addition, the State pleads that the purpose of the Act is to make it possible to deal with urgent situations quickly, for example when a person’s life is on the line or when it is necessary immediately to find offenders who have already committed crimes. According to the State, communications data – and especially pinpointing the telephone – might save lives and significantly help the prosecution of offenders. It appears that at this level there is no dispute between the parties because, as emerges from the petitions, the petitioners also agree that the purpose of the Act is a proper one and in fact they are merely contesting some of the arrangements contained in it (and see para. 23 of the Association for Civil Rights’ petition and para. 22 of the Bar’s petition).

 

We would mention that in addition to these purposes, the State mentions another, which is to regulate the obtaining of communications data which until now, according to it, has been regulated generally and broadly in the scope of section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 (hereinafter referred to as “the Criminal Procedure Ordinance”) and internal guidelines of the Attorney General. According to the State, the Act is designed to regulate and limit investigatory authorities’ use of communications data in order to reduce the infringement of human rights as much as possible. Clearly this purpose itself is also a proper one. The petitioners do not dispute this, and they also agree that the creation of a complete legal arrangement for obtaining communications data by enforcement authorities is justified (see para. 22 of the Bar’s petition). Indeed, as already mentioned above, it is difficult to conceive these days of law enforcement without monitoring communications data – from locating offenders when they commit offenses, tracking them and making immediate arrangements to stop an offense while it is committed (for more see Birnhack, at 53). It is therefore possible to sum up by saying that the Communications Data Act was legislated for a proper purpose. It is also clear that the Law is not inconsistent with the values of the State of Israel.

 

As such, our main discussion will address the proportionality of the Act and its arrangements. The petitioners themselves concentrated their constitutional arguments on the three basic arrangements relating to the possibility to obtain a judicial order under section 3; the possibility to obtain an administrative order under section 4; and the establishment of a database under section 6. At the same time, the petitioners’ case did not seek the Act’s striking down as a whole, and the Association for Civil Rights even emphasized in its petition that it does not dispute its “constitutionality as a whole”. Our discussion will therefore first focus on reviewing the individual arrangements challenged in the petition. We shall then also briefly discuss the proportionality of the Act as a whole, considering the mechanisms and internal balances in it.

 

The individual arrangements prescribed by the Law, the proportionality of which we shall discuss below, are as follows –

 

(a)       The Arrangements Prescribed in the Law

 

Section 3 – A Judicial Order

 

12.       Section 3 prescribes an arrangement that enables an investigatory authority, as defined by the Act, to obtain communications data by applying to the magistrates court in the jurisdiction where the investigatory unit is located or the offense for which the data sought was committed. Because of the section’s importance, we shall quote it below:

 

“Order to Obtain Communications Data from the Database of a Telecommunications Licensee

3.         (a)       The court may, upon a motion by a police officer authorized by the Inspector General, or by a representative of another investigatory authority (in this section referred to as “the motion”), permit by order the Police or the other investigatory authority to obtain communications data from the database of a telecommunications licensee as prescribed in the order, if it is satisfied it is necessary for any of the purposes specified below, provided that obtaining such communications data does not infringe any person’s privacy beyond that necessary:

                        (1)       To save or to protect human life;

                        (2)       To detect, investigate or prevent offenses;

                        (3)       To detect and prosecute offenders;

                        (4)       To lawfully confiscate property.

           

            (b)       Where the subscriber subject the motion is a professional, the court shall allow communications data to be obtained as provided in subsection (a) only where there are grounds to suspect that the professional is involved in the offense for which the motion is filed.

                       

            (c)       The motion shall be filed in writing, and it shall be supported by a declaration under warning, or by an affidavit.

           

            (d)       All the following shall, inter alia, be stated in the application:

                        (1)       The facts establishing the court’s jurisdiction;

                        (2)       Details of the identity and position of the filing party and the source of his authority to file for an order under this section;

                        (3)       A summary of the facts and information on which the motion is based;

                        (4)       The purposes for which the communications data are needed;

                        (5)       The requested communications data;

                        (6)       The period of time for which the communications data are requested, including the time period preceding the order, and – subject to the provisions at the bottom of subsection (g) – including the time period after the order (in this section referred to as “future communications data”);

                        (7)       Identifying details of the subscriber or the telecommunications installation for which the communications data are requested, if known in advance, including whether the subscriber is a professional covered by professional privilege under any law (in this Act referred to as “professional”); in this paragraph, “law” includes case law;

                        (8)       Details of previous motions to obtain communications data regarding the same person in the same investigation file (in this section referred to as “previous motions”).

 

            (e)       Privileged material, on which the information specified in subsections (d)(3) and (4) is based, shall be made available only for study by the court; the material shall be marked and returned to the moving party after it has been studied.

 

            (f)        (1)       The following shall be attached to the application:

 

                                    (a)       Decisions of the court that heard previous motions;

                                    (b)       Copies of previous motions and transcripts of court hearings on previous motions, to the extent that those were heard by a different court.

                        (2)       Notwithstanding the provisions of paragraph (1), the court may – for special reasons that shall be recorded – hear an urgent motion even without the documents in that paragraph, if it is satisfied that it has the information it needs in order to decide the motion.

 

            (g)       When deciding a motion and when setting the period for which the communications data will be provided, the court shall consider, inter alia, the need to realize the objectives detailed in subsection (a), the extent to which a person’s privacy will be infringed, the severity of the offense, whether the subscriber is a professional and the kind of communications data permitted to obtain under the order. The court may set different periods for obtaining communications data according to the type of communications data it permitted to obtain, provided that the maximum period for obtaining future communications data shall not exceed thirty days from the day of the order.

 

            (h)       All the following shall be specified in an order under this section:

                        (1)       The grounds for making the order, and for an order regarding a subscriber who is a professional – detailed grounds for making the order under such circumstances;

                        (2)       The communications data that may be obtained under the order;

                        (3)       Identifying details of the subscriber or of the telecommunications installation, for which the communications data were requested, if known in advance;

                        (4)       The period of time during which communications data may be obtained under the order;

                        (5)       The date on which the order is issued and the date on which it expires.

 

            (i)        The grounds for issuing the order, as provided in subsection (h)(1), shall not be communicated to the telecommunications licensee to whom the order applies.

 

            (j)        An order issued under this section shall be in effect for thirty days from the day of its issue. 

 

            (k)       The provisions of this section shall not limit the court’s power to grant additional orders in the same investigation.”

 

As can be seen, this comprehensive arrangement was established in primary legislation and it details the procedure of issuing a judicial order granting permission to obtain communications data. According to the arrangement, representatives of the competent authorities may request a communications data order from a court in the cases listed in the section. The particulars of the motion, and the factors that the court ruling on the motion must consider, are detailed and include reference to preventing unnecessary infringement of the right to privacy of the person for whom the order is sought and that of others.

 

13.       The petitioners’ arguments as to this arrangement are essentially twofold. Firstly, they maintain the objectives defined in sections 3(a)(2) and 3(a)(3) are overly broad. The petitioners ask us to read into these sections a restriction whereby the goal of a judicial order under the Act can be the investigation of a particular, specific offense or the detection of an offender who has committed a particular offense, rather  than general intelligence activity to be used by the investigative authorities in their regular work of detecting offenses and offenders. Second, the petitioners assert that applying the arrangement to misdemeanors violates the proper balance between infringing the right to privacy and the proper public interest of preventing dangerous crime, and the section should therefore only be applied to offenses that are a felony.

 

In its reply to the petitioners’ arguments, the State argued generally that the Act, including the arrangement now being discussed, is balanced, detailed, proper and practical, and that it improves, rather than violates, the protection of privacy. This is essentially considering the situation before the Act came into effect, when investigatory authorities could request communications data from communications companies with a court’s order to produce documents issued according to section 43 of the Criminal Procedure Ordinance upon the request of investigatory entities. The State explains that the legislature was aware of the possibility of infringing the right to privacy but, according to it, the current Act includes mechanism to properly protect citizens against disproportionate infringement of their rights. With reference more specifically to the petitioners’ first argument, the State asserted that it did not consider additional conditions to the Act’s sections to be justified. This is because, according to the State, the sections of the Act in any event require demonstrating a concrete suspicion in order to file the motion. Thus the petitioners’ concern about a general motion that involves no suspicion is dispelled. The mandatory reports to the Knesset also limit the petitioners’ concern. We shall consider the petitioners’ arguments in order.

 

The Breadth of the Grounds for Issuing a Judicial Order under Section 3

 

14.       According to the language of sections 3(a)(2) and (3) they do prima facie permit the investigatory authorities to act in the broadest of circumstances. According to those sections, when issuing an order the court may consider general objectives, like detection of offenses or detection of offenders. The acts specified in subsections (1) to (4) do in fact define all the functions of the investigatory authorities, and thus under the language of the Act the court may therefore issue an order to obtain communications data regarding any activity by such authorities. This arrangement meets the first requirement of proportionality because it maintains a rational connection between the objective of preventing crime and detecting and penalizing offenders. Nevertheless, the arrangement does create several difficulties in terms of the second proportionality requirement. In other words, does the arrangement in section 3 of the Act constitute the least restrictive means of those available to the investigatory authority. According to the petitioners, the purpose of the Act can be achieved by taking less restrictive means: exercising the power prescribed in sections 3(a)(2) and 3(a)(3) only in cases where the communications data is requested for detecting a particular offense or a specific offender, as opposed to general intelligence activity for detecting offenses or offenders.

 

15.       According to the petitioners, such a limiting requirement can be read into the Act under the doctrine known (essentially in Canadian law) as “reading in”. This doctrine seeks to read into the statute under judicial review a provision that will cure its unconstitutionality (on “reading in” see: Aharon Barak, Interpretation in Law, Part Three – Constitutional Interpretation 763 (5754), hereinafter: “Interpretation in Law”, HCJ 8300/02, Gadban Nasser v. Government of Israel (unpublished, May 22, 2012 (hereinafter: “Nasser”) paras. 55-60). It should first be said that the use of this tool is not the appropriate way to limit the arrangements in the Act as the petitioners seek. The use that is generally made of this doctrine has sought, in the name of the principle of equality, to apply the statute under review to categories the legislature omitted, reading new categories into the statute, all within the legislative purpose. This was done, for example, in HCJ 721/24, El Al Israel Airlines Ltd v. Jonathan Danilevitz, IsrSC 48(5) 749 (1994) (hereinafter: “Danilevitz”), when a new category – same-sex couples – was introduced into the beneficial collective agreement (and see Danilevitz, p. 764-67 and sources there; Interpretation in Law, Id.; see also s, para. 60). Our case is different. In the circumstances of the Act, we are not faced with a question of preferring certain categories to categories to which the Act, according to its plain language, does not apply, and we have no interest in infringing equality. Even the petitioners do not indicate such infringement. We therefore do not believe the doctrine of “reading in”, with all its implications, should be applied in the present circumstances. At this time, when the Act is before us at first instance, we must make use of the inherent tools at the Court’s disposal – interpretation of the statute from within it and according to its language. This is how we must interpret the arrangement in section 3 of the Act because, as we previously held, so long as the potential infringement involved in the provision of the statute can be limited by interpretation, the interpretive move should be advanced, thereby exercising constitutional review according to the Limitations Clause (and see CrimA 6659/06, John Doe v. State of Israel (unpublished, June 11, 2008) hereinafter: “the Unlawful Combatants case”, para 7).

 

As we know, the Court’s interpretative work is done according to the limitations obliged by the language and purpose of the statute, in addition to presumptions of interpretation accepted in our legal system which the interpreter may utilize (the Unlawful Combatants case; HCJ 9098/01, Genis v. Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) (hereinafter: “Genis”). As the point of departure in the work of interpretation the Court will, so far as possible, seek to avoid striking a statute enacted by the Knesset in deference to the legislature and the separation of powers that stands at the centre of the Israeli legal system. The Court will therefore often prefer to leave the statute as it is, applying an interpretation that is adaptable it to the constitutional system and fundamental values. Accordingly, we shall seek to adopt an interpretation of the text that leads to the least infringement of human rights. As we said, for example, in the Unlawful Combatants case:

 

“Our legal system presumes the legislature has knowledge of the contents and effects of the Basic Laws and every statute enacted after them. According to the presumption, a statutory provision is reviewed in an attempt to interpret it so as to befit the protection extended to human rights by the Basic Law. This achieves the presumption of normative harmony, according to which ‘a discrepancy between legal norms is not presumed and every possible attempt is made to maintain ‘legal uniformity’ and harmony between various norms’ (A. Barak, Interpretation in Law – the General Doctrine of Interpretation (1992), 155).  … An effort of interpretation should be made in order, as much as possible, to reduce infringement on liberty so that it be proportional for the purpose of achieving security and no more. Such interpretation will be consistent with the basic philosophy prevailing in our legal system, that a statute ought to be implemented by interpretive means and as much as possible striking it down for unconstitutionality must be avoided” (id, para. 7).

 

And in HCJ 4562/92, Zandberg v. The Broadcasting Authority, IsrSC 50(2) 793, 812 (1996) President A. Barak stated:

 

“It is better to achieve limits on a statute by interpretation rather than having to limit it by declaring part of the statute void for violating provisions of a Basic Law… A reasonable interpretation of a statute is preferable to finding it unconstitutional.”

 

According to our said philosophy, based on the assumption that the legislature intends to limit infringement on human rights as much as possible, and especially the human rights enshrined in and protected by Basic Laws, there might be cases where, in order to achieve the purpose of the text and avoid striking it down, it is justified to interpret it more narrowly so that it will not apply, for example, to a particular category of circumstances.

 

President A. Barak’s statement is apt here:

 

“May the commentator limit the broad language of the text in order to achieve the purpose of the text? When the text prescribes a legal arrangement that applies to ‘everyone’ with respect to ‘everything’ in ‘all circumstances’, may the interpreter – who seeks to achieve the underlying purpose of the text – interpret the text so it does not apply to a particular category of persons (not ‘every’ one,) does not apply to a particular category of things (not ‘every’ thing,) and does not apply to a particular category of circumstances (not ‘all’ circumstances)? The answer to this question in Israel and also in comparative law is in the affirmative. I considered this in the Zandberg case, stating: ‘When the language of the statute is broad, the judge may and can give it a narrow meaning, extending to only some of the options emerging from the language, provided that he thereby achieves the purpose of the enactment. That is the case in Israel. That is the case in comparative law…

 

            … Indeed, in order to achieve the underlying purpose of the statute – be it a specific or general purpose – the interpreter may give the broad language of the statute a narrow meaning” (Genis, p 37).

 

From the General to the Specific – the Interpretation of Section 3

 

16.       Hence, it appears that under the circumstances here the petitioners’ application can be considered in terms of interpretation, as a request for narrow interpretation that would limit investigatory authorities’ ability to rely on general objectives for the purpose of orders to obtain communications data. To that end, we must, to use Justice M. Cheshin’s metaphor, “peel the statute as one peels the integuments of an onion: healthy ones are kept and unhealthy ones discarded” (Genis, at 268). The “unhealthy integuments” are those cases where the investigatory authority might have applied to court for an order to obtain communications data for achieving general objectives. Although according to the language of the Law – and its language alone – there is no bar, on its face, to doing so, it does appear that in light of constitutional interpretation, consistent with the language and purpose of the Act, the investigatory authority is not authorized to act in that way and must apply for orders only in cases where the order is necessary for detecting a particular offender or for investigating or preventing a particular offense that is anticipated or being committed. This conclusion is consistent with the particular stated purpose of the Act, which concerns combating crime and the detecting and punishing of offenders, while limiting the use of the broad tool embodied in section 43 of the Criminal Procedure Ordinance. This conclusion is consistent with the general purpose of the Act, which calls for limiting the infringement on the constitutional right to privacy so that it is proportional in achieving the purpose of the Act (see also Genis, at 291-93, the Unlawful Combatants case, para. 8). This interpretation is consistent with the fundamental concepts of our legal system and brings about a proper balance between leaving the Act as it is and achieving the goals of Basic Law: Human Dignity and Liberty.

 

As mentioned, this is indeed the position of the State as well. In its notice of May 22, 2008 the State agreed to this narrow interpretation. According to the State, the language of the Act clearly indicates its drafters intended to permit issuing orders in order to obtain communications data only where necessary to inquire into a concrete suspicion rather than for gathering general intelligence. The State clarifies that, in its opinion, too, in requesting an order investigatory authorities must at least “indicate a clue, the first stage of a prima facie evidential foundation for police action relating to a concrete investigation,” consistent with the relief the Association for Civil Rights seeks in its petition (para. 52 of the State’s notice). Then chairman of the Knesset’s Constitution, Law and Justice Committee expressed a similar position (hereinafter: “the Constitution Committee”) in the discussions around the Regulations for the Act’s implementation. Thus, then chairman of the Constitution Committee, Prof. Menachem Ben Sasson, stated during the discussion held on August 13, 2008: “This Act must be elucidated narrowly. That is to say that where there is doubt, the answer is ‘no’. I am not saying that as an interpreter of the Act but it cannot be interpreted otherwise and anyone participating in the discussions knows it…” (Transcript of meeting no. 639 of the Constitution, Law and Justice Committee of the 17th Knesset, 5 (August 13, 2008)). This limit on investigatory authorities’ discretion, which is accepted by the State, also finds expression in the Police procedure that regulates Police action under the Act, which is none other than procedure 03.344.306 that was formulated after the Act came into effect and when the petitions were pending (hereinafter: “the procedure”). As for section 3, the procedure adds little to what the Act requires given the procedure in section 3 is very detailed. Thus, the procedure specifies, lifted directly from the Act’s language, the details that any request for an order must included, as well as the considerations the officer seeking the order must apply. Those considerations are, inter alia, the severity of the offense and the strength of the suspicion, and the evidential foundation as to the request’s subject matter. By following this, the Police activity in terms of these orders complies with the proper interpretation as established by us above.

 

It should be emphasized that our above interpretation of section 3 is not based on the State’s concession as to the proper interpretation of the section or of other sections the petitioners have challenged.  Nor is it based on the existence of the Police procedure. The State’s concession or action may change as they are a product of the State’s policy alone. Nevertheless, under the circumstances here, that concession also reflects the proper interpretation that, in our opinion, should guide how the authorities exercise their powers. This interpretation is consistent with the language of the text and its purpose (both particular and general), and it permits the arrangement prescribed in section 3 to subsist as a proportional arrangement that does not over-infringe the constitutional right to privacy. Indeed, it might perhaps have been preferable to amend the Act itself so that it embodies the approach – shared by the State, the petitioners and the Court – with regard to the narrow implementation of section 3’s broad provisions. Nevertheless, interpretation is a tool at the Court’s disposal and it enables us to clarify the boundaries of the Act, even if the actual language of the Act remains unchanged. We would go on to say that in the scope of our interpretive work of identifying the legislative intent we may be assisted by information the executive authority holds (see: Aharon Barak, Interpretation in Law, Part Two – Legislative Interpretation 346 (5753) (hereinafter: “Legislative Interpretation”). Thus, the procedure demonstrates the Act’s legislative intent as viewed by the executive authority and that the interpretation it adopted is consistent with the interpretation that we have prescribed above. This joins with the other facts that have led us to conclude this is indeed the proper interpretation of the Act under review.

 

We have therefore reached the overall conclusion that the proper constitutional interpretation of sections 3(a)(2) and of 3(a)(3) of the Communications Data Act is that investigatory authorities are empowered to request a court for an order under the Act only for the purpose of detecting concrete offenders or offenses rather than for general intelligence activity as to offenders or offenses. This interpretation achieves the second requirement of proportionality because, in our opinion, it constitutes a means that less restricts the right to privacy, while still achieving the purpose of the Act in the same way. This conclusion is also required by the State’s concession to a narrow interpretation, which indicates that in its opinion the objectives for which the Act was passed will not be hindered by that narrow interpretation.

 

Given this interpretation, we have reached the overall conclusion that the arrangement in section 3 also meets the third requirement of proportionality because the extent of the infringement on the right to privacy – in the manner described – is in proper proportion to the benefit from applying the Act and its arrangements, a benefit which the petitioners themselves do not dispute.

 

17.       A similar approach, that relates to the necessary balance between the right’s infringement and the benefit to public interest characterizes parallel legislation in legal systems similar to ours, which have articulated various grounds for obtaining communications data – some more extensive than the grounds under Israeli law and some closer to the grounds included in it. Some countries have made the concrete nature of the offense or offender requirement clear as opposed to general aspects of law enforcement, and others have not. This reinforces our conclusion that in terms of the grounds for exercising authorities under the Act, and given the proper interpretation for their exercise, as delineated above, this aspect of the Israeli Act complies with the requirements of proportionality and is consistent with the constitutional concepts prevailing in legal systems that are similar to ours.

 

In English law, for example, the RIPA, mentioned above, regulates powers to obtain communications data in an arrangement that sets the various surveillance powers State authorities have, both to obtain the content of information and to obtain communications data without content. The Chapter that addresses the grounds for requesting communications data, regulated in section 22(2) of the RIPA, is relevant here. It details a very broad list of grounds for when communications data can be obtained. Not all the grounds make it possible to obtain all types of data and in any event obtaining them is subject to proportionality. The grounds are defined in the English Act as follows:

 

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder;

(c) in the interests of the economic well-being of the United Kingdom;

(d) in the interests of public safety;

(e) for the purpose of protecting public health;

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;

(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or

(h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State”.

 

From the above it is clear that the list of grounds in English law is far broader than those recognized in the Act subject to the petitions here. In American law as well, the accepted criterion for placing surveillance devices of the pen/trap device type – which require a judicial order – is relatively broad and examines whether the required data are “relevant to an ongoing criminal investigation” (18 USC §3123(a)(1) which is the ECPA, mentioned above). Reviewing section 2703(d), which addresses the conditions necessary for granting a judicial order to obtain communications data (which are similar to subscriber data and some of the traffic data in the Israeli Act), and also regulates the possibility of obtaining message content, a higher bar emerges, which is supplemented by the condition that the party requesting the order must indicate “specific and articulate facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation”. On its face, the American standard does not limit the nature and gravity of the investigation but it does appear that, like in the Israeli Act as we described above, it is necessary that the information is sought for a concrete investigation. Canadian law, on the other hand, permits granting a judicial order when only two requirements are fulfilled – other means of investigation cannot be used (or they have been attempted and failed); and the order “would be in the best interests of the administration of justice” (see the Criminal Code of Canada, §186(1)(a)), namely in circumstances where granting the order will best serve justice.

 

Application of the Arrangement in Section 3 to Offenses of the Misdemeanor Type

 

18.       As mentioned, the petitioners’ second argument is that the Act as a whole – and section 3 in particular – should be applied to offenses that are defined by the Israeli Penal Law as “felonies” but not to those defined as “misdemeanors”. As this argument goes, and reiterated in both petitions as well as in the position of the Press Council, offenses of the “misdemeanor” type extend over a wide range, a substantial proportion of which are not sufficiently serious to justify the infringing measures in the Act. Consequently, according to the argument, granting sweeping power in the Act to obtain a judicial order for all misdemeanors, without drawing lines based on the seriousness of the offense, is sweeping and not proportional. In support of this argument, the petitioners referred to the Secret Monitoring Act, which restricts the exercise of the power prescribed in it to felonies.

 

The State for its part does not believe that the petitioners’ arguments in this regard justify amending the Act, let alone striking it down . In its introduction, the State explains that many misdemeanors are serious, very common offenses that affect the quality and integrity of life in the country. Thus, for example, the State mentioned that these offenses include assault, fraud, forgery, breach of trust, computer hacking, sexual harassment, harassment by telecommunications device, obstruction of justice, witness harassment, giving information to the enemy, threats, negligent homicide and more. Serious misdemeanors are included in the Military Justice Act as well. The State therefore asserted that granting the relief sought and precluding investigatory authorities from obtaining communications data for misdemeanors would significantly impair their ability to perform their duties. Additionally, the State explained that there are misdemeanors that cannot be investigated without communications data, such as sexual harassment by a computer or telephone. The State also reiterated its position that the infringement caused by obtaining communications data is far reduced compared to that caused by other investigatory means, including secret monitoring. Therefore, according to the State, there is no justification for imposing a limitation based on the gravity of the offense, as prescribed in the Secret Monitoring Act. After all that, the State again emphasized that the Act prescribes many mechanisms intended to prevent its improper exercise, including for misdemeanors that do not justify it – from the detailed mechanism for submitting motions, through a court’s role in authorizations, to the mechanism for reviewing the Act’s implementation through reports to the Knesset and the Attorney General.

 

19.       The Penal Law, 5737-1977 (hereinafter: “the Penal Law”) prescribes in its definitions section that a misdemeanor is:

 

“An offense punishable by no less than three months’ imprisonment, but no more than three years imprisonment; and if the penalty is a fine – a fine higher than the fine that may be imposed for an offense punishable by fine the amount of which has not been determined ”.

 

            This definition applies to many of the offenses on the Israeli law books and it means that investigatory authorities’ powers under the Communications Data Act cover a wide range of offenses, the severity of which varies. Consequently, the petitioners’ argument that a sweeping application of section 3, without requiring authorities to consider the gravity of the offense, could indicate a disproportionate infringement on the right to privacy is understandable. In view of this, we somewhat hesitated as to whether it is indeed justified to leave misdemeanors to the sweeping application of section 3 or whether in this case as well the section should be narrowly interpreted so that only when particularly serious misdemeanors are concerned or where communications data is an inherent element of the offense (for example computer hacking) will it be possible to request the court for such an order.

 

            Ultimately, we reached the overall conclusion that this aspect does not warrant our intervention and that this arrangement meets the requirements of proportionality. To be specific, regarding the first requirement of proportionality, there is no question that there is a rational relationship between the means and the end because including misdemeanors would significantly help the Police achieve legislative intent and it would appear that their blanket removal would likely impair that ability. Nevertheless, as mentioned, here again the second requirement of proportionality raises difficulties because on its face, limiting the types of misdemeanor to which the arrangement applies similarly achieves the end but nevertheless reduces the infringement on the right to privacy. The position of the State in this respect is based on the nature of requests under section 3. According to the State, there is no justification for making a formal distinction between different types of misdemeanors for the purpose of applying the Act and the focus should be on the need for the request. To that end, according to the State, the Act establishes balances and checks that do not consider obtaining communications data as trivial but present a detailed mechanism for submitting the request. Moreover, as mentioned, these requests are submitted merely for the court’s approval and the court must review all the relevant aspects, including whether obtaining the data in order to detect the concrete offense infringes the right to privacy beyond that necessary. Again, the array of reports to the Knesset and the Attorney General should ensure that the arrangement is only used when appropriate.

