Case Number

CA 1697/11

Date Decided

1-23-2013

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.]

The Second Appellant (hereinafter referred to as "Gottesman") is an architect who designed a unique dwelling (hereinafter referred to as "the house") for the Respondent (hereinafter referred to as "Vardi"). Gottesman asked to photograph the house in order to showcase it on his firm's website. Vardi refused. In addition, Gottesman published computer simulations of Vardi's house on the website without giving details that would identify the house owner. Vardi brought an action against Gottesman, pleading infringement of privacy. In his claim, Vardi referred to section 2(11) of the Law concerning "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain." The District Court allowed the claim and held that Vardi's privacy had been infringed as a result of the exposure of his house on the Internet and that Vardi's right of privacy superseded Gottesman's economic interest. A permanent injunction was therefore ordered restraining Gottesman and his firm from making any use of photographs or simulations showing Vardi's house. Hence the appeal.

The Supreme Court (per Justice U. Vogelman; Justice S. Joubran and Justice N. Sohlberg concurring) allowed the appeal partially on the following grounds –

The right of privacy is one of the most important human rights in Israel and since the Basic Law: Human Dignity and Liberty was passed, it is even vested with constitutional status. The prohibition of infringing privacy is currently embodied in the Protection of Privacy Law. Section 1 of the Law provides that "no person shall infringe the privacy of another without his consent." As has already been held, the definition of "privacy" is not simple. Section 2 of the Protection of Privacy Law prescribes what an infringement of privacy is. In his claim, Vardi referred to section 2(11) of the Law, which concerns "publishing any matter relating to a person's intimate life, including his sexual history, state of health or conduct in the private domain." The most relevant alternative herein is "publishing any matter relating to a person's intimate life" and also, to some extent, "publishing any matter relating to [a person's] conduct in the private domain."

The answer to the question of what is regarded as a matter relating to "a person's intimate life" is not simple, and the question is whether that expression also embraces publications relating to a person's home. A person's home is not one of those concrete matters that are mentioned in section 2(11) of the Protection of Privacy Law - "a person's state of health" and "his conduct in the private domain." Nevertheless, according to the Court, information concerning a person's home might, in certain situations, fall within the scope of "a person's intimate life." For the publication of information concerning a person's home to be construed as an infringement of privacy as defined in the Law, we must determine whether it is such as to cross that threshold of intimacy, after which it can be said that "a person's intimate life" has been infringed.

In the instant case, reviewing all the circumstances leads to the conclusion that publishing the simulations of the interior of Vardi's house does indeed involve infringement of "a person's intimate life." The interior of a person's home is one's castle, and one is entitled to be let alone in it. Inside a person's home one exercises one's right to privacy in the clearest form. A person therefore has a reasonable expectation that pictures of the interior of one's home will not be published at large without one's consent. In the instant case, studying the simulations of Vardi's home as published on the website shows that, despite the fact that they are computer simulations, the impression gained from them is very tangible. Although the simulations do show the house in a "sterile" condition, namely without Vardi's personal belongings appearing in them, the items of furniture in them are very similar indeed to the existing furniture; they expose "personal" spaces in the house, like the bedroom and bathroom; and they are such as to attest to Vardi's lifestyle and also demonstrate, in the words of the section, "his conduct in the private domain."

The simulations of the exterior of the home should be treated differently. Ordinarily, the front of a house is exposed to passersby. It is in the "public eye." Consequently, insofar as the front of a house is visible from the street, it is clear that showing its picture or simulation will not give rise to any infringement of privacy. The right of privacy does not extend to information that is already in the possession of the public. Therefore, when certain information is in any event in the public domain, the view that the right of privacy is not infringed is appropriate. Even if Vardi is correct in his plea that the simulations of the home's exterior show his house from angles that necessitate access to the grounds of the house, a photograph from "the public domain" is not involved. There is no question that portraying the front of a person's house in public does not give rise to an infringement similar in extent to that caused by displaying the interior of one's house. The front of a person's house does not have the same "intimacy" as characteristic of the intimate rooms of one's home. In that sense, the simulations of the home's exterior are not "information" that is sufficiently close to the nucleus of the interest protected by section 2(11) of the Law. In other words, publishing simulations of the home's exterior does not give rise to an infringement that might infringe "a person's intimate life."

The wording of section 2(11) of the Protection of Privacy Law shows us that in order for the publication of a matter to constitute an infringement of privacy, it has to be established that the information published makes it possible to identify a person. That is to say that insofar as a reasonable person would be unable to connect the information published with a specific person there will not be an infringement of privacy. In that connection it was explained that it is not necessary for a person's name or picture to appear alongside the publication; it suffices for it to be possible by some means to connect the information with a specific person by "reverse engineering." Clearly, such "reverse engineering" is mainly likely to occur when the information published includes clear and unique characteristics.

In the case herein the Court reached the conclusion that although Vardi's name is not mentioned in the publication, the simulations' publication is likely to make it possible to identify him by other means in view of those unique characteristics relating to Vardi's house that distinguish it from other houses.

