The Minimal Area of Privacy - Israel

I. GENERAL

The definition of "privacy" is notoriously elusive.¹ The difficulties stem from various sources, and may be found on many levels. The usage of the term is loose, and its boundaries shift in different societies, and in the same society — for different people and at different times.

Thus even in Israel of today people are likely to give a wide range of answers to questions such as "What is privacy?" (Freedom from interference? Secrecy of personal information? Freedom from access?), "What is an invasion of privacy?" (Repeating what was published about one in the press? Peeping? Harassment in public?) or "What is a justifiable invasion of privacy?" ("Bugging" the conversation between a suspect and his lawyer? Opening letters of suspects? Investigating the past of a candidate for a job? For marriage?).

These difficulties may be approached in various ways. I have tried elsewhere to advance an analytical study of the concept of privacy, starting from ordinary usage and imposing some refinements on it.² In this paper, a different approach is taken. The scope of the actual protection of privacy in the Israeli legal system is surveyed (and suggestions for reform are studied), in an attempt to derive from it that minimal area of privacy which is presently acknowledged as being entitled to (legal) protection. Together with similar studies of other legal systems, such a survey may point out that despite the differences noted above, there is some core of invasions of privacy deemed unjustifiable in most contemporary democratic societies.

One consequence of such an approach is that there is no clear way of identifying the issues which are related to privacy, in view of the loose usage of the term. Hence, this paper will cover areas which are commonly described as involving an issue of privacy, including those which a specific conceptual analysis of the term might have excluded. Nevertheless, one area which is sometimes labelled an area of privacy is excluded, namely that of interference with the freedom to perform certain activities, such as homosexual consensual acts in private, or the interference with "private" decisions such as abortion. This area is conceived to be related to privacy in the American legal system, for complex reasons.³ It is also included in lists of invasions of privacy such as that given in the Conclusions of the Nordic Conference on the Right to Privacy (1967). I believe this is an unwarranted and an unfortunate extension of the use of the term "Privacy", which is likely to lead only to confusion.³ Accordingly, I shall start from the vague notion of privacy as related to two main areas: the power to control the amount of personal information others — both individuals and officials — have about a given individual,⁴ and the power of an individual to control the physical access of others to him.

This admittedly vague notion of privacy enables us to identify those parts of the legal material which may be relevant. A further analysis of this notion suggests a more manageable division of such relevant legal material. Control over the amount of information known to others may be reformulated as control over the acquisition of personal information by others. Schematically, information about X may be acquired in the following ways:

1. Self-disclosure by X.

2. Observation of X or of sources of information (other than other people) about X.

3. Disclosure by others.

In many cases, observation of X or of objects related to him requires intrusion into X's private residence, or interception of his (or her) communications. Such activities will also be related to the second aspect of privacy that is freedom from unwanted access. On the other hand, peeping etc. will be considered invasions of privacy even where they were not motivated by a wish to acquire information. Thus another group of relevant activities should be added:

4. Intrusions into private quarters, harassment, following.

I believe that an analysis of existing (and proposed) legal provisions according to these headings will give us a better picture of the existing scope of protection of privacy than listing the relevant provisions under their known "labels" — i.e. defamation, trespass, nuisance, etc. Before we turn to a detailed survey of the law on these points, some general background comments about the Israeli legal system are called for.

II. THE ISRAELI LEGAL SYSTEM - BACKGROUND*

It is impossible to understand the scope of legal protection of any interest by a given legal system without having some background information about the structure of that legal system, and about the relationships of the primary legal organs under it. In addition, there are general principles applying to the system as a whole which are significant to the issue under investigation. This background information is of special importance in a case such as that of privacy, where, due to their structural features, different legal systems reacted differently to the challenge posed by changing social conditions.⁵ Some relevant features of the Israeli system which we must bear in mind are:

A. The absence of an entrenched constitution.

At present there is no entrenched constitution in the Israeli legal system, which, in this respect, follows the English model. The highest source of law is legislation by the Knesset — a 120 member Parliament elected at least once every four years — and there is no judicial review of its legislation.⁶ There is some judicial review of subordinate legislation by ministers or local authorities, but it is limited to specified heads such as lack of authority or absence of good faith.⁷ The courts rarely interfere with decisions of policy made by such subordinate legislators.

