This determination seems difficult to me. From a theoretical point of view, the assertion that a public figure is not entitled, a priori, to enjoy privacy in a long list of areas threatens to lead us to the realm of defining the scope of his right to privacy, as opposed to the type of protection for it. Not only can this not be done by means of a norm below the constitutional one, but it may deny the protection of privacy even when it is necessary. On the sub-constitutional level, this determination "strips" the balancing mechanism in the Protection of Privacy Law from its main virtue - sensitivity to the individual circumstances and the adaptation of the outcome to the characteristics of each case on its own merits. It replaces this mechanism with a fixed and predetermined point of balance, which denies the protection of the privacy of public figures in these matters, whatever the circumstances.
This is not what is required by the nature of the protection of human rights. This is not what is required by the application of the law, which our law has singled out for the protection of the right to privacy. It is not for nothing that the Supreme Court refused to accept such a legal position. In one of the cases, an argument was made that funding, which was given to a public figure by the state, denies him the power to claim the privacy of the purposes for which this funding was allocated. According to this argument, not only does the right of a public figure to privacy not encompass, to begin with, matters in which the public's interest in supervising its resources competes with it; However, even if we recognize such a competition, it is predestined to be decided by the duty of the public figure, regardless of the circumstances of the case. The Supreme Court rejected, as stated, this argument. Ruling: "The right to privacy does not automatically disappear whenever the object of the right is funded by the public" (Appeal Petition/Administrative Claim 1417/19 The Movement for Freedom of Information v. Prime Minister's Office, at paragraph 36 of the judgment of the Honorable Vice-President (Ret.) Hanan Melcer (published on the Judiciary website, July 11, 2021)). Instead, the court focused its analysis on the specific purposes of the funding, which were found, in the circumstances of that case, something that the public is interested in discovering (ibid., paragraph 46 of the judgment).
- Indeed, not every detail about a "public figure" - It is forbidden for the public's attention. The fact that a person is a "public figure" alone, does not deprive him of any right to privacy. It does not expropriate his right in advance to certain private matters, to which the public is not entitled to free access. There is no "The Wings [of a permit for invasion of privacy] Slices for infinity" - The beautiful tongue of Justice Rubinstein Criminal Appeal Authority 10462/03 Harar Ibid., at p. 91. Not all information about a public figure amounts to "public property" (High Court of Justice 5870/14 Calculating HPS. Business Information in a Tax Appeal v. Courts Administration, in paragraph 32 of the judgment of Justice Rubinstein (Published on the Judiciary website, November 12, 2015).
- But the opposite is also not true. This does not mean that a person being a public figure should not have any meaning whatsoever. This figure may have weight among the other relevant considerations. It has the power to influence the position of the right point of balance. "One must give," it was stated in one of the parashas, "Special Weight for Freedom of Expression [b] All that concerns public affairs and bodies and persons who hold public offices, or are in positions in which the public has an interest." (Civil Appeal 214/89 Avnery v. Shapira, IsrSC 44(3) 840, 866 (Justice Barak) (1989)).
"A publication that directly relates to the performance of the public office of an officer shall be considered a publication of great public importance, whether it is an expression of a position on the man's policy, or whether he is accused of professional negligence or corruption," it was ruled in another case (Civil Appeal Authority 3614/97 Avi Yitzhak, Adv. v. Israel News Company Ltd., IsrSC 35(1) 26, 57 (the Honorable Justice Eliezer Goldberg) (1998)). In a third case, a distinction was made between "private conversations of a [public] officer with an ordinary private person" and conversations with "an actor in the public arena, who has an affinity or influence in the public authority or in the public arena, who, due to his status or business and occupations, may be influenced by the decisions of government officials" (Appeal Petition/Administrative Claim 7678/16 Drucker, supra, at paragraph 22 of the judgment of Justice Mazuz (Published on the Judiciary website, August 7, 2017). Similarly, there is room to distinguish between "information about private conversations of an officer in a public authority" and "information about his conversations in office" (ibid., ibid.). emphases are in the original).
- To teach us that first and foremost it is necessary Rational Connection - One of the Foundations of Proportionality in Law - between the content of the disclosed information and the act of discovery, and the nature of the public action of that "public figure". Only such a connection has the power to expropriate, in appropriate circumstances, the veil of privacy. A non-closed list of indications of the existence of a rational connection enumerates, inter alia, the content of the information; the identity of the party, whose privacy is sought to be violated; the identity of the disclosure applicant; the circumstances in which the information was discovered and the circumstances in which it is sought to be disclosed.
