For each of these chapters, I will now expound. I will begin with an analysis of the foundations of the tort and the question of their existence in the case before us.
- The "Physical" Element in the Tort
- The second section The Protection of Privacy Law lists various actions, some of which - An invasion of a person's privacy will be considered. The plaintiffs argued, in particular, that the defendant's publications amount to the ninth alternative in the provision of the law, which is as follows:
| "2. What is an invasion of privacy? | Invasion of privacy is one of the following: | |
| (1)-(8) | ... | |
| (9) | Using information about a person's private affairs or giving it to another, other than for the purpose for which it was communicated; | |
| (10)-(11) | ...". | |
"Private Matters"
- Deciding whether liability should be imposed for the tort of invasion of privacy goes through several stages that are outlined for us, in order, by the Protection of Privacy Law. Each of these stages raises other questions that, although at the end they must be answered integratively, seek an individual answer. First, we will ask: Is a person's mobile phone number one of his "private affairs"? Rulings frequently refer to Supreme Court rulings Other Municipality Requests 439/88 Registrar of Databases v. Ventura, Piskei Din 48(3) 808 (1994). In the same case, he took The Honorable Judge Gabriel Bach An expansive approach, enumerating many details of a person with his private interests. In particular, he wrote:
"The natural and ordinary meaning of the words 'private matters' of a person is any information relating to the private life of that person, including his name, address, telephone number, place of work, identity of his friends, relations with his wife and other members of his family, etc. A person's address and telephone number are included, in my opinion, among his private affairs" (ibid., at p. 821).
The Honorable Justice Tova Strasberg-Cohen, whose position is often presented in this judgment - contradictory, did not rule out the matter in principle. According to its approach, which was accepted in the later case law and see, in particular, Civil Appeal Authority 6902/06 Tzadik v. Haaretz Newspaper Publishing Ltd., IsrSC 66(1) 52, 59 (the Honorable Vice-President Eliezer Rivlin) (2008); Appeal Petition/Administrative Claim 9341/05 The Movement for Freedom of Information v. The Government Companies Authority, at paragraph 23 (published on the Judiciary website, May 19, 2009), it is not necessary to predetermine in advance the question of what is a "private matter". The response is derived from the specific circumstances of the case, and in particular from the context in which the information item was used; The relation of this item to other personal information, and the content of the information disclosed. "I am of the opinion," Justice Strasberg-Cohen ruled, "that we will serve the purpose of the law if we focus our analysis on the specific facts of the case under discussion and on the proper interpretation in that context. It is possible that each and every detail in itself will not constitute a person's 'private interest,' whereas the combination of a number of details with the information obtained from them will constitute such a matter" (Civil Appeal 439/88 Ventura, supra, at p. 835).
- In my understanding, these approaches do not contradict each other, but it is important to be precise. I have already written that the law of human rights has taught us the importance of separating between the very recognition of a fundamental right of man and the degree to which it is protected. As stated, the scope of the right is determined by the constitutional norm of the Basic Law. The Protection of Privacy Law, which is below the Constitution, does not play a role in defining the right to privacy. We have answered only the question of the protection of the right in those aspects, which it covers and is listed in the second section thereof. The law will not be able to limit the scope of the right to privacy, even in cases that do not fall within the scope of the alternatives in the section. Due to the centrality of the Protection of Privacy Law in legislation, which protects this right of the individual, we must strive to have as many aspects of the right to privacy as possible sheltered under its roof. This is in order to prevent a situation in which aspects of the right to privacy are left unaddressed in private law and therefore also without the possibility of protection.
On the question of whether information about a person should be regarded as part of his "private affairs", it is therefore preferable, in my opinion, to adopt a broad principled approach, which will place in the privacy basket any information that is not visible, on the face of it, to the public. It would therefore be correct to determine that a person's personal telephone number - and even more so the number of a mobile phone linked to a device that holds, nowadays, much of a person's world - is part of his private affairs. This is due to the fact that it is not visible, on its face and in essence, to the general public, and this or that act of "disclosure" is required in order to do so. On the other hand, the question of whether this information should be granted the protection of the right to privacy will be answered according to the specific circumstances in which it arises.