Identification: Israel 2010

Israel Supreme Court

Important Decisions Identification: Israel – 2010 –

a) Israel / b) Supreme Court (Court of Appeal) / c) Panel / d) 25.3.2010 / e) LCA 4447/07 f) Rami Mor v. Barak E.T.C the Company for Bezeq International Services Ltd.

Keywords of the systematic thesaurus:

5.1.1.5.1 Fundamental Rights – General questions – Entitlement to rights - Private law

5.3.1 Fundamental Rights - civil and political rights - Right to dignity

5.3.13.1.2 Fundamental Rights - civil and political rights – civil proceedings

5.3.13.3 Fundamental Rights - civil and political rights – access to courts

5.3.21 Fundamental Rights - civil and political rights – freedom of expression

5.3.23 Fundamental Rights - civil and political rights – rights in respect of the audiovisual media and other means of mass communication

5.4.7 Fundamental rights - Economic, Social and Cultural rights – Consumer protection

Keywords of the alphabetical index:

Right to privacy / Freedom of expression/ Civil proceedings /

Headnotes:

The right to anonymity on the Internet is derived from two important rights - freedom of expression and privacy. It also supports the realization of those rights. Nevertheless, the right to one’s anonymity has a price. In this case, the value of anonymity is traded against the posting of defamatory publications without potential to file a lawsuit under the Prohibition of Defamation Law - 1965. Exercising the right to anonymity may provide shelter to defamatory conduct, thereby causing grave harm to one’s right to good character and reputation – a right of considerable weight to a constitutional regime respecting human dignity.

1 In this case, the appellant is seeking relief at the preliminary stage of collecting information needed to support the filing of a lawsuit. This type of request is very rare. As a rule, the court does not intervene before a lawsuit has been filed. The rarity of the request includes the attempt to compel a third party in a preliminary legal proceeding to reveal information in his or her possession. Notably, this third party is not claimed to be involved in the commission of the civil tort himself. Establishing this kind of legal framework through “judicial legislation” creates great difficulties and would, in fact, herald a dramatic revision of the Civil Procedure Regulations by adding a new chapter on “a lawsuit against a John Doe defendant”. In the event, that such a revision is needed, it must be done through a legislative act.

Summary:

Several readers' comments (“TalkBacks”) regarding the appellant – a practitioner of alternative medicine- were posted on a website. The appellant considered these comments defamatory and therefore sought to file a lawsuit against those responsible for posting them under the Prohibition of Defamation Law -1965. Since the comments were anonymous, the appellant requested that the court order the Internet Service Provider (the ISP) to disclose information that would enable him to reveal the identity of the internet users, posting the comments. This could be accomplished through the Internet Protocol address (IP address), which accompanies every comment posted by an internet user.

The appeal was denied.

The Supreme Court (by a majority of two out of a Panel of three Judges) held that in the realm of Constitutional Law – when a person seeks to maintain his right to anonymity on the internet, he enjoys two basic significant rights – the right to freedom of expression and the right to privacy. Indeed, a person’s right to express himself anonymously is an incident of freedom of expression and serves important purposes. Anonymity is, at times, a prerequisite for the potential and capacity to express oneself freely, while at other times, it is part of the message contained in the expression. Anonymity is also a part of the right to privacy – which is considered one of the most important fundamental rights. It is protected by the Protection of Privacy Law – 1981 and is considered a constitutional right by force of Basic Law: Human Dignity and Liberty. Indeed, it is not easy to establish the boundaries of the right to privacy. Yet there is no doubt that anonymity must be considered an important part of the right to privacy since it enables a person "to be left alone" and to avoid personal exposure and the disclosure of information he does not wish to disclose.

The significance of the right to anonymity is even greater online. The Internet has brought about great changes in many aspects of our lives, including the realm of gathering information, exposure to information, communication between people and free expression. The internet is accessible, immediate, free of geographical boundaries and often free of filtering and editing. And yes – it is also anonymous. The mere fact that some comments may be considered to be of poor taste or poor wording does not exclude them from the protection of the constitutional right to freedom of expression.

The importance of anonymity on the internet is also apparent in the context of the right to privacy. When a person uses the Internet, information concerning him or her is created whether s/he wants it or not. The Internet enables, by direct as well as indirect ways, access to a person’s mindset. Shattering the "illusion of anonymity" in a virtual world that otherwise, affords internet users an impression of privacy, might create associations of "big brother". This kind of encroachment on the right to privacy must be minimized. Within appropriate boundaries, the shelter of anonymity must be maintained as part of the internet surfing culture. It can be said that to a great extent anonymity makes the internet what it is, and without it the

2 freedom in the virtual sphere would be diminished in a way that will lead to substantial changes in the behavior of internet users.

