Should We have a "General Right to Privacy" in Israel?

The intensity of these recent demands for more legal protection suggests that conditions have changed, and that this change has created new threats for privacy. To deal effectively with these new threats we must first identify and understand them.

It appears that a combination of various factors, all of which are somehow related to technological developments, is responsible for arousing this interest in privacy. First is the development of the mass-media, which removed the traditional limitations on dissemination of information, and created an artificial demand for such information. Second is the development of electronic devices enabling invasions of privacy which were hitherto impossible.¹ Third is the development and use of computerized systems for the storage and compilation of information.² The threats to privacy are evident. Information about us can be retrieved from the files, or sought by detectives or journalists aided by sophisticated devices against which there is virtually no protection. This information may be used against us or disseminated in the mass-media and thus become "public knowledge". Movements and conversations may be recorded. The only protection most of us have against invasions of our privacy is the mere fact that no one is interested enough in our activities to keep us under surveillance. If, for whatever reasons, such interest is aroused, there is practically no defence against this invasion of our privacy.

In addition to the practical vulnerability of our privacy against interested invaders, the law has not provided effective legal remedies for individuals injured in this way. Extensive files, with the problems of access, security, accuracy and leaks which they represent, are modern innovations. At one time individuals could protect their privacy by confining those activities which they did not want others to watch to "private" quarters. In cases of invasion they could usually sue for trespass or nuisance. Today invasion requires neither trespass nor even visible watching which may amount to nuisance. Furthermore, the law still provides no general remedy for dissemination of information about individuals, although the recent developments have significantly increased the extent of harm that may be caused by such dissemination of information and the "demand" for it.

The combination of these new threats with the inadequacy of the existing law has created the challenge of privacy. The realization that privacy should be protected, as such, by the law, has been reflected in two international documents,3 and in intensive legislative work in many countries. In some countries some of these new problems are already regulated by law,4 and in others there are commissions which have examined the problems and have made recommendations.5 Israel is one of these last countries in which the law has not yet fully responded to the challenge of protecting privacy, but a Public Committee under the chairmanship of Kahn J., has now submitted its report and recommendations.

Many important questions arise when the legal protection of privacy is studied, but this paper deals with one of them only, in the context of the Israeli legal system. This question can be formulated as follows: Assuming that we agree, in principle, that privacy is an interest worth protecting; assuming further that we conclude that the present legal protection of privacy is not adequate and that further legal protection is required; should we have a declaration that invasions of privacy are in general actionable, combined with a list of defences, or should we only see to it that, without such a declaration, individuals have remedies in all situations of invasions of privacy in which it is deemed desirable? It is contended that this question is a question of form and should be distinguished from questions relating to the scope of legal liability for invasions of privacy.

The distinction is of more than purely analytical importance. Disregarding it may lead to confusions and errors. More than that, I have argued elsewhere, a failure to maintain the distinction between scope and form in the context of privacy has indeed led to an error in the English discussion of the legal protection of privacy.6 In this paper an attempt is made to introduce such a framework of discussion that may prevent similar errors in the Israeli context.

II. Questions of Scope and Questions of Form

The scope of legal liability is determined by the consequences the law attaches to actions. Thus whether or not peeping is a criminal offence, making the peeper liable to prosecution is a question of scope. Similarly, whether a newspaper is liable to compensate an individual for publishing details about his sexual life is also a question of scope. The laws which, when applied, provide the answer to the question whether the defendant is liable, provide the answers of the legal system to these questions of scope. Questions of form are of a different nature. They can be answered without affecting the scope of legal liability. They relate to the way in which legal material is arranged and formulated. Typical questions of form are: Should we have legal norms which identify the interest in privacy as the interest which they are designed to protect? (such norms would be called explicit norms of privacy). Should we strive to have a body of law which will deal solely with the protection of privacy or should we be satisfied with an arrangement of the legal material so that all types of action for which legal liability should lie (a question of scope) are in fact actionable, but the relevant norms are scattered over all the statute and precedent books?

