Civil Case (Jerusalem) 56708-12-22 Erez Aumann v. Octopus – Public Information for All (NPO) - part 23

This subordination of the Torts Ordinance to the provisions of the Protection of Privacy Law instructs us to apply the balances set forth therein, when we come to discuss the tort of negligence in which the alleged damage is an infringement of privacy.  These balances recognize the importance of the right to privacy and determine that the violation thereof is compensable damage, but deny the right to compensation in cases of correct and fair reporting of legal proceedings, in light of the principle of the publicity of the hearing.

120. Therefore, when we come to determine the scope of the duty of care imposed on a person who has published a correct and fair report about a legal proceeding and its results, we must take into account the law's determination that such publication is not prohibited, even if it involves an invasion of privacy, and reduce the duty of care accordingly. Therefore, I am of the opinion that while as a rule, the existence of expectations of damage may establish a duty of care (as detailed in the judgment in Other Municipality Applications 4486/11), when it comes to the publication of information from a legal proceeding, the existence of expectations is not sufficient.  When it comes to the publication of information as part of a legal proceeding, the duty of care will arise only when a reasonable person should have and could have expected that the publication was made unlawfully.
121. If you do not say yes, any publication of a party's name will be negligent publication, since it can be expected that it will cause damage to the litigant's privacy, even when the publication does not harm the good name of the litigant. For example, a reasonable person can and should expect that the publication of information that a certain person has purchased an apartment that has moisture defects will cause him damage.  And all the more so when the publication involves a more serious injury to the litigant, such as the publication of the fact that an indictment has been filed against him, even before a conviction, when the defendant has a presumption of innocence.  If the very expectation of damage establishes a duty of care, any publication is negligent.  Such a determination is contrary to precedent regarding gag orders, and will violate the principle of the publicity of the hearing, which is also a fundamental principle in our legal system.
122. Moreover, the adoption of the model proposed in the Moving the Place of Hearing of Other Municipality Applications 4486/11 will lead to the fact that even before the question of the duty of care is examined, the question of negligence will be examined, i.e., whether, in publishing details of information in a proceeding that was not defined as confidential, the advertiser did something that a reasonable person would not have done in the circumstances of the case. And I think the answer to that is no.
123. If this is not enough, as stated, contrary to a claim by virtue of the Protection of Privacy Law, the plaintiff by virtue of the tort of negligence must honor and prove damage, and he cannot be repaid without this proof.
124. The combination of these three requirements sets a high bar for those who wish to sue for compensation for negligence in the publication of decisions and judgments.
125. According to the plaintiff, the management of the Net-Mishpat website in a way that allows for a cross-reference between a confidential file and a non-such case is negligence. Defendants 1 and 2 respond that the plaintiff's name reached them without any cross-reference between the case number and a decision that was published before the file was defined as "confidential", because all the publications were made before the files were defined as confidential, without any cross-reference.
126. Admittedly, in one case (the appeal against V.R.), the plaintiff's name was deleted from the judgment, and despite the deletion, a link was made between the judgment in which the plaintiff's name was hidden and the web page that bears his name. However, this case was also not conducted as confidential, and no decision was made prohibiting the publication of the plaintiff's name until after the judgment was published.  To be precise, the concealment of the name in the judgment is not equivalent to a judicial determination that the case will be managed behind closed doors, or the issuance of a gag order in his name.  In the absence of such a judicial determination, the classification of the case remains as it was.
127. In the absence of an explicit judicial determination by the court regarding the confidentiality of the proceeding and the degree of confidentiality, the court administration implemented the ruling of the National Labor Court, which determined that, as a rule, the names of the appellants against the decisions of the medical committees should be published, and the proceeding should be classified as a procedure that is permitted to be published. According to this ruling, an appellant who believes that there is a special reason to protect his name must apply to the court with a reasoned request.  However, the plaintiff did not do so until after publication.
128. Admittedly, it may have been appropriate for the court not to suffice with removing the plaintiff's name from the judgment, and to explicitly order on its own initiative a prohibition on the publication of his details. However, for a fault such as this (insofar as it is a malfunction) there is immunity by virtue of s.  8 of the Torts Ordinance (see also Civil Case (Shalom Tel Aviv) 7945-09-19 Anonymous v.  State of Israel - Administration of Courts (March 14, 2022), quoted above).
129. In summary, all of the proceedings conducted by the plaintiff were not conducted behind closed doors, and no gag orders were issued in respect of them, until after the documents that are the subject of the proceeding were published on the websites "Net HaMishpat" and "Worm of Justice". The plaintiff confirmed in his testimony that as soon as the gag orders were issued, the defendants removed the publications (pp.  30-31 of the transcript).  Therefore, even if I were of the opinion that the Torts Ordinance establishes a cause of action for negligent violation of privacy, I am of the opinion that in view of the importance of the publicity of the hearing, the defendants acted as a reasonable person would have done in publishing the judgments and decisions, and did not breach the duty of care when they published publications whose publication was not prohibited, even if it could have been expected that the publication would cause damage to the plaintiff.
130. I will add that it is not clear why the computer system managed by the Courts Administration adds by default the ID numbers of the parties on the protocols that are created within it, in a way that may cause malfunctions such as this, and the publication of the identity card numbers of the parties, where this is not required. It may be advisable to consider reversing the default, so that protocols are opened without specifying the ID number, and if necessary, the court will order their addition.