 

Under the circumstances, it appears to us that the mechanisms in the Act – and especially the motion’s judicial review – may certainly provide at this time an adequate resolution for the petitioners’ concern as to the arrangement’s improper use. It should be added that according to the reports that were submitted to the Knesset in 2009 and 2010 as to the implementation, 60% to 70% of the motions for a judicial order were made and approved regarding felonies. As regards misdemeanors for which a judicial order was sought, it appears that between July 2009 and June 2010, a substantial proportion of the offenses would apparently have been considered by the petitioners, too, as “serious offenses”, including threats, theft, negligent homicide, harassment, arson, killing, vandalism, causing damage and more. These data indicate, on their face, that in the implementation of section 3 in terms of misdemeanors is not treated lightly and the data above certainly do not demonstrate the alleged disproportionality resulting from including misdemeanors under the section. Under the circumstances, and considering the restraint that we exercise in intervening in legislation, we have not found it justified for us to intervene in this determination by the legislature. Nevertheless, there is no doubt that the courts that grant the various motions are tasked with considerable work – to ensure the Communications Data Act is used solely in the cases where it is necessary according to the interpretation adopted above. In this respect it is clear that courts would have to analyze whether the nature of the offenses for which the orders are sought necessitate exercising the powers granted by the Act in light of the privacy infringements they cause. Courts would also have to consider the possibility that the extent of infringement by one type of data might be greater than another.

 

Apt in this respect is the Canadian Supreme Court’s ruling in R. v. Araujo [2000] 2 SCR 992, Par. 29, which our courts should also apply as a point of departure when considering various different motions to obtain data under the Act:

 

            “The authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.

 

The judge should not view himself or herself as a mere rubber stamp… The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies.”

 

As stated there, judges are duty-bound to safeguard the Act and the protection of privacy, and they must bear in mind that the State’s citizens should be protected against a fishing expedition conducted by law enforcement agencies.

 

Assuming that this power will be exercised only when appropriate, we believe that the arrangement that covers misdemeanours also meets the third criterion of proportionality because the infringement to privacy caused by its application is in proper proportion to the benefit from exercising the authorities the Acts grants.  

 

20.       It appears, regarding the types of offense that justify obtaining communications data, different legal systems have adopted different arrangements that are essentially based on the same principles. Thus, for example, it seems the American legislature did not see fit to limit the power to obtain data along the “ordinary” track – by judicial order under chapter 18 of the USC – to a particular type of offense. In English law, too, there is no such restriction and the grounds permitting obtaining communications data are, as mentioned, broader. It should nevertheless be noted that English law does define “serious crime”, but solely in the context of obtaining content data. According to the definition, a serious crime is one that carries, for an adult without relevant previous convictions, an expected sentence of at least three years imprisonment. It is also a crime committed in collusion, a crime committed with the use of violence or a crime leading to substantial financial gain. Hence, it appears that the English legislature also prescribed a threshold for the definition of a “serious crime” that does not make do with defining the offense according to the likely penalty for it, but also takes into account the circumstances in which it is committed. This substantive view with regard to the offense and its gravity is similar to the State of Israel’s position regarding cases in which it could be appropriate to act according to the arrangement in section 3. On the other hand, Canadian law, which regulates the issue through the Canadian Criminal Code, details a very extensive list of various offenses defined as serious. The Canadian list includes more than 100 offenses (see section 183 of the Criminal Code). Hence, we again see that different countries have prescribed different arrangements as to the types of offenses resulted in requests for obtaining communications data. We can infer from this that it is at least possible to articulate several means that achieve the purpose in the same way and it clearly cannot be said that the Israeli arrangement goes beyond those applied in countries with a similar constitutional regime. The arrangement therefore does not exceed the bounds of proportionality so that they justify the Court’s intervention.

 

21.       Consequently, regarding section 3, we have reached the overall conclusion that subject to our interpretation of above observations, the arrangement in section 3 meets the requirement of proportionality and we have therefore not found there is constitutional grounds for our intervention.

 

Section 4 – Administrative Order

 

22.       Section 4 of the Act prescribes a different arrangement that does not condition obtaining communications data upon a judicial order. Instead it allows investigatory authorities to obtain communications data in urgent cases through an order from a professional entity (hereinafter: “the administrative arrangement”). The language of the section is as follows:

 

“Permit to Obtain Communications Data in Urgent Cases

 

4.         (a)         A competent officer may – at the request of a policeman or military policeman, as the case may be – grant a permit to obtain communications data from a telecommunications licensee’s database without a court order under section 3, if he is satisfied that, in order to prevent an offense that is a felony, to detect its perpetrator or to save human life, it is necessary to obtain the said communications data without delay and that an order under section 3 cannot be obtained in time.”

 

            According to the petitioners, the arrangement in section 4 is disproportionate because it permits an administrative – rather than judicial – entity to issue an order that enables a serious infringement of privacy without the restrictions imposed on courts by section 3, especially in terms of professionals. The petitioners, who are also joined by the Press Council in this respect, focus their arguments on the following two. Their first argument is that the investigatory authorities’ power to obtain the communications data of professionals, especially journalists and attorneys, by administrative order is not proportionate. This is essentially because that power is not subject to restrictions similar to those the Act imposes on communications data orders regarding professionals because section 4 – unlike section 3 – does not refer at all to the aspects relating to obtaining an order in urgent cases when professionals are involved. According to the argument, enabling an administrative entity to infringe legal privilege without a judicial order is not proportionate. These arguments were presented to us by the entities that represent such professionals. As metioned, the Israel Bar filed a petition addressing the alleged damage to lawyers’ occupation because this compromises attorney-client privilege. The Press Council joined the general petition as amicus curiae and presented its arguments as to the likely damage to journalists’ occupation caused by section 4, in light of the potential exposure of journalists’ sources. The Press Council applied to the Court for the principal relief of an order striking down section 4 in terms of journalists so that a motion for obtaining communications data of journalists would be only allowed under the mechanism set in section 3(b) of the Act, namely by a judicial order alone, and only if there are grounds to suspect the journalist is involved in an offense. The other argument against the arrangement in section 4 made during the hearing concerned the method of implementing the arrangement and its alleged excessive use. In this context it was also argued that judicial and administrative review of investigatory authorities’ exercise of their powers under the arrangement is deficient.

 

23.       The State asserted in response that the benefit of this arrangement exceeds the infringement of the right to privacy caused by obtaining communications data urgently without a judicial order. According to the State, the need to save lives or immediately detect offenders at the crime scene does, in urgent cases, justify forgoing judicial review facilitated by a court procedure as provided in section 3 addressing the population as a whole, without having to make a specific distinction in the case of professionals. As appears from the State’s reply “the urgent cases which section 4 addresses are extreme… in cases of saving life, in urgent cases of solving a crime when the professional is the victim of a felony or is missing and must be found urgently, where it is necessary to obtain the professional’s communications data in order to prevent a felony of which he is suspected and other urgent cases of similar nature” (see para. 61 of the State’s reply of May 22, 2008). Moreover, the State asserted that the urgent arrangement is applied sparingly and limitedly according to relevant Police procedures. As discussed, on February 16, 2009 the State furnished for our review the Police procedure that regulates the Act’s application, formulated after the Act came into effect. The procedure is based on section 4(f) of the Act, which provides that “the Inspector General … shall ... prescribe provisions for the purpose of this section, including how the permit is granted … and may prescribe different provisions according to the grounds for granting the permit and the circumstances in which it is granted.” The procedure emphasizes and clarifies the Act and limits the competent officer’s discretion in two significant respects. Thus, in terms of the factors the competent officer must consider before authorizing obtaining communications data without a judicial order, the procedure replicates the factors the officer must consider before applying for a judicial order. It then adds other factors as to the existence of an urgent need to prevent an offense, to detect its perpetrator, or to save human life. These factors also include the type of communications data sought, the severity of the offense and the extent of the damage to those who are not suspects.

 

            As to professionals, the procedure distinguishes between journalists and others referenced in the procedure: lawyers, doctors, social workers, clergymen, psychologists, government ministers and Knesset member. In regard to urgently obtaining professionals’ communications data, the procedure mandates that: “if the subscriber is a professional, that should be specifically taken into account and the necessary balance should be made between the possibility of infringing the professional’s privilege and the benefit that the communications data might have in the specific investigation, factoring in the seriousness of the offense, the circumstances of its commission, the likelihood the communications data will indeed lead to discovering the truth and detecting the offenders” (para. 7B(4) of the procedure). Regarding journalists the procedure lays down a narrower arrangement, providing that “insofar as it is known that the subscriber is a journalist, who is neither suspected of the offense nor the victim, the competent officer shall not authorize obtaining their communications data or the traffic data type (a list of incoming and outgoing calls).” This distinction is inter alia based on the State’s position, as detailed above, according to which, but for journalists, in the absence of power to obtain the content of calls the Communications Data Act does not infringe the various different professional privileges. Nevertheless, the State agrees the different privileges in the context of making a decision to grant an administrative order must be considered, and this is within the competent officer’s discretion. According to this set of balances, the State believes that under the circumstances the arrangement is proper and proportional.

 

(a)     Is the Arrangement Prescribed in Section 4 Proportional?

 

24.       On the face of it, it is clear that the arrangement in section 4 is narrower than that prescribed in section 3. Thus, it applies only to offenses of the felony type and it is plain from its wording – and the State also elucidated the same in its reply – that it applies in concrete cases in which there is an urgent need to prevent an offense, detect a perpetrator or save human life. Our interpretive finding, that the provisions of the Act do not grant power to obtain an order in circumstances where the order is sought for general intelligence activity detecting offenses, therefore also applies to section 4. That is indeed the proper interpretation of the section. Moreover, section 4 permits only the Police or the Military Police CID, and no other investigatory authorities, to obtain communications data urgently, and it is effective only for 24 hours.

 

            Nevertheless, the arrangement extends the power of investigatory authorities to obtain communications data without a judicial order. Thus, for example, until the Act became effective, the investigatory authorities followed the Attorney General’s Directive 4.210 (90.013) (The Delivery of Information by Telephone Companies to Entities Having Investigatory Authority), which provides that without a judicial order communications data (other than the name, address or telephone number of the subscriber) cannot be obtained, unless the defense of necessity applies in the particular case. This threshold, which required immediate, urgent danger that justifies obtaining communications data, has been lowered in the current arrangement. Moreover, the arrangement lacks section 3’s restrictions to discretion, particularly the restriction on transferring professionals’ communications data. According to this arrangement, as set in the Act, it is prima facie possible to transfer a professional’s communications data without any restriction when authorized by a competent officer, who is satisfied there is an urgent need to do so. These restrictions, albeit not in full, do appear in the Police procedure that regulates both the competent officer’s discretion to authorize administrative permits and the obtaining of professionals’ communications data.

 

            The petitioners’ arguments in this context reflect both aspects. The first aspect is at the level of the administrative discretion. In this respect the petitioners argued that restrictions in addition to those specifically mentioned in section 4 should be imposed on how the administrative discretion is exercised. The other aspect, according to the argument, concerns the Act’s actual infringement on the various different privileges.

 

25.       The point of departure necessary for reviewing the proportionality of the arrangement is based on our above finding that, in general – apart from in the case of journalists – the Communications Data Act does not infringe the various different professional privileges. This is considering the scope and extent of those privileges as recognized by Israeli law, compared to the data that can be obtained by applying the Act’s arrangements. In the absence of such infringement, prima facie it cannot be said that because section 4 does not refer to professionals per se it must be struck down for unconstitutionality. This is reinforced especially because the purposes of sections 3 and 4 are not the same. While section 3 is intended to enable obtaining communications data in the cases detailed in the section, which by their nature give the authorities adequate time to turn to a court, section 4 is designed to give the Israel Police and the Military Police CID a tool for cases where there is an urgent need, that cannot be delayed, to obtain the data without approaching a court. This distinction between the purpose of the sections can on its face also justify a distinction regarding professionals so that where there is urgent need, for example in life-threatening cases or because of the gravity of the matter, the weight attributed to protecting their privacy would be diminished. For such cases, it is difficult to say that the mere absence of an express provision of the Act relating to professionals amounts to a constitutional flaw that justifies our intervention.

 

26.       Nevertheless, despite the arrangements’ different purposes, we cannot help but wonder why the legislature saw fit to set out such a detailed arrangement in section 3, which delineates how the discretion of administrative authorities and courts dealing with applications to obtain data must be exercised, while in section 4, which concerns only how administrative authorities’ discretion must be exercised, there is no similar detail whatsoever. We have not been satisfied, nor has it been pleaded to us, that there is any particular difficulty in establishing more detailed guiding criteria in section 4 as well, to give proper weight to its different purpose. Thus, for example, in the case of professionals, section 3 provides that “the court shall not permit obtaining communications data… unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense for which the motion was filed.” As aforesaid, in view of the difference between the arrangements, we have not found that the legislature was required to prescribe identical arrangements. Nevertheless, along the lines of the legislature’s provision in section 3, it would be proper, while exercising power section 4 of the Act grants, that the authority considered that the subscriber is a professional and decides whether it is appropriate to obtain communications data in such case considering the proper balance between the privacy infringement and the urgent need to obtain the data. The considerations should also include the reservations required by the fact that the details sought involve professionals who have a special interest in not disclosing the data. In this context the authority clearly could also consider whether it is appropriate to order obtaining communications data even where the professional is not involved in the offense.

 

            The Act’s language certainly does not limit such an interpretation regarding how the power granted by section 4 of the Act must be exercised. It is also consistent with the particular purpose of the arrangement because it does not preclude the issue of an appropriate order in urgent situations in terms of anyone, depending on the competent authority’s needs. It is also such as to create internal harmony between the Act’s sections by attaching greater weight to the duty to consider the right to privacy when professionals are involved, along the lines of the legislature’s own determination in section 3. In addition, this interpretation achieves the general legislative intent because it gives greater weight to the constitutional right to privacy. This interpretation thereby constitutes the least restrictive means, while achieving the arrangement’s legislative intent in a similar way. Consequently, it appears to us that this interpretation is the proper one regarding how the authority should exercise its power under section 4.

 

            It should be noted that this is in fact apt not only as to professionals, but also as to the overall aspects emerging from section 3 and the restrictions on judicial discretion that the legislature mandated in it and which should of course also guide the administrative authority when exercising its power under the arrangement in section 4. In fact, the restrictions section 3 imposes can be viewed as part of the overall relevant considerations that must come into account when exercising the powers granted by the Act, in light of the arrangements’ different purposes. This aspect in fact mirrors the axiom of administrative law that an authority must exercise its power while weighing all relevant factors and ignore improper factors (Daphne Barak-Erez, Administrative Law vol. II 642 (5770); HCJ 953/87, Poraz v. Shlomo Lahat, Mayor of Tel Aviv – Jaffa, IsrSC 42(2) 309, 324 (1988)). Thus, for example, alongside the special reference to professionals that we have discussed at length, it appears that before deciding to permit obtaining communications data, the type of communications data sought, the extent of the infringement to anyone not suspected, the gravity of the offense, the urgency and the ability to take the judicial track under section 3, and which option should be given first preference are, among others, the factors to be considered. Let there be no doubt that in light of the differences in circumstances around implementing the arrangements, the authority need not attribute similar weight to each of these considerations, and the decision should be made in light of the particular circumstances of the case. Nevertheless, it does appear exercising the power under section 4 is subject to particularly strict review of all the above factors.

 

27.       It appears the State, too, accepts this approach as to how the power under section 4 must be exercised in terms of professionals – and generally. Thus, it asserts in its reply that the administrative arrangement in section 4 was essentially designed to be used in extreme cases where the professional is the victim of an offense or suspected of a felony, or in extreme cases of saving life. Given that, it appears that the State also believes that the difference between the restrictions imposed by the arrangement in section 3 and those imposed on the party seeking to obtain data under section 4 is not so great. Bear in mind that the petitioners’ basic argument is that section 4 is disproportional because it does not prescribe conditions similar to those in section 3 of the Act. Consequently, given to the proper interpretation which requires exercising discretion in a way that considers all the factors necessitating obtaining communications data, and in light of the State’s position as to how that principle should apply, it appears the argument regarding section 4’s disproportionality fails.

 

            As discussed, the administrative arrangement’s purpose – saving human life, preventing serious crimes of the felony type or quickly detecting an offender who has committed a felony – is achieved through this tool, which prevents having to approach a court and awaiting a judicial order. This tool is of course restricted and clearly should only be used where “the main road” – seeking a judicial order under section 3 – cannot be followed. Thus it appears there is a rational connection between the means and the end and that the arrangement would only be implemented where the end cannot be achieved by other means. This is where the very court proceeding makes the Police unable to obtain communications data “in real time”, in very urgent cases that necessitate doing so. Even when approaching a court can be done as quickly as possible, the same speed as when a competent officer who is always accessible and whose authority to obtain communications data immediate, is impossible. The State’s examples as to the cases where this procedure is used demonstrate this. At the same time, it also appears the Police acknowledges the potential privacy infringement the administrative procedure causes and the proper interpretation as to the exercise of the power as found here, which also appears to be accepted by the State, therefore further limiting the competent officer’s discretion. These restrictions, and paying strict attention to applying the administrative process only in serious, urgent cases, in our opinion reflects a proper balance between infringing the right to privacy and the need for Police immediate action.

 

            This approach as to how the power granted by section 4 should be exercised is also reflected in the Police procedure, which, according to the Police, achieves the proper balance between infringing privacy and the purpose of obtaining the order under section 4. Regarding professionals, and how we believe the power must be exercised, the procedure emphasizes the importance of safeguarding their privacy and the privacy of their clients, and it requires the competent officer to carefully examine the need for administrative order, considering the gravity of the offense, the circumstances of its commission, and the likelihood that communications data would indeed result in detecting the truth and discovering offenders. Nevertheless, the procedure does not apply all the restrictions prescribed in section 3 and does not limit the use of administrative order for professionals solely to cases where they are involved in an offense – except in the case of journalists. As mentioned, in our opinion, the purpose of the arrangement in section 4 is not the same as that of section 3 and the arrangements therefore need not be identical. This difference is, as noted, found in how some aspects of section 4 are narrow compared to section 3. As mentioned, including restrictions in the procedure does not demonstrate their proper interpretation as to the exercise of the power in section 4. However, the procedure does express the authority’s position in this respect and this is coupled with the overall factors leading to the conclusion that our above interpretation is the proper one.

 

            In light of all the above and the legislative intent behind section 4, recognizing the importance of cases where an urgent need can justify infringing professional privilege, and considering the limited infringement of privilege obtaining the data that the Act permits causes in any event, it appears to us that the arrangement in section 4, as written, given its proper interpretation, which requires considering the issue of professional privilege and other aspects as mentioned, does not require additional legislative restriction over the authority’s power in this context. This arrangement, which appears in the Police procedure too, therefore expresses in our opinion the proper equilibrium between protecting the right to privacy and the sometimes urgent need to obtain communications data, and as such we have found that it meets the criteria of proportionality.

 

28.       As we have mentioned above, and as noted that the State agrees with this approach, different treatment of the journalist’s privilege is appropriate. The State was therefore correct in prescribing special conditions for journalists in the procedure. As mentioned, according to the procedure, if the subscriber is a journalist who is neither suspected nor the victim of the offense, the competent officer will not authorize obtaining communications data of the traffic data type. In this way the journalist’s privilege has special protection in the procedure. Nevertheless, in cases in which the journalist’s life is at risk or in which the journalist is himself suspected of offenses – and it should be borne in mind that only offenses of the felony type are relevant – and in exceptional circumstances when because of their urgency it is impossible to approach a court to obtain a judicial order, it is indeed appropriate to permit obtaining a journalist’s communications data, even if this might be at the cost of infringing a source’s privilege. In such circumstances we do not believe there is any foundation to the argument that infringing the journalist’s privilege is disproportional. Here again it should be borne in mind that the procedure reflects how the authority interprets the Act in terms of journalists. As said above, through our interpretive work, the interpreter may refer – amongst the other sources available to him in understanding the legislative intent and its proper interpretation – to the information in the possession of the executive authority, as revealed by its secondary legislation (see Legislative Interpretation 346, 800-802). This information does not of course obligate the court insofar that it believes there is a more proper interpretation for the statute. But it can help in making the interpretation and ascertaining the purpose of the legislation (see HCJ 142/89, Tnuat Laor v. The Chairman of the Knesset, IsrSC 44(3) 529, 550 (1990)). In the instant case it appears that although there is no relevant secondary legislation and the procedure has inferior normative standing, the procedure indicates that the executive sees the purpose of the Act and the interpretation it adopted for it is consistent with the interpretation we stated above. In the circumstances, it appears the proper interpretation is the one the State follows and thus, too, it ought to be adopted.

 

29.       To complete the picture, we would mention that English law has an arrangement similar to that emerging from the Israeli procedure. There, the different treatment of professionals in gathering communications data is also regulated in a procedure, rather than a statute (Interception of Communications: Code of Practice (London, 2002)). There, too, sections 3.2 and 3.9 of the procedure provide that when permitting access to the communications data of anyone not directly linked to the data sought, the utmost care must be taken, especially where the information infringes legally recognized privilege or the data is personal, which by its nature is generally kept private or confidential. Section 3.2 of the procedure provides as follows:

 

“Confidential Information

      

3.2       Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. Confidential information consists of matters subject to legal privilege, confidential personal information or confidential journalistic material…

 

For example, extra consideration should be given where interception might involve communications between a minister of religion and an individual relating to the latter’s spiritual welfare, or where matters of medical or journalistic confidentiality or legal privilege may be involved”.

 

            Nevertheless, the statute and procedure there do not prohibit transferring data despite these privileges (even for journalistic privilege). Transferring such data is subject to the doctrine of proportionality, which as an overarching principle covers all the arrangements in the statute (see section 5 of the procedure). In this respect it should be noted that the English procedure was approved by Parliament. Again, Canadian law, in which the treatment of communications data is regulated by the Criminal Code, permits access to the communications data of practicing lawyers through a judicial order but only in circumstances where the lawyer himself is involved in the investigated offense or is likely to be its victim (section 186 of the Canadian Criminal Code). The Canadian arrangement is thereby similar to that prescribed in section 3 of the Israeli Law and also to a large extent, as in the interpretation adopted by us, to the way in which the arrangement in section 4 is applied to professionals.

 

30.       As mentioned, we were not originally satisfied in light of the specific purpose of section 4 and the limited potential infringement of privilege of most professionals caused by obtaining the data the Act permits, the section’s lack of specific reference to professionals does not indicate a lack of proportionality. A fortiori the same is the case in view of the section’s proper interpretation as to cases where section 4, whose arrangement is also acceptable to the State, should be applied. As noted, we have looked at journalists somewhat differently but it does appear the special treatment to the procedure affords journalists does in fact express the proper interpretation of section 4 in their regard. In view of all this, we have reached the overall conclusion that the arrangement is proportional and properly balances the purposes of the Act and the infringement to the right to privacy. Here again, like our process of interpreting section 3, we view the Police procedure and the restrictions imposed by it as reflecting the Act’s proper interpretation. This interpretation is consistent, as said, with the Act’s language and achieves its purposes. This interpretation is also consistent with the basic concepts of our legal system and our duty to exercise judicial restraint in intervening in the Knesset’s legislation. We have therefore considered it proper to adopt it  (compare: HCJ 1911/03, The Association for Civil Rights v. The Minister of Finance, (unpublished, November 12, 2003)).

 

            We would mention that we have not ignored the petitioners’ claim that the State could change the procedure or even revoke it completely. We have also considered the petitioners’ assertion that the procedure cannot “cure” a constitutional flaw in the Act, insofar as such flaw exists. Nevertheless, in view of our finding that section 4’s proper interpretation and its detailed reflection in the procedure the State presented, we do not believe that there is cause for us to intervene in the statutory arrangement as it is written. Naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level. However we must not get ahead of ourselves and we can only assume that the administrative arrangement will be implemented according to the proper interpretation – sparingly, in extreme cases, for the purpose of dealing with offenses that necessitate so and only where urgency makes it clear that it would be impossible to obtain a court order under section 3. This is when the reasons for not approaching a court are circumstances relating to saving life or other serious circumstances, all considering a variety of factors, including the fact that the subscriber is a professional, the extent of his involvement in the offense, and the type of data sought, etc.

 

            It should nevertheless be noted, to complete the picture, that the other legally empowered authorities have not produced procedures to us that are similar to the Police procedure concerning the way they exercise these powers. The Military Police CID has a duty to prescribe such procedures under section 4(f) of the Act. In light of our findings as to the proper interpretation of how the Act’s powers must be exercised, and its compliance with the principles delineated in the Police procedure, we assume that the other authorities that operate under the Act will not exercise their statutory powers without applying similar criteria for exercising the authorities in the Act and formulating appropriate criteria to regulate those aspects.

 

(b)       The Act’s Practical Application

 

31.       In the time when the petitions were pending, the petitioners added to their case another claim essentially concerning the implementation of the Act in the years before it came into effect. At the heart of this argument was the petitioners’ concern that the investigatory authorities would exploit the powers granted by the Act where they could employ other less restrictive means. To support these arguments, the petitioners analyzed the data produced by the State about the extent of the Act’s use, which according to them demonstrate that the powers the Act has granted hare overused. Although the petitioners sought to establish constitutional cause to strike down the Act, it appears the argument is ultimately on an administrative law level, and challenges upon whom powers conferred by the Act are exercised. The petitioners therefore sought to show a flaw in the authorities’ discretion in implementing the Act or at least to express concern in how the discretion will in the future be exercised.

 

32.       From the material before us, it does indeed appear the petitioners are not the only ones concerned about the extent to which the powers the Act grants are exercised. The Constitutional Committee, which debated a motion to approve regulations of the database under section 6 of the Act, also expressed similar concern to the Police. This emerges, for example, from studying the transcripts of the proceedings of the Constitution, Law and Justice Committee dated August 13 and November 9, 2008, during which then chair of the Committee, Professor Menachem Ben Sasson, expressed his opinion that the Act should be interpreted narrowly. Concern was also expressed that the Police might use its powers under the Act excessively. The Constitution Committee of the current Knesset, headed by MK David Rotem, which met on February 2, 2010 in order to follow up the Act’s implementation, also emphasized the importance of correctly and cautiously using the tools the Act provides.

 

            The petitioners, for their part, used the concerns the Constitution Committee expressed on August 13, 2008 to support their position on the use of the Act’s powers and asserted these concerns demonstrate that the Israel Police contravened Act’s provisions. The State, in its replies, explained that the concerns raised in the Constitution Committee’s 2008 debates were essentially about mishaps resulting from the fact that the Act’s implementation was in its early days. Additionally, the State strongly rejected the petitioners’ arguments that the Police contravened the Act’s provisions.

 

            As to the actual use figures, the State presented us with very little data, which related solely to the use of section 4 of the Act (an administrative order) from its effect date (in June 2008) until the end of 2008. Those data shows that a total of 546 permits were sought in cases of life-saving, 85 in the prevention of future felonies and 124 permits were to detect perpetrators of felonies that had already been committed.

 

Nevertheless, studying the Constitution Committee’s portal on the Knesset website shows that to date various authorities have submitted two annual reports to the Committee according to the Act (available at http://www.knesset.gov.il/huka/FollowUpLaw_2.asp). The first report, filed by the Israel Police, is relevant to the period between June 27, 2008 and June 30, 2009. This report shows that 9,603 motions were filed and granted under section 3 of the Act (a judicial order). Of them, 9,227 were motions for detection and investigation of offenders, 252 were for saving of human life, and 124 were for seizure of property. The breakdown between felonies and misdemeanors is unclear. Nevertheless, a supplement submitted to the chair of the Constitution Committee on February 1, 2010, shows that as in 2009, more than 60% of the total offenses for which an order was sought were felonies. On the other hand, the Police’s second report, which was relevant to the period between July 1, 2009 and June 30, 2010, reveals that 14,133 motions were filed under section 3, namely an increase of about 4,500 (or approximately 50%). Of the motions filed in that period, 13,946 were for the purpose of detecting offenders and investigating offenses, 185 for the purpose of saving human life and two for seizure of property. Of the total offenses for which the order was sought, 71% were felonies.