The importance of the problems of scope which are presented by the wish to give legal protection to privacy is evident. No one is likely to overlook problems such as the conflict between privacy and law enforcement or privacy and the freedom of expression. The distinctness of the questions of form which are raised is, however, often neglected. The result is that the questions of form do not receive the independent consideration which they deserve. For this reason this paper is devoted to the seemingly less important question of form rather than to those obvious questions of scope.

It is easy to see that questions of scope and questions of form are two quite distinct types of question when the considerations applying to their decision are examined. In deciding questions of scope we deal with factors such as the relative importance of competing interests, or the desirability of using legal machinery to resolve conflicts of certain types. When we are faced with two alternative solutions of scope we have to decide which is more in accordance with our value-system, our enforcement capabilities, and our political possibilities. These factors are not involved when questions of form are considered. Naturally, when deciding questions of form we also want to adopt the solution best suited to serve our goals. But the goals with which we are concerned when discussing aspects of form are the fulfillment of the general functions of the law rather than the solution of particular conflicts between competing interests. Our choice of the form of the legal material is governed by the wish to attain a law which is as clear, as simple, as elegant and as suggestive as possible. These are necessary if the law is to perform its functions of guiding behaviour, being a basis for evaluating conduct, and educating by serving as a means to internalize the values of the system.

III. Legal Protection of Privacy-Alternative Solutions of Form

The classification of the question to be discussed as a question of form is clarified when it is pointed out that alternative solutions to it are considered after the question of scope has been answered. We have assumed, in formulating the question, that there is a gap between the legal protection of privacy afforded by existing law and the degree of protection desirable. The identification of such a gap means that we have already answered the question of scope, and know in what situations the individual should have further legal protection.

There are four basic solutions to the question of form which arises. We first present them schematically, and then explain their interrelations:⁷

1) The adjustment approach: Adjusting the existing causes of action under which it is possible at present to recover for invasion of privacy so that all the cases in which a remedy is deemed to be desirable are covered by legal norms. No new cause of action is created.

2) The piecemeal approach: Drawing a map of those areas in which the law at present does not afford protection and adding a new cause of action for every typical invasion in which remedy is deemed to be desirable which is not covered by existing law. These new causes of action will be described according to the circumstances in which liability is imposed.

3) The general remedy approach: Closing the gap between the existing and the desirable scope of protection by creating a new cause of action for invasion of privacy, stating that in principle every invasion of privacy (or every invasion beyond a given threshold) is actionable. This statement is then qualified so that individuals will be able to recover only in those situations in which recovery is deemed desirable.

4) The declaration of right approach: Finally, people may seek to protect privacy by merely declaring that every person has a right to privacy, not specifying any remedies or any legal consequences of invasion of privacy either by individuals or the government.

It should be noted that the adoption of the fourth approach on its own may not involve a preceding decision of scope. It is clear that the right thus declared will have to be balanced, but the guidance as to the desirable balancing given is much less clear than it is when one of the first three approaches is adopted.

In practice these four basic approaches may be combined in various ways. The adjustment approach, for example, may be combined with the piecemeal approach in those cases in which adjustments are not sufficient to cover all those areas in which legal protection of privacy is deemed to be required. This type of combination and the circumstances in which its suggestion is likely may be clearly illustrated by the following example. In Israel the law of trespass provides partial protection against invasion of privacy: It is a tort to enter premises against the wish of the occupier. However, the law of trespass protects only the owner or the person entitled to legal possession of the place. It does not protect a mere guest. Furthermore, the injured party may recover for damages to his property, but is unlikely to recover for the mental suffering caused by the invasion of his privacy.⁸ If it is decided that the person whose privacy is invaded in such circumstances should be entitled to compensation (the decision of scope), the existing cause of action for trespass could by "adjusted", by extending its application to people who are not "legal possessors", and by removing the limitation concerning damages. Such adjustment would not be possible, for example, in the case of wiretapping, because in that case there is no trespass whatsoever. If wire-tapping is to be regarded as a cause of action, such a cause of action could be established in a special act of legislation. If both these amendments become law we would have a combination of adjustments and a piecemeal approach. In fact, the Israeli legislature has already acted to protect one aspect of privacy in a piecemeal way by introducing in 1974 of cause of action for using a person's name, picture or voice for purposes of trade.⁹.