Even if the information published does indeed relate to "a person's intimate life." the Protection of Privacy Law requires it to be established that the infringement was not of "no real significance." In this connection, it has to be shown that the infringement of privacy was not committed as a "trivial act." In the instant case, the publication of the simulations is not "a trivial act." The simulations tangibly show the interior of Vardi's home and in that way enable the public at large to gain an impression of the home owner's lifestyle and manners. There is no doubt that when any clear picture of a person's home is made visible, and especially the intimate rooms, the publication is likely to give him an intense feeling of discomfort. Such being the case, bringing the lawsuit herein seems, on the face of it, to be in good faith, and it is certainly not a frivolous or vexatious claim. However, that is not the case with regard to the publication of simulations of the front of the house. Even if publication of simulations of the home's exterior might cause some infringement, it is minor and trivial, in respect of which there is no cause for the grant of relief.

Another element necessary for the award of relief on a cause of infringement of privacy is negation of the existence of the circumstances of one of the defenses prescribed in section 18 of the Law. Nevertheless, a party seeking shelter behind those defenses must show that he acted in good faith. Good faith is "like a gate and only if it is traversed will the circumstances in which the specific infringement of privacy was committed be examined." It is therefore necessary to prove that the person committing the infringement acted in the belief that the infringement was in the scope of the defenses prescribed by the Law. In order to prove good faith, the defendant or accused can have recourse to the presumption mentioned in section 20(a) of the Protection of Privacy Law – that the infringement of privacy was committed under any of the circumstances referred to in section 18(2) and that it did not exceed the limits reasonable under those circumstances. Against that presumption that is available to the defendant or accused, the plaintiff or prosecutor can have recourse to the presumption mentioned in section 20(b) of the Law and establish that the publisher knew that he had exceeded the reasonable.

In this case, Gottesman relied on two defenses – those prescribed in sections 18(2)(a) and (c). As regards the defense prescribed in section 18(2)(a) of the Law, since Vardi made it perfectly clear to Gottesman that he strongly objected to publication without the latter signing the undertaking, it is difficult to conceive that the infringement was committed without Gottesman knowing "that an infringement of privacy might occur," as required by the section. It is therefore clear that the plea in respect of the defense under that section cannot be upheld. As regards the defence under section 18(2)(c), relating to an infringement committed in defense of "a legitimate personal interest" of the infringer, the section necessitates a balance be struck between the right of privacy and other conflicting values, and the expression "legitimate personal interest" should be construed "by striking a balance between the desire to protect the interest of the injured party and safeguard his privacy, on the one hand, and the contrary interests of the infringer, on the other hand." In the instant case, on the artistic-creative level, one can understand Gottesman's desire to expose Vardi's house to the public, a work that is unquestionably of unique quality and size. In addition, there is nothing wrong with Gottesman's desire to publicize his work for economic reasons as well, because displaying the work might certainly enable its author to establish goodwill and attract clients. In the overall balance between the competing rights and interests, the Court reached the conclusion that it is inappropriate to apply the defense of section 18(2)(c) to publishing simulations of the interior of Vardi's house.

The Protection of Privacy Law provides that an infringement of privacy will not occur where there is consent to the infringement (section 1). To be precise, consent is not cause that justifies an infringement of the rights of privacy. Consent itself is an inherent part of the right, so that if it is given, a right of action does not arise. Consent can be express or implied, but it is best to exercise extreme care in determining that consent to publication has been obtained. Along those lines it was held that from the fact that an individual agreed to disclose certain particulars to one person or several persons, it cannot be inferred that he is precluded from objecting to the publication of those particulars to the public at large. In the instant case, it appears that such consent was not consummated. No substance was found in the plea that Vardi's agreeing to the publication of other pictures of the house suggests that implied consent was also given to Gottesman. Actually, the fact that other publications were specifically made subject to signing an undertaking, which was ultimately not signed in the instant case, demonstrates the absence of consent herein.

From the aforegoing it emerges that publishing the simulations showing the front of the house does not give rise to an infringement of privacy and in any event not an infringement of real significance, as defined in section 6 of the Protection of Privacy Law. On the other hand, the simulations showing the interior of the house do infringe "his intimate life" and despite their anonymous publication, it is possible to connect them with the Respondent. It was also found that it is not an infringement "of no real significance," and the defenses prescribed in section 18(2) of the Protection of Privacy Law are inapplicable. Consequently, because the infringement of the Respondent's privacy was made without his consent to the publication, there is no alternative but to find that publication of the simulations of the interior of his home on the website cannot be permitted. The appeal is therefore allowed in part, to the effect that the injunction remains in force with respect to publishing simulations of the home's interior on the website. In other words, there is no bar to publishing simulations of the home's exterior on the site. In view of that result, the liability for costs at first instance was set aside and no order for costs was made in the instant proceedings.

Justice N. Sohlberg concurred in the aforegoing and added from Jewish law with regard to the distinction between the front of the house and its interior.

Keywords

Communications, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Right to Privacy, Contracts -- Pre-Contractual Negotiation, Contracts -- Formation, Copyright, Torts -- Defamation, Property, Jewish Law -- Torts

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