 

            According to section 4 the Act (an administrative order) the first report reflects that 2,031 urgent permits were sought. 1,513 were for the purpose of saving human life and 518 for the purpose of preventing a felony and detecting the perpetrator of an offense. The second report reflects that under this section 3,039 applications were made, namely an increase of about 1,000 (a rise of approximately 50%). 2,192 were for saving human life and 847 were for preventing a felony and detecting a perpetrator. Data were not produced as to the orders sought for professionals. Hence, it appears that there was a significant increase in the Israel Police’s use of the Act.

 

            As regards the Military Police CID, The first report indicates that between November 1, 2008 and November 3, 2009, 1,381 motions for orders in under section 3 were filed, the majority for detecting and preventing offenses, conducting investigations, detecting offenders and their prosecution. The second report that was furnished by the Military Police CID relates to a shorter period from January 1, 2010 to July 1, 2010, and it indicates that 703 motions were filed to obtain orders under section 3. These included 38 motions for the purpose of saving or protecting human life, 340 for detecting, investigating or preventing offenses, 325 for detecting and prosecuting offenders and none for seizing property. It appears that on average there was no change in the total motions the Military Police CID filed under section 3.

 

            In respect to motions under section 4, it seems that on average there was some  increase in their number. While the first report states that 58 administrative requests were approved, including 6 cases for urgent policing, 4 cases for urgent investigatory purposes to prevent a crime and in 48 cases for the purpose of saving human life, the second report (relating, as mentioned, to only seven months) stated that 44 requests were filed, in six cases for urgent investigatory purposes to prevent an offense, 37 cases for saving human life and 1 for urgent policing purposes.

 

Reports were also received from the other authorities granted powers under section 3 of the Act. The data of the Tax Authority shows that between July 2008 and July 2009, 146 motions were filed under section 3, of which 145 were approved. Between July 2009 and June 2010 the number of motions doubled to 318. The Police Internal Investigations Department filed 388 motions between June 2008 and June 2009. The Police Internal Investigations Department filed 406 motions between June 1, 2009 and May 31, 2010. 44% of the motions were for felonies and 56% related to misdemeanors. The Antitrust Authority filed motions for 4 orders in the period between June 27, 2008 and June 16, 2010. Until June 2009 the Securities Authority obtained 13 orders; between July 2009 and June 2010 it obtained 12 orders, including 3 relating to people with professional privilege. Between June 2010 and June 2011, 19 orders were issued, including 2 relating to people with professional privilege.

 

33.       All the above figures reveal only a partial picture. On the one hand, it appears, prima facie, that some authorities, especially the Israel Police, have significantly increased their use of their powers under the Law – both section 3 and section 4. On the other hand, we have no explanation as to the change in the total use of the Act’s powers, which could actually be justified. In any event, in the current circumstances we do not see it necessary to review these aspects further. This is first because in practice all the petitioners’ arguments in this respect concern aspects of the Act’s implementation which do not, certainly not directly, go to the matter of its constitutionality. We have indeed already held in several contexts that implementing an administrative act can raise the question of its proportionality (HCJ 9593/84, Rashad Murad v. The Commander of the IDF Forces in Judaea and Samaria (unpublished, June 26, 2006); HCJ 9961/03, The Centre for the Protection of the Individual Founded by Dr. Lotte Salzberger v. The Government of Israel (unpublished, April 5, 2011)). We have also held that the implementation of a statute can impact its meeting the proportionality criteria (HCJ 6427/02, The Movement for Quality Government in Israel v. The Knesset IsrSC 61(1) 619 (2006), HCJ 6298/07, Yehuda Ressler v. The Israel Knesset (unpublished, February 21, 2012) paras. 19-22 of my opinion). Nevertheless, it appears that at the moment no justification has yet emerged for our intervention in this context. This is essentially based on the fact that the statute charges the Attorney General and the Israel Knesset with the task of reviewing the Act’s implementation. Their work in this respect is merely beginning. Nevertheless, from the material presented to us and the Israel Knesset’s position as reflected in its arguments, it appears on its face that the Knesset is acting according to its duties, and that it is aware of the concern of excessive use of, or extending, the powers under the Act to improper cases. Therefore we believe that for the time being various authorities should be permitted to do their work with the tools at their disposal. This should be coupled with the fact that our findings and the proper interpretation for the Act’s implementation would certainly help to maintain the proportionality of the authorities’ action under the Act and thus, too, all the authorities – both those that operate under the Act and those responsible for reviewing its implementation – should be permitted to create an accepted best practice routine according to the boundaries and restrictions we outlined. Under these circumstances, at the moment it is inappropriate for us to intervene in the aspects of the Act’s implementation. Hopefully there will be no need for us to consider them in the future either. Nonetheless, we have not overlooked the fact that the duty to report to the Knesset as prescribed in the Act was established as a temporary provision that is in effect only for four years from the date the Act took effect (see section 14(c) of the Act). It appears to us that because of the difficulties associated with the Act’s growing pains, which even the State does not dispute, the period of time necessary for assimilating the principles binding the authorities and the importance we attributed to the Knesset’s consistent review, it is appropriate to take action in order to extend the effect of that section. It could even be made permanent. We would also reiterate that it should not be ignored that aspects of a statute’s implementation might also affect review of its proportionality, and that the concern that the tools the Act granted be used excessively, especially given the significant increase in the number of motions filed, is real. Consequently, if in the future there is a change in the balance between the Act’s use, we do not discount the possibility the petitioners or others would once more be able to approach the Court for relief.

 

Sections 6 and 7; the Database

 

34.       Another argument by the petitioners challenges the arrangement in sections 6 and 7 of the Act, which establishes a database to be kept by the investigatory authorities (hereinafter: “the database”). These sections provide as follows:

 

“Requirement to Transfer an Information File from the Database of a Telecommunications Licensee

 

6.         (a)         The head of the Investigations and Intelligence Division may require a telecommunications license holder providing domestic landlines or mobile radio telephone services to transmit to him by computerized methods an up-to-date information file, as specified in paragraphs (1) and (2) below, which is in the licensee’s database:

 

                          (1)     Its subscriber’s identifying details, as well as the identifying numbers of his telephone devices or of any components thereof;

 

                          (2)     Information on the map of antennas which the licensee uses to provide telecommunication services by mobile radio telephone, including identifying data of each antenna and the areas it covers.

 

Keeping Information Files in a Protected Database

 

7.         (a)         An information file transferred as provided in section 6 shall be kept by the Police in a confidential database (to in this Act referred as ‘database of (communications) identification data’).

 

(b)       The database of (communications) identification data shall be kept as to ensure its protection and prevents its unauthorised use, including reading, transmitting, copying or altering the information without lawful authorization, and prevents its use in violation of this Act; acts performed in the database of (communications) identification data shall be documented as to facilitate supervision and control.

 

(c)       The database of (communications) identification data shall only be used for the purposes specified in paragraphs (1) to (4) of section 3(a)”.

 

            This reveals that the Act enables the Israel Police to require a telecommunications licensee, as defined, to transfer to it subscribers’ computerised identification data and the identifying numbers of their telephone devices (or of any components thereof). The Act also facilitates requiring information about antennas the licensee uses in providing telecommunications services. In effect, the Act permits the Police to establish a database linking one’s name with their telephone number and eliminates the need to telephone 144 service (which provides one’s telephone number according to their name or address) or the 441 service (which provides one’s name and address according to their telephone number). That said, information is kept in a confidential database and the use of that data is limited, according to section 7(c), to purposes that also warrant a judicial order, namely: saving or protecting human life, detecting, investigating and preventing offenses, detecting offenders and prosecuting them, and seizing property under the Act. It should be noted that the database does not permit keeping any data that the Israel Police is authorized to obtain under the Act. That is, it may not keep location and traffic data.

 

            We would say that on December 19, 2008, under his authority according to section 7(d) of the Act and with the Constitution Committee’s approval, the Minister of Internal Security promulgated the Criminal Procedure (Powers of Enforcement – Communications Data) (Database of Communications Identification Data) Regulations, 5769-2008 (hereinafter: “the Regulations”). These are designed to regulate the use of the database, define those authorized to access it, guide the position of database manager, and other aspects concerning its operation and maintenance and the security of the information it stores.

 

35.       The petitioners, and especially the Association for Civil Rights, do not object to the transmission of publically accessible telephone numbers to the Israel Police and other police entities. Their objection to the identification database is more specific and they request we restrict the ability to transmit identification data of anyone whose telephone number is unlisted to the database. They argue that the constitutional right to privacy, which includes the right to keep one’s “conversation confidential”, also includes the right to own a telephone number that is hidden from the public eye and the investigatory authorities. Although the petitioners do not dismiss the possibility that criminal activity will be conducted under “cover” of unlisted numbers, they maintain it is always possible to approach a court. They claim it is unnecessary to establish a database that is always open to investigatory authorities without having to obtain a court’s approval for unlisted numbers. The petitioners in fact focuses on the risk of establishing a database that includes unlisted numbers accessible to any policeman or other person who works for the investigatory authority, and on the concern about information “leaking” from the database to others – inside or outside the investigatory authority – who would use the information improperly.

 

36.       In response the State maintains first that the right to “confidential conversation” does not include the right to an unlisted telephone number, which is merely a technical possibility provided by the telephone companies as a contractual matter between them and customers. Furthermore, the state argues that even were the right to an unlisted telephone number recognized, such right does not exist vis-à-vis the investigatory and law enforcement authorities, and presumably no reasonable person really expects this to be the case. At the practical level, the State argues that even now calls made from unlisted telephone numbers to the Police call centers are not confidential to these centers. The State further warns that excluding unlisted numbers from the database that is accessible to the investigatory authorities would create a means for criminals, who wish to use unlisted numbers in criminal activity, to hide from the eyes of the Police. As to the purpose of establishing the database, the State explained that the arrangement is designed to limit the time necessary to trace a particular telephone number’s owner.  Without the arrangement embodied in the Act, investigatory authorities would have to reach out to the communications companies about any number in order to obtain the subscriber’s identification details.

 

37.       We do no see fit to accept the petitioners’ request to restrict the use of the database. We accept the State’s argument that a communication company’s commitment to the customer to provide an unlisted number does not entitle the customer to confidentiality from law enforcement authorities. Moreover, it should be borne in mind that the interpretation of the database’s use – like the use of the judicial arrangement – is narrow and restricts the investigatory authorities’ action to specific cases only, when the information in the database is required to prevent a particular crime, trace a particular offender, save or protect human life or seize property under the Act in concrete circumstances (and see section 7(c) of the Act, which refers to sections 3(a)(1) to (4)). As analyzed above, it appears that, given the Israeli constitutional system, it is improper to interpret the Act to permit using the database for Police intelligence activity generally or for infrastructure. Given this presumption, we do not consider it justified t limit the actual transmission of particular numbers to the database to enable those who wish to conceal themselves from the eyes of law enforcement authorities to do so. Consequently, the petitioners’ argument should be dismissed.

 

            As obiter dictum, we briefly refer to a new argument by the Association for Civil Rights (hereinafter: “the Association”) in its supplemental brief from November 16, 2008, which was not raised in the actual petition. As the argument goes, the Act’s infringement is aggravated due to the Police’s capability to obtain communications data automatically, without needing the communications companies’ authority, by connecting online to the cellular and Internet companies’ computers. According to the Association, section 13(b) of the Communications Act hints at this capability. The section enables the Prime Minister to prescribe security arrangements for transmitting data between security forces – including the Israel Police – and the communications companies. The Association relies on the fact that the General Security Service already uses such capability, and as support it presents the respondents’ answer in AP 890/07, The Movement for Freedom of Information v. The Ministry of Communications (unpublished, November 5, 2007). The respondents there explained there are indeed secret security appendices that regulate transmission of communications data from communications companies to the General Security Service. Nevertheless, the respondents there explained that those appendices do not regulate the General Security Service’s powers to obtain communications data but only the technical means to obtain them and that the powers to obtain the data are subject to the substantive law regulating them. In response, the State explained here that independently from how the data are transmitted – be it online in real time or by a specific motion – the accessible data would only be those permitted by the Act and its arrangements. It was further explained that the question about the technological way the data is transmitted is in any event of no constitutional significance. We have not found the Association’s argument, which was made partially and unsatisfactorily, to constitutionally justify striking down the Act. In any event, the concern the Association raised in its argument relates to the improper use of access to the data, which is facilitated through online access to the data, rather than to actually permitting access, which is restricted, as mentioned, by the Act, with the narrow interpretation that our opinion applies to them. Clearly, should the petitioners believe that the way the data are actually transferred demonstrates the Act’s implementation beyond the proper criteria outlined or should the petitioners find evidence of improper use of the means granted to the investigatory authorities, they may take the appropriate steps.

 

(b)       The Proportionality of the Law As a Whole

 

38.       We have therefore reached the conclusion that the arrangements in the Act, including the judicial arrangement, the administrative arrangement and the keeping of unlisted numbers in the database, do meet the requirements of the Limitations Clause and do not establish cause for constitutional intervention. In addition, we would further say that an overall review of the Act and all the arrangements and balances in it also leads to the conclusion that no cause for our intervention has been established.

 

            First, as stated in paragraph 25 of our opinion, the administrative arrangement in section 4 concerns only grave, urgent cases. Accordingly, the legislature has left the majority of the investigatory authorities’ actions under the Act to address by a court through the judicial arrangement. Such a balance, insofar as actually implemented according to the obligatory criteria, ensures judicial review of the majority of cases in which investigatory authorities infringe privacy by exercising powers under the Act. As discussed, the judicial authority has a weighty responsibility to insist on limited and appropriate use of the powers granted by the Act. But as discussed, the very existence of judicial review of the main procedure for obtaining data under the Act indicates its proportionality.

 

            It should be noted that the fact that “the usual course” is that which passes through the courts and that it is not self-evident that only in urgent, exceptional cases will the administrative course be used. Thus, for example, in the English law that deals with obtaining communications data, this distinction between emergencies and the ordinary course does not exist, and investigatory authorities can in all cases act through the administrative course without needing a judicial order (sections 25(1) and (2) of the RIPA). In particularly serious emergencies the authority may even act without written authorization at all – even administrative – and oral authorization is sufficient (as provided in the Regulations – section 3.56). On the other hand, the outlook of American law is closer to Israeli law and it lays down an administrative, alongside a judicial, course. As detailed above, the administrative course, which is regulated in §2703(c)2, Chapter 18 of the USC, enables the investigatory authority to obtain various types of communications data without judicial involvement. In this connection, by means of an administrative order, it is possible to obtain the subscriber’s name, address, calls documentation, means of payment and others. Beyond the data that can be obtained under this section, a judicial order is necessary (the American law distinguishes between two types of orders). It should nevertheless be noted that insofar as our examination has revealed, it appears that American law sometimes recognizes the ability to be relieved of the primary duty to approach a court and in urgent cases permits administrative orders. When the investigatory authority seeks to use surveillance devices that enable obtaining real time data of outgoing and incoming calls from an Internet or telephone communications source (pen registers/trap and trace devices), American law recognizes exceptional cases where a judicial order may be bypassed and an administrative order suffices: a risk to a person’s life or serious injury; acts suspected as organized crime; an immediate threat to a national security interest; or an attack on a protected computer. An administrative order issued according to this arrangement is only valid for 48 hours, after which the investigatory authority must request a judge’s approval again or stop using it (§3125(a) of Chapter 18 of the USC). Canadian law, too, reflects a similar approach to that of Israeli law. It provides that the usual course for obtaining communications data is by approaching a judge (sections 184 to 186 of the Canadian Criminal Code), while the administrative course is defined in Canada as an option that is available to the investigatory authorities only in rare emergencies.

 

            Second, the Law grants different powers to different investigatory authorities and delineates their use in a way that contributes to its proportionality. Thus, while all investigatory authorities addressed by the Act – the Israel Police, the Military Police CID, the Police Internal Investigations Department of the Ministry of Justice, the Securities Authority, the Antitrust Authority and the Israel Tax Authority – are authorized to use the judicial arrangement and approach a court for an order to obtain communications data, only the Police and the Military Police CID have been empowered to follow the administrative arrangement. This distinction acknowledges that alongside the importance of enabling the other investigatory authorities to perform their duties in the best way, the most “infringing” powers are to be granted to a limited group of authorities that are used to dealing with urgent cases, whose potential need of those powers is greater. In our opinion this substantially limits the potential infringement of the right to privacy.

 

            Again in this respect, the Act’s proportionality may be inferred by reviewing similar arrangements in corresponding legal systems. Thus, English law’s list of the authorities empowered to use the arrangements for access to communications data is not exhaustive. Instead, several investigatory entities are explicitly named, like the Police, the National Criminal Intelligence Service, the National Crime Unit, the Customs Authority, the Inland Revenue and also the intelligence services – and the Home Secretary is also empowered to go on to prescribe additional agencies for the purposes of the Act (see section 25 of the RIPA). It appears the powers the English law grants the various different authorities are broader than those recognized in the Communications Data Act, especially in light of the ability of the agencies mentioned to obtain communications data merely by using the administrative course, without needing a judicial order.

 

            Third, the Act’s proportionality also depends on the review to which it subjects its proper, limited implementation. This check is prescribed in section 14 regarding the Act’s general use and in sections 4(d) and (e) regarding the use of an administrative order. Section 14 mandates that the Minister responsible for the relevant investigatory authority must report to the Knesset Constitution Committee as to the use the investigatory authority for which he is responsible made of the Act, including the database. Sections 4(d) and (e) respectively provide that the competent officer who has authorized the administrative arrangement must report the order in writing; and that once every three months the head of the Israel Police Investigations and Intelligence Branch and the Commander of the Military Police CID must submit the data collected from the competent officers to the Attorney General or the Military Advocate General, as the case may be. This review is far more frequent than the review conducted by the Knesset. We would also mention that, presumably, in the course of the Attorney General’s periodic review, there will be consideration for, inter alia, reviewing the circumstances in which communications data has been obtained under section 4 and to whether it might have been possible in those circumstances to act under section 3 and obtain an appropriate judicial order.

 

            These mechanisms for review, coupled with the court’s approval of motions pursuant to section 3, make it possible to control the Act’s actual implementation and ensure the investigatory authorities limited use of the tools the Act provided them, according to the criteria detailed in our decision. Their existence makes it possible to assume that the Act’s implementation would be periodically reviewed and that problems arising in such respect, as reflected from the discussion in paragraphs 31-33, will be dealt with in the best possible way. That this control is maintained and that the supervisory entities – the Attorney General and the Constitution Committee – examine in detail the reports received and the authorities’ compliance with the guidelines deriving from our interpretation of the Act, as expressed by us above, must be guaranteed. It should be borne in mind that the Attorney General holds a special role in strictly ensuring that government authorities exercise their powers under the Act merely to the extent necessary in order to achieve its purposes, according to our interpretation in this decision and the criteria outlined in it.

 

39.       We acknowledge that a statute under review is not reviewed in a vacuum. As we have shown, the existence of the Police procedure, which should be read together with the Act, affects our perception of its implementation and the view that investigatory authorities would only use it properly and intelligently. Thus, the overall arrangements contained in it display a balanced and proportional picture of the exercise of powers it grants. In addition, the other means available to the authorities – which also infringe privacy – have an effect on our perception of the Act. As said, these means now include the capability to listen to one’s conversations, which are regulated and limited under the Secret Monitoring Law, and the ability to obtain information by implementing section 43 of the Criminal Procedure Ordinance. This means the Police, in fighting crime, has various resources that, to some extent, infringe privacy. The relevant Act joins those resources and apparently specifically within its scope the State has come a long way towards safeguarding the constitutional right to privacy. Given the restrictions detailed above we can see it as a means that does not infringe the systemic balance between the need to fight crime effectively and maintain public order, on the one hand, and the right to privacy and dignity to which everyone is entitled, on the other hand. It is to be expected that by adding more tools in the future to be available to investigatory authorities, the legislature will maintain the internal balance of each tool as well as the systemic balance, considering all the existing resources recognized by law.

 

            In this context we would also mention that the comparison with various arrangements the world’s countries have adopted must not be made in a vacuum either; rather, how the means for obtaining communications data are integrated into the general legal system should be analyzed. Thus, for example, countries where the ability to collect communications data in particular crimes is limited – like Canada and England (partially), which limit the list of offenses in different ways – at the same time make extensive access to communications data available. Thus, English law does not require authorization by a judge in order to collect communications data, and Canadian law makes obtaining communications data possible when demonstrating a vague, general cause. The comparison with different systems and their approach to the means for collecting communications data, as adduced above in the relevant contexts, leads to conclude that even were different countries to choose different balances, the balance in the Act under review is not unreasonable compared to the balances adopted in countries with similar legal systems to Israel’s, and which contend with similar challenges regarding technology, their battle against crime and in protecting privacy.

 

            In view of all the above, we have reached the overall conclusion that the Act – together with its arrangements and their interpretation in our decision – does not infringe the constitutional right to privacy to beyond necessary.

 

Inadmissibility of Evidence

 

40.       Before concluding, we believe it is appropriate to consider another issue the petitioners raised, namely the admissibility of evidence collected according to the Act in legal proceedings. The Israel Bar, which is the petitioner in HCJ 9995/08, asks that the Act stipulate that obtaining communications data in violation of the Act could not produce evidence that would be admissible in legal proceedings. Furthermore, it requests we add a requirement for the use of evidence procured through the administrative proceedings in section 4 of the Act, whereby a court would retroactively approve the competent officer’s permit before the communications data obtained through the administrative order may be used as evidence in court.

 

41.       Let it immediately be said that we do not find the petitioners’ arguments in this respect substantial and do not see fit to grant the relief sought here, for several reasons. First, we would mention as our premise that the majority of statutory arrangements in our legal system do not include specific rules for inadmissibility (see CrimA 5121/98, Private Refael Isascharov v. The Military Prosecutor, IsrSC 61(1) 461, 524-525 (2006) (hereinafter: “Isascharov”) and also compare CrimA 115/82, Heil Muadi v. State of Israel, IsrSC 38(1) 197, 262 (1984)). Consequently, the absence of an inadmissibility rule in the Communications Data Act does not per se indicate that the Act is constitutionally flawed. Moreover, we would note there are exceptions to the general rule about the lack of inadmissibility provisions in most statues in Israeli law as a limited number of statutes do include such provisions: section 32 of the Protection of Privacy Act, section 13 of the Secret Monitoring Act and sections 10A and 12 of the Evidence Ordinance [New Version], 5731-1971.

 

            As to the Protection of Privacy Act, section 32 of that law already prescribes that material unlawfully obtained while infringing privacy is inadmissible as evidence. As the section states:

 

“Material Inadmissible As Evidence

 

32.       Material obtained while committing an infringement of privacy shall not be used as evidence in court without the consent of the injured party, unless the court, for reasons which shall be recorded, permits such use or if the infringer, as a party to the proceeding, presents a defense or enjoys exemption under this Act.”

 

            Consequently, without ruling on the relationship between the inadmissibility section of the Protection of Privacy Act and conduct under the Communications Data Act, material obtained in violation of the criteria concerning the Communications Data Act might be subject to the inadmissibility provision of the Protection of Privacy Act. Insofar as the Secret Monitoring Act’s inadmissibility rule, as we have already held above, we do not find it possible to analogize between the two statutes and the fact that the Secret Monitoring Act includes a specific inadmissibility rule does not make it necessary to adopt a specific inadmissibility rule in the Communications Data Act too.

 

            Moreover, as we have already held many times in the past, since the 1980s our legal system has been marked by moving from rigid rules of admissibility towards a substantive examination of evidence. We acknowledge this approach prioritizes the court’s substantive review of evidence over disqualification. Nevertheless, this move has been tempered in recent years and because defendants’ basic rights in criminal law were increasingly recognized, a doctrine of relative inadmissibility was adopted in Isascharov. Under this doctrine a court has discretion to rule on the admissibility of evidence that has been unlawfully obtained, depending on the specific circumstances of the case. The rule in Isascharov was summed up as follows:

 

“Where in the past the case law in our legal system held that evidence admissibility is not examined by how it was obtained because the interpretive weight in such context was placed on the purpose of uncovering the truth and fighting crime, a more flexible balance is now sought. It takes into account the duty to protect the defendant’s rights and the fairness and integrity of the criminal procedure. The proper balance between all the competing values and interests in this particular respect leads to the adoption of a doctrine of relative inadmissibility, whereby a court would have discretion to rule on the admissibility of evidence that has been unlawfully obtained on the merits of the actual circumstances of every case and according to the criteria below” (Id, at 546).

 

Given this legal framework, we have, as mentioned, not considered it proper to grant the petitioners’ motions and we have certainly not found that the absence of a specific inadmissibility rule in the Act justifies constitutional intervention. Clearly, insofar as a defendant seeks to assert that material that was obtained under the Act is inadmissible evidence, he may so argue during the judicial proceedings and the court adjudicating the case would review these claims. We do not find this arrangement should be augmented by a specific provision as to evidence obtained under the Act, as opposed to any other evidence allegedly unlawfully obtained. In terms of a requirement to obtain retroactive approval of administrative orders that were duly issued under the Act, to the extent we held the Act and the procedures under it are constitutional, it is inappropriate to hold that they should be bolstered by requirements as to how investigatory authorities may use them in legal proceedings.

 

Conclusion

 

42.       The modern reality in which we live and the technological innovations that accompany it give the citizens of the world – who can afford it – means of communication that are constantly refined and that facilitate easy, quick transmission of information over great distances. On the one hand, this reality has made our world a place where a great deal of private information about the individual moves freely – frequently with the consent of that individual – in the public sphere. On the other hand, this reality has become a convenient platform for negative elements and criminals who wish to use such technology for their own purposes. Countries around the world, including Israel, have realized that these changes can be harnessed to improve their enforcement capabilities and the quality of life for their residents. The Act challenged by these petitions is Israeli law’s regulation of how law enforcement may use sophisticated technology. As discussed at length above, enforcement authorities should have appropriate tools to facilitate law enforcement in the changing reality. Additionally, undoubtedly these moves may potentially infringe greatly on residents’ privacy. This reality requires developing complex arrangements that properly weigh the overall interests at stake. Having carefully reviewed the overall arrangements of the Communications Data Act and its procedures, we have reached the overall conclusion that, considering the proper interpretation regarding the exercise of the powers the Act prescribes – an interpretation which essentially calls for limited implementation strictly when necessary – we see no cause for constitutional intervention. Nonetheless, as we have emphasized time and again, enforcement authorities are under a substantial duty to exercise their powers with prudent discretion and closest attention to the fact that the infringements caused by the Act should be executed only to the necessary extent and degree. Moreover, the Knesset and the Attorney General, who are legally charged with maintaining regular review over how much the Act is used, hold great responsibility in this respect. The same applies to courts reviewing motions for obtaining communications data under the Act. We assume, and trust, that all the authorities involved in implementing the Act will take the strictest care to ensure the powers the legislature granted them are not exercised unnecessarily and that they are used following the limiting criteria delineated in our decision.