The piecemeal approach may also be combined with the general remedy approach where the subject matter is too complicated or technical and cannot be regulated satisfactorily by a single general law. Thus it is conceivable to have a general remedy law approach combined with specific laws dealing with data-banks, private detectives, telephone monitoring etc. Not surprisingly, the declaration of right approach may be easily combined with each of the other three approaches, as the solution of scope dictated by it is so indeterminate.

For our purposes one point should be stressed. Whenever we have a declaration of right or a general remedy approach, whether or not they are combined with another approach, we have an explicit declaration that invasions of privacy are objectionable and, in principle, actionable. If either the general remedy or the declaration of right approach is adopted, the solution may be described as "general" in the sense that all invasions of privacy are treated together, expressing a belief that privacy is a distinct interest and that the same principles should be applied in all cases of its invasion. All these solutions involve a general declaration to this effect.

A few examples from legislations, both actual and proposed, will make these distinctions between types of solution clearer. The expression "a general right of privacy" was coined by the Justice Committee, which studied the problem of legal protection of privacy in England before the Younger Committee.¹⁰ The Justice Report concludes that the legal protection of privacy in England is not adequate,¹¹ and that legislation should be introduced to remedy this inadequacy.¹² The Report considers the adjustments and the piecemeal approaches to legislation, and rejects them in favour of what they call a "general right" solution: A cause of action for "any substantial and unreasonable infringement of a right of privacy", qualified by a series of defences.¹³ This solution is a combination of the last two approaches, the general remedy approach and the declaration of right approach. By establishing a cause of action for invasions of the "right to privacy" the Justice Report declares that there is such a right and at the same time affords a remedy for all infringements of it.

The international documents containing a right to privacy embody a declaration of right solution with no specification of legal remedies in cases of breach. The Canadian legislation of privacy, on the other hand, incorporates the general remedy approach. Sec. 2 of the Manitoba Privacy Act 1970 establishes a general remedy for violations of privacy:

“A person who substantially, unreasonably and without claim of right, violates the privacy of another person, commits a tort against this person.”

A similar provision is found in the British Columbia Privacy Act, 1968, and the Saskatchewan Privacy Act, 1974. In the statutes, no right to privacy is declared.

It should be noted that all the general approaches are explicit, i.e., they identify the protected interest as an interest in privacy, since their generality is based on a grouping together of all the privacy situations in which legal remedy is deemed to be desirable. Of the other alternatives, only the piecemeal approach may be explicit, if the piecemeal norms are labelled as norms of privacy.

In Israel, sec. 6 of the Rights of the Individual and the Citizen Bill incorporates a declaration of right approach.¹⁴ It is combined with a partial non-explicit piecemeal regulation, in the form of sec. 34A of the Civil Wrongs Ordinance. The Kahn Committee recommends a general-remedy measure incorporating sec. 34A, which would then be abolished.¹⁵

IV. The Desirable Solution of Form in the Israeli Context

Having described the possible solutions to the question of form we will now turn to those considerations which may be relevant to the choice, which, noted above, is governed by the wish to enhance the clarity, simplicity and knowledge of the law. These are general considerations, common to all legal systems and are derived from the essential features of legal regulation, not from the specific arrangements adopted by any specific legal system. Nevertheless, they may dictate a different solution to questions of form in the context of different legal systems. Let us take the example of privacy. We are concerned with one aspect of the form of legislation intended to give privacy an adequate protection in the context of a particular legal system. In this particular system many decisions of scope are already an established part of the law, and these decisions of scope have been formulated in a certain way. The structure of the resulting norms may differ from one legal system to the other. One system may prefer general declarations of right coupled with discretionary powers to the courts applying them, while others may tend to rely on very specific "causes of action" and be reluctant to "declare" the existence of "rights". Despite these differences in form, the substantive solutions in the two systems may be very similar. But these differences in the approach to form should not be underestimated. They reflect differences in outlook and in tradition, and it appears that the three basic functions of the law—i.e., guidance, evaluation and education—require that' consistency of form in the legal system should be maintained. Such consistency makes the learning and application of the law easier because both individuals and officials are accustomed to think and work in the existing structure. It might also be argued that the educational function of the law may be better served if consistency is maintained. The likelihood of learning something from the law, especially when the message is partly novel, is increased if the new element is introduced into a well-known framework. A deviation from the established structure of norms in the specific legal system stands, therefore, in need of justification.

