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0(4) Publication of a photograph of a person in public circumstances in which the publication is likely to humiliate or humiliate him.
(6) Use of a person's name, nickname, image or voice, for the purpose of spacing."
- The provision of section 6 of the Protection of Privacy Law states as follows:
"There will be no right to a civil or criminal lawsuit under this law due to an unsubstantiated injury."
- Therefore, cumulative conditions are required to prove the existence of an invasion of privacy. In accordance with the provision of section 2(4) of the Protection of Privacy Law - proof of the publication of a person's photograph in public, without his consent, in circumstances that may humiliate or humiliate him, and in accordance with the provision of section 2(6) of the Protection of Privacy Law - proof of the use of a person's name, nickname or image, without his consent, and proof that the use was made for the purpose of gain. In both alternatives, the injury must be a real injury.
- In our case, there is no dispute that a personal photograph of the plaintiff, which was attached to another name and a quote from her as recommending the services of an English course, in the text accompanying the photo, were displayed without permission on an advertising website (see the interrogation of defendant 1 at p. 2 of the minutes of the hearing of April 16, 2024, para. 12 onwards).
- The publication of her photo on the social network "Facebook" does not constitute her consent to the use of the photo by other parties and for any purpose.
- According to the plaintiff, the publication of her photo next to the text detailing that she had difficulty expressing herself in English humiliated her, and as evidence, she noted that acquaintances and friends contacted her after the publication and asked her how she did not know English: "... It humiliated me. People turned to me and said, 'Why don't you know English?' People turn to me and tell me why your picture is posted on websites and you don't know English" (p. 1 of the minutes of the hearing of April 16, 2024, paras. 18-20) (see also paragraph 10 of the affidavit of the main witness on behalf of the plaintiff).
- The plaintiff's claims show that she had an unpleasant personal experience. However, this does not indicate "humiliation or humiliation" in the eyes of a reasonable person, which is the decisive test regarding the definition of publication as offensive, as defined in the provision of section 2(4) of the Protection of Privacy Law (see: Civil Case (Shalom Tel Aviv) 17600/04 Estate of the late Itai Yaakov Dayan (minor) z"l v. Zilberberg Avraham (published in Nevo, July 8, 2007), and the review therein).
- Was the use of the plaintiff's photograph for the purpose of spacing in accordance with the Protection of Privacy Law?
- Admittedly, the rule regarding the interpretation of the provision of section 2(6) of the Protection of Privacy Law, which was determined in other municipal applications 8483/02 Aloniel in the Tax Appeal v. Ariel McDonald (published in Nevo, March 30, 2004) (hereinafter: "the McDonald case") (a request for further hearing was denied) is that the section should be regarded as providing only limited protection against invasion of privacy. However, this rule was established in the case of a celebrity and a person who himself wishes to derive profit from the use of his name, who claimed an infringement of his privacy in a lawsuit he filed against the production of spacing by another in his own name.
- The case before us is different. The object of the alleged violation of privacy is the plaintiff, who is not a celebrity, she makes a living from her work in an insurance company ( 1, para. 26 of Peru). According to her, she also has activities on social networks (paragraph 2 of the statement of claim). At the same time, the plaintiff did not support her claims about her actions on social networks and the extent of the public's familiarity with her (thus, for example, no amounts of followers were shown on social networks or the responses of followers to her publications). Therefore, the plaintiff cannot be considered a "celebrity" who seeks to derive independent profit from the publication of her photo. Therefore, as suggested by the scholars Friedman and Bar-Or, I am of the opinion that in such cases, the term "for the sake of profit" mentioned in section 2(6) of the Protection of Privacy Law should be interpreted broadly, and will also include non-monetary spacing (see Daniel Friedman, Elran Shapira Bar-Or, The Laws of Unjust Enrichment (Vol. 1, No. 3, 2015), pp. 520-521).
- In the case before us, the use of the plaintiff's picture next to the text is intended to persuade and encourage others to enroll in an English course. Therefore , this is for-profit advertising. It is not necessary that the advertising actually generated profit for the advertisers.
- In this regard, see Civil Case (Tel Aviv District) 2578/00 McDonald Ariel v. McDonald's et al. (published in Nevo, July 1, 2002), p. 4673:
"The proper interpretation of the term 'spacing' is an expansive interpretation, which includes benefiting from the use and not necessarily profit in the narrow sense of the word."