 

For the sake of clarity, we would therefore sum up our interpretive findings regarding the Communications Data Act: first, as to the exercise of the powers in both section 3 and section 4, we held that they should be interpreted so that obtaining data under the Act is only permissible where it is necessary for a specific, concrete purpose, like an investigation of a particular occurrence regarding a specific suspect or victim, as opposed to executing the Act for general purposes of detecting offenders and preventing crime. Second, regarding exercising the power in section 4 of the Act, we held this should be interpreted so that a permit obtaining communications data is only sparingly permissible, in extreme cases, in order to deal with offenses that require it and only where because of the urgency it has become clear that it impossible to obtain a court order under section 3. This is when the reason for not approaching a court is because of circumstances involving saving life or other serious factors, always considering a range of factors, including that the subscriber is a professional, the extent of his involvement in the offense, the type of data sought, the degree of urgency, the gravity of the offense and other similar considerations. To the extent journalists are concerned, we have found that the restrictions on the use of orders, as reflected in the procedure concerning section 4, are mandated by the Act’s purpose and the balances the procedures reaches in implementation. Accordingly, when the subscriber is a journalist, who is not the victim or is not suspected of the offense, a motion under section 4 to obtain his communications data of the traffic data will not be approved.

 

43.       Given the above and subject to the restrictions and limitations outlined in this decision as to the proper exercise of powers under the Act, we found no constitutional cause for our intervention. The petitions are dismissed. In the circumstances, there will be no order for costs.

 

Justice E. Arbel

 

1.         The petition centers around the boundaries of the right to privacy as a constitutional right. Technological innovations raise concern that the State will gather and use extensive information of nationals and residents, and this requires adapting the law to this possible harm. In her opinion, the President reviews extensively and in great detail whether the balance the legislature strikes in the            Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007 (hereinafter: “the Act”) meet the criteria of constitutionality according to our legal system. I agree with her unequivocal conclusion that the Act does infringe the right to privacy. Nevertheless, as stated, the Act neither permits actual listening to conversations or reading messages nor does it permit disclosure of the contents of a person’s conversations. I also agree that the Act meets the criteria of proportionality accepted in our jurisprudence and does not infringe the constitutional right to privacy to an extent beyond necessary. Constitutional cause therefore for this Court’s intervention does not arise. I believe that the inability to obtain communications data would place enforcement authorities at a disadvantage compared to offenders. I agree with my colleague the President’s interpretive findings and reasoning as to the execution of the powers under sections 3 and 4 of the Act. Nevertheless, I find it proper to add one point of reference.

 

2.         I would add what is seemingly self-evident about section 4 of the Act, which permits a competent officer to grant a permit to obtain communications data without a court order in urgent cases in order to prevent a felony, to detect its commission or to save human life, when a court order under section 3 cannot be obtained in time under the circumstances. Section 4(b) of the Act limits such permit to a period of no more than 24 hours. Nevertheless, the Act’s language does not expressly preclude the permit’s renewal by a competent officer at the end of such period or some time thereafter. In my opinion, section 4(b) should be construed as precluding that possibility and as requiring the competent authority to approach a court for an order under section 3 of the Act to the extent it is necessary after the initial period has expired – namely after 24 hours. This interpretation is warranted so that the infringement of the right to privacy does not to exceed the necessary. I would also note that it would be proper, in my opinion, to consider inferring from section 5(d) of the Secret Monitoring Law, 5739-1979 about the court’s retroactive approval of permits issued in urgent cases without a court’s approval. Although section 4 of the Act prescribes arrangements that would permit the Attorney General and the Military Advocate General’s review of that section’s application, in my opinion that is inadequate and the court’s review of the section’s implementation should also be required through retroactive approval of the permit awarded.

 

As said, I concur with the President’s comprehensive opinion and reasoning.

 

President U. Grunis

 

I agree that the petitions should be dismissed as proposed by my colleague, President (Ret.) D. Beinisch.

 

Justice M. Naor

 

I join the comprehensive opinion of my colleague, President (Ret.) D. Beinisch.

 

 

Justice E. Hayut

 

I join the opinion of my colleague the President and her conclusion that subject to the reservations detailed in her opinion as to the proper exercise of the powers granted by the Criminal Procedure (Powers of Enforcement – Communications Data) Act, 5768-2007, the Act meets the criteria of proportionality under the case law and does not infringe the right to privacy unconstitutionally.

 

Justice H. Melcer

 

1.         I join the comprehensive opinion of President (Ret.) D. Beinisch (hereinafter: “the President”) in respect to the proper constitutional interpretation of sections 3, 6 and 7 of the Criminal Procedure (Powers of Enforcement – Communications Data) Law, 5768-2007 (hereinafter: “the Communications Data Collection Act” or “the Act”). Nevertheless, I find myself at issue with the President on two matters:

 

(a)          The protection that should be given in the context of the Law to someone in respect of whom professional privilege applies by law, including case law (hereinafter: “professional privilege”); and

 

(b)         The proper constitutional interpretation of section 4 of the Act and the limitations of its deployment.

 

My opinion on both these issues is expressed below. I would immediately say that my view leads to a constitutional-interpretative conclusion that a competent officer, as defined by section 1 of the Act, cannot act under section 4 of the Act where professional privilege prima facie applies. The only way to try to obtain communications data in such situations is approaching a court and securing its authorization according to section 3 of the Act (especially section 3(b)), subject always to the provisions of law (including case law).

 

I shall now present the reasoning of my said approach and give details in order.

 

The Scope of Professional Privilege in the Context of the Communications Data Collection Act and the Constitutional Rights Involved, upon which the Privilege is Based

 

2.         The President states (at the beginning of para. 10 of her opinion) that it was held in the past that professional privileges “essentially extend to the content of the conversations between the professional and the privileged person but not to the very existence of a relationship with the professional person, and the purpose of the privilege is to allow the privileged person a realm of free communication between him and the professional.” Therefore, the President believes that the Communications Data Collection Act does not in fact infringe privilege, apart from journalistic privilege because, as she sees it, the Act in any event does not permit the obtaining of substantive data, to which the privilege applies.

 

3.         We can see that this method – which distinguishes between the conversation’s substance (which is privileged) and the information around the conversation’s existence and the identity of the parties to it, which is not privileged (according to the argument) – has a significant effect on the consequences of reviewing the whole Act because it impacts the precursory determination of the scope of the constitutional rights that are infringed by the Communications Data Collection Act. Indeed, the conclusion that the first stage of the constitutional analysis, which concerns identifying the scope and force of the constitutional right and its limits, naturally has a significant effect on the second stage of that analysis, which deals with reviewing the constitutionality of the infringement on the constitutional right or of the limitations imposed upon it (see: Aharon Barak, Proportionality in Law 43-48 (2010)).

 

I shall therefore start my enquiry into the key preliminary question as to the relevant privileges and the constitutional rights involved in the whole, an issue where my opinion differs from the position presented by the President.

 

4.         I agree that as a point of departure the distinction between “form” and “substance” should be respected so that the core of the privilege should first apply to the information concerning the contents of conversations between the privileged party and the professional. However, there are cases – and current technological development demonstrates that the same is becoming more and more prevalent – where the core of the privilege, as defined above, radiates outwards and should also protect information, which although per se constitutes only the “form” of the communication, does in the relevant context provide tools for the prohibited disclosure of privileged information. In such cases, that “technical” data, which is not apparently originally privileged, falls within the privilege because its disclosure provides access to protected information. What is important here is that in such cases (which, as noted, are recently not so few) obtaining communications data might infringe professional privilege.

 

Hence, the constitutionality of the Data Communications Collection Act’s provisions, for a provisional order was issued, not only regarding journalistic privilege but also regarding the privilege of other professionals, within the meaning of section 3(d)(7) of the Act. I shall now express my position as to two privileges: attorney-client privilege and doctor-patient privilege. I shall then explain what sets journalistic privilege apart and refer to the constitutional rights in all these contexts and their implications to the Act’s interpretation.

 

Attorney-Client Privilege and the Constitutional Rights upon Which It Rests

 

5.         It is common to believe that a particular method of payment by a client to an attorney – in cash or by check etc. – ordinarily falls into the category of information that is not privileged. In the United States, this distinction gives rise to certain difficulty that impacts the instant case. The enforcement authorities there have discovered that offenders who deal in smuggling dangerous drugs habitually pay for the services they use (that is to say lawful services, including legal services) in cash. Enforcement authorities therefore tried to use this and have attempted to inspect lawyers’ tax returns in order to find large payments of professional fees in cash and the identity of the payers. The lawyers have argued that privileged information, which should not be disclosed, is involved. The conclusion reached in the United States is that, generally, information concerning the method of a particular client’s payment and his identity are not privileged but such information can enjoy privilege where the information:

 

“reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of the service provided” (Chaudhry v. Gallerizzo, 174 F. 3d 394, 402 (4th Cir. 1999); Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514 (S.D.N.Y. 2003)).

 

That is then one typical way in which the privilege can radiate outwards from its core to information that is not prima facie privileged and that is indeed the way in which matters have also been interpreted in the legal literature there:

 

“The privilege protects an unknown client’s identity where its disclosure would reveal a client’s motive for seeking legal advice. Here extending the privilege to the client’s statement of identity is a means to the end of protecting the confidentiality of the client’s more substantive communications with the attorney” (Edward J. Imwinkelried, The New Wigmore: Evidentiary Privileges 746 (2nd Ed., 2009) emphasis added – H.M.; see also Thomas E. Spahn, The Attorney-Client Privilege and the Work Product Doctrine vol. 1 93 (2007)).

 

In Israel, although it is usual to think that the privilege does not apply to the client’s name, it has been maintained that this position is not free of difficulties similar to those described above (see, Dr Gabriel Kling, Ethics in Advocacy 418-419 (2001)). It should also be noted that it was recently held in this context that the obligation imposed on certain attorneys in Israel to include clients’ names in their periodic VAT returns “is not a disproportionate infringement of the client’s privilege vis-à-vis his relationship with the attorney.” Nevertheless, that finding was qualified: “if a concrete problem arises regarding the privilege, the client’s right to argue for privilege is reserved.” (HCJ 115/11, Adv. Cassouto v. The Tax Authority (unpublished, April 30, 2012)).

 

6.         It should be noted here that attorney-client privilege, which is regulated in Israel by section 90 of the Israel Bar Act, 5721-1961 and section 48 of the Evidence Ordinance [New Version], 5731-1971 (hereinafter: “the Evidence Ordinance”), preceded the Basic Law: Human Dignity and Liberty, but since its legislation this privilege apparently also has constitutional element. Attorney-client privilege now derives, at the constitutional level, from the constitutional right to dignity (sections 2, 4 and 11 of the above Basic Law), the constitutional right to liberty (sections 5 and 11 of the above Basic Law) and the right to due process, which was recognized in the case law as a (derivative) constitutional right. See and compare the statement by then Justice D. Beinisch in CrimA 5121/98, Isascharov v. The Chief Military Prosecutor, IsrSC 61(1) 461, 560-561 (2006); Mot.Crim 8823/07, John Doe v. State of Israel, para. 16 of Deputy President E. Rivlin’s opinion (unpublished, February 11, 2010).

 

7.         It should also be mentioned here that the Constitutional Court of Germany recently heard a petition similar to those before us here (which was brought by the German Bar and German Press Association against a corresponding statute that had been enacted there, regulating the collection of communications data). The German Constitutional Court held – in a judgement that was handed down on October 12, 2011 – that absolute privilege should be granted in respect of the gathering of communications data from a practising lawyer, on the basis of attorney-client privilege (which there is based on the constitutional right to dignity) and it also recognized partial privilege (which can be lifted by judicial order) over collecting communications data from journalists. (See BVerfG, 2. Senat, Az: 2 BvR 236/08, 2 BvR 422/08).

 

A similar constitutional approach was adopted in Britain in R. (On the Application of Morgan Grenfell & Co. Ltd) v. Special Commissioner of Income Tax [2003] 1 AC 563 (hereinafter: “MG”). See also Phipson, On Evidence 658 (17th ed, 2010). Compare the judgment of the European Court of Human Rights, Kopp v. Switzerland [1998] 27 EHRR 91. See on the other hand In Re McE [2009] UKHL 15 and criticism of that judgment by Simon McKay, Covert Policing – Law and Practice, pp 277-279 (2011).

 

Doctor-Patient Privilege

 

8.         When a doctor practices exclusively in a particular medical field a situation might arise where the very contact with that doctor – even though the substance of the contact or treatment is not disclosed – will enable a third party to deduce information concerning the purpose underlying the contact and infringe the privilege that governs the relationship between doctor and patient. Thus, for example, it was held in this context in HCJ 447/72, Ismachovitz v. The Investigatory Assessing Officer, IsrSC 27(2) 253 260 (1973) (hereinafter: “Ismachovitz”), as also mentioned in the President’s opinion:

 

“… Here the petitioner states that because of his specific practice in the sphere of sterility and impotence, the disclosure of patients’ names and others who have visited him, such as sperm donors for artificial insemination, merits privilege because those involved would not go to a doctor if they perceived the risk that it would become known. […] I am willing to assume that there may be special cases, where even the identity of the patient will fall within the scope of a privileged confidence under section 49 of the Ordinance, although I dare to doubt whether the petitioner’s practice does indeed require such extension of the protection of privilege”.

 

As mentioned, in the circumstances of Ismachovitz it was held that the identity of the person going to the doctor was not protected, inter alia because the petitioner there practiced in several spheres (and for other legal reasons). However, this conclusion does not derogate from the more general perception that the rigid distinction between the very contact and its substance is problematic in many cases, especially in areas concerning telecommunication. See Constitutional Rights and New Technologies – a Comparative Study, 277-278 (Ronald Leenes, Bert-Jaap Koops, Paul De Hert, Ed., 2008).

 

Furthermore, once the Patient Rights Act, 5756-1996 was legislated (especially if we interpret it in light of Basic Law: Human Dignity and Liberty, which preceded it), the patient’s right to privacy gained paramount status and was raised to constitutional level. Section 19(a) of this Act provides in our context as follows: “a clinician or medical institution worker shall keep secret all information relating to the patient that comes to his knowledge in the course of his duty or in the course of his work” (emphasis added – H.M.).

 

Nevertheless, there is still a certain difference so far as we are concerned between the professional privileges that are regulated, for example in the Evidence Ordinance (all of which can be constitutionally justified one way or another) and journalistic privilege (which is considered to be a creature of case law, with specific characteristics). This difference was also highlighted in these petitions and the President also acknowledged it. We shall immediately deal with this at greater length.

 

The Journalistic Privilege and the Constitutional Rights upon Which It Rests

 

9.         In paragraph 10 of her opinion, the President writes as follows:

 

“As the State also agreed, with regard to journalists, the very identity of the person who contacts a journalist can constitute part of journalistic privilege because it may expose the journalist’s source despite the protection given to such source.”

 

This Court has considered the protection granted to a journalist’s source. In the case of Tzitrin (MA 298/86, Ben Zion Tzitrin v. The Disciplinary Tribunal of the Israel Bar, Tel Aviv District, IsrSC 41(2) 337 (1987) (hereinafter: “Tzitrin”)), President M. Shamgar stated:

 

“The protection of the sources of information necessary for the performance of the journalist’s function, including protecting the relationship of trust on the basis of which information is given in return for an assurance that the source not be disclosed, is therefore a public interest and not the particular interest of the relevant newspaper or journalist” (ibid, p 358).

 

Since Tzitrin, this view has been an axiom of Israeli constitutional law. Nevertheless, the journalist’s privilege has several unique elements compared to other professional privileges and they are set out below –

 

(a)       As already mentioned, it is the result of case law, while the others are statutory.

 

(b)       It is relative (like some of the statutory privileges), unlike, for example, the privilege covering evidence concerning the attorney-client relationship (section 48 of the Evidence Ordinance) or evidence presented by clergymen (section 51 of the Evidence Ordinance), which are absolute. For these, the Evidence Ordinance does not prescribe a balancing formula and courts have not been granted power to order revoking the privilege. See: LCA 5806/06 The Estate of Michael Namirovski, Deceased v. Shimko, paras. 6-7 of Deputy President E. Rivlin’s opinion (unpublished, June 13, 2007); HCJ 844/06 Haifa University v. Prof. Avraham Oz, para. 11 of Justice E. Hayut’s opinion (unpublished, May 14, 2008) (hereinafter: “Haifa University”).

 

(c)       It blocks evidential expression in judicial or investigative proceedings – with the intent of making journalistic information public. The other privileges that apply, for example, in respect of treatment-oriented professions, like lawyers, doctors, psychologists or social workers, preclude the flow of information (to the court) in order to enable the individual privately to put to the professional all the information necessary for his treatment. On the other hand, journalistic privilege blocks evidential expression in judicial or investigatory proceedings specifically with the intention of making matters public and ensuring the public’s right to know. See: pp viii and ix of the work by Yisgav Nakdimon, Precluding Expression in Order to Permit Expression – Suggested Thought Process for Fashioning the Scope and Protection of Journalistic Privilege in the Constitutional Era (Ph.D. thesis, under the supervision of Prof. Ariel Bendor, The Faculty of Law, Haifa University, 2012 (hereinafter: “Nakdimon”).

 

(d)       Unlike the other privileges, it is likely to be infringed per se on disclosure of the journalist’s communications data, which is likely to expose the identity of his sources of information, which is at the very heart of the privilege and not the mere periphery of the right. Hence, it should be acknowledged that not only the name of the source, but any detail or information that might lead to his identification should fall within the scope of journalistic privilege. See: Nakdimon, id, at 153-154, 276-277.

 

10.       The journalist’s privilege is therefore one of the means that guarantee freedom of the press, and constitutionally it is as though it were drawn from the freedom of expression, which is an independent constitutional right that is “at the very heart of democracy” (CrimA 255/68, State of Israel v. Ben Moshe, IsrSC 22(2) 427, 435 (1968)). Other approaches maintain that the freedom of expression itself depends upon a certain degree of privacy, which permits one’s autonomous and original development. See: Stephen Breyer, Active Liberty 62-63 (2008); Ruth Gavison, Privacy and the Limits of the Law (Yale L. J. 475 (1980). For a summary of the different perspectives on this, see also: CA 751/10, John Doe v. Dr Ilana Dayan-Orbach, paras. 61-66 of Deputy President E. Rivlin’s opinion (unpublished, February 8, 2012) (hereinafter: “Dayan”).

 

11.       The other view does not see journalistic privilege as rooted in the doctrine of free expression but bases it directly on the rationale of individual privacy and confidentiality of conversations, that are now constitutional values protected under section 7 of Basic Law: Human Dignity and Liberty (to be precise, the confidentiality of conversation would also appear to include the confidentiality of the parties to the conversation, rather than just its content). Hence, according to this view, journalistic privilege enables the reporter’s source to maintain his anonymity in the world outside the “confidential domain” between the two (see: Michael Birnhack, Control and Consent: the Notional Basis of the Right to privacy, Mishpat U’Mimshal II, 63-64 (2007) (hereinafter: Birnhack, Control and Consent); Michael Birnhack, The Private Domain: the Right to Privacy between Law and Technology, 121-122 (2011) (hereinafter: Birnhack, Private Domain); Nakdimon, at 141-143). In this context anonymity is perceived as part of the right to privacy since “it enables a person ‘to act in peace’ and avoid personal exposure and the giving of information about himself that he does not wish to give… Anonymity gives a person control over information about himself… and prevents ‘gazing’ into his privacy”. (See LCA 4447/07, Mor v. Barak ETC (1995) International Telecommunication Services Ltd, para. 13 of Deputy President E. Rivlin’s opinion (unpublished, March 25, 2010); see also Nakdimon, p 141).

 

12.       All the above indicates that the journalist’s original privilege can also be based on the value of human dignity, enshrined in sections 2, 4 and 11 of Basic Law: Human Dignity and Liberty, because such privilege contributes to safeguarding the freedom of expression, which in turn is embodied in the doctrine of human dignity (see: CA 105/92, Reem Contracting Engineers Ltd v. Nazareth Elite Municipality, IsrSC 47(5) 189 (1993); HCJ 2481/93, Dayan v. The Commander of the Jerusalem District, IsrSC 48(2) 456 (1994); PPA 4463/94, Golan v. The Prison Service, IsrSC 50(4) 136, 152-153 (1996)).

 

To be exact, another constitutional track, which also has certain support, in fact finds the constitutional embodiment of the freedom of expression in the right to liberty, as protected under sections 5 and 11 of Basic Law: Human Dignity and Liberty (see, for example, the paper by Dr Guy E. Carmi Dignity – the Enemy from Within: a Theoretical and Comparative Analysis of Human Dignity As a Free Speech Justification, 9 U. Penn. J.  Con. L. 957 (2007) (hereinafter: “Carmi I”); Guy E. Carmi “Dignitizing” Free Speech in Israel: the Impact of the Constitutional Revolution on Free Speech Protection 57 McGill L. J. (forthcoming 2012) (hereinafter: “Carmi II”). However, this possibility – which has not yet become entrenched in the Israeli legal system – does not directly impact the analysis here and there is therefore no need to consider it at length. Furthermore, as mentioned in LCA 10520/03, Ben Gabir v. Dankner (unpublished, November 12, 2006), there is in any event a certain natural proximity between the separate doctrines of liberty and dignity, which inter alia also finds expression in protections of free expression: “the freedom of expression is the mother of freedoms. It is also the most fragile of them. It is the first to be infringed but the infringement never stops there. All the freedoms fall together with it. Its fall marks the end of human dignity. Human liberty – man’s dignity. Human dignity – man’s liberty” (emphasis added – H.M.; see also in this respect Carmi I, pp 966-967; Dayan para 66).

 

Interim Summary

 

13.       The analysis so far demonstrates that the possible infringement by the Communications Data Collection Law of the protected privileges is not limited merely to journalistic privilege and it might also extend to other privileges that are embodied in the Evidence Ordinance and other provisions of law, or those the case law has or will recognize in the future (see: section 3(d)(7) of the Act. See also Haifa University, bottom of para. 19 of Justice E. Hayut’s opinion (unpublished, May 14, 2008); HCJ 793/05, Bar Ilan University v. The Jerusalem National Labor Court, paras. 11-14 of President D. Beinisch’s opinion (unpublished, January 31, 2011)).

 

Professional privilege therefore promotes the interests of a person involved in a variety of relevant spheres (religion, medicine, law and the like), without concern that his sensitive, personal information will be disclosed (see: Birnhack, Control and Consent, p 34; Isaac Amit, Admissibility, Confidentiality, Privilege and Protected Interests in Civil Law Discovery Proceedings – An Attempt to Impart Order in Uri Kitai Book 247 (Ed. Boaz Sangero, 2007)).

 

As aforesaid, this concept affects constitutional review because in my opinion infringing the privileges constitutes at least an indirect infringement of the constitutional rights to dignity, liberty and privacy.

 

14.       In view of all this and considering the compound infringement of the constitutional rights of privileged persons, which is at stake here, it seems appropriate to ease the sharp distinction between “substance” and “form” in the context of privileges and the communications that include or encompass them. Indeed, “cohesion between the media and the collapse of the distinction between content and communications data requires a new legal framework for protecting privacy, which is not based on a dichotomy like its predecessor but on a continuum of situations classified according to the degree of risk they pose to privacy” (see: Omer Tene, Look at the Pot and See What Is inside: Communications Data and Personal Information in the 21st Century” in Legal Network: Law and Information Technology 287, 313 (Ed. Niva Elkin-Koren & Michael Birnhack, 2011)).

 

I shall now then move on to analyze the constitutional validity of the provisions of the Communications Data Collection Act under review here, in light of my conclusions above. Since I do agree, as noted, with the President’s approach as to the constitutionality of sections 3, 6 and 7 of the Communications Data Collection Act, my review below will center on the constitutionality of the “administrative course” prescribed in the Act, and the boundaries that should, in my opinion, be set for it.

 

Summary Review of the Constitutionality of Section 4 of the Communications Data Collection Act

 

15.       Section 4 of the Communications Data Collection Act establishes a “course” for obtaining permits under the Act, which is reserved for “urgent cases.” The main characteristic of this “course” is that the entity authorizing the permit is not a court but a “competent officer,” as defined in section 1 of the Communications Data Collection Act. It stands to reason – and the President also agrees – that such “administrative course” involves greater infringement of constitutional rights than the “legal course” since a permit to obtain communications data is granted here by an administrative entity – the competent officer – who is asked to do so by another administrative entity (sometimes within the same organization as the competent officer), without having to justify to the judicial authority the reasons for awarding the permit.

 

Indeed, there is a presumption that the administrative authority acts properly and presumably section 4 of the Communications Data Collection Act will only be used where the competent authority believes – in good faith – that this is essential. However, even given this, it does appear to me that, as a society, it is our duty to limit such situations as far as possible since “without judicial review of the executive authority, the separation of powers is undermined and with it man’s liberty is impaired and the fundamentals of the free regime are harmed” (see: HCJ 294/89, The National Insurance Institute v. The Appeals Committee under Section 11 of the Victims of Hostile Action (Pensions) Law, 5730-1970, IsrSC 45(5) 445, 450 (1991); see: Amnion Rubinstein, Barak Medina, The Constitutional Law of the State of Israel vol. I 174 (2005)). Compare with the decision of the Constitutional Council in France, No. DC 2005-532 of January 19, 2006.

 

16.       This inherent problem of section 4 is resolved to some extent by the fact that some of the elements of the “the administrative course” detailed in it are narrower than “the judicial course” regulated in section 3 of the Act and also because it is motivated by the situation’s urgency.

 

Nevertheless, as I see it, “the administrative course” is not appropriate for contending with professional privilege. I shall below explain the reasons for this approach, which differs from my colleague’s opinion.

 

17.       In paragraph 25 of her opinion, the President states that “in the absence of such infringement [in the proportionality of the Communications Data Collection Law – of the privileges, apart from journalistic privilege; the additions in square brackets are mine – HM], prima facie it cannot be said section 4 does not refer to professionals per se it must be struck down for unconstitutionality.” The President also believes the difference between the purposes of the separate “courses” established in the Communications Data Collection Act and the fact that section 4 of the Act is reserved merely for urgent cases can all justify infringing the constitutional rights (to privacy) of professionals, including journalists (albeit with more extensive reservations regarding the latter).

 

In this respect I would adopt a different line and, in my opinion, even in urgent cases, greater (albeit not absolute) weight should be attributed to the constitutional rights of the beneficiaries of professional privilege that may only be infringed, if at all, through a judicial order under section 3 of the Act, which inter alia meets the conditions of the Limitations Clause (my opinion in CA 9183/09, The Football Association Premier League Ltd v. John Doe (unpublished, May 13, 2012). I reach this conclusion by giving a restrictive constitutional interpretation to the provisions of section 4 of the Communications Data Collection Act and the structure of the Act generally but not by invalidating the section, as the petitioners seek. The main reason I am adopting this method of interpretation is twofold –

 

(a)       Invalidating a provision of statute is indeed a last resort and before doing so it should be attempted to resolve the difficulties, if at all possible, by interpretation.