In discussing the desirable solution of form in the context of the Israeli system, the general considerations governing this solution in all legal systems will be discussed before turning to the special features of the Israeli system. It is submitted that the general considerations support a solution involving a general declaration, and that there is nothing in the structure of the Israeli legal system which would point against such a declaration. On the contrary, the basic decisions of form incorporated in the Israeli legal system dictate a combination of the declaration of right approach with a general remedy approach to the problem.

(a) The advantages of the general declaration

Both the general remedy approach and the declaration of right approach, and every alternative in which either of these approaches is adopted, share the obvious advantages of the general declaration, i.e., those of generality and explicitness. A general declaration contributes to the clarity and the accessibility of the legal material, because identification of the protected interest makes the law clearer and its interpretation easier. Also the individual is more aware of laws designed to protect his interests—and they are easier to find—when they are all explicit and when privacy is explicitly protected, and not protected by the application of norms which are labelled by other names and were developed in order to protect other interests. A general remedy approach also has an advantage when reform of the law is being considered.¹⁶ It is easier to identify the decisions of scope which have been made, and thus reconsideration of the issue becomes clearer.

By far the most important advantage of the general declaration is in its educational impact. The legal system helps, among other things, to protect the system of values shared by the community subject to it. This system of values is also protected by awareness of individuals of these values, by the internalization of these values, and by acting according to them even where there is no legal sanction. For a value such as privacy, which only recently became a subject of concern, a declaration of its recognition as a value is of great importance. All the more so since there are conflicting opinions about the definition of "privacy" and about the reasons for protecting it, and even its distinctness and usefulness as a value is sometimes questioned. In the western democracies, the recognition of freedom of expression and freedom in general as values is not questioned. This is not so with privacy, so a declaration of such recognition is required.¹⁷ Once the uniqueness and the importance of privacy is accepted, it seems that a general remedy (or general right) approach is called for. If such an approach is adopted, the legal system expresses its recognition of privacy as a value, and makes explicit those qualifications of the protection of privacy which it has found necessary to introduce. These qualifications can then be either explained and supported or criticized. In any event, the picture is clear, the presentation is open, and the discussion can be fruitful and constructive.

On the face of it, it may be argued, the advantages listed are those of explicitness rather than generality. This is only partly true. It is true that the advantages are those of the combination of generality and explicitness, and that generality alone would not have the same advantages. Explicitness alone, however, would not have them either. It should be recalled that the explicit piecemeal approach, the only non-general explicit alternative discussed here, describes in terms of privacy only those areas which are not covered by the law at present. Consequently, those rules of privacy which already exist and are called by other names such as, for example, the rules concerning breach of confidence, would not be described as rules of privacy if the explicit piecemeal approach is accepted. The interest in privacy will be identified only in those cases in which the protection of privacy is the result of a new law, a law created after a discussion of the legal protection that should be afforded to privacy. Such a partial explicitness will obscure the interrelations between rules protecting privacy which have already existed before and those proposed now to make adequate the extent of legal protection. Furthermore, it may give the misleading impression that only the explicit rules of privacy are in fact rules protecting privacy, thus frustrating the educational function of the declaration that privacy is an interest deserving of protection. This function is best served when the declaration of the importance of privacy is coupled with the declaration of the ways in which the legal system protects it. This will not be the case if the explicit piecemeal (or any other non-general) approach is adopted.

