Even before the European Court of Justice made headlines by obligating Google to remove links to certain information on request, thereby enshrining “the right to be forgotten,” a trend toward barring the publication of identifying details in court rulings had been taking shape in Israel, at the expense of the principle of public hearings and the public’s right to know.
In December 2010, then-Justice Minister Yaakov Neeman tapped former Supreme Court Justice Izhak Englard to head a committee that was to formulate recommendations on where the line between these conflicting principles should be drawn. Though the panel was supposed to submit its recommendations within 90 days, over three and a half years later it has yet to do so.
But while the committee has dragged its heels, the Supreme Court and the National Labor Court have both issued several rulings that favor the right to privacy over the principle that court proceedings should be public. Moreover, in July, the Knesset passed a law, sponsored by MK Adi Kol (Yesh Atid), that significantly changes the legal situation.
Currently, the presumption is that court proceedings should be public unless a law or the court stipulates otherwise. But Kol’s law, which takes effect in another year, bars publication of the plaintiff’s identity in any civil suit where medical information might be revealed, unless the court decides otherwise.
And just last month, the National Labor Court rejected a request by the business daily Globes to publish the name of a high-tech company being sued by a former employee over sexual harassment. While labor courts usually hear sexual harassment suits in camera in order to protect the identities of both the plaintiff and the alleged perpetrator, in this case the court decided to bar publication of the defendant’s name even when the defendant was a company, on the grounds that corporations also have the right to preserve their reputation.
“Even though nobody disputes the lofty status of the principle of public hearings, given the availability of large amounts of information in electronic media and the ability to store this information, there have been growing calls for changing the way it is exercised ... to avoid serious violations of other rights, first and foremost the right to privacy and to a good name,” court president Yigal Plitman wrote in the ruling.
One emerging solution to the need to balance these conflicting rights, Plitman continued, is to allow court rulings to be published without the names of the litigants or other parties mentioned in the ruling. Nevertheless, he added “the last word hasn’t yet been said” on this issue, “and it seems the law — the legislature and the courts — will have to adjust itself to this developing reality and the challenges it poses.”
The Courts Law lists various considerations that can trump the principle of a public hearing, including protecting state security, avoiding harm to the country’s foreign relations, protecting a minor or other dependent, protecting victims of sex crimes or domestic violence and preserving commercial secrets. In addition, a court can “forbid publication of any information relating to court proceedings that it deems necessary to protect the safety of a litigant, witness or other person whose name was mentioned in the proceedings, or to prevent serious harm to the privacy of any of these.” The question that arises from this provision is what constitutes “serious harm.”
Over the past year, two Supreme Court justices, Elyakim Rubinstein and Zvi Zylbertal, have rejected requests by insurance companies to publish the names of people who sued them for compensation after being injured in traffic accidents. Zylbertal said in his ruling that he realized he might be setting a precedent, and that letting plaintiffs who have suffered physical injury bar publication of their names might become the norm, but “I don’t think that’s a fundamentally inappropriate outcome.”
Rubinstein’s ruling, issued a few months later, in February 2014, attributed great weight to the changes wrought by the Internet. “Today, when a minimal effort of typing makes it possible to find an entire verdict, the potential harm to the person whose health details are revealed has grown,” he wrote. “Thus in my view, it’s possible and even appropriate to interpret the term ‘serious harm’ in a way that takes the aforementioned” — i.e. the Internet — “into account, and in a manner that leans toward respecting privacy.”
Publishing a verdict without the plaintiff’s name is “generally sufficient to ensure the public’s right to know,” he added, and he urged that this principle be enacted into law.
Members of the Englard Committee told Haaretz that they are indeed leaning toward changing the law to give the right to privacy greater weight by making the default position be that plaintiffs’ names won’t be published in computerized versions of a ruling, so that the Internet and legal databases won’t be searchable by name. They are also leaning toward making this the default in employer-employee disputes — since people who sue their employers often discover this is held against them when applying for a new job — and even to criminal cases.
The committee has received many submissions arguing that computerized records of criminal convictions eviscerate the Criminal Records Law, which allows a person’s criminal record to be erased after a certain period of time to enable his rehabilitation, because a computer search will still turn up his conviction. But on the other hand, one of the purposes of criminal proceedings is to deter potential criminals by the knowledge that their crimes will be made public.
“There’s a consensus among committee members today that information in verdicts published electronically must be limited in cases where there’s no public interest,” one committee member said. “The question we’re considering now is whether banning publication of names should remain the exception or become the rule.”
The Englard Committee said in a statement that its deliberations have been prolonged because it agreed to hear everyone who asked to appear before it and also reviewed many written submissions from the public. “In addition, this is an extremely complex legal issue with nontrivial problems of implementation, and discussing it requires examining various considerations that by nature require a lot of time,” it said.