 

(b)       Invalidating a section of the Act opens up the possibility for another inadequate normative arrangement to be enacted in the future, while interpreting the section now resolves the constitutional difficulty once and for all.

 

See: HCJ 9098/01, Genis v. The Ministry of Construction and Housing, IsrSC 59(4) 241 (2004) – in the opinions of President A. Barak and then Justices M. Cheshin and D. Beinisch there.

 

My willingness to interpret, rather than strike down, is thus my joining the President’s. Nevertheless, as for the proper interpretation, I take issue with my colleague’s opinion as I shall immediately explain.

 

18.       The President believes that the narrow arrangements in section 3 of the Communications Data Collection Act can also be reflected in implementing section 4 of the Act as relevant factors that must be considered when exercising the discretion (see para. 26 of her opinion). She also states (in paras. 27-28 of her opinion) as a factor in support of her opinion that the State in fact accepts that position and it is reflected in the Police procedure that regulates the Act’s use (hereinafter: “the procedure”).

 

I myself believe that neither the State’s concession nor the procedure should carry determinative weight in this context. Although the State now agrees that the section 4 of the Act should be implemented somewhat narrowly, nothing lasts forever and in any event this concession (and the procedure based on it) does not constitute a meaningful constitutional factor, but at most alters the administrative framework. It is also deficient in that it involves something of a prohibited secret enactment. Compare: CA 421/61, State of Israel v. Haaz, IsrSC 15 2193, 2204-2205 (1961); LPrisA1127/03, State of Israel v. Klein, IsrSC 48(3) 485, 515 (2005).

 

Hence, I cannot accept the President’s position that “naturally, a change in the authority’s conduct could also lead to a material change in the balance embodied in the Act. Such a change would give rise to new cause to challenge the Act, certainly at the administrative level and perhaps even the constitutional level” (see para. 30 of her opinion). As I see it, the infringement of privilege is currently happening and there is therefore no reason to postpone constitutional review until such time as the administrative authority departs from its narrow approach, a fortiori since in my opinion that approach is inadequate. Hence, as I see it, considering the great role of privileges in safeguarding the constitutional rights detailed above, it is appropriate to hold that interpretatively the “course” for dealing with requests concerning professionals is only in section 3 of the Communications Data Collection Act and constitutes specific law in such respect. Section 4 of the Communications Data Collection Act cannot therefore be used in order to request an “administrative permit” concerning professional privilege.

 

I shall clarify this conclusion below and commence by detailing the relevant constitutional context.

 

19.       In CA 6821/93, United Mizrahi Bank Ltd v. Migdal Cooperative Village, IsrSC 49(4) 221, 265 (1995), President (Ret.) M. Shamgar held as follows (emphasis added – H.M.):

 

“The theoretical point of departure is that the legislature, wishing to alter or infringe a protected right, does so by express provision or clear contradictory determination in the language of the new provisions that conflicts with what preceded it. In any event there should be an attempt to implement statutes that cause this issue by trying to reconcile them. Consequently, the interpretive presumption is that a right protected by an ordinary statute cannot be changed or infringed by subsequent ordinary legislation unless otherwise stated or implied.

 

In the instant case I believe the argument was established that section 4 of the Communications Data Collection Act – if implemented against professional’s privilege – would infringe their constitutional rights. Such infringement is not done by express language but impliedly and it does not constitute a “clear contradictory determination” in the words of President (Ret.) M. Shamgar. President D. Beinisch and Justice. E. Hayut adopted a similar approach in HCJ 10203/03, National Commander Ltd. v. The Attorney General (unpublished, August 20, 2008). It should also be noted that based on a similar perception it was held in Britain, in MG, that:

 

“Legal professional privilege is a fundamental human right long established in the common law… The courts would ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication… Section 20(1) contained no express reference to legal professional privilege and the question is therefore whether its exclusion must necessarily be implied.”

 

(Id, paras. 7 and 8 of the opinion; emphasis added – H.M.)

 

In this context it should be further emphasized that there is a consensus that section 3 of the Communications Data Collection Act offers a more balanced arrangement in this respect, both substantively (the inclusion of detailed arrangements) and at the level of jurisdiction (the requirement that the application for the permit should be made to court, rather than the administrative authority.) The question is therefore whether, in view of the infringement to constitutional rights that underlie professional privilege, we can make do with a guideline that section 3 of the Communications Data Collection Act constitutes considerations (and nothing more) when exercising the power under section 4 of the Act. In my opinion, the answer to the question is in the negative. The overall proper constitutional result is therefore that the arrangement along the court “course” should constitute an exclusive mandatory course in the case of an application to obtain communications data concerning professionals. The reasons for this are explained below.

 

Professional Privilege Is Not to Be Infringed without a Judicial Order

 

20.       Section 3 of the Communications Data Collection Act purports to also permit consideration of urgent cases (see: section 3(f)(2) of the Communications Data Collection Act, in the knowledge that the courts system is organized to respond to such situations 24 hours a day); the “course” prescribed in it is more balanced and proportional than that delineated in the “administrative course”; its infringement on such constitutional rights is less restrictive because it requires considering a greater range of factors. It furthermore requires the administrative authority to submit its justifications to judicial review. Given these factors, enabling the administrative authority “to circumvent” the balanced legal “course” in section 3 of the Communications Data Collection Act in the case of professionals is improper. As mentioned, a series of reasons support the above conclusion and they are set out immediately below.

 

21.       The purpose of the professional privileges is to protect the constitutional values that justify them. They therefore cannot be infringed without suitable justification as provided in the Limitations Clause of Basic Law: Human Dignity and Liberty. Such justification is generally only possible through a judicial order, rather than administrative measures (a fortiori since the privileges are sometimes also presumed absolute.) This perception is what led to MKs Gideon Sa’ar and Shelly Yachimovich’s proposal on second reading, in a reservation to the Act’s Bill, the language of section 3(b) of the Act that was passed, providing as follows:

 

“If the subscriber subject the motion is a professional, the court shall not allow communications data to be obtained as provided in subsection (a), unless it is satisfied, on the basis of clear details to such effect in the motion, that there are grounds to suspect that the professional is involved in the offense, in connection with which the motion was filed.”

 

See: Knesset Proceedings of the 181st session of the 17th Knesset on December 17, 2007, at 12,895, 12,901.

 

These conditions strengthen the requirements the court faces when issuing an order to obtain communications data from the database of a telecommunications licensee, as set in section 3(a) of the Act, which mandate the court be satisfied that “it is necessary” for the purposes of the section “provided that obtaining the communications data does not infringe a person’s privacy beyond necessary”. We therefore have expression of the “Limitations Clause”, which is to be applied in every specific motion and reviewed by the judicial authority. If it does not do so, a serious situation arises as stated by then MK Gideon Sa’ar:

 

“… Whoever understands the significance in the relationship of attorney-client or journalistic privilege, or all those types of privilege, understands that it could be a device for suppressing all professional privilege” (id, at 12,895).

 

MK Shelly Yachimovich further refined matters in the context of journalistic privilege and stated:

 

… And it could go further into somewhat darker realms, and the risk of leading to the unnecessary monitoring of a journalist’s telephone lines might seriously impair his ability to function, the trust that his sources place in him, his ability to expose wrongdoing and corruption and therefore indirectly, or even directly, infringe the freedom of the press, which is a fundamental cornerstone of our democracy” (id, at 12,901)

 

22.       In light of this, it appears to me that the approach that makes infringing professional privilege conditional upon obtaining a judicial order  is the “proper constitutional” format, without which doing so is impossible. The language of section 52 of the Evidence Ordinance, which provides as follows, supports this as well:

 

“The provisions of this chapter shall apply to providing evidence both to a court or tribunal and to any authority, body or person competent under law to hear evidence; and every reference in this chapter to a court shall be deemed to be a reference to a tribunal and to any such body or person as well.”

 

In this regard, scholar Jacob Kedmi states in his work On Evidence, Part III (2009) as follows:

 

“The prevailing approach is to view the term ‘authority’ as expressing the entities that are empowered to conduct an investigation within the meaning of gathering evidence (as distinct from other entities that are empowered ‘to hear evidence’ in the way typical of giving testimony in court); and in that way to interpret the initial provision – as distinct from the final provisions that do not include the term ‘authority’ – as also applying to entities that are legally empowered ‘to gather evidence,’ like the Israel Police, income tax investigators, customs investigators, etc.” (id, at 1012) (emphasis in original – H.M.).

 

This position was in fact adopted in CrimA 8600/03, State of Israel v. Gilad Sharon, IsrSC 58(1) 748 (2003), where an extended bench, per Deputy President T. Or, held as follows:

 

“On its face, it may have been concluded that the Police, which collects evidence, could be treated as a ‘court’… This result is unsatisfactory. It is unreasonable that the Police, in attempting to obtain certain documents and facing a suspect who asserts privilege, are charged with deciding whether he does indeed have privilege… Consequently, when a suspect being investigated by the Police claims a privilege applies, the Police investigator will not have power to decide whether the documents are privileged. In order to obtain the documents the investigator will have to request a court order” (id, at 766).

 

Here it should be stated that in MG, in Britain, a similar approach and interpretation were adopted.

 

It should further be noted that section 12 of the Communications Data Collection Act, which regulates the conflicts of laws, gives effect to this position, as follows:

 

“The provisions of this Act shall not affect the powers granted by law in respect to obtaining information and documents, including communications data, but for a court’s power under section 43 of the Criminal Procedure (Arrest and Search) Ordinance [New Version], 5729-1969 to order communications data to be presented or produced upon request by investigatory or prosecution authorities.”

 

23.       My above conclusion is further supported in terms of journalistic privilege – because of its special characteristics as discussed above since the interpretation expressed in the Police procedure and adopted by the President – does not prima facie bar that where a journalist is suspected of committing a felony (for example holding “secret information” within the meaning of section 113(c) of the Penal Law, 5737-1977) the authorities would seek to act in his regard according to section 4 of the Act or by another administrative method, and there have indeed been examples of this (see Nakdimon 274-276).

 

Moreover, in the analysis so far I have ignored the fact that the Police procedure’s reference to the case of obtaining an “administrative permit” to gather communications data relating to a journalist is limited solely to traffic data (a list of incoming and outgoing calls) (see: section 7(b)(4) of the procedure). On its face this means there is no impediment to requesting other communications data, even when the journalist is not suspected of a “felony,” but this is not expressed in the President’s opinion. This is joined with the initial problem I have discussed above, and even aggravates it, because other communications data can also infringe the journalist’s privilege to the same extent as traffic data. For example, location data regarding communications equipment in the journalist’s possession could expose or help to expose the source of the privileged information (on the distinction between location data and traffic data, see: section 1 of the Communications Data Collection Act.) In this respect Nakdimon states as follows:

 

          “It appears to me that this state of affairs, where journalistic privilege as to communications data is partly regulated by internal Police directives – that might change from time to time otherwise than in the context of public proceedings, and from which the authority might depart – rather than principal legislation, is improper. Moreover, the substance of the arrangement prescribed in the directives is also inadequate because it leaves the door open to circumventing journalistic privilege, without judicial review that would facilitate its protection where it is asserted that the journalist is suspected of the offense involved in the investigation or is its victim, or when the communications data sought are not traffic data but, for example, location data that enable knowing exactly where the parties to the communication between the journalist and the source of information are” (see: id, at 277; emphasis added – H.M.).

 

          This logical statement is apt here and it appears to me that it also appropriately sums up my overall position. The time has therefore come to conclude the matter.

 

Conclusion

 

24.    In conclusion, in light of the Communication Data Collection Act’s potential significant infringement on professionals’ privilege and their protected constitutional rights, I believe that the scope of the Act should be confined by an interpretive determination that the “administrative course” to obtain a permit may not be used where the permit is sought regarding professional privilege. In such a case, the “legal course” will in my opinion constitute an exhaustive and exclusive arrangement. Furthermore – again in the scope thereof – a court would grant an order for disclosure only when the conditions of the “Limitations Clause” were met and when the court is satisfied, in the context of the “professional privilege,” that the interest of collecting the data outweighs the constitutional values that justify the specific privilege.

 

25.    A review of the history that has recognized professional privilege – in Israel and elsewhere in the world – demonstrates that individual rights were developed and founded, inter alia, on the basis of this specific area of law. This was the case in the past and although the present is somewhat complex, as noted, I trust this will also be the case in the future given the need to contend with the challenges with which new technology, the Act and the case law present us.

 

Deputy President E. Rivlin

 

          I join in the result my colleague President D. Beinisch reached, whereby the petitions should be rejected, in light of and subject to the boundaries and limitations detailed in the judgement.

 

          My colleague Justice H. Melcer rightly insists on the need for special protection the Act should afford anyone with professional privilege under statute or case law. He believes that a competent officer should not be permitted to act under section 4 of the Act where privilege prima facie applies because of a profession and that the only way to obtain communications data in those situations must be approaching a court.

 

          As for myself, I would not go so far as to rule out the administrative course in those cases. Nevertheless, I do agree that extreme care should be taken in such cases, as reflected in my colleagues the President and Justice E. Arbel’s opinions.  First, as President D. Beinisch held regarding exercising the power in both section 3 and section 4 of the Act, it should be interpreted so that the data is only obtained where it is required for a specific, concrete need. Second, regarding the exercise of the power in section 4 of the Act, it should be interpreted, as she proposed, so that it is used sparingly in extreme cases for the purpose of dealing with offenses that require it and only where because of the urgency it is impossible to obtain a court order; this is when the motive for applying to court is a serious circumstance such as a  risk to human life. The fact that the subscriber is a professional person should also be taken into account when exercising the power under section 4 or refraining from doing so.

 

          As my colleague Justice E. Arbel believes, I too believe that section 4 of the Act should be construed to preclude the competent officer’s authority to renew a permit. After issuing the initial permit, which is not to exceed 24 hours, section 4 should be interpreted so that the permit may only be renewed by a court.

 

 

          Unanimously decided to dismiss the petitions.

 

          Regarding the interpretation of sections 3, 6 and 7 of the Act, it is decided according to President (Ret.) D. Beinisch’s opinion, joined by all members of the bench.

 

          Regarding the interpretation of section 4 of the Act, it is decided by a majority of the bench, as stated in President (Ret.) D. Beinisch’s opinion, that the power can also be exercised where the communications data are sought from a “professional,” always subject to the limitations and reservations detailed in the opinion. This is against Justice H. Melcer’s dissenting opinion, who believes that the power prescribed in section 4 may not be exercised in order to obtain a permit under the Law in the case of a “professional”.

 

May 28, 2012 (7th Sivan 5772)

 

Association for Civil Rights in Israel v. Airports Authority

Case/docket number: 
HCJ 4797/07
Date Decided: 
Tuesday, March 3, 2015
Decision Type: 
Original
Abstract: 

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

 
 

Facts:   The petition concerned the security procedures for screening Israeli citizens at Israeli airports. The Petitioner’s primary claim was that Israel’s Arab citizens are generally subjected to stricter security checks than Israel’s Jewish citizens. The Petitioner argued that employing ethnicity as a criterion for the rigorousness of airport security screening of Israeli citizens is fundamentally unacceptable. The petition was submitted in 2007, but the decision was delayed in light of changes that the Respondents implemented in the security procedures, primarily comprising the introduction of new technology for the inspection of checked baggage, which was the subject of main concern of the passengers, as well as additional steps adopted to reduce distinctions among passengers in the security procedures. In light of those developments, the Respondents argued that the petition should be dismissed. In their view, the claims in regard to the security procedures in place at the time the petition was submitted were no longer relevant, while the claims advanced in regard to the new procedures were not yet ripe for decision. The Petitioner demanded that Court decide upon the fundamental issue it had raised, and advanced additional claims in regard to the changes that had been adopted.

 

Held:   The High Court of Justice (per Chief Justice (ret.) A. Grunis, Chief Justice M. Naor and Deputy Chief Justice E. Rubinstein concurring) dismissed the petition for the following reasons:

 

The Respondents had made considerable progress towards increasing equality in the security procedures. It was clear that significant efforts were being devoted to the implementation of technological solutions that would reduce, to the extent possible, the differences in the security procedures applied to different passengers, and significantly limiting the public element that formerly characterized the screening of certain passengers, while maintaining the appropriate level of security that is indisputably required in regard to air transport. It is only natural that such changes require time, and are dependent upon the cooperation of many parties. Under the circumstances, the Court ruled that the petition had exhausted itself. The authorities should be permitted to complete their work and collect data in regard to the effect of the changes that had been made before subjecting the fundamental question to judicial review. In this regard, the Court emphasized that achieving the correct balance between the need for air transport security and the reasonable functioning of the airports, and the protection of individual rights is an especially difficult task, particularly in Israel’s current security situation. It should also be borne in mind that a terrorist attack upon an airplane could result in the loss of many lives.

 

If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

 

The petition was therefore dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents were ordered to pay the Petitioner’s costs in the amount of NIS 30,000.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

Before the Supreme Court sitting as High Court of Justice

HCJ 4797/07

 

Before:                                    The Honorable Chief Justice (ret.) A. Grunis

                                    The Honorable Chief Justice M. Naor

                                    The Honorable Deputy Chief Justice E. Rubinstein

 

The Petitioner:             Association for Civil Rights in Israel

                                                                v.

The Respondents:       1. Airports Authority

                                    2. General Security Services

                                    3. Ministry of Transportation

 

Petition for the granting of an order nisi.

 

Date of hearing:          1 Kislev 5775 (Nov. 23, 2014)

 

For the Petitioner:       Auni Bana, Adv., Dan Yakir, Adv.

For the Respondents:  Chani Ofek, Adv.

 

Facts:   The petition concerned the security procedures for screening Israeli citizens at Israeli airports. The Petitioner’s primary claim was that Israel’s Arab citizens are generally subjected to stricter security checks than Israel’s Jewish citizens. The Petitioner argued that employing ethnicity as a criterion for the rigorousness of airport security screening of Israeli citizens is fundamentally unacceptable. The petition was submitted in 2007, but the decision was delayed in light of changes that the Respondents implemented in the security procedures, primarily comprising the introduction of new technology for the inspection of checked baggage, which was the subject of main concern of the passengers, as well as additional steps adopted to reduce distinctions among passengers in the security procedures. In light of those developments, the Respondents argued that the petition should be dismissed. In their view, the claims in regard to the security procedures in place at the time the petition was submitted were no longer relevant, while the claims advanced in regard to the new procedures were not yet ripe for decision. The Petitioner demanded that Court decide upon the fundamental issue it had raised, and advanced additional claims in regard to the changes that had been adopted.

Held:   The High Court of Justice (per Chief Justice (ret.) A. Grunis, Chief Justice M. Naor and Deputy Chief Justice E. Rubinstein concurring) dismissed the petition for the following reasons:

The Respondents had made considerable progress towards increasing equality in the security procedures. It was clear that significant efforts were being devoted to the implementation of technological solutions that would reduce, to the extent possible, the differences in the security procedures applied to different passengers, and significantly limiting the public element that formerly characterized the screening of certain passengers, while maintaining the appropriate level of security that is indisputably required in regard to air transport. It is only natural that such changes require time, and are dependent upon the cooperation of many parties. Under the circumstances, the Court ruled that the petition had exhausted itself. The authorities should be permitted to complete their work and collect data in regard to the effect of the changes that had been made before subjecting the fundamental question to judicial review. In this regard, the Court emphasized that achieving the correct balance between the need for air transport security and the reasonable functioning of the airports, and the protection of individual rights is an especially difficult task, particularly in Israel’s current security situation. It should also be borne in mind that a terrorist attack upon an airplane could result in the loss of many lives.

If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

The petition was therefore dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents were ordered to pay the Petitioner’s costs in the amount of NIS 30,000.

 

Judgment

Chief Justice (ret.) A. Grunis:

1.         The subject of this petition, which was submitted in 2007, is the security procedures for screening Israeli citizens in Israeli airports. The Petitioner’s main claim is that Arab citizens of Israel are generally subjected to more intensive inspection than Jewish citizens of Israel. In the opinion of the Petitioner, employing ethnicity as a criterion for deciding the extent of the screening to which citizens are subjected at the airports is fundamentally flawed.

2.         The Petitioner is the Association for Civil Rights. Respondent 1 is the Israeli Airports Authority. Respondent 2 is the General Security Service, which advises the Airport Authority in the field of security. Respondent 3 is the Ministry of Transport. On March 3, 2011, an order nisi was granted, ordering the Respondents to show cause as to why security screening for all citizens at the airports should not be carried out in accordance with equal, relevant and uniform criteria (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J). On May 23, 2011, the Minister of Defense signed a security-interest immunity certificate in accordance with sec. 44 of the Evidence Law [New Version], 5731-1971, in regard to the details of the procedures and guidelines for security screening at the airports. Information in regard to the details of the procedures was presented to us at various stages in the proceedings. The information was presented ex parte due to its sensitivity and the danger to state security posed by its disclosure.

3.         In the course of the proceedings, we learned that, in 2006, the General Security Service and the Airports Authority began a broad administrative examination of the security-inspection procedures. In the course of that process, changes were adopted in regard to the screening of Israeli citizens in Ben Gurion Airport (hereinafter: Ben Gurion) in order to reduce the differential aspect of the inspections, i.e., to promote uniformity in the security procedures applied to all Israeli citizens. The primary change relates to the procedure for screening baggage intended for the airplane's baggage hold (hereinafter also: checked baggage), which was the subject of most passenger complaints. A new technological system was developed (Hold Baggage Screening – HBS) that allows for the inspection of all the checked baggage in a separate, non-public area, without the presence of the passengers, and its direct transfer to the baggage hold. The inspection by the new technology is performed at various security levels in accordance with threat levels. In addition to the plans regarding the new technology, other changes were introduced at Ben Gurion in 2008, such as changes in the security procedures at the vehicle entrances to the airport and at the terminal entrances. In their answer to the order nisi, the Respondents claimed that the new security procedures will serve to alleviate the sense of discomfort and humiliation attendant to the rigorous inspection of a passenger’s baggage in the main passengers’ hall, the detaining of the passenger and the conducting of public screening in the presence of other passengers waiting in line. They added that they intended to begin operating the HBS system in the course of 2013, subject to operational exigencies. It should be noted that the Respondents presented more optimistic timetables in earlier responses. The Respondents further emphasized that there is no uniform, strict level of screening for all Israeli Arab citizens. They maintained that, in practice, most of that population undergoes quick, simple screening, and the planned changes will help to further simplify the procedure. Moreover, the Respondents explained that the level of screening is not based upon a single criterion, but rather upon a mix of criteria, based upon empirical data and professional threat assessment that indicate the potential threat level posed by a particular passenger.

4.         In light of the significant change expected in the screening procedures, this Court (D. Beinisch, CJ, E. Rivlin, DCJ, and M. Naor, J) decided to postpone its decision on the fundamental issues raised by the petition, in order to allow time for the integration of the new system and the gathering of data in regard to the effect of the changes upon the security screening procedures. The Court decided to leave the petition pending, and the Respondents were ordered to submit an updated response in six months. The decision stated, inter alia:

“The application of a security profile to an Israel citizen in a manner that would justify conducting stricter security screening, even without concrete information in regard to that citizen, raises significant problems. We are doubtful whether the use of a security profile that is based upon sweeping, general characteristics, and that relies upon a passenger’s being a member of a specific ethnic group as a sole characteristic, is legitimate. […] Indeed, although a person does not have a vested right not to be subjected to security screening at the airport, it is a person’s right that such screening be applied equally, based upon equal, uniform criteria. No one doubts that since the phenomenon of widespread, intensive terrorist attacks began, many countries are confronted by the question of the legitimacy of profiling potential threats through tagging that is based upon origin or ethnicity. Such tagging, of course, raises particular difficulties when we are concerned with citizens whose equal rights must be respected. Even in the instant case, although high-level screening is not applied to all the Arab citizens of the state, the existence of sweeping, general criteria for threat assessment – to the extent that those are indeed the factual circumstances, and we are not ruling on that – raises a problem that justifies a more in-depth examination on the basis of the relevant data” (para. 5 of the decision).

5.         On Nov. 22, 2012, the Respondents informed the Court that the integration of the HBS system at Ben Gurion was proceeding, despite operational difficulties. They estimated that the technology would become operational in accordance with the timetable that was presented to the Court, that is, already in the course of 2013. The Respondents emphasized that the Airports Authority is prepared, in principle, to introduce the technology into the security procedures of the domestic airports, as well, subject to exigencies. Thus, they stated, an advanced technological system was put in place in the Eilat airport in the second half of 2011, which makes it possible to inspect checked baggage behind the scenes and without the involvement of the passengers. They are also trying to implement the screening procedure, as far as possible, in Ben Gurion, although there are differences in this regard between the two airports. At the Uvda airport, which serves only international flights, there is a uniformly strict screening procedure for all passengers, most of whom are foreign nationals. Both the Eilat airport and the Uvda airport are scheduled for relocation to a new site in Timna, where the new screening procedure being implemented in Ben Gurion will be fully adopted. As opposed to that, the Haifa airport and Tel Aviv’s Sde Dov airport present significant infrastructure problems. Nevertheless, advanced technological systems have been installed at the terminal entrance for the inspection of both carry-on and checked baggage. It should be noted that there is an intention, in principle, to relocate Sde Dov. The Respondents further informed the Court that, in addition to the technological changes, the operation of the “Security Center” (“Mokdan”) will be expanded. The purpose of the Security Center is to provide security services to foreign business travelers, and guests of government ministries and Israeli companies, in order to simplify the process for them. The data of the Security Center are shared with the domestic airports and the Israeli carriers flying to Israel. According to the Respondents, this service has significantly reduced friction with sensitive populations in the security screening process.

6.         On Sept. 18, 2013, the Respondents submitted an updated affidavit. In that affidavit, the director of Ben Gurion informed us of a delay in the timetable for integrating the HBS technology, and therefore the implementation of the new security procedures would only begin in March 2014, at the earliest. According to him, the reason for the delay was that the foreign companies involved in the project had not met their commitments. The Respondents emphasized that as soon as they became aware of the delay, a number of steps were taken to mitigate it. According to the Respondents, the Airports Authority made the necessary changes required of it in Ben Gurion in terms of construction and infrastructure, as well as the recruitment and training of manpower, and it was, therefore, prepared, in principle, to incorporate the system on the intended date, had a working system been supplied by the foreign companies. In accordance with the amended timetable presented by the Respondents, examinations and other actions in preparation for the full implementation of the system in Ben Gurion will be carried out between March and July of 2014. The running-in stage of the system will begin in July 2014, and six months later, the system will be fully transferred from the foreign companies to the Airports Authority. The Respondents emphasized that further delays were possible due to the complexity of the integration process and the possibility of unforeseen developments.