B. The extension of liability by the courts.

Israeli courts have been very active in some fields of law, such as contract, administrative law and constitutional law. In other fields, their activity has been more restrained and the two fields most relevant to the protection of privacy in the absence of an entrenched Bill of Rights — the law of tort and criminal law — are among the latter.

In the field of criminal law the courts have accepted the principle that liability should not be imposed without an explicit legislative authorization.

The Tort Law of Israel is almost exclusively governed by a mandatory ordinance, which has recently received an authoritative Hebrew new version: The Civil Wrongs Ordinance (New Version). The Ordinance is, in the main, a codification of the English common law. It retains, however, the common-law method of specifying causes of action in tort rather than spelling out general principles of liability. Moreover, courts in Israel have held that the torts specified in the ordinance form a "closed list", which cannot be extended by the courts. In other words, Israeli courts limited themselves in such a way that while able to interpret (and possibly widen) liability under a given cause of action, the judicial creation of a new cause of action in tort is prohibited.⁸ Due to historical reasons, the law of torts is strongly influenced by the English legal tradition. Developments will tend to follow those in England, and the likelihood of incorporating American solutions is not high.

C. Officials' liability.

Invasions of privacy often involve various law enforcing agencies. The general principle is that officials may do, as officials, only such things as they are explicitly empowered to do; but, if they act "within the scope of their lawful authority", they are completely immune from any action in tort by the injured individual. Officials are further immune if they act in excess of their authority, but do so in good faith and in the belief that they have such authority. In such cases they are only liable, in their personal capacity, if they are negligent, or if they act without good faith.⁹

The State is responsible to the individual only through vicarious liability, i.e., it is responsible only where the individual could succeed against the officer in his personal capacity, and if has no independent liability towards possible victims.

D. Security measures.

Modern life has posed a new challenge to privacy in all countries. Unfortunately, Israel and various other countries have an important additional complicating problem: that of security. Special security problems require that "an emergency balance" be struck between security and individual rights, a balance more favourable to the defence authorities than in a normal situation.

Those needs are reflected in the Israeli legal system in two kinds of special legislation. The Defence Regulations, dating from the period of the British Mandate over Palestine, and original Israeli emergency regulations, which — despite their being subordinate legislation — may invalidate or modify primary legislation adopted by the Knesset which is not compatible with them.¹⁰

E. Civil and criminal liability.

Some relationships between civil and criminal proceedings should also be noted. Typically, civil proceedings are initiated by the injured party, and the available remedies are damages or injunction or both. Criminal proceedings are initiated and controlled by the State, and the criminal is liable to fine or imprisonment or both. These two types of proceedings and their outcomes are very different. This sharp division is somewhat blurred by the power individuals have to initiate criminal proceedings by "private complaints" in offences such as trespass, assault and defamation.¹¹ The court is also authorized to grant damages to the victim after a criminal conviction, in special circumstances and according to an explicit request.¹² In addition, there is a cause of action in tort for "breach of statutory duty", under which individuals can sue where the criminal provision "was designed to protect them"

III. THE PROTECTION OF PRIVACY UNDER
EXISTING ISRAELI LAW

A. General

To date there is no explicit or independent protection of privacy in the law of Israel. In other words, there is neither a statute nor a judicial opinion imposing a sanction, or granting a remedy, for invasion of privacy as such. No criminal offence consisting of the invasion of privacy is to be found either in the Criminal Code Ordinance 1936 or in later Israeli legislation. As we have noted above, it is unlikely that the courts will "create" such an offence themselves. However, there are some exceptions embodied in statutory provisions requiring confidentiality, the breach of which is a criminal offence. We shall return to these provisions, which are of limited scope, below.

In the field of civil liability the Supreme Court was asked to consider the case of an actress who sued for an injunction and damages when her picture was used for advertising purposes. The court expressed its sympathy with the plaintiff, but found no appropriate cause of action in the Civil Wrongs Ordinance, and felt that it could not create, judicially, a remedy that was not recognized even in the English common law.¹³ Thus the Supreme Court explicitly denied the existence of a cause of action for invasion of privacy in the Israeli law of Tort.

