privacyThis decision by the Israel Supreme Court concerns an appeal by an author against a decision by Judge Kanfi-Steinitz of the Jerusalem District Court that included a permanent injunction prohibiting publication of his book and 200,000 Shekels in statutory damages.

The decision tackles fundamental constitutional issues and is notable for its review of Jewish sources as well as democratic ones.  The decision is available here (Civil Appeal 8954/11) as a Word document, in Hebrew.

“All human beings have three lives: public, private, and secret” Gabriel García Márquez

The decision relates to the correct balance between the right of free speech and freedom to create on one side and the right to privacy and good name on the other.

The book in question was marketed as a fictional romance but apparently is heavily based on an affair that started in 2001 and lasted 5 years between the author, a married man with children, and a student. Apparently the book goes into intimate detail in the most intimate details of the relationship including preferred sexual practices of the student.

The student, lived with her boyfriend in the appellant’s neighborhood, and worked in a Jerusalem cinema and studied art. The appellant got to know the defendant in the cinema and eventually an intimate relationship developed. This was kept private at first, but was later known to their close acquaintances and was afterwards described in the novel. Once the relationship became known, the appellant divorced his wife and the defendant separated from her boyfriend.

The defendant’s final art project was prepared whilst the affair was ongoing and related to the male-female relationship. In 2004, the appellant worked on his own creation, a novel based on the drama of the dissolution of a family. The novel describes the intimate relationship between a man of the age of the appellant suffering from an unfulfilled marriage, and a young student that he meets in a cinema. The man’s employment is that of the appellant, the cinema is where the defendant worked and, in the book, the man was married, a parent and living in Jerusalem, and the woman was single, living with her partner in rented accommodation near to the man.

The book was published with much marketing fanfare, including reviews in weekend supplements, television and internet interviews and the like. On publication the woman sued the author and the publishing house claiming that the book was autobiographical and went into intimate detail of the physical aspects of the relationship and was a serious invasion of her privacy, libel and slander and since use was made of her letters, also gave rise to an independent copyright suit. The publishing house recalled the books and stopped their sale, pending the court ruling.

The sides were unable to settle their differences and the Jerusalem District Court issued a temporary injunction against distribution of the book that Judge Gronis (now president of the Supreme Court) refused to annul.

The woman claimed that the book provided her full resumé, a description of her appearance, body, likes and dislikes, character, weaknesses, conscience, sexual preferences and intimate relations. It also described her artwork. She argued that the book exposed her to acquaintances and caused her much personal and professional distress.

The author produced expert literary witnesses who argued that the book was a work of fiction, that may have been based to some extent on the author’s experiences, but that is generally the case with fiction, and preventing publishing would damage the literary arts. The author went on to allege that the woman noted the similarities to herself, but was oblivious to the substantial differences. She knew about the book and was given the opportunity to review parts of it, but decided to wait for the publication, and he claimed that this should estoppel her case. He claimed fair use, the right to self-expression, an implicit license to publish since she was aware of the book during its preparation, and that the injunction was a serious damage to his right to create and to self expression.

The publishers claimed that they published the work in good faith as a work of fiction and were unaware of any autobiographical elements. They also noted that they withdrew the book on learning of the woman’s charges.

The District Court’s Ruling may be found here

Grounds for Appeal

In the Appeal, the author argued that the issue was not whether the source of one’s inspiration could be guessed, but whether one would assume that the details described are true. (This is an interesting argument. What the author is suggesting is that if he describes a relationship involving, say bondage, fellatio and cunnilingus, how could anyone other than the partner know what was based on their intimacy and what was the results of his imagination?).

The author argued that although he claimed that the work in question was fictional the District Court’s ruling lacked balance and would effectively kill off the entire genre of autobiography since any book about oneself relates to one’s relationship with others.

The author further argued that to be found guilty of invasion of privacy, intent is required, and was lacking in this case. The woman countered by saying the total disregard of her reputation was sufficient. The author further argued that since the woman’s name does not appear, there cannot be an invasion of privacy. It was, he felt, inconceivable that story-teller could be hauled up in court on grounds of invasion of privacy for alleged similarities between a fictional character and an acquaintance.  The author accused the District Court of unfairly meddling with literary editing. Whilst he could have used a pseudonym, the use of his real name did not necessarily give rise to identification of the inspiration of the woman character.

As to the District Court’s argument that the author could have disguised his source of inspiration, he responded that this was based on hindsight and did not prove that he had malicious intent.