Misdeeds

131. Although it would have been possible to conclude the judgment here, the parties further argued additional arguments to which I would like to dedicate a few words.
132. Consent

Defendants 1 and 2 argued that the publication did not constitute an invasion of privacy if the victim consented to it.  According to them, tacit consent to publication can be deduced from the very conduct of proceedings in the courts with open doors.  The claim should be rejected.  With regard to at least two publications, it could be seen that even the Tribunal itself was not aware that the judgments given by it were liable to reveal identifying details of the plaintiff (see the reasoning for the gag order in the labor dispute 7238-05-17, as quoted above, as well as the removal of the plaintiff's name from the judgment in the appeal against V.R., without an explicit decision prohibiting the publication of his name).  The court administration also assumed that the conciliation arrangements would not be published (see Adv. Goldman's letter quoted above).  In this state of affairs, it is difficult to assume that the plaintiff was aware of the fact that the conduct of the proceeding would lead to the publication of the judgments, including his full name, his ID number, such as his signature, and details from his medical file.  In the absence of awareness of this option, consent to the publication cannot be inferred.

133. Immunity

The court administration argued for judicial immunity in publishing the judgments.  As stated above, in managing all the cases that are the subject of the proceeding as non-confidential cases, the court administration applied the rule established by the National Labor Court.  Therefore, if this had established a cause of action, there would have been room to establish judicial immunity in respect of it, as claimed by the court administration.

134. Similarly, even if it can be said that there was a mistake in adding the ID number to the conciliation arrangements that were given effect by judgment inM. 9713-10-16 and in labor dispute 6613-10-18, or in the judgments in labor dispute 7238-05-17 and in labor dispute 56316-07-17, the wording of judgments is covered under the same immunity.  The publication of medical information about the plaintiff without issuing a gag order, while omitting his name from the judgment, is also a judicial action, and therefore immunity is established.
135. Personal Liability for the Defendant

According to the plaintiff, defendant 2 should be held personally responsible for the defendant's conduct that he was a manager.  Since I have determined that the plaintiff has no cause of action against the defendants, the question of the defendant's personal liability is in any case superfluous.  However, and more than necessary, I will note that personal liability for an organ in a company will be imposed only for its own actions within the framework of that company (Civil Appeal 8553/19 Alexander Oren in Tax Appeal v.  Yehudit Cohen (November 17, 2020)).  In the present case, the evidence shows that all the publications were carried out following the automatic mining of data from the Net-HaMishpat website, using software operated by the defendant.  It was not proven what the defendant's personal role was in this, and what acts he personally committed.

136. Therefore, even if I were of the opinion that liability should be imposed on the defendant, there is no reason to impose personal liability on the defendant.
137. Good faith

As stated above, I am of the opinion that the publications are permissible even if the defendants acted in bad faith.  However, since the plaintiff argued extensively about the defendants' lack of good faith, I would like to devote a few words to this issue.

138. The plaintiff learns the defendants' lack of good faith from their awareness of the possibility of violating his privacy, and their refusal to remove the publications until a gag order is issued to them. The defendants admit that they are aware of the fact that the plaintiff, like many other parties, believes that the publication of the proceedings in which he is involved harms him.  However, according to them, the mere existence of a violation of privacy cannot be a reason for harming the publicity of the hearing.
139. As stated, I believe that the defendants are right. However, even if the defendants erred in their interpretation of the legal situation, I am of the opinion that the mistake is a mistake in good faith, and that there was no deliberate action here to harm the plaintiff personally.