The decision provoked legislative action. Appreciating that the courts would not create a remedy in such cases without legislative intervention, the legislature felt that a remedy should be provided, at least in the advertisement-type cases. A special provision was thus added to the Civil Wrongs Ordinance making the use of a name, a picture, or other personal attributes for gain (or for political advantage) a civil wrong.¹⁴ Although the Explanatory Notes¹⁵ identify the protected interest as that of privacy no such reference is contained in the statutory provision itself.

Nevertheless, it can hardly be said that the Israeli legal system affords no protection to privacy. Although the term "privacy" is not used, there are various provisions, in both civil and criminal law, which can be — and have been — used to protect privacy. The rest of this section is devoted to a more detailed survey of the relevant legal provisions. The analysis is based on the classification of types of ways in which information and/or access may be obtained, as presented above.

A study of the legal protection of privacy in a given society can only be, at best, a partial, description of the entire situation. Both the intensity of the threat to privacy and the awareness of the potential "victims" may be more important than legal provisions (and may affect them in time). However, information concerning attitudes to privacy or the extent of invasions of it is hard to come by. Some sensational events are reported and publicized, but in most cases people are unable to demonstrate that their privacy was indeed violated. Extra-legal information is thus added, but it is for purposes of illustration rather than as part of a comprehensive report.

B. Self-disclosure by X

Self-disclosure by the individual concerned is a very important way of acquiring information about him or her. It is also the least objectionable way of acquiring such information, since the individual knows — theoretically at least — what information about him is known. Where the request for information is explicit and direct, the individual also has the power to isolate information, and to give only such information as is relevant or necessary. A truthful declaration of one's income provides the authorities with the information they need to enforce tax-laws; it also protects one from an investigation by the tax-authorities which might unearth details not connected with one's income and which one does not wish to be known.

Imposing a duty to disclose information about oneself is an interference with one's power to control the knowledge of such information. However, in the modern welfare state it is recognized that information is required as a basis for decision-making. Demands that relevant information be disclosed are thus usually regarded as reasonable. Moreover, as against the individual's interest in his privacy recognition is also given to the legitimate interests of others, who refuse to make decisions without having the relevant information. This "balancing" process, part of which may not be explicit, has resulted in almost no legal protection of privacy.

The general principle here is that individuals have the liberty to do whatever is not prohibited by law. This general liberty includes both the liberty to request and the liberty to refuse to disclose information. (It should be remembered that, as this section deals only with self-disclosure, the liberty to disclose information at will is not discussed, since it is commonly accepted that voluntary self-disclosure of information is not objectionable, and, in any case, should not be the subject of legal regulation).

I know of no legal limitation on the liberty to ask questions,¹⁶ although there are many social limitations of this sort. (Israel, on the whole, is a society in which individuals are reluctant to divulge information about some of their affairs, notably financial and economic status, political affiliations, emotional or sexual involvements and family psychological difficulties.) There are a few important legal limitations, however, on the liberty to refuse answering such questions, as well as numerous situations in which the exercise of that liberty would be very costly to the individual, and thus unlikely.

The Police may investigate potential witnesses, and these must answer questions unless the answers might incriminate them.¹⁷ Individuals must give evidence if required to do so by a court,¹⁸ and this includes testifying about their own activities and affairs. They are entitled not to incriminate themselves,¹⁹ and suspects (but not witnesses) have the "right of silence".²⁰ All questions which are relevant and not merely insulting may be asked, and the court may interfere if questions which are excluded are asked.²¹ Further limitations on admissibility, e.g. the rule that evidence of prior convictions is not admissible as to the determination of guilt, but only as to sentencing, may also be connected to the protection of privacy. Failure to testify is "contempt of court", which may mean that the witness is imprisoned until he is willing to testify.²²

In addition, many laws impose a duty of reporting certain items of information. Notably among these are tax laws²³ and the law regulating the central registration of population.²⁴ Finally, the Statistics Ordinance requires cooperation with employees of the Central Bureau of Statistics in the performance of their job.²⁵ Failure to report or to disclose such information amounts to a criminal offence.²⁶ In most of the cases where a statutory duty of reporting or disclosure is imposed, there are express and specific provisions, designed to secure the confidentiality of the information disclosed. I shall deal with them in section D. 1. below.