7.         In an additional notice, dated Nov. 14, 2014, the Respondents updated the Court that due to recent developments in the integration of the HBS system, it appeared that the system would indeed be fully operational in March 2014, and that it would be finally transferred to the Airports Authority in December. The Respondents explained that the HBS system would be put into use only in Terminal 3 in Ben Gurion, and not in Terminal 1. Terminal 1 was designated to serve domestic flights, after the opening of Terminal 3, but in 2011, it was decided that it would also serve low-cost international flights. The Respondents further noted that, as of 2014, a project will commence for the introduction of a system like HBS in Terminal 1, and that the expected timetable for this is two years, subject to operational exigencies. That estimate was later amended, and the current projection for the introduction of the system in Terminal 1 is 2017. The Respondents emphasized that the changes made in Ben Gurion in regard to the vehicle entrances and the entrances to the terminals will also apply to Terminal 1.

8.         On Dec. 20, 2013, a hearing was held on the response to the petition before a three-judge panel (A. Grunis, CJ, and M. Naor and E. Arbel, JJ). At the end of the hearing, it was decided that it was not yet time to rule upon the petition, in light of the progress in integrating the changes in the security system in Ben Gurion, despite the delays. The Respondents were ordered to submit an update by April 30, 2014. Accordingly, in notices dated April 28, 2014 and November 2, 2014, the Respondents confirmed that the HBS system began operation in Terminal 3 of Ben Gurion as of March 2014. According to the Respondents, there is a possibility of limited recourse to the “old” screening procedure in cases of breakdowns and due to operational needs. The Respondents noted that the initial experience gained from operating the system was positive, and that it appeared that the system allowed for the required level of screening from a security perspective, while mitigating the attendant intrusion of strict screening of passengers in public. They reiterated that they intend to introduce the new technology in Terminal 1. In addition, The Respondents provided other details concerning additional steps taken, in addition to the installing of the HBS, to reduce the differences between passengers in the screening procedures. Thus, they stated, advanced screening devices had been purchased that would reduce the need for the physical examination of passengers. They added that such gates had been purchased for Ben Gurion, and an additional purchase was planned for the Eilat airport.

9.         In light of the above developments, the position of the Respondents is that the petition should be dismissed. In their view, the claims made in regard to the security screening procedures in place at the time the petition was submitted are no longer relevant, while the claims regarding the current changes are not yet ripe for a decision. The Respondents are of the opinion that they should be allowed time to evaluate the effects of the changes upon passenger screening procedures. However, the Respondents expressed their commitment to continuing their efforts to reduce the offense caused to individuals by security screening procedures in the airports. According to the Respondents: “The treatment of the broad issue raised by the petition is over but not completed. The Respondents are committed to continue and persist in implementing technological solutions, while diminishing the injury caused by public exposure and the character of strict security screening” (see para. 4 of the Respondents’ notice of April 28, 2014).

10.       The position of the Petitioner has consistently been that the question raised by the petition concerns the lawfulness of the use of the criterion of ethnicity as a basis for adopting differential screening methods for a specific group of Israeli citizens. In its view, this is a fundamental question. The problem in the very distinction on the basis of ethnicity will not be resolved, it argues, even if all the changes in the security procedures detailed above are fully implemented. The Plaintiff argues that even the Respondent admits that the technological and other changes will not lead to uniformity in the security procedures, and at most, they will lessen the discomfort felt by Arab citizens in the airports. The Petitioner also criticizes the HBS system itself. In its view, it is unclear what criteria are employed for deciding whether to carry out a physical inspection of hand luggage that has been scanned by the new system. According to the Petitioner, the changes adopted do not address other elements of screening that discriminate against Arab citizens, such as the inspection of the hand luggage of passengers, their pre-check-in questioning in Israel and on flights of Israeli carriers flying to Israel. In addition, the Petitioner complains of the recurring delays in the date for the planned implementation of the HBS system in Ben Gurion, and that as far as Terminal 1 and the other domestic airports are concerned, there are only intentions for future implementation of the new technology. The Petitioner also argues that it is unclear what contribution the Security Center – which provides services to government ministries and companies – makes to advancing equality between Arab and Jewish citizens of Israel in the security screening process. In addition, the Petitioner emphasizes that introducing screening devices that perform full-body scans raises significant problems, in and of itself, due to the infringement of privacy attendant to their use.

11.       On Nov. 23, 2014, another hearing was held before this Court. In the course of that ex parte hearing, we were presented with classified information in regard to the changes made in the security screening procedures. In light of that information, and in light of all the developments made over the years that this petition has been pending, we are under the impression that the Respondents have gone a long way in increasing equality in the screening process. It is clear that significant efforts have been made to implement technological solutions that will limit differences in the screening process, to the extent possible, while maintaining an appropriate level of security, which is indisputably required in the field of air transport. By their very nature, such changes demand time, and are contingent upon the cooperation of many parties. As noted, the HBS technology is currently operating in Terminal 1 of Ben Gurion, which is the main hub of Israel’s air transport. That technology enables the examination of checked baggage without a need for the passenger’s presence, and while significantly reducing the public exposure that formerly characterized the screening of certain passengers. A similar system is planned for Terminal 1. While the screening process is not identical for all passengers, and some baggage undergoes greater scrutiny, the distinction is based upon technological indicators. Although recourse to the “old” screening process may occur in cases of breakdowns, that possibility is reserved for exceptional cases in which the need may arise in order to ensure the proper functioning of Ben Gurion. Changes have also been made in the domestic airports, which include the introduction of new technologies. Some of those airports are slated for relocation, and according to the Respondents, the screening procedures currently employed in Terminal 3 will be implemented at the new locations. In addition to the changes in the system for screening checked baggage, scanning gates will be employed to reduce the need for the physical inspection of passengers. Those changes are in addition to earlier technological changes in the screening procedures at the vehicle entrance of Ben Gurion and at the entrances to the passenger terminal.

12.       Under these circumstances, we are of the opinion that, at present, the petition has exhausted itself (and compare: HCJ 2467/05 Gorenberg v. Director of the IDF and Defense Establishment Archives (Jan. 13, 2010); HCJ 1254/10 Anonymous v. Population, Immigration and Border Crossing Authority – Ministry of the Interior (April 4, 2012); HCJ 3091/99 Association for Civil Rights in Israel v. Knesset (May 8, 2012)). The Petitioner’s claims in regard to the screening procedures prior to the introduction of the HBS system and the other changes have been rendered superfluous. Looking to the future, it is as yet too early to evaluate the effect of those changes upon the extent of harm to individual rights involved in the screening process. We must wait and see whether the significant changes introduced will, indeed, help reduce expressions of distinction among different groups of Israeli citizens in the airport screening process. We should note that the case before us is not one in which the authorities have sat on their hands and refrained from correcting a situation that poses an unnecessary infringement of individual rights. The Respondents are aware of their responsibility to address this issue, and expressed their intention to implement and initiate additional changes in the screening process, which are intended to contend with the problems raised in the petition. We are of the opinion that the authorities should be permitted to complete their work and collect data in regard to the effect of the changes that have been implemented, before subjecting the fundamental questions to judicial review.

13.       We are aware of the Petitioner’s stance that any distinction between Israeli citizens that is based upon ethnicity – even if it is “behind the scenes” and not visible – infringes human dignity, equality, freedom of movement and privacy. As opposed to that, the alternative of strict, uniform screening of all passengers also raises significant problems, and according to the Respondents, such screening cannot be implemented without causing extreme harm to the proper functioning of the airports and to the effectiveness of security screening. Finding the appropriate balance between the need for the security of air transport and the reasonable functioning of the airports, and protecting individual rights is a particularly difficult task. We must bear in mind that an act of terrorism carried out against an airplane may result in the loss of many lives. Israel is not the only country faced with this challenge, although it cannot be denied that it also faces certain unique problems due to the nature of the security threats with which it must contend. For the reasons stated above, we are not ruling upon the fundamental issue at this time. If, in the future, the Petitioner finds that the changes instituted have not brought about the desired result, and that the distinction – particularly the public distinction – among Israeli citizens persists in the airports, the Court’s gates will remain open. That will also be the case if the implementation of the planned changes in the airports does not proceed at a reasonable pace, in accordance with the timetable presented by the Respondents.

14.       The petition is, therefore, dismissed without prejudice. In light of the important contribution of the petition to advancing the changes in the field of security procedures in Israeli airports, the Respondents will pay the Petitioner’s costs in the amount of NIS 30,000.

 

                                                                                                            Chief Justice (ret.)

Chief Justice M. Naor:

I concur.

                                                                                                            Chief Justice

 

Deputy Chief Justice E. Rubinstein:

1.         I concur in the opinion of my colleague the former Chief Justice. We are concerned with one of the most sensitive subjects in the relationship between the state and its Arab citizens, as my colleague observed in para. 13. The situation in which the State of Israel finds itself requires a very delicate balance. On the one hand, in addressing security screening, we are treating of human dignity as such, and to say more would be superfluous. On the other hand, the heavy burden placed upon the security authorities by the security situation that surrounds us cannot be ignored. This is nothing new. In Mapp 6763/06 Khiat v. Airports Authority (2006), I had the opportunity to state (at para. 10):

“We are concerned with a sensitive matter. It is doubtful whether there is another nation that is called upon to make such a delicate balance between the need for equality for all the citizens of the state – not merely in words but in action – and security needs that none, including the petitioners, dispute. The subject of the security screening of Israel’s Arab citizens in various places – one of a collection of subjects that require fair and balanced treatment – arises from time to time over the years. In a lecture that I delivered at the Faculty of Law in Jerusalem on May 25, 2002, when I was still serving as Attorney General, I noted – in the midst of terror – that ‘I am personally conducting a constant dialog with the security services in regard to security screening, in order to prevent unnecessary harm to the human dignity of Arabs, even in times of stress. I do not relent on that subject, even at this time’ (“The State and Israeli Arabs: The Struggle for Equality in the Framework of an Agonized Jewish and Democratic State” (In Memory of Justice Haim Cohn), 3 Kiryat Mishpat 107, 112 (5763) (Hebrew), reprinted in my book Paths of Governance and Law, 293, 298 (Hebrew)). I believe that awareness of this subject, in the instant case in which we are concerned with the airports, as well, has already penetrated to some degree, and has found a place in the public agencies, as it should.”

2.         Indeed, as my colleague has shown, the Respondents are striving to improve screening in this regard in various ways. The Respondents should be encouraged in every way to continue in those efforts to the extent possible. As a Jewish and democratic state, we should be particularly sensitive. As stated, I concur with my colleague.

                                                                                                Deputy Chief Justice

 

Decided as stated in the opinion of Chief Justice (ret.) A. Grunis.

Given this 19th day of Adar 5775 (March 3, 2015).

 

 

Doe v. Doe

Case/docket number: 
C.A. 8954/11
Date Decided: 
Thursday, April 24, 2014
Decision Type: 
Appellate
Abstract: 

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

 

An appeal on a judgment of the District Court, granting the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him, which unfolds the intimate relationship between the parties. The Appellant was further charged to pay damages to the Respondent for her non-pecuniary damages. The main question deliberated was the proper balance between the right to freedom of expression and artistic freedom on the one hand, including the autobiographical artistic freedom, and the right to privacy and a good reputation on the other hand.

 

The Supreme Court (Dictum of Justice N. Sohlberg, seconded by Vice President Naor and Justice Joubran) denied the appeal and ruled as follows:

 

Freedom of expression extends to artistic expression; the autobiographical composition is closely connected to the three rationales of the freedom of expression: the exposure of the truth, the personal wellbeing; its value in the democratic regime. The status of the autobiographical artistic freedom will be determined in light of the 'quality' and 'quantity' of rationales at its base. Freedom of expression, including the autobiographical artistic freedom, is not an absolute right as it collides with the right to privacy. In this collision, each instance should be examined on its merits, without an in-principle ruling regarding as to the precedence of one right over the other. A severe infringement of freedom of expression would outweigh a light and medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and medium infringement of freedom of expression.

 

In balancing between the colliding rights in the case at bar, the degree of fiction in portraying the female-protagonist was considered and it was determined that the character of the female protagonist includes many and unique identifying details, which are sufficient for the identification of the Respondent. Furthermore, the question whether the violation of the Respondent's privacy is at the core of the right to privacy or in the margins thereof was also deliberated, and it was ruled that this is an injury to the core of the right to privacy, since the Respondent's life, including the most intimate details, unfold before the readers like an open book. This is a serious infringement of the core of the right to privacy, and the spousal trust-relationship. Therefore, the publication of the book will cause serious and severe injury to the privacy of the Respondent; in addition, the Court deliberated the degree of the possible violation of freedom of expression and it held that the expression in the book realizes the freedom of speech to a medium degree, with ideal and interest intermingled therein. The balance between grave and severe infringement of the right to privacy and a medium violation of the freedom of expression tends towards the protection of privacy. With respect to the Appellant's argument whereby the Respondent's objection was preceded by consent, it was ruled that a person's consent to violation of his privacy is not conclusive, however, in the case at bar there was no consent, but rather explicit objection by the Respondent to the inclusion of any detail which may lead to her identification.

 

In the case at bar, the Appellant's freedom of expression 'collides' with the Respondent's right to privacy. His artistic freedom, as reflected in his book, harms the good reputation of the Respondent. This is a documentary book that is camouflaged as a fictional composition and its violation of the Respondent's privacy is grave and severe. In deliberating whether the benefit resulting from the fulfillment of one right overweighs the damage which will be caused to another right, the conclusion is that on the constitutional scale, freedom of expression shall prevail in instances wherein the violation of the right to privacy is light and medium whereas the injury to the freedom of expression is severe; the power of the right to privacy shall prevail when the violation of freedom of expression is light or medium whereas the violation of the core of privacy is intense. In the case at hand, the fiction is slim, and the injury is considerable. Grave and severe violation of the Respondent's privacy was found, against medium injury to the Appellant's freedom of expression. The aggregate weight of the identification of the Respondent as the female-protagonist in the book, together with the description of the inner circle of her life, including intimate issues, prevails over the violation of the Appellant's freedom of expression, in which ideal and interest are intermingled.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

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

  1. 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").
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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

  1. 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.
  2. 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).
  3. 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.
  4. 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

  1. 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).
  2. 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.
  3. 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).

  1. 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).
  2. 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.
  3. 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.
  4. 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).
  5. 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).
  6. 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

  1. 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.
  2. 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).
  3. 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".
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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".
  9. 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.
  10. 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.
  11. 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.
  12. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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".
  5. 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.
  6. 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".
  7. 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".
  8. 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".
  9. 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.
  10. 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.
  11. 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".
  12. 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".
  13. 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.
  14. 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". 
  15. 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.
  16. 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.
  17. 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

  1. 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.
  2. 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

  1. 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.
  2. 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 11th 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).
  3. 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").
  4. 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)).
  5. 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)).
  6. 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

  1. 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).
  2. 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)).
  3. 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.
  4. 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").
  5. 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.
  6. 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.

 

  1. 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.

 

  1. 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)).

 

  1. 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.

 

  1. 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)).

 

  1. 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).

 

  1. 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 Lawto 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".

 

  1. 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)).

 

  1. 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).

 

  1. 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)).

 

  1. 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

  1. 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

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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".

 

  1. 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.

 

  1. 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

  1. 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

  1. "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).

 

  1. 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.

 

  1. 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

  1. 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.

 

  1. 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

  1. 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.

 

  1. 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?"

 

  1. 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.

 

  1. 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.

 

  1. 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).

 

  1. 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

  1. 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

  1. 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.

 

  1. 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?

 

  1. 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).

 

  1. 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

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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)).

 

  1. 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)).

 

  1. 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)).

 

  1. 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".

 

  1. 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.

 

  1. 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

Full opinion: 

Doe Co., Ltd v. Doe

Case/docket number: 
CrimApp 8225/12
Date Decided: 
Sunday, February 24, 2013
Decision Type: 
Appellate
Abstract: 

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

 

The Supreme Court (Justice Vogelman, Justices Hayut and Amit, concurring) granted leave to appeal, upheld the appeal and ruled as follows.

 

The Court considered the proceedings on the premise that the provisions of section 70(e1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter – the “Act”), which refers to a “suspect” as defined in section 70(e2) of the Act “as someone against whom a criminal investigation has been commenced” applies; the Court held that the appeal in Crim.App. 8225/12 was filed absent a right to appeal, but did not decide the issue of that right, since the Applicant filed an application for leave to appeal, justifying hearing the application as though it were an appeal.

 

The Court noted that the issue of a gag order prohibiting the publication of identifying details of a person suspected of committing a criminal offence calls for balancing the rule that derives from the paramount principle of public proceedings and one’s right to dignity, a good reputation and privacy. The principle of public proceedings and the public’s right to know are the rule, and under extreme circumstances they will yield to the need to protect a suspect’s reputation and privacy. One such circumstance is detailed in section 70(e1)(1) of the Act, and gives the Court discretion to prevent identification of suspect where the interest in protecting his reputation outweighs freedom of expression and the public’s interest to know. The Court will prohibit publication on two aggregate grounds: the suspect must show that the publication will result in grave harm to him; preventing such grave harm should prevail over the public interest in publication.

 

The Court noted that disclosing an investigation of interest, coupled with the possibility to publish information on the Internet anonymously, increases concern that a suspect’s identity will be exposed despite having imposed a gag order in his case. The greater the public interest, the greater the chances that the suspect’s identity will be exposed and “grave harm” will result. There is a great deal of uncertainty in evaluating such likelihood. The Court held that the possibility that a gag order will be violated should be evaluated when considering whether to prohibit publication of additional details, to the extent that imposing a gag order on the details of the entire matter is warranted. The Court added that it is incumbent upon it to additionally consider the likelihood that publishing details of a matter under investigation even without [publishing] the suspect’s name would result in his identification and cause him “grave harm”. This likelihood of identification and extent of harm will be examined on a case-by-case basis. The Court detailed, without exhaustion, the following considerations: the Court held that a gag order is presumed to be complied with and is sufficient to prevent identification. A suspect wishing to prevent the publication of further details, to the point of imposing a gag order on the details of the entire matter, must show that in his circumstances there is a substantial concern that the order will be violated, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing that harm outweighs the public interest in publication.

 

The Court held that balancing between extent of the “grave harm” to the Respondent that will likely result from the qualified publication, which is not high, and the public interest in publication, the matter’s publication should be permitted, while omitting the Respondent’s name and any identifying detail. Accordingly the appeal was upheld and the Magistrates Court’s order reinstated. The Court emphasized that the aforesaid does not amount to pronouncing on the proper balance between these interests if the decision not to prosecute the Respondent becomes final.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

Full opinion: 

State v. Makor Rishon Hameuhad (Hatzofe) Ltd.

Case/docket number: 
LCrimA 761/12
Date Decided: 
Thursday, November 29, 2012
Decision Type: 
Appellate
Abstract: 

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

 

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met.  In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

 

Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance. 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

LCrimA 761/12

 

1.    State of Israel

 

v.

 

1. Makor Rishon Hameuhad (Hatzofe) Ltd.

2. Miriam Tzachi

3. Israel Press Council, Amicus Curiae

 

 

The Supreme Court sitting as the Court of Criminal Appeals

Application for Leave to Appeal the Decision of the Jerusalem District Court (Judge M.Y. Hacohen), dated 3 January 2012, in MApp 035991-12-11

[2 April 2012]

Before Justice E. Rubinstein, U. Vogelman, I. Amit

 

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished between two groups of photographs that had been taken: one series consisted of pictures of the actual attack on the district headquarters and conformed to the Deputy Regional Commander’s statement made as part of the investigation, while the pictures in the other series portrayed events that occurred at a distance away from the base. The district court ordered the respondents to hand over the first series of photographs to the police, but that the privilege could not be removed with respect to the second group of photographs. However, it also found that the police could request a court order pursuant to section 43 to have this second group of photographs handed over as well, the extent that an investigation had been initiated regarding the events that they documented and that the photographs could be relevant to that investigation.

Held: (Justice Rubinstein) Information which can lead to the identification of a journalist’s source and which was provided with the expectation that it will be kept confidential will be covered by the journalist’s privilege. However, the journalist’s privilege can be removed if the three-part Citrin test is met.  In previous decisions, the Court has concluded, based on the Citrin rule, that the journalist’s privilege applies, narrowly, only to the direct questioning of a source by a journalist. The reason for the Citrin test is to balance the value of a free press against the interest in investigating criminal activity and the pursuit of the truth. The privilege can be removed pursuant to the Citrin test if the information that is sought is shown to be both relevant and significant, and if it is proven that the authorities have no available alternative through which the information can be obtained. Another relevant matter will be the issue of whether the source shared the information with the journalist with an expectation that it will be kept secret. A promise of confidentiality is not determinative, but it is a relevant factor.

Applying the Citrin rule specifically to this case, the photographs satisfy the relevancy and substantiality requirements established in that case. However, the third requirement – a showing that the authorities have made sufficient effort to obtain the requested information through other means – has not been satisfied, although the police may submit such proof in a further request to the magistrate’s court for an order pursuant to section 43 of the Criminal Procedure Ordinance.

Appeal is granted in part.

Legislation cited:

Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969, s. 43

Evidence Ordinance [New Version] 5731-1971, ss. 49, 50, 50a, 51

Penal Code, 5737-1977, s. 117

Prohibition of Defamation Law, 5725-1965

Protection of Privacy Law, 5741-1981

 

Israeli Supreme Court cases cited:

[1]        MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1987] IsrSC 41 (2) 337.

[2]        CrimApp 9305/88 A. v. Al Mamuniya Girls School (2008) (unreported).

[3]       CA 1761/04 Sharon v. State of Israel [2004] IsrSC 58(4) 9.

[4]       LCrimA 5852/10 State of Israel v. Shemesh [4] (2012) (unreported).

[5]        HCJ 73/53 Kol Ha’am v. Minister of the Interior [1953] IsrSC 7 871.

[6]       HCJ 243/62 Israel Film Studios Ltd. v. Levy [1962] IsrSC 16 2407.

[7]       HCJ 14/86 Leor v. Film and Play Review Council [1987] IsrSC 41(1) 421.

[8]                           HCJ 680/88 Schnitzer v. Military Censor [1989] IsrSC 42(4) 617.

[9]                           LCrimA 7383/08 Ungerfeld v. State of Israel (2011) (unreported).

[10]         CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp.  [1977] IsrSC 31(2) 281.

[11]         HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [1984] IsrSC 38(3) 233.

[12]         HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department (2011) (unreported).

[13]         HCJ 2759/12 Weiner v. State Comptroller (2012) (unreported).

[14]         HCJ 172/88 Time, Inc. v. Minister of Defense (1988), IsrSC 42(3) 139.

[15]         LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [1995], IsrSC 49(4) 54.

[16]         LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [2000] IsrSC 55(3) 661.

[17]         LCA 2235/04 Israel Discount Bank Ltd. v. Shiri (2006) (unreported).

[18]         CrimApp 4857/05 Fahima v. State of Israel (2005) (unreported).

[19]         LCA 1412/94 Hadassah Medical Federation Ein Kerem v. Gilad [1995] IsrSC 49(2) 516.

[20]         CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] IsrSC 61(1) 461.

[21]         CA 2967/95 Magen veKeshet Ltd. v. Tempo Beer Industries Ltd. [1997], IsrSC 51(2) 312.

[22]         CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corp. [1994] IsrSC 48(3) 749.

[23]         HCJ 337/66 Estate of Kalman Fital v. Holon Municipality Assessment Commission [1966] IsrSC 21(1) 69.

[24]         LCA 2498/07 Mekorot Water Company Ltd. v. Bar (2007) (unreported).

[25]         CA 5653/98 Peles v. Halutz [2001] IsrSC 55(5) 865.

[26]         HCJ 844/06 University of Haifa v. Oz [2008] IsrSC 62(4) 167.

[27]         LCA 8943/06 Yochanan v. Cellcom Israel Ltd. (2009) (unreported).

[28]         CrimA 8947/07 Honchian v. State of Israel (2010) (unreported).

[29]         CA 44/61 Rubinstein v. Nazareth Textile Industries Ltd. [1961] IsrSC 15(2) 1599.

[30]         BAA 5160/04 Ashed v. the Jerusalem Regional Committee of the Israel Bar Association  [2005] IsrSC 59(6) 223.

 

Israeli District Court cases cited:

[31]         CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. (1996).

[32]         CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [1995] 5756 District Cases (2) 402.

[33]         MP (TA) 90742/09 Channel 10 News v. Moshe Katzav (2009).

[34]         CC (TA) 1121/07 Glatt-Berkowitz v. Kra (2011).

[35]         MP (Jerusalem) 2014/03 Kra v. State of Israel (2003).

 

United States cases cited:

[36]         Branzburg v. Hayes, 408 U.S. 665 (1972).

[37]         Gonzales v. Nat'l Broadcasting Co., Inc., 194 F.3d 29 (2nd Cir. 1999).

[38]         In re Grand Jury Subpoena, Judith Miller, 438 F. 3d 1141 (D.C. Cir. 2006).

[39]         Heathman v. United States District Court, 503 F.2d 1032 (9th Cir. 1974).

[40]         Baker v. F & F Investment 470 F.2d 778 (2nd Cir. 1972).

[41]         Lewis v. United States, 517 F.2d 236 (9th Cir. 1975).

[42]         In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005).

 

Canadian cases cited:

[43]         R. v. National Post, [2010] 1 S.C.R. 477.

[44]         Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 (S.C.C.).

[45]         O'Neill v. Canada (Attorney General) (2006), 213 C.C.C. (3d) 389 (Ont. S.C.J.).

[46]         Globe and Mail v. Canada (Attorney General) [2010] 2 S.C.R. 592.

 

For the petitioner – N. Granot

For respondents – H. Olman

For the amicus curiae – Y. Grossman, O. Lin, N. Shapira

 

JUDGMENT

Justice E. Rubinstein

1. This is an application for leave to appeal a decision of the Jerusalem District Court (Judge M.Y. Hacohen) in MiscApp 35991-12-11, issued on 3 January 2012. In that decision, the district court granted the appeal of the respondents against the decision of the Jerusalem magistrate’s court (Judge Rand) Misc. Order 27190-12-11, issued on 15 December 2011. The issue raised in this case is the application of a journalist’s privilege.

 2.   The case involves photographs taken by respondent 2 in the framework of violent demonstrations. After the events took place, the police asked respondent 2 (by way of issuing an order) to deliver to the police the pictures she had taken during the events. In response to the order, respondent 2 argued that the pictures were subject to the journalist’s privilege regarding the identification of her sources because their disclosure would lead to such identification. The main issue under dispute here is the scope of that privilege.

3.    On the night of 12 December 2011 - 13 December 2011, Jewish demonstrators carried out violent disturbances at the Ephraim District Brigade Headquarters, and infiltrated the headquarters base and injured  the Deputy Commander of the brigade. Following these events, on 14 December 2011,  a request was made to the magistrate’s court for an order to produce documents pursuant to s. 43 of the Criminal Procedure Ordinance (Search and Arrest) [New Version] 5729-1969 (the Criminal Procedure Ordinance), in which the court was asked to order the respondents to deliver to the Israel Police photographs that documented the events.

4.    The request was supported by the Deputy Brigade Commander’s statement (marked as P/1), in which the event was described as a mass infiltration of the District headquarters base, during the course of which one of the demonstrators hit the deputy commander’s head with an object, and lamps filled with paint were thrown at his vehicle. The deputy commander also stated that after the demonstrators were repelled, three tires were set on fire on the road leading to the district headquarters base, and that respondent 2 (hereinafter: “the photographer”) was found among the demonstrators, while she was photographing the events. She informed him that she worked for the Makor Rishon newspaper (which is operated by respondent 1).