The Israeli experience provides us with a good illustration of this disadvantage of the piecemeal approach, even if at times it becomes explicit. The cause of action for using a person's name or likeness for purposes of trade which was added in 1974 was not labelled as dealing with "privacy", although in the explanatory notes to the Bill mention was made of the fact that this new cause of action was designed to protect an aspect of privacy.³⁸ Even if we extend this protection in a piecemeal fashion, and label the new causes of action as "protection of privacy", the law would not reflect the close interrelation between section 34A of the Civil Wrongs Ordinance and this new legislation. The advantages of generality and explicitness combined would not be enjoyed.

(b) Some possible arguments against a general declaration

The advantages of the general declaration seem to warrant its adoption unless this may be shown to be undesirable. Consequently various possible arguments against such a declaration will now be discussed—and rejected.

1. Is privacy a useful jural concept? The first and the most far-reaching argument against one version of a general declaration—that of a general remedy approach—has been advanced by Davis, an American scholar, who defines privacy as a "state of being apart from the company or observation of others: seclusion".¹⁹ He concedes that privacy has a unity in extra-legal contexts, but he argues that privacy is not a useful legal concept, and there should not be a cause of action for its invasion because it is "an interest or condition which derives from and is automatically secured by the protection of more cognizable rights"²⁰ such as the right to be free from emotional distress and suffering, and the right not to have one's personality appropriated. Privacy is similar, says Davis, to goals such as "freedom from fear" and "pursuit of happiness" which may serve as values of a society, but the infringement of which cannot serve as causes of action. In addition to the two rights mentioned above, the infringement of which, according to Davis, is the real gravamen in most actions for invasion of privacy, he cites as examples of legitimate causes of action those for assault and battery, trespass and breach of confidence. He attacks the cause of action for defamation for the same reasons as he criticizes that for invasion of privacy: the real gravamen of the complaint is the emotional distress caused by the defamatory publication.²¹ His suggestion for the form of legal protection of privacy is a version of the adjustment approach. He argues that all invasions of privacy could be actionable under the heading of either "infliction of mental suffering" or "appropriation of personality", and that those invasions involving intrusion should be seen as special cases of the first, while those involving breach of confidence should be regarded as special cases of the second.²² This suggestion is combined with an acceptance of a "declaration of right" approach for interpretative and educational purposes.²³ Davis would reject a general remedy or a general right approach but not a declaration of right.

Unfortunately, he does not offer a general theory or general criteria for deciding which is a "more cognizable" right or interest. On the face of it, freedom from emotional distress is not very different from freedom from fear or freedom from invasions of privacy, and he does not explain why the first is a legitimate cause of action while the latter are merely abstract goals, protected through the protection of more cognizable rights. Everyone would agree with Davis that it is desirable that the cause of action suitable for a certain type of situation should reflect the genuine gravamen of complaint. He is right in criticizing the American law for giving remedies in cases of appropriation under the heading of privacy.²⁴ But the fact that the American law did not develop the remedy for invasion of privacy in a satisfactory way does not mean that there are no situations in which the gravamen of the complaint is indeed invasion of privacy rather than either appropriation or the infliction of mental distress.

In principle, there may be many attractions in an alternative organization of the law of tort, so that it would include a declaration of values which the law seeks to protect and promote such as life, happiness, freedom from fear, privacy, property, etc., combined with causes of action for every kind of injury, classified according to the type of injury suffered. Thus there would be only three causes of action: infliction of bodily injuries, infliction of economic injuries, and infliction of injuries to the personality. But this is not the law of torts of England, the U.S. or Israel and Davis does not even propose such a new structure. He is content to retain the causes of action for trespass, nuisance, assault etc., which would all have to disappear if the new structure of the law of tort is accepted. The law of nuisance, with which Davis seems to be satisfied, have been criticized for the very same reasons that he adduces against the law of privacy. The crux of the complaint in cases of nuisance is very different, varying from one case to the other. The position is similar when the cause of action for trespass and actions brought for trespass are considered.

In summary, maintaining the existing structure of the law of tort combined with not acknowledging the distinct nature of the interest in privacy, will lead to the very result which Davis is interested in avoiding. Individuals, who are hurt by invasions of their privacy, will be encouraged to sue under different headings. It follows that Davis' case against the general-remedy solution cannot stand without a radical change in the structure of the law of tort. In Israel, at least, no such structural change is contemplated, so that his criticism cannot be accepted.

