"In our law, the doctrine of imposing liability by virtue of a 'constitutional tort' was not absorbed. This doctrine means nothing but recognition - which does not reflect the position of Israeli law - of the direct application of commands from constitutional law in tort law. Instead, it is appropriate to look for the points of interface between the constitutional principles, their spirit and the tools that have been developed for their defense in public law, and those injustices or defenses in private law" (Civil Case (Shalom Tel Aviv-Jaffa) 18810-06-19 Anonymous (Minor) v. State of Israel - Ministry of Education, at paragraph 24 of my judgment (published in the databases, May 30, 2024. emphasis - in the original)).
- True, the definition of a right and the determination of the degree to which it is protected are two different "entities." They are not always meant to go together. The purpose of the distinction between them is to prevent the premature narrowing of the steps of the constitutional right, even in circumstances in which it is not right to do so. Scope - It is desirable, in principle, that it be broad enough so that it does not miss any of the aspects of the right. The protection of any of these aspects is already an individual matter (High Court of Justice 1435/03 Anonymous v. The Disciplinary Court of State Employees in Haifa, IsrSC 58(1) 529, 538 (Mr. President Aaron Lightning) (2003)). A well-known example: speech, which calls for the killing of a person, is one of the types of expressions included in the constitutional right to freedom of expression. It is true that, individually, this expression may be deprived of protection when it incites to murder; But in other circumstances, such as when the call is to allow for the avoidance of prolonged treatment against the patient's wishes, we may want to allow this expression to be protected by the law. If we had determined that a call for injury to life in advance is not part of freedom of expression, we would deny, a priori, any constitutional restriction on the prohibition of such expression; They harm the constitutional status of the right to freedom of expression and detract from the idea of the supremacy of human rights in general. In any case, we would close the door to the expression as well, when the circumstances may support its utterance. The idea is therefore to enable broad recognition of the scope of the right; and regulate its protection in individual cases, according to their circumstances.
- The additional advantages of this method are that it improves the way of analyzing the legal issue in such a way that each aspect of this issue is discussed in its appropriate "geometric location", i.e., in the normative environment and in the examination stage, in which its specific weight is optimally expressed (see and compare toHigh Court of Justice 466/07 Gal-On v. Attorney General, IsrSC 65(2) 1, 72 (The Honorable Judge Edmond A. Levy) (2012)).
- The Protection of Privacy Law
- One of the most prominent pieces of legislation from the level below the constitution is the Protection of Privacy Law. It is also one of the two focal points of our engagement with this affair, alongside the Prohibition of Defamation Law. The law makes it possible, in the appropriate circumstances, to impose liability in tort on a person who is found to violate those aspects of the right to privacy that this law examines. In other circumstances, the application of the provisions of the law may actually exempt from such liability.
Sensitivity to circumstances is essential. A range of situations characterizes the essence of an action that violates privacy; for example, the content of information that is sought to be discovered in connection with a violation of this important right. In the process of examining the circumstances, we must ask ourselves a number of questions. Of particular importance is the purpose of the violation of the right to privacy and its learning - two basic components of law in general and in legal interpretation in particular. We must ask: Is the violation of privacy intended to serve, and actually serve, a sufficiently important personal or public interest that justifies an infringement of the right to privacy? Does the realization of this interest justify the manner and depth of the injury in such a way that it should be seen as intended for a proper purpose? Was it possible to achieve the same goal with a lighter hit? Is the result of a decision in a particular competition liable to harm in broader aspects, which make the whole matter more harmful than beneficial?
- The answer to these questions will be found in the application of standards, namely judicial interpretation. The relationship between disclosure and privacy may be derived, for example, The question of distance between the disclosed information and the core of the right to privacy. The closer this information is to the nucleus, the more clearly it will have the rationale for protecting privacy. In contrast, In relation to the information from the "external circuits" of the system and its disclosure may result, at most, "a slight injury to the margins of the right to privacy" (Appeal Petition/Administrative Claim 7678/16 Drucker v. Commissioner of Implementation Freedom of Information Law In the Prime Minister's Office, in paragraph 21 of the judgment of the Judge Mazuz (Published on the Judiciary website, August 7, 2017)) - Made of the weight of the right Constitutional, in the particular competition, To be lower. In another example, it was suggested in case law to see an action that entails a violation of the constitutional right - One that does not serve an appropriate purpose if this action implies a complete lack of sensitivity to the idea of the protection of individual rights (Civil Appeal 6821/93 United Mizrahi Bank in Tax Appeal v. Migdal Kfar Cooperative, IsrSC 49(4) 221, 434 (President Barak(1995)) and perhaps even sensitivity to the particular right that was violated (High Court of Justice 466/07 MK Gal-On Ibid., at p. 75 (Justice Levy)).