The Author requested the opportunity to reedit his work and remove references that might identify the woman, arguing that a complete ban lacked balance. The Author further argued that the book was praising of the woman’s artistic exhibition and that she was aware that he was writing a book, had shown no interest in reading it prior to publication and had therefore implicitly consented to it being written. He felt that the correct balance between freedom of expression and right to privacy was intent to harm, which was not proven. Furthermore, he argued that even if poor judgment could be shown, that was not, in and of itself, sufficient to find him guilty.

The author argued public interest and produced testimony of a reader who found his treatment of the subject matter helpful. Finally, the author suggested that any damages should be borne by the publishers who benefited from the publication of the book.

Counter-arguments

The woman argued that the District Court’s decision was fair and just. She suggested that censorship of autobiographies and creative work should only be allowed in the most extreme circumstances, but felt that this case, where every aspect of her personal and private life were exposed was such an extreme circumstance.

She argued that the District Court had already ruled that this was a publication of an intimate relationship in the guise of a novel, and not a work of fiction. All claims to a the book being a work of fiction were voided by the constant references to events and places that related to her and the author as a couple, and that third parties were aware of.

The woman rejected arguments that the correct defendant was the publisher and that the time past from the affair made the whole issue moot. As to the argument that the similarities were outweighed by the differences, she considered that not to be the case in this instance. She was in favour of literature and was aware that much literature is based on fact. She was against wholesale censorship, but felt that the facts in this case with the major invasion of privacy justified extreme measures.

The woman considered that in such cases, proving intent to harm was not the correct standard and that the total disregard for the effects of publication was sufficient to rule guilt. She noted that in addition to hurting her, the author’s ex-wife and children had also exhorted him not to publish.  She dismissed claims of an effective agreement to the publication by noting that the District Court had accepted that she was unaware of the intimate and graphic nature of the writing.

The Author cited US case law concerning the ‘people’s right to know’. The woman argued that where the persons concerned are public figures and where the level of invasion of privacy is minimal, there is some justification for publication, however she was not a public figure and the invasion of privacy in this case was neither incidental nor trivial. She argued that 200,000 Shekels damages was far from the maximum that the court could have ruled and was therefore reasonable, particularly when compared to rulings in other cases of invasion of privacy. She also argued that she was entitled to copyright damages for reproduction of her love-letters. The court noted that this was not part of the appeal and therefore they could not address this issue.

The Ruling

The Supreme Court first established a normative framework for considering freedom of expression, rights to publish an autobiography and rights to privacy and then went on to relate to the specific case.

The court noted the fundamental importance of Freedom of Expression but considered that where it might invade someone’s four cubits of privacy, the issues involved are fundamental to constitutional values. Since the State of Israel is a Jewish Democratic State, the judges first analyzed the issues from Jewish and Democratic sources. In this regard, we note that the main ruling was by the Hallachically Observant Judge Noam Solberg.

Citing Talmud Bavli, Taanit 8b “Blessings are only found in that kept out of sight“, Judge Solberg noted that airing private matters in public in an untimely manner without full consent could destroy worlds.

Judge Solberg acknowledged that Freedom of Expression in general and autobiography in particular were vital interests. The court considered that the interaction of these essential values with the conflicting right of privacy is the kernel of this ruling.

The Court considered Freedom of Expression an essential anchor of democracy and of paramount importance in a divided and polarized society such as Israel. Noting that Judaism has always promoted dialogue and discussion as summarized by the maxim “These and these (contrary positions) are the word of the Living God” Talmud Bavli Erubim 13b.

Referring to the classic ruling 73/53 Voice of the People vs. State of Israel, the court noted that the importance of free speech cannot be exaggerated.

The court argued that both the democratic tradition and Judaism accepted plurality of expression and the right to express one’s opinions, and cited the introduction to the Hallachic work Arukh HaShulchan (Yechiel Michel Epstein (1829-1908)) to the effect that the glory of the Holy Torah is a Cocophany of Disparate voices creating a harmony, and referred to Meny Alon in 2/84 Neiman vs. Central Election Committee and to Aviad HaCohen‘s essay “Freedom of Expression, Tolerance and Pluralism in Jewish Law“. The Court posited that Former Chief Justice Barak had accepted that freedom of expression was based on both Democracy and Judaism in 6129/84 Senesh vs. the Israel Broadcasting Authority (1999).