5.    The magistrate’s court ordered the production of the requested material and ruled that if a claim of privilege were raised, the material could be placed in a closed envelope and a hearing could be held in the presence of both parties; this is what actually occurred. During the hearing the petitioners argued that the photographer had not photographed the infiltration of the base and the attack on the deputy commander, but had instead taken pictures at a different event, which took place several hundred meters away from the base, in which no military commander had been attacked. It was also argued, and this is the main point, that the photographer had been invited to photograph the demonstration on condition that her sources not be disclosed in any manner.

6. In a decision dated 15 December 2011, the magistrate’s court emphasized that according to the rule developed in MP 298/86 Citrin v. Israel Bar Association Disciplinary Court, Tel Aviv [1], per President Shamgar (a case which was decided by a single judge panel but the rule of which has since been accepted as a deep-rooted principle), the journalist’s privilege is a qualified privilege that applies to the sources of the information; but this rule was expanded in the case law of the district courts, and has also been applied to the journalist’s information, when such information can lead to the disclosure of the identity of the source. It was nevertheless held that in this case the requested material is the information and not the source, and that there is no proof that the disclosure of the information will disclose the identity of the source.

7. The court therefore decided to remove the privilege. The court emphasized that the requested information was relevant to the investigation; that the alleged crimes were serious and that there was a public interest in exhausting all avenues of investigation as quickly as possible. The petitioners claim that the production of the photographs would lead to the disclosure of the identity of their source. The court emphasized that there had been no need for any source’s cooperation in the creation of the information being sought, since the information was “caught in the journalist’s net” and it could not be presumed that the removal of the privilege would have a substantial impact on the ability to gather such information in the future. The court therefore ordered that the material be produced. The petitioners appealed this decision to the district court.

The district court

8.    There were three main issues in this appeal. The first was the applicability of an order to seize pursuant to s. 43 of the Criminal Procedure Ordinance in this case; the second was the magistrate court’s holding that a privilege that protects the sources of information does not apply to the photographs; and third, the manner in which the “three-part test” for the removal of the privilege was applied in accordance with the Citrin rule. We begin by noting that this test examines three points – the relevance of the material to an investigation, the nature of the information and the ability to obtain it from other sources.

9.    The district court also ruled that application request for the seizure of journalists’ material pursuant to s. 43 of the Criminal Procedure Ordinance should not be used on a routine basis, since the police can use alternative means to access the material that they need. Nevertheless, the court held that the request was justified under the circumstances, because serious crimes had apparently been committed – crimes which require that they be investigated quickly – and because there were no other means with which the events were documented other than the photographer’s pictures. However, it has been noted that the magistrate’s court did not examine the matter of which investigative activities were carried out before the request was submitted, as required in the context of application request for an order pursuant to s. 43.

10.  The court also noted that when a privilege claim is raised against an order pursuant to s. 43 of the Criminal Procedure Ordinance, the court must – as a preliminary step – review the material for the purpose of determining if it can potentially disclose the identity of a source. And thus, after the review, the district court found that a distinction could be made between two groups of pictures: those which conformed to the testimony of the deputy commander (on the basis of which the order was requested) and those which are not “direct documentation of the events described specifically in P/1” (which is the testimony of the deputy commander). The court noted that with respect to the pictures that conform to exhibit P/1, there was one series of pictures that documented three tires burning on the road, as well as pictures of IDF soldiers arriving at the site, and of an IDF officer speaking with an additional person. The court noted that there was no documentation of the person who had set fire to the tires or of the fact that they had been put on fire. Regarding the group of pictures that are not relevant to exhibit P/1, the court noted that these were part of a different series of pictures, which documented an event that could have had a serious criminal aspect to it, and that event did not appear to have taken place close to the army base, near it or in the presence of military personnel. It was also noted that a number of individuals appear at that event, some of whom can be identified; that there are no dates on these pictures, and they do not identify direct damage to persons or to property. This distinction – between the two groups of pictures – served as a basis for the court’s discussion of the question of the privilege and whether the tests set out in Citrin [1] for the removal of that privilege have been met. Before dealing with the question of the removal of the privilege, the court must deal with the scope of the privilege – which is the core of the dispute in this case.

11.  The district court ruled that the journalist’s privilege extends not only to the sources of the information, but also to the journalist’s information itself, including photographs. The reason for this is to encourage sources to cooperate with journalists, as held in CC (Jerusalem) 455/94 Hachsharat Hayishuv v. Reshet Schocken Ltd. [31], per (then) Judge Adiel). It was noted that this approach has been the norm in the case law of the district courts, but has not yet been decided by the Supreme Court.

12.  The district court did not adopt the test presented by the magistrate’s court for examining the application of the privilege. The magistrate’s court reasoned that the “fact that this was an event involving a large group and the fact that this was a documentation of something that happened ‘in the open’, and which was caught in the journalist’s net, is enough to undo the privilege claim”. The district court believed that the magistrate’s court erred in presuming that the pictures conformed to the event described in exhibit P/1; and that this error occurred because the magistrate’s court it did not review the pictures. The district court also found that, since the sources of the information had invited the photographer to memorialize the events, the magistrate’s court erred in finding that cooperation between the photographer and the source was not needed to create or obtain the information,.

13.  It was stressed that according to the holding in CC (TA) 1121/07 Glatt-Berkowitz v. Kra [34] , per Judge Zamir, a contract arises between a journalist and a source who does not want to have his identity disclosed, and the exposure of the identity of that source would amount to a breach of contract; that the journalist and the source have a legal relationship of “neighbors”, and the journalist therefore owed a duty of care toward the source, and  the  disclosure of his identity could be considered to be the commission of a tortuous wrong; and that the special relationship between the source and the journalist is not only a private interest of their own, but is also an important interest for the entire public. It was held that under the circumstances, there is a public interest in honoring the agreement between the photographer and the source, so as not to deter informants from cooperating with journalists.

14.  Regarding the application of the privilege in this case, the district court held that even though some of the pictures were photographed in public, the information is indeed covered by the journalist’s privilege in light of the photographer’s undertaking not to pass them on without the source’s consent. In order to examine the issue of whether it is necessary to remove the privilege, the court held that it must determine whether the tests developed in Citrin [1] have been satisfied. Regarding the first test (the issue of whether the photographs are relevant to the investigation) it was held, as stated, that the two series of pictures – the “burning tires” and the “remaining pictures” – should be treated differently. With regard to the “burning tires” group, it was noted, that in light of the respondents’ agreement to provide the police with any “direct documentation” of the events described in exhibit P/1, they must be delivered to the petitioner; and in any event, the court held, this was relevant documentation. As to the remaining photographs, which include pictures that appear to document an event that was potentially criminal, the court held that it does not conform to the description of the events in exhibit P/1, and the degree of its relevancy is therefore reduced.

15.  With respect to the second test, the court held that the issue regarding which the order was sought was an important one in which the public had a very significant interest. Regarding the third test – the existence of an alternative method for obtaining the requested evidence – the court held that not enough had been done to obtain it. The court noted that in the hearing held on 22 December 2011, the respondents stated that they would not object to delivering the pictures, to the extent that they were direct documentation of the infiltration into the regional headquarters base and of the attack on the deputy regional commander.

16.  In the course of its discussion of the scope of the privilege and before ordering that it should be removed, the district court distinguished between a public event to which a journalist or photographer is invited by sources, with a commitment being made to the source not to publicize information without the source’s consent, and a public event at which other photographers and filming crews are present – who were not invited by the participants. It was held that the privilege issue should be given extra weight in cases of the first type, in light of the importance of maintaining the trust that sources and journalists have in each other, and to prevent the “chilling effect” that could be created by a fear that information will not be kept confidential. However, it was also said that if a journalist has taken photographs at an event with an apparent criminal aspect, in a public space, and the photographer argues that a promise was made to the source not to publicize it, the court must question the journalist with regard to the sincerity of his claim before granting the petition for an order pursuant to s. 43 of the Criminal Procedure Ordinance. On the other hand, when a journalist is at the site of an incident, either as a matter of coincidence or having arrived there without the source having stipulated that material should be published only with his consent, it is doubtful that the privilege applies, and the material must be provided to the police.

17.  In conclusion, as stated, the court held that a distinction should be made between the two groups of photographs. The series showing the burning tires were ordered to be handed over to the police. With regard to the remaining photographs, including those providing apparent documentation of a criminal event – the court held that insofar as an investigation has begun and the petitioner believes that this information is required, the petitioner can ask the court for an order pursuant to s. 43 of the Criminal Procedure Ordinance. Note that the court rejected a “supplementary argument” that the petitioner submitted, finding that it was an attempt to broaden the factual and legal picture with respect to exhibit P/1 and to add further facts, claims and descriptions that were not included in exhibit P/1, for the purpose of removing the privilege with respect to the second group of pictures as well.

 

The petitioner’s argument

18.  The petitioner’s main argument is that the district court expanded the Citrin rule to reach the information itself and not just  the sources of the information, and that other district courts have also expanded the rule in the same way – and that this expansion is inappropriate so long as the legislature had not seen fit to anchor the journalist’s privilege in any statute. The petitioner argues that the rationale underlying the journalist’s privilege – the public interest in having information flow from the sources to the journalists – is sufficiently protected by the granting of privilege to the sources of the information only, and that its expansion to cover the journalists’ information will lead to the flow of selective information, as dictated by the interests of the sources.

19.  It is further argued that in this case the district court expanded the Citrin rule to reach not only the information that had been provided to the journalist and which can endanger the source, but also information that has not been provided to the journalist but of which the journalist became aware in the context of objective documentation, while he was present at a specific incident; and that the district court extended the privilege in this way because a promise had been given to a source not to publish the latter information without approval. It is argued that the application of the privilege only because of the existence of a promise given by the journalist to the source can also lead to the flow of selective information, as dictated by the interests of the sources.

20.  Regarding the information itself – the pictures – the petitioner argues that the district court erred in distinguishing between the two series of photographs, in the sense that it did not view them as pictures of a single event related to the infiltration of the Efraim Regional Headquarters. The petitioner argues that the order pursuant to s. 43 turns on material that documents the “events on 12 December 2011- 13 December 2011 adjacent to the Efraim Regional Brigade Headquarters”. It was argued that the Deputy Regional Commander’s statement was provided to create the foundation for the request for an order, not in order to define and restrict the entire investigation to the narrow sector in which the events described in the statement occurred. It is also argued that the district court should have accepted the supplementary argument regarding the scope of the investigation – a matter which the state sought to appeal.

 

The respondents’ arguments

21.  The respondents’ main position is that the disclosure of the pictures will expose the identity of the source and that the pictures are therefore covered by the journalist’s privilege. With regard to the scope of the privilege, the respondents’ argument is that according to various draft laws submitted over the years regarding the journalist’s privilege, the privilege should apply not only with respect to the identity of the source, but also to the journalists’ information.  Regarding the application of Hachsharat Hayishuv [31], the respondents argue that since it had been held in this case – as a factual matter – that the disclosure of the pictures would lead to the disclosure of the source’s identity, there is no need to decide the issue of whether the journalist’s privilege will also apply to information in general, separately from its significance for the source or for the maintenance of confidentiality regarding his identity.

22. It is also argued that a contract is entered into between a journalist and the source regarding the non-disclosure of the source’s identity of the information other than with the consent of that source; that pursuant to the Rules of Professional Ethics of Journalism, a journalist may not disclose information (in accordance with the ruling of the district court, at p. 8, lines 13-15); and that the journalist owes a duty of care to the source because of the relationship between them, as the court held in Glatt-Berkowitz [34].

23. Regarding the public nature of the event that was documented, the respondents base their argument on the district court’s decision, and reject the petitioner’s sweeping claim that the privilege does not apply whenever the documentation is of an event that occurred in a public place.

24. The respondents’ rely on the district court’s ruling with respect to the application of the Citrin test as well, and argue that the pictures do not satisfy the relevancy requirement, because the district court held that as a matter of law, the pictures (other than the series depicting the burning tires) do not document the event described in exhibit P/1. The respondents also argue that the police did not exhaust all possibilities for obtaining the information from other sources before the appeal was made to the magistrate’s court for the issuance of the order. It should be noted that the respondents do not dispute that the second test– the existence of a significant  issue – had been satisfied.

Position of the Press Council

25.  The main position taken by the Press Council – which joined the case as an amicus curiae – is that the journalist’s privilege should also apply to the content of the information and not only to the identity of the source. According to the Council, in the years since the establishment of the rule of Citrin [1] (a case decided in 1986) a clear position has developed, indicating that information is protected by the privilege – a position which should be established in the case law of this Court as well. According to the Council, the privilege should apply to all information that the source provides to the journalist even if it was not provided directly to the journalist by the source, and to all information that reaches the journalist even if he obtained it solely through his own personal and professional activity without any source whatsoever having provided it to him. The Council reasons that the privilege should also apply to any analysis of such information that the journalist has carried out.

26. The Council argues that under the current circumstances, the authorities can bypass the privilege with respect to sources in various ways (such as a search of the newspaper’s offices or of the journalist’s own computer) and that the source can thus be identified and the entire objective of the privilege can thus be frustrated. It is therefore necessary to have the privilege apply to information as well, in order to ensure protection of the source. Another reason that the privilege should cover information is that the source often needs to give the journalist “background information” in order to establish his own reliability – but this information is not given for the purpose of having it made public.

27. It is also argued that the journalist’s privilege that appears in section 22 of the Rules of Professional Ethics of Journalism (approved by the Press Council on 16 May 1996) also applies to information given to a journalist “on condition that it remain undisclosed”; and that even though the violation of an ethical duty does not create legal liability, the court can determine the applicable behavioral standard by examining, inter alia, the ethical rules of the journalism profession.

28.  It is also argued that the privilege should apply to information for contractual reasons, in light of the trust relationship that exists between the parties. If a party is likely to have his identity disclosed by a journalist, he will hesitate to provide information in which the public has an interest, such as corruption. The Council also argues that it is necessary for the journalist’s privilege to apply to information as well, in order to maintain journalistic independence and to prevent the profession from becoming a “governmental arm” of the investigative authorities – because at present, information is not protected by privilege, and the  government can reach the source through the information, as stated, even if the privilege does apply to the source itself.

The main points of the discussion in the hearing before us

29. Attorney Granot argued for the petitioner that the district court expanded the scope of the privilege beyond what is necessary under the circumstances of the case, and applied it to information that does not serve to disclose the identity of the source. It is argued that this expansive view of the privilege was also applied in other district court decisions, and that this expansion harms the objective of uncovering the truth, which is the objective of the privilege itself. Attorney Ulman argued for the respondents that in the current case, the photographer was invited by her sources, and that the lower court had made a factual finding that the disclosure of the pictures would lead to the disclosure of the source’s identity. The respondents’ counsel also argues that the pictures have limited relevance (other than those that document the burning tires), and that the police did not carry out an exhaustive investigation before they applied for an order – meaning that the Citrin rules had not been satisfied. Regarding the scope of the privilege, it is argued that because the privilege is qualified and not absolute, it is proper that it should apply to a wide range of cases. Attorney Lin argued for the Press Council, noting that the protection of the source’s identity must be expanded to cover information that can lead to the disclosure of his identity as well.

Decision

30.  We have decided to grant leave to appeal, and to deliberate the case as if an appeal had been filed in accordance with the leave that has been granted. And we have also decided to grant the appeal in part. We have three concrete issues that are presented in this matter.

The first is the request pursuant to s. 43 of the Criminal Procedure Ordinance to obtain the pictures.

The second is the issue of the application and scope of the journalist’s privilege to the pictures.

The third is the question of the removal of the privilege.

Nevertheless, it is obvious that our decision will have a broader significance with respect to the issue of the journalist’s privilege in general.

Section 43 of the Criminal Procedure Ordinance  (and the argument regarding privilege in the context thereof)

31.  Section 43 of the Criminal Procedure Ordinance provides as follows:

“If a judge finds that a particular item is necessary or desirable for the purpose of the investigation or the trial, the judge may summon any person in whose possession or property it is presumed the item may be found, to present himself and present the item, or to produce the item at the time and place indicated in the summons.”

In general, a request for an order pursuant to s. 43 may not be submitted if there is an alternative method which would have a lesser impact on the autonomy of the party to which the order is issued. Requests pursuant to s. 43 are intended for cases in which a regular search and seizure proceeding is not sufficiently effective, such as when it can be presumed that the party holding the item will refuse to deliver it. The section is usually used at the police investigation stage of a criminal proceeding, and its main purpose is to move the investigation along (see CrimApp 9305/88 A. v. Al Mamuniya Girls School [2] , per Justice Arbel, at para. 8).

32.  The section has two threshold requirements, which must both be satisfied – the need for the item for the purpose of the investigation, and the possibility that it is in the possession of the party to whom the order is issued. The fulfillment of these two requirements are met does not mean that an order must be issued, but it does mean that the court will consider whether it should be issued (CA 1761/04 Sharon v. State of Israel [3] , at p. 14). In the context of this consideration, “the court must take into consideration the substantive connection between the material being requested and the needs of the investigation, and the degree to which this information is relevant” (LCrimA 5852/10 State of Israel v. Shemesh [4] , per President Beinisch, at para.11). And the most important requirement for the purposes of this case: there is generally no justification for using the section if the investigating authority has other means of obtaining the documents that it needs (Sharon v. State of Israel [3], at p. 15).

33.  A request pursuant to s. 43 of the Criminal Procedure Ordinance is generally made, at the first stage, in the presence of the applicant. If the party possessing the item objects to a request to deliver it before he has been allowed to present his arguments against its delivery, an additional hearing is held, and the court hears the party’s objections (compare, Y. Kedmi, On Criminal Procedure, Part 1, B, 755 (updated 2008); CC (TA) 721/95 Kazarshvili v. Bank Mercantile Discount [32]). The power to issue an order pursuant to this section includes the power to exercise judicial review for the purpose of examining the fulfillment of the section’s purpose; thus, even after the order has been issued and an argument has been made against the order – such as an argument based on the journalist’s privilege – the court has the discretion to decide whether or not to cancel it (Sharon v. State of Israel [3], at pp. 19-20). To sum up, when the court is faced with a request pursuant to s. 43, it can decide whether or not to grant the it on the basis of considerations that arise within the context of s. 43; it can also reject the request if it finds that the journalist’s privilege claim should be granted and that there are no grounds for removing that privilege.

34.  After reviewing the photographs, the district court found that the police had not carried out enough investigative work, as required in the context of a request for an order pursuant to s. 43 (at p. 6, line 26-28; and at p. 11, at para. 22). Nevertheless, the district court did not cancel the order for this reason, because the respondents agreed to produce any material that contained direct documentation of the event described in exhibit P/1. Therefore, we now face the issue of determining what is covered by the journalist’s privilege and what the grounds for its removal are. I will therefore add, for the sake of emphasis, that it is appropriate, in my view, for a court facing a claim of privilege to see the material in question and to review it, so that it will not be feeling its way in the dark. In my view, this is a self-understood test, and would be the way to respond to any claim of privilege or confidential material, etc.

35. I believe that the district court’s determination that the police had not carried out sufficient investigative work was sufficient ground for cancelling the order (at p. 6, para. 13 of the district court’s judgment). The court chose not to cancel the order, because the respondents had agreed to deliver the material that was direct documentation of what had been described in exhibit P/1. I find the reliance on this reason to be problematic, for two main reasons.

36.  First, it appears that we cannot say that the respondents’ counsel “agreed” to provide the pictures as stated; rather, he clarified that if there was direct documentation of the events described in exhibit P/1, it could be presumed that the court would remove the privilege. He noted that “as to the court’s question, I respond . . . that if the pictures show one of the demonstrators hitting the Deputy Brigade Commander, then according to the required considerations, I would have certainly have expected the court’s  decision to be that the pictures should be disclosed” (District Court transcript for 22 December 2011, at p. 6, lines 17-19), and later on “all that is needed to determine is whether the pictures document the attack. And if they do, there is reason for disclosing them because of the seriousness of the event, and the balancing that has been prescribed in the case law” (at p. 7, lines 30-32). These remarks should be seen in light of the fact that the respondents’ counsel knew at that stage that the pictures do not directly document the attack on the Deputy Brigade Commander. The counsel made this argument several times (for example, at p. 4, lines 30-32); however, the main principle within the respondents’ argument, throughout the entire trial was – and remains – that all the pictures are subject to the privilege and that they should not be disclosed.

37.  Second, and this is the main point: even if the respondents’ counsel had in fact, with these remarks, agreed to hand over the pictures that included direct documentation of what is described in exhibit P/1, to the extent that he believed that the privilege applied to such pictures – it appears that it was not in his power to give such consent. The journalist’s privilege is a qualified privilege, and only the court has the authority to remove it. The power to waive the privilege is given to the source and only to the source. (Y. Kedmi, On Evidence Part 3, (2009) (Hebrew), at p. 1147). The litigants participating in the trial cannot consent to remove the privilege from the material, which does not belong to them, other than with the consent of the source (ibid., at p. 1017). Throughout the proceedings, the respondents’ claim was and remained that the disclosure of the information will lead to the disclosure of the source; and that the source had been promised that the information would not be disclosed. All of this indicates that the cited remarks made by the respondents’ counsel cannot be relied upon as the basis for a waiver of the privilege. This is also indicated by the fact that in practice, before the court directed that the “agreed upon” pictures should be handed over, the court discussed the question of whether the Citrin tests regarding the need to remove the privilege have been satisfied.

38.  In summation – an order to produce items pursuant to s. 43 of the Criminal Procedure Ordinance and an argument based on privilege are two different matters. When, on the face of the matter, it appears that the conditions of s. 43 have not been satisfied, the court need not deal with the privilege claim. However, where a privilege claim has been raised, it will be discussed and the claim will be heard; nevertheless, for the purpose of issuing an order, the s. 43 conditions must be met as well as the conditions for removing the privilege. Once the court found that the police had not carried out sufficient investigative work, as the rules regarding s. 43 issues require, this was sufficient – as stated – to lead to the cancellation of the order on the basis of this approach.

39.  Since the court had instructed that some of the pictures should be handed over, on the basis of the tests for the removal of the privilege as established in Citrin [1] – and because it established, as a starting point for this purpose, that the privilege applies to the photographs – I will discuss these two stages.

Scope of the journalist’s privilege

40.  In Citrin [1] the court established a common law privilege that allows the journalist not to disclose the sources of his information (ibid., [1], at pp. 360-361), subject to the possibility that the privilege should be removed – as stated – in if the subject is relevant and substantive and is required for an investigation, in the absence of other evidence. In the instant case, the photographer was not asked to disclose her sources, but rather to hand over photographs that had been taken at the scene of the Ephraim District Brigade Headquarters base events. The respondents objected on the basis of a journalist’s privilege claim. The district court held that under the circumstances, the privilege applied to the photographs (i.e., the information), because the delivery of the pictures could lead to the disclosure of the identity of the source. This holding raised the question of the scope of the journalist’s privilege – which is the main point of the dispute that is to be decided here.

41.  Chapter C of the Evidence Ordinance establishes a number of privileges, among them privileges for various professionals such as attorneys, physicians and psychologists. The journalist’s privilege was not included in this list of statutory privileges; rather, it was created in the framework of case law. This was discussed at length in Citrin [1]. The legislature’s silence on this matter despite various attempts that were made to enact legislation regulating this issue was not interpreted as a negative arrangement, and it was held that the creation of an evidentiary rule that recognizes the journalist’s privilege reflects the recognition of freedom of expression and of the freedom of the press that flows from it. It was held that a privilege that allows a journalist not to disclose the sources of his information should be recognized (Citrin [1], at paras. 9-11, 15).

42.  We will first survey the attempts to enact a statutory privilege following the court’s adoption of the Citrin rule. This survey will document the dispute regarding the scope of the journalist’s privilege. Next, I will briefly discuss the status of the privilege in the laws of other countries. Following that, I will present the reasons for recognizing a privilege for information, and the difficulties that such a privilege entails. Against this background, I will present the scope of the journalist’s privilege and discuss the consequences of that scope. Finally, I will relate to the determinations made in the district court’s judgment.

Attempts to legislate and the Maoz Committee

43. After the decision in Citrin [1], a number of attempts were made to pass legislation on the issue – but none ripened into an enacted statute. In 1993, a Committee to Examine the Journalist’s Privilege (hereinafter: “the Maoz Committee”) was established; its chair was  Professor Asher Maoz, from Tel Aviv University Law School. The majority opinion presented in the Committee’s 1994 report recommended that the Evidence Ordinance be amended to include a journalist’s privilege, in the following language:

‘A person who has received items and documents due to his work as a journalist (hereinafter: “the information”) will not be required to disclose them, if the disclosure of the items or documents is likely to disclose the identity of the person who provided the information or if the information was given to such a person on the condition that it would not be disclosed, unless the court finds that it must be disclosed or if the informant has agreed to the disclosure’ (Emphases added – E.R.)     

44.  This text anchors the privilege first with respect to the identity of the source, and second, with respect to the information that was given with a promise that it would not be disclosed, subject to a court ruling requiring its disclosure.

45. The committee’s recommendations have not yet been realized over the course of the 18 years that have passed since the publication of its report. Over the course of those years, a number of draft laws, with various texts, have been proposed. Among others, a draft law was proposed in 2003 in the form of a private bill, by MK Avshalom Vilan (Pr./189), according to which “a journalist is not obligated to hand over evidence or information which can serve to identify the parties who were the sources of the information . . .” The explanatory material indicated that the purpose of this proposal was to anchor only a “privilege for sources”, which would also include information that leads to the disclosure of the source. In 2003, another private draft law was submitted by MK Zehava Galon (Pr./664), with the following language: “A journalist is not required to provide evidence concerning information or an item that he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information . . .” (emphasis added – E.R.). The explanatory material accompanying that draft indicated that this referred to a “privilege for sources and information” which would apply not only to the source but also to the information that the source provided. An identically worded proposal was submitted in 2006 as well (Pr./17/220). The Knesset did not enact any of these draft laws as statutes.

46.  Additional draft laws were submitted in 2011 (Pr. 18/2840 and Pr. 18/2870), and these were similar in their essence to the earlier proposals. The language of the first of these was as follows:

‘A journalist is not required to provide evidence concerning information or an item which he obtained through his work, if such information or item is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them, or evidence regarding the identity of the person who provided the item or the information, unless the person has waived confidentiality, or a court has found that the evidence must be disclosed.’ (Emphasis added – E.R.)

The main output of the Maoz Committee

47.  We need to briefly note the products of the Maoz Committee’s work. The committee’s deliberations focused on four subjects: an examination of the situation regarding the journalist’s privilege, in practice; the need for the existence of the privilege and the dangers resulting from it; the desired scope of the privilege; and the need to anchor the privilege in a statute. (Maoz Committee Report, at p. 3). Various parties – including judges, police personnel, officials from various government authorities, and journalists – testified before the Committee regarding the implications of the privilege for their respective fields of work. The laws of other countries were also examined.

