Civil Case (Jerusalem) 56708-12-22 Erez Aumann v. Octopus – Public Information for All (NPO) - part 22

In other words, as a rule, there is no duty of confidentiality regarding mediation or conciliation arrangements, and there is no confidentiality for these arrangements.

87. Notwithstanding the aforesaid, and as detailed above, the court administration was of the opinion that the conciliation arrangements that are the subject of the proceeding before me should not have been published on the Judiciary's website, and Adv. Gendelman on its behalf responded to the plaintiff's request in accordance with this reasoning. The plaintiff wishes to see this as an admission by a party to the negligence of the court administration in implementing its procedures, as will be detailed below.
88. The plaintiff's ID number was also published in the judgment given in the labor dispute case 56316-07-17 and in the partial judgment given in labor dispute 7238-05-17. These two rulings were given by consensus, and they do not detail the cause of action or any other detail.  The only harm to the publication relates to the fact that the plaintiff's ID number is mentioned in the document.
89. In contrast to the judgments reviewed above, in the publication of the judgment in the appeal file against VAR, information about the plaintiff's medical condition was also published. The judgment was given on November 3, 2022, and it appears that it deals with an appeal filed by the plaintiff against the decision of the National Insurance Institute's Medical Appeals Committee.  The judgment does not contain identifying details of the plaintiff and his name is mentioned in initials, but the judgment contains details about his medical condition.
90. The plaintiff was represented in this proceeding, which was opened after the plaintiff had already filed requests for gag orders in the past, and despite the aforesaid, he did not request that the case be conducted behind closed doors, until after the judgment was published on the "Trialworm" website. For this reason, the plaintiff's full name was published in the "Factors" folder on the Net HaMishpat website.
91. Since the plaintiff's full name was mentioned in the Parties folder, the case was linked to the plaintiff's other files on the "Trialworm" website, and the proceeding number was published on a page titled with the plaintiff's name as a litigant. On this page a link to the judgment appears, and by clicking on it, the judgment is presented in its written and worded form, i.e., when the plaintiff's name is mentioned in initials only.  According to the plaintiff, linking the judgment to the page bearing his name negates the court's decision to publish the judgment while omitting identifying details.  The plaintiff does not claim that a decision was made by the court regarding the confidentiality of his name.
92. In addition, the defendant published the affidavit given by the plaintiff in a proceeding initiated by another person, with his signature and his ID number written on it. This affidavit did not reach the defendant through the Net-Mishpat website, but rather after she was a party in the proceeding in which it was filed.  In these circumstances, the plaintiff has no cause of action against the court administration for this publication.
93. To summarize this point, the defendants published proceedings in which the plaintiff took part, and in some cases the publication included his ID number. In two documents that were published, the plaintiff's signature was displayed, and one publication included medical information about him.  In these publications, and in particular the publication of the judgment in the appeal against the Attorney General's Office, the defendants violated the plaintiff's privacy.

Publications are permitted publications

94. As detailed in detail above, despite the importance of the right to privacy, not every violation of privacy establishes the victim a right to sue.
95. The plaintiff's privacy was violated due to the fact that the defendants published the affidavit and the judgments in their written and worded manner. These publications are nothing more than "a correct and fair account of what was said or happened in the framework of a judicial hearing or decision", and the plaintiff does not claim otherwise.  Since the defendants published the affidavit and the judgments as they were written, as a report of what was written therein, these publications are not prohibited, even if they constitute defamation or invasion of privacy.  Therefore, the defendants' publications do not establish a right of action by virtue of the Prohibition of Defamation Law or the Protection of Privacy Law, even though they violate the plaintiff's privacy.
96. It should be emphasized that since the publication of a correct and fair report of what was done in the framework of a legal proceeding and of the results of the proceeding is not prohibited under the Protection of Privacy Law, it does not matter whether the defendants acted in good faith, with the intention of harming, or with indifference to the harm that may be caused. In the balance established in the Protection of Privacy Law between the right to privacy and the publicity of the hearing, priority was given to the publicity of the hearing in all the proceedings conducted by the plaintiff in the labor courts, even where these proceedings were appeals against decisions and medical committees of the National Insurance Institute.
97. I will admit and not be ashamed that it is not clear why the legislature made a distinction between the publication of the name of a plaintiff in a personal injury claim and the publication of the name of an appellant in an appeal against the determination of a medical committee at the National Insurance Institute. However, since the prohibition on publishing the name of a plaintiff for bodily injury was established in the Courts Law, and no similar provision was established in the Labor Court Law, 5729-1969, and since it was determined in the ruling of the National Labor Court that the appellants' right to privacy was withdrawn from the publicity of the hearing of the proceedings before the National Insurance Institute, the defendants were entitled to publish the judgments given in the proceedings conducted by the plaintiff.  and they should not be held liable for the violation of his privacy resulting from these publications.