The court went on to note that freedom of Expression is not limited to political views but also encompasses artwork, and protected the rights of artists to break conventional boundaries, citing Appeal to Supreme Court 14/86 Leor v. The Authority for Critiquing Films and Plays, the court noted that it is not just consensus views and opinions that are complimentary to the authorities that are protected, but also the rights to break boundaries and to produce artwork of ‘low inherent value, indecent pornography, political and deviant work.’ Referring to an essay by Alexander Ron in a weekly Study Sheet – Parshat Shevua, BaMidbar 5762, the court argued that such rights were also accepted in Jewish Law.

The court was not sure if Freedom of Creativity was derived from Freedom of Expression or is an independent right, but, paraphrasing the Yom Kippur Hymn, whether independent or derived, there was consensus that the silver smith had the right to both purify and to alloy his material.

As far as Autobiography is concerned, the court accepted that this has equitable value to the author and that people have the right to express themselves, but that this has to be balanced with possible damage to others. Citing Rabbi Kook (first Chief Rabbi of Israel pre-State and something of a mystic):

“Literature, drawing and sculpture are realizations of the spiritual values inherent in humanity and as long as there is a drawing based deeply in a soul that has not yet been placed on paper, there is an obligation to produce it“.

The Court noted that without allowing people to express themselves to hear and be heard, to read and to write, man’s humanity is damaged and his spiritual development and intellect are stifled and prevent him from realizing himself.

As far as autobiography is concerned, the court noted that in the era of cheap publishing, internet and blogs, autobiography is not the province of the selected few, but anyone and everyone should be able to express himself and record his life story. Furthermore, truth is not a universal truth knowable in advance, but reveals itself through an appreciation of different life experiences and perspectives and to the extent that more people record their lives, the sum of human knowledge will grow. Since different people are more influential and the media is biased, it is of societal interest to encourage as many people as possible to record their experiences and to the break monopolies on knowledge.

What the court has done is to show that knowledge in general and autobiography in particular are democratization, giving a vote and a value to the individual separate from the collective.

Citing the Maggid of Mezeritch (a Hasidic Master 1704 – 1772), Judge Solberg challenged the Appelant’s assumption that free speech was necessary for creativity, and suggested that privacy may be more essential. The Maggid noted that the great act of creativity is procreation which is (normatively) a private act. Also, a seed needs to be covered in the dirt and hidden from view to germinate.

He noted that elections are only democratic if they are preceded by an opportunity for people to express themselves and their concerns and accompanied by debate and attempts to persuade by argument.

The court sees a problem with gatekeepers and sensors, media and political censoring  The courts noted that the democratization effect of social media has forced dialogue and change in surrounding totalitarian Arab regimes. Democracy without free speech is considered a soul-less regime.

Nevertheless, despite the centrality of freedom of expression, creative expression and autobiography, the court does not accept these values as being absolute. The court ruled that my freedom of action stops at your nose. My freedom of expression does not allow slander or libel. It does not justify damaging national security, creating a civil disturbance or the right to give false witness in court.

The right to privacy is enshrined in Section 7 of the Basic Law – Respect of Man and His Freedom 1980 which states that each man is titled to privacy. One does not enter a person’s territory without permission. One cannot search a person, his body or chattels, and one must not damage a person’s self expression, writings or records.

The courts have upheld the rights to privacy. This again, is subject to checks and balances:

Objectifying another person for one’s own gains damages his personal integrity:

“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 merelysubjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, ie, exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

It is totally forbidden to use someone else’s person for one’s gain, and the privacy of the individual is the hard core (maybe an unfortunate choice of wording?) of his person.

 “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)

“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)).

The right of privacy, is a consequence of the Right of Human Dignity, see Civil Appeal: Eloneal vs. Mc Donald, 45(4) 314, Judge Rivlin there, Anon. in A Barak‘s ruling, Ruth Gaveson “The right to privacy and respect, articles in memory of Shelach 61 (1988).

Functional Justifications

Normative existence in a democracy requires trust between people, particularly those in intimate relationships.

There are a number of theories that confidence and privacy are necessary to allow a person to fully develop and realize himself. George Orwells’s 1984 is given as an example of where this privacy is not respected.

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).

“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” 

See also R. v. Dyment, [1988] 2 S.C.R. 417, and the Birnhack on the Rights for Privacy in Law and Technology.

Privacy differentiates between the ‘I’ and society, and defines a space where the individual is left alone to develop as an individual without external interference (the Dayan case).

“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)).

Citing the Medieval commentator Rashi and the Midrash Tachuma on Exodus 34:3, the Ten Commandments were first given publicly with thunder, lightening and the sounding of the ram’s horn (audio-visual extravaganza?), but the evil eye was therefore upon them and they were broken. The second set were given in a small quiet voice and were the ones that lasted.