Laws sometimes make the disclosure of information a pre-condition to receipt of some service, especially in the fields of national insurance²⁷ and welfare.²⁸ This is not a duty to report, but the needy individual will not be helped if the information is not disclosed. Moreover, once an application is made, the authority may investigate to verify its details, and the applicant must provide any relevant information.²⁹

Requirements of self-disclosure (whether statutory or not) may be the least objectionable, but they too are subject to public debate. It is arguable that the information requested must be legitimate and relevant to the purpose of the statute involved, and that efficiency may have to give way, in extreme instances, to an overriding interest in privacy.³⁰ In Israel, despite some objections, religion and nationality (as distinct from citizenship) are deemed relevant data, which individuals are required to report.³¹ On the other hand, an attempt to impose a general obligation of filing detailed statements of income, property and expenses was defeated by a public outcry against the loss of privacy involved. Even senior public officials are not legally required to disclose their sources of income or the details of property they own.³²

In Israel, invasions of privacy by subjecting candidates for jobs to extensive personal tests and requesting answers to elaborate personal questionnaires are not yet common. However, major employers, such as banks, admit that they do investigate the personal backgrounds of potential (or current) employees. This is just an illustration of the fact that acquisition of relevant information by direct questioning of the individual concerned (coupled with means of verification of answers) is less of a danger to privacy than is indirect investigation. Direct and explicit questionnaires are open, may be subjected to the requirements of relevance, and enable the individual to provide specific answers to the questions involved. Indirect investigation has none of these guarantees that the invasion of privacy will be minimal, and no greater than is required for intelligent decision-making on the part of the employer. The same applies, of course, to other typical "information hunters".

C. Observation and surveillance

Information about X may be acquired without talking to X or to anyone else. X may be followed, his possessions may be watched, his correspondence may be read, his communications intercepted, and information about him may be obtained from files, reports, etc.

To protect privacy effectively, a legal system must work on three different levels: it must make illegal such investigative activities as are deemed undesirable, it must make the acquisition of information harder (by, for example, limiting access to information), and it must reduce the motivation towards illegal acquisition of knowledge by prohibiting the use of such information. But, legal systems have interests other than privacy to protect. The treatment of investigative methods in a given system reflects the balance between its respect for privacy and the need to protect these other interests. No country can afford to give privacy absolute protection, and indeed no such demand is ever made. The above mentioned means of effective protection thus serve as analytical tools of description rather than as normative guidelines.

1. Investigative activities

The general principle of Israeli law is that individuals have the liberty to conduct investigations, to ask questions, to follow others, etc. wherever no specific legal provision restricts such a liberty. Individuals also have the liberty to refuse to answer questions or to avoid followers, unless there is a statutory duty of disclosure.

Investigators have no special privileges. They may not use violence, threats, blackmail or undue influence in attempts to acquire information, since these are criminal offences under the Criminal Code Ordinance. In theory, this applies to policemen as well, but the rules of officials' liability mentioned above and difficulties of proof make them almost immune to such charges.

There is a special law dealing with those people whose professional business it is to follow and acquire information about individuals — private detectives.³³ They may be employed by insurance companies, by credit giving agencies, or by private individuals (mainly in family affairs). Recently a public debate was aroused by the fact that the Mayor of Tel Aviv employed private detectives to follow absentee municipal workers to find out what they were doing during working hours. It was found that two of them were simply working full time elsewhere. The Union conceded that this was a bad habit, but resented the methods used by their Mayor.

