Which statement best explains the legal basis for the right to privacy? This question has a lot of significance in our daily life. In present times, infringement of the right to privacy became a common practice. Many wonder what can be done against it. Below, an expert attorney from our firm will elaborate on the legal situation of the right to privacy and its protection in Israel.
The law firm of Decker & Ofir is an Israeli boutique law, with branches in Tel Aviv and Jerusalem. Our firm specializes in intellectual property and privacy protection law. Our firm provides comprehensive legal services to our Israeli and international clients, including legal advisory regarding privacy protection in Israel and GDPR, database registration, etc.
What is the Right to Privacy?
Various domains in our lives should remain private. A person needs to have the right to control his/her physical and virtual private domain. It is crucial to enable every person to fulfil his/her autonomy, even in an era where our actions can be easily tracked and documented. This is made possible thanks to the right to privacy, which is a basic human right, similarly to property rights, for instance.
In order to understand which statement best explains the legal basis for the right to privacy, it is important to understand what the right to privacy actually protects. In this article we will explore the legal status of the right to privacy in Israel. We will also give specific common examples of legal matters that involve the right to privacy.
Legal Status of the Right to Privacy in Israel
So, which statement best explains the legal basis for the right to privacy? It is important to understand that the right to privacy is classified in Israel as a constitutional right. It is specified as a basic human right in the Israeli Basic Law: Human Dignity and Liberty. This constitutional law states that the right to privacy and intimacy is reserved for every person. A restriction on this right must be made in a law which meets different criteria of the basic law.
The Israeli law further defines the legal protections available under the right to privacy in the Protection of Privacy Law. The law includes a long list of actions in this regard. Each of those actions is considered as an infringement of privacy. Among those actions are harassment of a person by spying on him, photographing a person while he is in his private domain and publishing any matter regarding a man’s intimate life. Those actions might base claims in both civil and criminal lawsuits. However, in civil cases it is customary to send a cease and desist letter before filing a lawsuit, as we explained here.
Along with the list of actions that infringe privacy, there is a list of defenses that can be raised in civil and criminal legal proceedings. There are 2 main defenses. The first is a public interest which justifies the infringement under the particular circumstances. The second is that the deeds were made in good faith. This defense is challenging to prove. The law specifies different circumstances that can base good faith arguments. For instance, when the defendant did not know and could not know that an infringement of privacy may occur.
Connection Between Intellectual Property and the Right to Privacy
Intellectual property rights and the right to privacy goes hand in hand, and in many legal cases they are examined together. For example, when someone publishes a book which includes private details about someone else. The book, which is a copyrighted work, might be banned due to violations of the right to privacy.
In a 2014 ruling of the Israeli Supreme Court, it was held that a novel which included intimate details about the author’s romantic life should be banned. The reason was that information shared on the book infringed his ex-wife’s right to privacy.
Using a Person’s Photo for Business Purposes – When Does it Violate the Right to Privacy?
Often businesses are using photos for promotional purposes. It is important to know that the law states that using a person’s image for the purpose of making profit is an invasion of privacy. However, the law includes various exemptions to that principle.
The exemptions would grant a defense to defendants who will be sued for violation of the right to privacy. An example of a possible exemption is when the image is a random photo of a person in the public space.
How to Secure the Legality of the Use of the Image?
It is important to note that every case is being examined according to the particular circumstances. Thus, it is difficult to conclude in advance whether a defense will be given in a specific case. Therefore, the best way for a business intending to use an image of a person is to get the person’s consent to do so. In cases of minors, it is obligatory to get their parents’ consent as well.
The documentation of the consent should ideally be a written agreement. It is customary to make a contract between the parties, by an experienced attorney. It is important that the contract would detail all the specific uses intended to be made with the image. For instance, specifying if the use of the image would be in the business’ website or social media pages, and the exact uses. Similarly, potential uses that can be made in the future should be a part of the specification as well. Our attorneys specialize in making such contracts and often assist businesses in this regard.
New Technologies and the Right to Privacy
Another common case where the right to privacy is related to IP issues is when a new technology (be it a smartphone application, an algorithm or an innovative device) are used in a way which violates one’s right to privacy.
A common case where violation occurs is when an employer tracks his/her employees emails at work. The Israeli court dealt with several cases of employers tracking email boxes of their employees. The main principle in such cases is that there is a distinction between email boxes owned by the working place and private email boxes, owned by the employees.
The Israeli courts held in numerous cases that tracking private email boxes is generally forbidden. A court order is obligatory in order to gain access to those email boxes. It would require employers to give indications of exceptional circumstances that justify it. such circumstances might be a serious concern of criminal behaviour of an employee. These cases are usually very complex. Our recommendation is to consult with an attorney in such cases and to avoid any independent actions without familiarity with the law.
The Right to Privacy and Database Management
A current privacy-related issue which requires companies and businesses’ compliance is new regulation on databases and digital media activity. Databases are defined by the law in a broad way. The definition includes any collection of data which is stored or meant to be stored in digital media.
There are 2 exceptions to the above definition. The first exception is data which is collected for personal use and is not meant for business purposes. The second exception is data which includes only names, contact information and addresses.
The above broad definition relates to any business operating in Israel, big or small. Each business should be aware of the fact that collecting data on customers, employees, suppliers, etc, might fit the law’s definition of databases. The data included in the databases might be information about a man’s personality, personal status, financial status, health status, vocational training and so on.
When Does the Obligation to Register Databases Arise?
The law states 5 cases where registering a database will be obligatory. Applications for registration are submitted to the registry of databases in the Israeli Privacy Protection Authority. Our firm provides legal assistance throughout the process of registration. We also provide legal consultancy on how to comply with the Israeli privacy protection regulations and the European regulations (GDPR).
In each of the following cases, registration is obligatory: (1) When the database includes information about more than 10,000 people; (2) When the database includes sensitive information (such as information about health status or financial status); (3) When the database includes information that did not reach based on a person’s consent; (4) When the database is in the hands of a public body; (5) When the database is intended for directed message services (such as e-mailing list or SMS).
What are the Obligations of Database Managers?
There is a long line of obligations that applies for managers of databases. Among those obligations is the duty to secure the information, in accordance with the Privacy Protection regulations. Similarly, there is a duty to keep the data as confidential. Further duties are, for instance, the duty to inform a person that her information is included in the database and to allow her to browse the information. When the data is stored or processed by a third party, there is a duty to monitor and ensure that it is stored with accordance to the law.
In this article we explained which statement best explains the legal basis for the right to privacy. For further questions regarding the topic, you may contact the law firm of Decker & Ofir. Our attorneys have extensive experience in privacy infringement matters, representing both Israeli and international clients. We provide various legal services in privacy law and intellectual property law, including trademark law, copyright law, trademark law, etc.