- A second component, also of proportionality, prefers an action, which, even if it violates privacy, does so to the least possible extent (without relinquishing the purpose of the action). Thus, in particular, the question of demonstration near the homes of public figures was regulated in case law. In the matter of Dayan The majority position was that a demonstration should not be allowed near the private home of a public figure if there is an alternative means that can achieve the same goal with a lesser violation of the right to privacy, such as a demonstration near his public office, which is not at home.High Court of Justice 2481/93 supra, at pp. 482 and 488). A later "incarnation" of the issue applied this element of proportionality in the sense of recognizing the authority of the police to set conditions for such a demonstration, and their power to minimize harm to public figures without undermining the right to demonstrate.High Court of Justice 5078/20 Fadida v. Israel Police, from paragraph 21 of the judgment of The Honorable Judge Uzi Fogelman and in the second and third paragraphs of the judgment of The Honorable Judge Yael Willner (Published on the Judiciary website, August 19, 2020)).
- However, even before we are required to examine the violation of privacy according to its measure, we must ask whether a servant is a proper purpose. The purpose must be such that it fulfills a sufficiently important public interest, the promotion of which justifies the infringement of privacy in the manner and to the extent that the offensive action carries with it. Thus, while it is clear that an infringement of privacy for the purpose of ensuring freedom of expression or demonstration is, as a rule, appropriate, we will rule that if its purpose is not to exert improper pressure on a public figure - This purpose is not appropriate. Improper pressure is, in particular, that which seeks to influence a public figure to change his position or actions only in order to stop the harsh consequences of invasion of his privacy (High Court of Justice 456/73 Rabbi Kahane v. Commander of the Southern District of the Israel Police (published in the databases, December 16, 1973); High Court of Justice 1983/17 Naftali v. Attorney General, from paragraph 15 of the judgment of Judge Mazuz (Published on the Judiciary website, April 27, 2017).
In examining both the question of purpose and the issue of measure, the mind further considers significance to the position of the injured party on the spectrum of "public figures". "The strength of the interest to prohibit protest actions in front of the private home of a public figure," Justice Mazuz added , ruling, "on the grounds that this is an illegitimate pressure as aforesaid, does not carry the same weight in all cases. After all, an elected public servant is not like a public servant, and a senior public servant is not like a junior public servant..." (ibid., at para. 18. The emphasis is in the original).
- In the matter before us, even if it is found - Contrary to my assertion above - Since each of the plaintiffs has a degree of "publicity" that succeeds in bringing him into the circle of "public figures", this quality is quite small. In my opinion, none of the plaintiffs should be considered as someone who consented, even according to an objective examination, to give up his privacy in connection with the distribution of his personal telephone number and in connection with the offensive content generated by this distribution.
- Protections in the Law
- It can therefore be determined, without difficulty, that the defendant violated the legal prohibition to violate the privacy of each of the plaintiffs. Her conduct laid the foundations of the tort of invasion of privacy. Will the law seek to "bring her to account" for this, by way of finding her liable in torts? Here the question of the balance between the right to privacy and competing values, for the sake of which we will be willing to detract from its protection, resurfaces. In the special structure of our tort law, this question is dealt with, in particular, provisions established by the legislature for the protection of the offender. In the Protection of Privacy Law, the following are listed in Chapter 3 and entitled: "Defenses".
The law enumerates a series of protections which, if any of them exist, are also deprived of liability in torts from those who violated the privacy of another. The closed list of these protections is anchored in section 18 of the law. Some of the protections are "original" defenses of the law, and some of them appear in this list by way of drawing from the instructions of his "colleague", namely the Prohibition of Defamation Law. Thus, in particular, section 18(1) of the Protection of Privacy Law states that if the violation of privacy was made in publication, which is part of a proceeding in court, the important values of accessibility to the courts and the conduct of an efficient and fair proceeding will take precedence over the right to privacy. Section 18(2)(c) of the law gives priority to the personal affairs of the offender, if he acted in good faith and was forced to violate his privacy in order to protect his important personal interest. Sections 18(2)(b) and 18(3) of the law justify an infringement of privacy if its purpose is to promote important moral, social and public values.