The 1972 law requires private detectives to be licensed,³⁴ imposes on them a duty of confidentiality towards their client, and a duty to report to the Attorney General where there is suspicion of a criminal offence.³⁵ As far as ways of acquiring information are concerned, there are no special duties or special legal privileges of professional private detectives. Their main advantage over an ordinary individual is their expertise, equipment (they use modern electronic devices) and their connections with people in the important offices. In the regulations dealing with ethical standards of private detectives it is specifically mentioned, however, that a private detective must not purport to be an official, nor represent himself as an ex-civil servant³⁶ (even if this is in fact the case. Many private detectives in Israel are ex-policemen). Such a representation may be helpful in view of the tendency of people generally to provide the authorities with information when asked to do so, and in view of the duties of giving evidence or cooperating with employees of the Central Bureau of Statistics.

There is no general prohibition of interception of communications in Israeli law. There are a few specific prohibitions in the Postal Offices Ordinance, applying mainly to employees of the post office.³⁷ Opening letters or interception of mail is an offence.³⁸ Once the letter has reached the person to whom it is addressed, protection is obtained only by making access illegal. Reading the letter, per se, if no trespass is involved, is not illegal. It is known that law-enforcement agencies and the security services wiretap, open letters, and exercise military censorship.³⁹ A citizen whose mail is intercepted by the authorities can do nothing, since the official act is "within their authority", according to orders, and there is no explicit legal provision making such interception an offence. A bill regulating wiretapping and eavesdropping was presented to the Knesset in 1962,⁴⁰ but no consensus could be obtained concerning the limits of the powers granted to the responsible Minister and to the Prime Minister to authorize wiretapping without judicial warrant.⁴¹

The most effective protection of the control over information is that granted by provisions designed to protect ownership and possession, to which we shall return below in the discussion of access.

There is no legal limitation of the liberty either to follow a person in a public place, if there is no harassment, or of the liberty to address him (or her) with questions, etc.⁴² Moreover, people who have access to confidential information about others may be asked to disclose this information, despite the fact that they are bound by statutory prohibitions of disclosure. They would commit an offence if they disclose, but the making of the request is legal. Thus a person asking a private detective to discover information about X which can be found in confidential files is not acting illegally, since the detective could, in principle, acquire the information without being involved in an illegal act (e.g. by asking X himself).

A very special limitation on methods of acquiring information is the rule that no pictures may be taken at court.⁴³ However, this provision protects the court rather than the parties since there is nothing to prevent a journalist, or any other person, from waiting in the corridor and taking any pictures they might want.⁴⁴

It should be noted that the ethical codes of journalists and investigators do not include any rules concerning modes of acquisition of information, such as a prohibition on the use of certain types of equipment, the hours when individuals can be approached, or methods of interviewing people in grief. The ethical code of the Press Council prohibits the use of cheating, blackmail or threats in acquiring information. With regard to modes of acquisitions of information other than those mentioned above, the Press Council decided that the freedom to seek information in every way acceptable to the profession is one of the journalist's fundamental rights.⁴⁵

2. Ease of acquisition

We have seen that no specific mode of acquisition of information about X, against his will or without his knowledge and consent, is made illegal. However, there are some legal measures which may make such acquisition harder. Some of them relate to duties of confidentiality imposed on people who have access to personal information provided according to statutory provisions. As these will be discussed below, it is only to be pointed out that if these confidentiality provisions are obeyed, an easy method of acquiring information stored in governmental files is closed to the investigator.

Opportunities for legal acquisition may also be reduced by injunctions given against building in such a way as will allow peeping into private quarters. However, an Israeli court, dealing with a similar question, ruled, albeit in an obiter dictum, that the interest in privacy could not be regularly protected in this way under Israeli law.⁴⁶

Electronic equipment whose primary purpose is either recording or photographing from a distance, and which is used mainly in surreptitious observation, is not regulated. The only partial provision is the prohibition of independent, unlicensed operation of wireless or broad-casting systems.⁴⁷ This is mainly designed to protect governmental monopoly in this area.