- True, the balancing act in the Protection of Privacy Law does not dictate a single outcome, which is appropriate for each and every case. The balance is circumstantial. He is influenced by the values and interests that find themselves competing with each other in every parasha according to its details. The law, as befits the norm from the sub-constitutional level, requires flexibility, which allows each case to "tailor" the correct legal outcome according to its circumstances. This flexibility is achieved, in particular, through the use of concepts that he called at the time Justice Barak: "Valve Concepts" (Civil Appeal 294/91 Chevrat Kadisha Gehasha "Jerusalem Community" Kestenbaum v., P.D. 46(2) 464, 534 (1992)). "Reasonableness, fairness, proper behavior, public policy, and the like are valve concepts of private law", he explained, "are nothing but devices Expressing the constitutional balance between human rights" (High Court of Justice 2481/93 Dayan v. Commissioner Wilk, IsrSC 48(2) 456, 485 (Vice President Barak) (1994)).
These are terms, the fulfillment of which is context-dependent and deliberately requires a judicial interpretation that will allow them to be applied according to the specific characteristics of each case. The interpretation of these terms locates, individually, the point of balance that corresponds to the circumstances of the case. "It is not for nothing that the legislature chose a vague expression, which has no form and no measure. The phrase was born vague in order to remain obscure. It belongs to a family of vague expressions, such as justice, morality, public policy, reasonableness, discipline, disgrace, and more. The ambiguity of these expressions is the taste of their lives. They are supposed to hover, undefined, above the rules. It is forbidden to clip their wings and imprison them in a cage of a strict rule" - the words of the Honorable Justice Yitzhak Zamir in Criminal Appeal 7826/96 Reich v. State of Israel, IsrSC 51(1) 481, 496 (1997).
- This ambiguity calls, in part and again, the work of judicial interpretation. It has characteristics that are inherent in it by its very nature. The judge was called, in particular, to trace the purpose of the piece of legislation. The answer to the question of what the law seeks to achieve, at a time when its interpretation is needed, is what illuminates the court's path. Among other things, the purpose is determined against the background of the normative status of the competing values. At the same time, the interpretation rests on two of the great masters of the law, which I have already mentioned: the ideas of proper purpose and of proper measure. These are two of the most important tools in determining the appropriate point of balance in each and every parasha.
- The concept of the valve requires that the view be extended beyond the individual matter of the parties to the dispute. They call for the consideration of additional considerations, especially those that take into account important social-public interests. Indeed, "The Reference [Vague Concepts] It does not limit judicial discretion but to justice between the parties. This is not the only consideration that must be taken into account. Benchmark Content Casting [Vague], the court must realize the purpose of the law. The first purpose is the public interest [in the realization of] the proper social policy. The second purpose is the interest of the parties." (High Court of Justice 6231/92 Zagori v. National Labor Court, P.D. Met(4) 749, 782 (1995)).
The Privacy Protection Law is replete with such vague concepts. These include, inter alia, "consent", which denies invasion of privacy ( sections 1 and 3 of the law); "Harassment", within the meaning of section 2(1) of the Law; "private matters", which may not be harmed under section 2(9) of the Law; "Good faith", "moral duty", and "a valid matter" (section 18(2) of the Law) and "a public matter, which justifies the injury" (section 18(3)). Expressions, which require interpretation, cross the length and breadth of the law. They are the domain of the various chapters therein - starting with this, which establishes the foundations of the tort of invasion of privacy; through the chapter of defenses in the law and ending with the requirement of the existence of damage as a condition for imposing liability.