Prohibition of Publication of the Claim Before Me

140. At the beginning of the proceeding, the plaintiff requested that a gag order be imposed on any identifying information, claiming that details about his health condition would be disclosed as part of the proceeding. In a decision of January 8, 2023 (which was given ex parte), I ruled that "at this stage, and until another decision, and unless there is a reasoned objection, a gag order is hereby issued in the name of the plaintiff and any other identifying details thereof."
141. On February 9, 2024, defendants 1 and 2 sought to cancel the decision, and on September 18, 2024, at the end of the pre-trial session, a reasoned decision was given according to which "at this stage, and before it was decided that the publications were permitted, there is no reason to allow them to resonate in the framework of the publication of the proceeding before me. At the same time, if the lawsuit is dismissed, and it is determined that the publications are indeed permitted, the plaintiff's request to prohibit the publication of his details will be reexamined."
142. Today, in light of my determination above that the publication of the judgments as done by the defendants is a permissible publication under the Prohibition of Defamation Law, the time has come to re-examine the plaintiff's request to prohibit the publication of his name.
143. As stated above, the court's considerations in an application for a gag order are different from its considerations in the framework of a monetary claim for invasion of privacy. In the framework of these considerations, I must examine whether the publication of the plaintiff's name in the framework of the proceeding before me will lead to a serious violation of his privacy that may justify the violation of the publicity of the hearing.
144. As I have stated at length above, the plaintiff's privacy is violated by the publication of three data: his ID number, such as his signature, and data from his medical file. However, the severity of the injury varies depending on the type.  Thus, the harm to publication such as the signature, where it changes from time to time, is not similar to the publication of medical information.  As stated above, I am of the opinion that only the publication of medical information constitutes a serious violation of privacy, which may justify a gag order.
145. However, the judgment deliberately does not contain any data regarding his health condition, and it does not detail the number of the procedure in the appeal against the medical committee's decision, which will make it possible by searching for the procedure number to discover details that were published in the judgment there regarding his health condition. In this state of affairs, I do not believe that there is any reason to prohibit the publication of the judgment.
146. This is different with regard to the publication of documents from the file, from which medical information can be disclosed, or the number of the procedure by which medical information can be extracted. In view of the serious harm caused by the publication of medical information, I prohibit the publication of documents from the file from which this information can be learned.

Conclusion

147. The defendants published a number of judgments and decisions based on claims and appeals conducted by the plaintiff in the Labor Court. All proceedings were conducted in open doors, and in none of them was a gag order issued before the information about him was published.  Only after the publication did the plaintiff apply for gag orders.  All of his requests were granted, and the courts ordered not to publish identifying details about him.  Immediately after the gag orders were issued, the publication was removed from the defendants' websites.
148. In some of the judgments, the plaintiff's ID number was recorded, and by publishing them, the defendants violated his privacy. One judgment given in the plaintiff's appeal against the decision of a medical committee of the National Insurance Institute included information about his health condition.  In the title of this judgment, the plaintiff's name appeared only in initials.  The publication of this judgment, linked to a page detailing the plaintiff's name and all the legal proceedings to which he was a party, significantly violated his privacy.
149. However, all the publications published by the defendants are a correct and fair report of what happened in the proceedings before the court, and therefore they are protected by law, and do not establish a cause of action for the plaintiff. Therefore, I dismiss the claim.
150. At the beginning of the proceeding, the plaintiff sought to conduct the lawsuit behind closed doors, for fear that in the course of his conduct he would expose details that would violate his privacy. Indeed, in the course of the proceeding, documents were exposed that violated his privacy, the main of which were documents from the proceeding referred to above as "Appeal against the Attorney General", in which the judgment contains details from the plaintiff's medical file.  However, this judgment did not cite quotes from the proceeding or the judgment, and the number of the proceeding was not mentioned, in a way that would make it possible to locate it in case law databases.  Therefore, the publication of the judgment does not constitute an infringement of privacy, and therefore I limit the gag order to apply only to the aforementioned proceeding number.
151. Despite the result I have reached, I do not make an order for costs. Just as the defendants believed and believe in good faith in the importance of the principle of the publicity of the hearing, and in their right (and perhaps also their duty) to publish information from legal proceedings, so too the plaintiff believed and believes in good faith in the importance of the right to privacy, and in the importance of the struggle to protect it.
152. In these circumstances, and taking into account that defendants 1 and 2 are represented by the Clinic for the Prevention of Estoppel Claims, and that the State did not incur any actual legal expenses, I was of the opinion that there was no reason to charge the plaintiff with legal expenses.

Given today, 21 Iyar 5786, 08 May 2026, in the absence of the parties.