Case Number

C.A. 8954/11

Date Decided

4-24-2014

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An appeal on a judgment of the District Court, granting the Respondent's motion for the issuance of a permanent injunction to prohibit the Appellant from publishing and distributing a book written by him, which unfolds the intimate relationship between the parties. The Appellant was further charged to pay damages to the Respondent for her non-pecuniary damages. The main question deliberated was the proper balance between the right to freedom of expression and artistic freedom on the one hand, including the autobiographical artistic freedom, and the right to privacy and a good reputation on the other hand.

The Supreme Court (Dictum of Justice N. Sohlberg, seconded by Vice President Naor and Justice Joubran) denied the appeal and ruled as follows:

Freedom of expression extends to artistic expression; the autobiographical composition is closely connected to the three rationales of the freedom of expression: the exposure of the truth, the personal wellbeing; its value in the democratic regime. The status of the autobiographical artistic freedom will be determined in light of the 'quality' and 'quantity' of rationales at its base. Freedom of expression, including the autobiographical artistic freedom, is not an absolute right as it collides with the right to privacy. In this collision, each instance should be examined on its merits, without an in-principle ruling regarding as to the precedence of one right over the other. A severe infringement of freedom of expression would outweigh a light and medium infringement of the right to privacy; a severe infringement of the core of privacy would outweigh a light and medium infringement of freedom of expression.

In balancing between the colliding rights in the case at bar, the degree of fiction in portraying the female-protagonist was considered and it was determined that the character of the female protagonist includes many and unique identifying details, which are sufficient for the identification of the Respondent. Furthermore, the question whether the violation of the Respondent's privacy is at the core of the right to privacy or in the margins thereof was also deliberated, and it was ruled that this is an injury to the core of the right to privacy, since the Respondent's life, including the most intimate details, unfold before the readers like an open book. This is a serious infringement of the core of the right to privacy, and the spousal trust-relationship. Therefore, the publication of the book will cause serious and severe injury to the privacy of the Respondent; in addition, the Court deliberated the degree of the possible violation of freedom of expression and it held that the expression in the book realizes the freedom of speech to a medium degree, with ideal and interest intermingled therein. The balance between grave and severe infringement of the right to privacy and a medium violation of the freedom of expression tends towards the protection of privacy. With respect to the Appellant's argument whereby the Respondent's objection was preceded by consent, it was ruled that a person's consent to violation of his privacy is not conclusive, however, in the case at bar there was no consent, but rather explicit objection by the Respondent to the inclusion of any detail which may lead to her identification.

In the case at bar, the Appellant's freedom of expression 'collides' with the Respondent's right to privacy. His artistic freedom, as reflected in his book, harms the good reputation of the Respondent. This is a documentary book that is camouflaged as a fictional composition and its violation of the Respondent's privacy is grave and severe. In deliberating whether the benefit resulting from the fulfillment of one right overweighs the damage which will be caused to another right, the conclusion is that on the constitutional scale, freedom of expression shall prevail in instances wherein the violation of the right to privacy is light and medium whereas the injury to the freedom of expression is severe; the power of the right to privacy shall prevail when the violation of freedom of expression is light or medium whereas the violation of the core of privacy is intense. In the case at hand, the fiction is slim, and the injury is considerable. Grave and severe violation of the Respondent's privacy was found, against medium injury to the Appellant's freedom of expression. The aggregate weight of the identification of the Respondent as the female-protagonist in the book, together with the description of the inner circle of her life, including intimate issues, prevails over the violation of the Appellant's freedom of expression, in which ideal and interest are intermingled.

Keywords

Family Law, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Right to Privacy, Constitutional Law -- Freedom of Expression, International Law -- Relevance of foreign law in judicial decisions

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