2. The misleading effect of a general declaration: The primary advantage of the general declaration noted above was its contribution to the awareness of the importance of privacy. As against this contribution we must weigh the misleading effect of declaring a right, thus paying lip-service to its importance, and then proceeding to qualify its protection to such an extent that in most cases of invasion the injured individual will not have a remedy. If it is intended that the form given to the norms reveal the real state of affairs, it seems to follow that if there is no absolute protection of privacy, or at least protection in most cases of serious invasion, there should be no declaration that everyone has the right to privacy, because in fact no one has this right.

This would have been a strong argument if it were possible to give rights absolute protection. However, none of the central rights in our civilization is granted that kind of protection, and every thoughtful individual is aware of this fact. Hence the declaration of a right does not mean that no invasion of this right will ever be sanctioned. But a declaration of right would only be misleading and hypocritical if in every conflict between privacy and another interest the other interest would win. In such a case one could rightly accuse us of paying a lip-service to privacy without making any attempt to protect it, or of using the emotive term "right" in an inappropriate context.

However, even if the Kahn Committee recommendations are not made law, we can say that in the Israeli legal system (and in the legal systems of England, the U.S. and all the other Western states) this situation does not obtain. Even before implementation of the explicit protection of privacy the legal system provides some protection of it, and privacy does not always give way when in conflict with another interest. The police, for example, may not enter one's house without a permit; similarly, individuals may sue for trespass, nuisance or defamation in cases which are, in fact, cases of privacy. The existence of this protection of privacy may justify the conclusion that a right to privacy, admittedly of a limited scope, is already recognized by Israeli law. Thus the accusation of hypocrisy must fall.

This argument is nevertheless a powerful one, becoming stronger if the scope of protection of privacy becomes narrower. Even for a narrow scope of protection the general declaration has the advantage of making clearer the choices which have been made concerning privacy. Such a declaration involves an open admission of both the importance of individual privacy in our system of values and of the great difficulty in protecting it through the law because of its inherent conflicts with other important interests. The case for a general declaration, even for a narrow scope of protection, rests on the belief that in general it is always better to make decisions of scope explicit, by pointing out the need to make a decision, and the specific decision which has in fact been made. The great advantage is that the law reflects the need to make a decision of value. In the absence of a general declaration of the conflicting values these decisions of scope may be obscured.

Especially if we admit that the interest in privacy is very vulnerable, and will easily give way to more pressing needs of society, every effort should be made to make individuals aware that privacy is involved in such cases, even though it was decided that legal protection should not be granted in some of them. Emphasis on the fact that privacy is involved may make individuals more sensitive to the need to protect privacy in extra-legal ways.²⁵

3. Redundancies in the law: Finally, a third argument against a general declaration may be that the creation of a general remedy measure will result in redundancies in the law.^2e

This argument may be presented as follows: Many of the typical cases of invasion of privacy in which a legal remedy is considered are already covered by the law. If a general remedy measure is adopted individuals will be able to sue both under the new Privacy Law and under the laws of trespass, defamation, breach of confidence, breach of contract, nuisance, passing off, injury to one's image or copyright, as the case might be. To prevent redundancies in the law we should prefer the adjustment approach where applicable, and complement it by piecemeal regulation of those areas which cannot be covered by adjustments.

Redundancies in the law in the sense that an individual who is injured may sue under more than one heading are against our sense of elegance and economy. The legal material contained in each legal system is very extensive as it is and laws should not be multiplied unnecessarily. Furthermore the amount of legal material to be learned and understood should be as limited as possible.

However, despite these apparent advantages of economy, redundancies abound in the law. When X steals a book from Y's house, Y may sue X for both trespass and conversion. When X induces Y to enter a contract by misrepresentation, Y may both sue for deceit, or treat the contract as voidable and apply the rules of contract. The fact that redundancies exist is not, of course, a good reason for adding yet another one if it can be avoided.