- I have reversed these provisions and the other defences in the law, over and over again, and I have not found any of them that can stand at the defendant's right. Her publications, which violated the plaintiffs' privacy, did not constitute a proceeding before the courts. The injury was probable and easy to watch. The content of the publications, which the defendant repeatedly took lightly, - "Everyone knows that Shikma Bressler is a professor and that she doesn't sell eggs. It was all in good faith, ironically, and I deleted it for an hour or two or later" (Transcript, at p. 67, 29-32) - It was not intended to fulfill a "legal, moral or social obligation" that lay at its doorstep. The publications were not intended to "protect a personal interest" of the defendant. They were not done in the course of her professional occupation. They were not done for the purpose of condemning or denying the defamation that was directed at the defendant. The harm was done by way of false publicity - This is a matter that the law views as very negative. The publications were not even intended - This is indicated not only by the defendant's declared intention but also by their content - To express a position on the plaintiffs' public positions or on their conduct in the public sphere. They are not intended to criticize the character, actions or conduct of the plaintiffs. They were not required to clarify any truth or to clarify differences of opinion.
Indeed, the defendant violated a fundamental aspect of the right to privacy - the right of a person not to be intrued into his individual domain, and many of its aspects are currently conducted on a mobile phone. It served no practical purpose other than harassing the plaintiffs and ruining their lives. There was no rational connection between the content of the publications and the plaintiffs' actions in the public sphere. Being false and devoid of substantive content, the defendant's publications contributed nothing to the market of ideas of free discourse. They did not stir up constructive public discourse. Their power was only fueled by hatred and anger. They contributed very little, if at all, to the defendant's ability to express, as part of her personal autonomy, her positions and the values that are close to her heart. Their harm clearly outweighed their benefit, in every respect. This totality of circumstances even placed the protection of the defendant's freedom of expression at an inferior to the plaintiffs' right to privacy.
- It would therefore be correct to determine, on the basis of all that has been written above, that in the competition between the fundamental constitutional right to privacy and the interests of the defendant and the interest of the public, the defense of the former came out and its hands prevailed. In the face of the violation of privacy caused by the defendant, the prosecution did not present any counter-value - Private or Public - In the circumstances of the case, it was found important to protect it, at the expense of the right to privacy. Here is a clear example of publications, which are recognized within the scope of the right to freedom of expression but are not worthy, in the circumstances of their violation of another fundamental right, to be protected in the particular case.
- The Requirement for the Existence of Damage
- The authors of the Protection of Privacy Law saw a place in its ninth amendment (The Protection of Privacy Law (Amendment No. 9), 5767-2007, S.H. 366), to add a track of claim without the need to prove damage. Such a mechanism is not foreign to our tort legislation. Its purpose is to be lenient with plaintiffs in areas where proving and quantifying damage may be difficult, even though there is a basis for the cause of action. The path of plaintiffs in such a route can be successful if they prove that the elements of the tort were fulfilled in their case, even without the possibility of tracing the details of the damage caused to them in this tort. The weighting of considerations ("trade-off"), which accompanies this mechanism, imposes, in contrast to the procedural relief inherent in it, a limitation of the amount that can be claimed. The court has the discretion to award compensation up to the ceiling set by law and not beyond it.
- It is important to emphasize, however, that the death of plaintiffs from the need to prove damage does not take away from the tort provision one of its main pillars, and without it it will not exist: the element of damage itself. In cases where it has been proven before the court that No damage was done Rule, there will be no room for the imposition of liability in torts and in any case not for the ruling of a remedy, even if the foundations of a tort have been proven and even the claim has led itself down a path without proof of damage.
- The evidence before me leads to a clear conclusion that the defendant's publications harmed the plaintiffs. Since the injury is harassment, disturbance, waste of time and causes a bad feeling, it is very difficult to quantify. A mechanism of compensation without proof of damage is therefore very appropriate for such a case. We do not want to drop the ground under liability in torts just because the plaintiffs will have difficulty proving the extent of this damage or its exact details.
The conclusions that damage was caused and that it was due to the defendant's publications - the basis of a causal connection - complement what is required in imposing liability on the defendant for the tort of invasion of privacy.