On Yair Netanyahu and Infringement of Privacy

November 19, 2018
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The article was published in Afik News 270 21.11.2018

One morning you discover that the taxi driver who took you and several friends from a night out, recorded you talking about personal issues and published it on the Internet. There is no need to describe the embarrassment and aggravation caused, especially where the published personal information is not something you wished anyone to hear. Not being a public figure, the likelihood of such a scenario to happen to us is very low. However, when you are the son of the prime minister of Israel, such a scenario is not necessarily imaginary. Exactly for the purpose of protection of privacy from such scenarios, whether one is an ordinary person or a public figure, the Privacy Protection Act was enacted.
The Israeli Protection of Privacy Law defines a long list of scenarios that are considered an infringement of privacy and even teaches us how the violation may be mitigated so as not to be considered an offense under this law. The law stipulates that infringement of privacy is, for example, eavesdropping (including by recording), use of a person’s name for personal profit, harassment, photographing a person in public places, publishing of a picture of a person in order to disgrace that person, etc. The law also sets that breach of a contract that requires privilege or confidentiality is also deemed a violation of privacy. Thus, for example, an employer who installed (without posting a notice) a camera that films or records what is happening in his business can easily be deemed to have violated the privacy of his employees, even without meaning to do that.
Infringement of privacy is not only a criminal offense, but also a tort that enables a claim against the publisher of the private information for monetary compensation for the damage caused by the offending publication. Thus, inter alia, the injured party may claim up to ILS 50,000 for each violation, without requirement to prove damage, and if the tortfeasor acted with intent to harm, up to ILS 100,000 for each breach. However, it should be noted that although this claim is “without the need to prove damage,” Courts tend not to order the full compensation where it is shown that no damage was caused, or if the damage was minimal. Immediate remedial actions (such as immediate removal of the publication or where the publisher apologized) will also result in reduced compensation.
And what about Yair Netanyahu? A number of youngsters apparently drank a little too much and held a nonsense conversation recorded by a third party. Because one of them was the prime minister’s son and the third party apparently a civil servant, the conversation caught major headlines on the news pages. It seems that Yair Netanyahu’s attorneys will have no difficulty in proving that recording a private conversation between friends and publishing it to the media in exchange for money is intended to get rich at the expense of another while intending to harm his reputation, was certainly not done in good faith. Moreover, the recording civil servant, by virtue of his position, is committed to confidentiality and this alone is sufficient to grant Yair Netanyahu a significant compensation (although probably lower than the amounts set by law, and certainly less than the one million shekels demanded there). However, it will be interesting to examine how the Court will treat the arguments regarding the fact that the recording was made when the recorder was a party to the conversation (hence, this is not eavesdropping) and that even though Yair Netanyahu is not a public official, he is a public figure who has often put himself at the front, and should thus mind his words even if the conversation was made in a closed vehicle. Another question is whether it is a good thing for the Prime Minister in an election year to pride himself of a legal proceeding that catches headlines and which repeatedly emphasizes disgraceful statements made by his son, and which probably should not have been said. Thus, in this case, even if the legal case will not really be interesting, the media case will certainly be.