This existence of redundancies which are not usually a cause of complaint raises the question, however, whether they do in fact tax the memory of either lawyers or laymen.

The answer to this question seems to be negative. If one is to remember the amount of material contained in even one branch of a legal system, some framework of general principles is required. It is much harder to remember an assortment of details than it is to master a relatively small number of general principles, each having some details related to it. This is partly the reason why general principles are so important in any normative (or cognitive) system.²⁷

The question, then, is whether it is easier to remember the laws protecting privacy if there is no redundancy in the law but privacy is protected by various laws and by different causes of actions such as defamation, trespass, breach of confidence and copyright, or whether it is easier to remember it with a general remedy law, despite the redundancies which such a law may generate. It seems to me that the latter possibility is the easier one, and thus the redundancies in the law should not count against the general remedy approach.

It is submitted that there is nothing in the Israeli legal system which precludes any form of the general declaration approach. First, the Israeli legal system has nothing against general remedy measures for types of conduct which are deemed undesirable due to their harming of a single unique interest. Nowhere in its laws do we find a reluctance to legislate general remedy measures. On the contrary, in both the law of torts (a heritage from the mandatory legislature and based on the common law tradition) and the original Israeli legislation we may find many examples of such regulation.²⁸ In fact, it is hard to imagine a legal system which does not use this type of measure. The whole idea of regulating behaviour by general rules of behaviour requires, in a way, some form of general remedy measures. In an area closely related to that of privacy, i.e., the law of defamation we find a clear example of such regulation: the tort is explicitly defined in terms of the interest which is to be protected (the interest in one's reputation), and the law establishes a general remedy in all cases of breach, specifying a list of defences.²⁹

A more disturbing question is that relating to the declaration of right approach. In this area it is quite conceivable that specific, legal systems should incorporate different approaches to this question of whether or not rights should be positively declared, or simply be derived from the legal rules defining the remedies. Moreover, the English legal system, on which our own Civil Wrongs Ordinance is based, has made a clear decision against declarations of rights.³⁰ For the English legal system, this fact may provide a good reason against adopting a declaration of right approach to the protection of privacy (though this does not apply to the general remedy approach).³¹ But we should not assume, without examination, that the Israeli legal system shares with the English system, this traditional reluctance to declare rights. In fact, it is argued that the Israeli system has opted for an approach favoring general declarations of rights, so that the requirement of consistency does not dictate, for Israel, the rejection of a declaration of right approach.

The first indication that the English reluctance to declare rights has not been adopted by Israel may already be found in the Declaration of Independence, containing an affirmation of the basic rights of the people in the State to be established. It is true that this declaration is not law in Israel, but it has been used as a principle of interpretation in various cases.³² The legislature is presumed not to impede these rights, and if it does not expressly abridge them, the rights are upheld. Consequently the declaration of rights embodied in this declaration does have some legal effect, even if it is limited in scope.

Further, at a very early stage it was decided that efforts should be made to enact a formal constitution, including a Bill of Rights, for the young state.³³ The adoption of such a constitution means that declarations of rights become part of the law, as they are, for example, in the United States. The readiness to adopt such a constitution clearly indicates that Israeli lawyers and the Israeli legislature do not share the English skepticism towards general declarations of rights.

Even in civil private law there are indications that Israeli lawyers regarded their non-English heritage in this respect as dominant. In one case the Supreme Court has recognized legal consequences to a right of ownership where the remedies for its breach specified by the law of torts could not be used.³⁴ The Court explicitly states that in Israel the right is not exhaustively and exclusively defined by the remedies for its breach, and that the courts could derive remedies from the existence of the rights, even where these remedies were not specified. This trend is reinforced in the new legislation concerning property.⁸⁵

It may be concluded that in the Israeli context a general declaration would not constitute a deviation requiring justification from the structure of norms in the system. But which of the general solutions should be preferred? The existing proposals appear to provide the optimal solution of form in the Israeli context, i.e. a combination of a declaration of right and a general remedy law.