Finally, a low awareness of privacy concerns in many, though not all, individuals makes it easy to acquire information by simply asking people who have access to it to disclose it. Many lists and various other items containing personal information may become circulated merely due to an inadvertent act of disclosure by an innocent and unconscious possessor.⁴⁸

3. Profitability of illegal acquisition of information

In general, there is no legal regulation of the use⁴⁹ of information a person has, once he has it; the way in which the information was acquired is irrelevant at this point. Such regulation is indeed extremely difficult, since it is very hard to demand that individuals explain their decisions, in such a way that the role of information in that decision is revealed. These difficulties have been noted in the question of discrimination: it is impossible, or almost impossible, to prove that Y did not employ X because X is black. Similarly, Y does not have to reveal his reasons for not employing X if he found (legally or illegally) that X was neurotic, unstable or a homosexual.

There is one exception to this general difficulty: the uses of information as evidence in court or other official proceedings. On this point Israel has followed the English common-law in rejecting the means of a ban on admissibility as conducive to the protection of privacy and as an effective guarantee of the legality of means of finding evidence. The courts have absolute discretion in the question of admissibility of evidence when objections as to the way of acquisition are raised.⁵⁰

They tend to admit all relevant information, no matter how it was acquired (with the one exception of admissions made under duress).⁵¹ They do comment on police behaviour, but have not yet translated those comments into rejection of submitted evidence acquired by means of such behaviour.

D. Disclosure

The most sensational invasions of privacy are usually those that involve disclosure, mainly by the mass-media. Mass-publication clearly ends privacy in the sense that the public at large becomes, or at least can become, acquainted with the information involved.

Here again, the protection of privacy requires a restriction of liberty, this time the liberty to disclose. This is a special liberty since it is related to the freedom of expression, which is justly considered one of the cornerstones of democracy. Any restricting of this freedom must, in order to overcome the strong presumption in favour of freedom of speech, be particularly well justified. However, it should be remembered that the rationale behind protecting freedom of expression does not cover every type of expression to the same extent. A distinction can be, and has been, drawn between "public speech", which is to be protected, and "private speech", which may be restricted to protect privacy or other interests (notably reputation, but also reliability of advertisements and other commercial statements).

In the realm of disclosure, full protection of privacy would require a general duty not to disclose information about others, combined with measures making such disclosures difficult and unprofitable. Where a duty of disclosure exists (e.g. the duty to give evidence) the protection of privacy would require, at the very least, privileges against disclosure of personal information. Such protective duties and privileges are, not surprisingly, the exception rather than the rule. On the other hand, Israeli law does not contain many duties to report on the activities of others. In addition to the duty to give evidence, which was mentioned above, we should note the duty to report whenever you have knowledge that a crime is planned.⁵²

1. Duties of confidentiality

Legal duties of confidentiality, whose breach is a criminal offence, are found in various provisions. First, there is a general prohibition of disclosure by civil servants of information acquired in the course of their employment. The prohibition applies even after they have left the service.⁵³ The purpose of this provision is primarily the protection of State secrets, but it may also be used to protect privacy.⁵⁴

The same law also imposes duties of confidentiality on non-civil servants as well. In addition to being a breach of contract it is also an offence for the party to a contract with the State in which there is a confidentiality clause to disclose information.⁵⁵ In general, anyone disclosing the contents of an official document given to him under the explicit condition of confidentiality is liable to criminal prosecution.⁵⁶

In addition there are specific provisions imposing confidentiality on employees of the tax authorities,⁵⁷ the office of registration,⁵⁸ the welfare authorities,⁵⁹ the post office,⁶⁰ the central statistics bureau,⁶¹ and others.⁶² (It is interesting to note that there is no such provision in the National Insurance Law, despite the fact that its enforcement involves storage of numerous details about most of the country's residents. This, however, would seem to be an oversight rather than an intentional decision).

Other statutory duties of confidentiality may be found in relation to special professions, e.g. the duty of bankers⁶³ and lawyers,⁶⁴ and most recently, psychologists⁶⁵ towards their clients, and private detectives towards their employers.⁶⁶ Duties of confidence are also included in various "standard" contracts, i.e. between banks and insurance companies and their clients.

There is also a general criminal provision of confidentiality which applies to those who receive confidential information because of their profession (with the express exclusion of state secrets). Disclosure in such cases is an offence, punishable by six months imprisonment.⁶⁷ Individuals can initiate a "private complaint" for this offence.