The High Court of Justice on Tuesday issued a restraining order against implementing the law permitting local authorities to receive the details of residents who haven’t been vaccinated against COVID-19, with the justices criticizing it and casting doubt on its effectiveness.
Court President Esther Hayut also expressed concern about the ongoing erosion of the right to privacy due to the coronavirus pandemic.
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The panel - Hayut, Deputy President Justice Hanan Melcer and Justice Neal Hendel - instructed the state to explain why the law shouldn’t be overturned. A further hearing on the petition will be held before an expanded panel of justices.
Under the law passed last month, residents on lists of unvaccinated people – which will have their name, address, phone number and identity number – could be contacted by their local authority to encourage them to be vaccinated. The petition, filed by the Association for Civil Rights in Israel and Physicians for Human Rights, argues that while the declared goal of the law – to encourage vaccination against the coronavirus – is a worthy one, the method chosen to achieve it is “extreme and disproportionate, and was passed through speedy legislation in a faulty procedure.”
The petitioners said, “There are many effective alternatives to encourage vaccination that don’t involve undermining constitutional rights.” Attorney Gil Gan-Mor, representing ACRI, told the justices, “We’re talking about very sensitive information that the law allows to be handed over without consent to third parties. This is serious harm.”
Hayut agreed with Gan-Mor, noting, “In those communities where people must be encouraged to vaccinate, the percentage of the population that hasn’t been vaccinated is very high, between 70 percent and 80 percent. That’s most of the people, so what’s the point of dealing with it on an individual basis?” The local authority getting the information would not be able to contact everyone in any case, she said.
Hayut added that during the coronavirus pandemic, “There’s a cumulative effect of the erosion of the right to privacy. It’s one thing and another, and the things are piling up.”
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Hendel echoed Hayut’s remarks, adding that if this law has some justification that outweighs the blow to privacy, “We have to know what the benefit is, because a blow there is. We haven’t been given a single concrete benefit. That’s the difficulty.”
The Knesset’s attorney, Avital Sompolinsky, explained that there is a benefit to be derived by giving the names to the local authority because these are populations “for whom the reasons for not vaccinating are more technical, that they didn’t succeed in getting to this population and the vaccine didn’t get there. They need this personal contact.”
But Melcer wondered why it wasn’t enough to give the information to the health maintenance organizations, where “there are doctors and people who are responsible for medical privacy,” who already have access to this information. “You don’t have to increase the blow to privacy,” he said.
Sompolinsky said the law was needed because the HMOs have reached the limits of their abilities to reach people. “They don’t always have the ability to approach that segment of the population that needs this personal contact, and this can resolve obstacles with this population segment. The assumption is that this is not a very large group and the HMOs haven’t succeeded in bringing them in for the second vaccine. It’s possible that technical obstacles are preventing them from coming.”
State attorney Ran Rosenberg, added, “The HMOs and certainly the doctors cannot make phone calls to people who haven’t been vaccinated. The contact would essentially consist of, ‘Hello sir, we know you haven’t been vaccinated, how can we help you?’” He said the agencies currently authorized to receive the information won’t be able to act on it quickly. “There’s no realistic expectation that HMO personnel will make thousands of calls.”
Under the law, the data would only go to local authorities that ask for it, and will be given only upon presenting a plan to encourage vaccination among the population included in the database.