No negligence in advertising

98. The plaintiff claims that the defendants were negligent in publishing the judgments that were given in his matters. The plaintiff's arguments in this context are based on a number of layers.  First, the plaintiff claims that the court administration is silenced from claiming that it was not negligent, both because it admitted that the publication of the conciliation arrangements was due to a malfunction, and in light of the claims and findings from another proceeding conducted between the defendant and it (Administrative Petition (J.M.) 16697-09-19 Guy Sommer v.  Sharon Saban Safrai (August 10, 2020) (hereinafter and for the sake of short: the "Administrative Petition")).
99. Second, and on the merits of the matter, the plaintiff argues that the management of the Net-Mishpat website in a manner that allows for a cross-reference between a confidential case and a case that is not such is negligence. This argument is based both on examples brought by the defendant in the main arguments he submitted in the framework of the administrative petition, and on what happened in his own case, in the publication of the judgment in the disability claim on the page bearing his name.
100. In addition, on the merits of the matter, the plaintiff claims that defendants 1 and 2 were negligent in managing the "Worm of Justice" website, because they anticipated and could have expected that the publication and accessibility of all the information from the Net-HaMishpat website would violate his privacy.
101. The defendants disagree with the two-tiered claim, arguing both the lack of judicial estoppel and the absence of negligence on its merits.
102. We will discuss these arguments below, beginning with the claim of confession and estoppel, and concluding with the arguments on the merits of the tort of negligence.

Admission of negligence

103. As stated above, the plaintiff contacted the courts administration (on December 1, 2020, December 6, 2020, and March 4, 2021) with a complaint that a conciliation agreement he signed was published on the "Judgment Worm" website. In response, Attorney Yasmin Gendelman of the Legal Bureau of the Courts Administration replied that there was indeed no reason to publish the settlement (her letter was quoted above).  Gendelman's written response in real time indicates that following the plaintiff's request, the document became unavailable for viewing on the Judiciary website.
104. It is not clear from Adv. Gendelman's answer why she believed that the conciliation arrangement "should not have been published on the Judiciary's website", as she put it, in light of the position of the court administration regarding the importance of the principle of publicity of the hearing, from which its duty to publish the judgments and decisions that were given, and in view of the legislature's position regarding the lack of privilege over mediation arrangements, as detailed above. It is possible that Adv. Gendelman's intention in her letter was to say that only following the plaintiff's request did it become clear that the settlement included his ID number.  Gendelman did not interpret this point in the affidavit and was not asked about it in the cross-examination.
105. According to the plaintiff, Adv. Gendelman's statement that "the document that is the subject of your application should not have been published on the Judiciary website" is an admission of negligence on the part of the court administration. And it is not.
106. Negligence is an action that deviates from the standard of care, i.e., the manner in which a reasonable person behaves in those circumstances (see, for example, Civil Appeal 919/21 Tomer Afriat v. Zera'im Gedera in Tax Appeal (April 14, 2024)).  An admission of negligence is an admission not only that an event occurred that should not have occurred, but also that the event occurred due to an action that was carried out in violation of the standard of care.
107. In view of the ambiguity of Adv. Gendelman's letter, it is difficult to see it as an admission of negligence, because it is not clear from it that the publication of the conciliation arrangements was contrary to the rules that were in force at the time, i.e., that a reasonable and prudent person would have refrained from publishing them.