Mere declaration of a right is not sufficient so long as the system does not contain a general principle that individuals can sue for breaches of their specified rights, a principle not contained in the Israeli system. This is especially true in the field of torts, where the courts have held that the Civil Wrongs Ordinance provides an exhaustive list of all causes of actions in tort.³⁶ In the context of privacy the Supreme Court has already ruled that there is no such cause of action in Israeli law.³⁷ The 1974 legislation came as a result of these rulings.³⁸ The enactment of a cause of action for cases of breach of privacy is therefore necessary if the present law is to be changed. It follows that a declaration of right alone could not do the job.

Without the indications listed above that the Israeli legal system has opted for declarations of rights as a basic feature of the system it could have been argued that a declaration of right, either as a part of a Bill of Rights or as a part of a Privacy Law, should not be adopted. However, once a general decision of form for generality has been made, there is no reason for not combining this general remedy measure with a general declaration of right.

The contribution of papers criticizing proposals for legislation is evident. If the criticism is justified, the legislation may be improved by changing the law accordingly. In this sense, articles supporting existing proposals may seem useless. This may not be so. First, there is no guarantee that existing proposals would not be changed, or that such change in them would not be contemplated. In which case support of the existing proposals may serve as reminder of the arguments against such changes. More important, proposals for legislation are rarely based on an explicit conceptual framework of thought in which the proposals may be presented, explained and defended. The provision of such frameworks is the job of the academic lawyer, i.e., to contribute to the consistency and rationality of our legal system. Frameworks of this sort are analytical tools. They may have a bearing on subjects quite different from the subject under immediate consideration. The distinction between questions of scope and questions of form obtains, and should be maintained, in all discussion of law reform. This discussion of privacy is simply an application of this distinction, a demonstration that it is a useful distinction which should be maintained. The fact that the existing proposals on this subject happen to agree with the conclusion of this more general discussion may be accidental. Only if attention is paid to the relevant considerations can we ensure the regular occurrence of such happy coincidences.

Notes

* D.Phil. (Oxon.), Lecturer, Faculty of Law, Hebrew University of Jerusalem.

1 A lively description of the various devices and their uses is given in A. Westin, Privacy and Freedom (New York, 1967).

2 Most of the current work on privacy is centered around questions related to data-systems. See e.g. Karst, "The Files: Legal Controls over the Accuracy and Accessibility of Stored Personal Data" (1966) 31 L. & Gontemp. Prob. 342. And see also C. Farhi "Computers-Data Banks and the Individual: Is the Problem Privacy?" (1970) 5 Is. L.R. 542.

3 Article 12 of the Universal Declaration of Human Rights 1948; Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

4 For a comprehensive and recent comparative study see the Report of the International Commission of Jurists, published in 24 (1972) International Social Science Journal 417—604.

5 E.g., U.K.: Report of the Committee on Privacy (chairman: K. Younger), Cmnd. 5012, July 1972. Canada: Privacy and Computers, A Report by a Task Force (1973).

6 See R. Gavison, Privacy and Its Legal Protection, a D.Phil. Thesis (Oxford, 1975) especially Chapter VII.

7 The nature of the various solutions will become clearer below, when a few illustrations are given. It is convenient however, to start by labeling the various solutions in a comprehensive way.

8 A comprehensive treatise concerning the specific wrongs in our law of torts is still lacking, and the law may, perhaps, be given a different interpretation than the one implied here, and inferred from the elements of the tort.

9 Civil Wrongs Ordinance, sec. 34A (1974) S.H. no. 737, p. 94.

10 The Younger Report was published in 1972 (see supra n. 5). The Justice Report, Privacy and the Law, was published in 1970.

11 The Justice Report, 27, para. 108.

12 Ibid. 30-31, paras. 119-24.

13 Ibid. 32-33, para. 127. Cf. the Bill proposed by the Justice Committee (App. J, p. 59), esp. sees. 1 and 3.

14 (1973) H.H. no. 1085, p. 448.

15 See sees. 1, 4, 5 and 16 of the Bill proposed by the Kahn Committee, infra p. 176.

16 This advantage was pointed out in the English discussion by Mr. A. Lyon, a member of