Supreme Court Has Dealt Blow to Freedom of Speech

Artists have received a castrating message to the effect that anyone who identifies as a subject or a muse of a work is liable to block its publication.

Haaretz Editorial
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Visitors examining books for the taking at the library in Jerusalem.
Visitors examining books for the taking at the library in Jerusalem.Credit: Emil Salman
Haaretz Editorial

In a ruling handed down last month, the Supreme Court rejected a writer's appeal of a district court decision, which included a ban against the publication and distribution of his novel. In effect, the court ordered that the book be shelved, after it had already been published, printed and even sold in hundreds of copies.

The plaintiff, who is the author's former partner, claimed that although he claimed that the plot was fictional, the book describes their intimate relationship and violates her privacy and harms her reputation. Justice Noam Solberg accepted her argument and rejected the appeal. He was joined in the decision by Justices Miriam Naor and Salim Joubran.

The Supreme Court justices, who had to decide between freedom of expression and the right to privacy, preferred to follow European law, which gives greater weight to the right to privacy, at the expense of the American system, which favors freedom of expression. Solberg explained that the American system is far from "the Israeli constitutional tradition, the legal framework and our Hebrew heritage." He seems to have been particularly disturbed by the distance from "Hebrew heritage," since throughout the ruling, he included citations and excerpts from Hebrew law. "The right to privacy is visible between the apertures of the voluminous literature of Hebrew law," he explained, giving examples: "the prohibition against libel, gossip, the boycott of Rabbeinu Gershom" (an 11th-century European rabbi who emphasized the right to privacy, among other laws).

The opinion of experts on behalf of the appellant did not tip the balance in favor of freedom of expression. Professor Ariel Hirschfeld said, "If the lawsuit is accepted, it means there will be a far-reaching law to the effect that even the possibility of identifying any realistic model in a literary character ... is a violation of the law." Professor Hannan Hever said, "The book deals with a fictional construct and not an actual situation." Solberg rejected their explanations and said that "adopting a legal policy based on their literary world view is not worthy."

The Supreme Court ruling is a harsh blow to freedom of expression. It signals to other judges, in lower legal instances, that artistic works should be examined according to meticulous and tough criteria, which are in clear contradiction to freedom of creativity. Artists have received a castrating message to the effect that anyone who identifies as a subject or a muse of a work is liable to prevent its publication. This ruling, had it been handed down in the past, might have prevented the publication of canonical literary works due to a possible identification of their source of inspiration.

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