The Right of Privacy in Israel
The right of privacy is a fundamental and constitutionally protected right in Israel.
The Law of Privacy enumerates 11 acts, which, if done without authorization of the aggrieved party, constitute an infringement of his or her right to privacy. Among these are acts of intrusion upon seclusion, including unauthorized wiretapping and photographing a person in a private setting, acts of publication, such as publication of intimate facts or facts pertaining to a person's health of financial affairs and breaches of a duty of confidence. It should be noted that wiretapping is only a wrong if done without the consent of either party to the conversation.
Infringement of the Right of Privacy is a civil wrong and, in some circumstances, where done with malice, also a criminal offense.
The most important exemption to liability is the public interest exemption. Under this rule, it is a good defense to an action for infringement of the right of privacy if the act was justified by the existence of a public interest in the act. The courts have adopted a test proposed by Z. Segal and ruled that the public has an interest in information where knowledge of such information may assist the public in forming an opinion on matters of public interest or in adopting a lifestyle.
The courts have recognized that public figures have a lesser right to privacy than private persons, both due to the legitimate public interest in their acts, and as a result of their access to the media, which allows them to respond to publications. However, there are areas of privacy, which, even in relation to public figures are "off-bounds". Israel has not adopted an actual malice standard for publications concerning public figures. The courts have recognized both public officials and famous business and media personalities as public figures.
A legitimate public interest in a matter may disappear over time. As a result, the public interest defense is time-sensitive.
Rights in Personality under Israeli Law
Section 2 (6) of the Law of Privacy prohibits the unauthorized use of a person’s name, picture or voice for profit. This section has been applied in case where use has been made of a person's name or photograph for advertising purposes without that person's consent. Following U.S. case law in the famous Jackie Onassis vs. Christian Dior case, the rule has also been applied to prohibit the use of a “look-alike” to appropriate the image of a television celebrity in a commercial.
The parameters of the term “for profit” have not yet been fully explored. Most cases present the proposition that there must be some causal connection between the use of the name, picture or voice and the profit motive. Thus, use of the photograph of a relatively anonymous postal worker's image in a publication of the postal authority was not an infringement of the said worker's rights, where the picture appeared on an inner page of the publication and no use was made of it for promotional purposes. Conversely, use of the photograph of a relatively under known girl in an advertisement for a business was ruled infringing.
A recent Supreme Court Case recognized an independent Right of Publicity, applicable mainly, but not just, to celebrities. This right is founded on principles of unjust enrichment and provides the celebrity or other plaintiff with an exclusive right to make commercial use of his name or likeness for commercial purposes. In case of infringement, the Plaintiff is entitled to recover the full value of the use. Since this right is a product of case law, it remains to be seen if it survives post-mortem.
Most courts continue to suggest that the right applies only to advertising and promotional use of a person's name, voice, picture or likeness. It is submitted, however, that the right encompasses more than merely such uses and that their could be infringement also where a person's name, image or voice has been used for entertainment purposes, if that use is not at all related to the entertainment product and serves no artistic or transformative purpose, other than to act as a commercial draw. An example of such use can be seen in the U.S. case where the rap group Outkast used the name of civil rights personality Rosa Parks as the title of one of their songs, even though the song's subject matter had nothing to do with Parks or the civil rights campaign. However, there is no doubt a broad news-worthiness and public interest exception. Therefore It would be legitimate to use a person's name even in a film or song if done so in connection with some matter of public interest or criticism or parody or if the use was otherwise transformative or has some other artistic value.
Defamation
Under the law of defamation, any publication that could ridicule or disparage a person, or harm him professionally or in the workplace is considered defamatory. Actual damage does not have to be proven. Truth on its own is not a defense, unless coupled with a public interest. Other defenses include good-faith criticism and reporting.
As aforementioned, the courts have recognized that the public has legitimate interest in the acts of public figures and they have more access to the media, which allows them to respond to publications. Therefore, public figures are more open to critical publications than private persons are. The courts have ruled that criticism of public figures may be robust or satirical in nature, in one instance even allowing a newspaper to compare the owner of a leading football team to a rat, lurking around garbage bins and to invoke metaphors referring to bodily fluids!
Defamation is a civil wrong and if published with intent to harm, also a criminal offense. The court may award up to NIS 50,000 without proof of actual damage. If the court finds that the defamation was published with intent to harm, it may award double that sum.
Under the ruling of the Israeli Supreme Court in the case of "Avneri v. Shapira", the courts must avoid, as far as possible, prior restraint of speech. As a result, temporary injunctions will rarely be awarded in defamation cases.