The decision continues to cite widely from Jewish sources, Aristotle and modern legal and philosophical works to show that Man needs relationships: It is not good for man to live alone Genesis 2:18, Man is a political animal Aristotle Politicals Book I 28-37, a study partner of death (Bavli, Ta’anit 23a). These sources indicate that every one of us is involved in a plethora of relationships in our complex lives, each of which has its own character.

The relationship between man and wife has a  character of intimacy that the Law  protects. Most clearly in the legally defined relationship of Man and Wife, but this is extended to long term, steady Common Law relationships which also have legal recognition and responsibilities of confidentiality. It is precisely for this reason that Rabbinic Responsa (Nahlat Sheva, Contracts 9) rules that business circumstances where a man is unable to give witness, his wife is also unacceptable. A man can appoint his wife as his proxy for actions that a third aprty would not be acceptable for,, and In Israel Law of Evidence 1981, in criminal law, spouses may not testify against each other.

In the novel, it is the woman’s right not to be exploited and to have her privacy respected.

Comparative Law

English Approach,

In the past, the available tort was Breach of Confidence, which depends on the type of confidence, how it became known and whether there is an assumption of confidentiality.

In the past decade, the British law has expanded this. Lord Hoffmann in Campbell:

“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.”

In personam rights have in rem obligations. Notice is made of theEuropean Convention for the Protection of Human Rights and Fundamental Freedoms.

Australia

Not all acts taking place in private on ones private property deserve confidentiality, a factory owner claiming that the method that opposums (why isn’t this opposii?) were killed in his factory was confidential, was rejected.

“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 behaviour, 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).

New Zealand – see P v D [2000] 2 NZLR 591 and also William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960).

“20. ….article 10(2), (like article 8(2)of the European Convention for the Protection of Human Rights and Fundamental Freedoms), recognises 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”

Lord Hoffmann in Cambell:

  “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 civilised 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 favour of one rather than the other. The question is rather the extent to which it isnecessaryto 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 publicised 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 recognised 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 whatever 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”

“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.”  Baroness Hale

In A v B [2003] Q.B. 195 concerning a British footballer’s one night stand with two women, revealed to the press by one of them, despite anticipated damage to footballer’s family:

“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 recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise 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”

As contrasted with Ms Kennitt and Ms Ash:

 “… 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.”

Thus in A and B, the shortness of the relationship did not create an obligation of confidentiality on the women, who had the right to enjoy their moment of fame and Mirror payment for their story. Here, the relationship lasted 5 years and the rights and obligations, whilst not sanctified by marriage, are, nevertheless, recognized by the Law.

European Law

In  Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR, the rights of the Monacao royal family to prevent photos of them on holiday is discussed. Considerations regarding bannig  publication include the extent to which the material contributes to public discussion, whether the personalities are public or private, the person’s attitude re publicizing the material in question, content, form and consequences of publication and how the material was obtained.

It is noted that Continental Law greatly respects the rights of public figures to have a private life:

“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 (1989) NJW 1990 563).

Code Civil [C. CIV.]:

“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.”

United States

Restatement (Second) of Torts, § 652 (1977)  ‘Public disclosure of Private facts’

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”

Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)

“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”.

In the United States, Freedom of Speech is protected by the constitution, privacy, is however, is not. As noted by Judge Miriam Naot, it is thus possible that in a similar case the US, the courts would reach a different conclusion from that of Israel and other Common Law countries

In Bonome:

“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”.

In Israel, where the rights cannot coexist, it is fitting for the right of expression of one party to give way to the right of privacy to the other.

The Supreme Court quoted Jewish Rabbinic sources, philosophy, political and Israeli and foreign legal sources to try to provide a framework for balancing the conflicting rights of privacy and self-expression. They acknowledged that literature is often based on fact, but upheld the district court’s ruling that acquaintances of the woman would recognize her, and that she was entitled to privacy. The details of the character could and should have been changed more significantly.

The main Judge, Noam Solberg (who is religious and Jewish) declined from illustrating how the woman’s sexual habits were described, since this would damage her privacy, but noted that his ruling was written after reading the novel in its entirety. The ruling of the district court was upheld by all three judges.

Deputy Supreme Court Judge Miriam Naot (Secular, Jewish) also noted that she had read the book but considered that it would be improper to go into the salient details, but she felt that the invasion of privacy exceeded a release of a film of their bedroom romping since it attempted to get into the woman’s  head.