The litigation between the defendant and the court administration as a blockbuster

108. The plaintiff relied extensively on the previous litigation between defendant 2 and the court administration, in the administrative petition filed by the defendant against the court administration, and devoted considerable efforts to obtain from the defendants all the documents that were part of this litigation. According to the plaintiff, the arguments of the parties and the court's decision in the framework of this litigation prove the negligence of the defendants, and in any event, silence them from arguing otherwise.  In order to examine the argument, we will first briefly review the nature of the proceeding and its determinations according to the judgment.
109. The dispute between the defendants was described at length and decided in the judgment given in a petition filed by the defendant against the administration of the courts under the Freedom of Information Law, 5758-1998. As part of the petition, the defendant "requested information regarding confidential files in the Net HaMishpat system.  These were defined by him as files that a regular user does not have permission to review through the system (the confidential files).  The petitioner requested the following information in relation to all the confidential files in the court of law: the file number; the type of case (e.g., Tel Aviv, family file, etc.), type of matter (according to the subcategory in the legal net, for example: financial claim, claim for alimony and accommodation, sexual harassment, etc.); opening date; Closing Date; Condition; the amount of the claim (where applicable); Result; Cause of Effect; Court; and a judge" (this quote and the rest of the quotes in this section are from the judgment given in the administrative petition).
110. The judgment in the petition indicates that the court administration agreed to provide the defendant with many details that were requested by him, but "insisted on its refusal to provide the details of the file number in relation to each of the confidential files." The Courts Administration explained its refusal by saying that the disclosure of the case numbers could lead to the disclosure of information that is prohibited by law due to one of two scenarios: "one, in which a gag order was issued regarding the very existence of the proceeding and the disclosure of all the confidential file numbers would lead to the disclosure of information that should not be disclosed; The second, in which a decision or details from a confidential file have been published in the past, whether prior to the classification of the file as confidential or inadvertently, and the disclosure of the file number will allow easy tracing of such confidential content and will lead to further discovery and a violation of the gag of publication."
111. In the ruling, the court accepted the position of the court administration and ruled that the information regarding the confidential file numbers should not be provided to the defendant, since by means of this information he may easily locate information that is prohibited from publication from those files by cross-checking the procedure number with material that was not prohibited from publication, such as decisions that were given before a gag order was issued, or decisions that were published despite the gag order due to a malfunction.
112. The court there quoted from the defendant's arguments "that the respondent herself often publishes decisions that include details that were not permitted to be published. The petitioner referred to various examples in this context.  According to him, the respondent acted negligently and with contempt in a manner that leads to the disclosure of the identity of the parties in confidential proceedings, while he actually acted to warn it of this.  The petitioner did not dispute that there is a basis for a scenario whereby the provision of the confidential proceedings numbers will enable the detection and disclosure of prohibited information in a publication that was published in the past prior to the change in the classification of the case or due to an error (for example, paragraph 9 of the main arguments on his behalf)."
113. At the end of the day, the defendant's petition was rejected.
114. As stated, the plaintiff sought to build on the judgment in the administrative petition, both in order to prove the very practice of cross-checking information used by the defendants, to which the court administration was aware, and in order to prove their intention to harm. According to him, the information published about him on the "Trialworm" website, especially with regard to the recent judgment, was obtained by means of a cross-examination between open and confidential data, since his name was not mentioned in the judgment, whereas on the website, the judgment is on a page bearing his name.  In any event, the plaintiff argues that as part of their arguments, all the defendants admit that there is a possibility of revealing the identity of the parties to confidential proceedings, and therefore they are silenced from arguing otherwise.
115. The defendants do not retract their argument that there may be situations in which details from confidential files are disclosed, due to the publication of information received before they became confidential. The defendants also do not retract their argument that there may be mistakes in classifying files as non-classified where they should have been classified as classified.
116. Since the defendants do not deny the representations they made in the framework of the petition in the Safrai case, there is no need to address the claim of estoppel in this context.
117. According to the defendants and the court administration, there is no relevance to the ruling in the administrative petition, or facts that the plaintiff wishes to learn from it, because these facts do not indicate negligence on their part, as will be clarified below.

The Negligence of the Defendants

118. As is well known, liability for negligence will arise where there is a duty of care, the duty was breached, and the breach caused damage (Civil Appeal 4486/11 Anonymous v. Clalit Health Services, 66(2) 682 (2013), hereinafter and for the sake of brevity: "CA 4486/11").
119. As stated in detail above, there are different approaches in court rulings regarding the relationship between the particular tort set forth in the Protection of Privacy Law and the tort of negligence, and opinions have been heard here and there on this matter. In my humble opinion, Section 4 of the Protection of Privacy Law instructs us to apply the rules set forth regarding the tort of negligence, subject to the principles set forth in the Protection of Privacy Law:

"Infringement of privacy is a civil tort, and the provisions of the Torts Ordinance [New Version] will apply to it subject to the provisions of this Law."