Indeed, internet anonymity relies on important rights and also supports the realization of those rights. Yet, anonymity has a price. In this case, the value of anonymity is traded against the posting of defamatory publications without the potential to file a lawsuit under the Prohibition of Defamation Law. Exercising the right to anonymity may provide shelter to defamatory conduct, thereby causing grave harm to one’s right to good character and reputation – a right which is of considerable weight to a constitutional regime respecting human dignity. A person’s good standing – the reputation he has built over the course of his lifetime, and often acquired through hard work - is a part of his or her property. It is thus an important expression of human dignity – dignity in the sense of honor, i.e. the appreciation and recognition derived from a person’s standing in the society to which he belongs to, as well as dignity in the sense of a person’s inherent personal value. A person’s good name enables him to belong to a community, and in turn, self- actualize and develop his personality as he so chooses. Indeed, the right to a good character is not diminished in the virtual sphere.

In this case, the appellant is seeking relief at the preliminary stage of collecting information needed for a potential lawsuit. This type of request is very rare. As a rule, the court does not intervene until a lawsuit has been filed. The rarity of the request includes the attempt to compel a third party in a preliminary legal proceeding to disclose information in his or her possession. Notably, this third party is not claimed to be involved in the commission of the civil tort himself. Accordingly, constitutional concerns about a potential violation of the right to anonymous internet usage, also encompass the interests of a third party – a person or a private body –called to disclose information s/he possesses about the identity of clients, expecting to remain anonymous on the internet.

Finally, the court concluded that at the present time there is no established procedural framework to enable the granting of a judicial order, which could expose the identity of an anonymous internet user, and that the court should not “invent” one through “judicial legislation”. Israel’s procedural laws do not consider the possibility of filing a lawsuit against a “generic” defendant – who we will name “John Doe”, and who replaces the real defendant whose identity is unknown. Further, s. 9 of the Civil Procedure Regulations stipulates, that a Statement of Claim must include, inter alia, the defendant’s name. According to s. 9 it is not possible to file a Statement of Claim against an unknown defendant. Rather, s. 9 in fact requires that the defendant be fully identifiable in the Statement of Claim and if that is not the case - then there is no lawsuit. Acknowledging a “John Doe” defendant may enable a plaintiff to conduct a civil procedure, which could not otherwise exist. Thus, this possibility may advocate the enforcement of the essential rights claimed by the plaintiff and also promotes values concerning judicial access and fact- finding. Nevertheless, an acknowledgment of the possibility of filing an “incomplete” lawsuit – a lawsuit with no defendant – is by no means obvious, and the creation of the procedural rules for filing and conducting such a lawsuit by way of “judicial legislation” raises great difficulties. As noted above, s. 9 of the Civil Procedure Regulations requires the name of the defendant to be included in the Statement of Claim and this requirement stands against the proposition of a virtual “John Doe” defendant. The information and details included in a Statement of Claim are of fundamental importance and are supposed to express the existence of a cause of action for the plaintiff against the defendant. The wording and form of any Statement of Claim must meet the standards of procedural fairness, a proper description of the controversy, transparency and effectiveness. Accurately identifying the defendant is a crucial element in the realization of these purposes. It must be emphasized that a “John Doe” defendant is a fictitious defendant. He has a nickname, yet s/he has no real existence as long as the real defendant has not been identified. Therefore, a lawsuit against a “John Doe” defendant, at least in its beginning is an “ex parte”

3 lawsuit. Accordingly, it is not possible to acknowledge such a lawsuit without creating rules that would safeguard the rights of the nameless defendant and guarantee the procedural fairness as well as the effectiveness of this legal procedure.

It might be possible to think of different ways of granting (some) protection to the rights of the defendant of a “John Doe” lawsuit. This would entail the creation of an elaborate, detailed and multi-phased procedural framework. Creating such a framework by way of “judicial legislation” raises great difficulties and is, in fact, a dramatic judicial transformation of the Civil Procedure Regulations insofar as it adds new chapter to address “a lawsuit against a John Doe defendant”. If such a revision is needed, it must be done by a legislative act.

This does not mean that the appellant has no way to disclose the identity of tortfeasors on an internet website. Firstly, when a tort committed on the internet is also considered to be a criminal offence, the affected person may file a complaint with the police. Secondly, it may be assumed and hoped that ultimately a law will be passed, which will regulate this matter in a clear and detailed manner, and thereby create the proper procedural framework to resolve the relevant considerations and balancing of rights.

Languages:

Hebrew