Judge Jubrian (Moslem) felt there was a vital constitutional right to allow of freedom of speech on political subjects, including views that one disagrees with and minority-held extreme views have a right to be heard. This constitutional right does not have the same validity when the rights of others are trampled on. Judge Jubrian ruled than on fundamental political issues the right for the freedom of speech is paramount. In this case the author could have taken pains to create a work of literature that was less invasive. As an alleged work of literature it is not entitled to the protection forwarded to autobiography.

The ruling was held unanimously and the man was fined NIS 750,000 and legal fees.

Comments

The original case was reported since the woman claimed copyright infringement in personal letters that were reproduced. As the decision is an important one, is well reasoned, and since I am in favour of promoting Jewish Civil Law, I am happy to blog it to bring it to the attention of the English speaking world, and suspect that it will generate a lot of interest. I have reported this case at length since I was approached by a British QC to report on the case.

In Memoirs Of Fanny Hill By John Cleland (London, 1749), a fictional memoir of a woman of pleasure, the male characters are referred to as Lord D, Mr H, etc. Road names are changed. It does seem that this is the correct standard.

In many ways this is the literary equivalent to a recent decision in Germany where a woman who had an affair with a photographer obtained an injunction preventing the publication of compromising pictures of her. Indeed, Judge Miriam Naot ruled that were the man to publish compromising photographs of himself with the student, clearly the court would agree to a request by the student to impound those pictures. The present case was considered more exposing, in that it also attempted to describe what went on in her head.

The Campbell case related to drug dependency of the model Naomi Campbell. The relevance of this decision to newspapers publishing photos and articles concerning royalty and political figures (Duchess of Kent changing bikini, Prince Harry in Las Vegas, Bill Clinton and Monica Lewinsky, Max Mosley with prostitutes, Netanyahu’s affair, etc) is clear.

People are entitled to privacy in their private lives. Letting someone into your bedroom does not give him license to expose what happened there to the rest of the world.

I believe that the ease with which anyone can publish words or pictures taken with a mobile phone and reach an unlimited audience with blogs, facebook and the like, justifies the Supreme Court’s stance.

I am unhappy with all three judges referring to the male and female characters as the hero and heroine of the book. I see to reason to romanticize an affair that broke marriage vows and left other people hurt.

Despite the precedents mentioned, the there have been cases of curtailing free speech by both the Israel courts and by the Jewish religious leadership.

The Israeli courts did indeed allow a communist paper to flourish and Kol HaAm is an important decision. Communists are one thing. The same Supreme Court later banned the popular Arutz 7 radio station in an en banc decision that doesn’t even mention the value of freedom of speech and expression, ignoring the fact that those who campaigned for this important nationalist voice to be silenced were the same people who wanted Abu Natan, the DJ behind the Voice of Peace to receive a Nobel Prize. The Minister of Communications who created legal private radio stations, Shulamit Alony intentionally crafted the law to block Arutz 7.

Former Arab Knesset members who were later found to be spying for Syria were not banned, but Meir Kahannah was banned from running for the Knesset due to his right wing politics. In general, we note that it is dangerous to ban political parties as it makes outlaws of ideologists and moves them outside the system. It also boosts their attraction.

The books of Maimonides, Gersonides and Spinoza were banned. The Chassidic movement was banned in its day. More recently the late Rav Shach banned Rabbi Steinzalz, Rav Schneerson, Rav Riskin and Rav Lichtenstein. There were recent attempts to dicommuniate Rav Stav. I am scared by those that know the whole truth because God speaks to them. A few years ago, some extreme ultra-Orthodox rabbis created the concept of Daas Torah. They apparently have a monopoly on the truth. Dangerous. Let ideas win in the market place.

Generally, excommunication and banning merely makes a work or a rabbi more popular, this is true of forbidden literature and music as well.

Banned views sometimes become main-stream over time. Let the Sun Rise was banned and is now main stream in Israel. We note that the Rolling Stones are performing in Israel this summer. They’ve been banned before.

Judge Noam Solberg is a settler living in Gush Ezion, a West Bank enclave that is a rebuilding of settlements destroyed in 1948. His ruling was adored by Mekor Rishon and was criticized by HaAretz. We wait to see whether this is a one-off ruling or whether the Jewish scholarly and legal tradition will be influential in future rulings.

So the courts aren’t perfect. I think this ruling is nevertheless correct. I’ve recognized characters in books where the authors haven’t changed names. In general, this should be avoided, at least as far as personal lives are considered.

This post originally appeared on The IP Factor blog and is reproduced with permission and thanks.