"Consent"
- I will return to The first section to the Protection of Privacy Law. The additional normative determination of this section is that the prohibition under it applies only if the invasion of privacy has been committed Without his consent of the victim. "Consent denies the very infringement of privacy" (Civil Appeal 439/88 Ventura supra, at p. 824). The intention, but understandably, is not to negate the physical-factual element of the infringement itself, but to the negation, in circumstances of consent, of the normative prohibition on this infringement.
"Consent" is defined in Section 3 of the Protection of Privacy Law: "Knowingly, explicitly or implicitly." The law suffices that in the circumstances of the case it is found that the injured party has accepted the violation of his privacy or the risk of its occurrence, even if he did not do so explicitly, but only implicitly, for example, by conduct or omission. In such a case, even if privacy was violated, there is room not to determine that the normative element of the tort of invasion of privacy existed in the offender.
- I have interpreted my conclusion above, and it belongs here as well, that the plaintiffs should not be regarded as those who gave public information to their telephone numbers so that they could call them and harass them on matters such as those mentioned in the defendant's publications. There is no need to repeat things. The essence of our matter is that the publicity that was given to the telephone numbers cannot be considered, under any circumstances, an implied consent or consent to an invasion of privacy. In no way do I see any of the plaintiffs before me who consented, even implicitly, to the use of his personal telephone number for the aforementioned purposes, i.e., for the invasion of privacy.
The implicit consent of a "public figure"
- Rather, the defense further argued that the very fact that each of the plaintiffs strived for public influence or, at the very least, accepted the status of someone who had a hand in public affairs; Someone who is recognized as a leader of public opinion and someone who has left behind his private life in order to focus on public goals should be seen as "consent," which drops the ground from under the prohibition on violating his privacy. Such an argument arises, more than once, both in the context of the Protection of Privacy Law and in the matter of the Prohibition of Defamation Law. It relies on the rationale that once a person has chosen to become a "public figure" and at least accepted this status, he must also bear the costs involved and give up a degree of privacy, as well as an acceptable degree of sensitivity to the good name.
- I do not accept, first of all, the factual point of departure for this argument. In my opinion, the plaintiffs are no more "public figures" than the defendant. They are not public figures in the sense that it reduces their constitutional rights or implements a different standard than a person from the community in protecting them. The plaintiffs do act, each in his own way, to influence public opinion in the public arena. However, in this matter alone, it is not enough to make them "public figures." The plaintiffs did not take upon themselves a public "mission." No one was authorized to speak on behalf of the public. None of them holds the powers granted to them by the public. None of them can oblige any member of the public to listen to what he says. Each of the plaintiffs acts as a private person, who is bothered by various aspects of the state's conduct and does not accept them. In order to express his position and to be convinced of its rightness, each of the plaintiffs takes part in the public, vibrant, multi-participant and multifaceted discourse, which revolves itself around the events of reality. In this, as stated, the plaintiffs are no different from others who take part in this discourse, including the defendant.
- However, I even assumed the opposite, namely, that the plaintiffs should be placed on the continuum of "public figures" (even if at a lower level compared to elected officials or public office), and I still believe that they should not be seen as those who agreed to give up their privacy and the claim of harming it.
"A person who becomes a 'public figure'," the Honorable Justice Bach ruled in the aforementioned Ventura case, "for example, by holding a high public office, thereby gives implicit consent to the publication of his private affairs in large areas" (Civil Appeal 439/88, supra, at p. 822). According to this approach, a person who is a public figure cannot, as a rule, claim an infringement of his privacy on a variety of issues, since he has given up his expectation of privacy in advance. In a number of areas, means, and modes of action, there is no violation of privacy, because those who choose to be a public figure have accepted, in advance, a reduction in the scope of their right to privacy.