48.  Regarding the question of the scope of the journalist’s privilege, the Committee decided unanimously that it must apply to all the information that could lead to the disclosure of the identity of the source. However, a dispute arose between the majority and the minority views regarding the application of the privilege to different types of information.

49.  The majority’s opinion was that the privilege should apply both to information that was likely to lead to the identification of the source, and to information regarding which the journalist had agreed with the source that it would not be disclosed, such as “background information” the purpose of which is to boost the reliability of the source and his story – meaning that the privilege would be for sources and information. The minority group within the Committee proposed that the privilege should apply to the identity of the source and to any item that is likely to disclose the source’s identity  – meaning, the privilege should be a privilege for sources (at pp. 15, 25 and 46). To complete the picture, I note that the minority position – unlike that of the majority – understood that the privilege should be absolute – (except if the case involves a serious crime), such as the respondents are seeking to have applied, in this case, in one way or another.

50.  This survey leads to the following conclusion: first, the common denominator among all the draft laws and the Maoz Committee minority view was that the privilege should apply to the identity of the source and to information that would lead to the identification of the source. Second, both the draft laws from the years 2006-2011 and the proposal offered by the Maoz Committee majority opinion sought to anchor a privilege for both sources and information, but they were divided regarding the nature of the information to be protected by the privilege. The majority referred to a privilege for “items and documents . . . (hereinafter: “the information”) . . . if the information was given to such a person on the condition that it would not be disclosed”, while the draft laws referred to “information or an item – which is of the kind that is generally given to journalists with the belief that the journalist will maintain confidentiality with regard to them.” Thus, the privilege proposed by the Maoz Committee was one that was conditioned on an agreement between the parties, while the privilege in the draft laws was conditioned on the manner in which the court interpreted the nature of the information.

The case law of the district courts

51. The issue arose in the district courts in Hachsharat Hayishuv [31], mentioned above; in MP (TA) 90742/09 Channel 10 News v. Moshe Katzav [33]  and the already noted Glatt-Berkowitz [34], (para. 25). In Hachsharat Hayishuv Judge Adiel noted (in para. 25) “that the privilege must apply in principle to the information as well and not only to the source’s identity”, if the source had conditioned the provision of the information on the preservation of confidentiality. In Channel 10 News [33], (the then) Judge Mudrik wrote that “I personally believe that the existing privilege also includes protection of the content of the journalists’ information which the journalist promised to keep confidential, and not only narrow protection for the identity of the source”; see also Glatt- Berkowitz [34].

Comparative Law

52.  The two parties found support in the laws of other countries. And this is as it should be: the subject, by its nature, has been dealt with by the institutions of  every country in the free world. The respondents described a picture in which the scope of the privilege in a number of Western countries provides protection for both a journalist’s sources and for his or her information. The petitioner, on the other hand, presented a different picture, according to which in the common law countries, the status of the journalist’s privilege and its scope, are – at the very least – unclear. The purpose of this survey is not to identify the scope of the optimal privilege. As will be described below, the matter depends on, inter alia, the legal system of each country, the structure of each country’s legal system, and the interface between the privilege and the country’s other laws. In any event, there are no exact matches between the character of the privilege in different countries. However, this survey can shed light on the search for the various balances that can be reached between the need to expose the truth and to maintain a privilege for sources, and the rationale at the basis thereof.

U.S. law

53.  The United States Supreme Court dealt with the issue of the journalist’s privilege forty years ago in Branzburg v. Hayes [36]. Branzburg was a journalist who wrote an article about drug use in Kentucky. For the purpose of understanding the issue, he consulted with a number of drug users. Following the article’s publication, Branzburg was subpoenaed to testify before a grand jury (a proceeding leading up to an indictment) about his sources. Branzburg argued that he was protected by the journalist’s privilege, which he sought to derive from the American Constitution’s First Amendment – the Amendment that established, inter alia, the freedom of the press. The majority opinion in the case was written by Justice White. The question to be decided was whether a journalist who had been subpoenaed to testify before a grand jury and to respond to relevant questions regarding the crime being investigated could be protected by a journalist’s privilege rooted in the First Amendment. As Justice White wrote: “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of a crime” (ibid. at p. 682). The Justice believed that a journalist is no different from any other person who was called to appear before a grand jury in the framework of a criminal investigation, and rejected the claim that the journalist’s privilege was anchored in the First Amendment to the American Constitution. The minority opinion was written by Justice Stewart, who supported the recognition of the privilege within the context of the Constitution (ibid. at pp. 725-726). As he wrote: “The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press” (ibid. at pp. 725-726). According to him, the free flow of information is a cornerstone of a free society; and the provision of broad and varied information to the citizen not only allows the citizen to learn about different opinions, but also allows for the monitoring of government authorities. Justice Steward found that the ability of the press to gather information depended on the protection of the sources of the information – protection that was based on the Constitution (ibid. at pp. 728-729):

‘[T]he duty to testify before the grand jury 'presupposes a very real interest to be protected.' Such an interest must surely be the First Amendment protection of a confidential relationship …. [T]his protection does not exist for the purely private interests of the newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the newsgathering relationship. Rather, it functions to insure nothing less than democratic decision-making through the free flow of information to the public, and it serves, thereby, to honor the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.' […]. In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that, because of their 'delicate and vulnerable' nature […], and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards’ (ibid. at pp. 737-738).

54.  The majority opinion should be understood against the background of the structure of the American legal system. The Branzburg [36] decision referred to the issue of a journalist’s privilege arising in the framework of the First Amendment to the American Constitution, and – as noted – rejected the defense argument based on such a privilege, based on the argument that no such protection applied in a proceeding before a federal grand jury. However, this holding did not rule out the possibility of state-enacted statutes that recognize a journalist’s privilege. Indeed, following Branzburg [36], forty-nine states (all the states but one) and the District of Columbia (in which the country’s capitol city, Washington, is located) enacted state laws that anchored a journalist’s privilege – with different states establishing different ranges of protection. Some of these statutory privileges cover sources only; others provide protection both for sources and for information. Keith Werhan, Rethinking Freedom of the Press after 9/11, 82 Tul. L. Rev. 1561, 1589 (2008)). Thus, for example, California established a privilege for sources and for information which applies both to information obtained through the gathering of materials that are meant to be published, and to information the publication of which is not intended (Cal. Constitution art. 1 § 2). The District of Columbia established an absolute privilege regarding the identity of the source (D.C. Code § 16-4702 (2001), and a privilege for information which can be removed if various tests that are prescribed in the statute are satisfied. (D.C. Code § 16-4703 (2001). Florida established a qualified privilege for sources and for information (Fla. Stat. Ann. § 90.5015 (West 2004), as was established in Connecticut (Conn. Gen. Stat. Ann. § 52-146t (West)) and in Colorado (Colo. Rev. Stat. Ann. § 13-90-119 (West 2004)).

55.  Following the Branzburg [36] decision, various federal courts also recognized a journalist’s privilege for sources and for information. Thus, for example in Gonzales v. Nat'l Broadcasting Co., Inc. [37],(, the Second Circuit recognized a journalist’s privilege and held that it applied to both sources and information.

56.  Nevertheless, the trend toward anchoring a privilege in state statutes and in state judicial decisions came to a stop, to a certain degree, after the events of September 11, 2001 (see D. Ronen, The Law of Censure: Media, Freedom of Expression and National Security (2011) (Hebrew), at pp. 145-147). Thus, for example, in In re Grand Jury Subpoena, Judith Miller [38], a senior government official, Lewis Libby, the chief of staff of Vice President Dick Cheney, was suspected of having committed perjury. Various journalists were called to testify, including Judith Miller, who refused to testify about her sources and was sent to prison for contempt of court because of her refusal. The three judges on the panel of the DC Circuit Court of Appeals returned to the rule of Branzburg [36], according to which there is no federal constitutional protection for a journalist’s confidentiality. The Court did address the alternative argument regarding a privilege based on federal common law, and rejected that argument. Judge Tatel, in his concurring opinion, wrote that in principle, a federal common law privilege should be recognized:

‘In sum, “reason and experience,” as evidenced by the laws of forty-nine states and the District of Columbia, as well as federal courts and the federal government, support recognition of a privilege for reporters’ confidential sources. To disregard this modern consensus in favor of decades-old views, as the special counsel urges, would not only imperil vital newsgathering, but also shirk the common law function assigned by Rule 501 and “freeze the law of privilege” contrary to Congress's wishes’ (ibid. at p. 1172).

57.  This Appeals Court decision creates some doubt concerning the relevence herein of the state legislation and case law. It should be recalled that the case was heard in the federal district court for the District of Columbia, which, as has been noted, confers a wide-reaching journalist’s privilege. However, the existence of a state statute is not binding when a case arises at the federal level, although federal courts have found that such legislation should be reviewed. In one such federal decision, the Court of Appeals for the Ninth Circuit wrote as follows:

‘In determining the federal law of privilege in a federal question case, absent a controlling statute, a federal court may consider state privilege law. Heathman v. United States District Court [39], , at 1034 (9th Cir. 1974); Baker v. F & F Investment [40], ;, at 781-82. But the rule ultimately adopted, whatever its substance, is not state law but federal common law’ (Lewis v. United States [41], , at p. 237).

In addition, Rule 501 of the Federal Rules of Evidence provides as follows:

‘The common law – as interpreted by United States courts in the light of reason and experience – governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.’

58.  This survey shows that the existence of a state statutory privilege or one that has been established in the case law of the state courts – even if such privilege enjoys a broad scope – does not guarantee protection for a journalist in a federal court. The impact of the existence of state protections, even when they apply to both the source and the journalist’s information, is limited – due to the structure of the American legal system. While state privileges grant wide protection the net of relations between a journalist and his sources, and to journalists in general, the lack of a parallel provision at the federal level, as well as the holding in Branzburg [36], point in a different direction, toward a limitation of the privilege

Canada

59.  Canada has no arrangement that anchors a journalist’s privilege in a statute. Section 2 of the Canadian Charter of Rights and Freedoms lists a number of fundamental freedoms. Sub-section (b) provides as follows: “[Everyone has the] freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In 2010, the Canadian Supreme Court heard an appeal brought by a newspaper, challenging an order instructing the newspaper to hand over a document that could have led to the identification of its source. (R. v. National Post [43]). The document was required for the purpose of exposing a forgery. The appellants argued that a journalist’s privilege had been established in s. 2(b) of the Charter of Rights and Freedoms. The Supreme Court rejected this argument and held that the value protected in the Charter is the right to freedom of the press only. The Supreme Court emphasized that:

‘The law needs to provide solid protection against the compelled disclosure of secret source identities in appropriate situations but the history of journalism in this country shows that the purpose of s. 2(b) can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source would not in general violate s. 2(b)’ (ibid. [43], at para. 38).

60.  The Court went on to reject, as well, the argument that the privilege is established in the common law, and noted that:

‘Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board) [44],), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities’ (ibid. [44], at para. 41).

61.  Finally, the Court did recognize a case-by-case privilege, and held that the party claiming the privilege bears the burden of persuasion regarding the fulfillment of the conditions for the application of that privilege. The Court did not provide any clear outlines for the scope of the privilege, stating that:

‘When applied to journalistic secret sources, the case-by-case privilege, if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant, as in O'Neill v. Canada (Attorney General) [45], . The scope of the case-by-case privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial’ (ibid. [45], at para. 52) (Emphasis added – E.R.)

62.  It appears that Canadian law resembles the United States law, beyondthe degree of the protection provided by the law – meaning the scope of the protection provided through the privilege; in neither system is it entirely clear that the privilege actually exists in a particular case. The Canadian Supreme Court noted in this context that:    

‘The bottom line is that no journalist can give a source a total assurance of confidentiality. All such arrangements necessarily carry an element of risk that the source's identity will eventually be revealed. In the end, the extent of the risk will only become apparent when all the circumstances in existence at the time the claim for privilege is asserted are known and can be weighed up in the balance. What this means, amongst other things, is that a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability. This much is illustrated by recent events in the United States involving New York Times' reporter Judith Miller and the subsequent prosecution of her secret source, vice-presidential aide Lewis "Scooter" Libby, arising out of proceedings subsequent to his "outing" of CIA agent Valerie Plame: In re Miller, 397 F.3d 964 (D.C. Cir. Ct. 2005) [42], at pp. 968 -72. The simplistic proposition that it is always in the public interest to maintain the confidentiality of secret sources is belied by such events in recent journalistic history’ (R. v. National Post [43], at para. 69).

63.  Later, in a different case (Globe and Mail v. Canada (Attorney General) [46], para. 19-25), the Canadian Supreme Court again heard the claim that the journalist’s privilege could be derived from s. 2(b) of the Charter. The Court rejected the argument unanimously, on the basis of the reasons expressed in the holding in R. v. National Post. Nevertheless, the Court repeated its earlier determination that the privilege could be found to apply on a case-by-case basis.

France

64.  Section 1 of the French Law of Freedom of Expression, enacted in 1881 (Loi sur la liberte de la press du 29 juillet 1881 (amended 4 July 2010), provides that “Le secret des sources des journalistes est protégé dans l'exercice de leur mission d'information du public.” (“The secrecy of a journalist’s sources is protected in the exercise of their mission to provide information to the public.”) The section protects the sources of the information and does not refer to the protection of a journalist’s information. This section has been amended several times, most recently in 2010. Sub-section (3) refers to the possibility of restricting the privilege with respect to the sources of information, either directly or indirectly, and conditions such a restriction on an essential public interest in the disclosure and on the use of methods for disclosure that are very necessary and proportionate to a legitimate purpose, but it does not obligate the journalist to disclose his sources. Sub-section (4) continues sub-section (3), and provides that an attempt to locate a source by asking a third party – meaning a party who is not a journalist or the source himself – will be deemed to be, in the language of sub-section (3), an “indirect restriction”.  Sub-section (5) establishes the tests to be applied in determining whether the privilege should be removed, and these include the severity of the crime, the importance of the information for the purposes of the prevention or punishment of the crime, and the degree to which this measure is needed in order to uncover the truth.

65.  In 2010, s. 5-100 was added to the Criminal Procedural Code, in the following language:

‘A peine de nullité, ne peuvent être transcrites les correspondances avec un journaliste permettant d'identifier une source en violation de l'article 2 de la loi du 29 juillet 1881 sur la liberté de la presse.’

And, translated into English:

‘On penalty of nullity, no transcription may be made of any correspondence with a journalist to identify a source in violation of Article 2 of the law of the 29th of July 1881 on the freedom of press.’

This section supplements the 1881 statute, and prohibits the copying of correspondence held by a journalist which identifies the journalist’s source. In addition, s. 109 of the French Criminal Procedure Code provides as follows (translated into English):  “Any journalist heard as a witness in respect of information collected in the course of his activities is free not to disclose its origins.” According to the section as well, the privilege applies only so as to protect the identity of the journalist’s sources.

66.  An additional method for preventing circumvention of the 1881 statute is derived from the provisions of the criminal procedure code relating to a search. The beginning of s. 56 of the Code contains provisions relating to the conduct of a search for evidence that was used in the commission of a crime or which relates to a crime that has been committed. Section 56-1 limits the ability to search an attorney. Similarly, s. 56-2, dealing with the conduct of a search of a journalist’s property, and permits such a search only after an order has been obtained from a judge or a prosecutor – an order which ensures that the search does not violate the journalist’s “freedom of exercise” and does not obstruct or delay the collection and creation of information in a manner that is not justified:

‘A search of the premises of a press or audio-visual communications business may only be made by a judge or prosecutor who ensures that such investigations do not violate the freedom of exercise of the profession of journalist and do not unjustifiably obstruct or delay the distribution of information.’

67.  Similarly, s. 77-1-1 provides that under certain circumstances, any person, institution or public or private organization can be ordered to provide documents (including computerized data). The section qualifies its application to the various professionals mentioned in sections 56-1-56-3 (a journalist is one of these), and requires that any production of documents must be with their consent. In 2011, a French High Court (Criminal and Civil) decision dealt with a request from the police to be allowed to obtain, from the phone company, a printout of a certain journalist’s mobile phone calls. The court saw this request as an attempt to bypass s. 77-1-1 and held that the privilege applied under the circumstances. The court emphasized that s. 77-1-1 should be interpreted in light of the 2010 amendment of s. 2 of the 1881 Freedom of the Press Law (Cass. Crim., Dec.  6, 2011, no. 11-83.970).

68.  The above shows that French law provides comprehensive protection for the identities of the sources of information, and this includes the protection of any information that leads to the exposure of a source’s identity; however, this protection does not extend to the entire relationship between the journalist and the source, and does not apply to information that does not lead to the exposure of the source’s identity. Such protection, referred to as professional confidentiality, is established in section 226-13 of the French Criminal Code. In English translation:  “The disclosure of secret information by a person entrusted with such a secret, either because of his position or profession, or because of a temporary function or mission, is punished by one year’s imprisonment and a fine of €15,000.” The courts have interpreted this section as applying to attorneys, doctors, and priests, but in connection with journalists – the interpretation has been that it applies only with respect to the identification of the sources of information.  (Muriel Giacopelli, “Obligation de deposer”, Repertoire de droit penal et de procedure penal, Editions Dalloz, 2012).

Other countries

In England, s. 10 of the Contempt of Court Act, 1981 (“Sources of Information”) establishes a qualified privilege regarding the identity of the sources of information:

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

We see that a privilege with respect to sources is recognized, subject to the “interests of justice or national security or  . . . the prevention of disorders or crime.”

69.  In Germany, s. 53 of the German Procedure Law (captioned “Right to Refuse Testimony on Professional Grounds”) protects both the sources of the information and the journalist’s information. As translated into English:

‘The persons named in number 5 of the first sentence may refuse to testify concerning the author or contributor of comments and documents, or concerning any other informant or the information communicated to them in their professional capacity including its content, as well as concerning the content of materials which they have produced themselves and matters which have received their professional attention. This shall apply only insofar as this concerns contributions, documentation, information and materials for the editorial element of their activity, or information and communication services which have been editorially reviewed.’

70.  The non-exhaustive picture outlined above indicates that the law in other countries is not uniform with regard to the status or the scope of the journalist’s privilege. Nevertheless, where the privilege is recognized – either by statute or by local case law – the privilege is generally understood to provide protection for information that will lead to the disclosure of the identity of the source; it is less commonly understood that the protection reaches information in general. When the privilege is not recognized at all, the reason for such non-recognition is the concern that the assertion of the privilege will do unnecessary harm  to the principle of the need to uncover the truth.  We will now, taking all this into account, return to our discussion of the situation in Israel.

Interim summation

71.  In Israel, the need for a limited privilege for sources is undisputed. The difficulty arises when a journalist claims the privilege with respect to the journalists’ information itself. In Channel 10 News [33], Vice President Mudrik wrote as follows:

‘The claim of a privilege for the sources of journalists’ information presents considerable difficulty. The difficulty is caused by the fact that the privilege, which is the product of judicial decisions, is self-delineated by its purpose of protecting the identity of the sources and not of providing protection for the information provided by those sources. Look throughout the decision in Citrin [1]– which is the keystone of this privilege as it has been adopted in our legal system – or any of the considerable foreign decisions discussed therein – and you will find no mention of any protection for the content of information provided to a journalist.’

We are therefore faced with two questions: should we recognize a privilege for journalists’ information; and if the answer to that question is affirmative, what is the scope of the privilege that we should recognize? We will first present the reasons for recognizing a privilege for information, followed by the difficulties involved in such recognition. We will then propose, against this background, the desirable scope of the journalist’s privilege.

The reasons for recognizing a privilege for information

Background

72. The factors that support a privilege for information must first be examined in light of the contribution that the press makes to a democratic system. The constitutional starting point for this review is the right to freedom of expression. It is well known that this right enjoys a sublime supra-statutorystatus, and has been in this position for many years – dating back to at least this Court’s groundbreaking decision in HCJ 73/53 Kol Ha’am v. Minister of the Interior [5] (per (then) Justice Agranat) – “The principle of freedom of expression is closely bound up with the democratic process.” Today, we would certainly refer to it as a constitutional right; see also, HCJ 243/62 Israel Film Studios Ltd. v. Levy [6], at p. 2415. In his opinion in that case, (then) Justice Landau wrote as follows: “In order for the citizen to enjoy his freedom to exchange opinions, he needs the freedom to exchange information . . . only in this way can he create for himself an opinion which is as independent as possible regarding those questions that are of the greatest importance for the world, the society and the state”; HCJ 14/86 Leor v. Film and Play Review Council [7] , per (then) Justice Barak;HCJ 680/88 Schnitzer v. Military Censor [8]; and see also, regarding the complexity of the issue, LCrimA 7383/08 Ungerfeld v. State of Israel [9], my opinion. These principles have already become entrenched and they hold an honored position – there is, therefore, no need to say much more regarding this point.

73. Freedom of the press is derived from the right to freedom of expression (CA 723/74 Ha’aretz Newspaper Publisher Ltd. v. Israel Electric Corp.[10],per (then) Justice Shamgar, at p. 298). A proper democratic regime requires the existence of frameworks that can present to the public those matters that require discussion (Kol Ha’am [5], at p. 877). The press is meant to function as the long arm of the public, and is charged with gathering and publicizing information; the free exchange of opinions is a fundamental condition for a democratic society (HCJ 372/84 Klopfer-Naveh v. Minister of Education and Culture [11], per (then) Justice S. Levin, at p. 238. A democracy that wishes to enjoy ongoing public debate and discussion of national issues cannot be satisfied with freedom of expression that exists only in theory; the state authorities, including those involved in the criminal and administrative fields, must limit the exercise of their powers, in order to enable the practical exercise of the constitutional right (Ha’aretz v. Israel Electric Corp. [10], at p. 296). Freedom of the press also applies to aggressive journalism, but this does not mean that the freedom is unlimited; the restrictions are listed in Citrin [1]. The principle at the basis of freedom of the press is journalistic responsibility. A person’s reputation is not to be left unprotected, and it is guarded by, inter alia, the protections established in the Prohibition of Defamation Law, 5725-1965; see also the Protection of Privacy Law, 5741-1981; regarding the approach to this matter taken by Jewish law, see M. Vigoda “Individual Privacy and Freedom of Expression” Portion of the Week: Bamidbar 208 (A. Hachohen & M. Vigoda, eds., 5772).

74. The realization of freedom of the press is conditioned on the free and continuous flow of information to the public. The relationship between a journalist and his sources is the “nerve center” of this process; the need for an effective information-gathering system justifies the protection of the sources that provide information, subject to the restrictions established in Citrin [1]. The absence of proper protection creates a risk that the sources of such information will dry up. The scope of the journalist’s privilege can of course impact on a journalist’s ability to do his job. The privilege gives the journalist the freedom to obtain sources and to verify them, to be present at events and to  investigate them, and to work toward finding the information. The reason underlying this protection is not the newspaper’s or the journalist’s own particular interest – it is the interest of the public in such protection (ibid. [1], at para. 14?, at pp. 358-359). The protection of the sources of information is thus closely intertwined with the freedom of the press.

 The reasons supporting the protection of the information

75.  The privilege established in Citrin [1] was interpreted as applying  whenever a journalist is asked to give a direct answer regarding the identity of his sources, but it does not release the journalist from his obligations to respond to other questions, through which the privilege can be circumvented. Thus, when information that was developed in the context of the relationship between the source and the journalist is not protected, the obligation to deliver such material to the police, in the framework of an investigation, can – in certain situations – lead to the disclosure of the source’s identity. The protection provided by the privilege with respect to the identification of sources can be reduced, for example, through the seizure of items or documents that have the potential to lead to the disclosure of a source’s identity – items such as a telephone book, appointments diary, or personal computer. The same holds true with respect to a printout of a journalist’s telephone calls (see MP (Jerusalem) 2014/03 Kra v. State of Israel [35] , per President A. Cohen, at para. 9; and see M. Negbi, The Journalist’s Freedom and Freedom of the Press in Israel (2011) (Hebrew), at pp. 150-151). The argument is thus made that in order to protect a journalist’s sources, it is necessary to have the privilege apply to information that leads to the identification of those sources. As an ethical matter, I will not discuss the case of Kra [35] itself because I was the Attorney General who decided to investigate that leak of information regarding the questioning of Prime Minister Sharon, even though no particular person was suspected at the time of being responsible for the leak; the investigation was ordered because of a suspicion that sensitive details of the judicial inquiry had been leaked by a source within the investigative authorities or within the prosecution. Regarding the investigation of leaks, see also HCJ 1736/10 Lieberman v. Director of the Internal Police Investigations Department [12]  my opinion, at para. 25, and per Justice Hayut); see also HCJ 2759/12 Weiner v. State Comptroller [13], my opinion, at para. 3.

76.  There may be reasons for the privilege beyond protection of the sources of information. An example would be a demand addressed to a journalist that he hand over material that he surveyed at an event at which he was present (see, for example, HCJ 172/88 Time, Inc. v. Minister of Defense [14], at p. 141); there, this Court held (per Justice Barak), that “freedom of expression and freedom of the press do not protect journalists’ information against its use as investigative material by the competent investigative authorities, when there is a reasonable basis for the assumption that the journalists’ information contains information that could provide significant assistance in disclosing disturbing facts”). Of course, cases like this have various possible implications. First, the absence of protection for such information can limit the willingness of the sources of information to invite journalists to such events; this situation can also lead those participating in such events to use various means to prevent journalists from being present at these events and reporting on them. Thus, in the absence of a privilege, a journalist may refrain from participating in such events – either because he may be asked (as part of a police investigation) to hand over the content of his journalistic output or deliver a photograph that he took  – or because he could be required to testify in court (see Maoz Committee Report, solo opinion of Mr. Moshe Ronen, at pp. 46-50).

77.  Another possible situation in which a privilege for sources is insufficient is when the matter being investigated is the exposure of corruption.  Occasionally, the “minor partner” in a corruption scheme will be willing to provide details regarding the corruption, on condition that his identity is not disclosed, since the disclosure of his participation can very well incriminate him. The journalist, for his part, wants information on the “senior partner” in the corruption scheme. Nevertheless, the journalist must still examine the part played by the source (the minor partner) in order to understand the overall picture and to assess the reliability of that source – even though this is not the main point of the information that the source has provided. In order to obtain the information, the journalist must give assurances that these minor details which could incriminate the source will not be provided to the authorities (see also, Maoz Committee Report, sole opinion of Mr. Moshe Ronen, at pp. 46-50). The question is – what approach should be taken in such a situation?

The difficulties presented when a privilege for information is recognized

78.  Of course, the recognition of a full privilege for information involves substantial disadvantages as well. First, the rules of evidence are directed at serving the purpose of uncovering the truth, and the recognition of a privilege is an exception to that rule (LCA 6546/94 Bank Igud Le’Israel Ltd. v. Azulai [15], at p. 61; LCA 637/00 Israel Discount Bank Ltd. v. Evrat Insurance Agency [16], at p., 664; LCA 2235/04 Israel Discount Bank Ltd. v. Shiri [17]  per Justice Procaccia, at para. 10; CrimApp 4857/05 Fahima v. State of Israel [18]  per Justice Procaccia, at para. 5). The principle of uncovering the truth presumes that justice will best be accomplished through a comprehensive presentation of the evidence. Only in special and exceptional circumstances should recognition of a privilege be c