John Doe v. Jane Doe: Several Comments on the Privacy Revolution of Noam Solberg
In an article in the Seventh Eye, IDI Researcher Dr. Tehilla Shwartz Altshuler analyzes an Israeli Supreme Court ruling that took a book off the shelves and struck a balance between the right to privacy and the right to freedom of expression, and discusses larger questions related to privacy in the digital age.
A university professor publishes a work of fiction. A young woman files a lawsuit to remove the book from the shelves, claiming that the novel describes an affair that she had with the author in a way that allows everyone who knows her to recognize her as the protagonist and reveals intimate information about her to them.
The district court rules in her favor and the author of the book appeals to the Supreme Court. In a unanimous ruling written by Justice Noam Solberg, the court decides to reject the appeal. It demands that the book be removed from the shelves and issues a gag order prohibiting disclosure of the names of the woman, the author, and the publisher.
The most novel aspect of this ruling is the balance that it strikes between the right to privacy and the right to freedom of expression in the context of gag orders. Although the book had already been published in this case, the ruling required that it be removed from the shelves and that steps be taken to prevent the possibility of its future publication—a very unusual decision in legal rulings in this area.
The ruling is a model of judicial writing. Its wide breadth includes references to comparative law, quotes from the Jewish heritage, and references from general philosophy. But in the fifty-something pages of the ruling, amidst Kant and Rabbi Kook, the court did not see fit to address the question of the effectiveness of a gag order in the digital age. Admittedly, this case involved a man who wrote a book, rather than someone who published nude pictures of his “ex” on the Internet. But what is the point of calling the ruling “John Doe v. Jane Doe” and using this reference throughout the text when anyone could easily do a simple Google search and discover the identity of John Doe (if not Jane), and reveal the title of the book and the name of the publisher?
The ruling is written as if we are living in 1990; in its world, it is as if the digital revolution had never taken place and as if anyone annoyed by the ruling could not find a copy of the book, scan the relevant pages, and distribute them on social networks.
It is legitimate to believe that there are values that are worth protecting and preserving in the digital era, and that it is appropriate to fight seemingly hopeless battles. But there is no logic in completely ignoring the problematic aspects of the enforcement of orders to suppress information. The feasibility of implementing a ruling is a factor that must be considered when making a substantive decision itself. Presumably, the justices explained to Jane Doe that a hearing regarding the injunction and gag order itself has a price: It arouses curiosity and renews a discussion that had seemed to have disappeared from the world. But this price was also not mentioned in the wide-ranging exposition issued in the court’s ruling.
As I have written before, this case was a marginal case, since who really has an interest in harming an individual woman who was exploited by a man who was writing a book? Yet the ruling does not mention in any way the fact that in other cases, both military and civilian, gag orders have only been upheld for a few days at most.
Furthermore, the conflict here is a classic privacy conflict. But the right to privacy in the digital era has changed its nature and appears in different contexts than it did before. The debate about privacy not only deals with the publication of intimate details in books but also with the question of what will happen to the explosive amount of our personal information and data that is floating around in cyberspace? Who will manage this information and who will ensure that it is secure? Questions in this area that must be discussed include: Does the right to privacy mean the right to control our personal information? The right to restrict access to information? Or simply the right to live in a world in which others respect the reasonable expectations that we have regarding the privacy of our personal information?
After all, while Justice Solberg made an effort to establish the right to privacy as equal to other human rights, in practice we vote with our fingers and are willing to receive the benefits of technological services at the expense of our privacy. We demonstrate in every way that we are not interested in leaving any area in which our activity is not documented and that we prefer the advantages of having almost all of our actions measured and monitored.
And here perhaps we can see an innovation in the ruling—although it is not clear whether it was intended by its author—which perhaps will actually make the ruling worthy of being studied in law schools this year.
In paragraph 159, Justice Solberg addresses the question: To what extent does consent to a violation of privacy constitute a sweeping and final exemption from later claims? In other words: Can we change our minds after we have given consent to having our privacy violated? He writes:
"Although it seems that the principles of contract law apply to the element of ‘consent,’ the laws of privacy protection raise a dilemma that cannot always be resolved with the help of contract law. For example, a person who gives consent might retract his consent, while the basic principle in contract law demands enforcement of the commitment. In our opinion, however, this remedy is not necessarily appropriate in a case of retracting consent to forfeit the right to privacy. The personal nature of the consent to give up the right to privacy and the elevation of the right to privacy to the level of a basic right require the interpreter of the law to use additional tools for examining the ‘consent,’ beyond the laws of contracts. In our opinion, when a person retracts his consent to give up his right to privacy, the usual laws of enforcement should not be applied toward him and information that compromises his privacy should not be published based on his earlier consent. A person should be allowed to retract this relinquishment of his right to privacy, particularly in circumstances involving intimate information; in return, for the party that relied of the surrender of privacy should receive financial compensation if he or she suffers damage because of the retraction."
One may argue that there is no defense more explicit than the giving of free consent to a violation of privacy, especially in the case of traditional media. Imagine if the subjects of interviews were to retract their consent to a revealing interview once they saw the negative responses to that interview, or if central figures in biographies who had assisted in the writing of the book were to change their minds after unflattering aspects of their own personalities were also revealed. Similarly, imagine what would happen if people who willingly participated in articles, documentary films, or television and radio programs would withdraw their consent after the fact, even if they had not been misled at the outset.
Dr. Tehilla Shwartz Altshuler is a Research Fellow at IDI, where she heads the Media Reform project and the Open Government project.
This article is an excerpt of an article originally published in Hebrew in the Seventh Eye on June 10, 2014.