Astrologist Successfully Sued for Copyright Infringement of New Card Designs – She didn’t see it coming

October 20, 2014

Astrological cards

Zur-Klein is  an astrologist. Tal Rinkov is an artist who created 37 cards for the Astrologist in accordance with an agreement between them which, inter alia, related to the copyright ownership.  (Ms Rinkov was also the kindergarten teacher of Ms Zur Klein’s daughter, which is how they met (some would say it was fate).

Ms Zur-Klein ordered 40 card designs for a payment  of 5000 Shekels.  The cards were to be mass-produced and distributed with an instruction manual and a teaching movie. The parties entered an agreement on 5 September 2014 that established several principles:

  1. The original artwork and the copyright of the artwork was to remain that of the artist.
  2. The artist would not be entitled to royalties for packs of cards and other goods itemized in the agreement
  3. The Astrologist would only be entitled to use the images on specific listed items
  4. All internet images  would be reproduced at a low resolution only
  5. All pictures would carry Ms Rinkov,’s signature, her name, website and contact details

Ms Rinkov was hospitalized in November of that year and only delivered 37 designs, and the last three were completed by another artist. (For reasons not apparent, the medium missed this eventuality). The images were transferred to a graphic artist who made various graphical changes to make the images more suitable for printing.

After various commercial entities expressed interest in the images, Ms Zur-Klein contacted Ms Rinkov to try to negotiate a transfer of copyright but due to a difference of opinion, no agreement to transfer the copyright issued.

Ms Zur-Klein  publicized the images in various internet sites including her own and other people’s, in her blog, Facebook page and elsewhere.  In all reproductions of the cards on the Internet, the artist’s signature appeared, but her name and contact details were not given. Indeed, on some websites, Ms Zur-Klein presented herself as the creator of the card (the term יוצרת הקלפים is used, which is both creator and manufacturer so the term is somewhat ambiguous). Furthermore, Ms Zur-Klein allowed other astrologists to use the designs without giving any credit to Ms Rinkov. There was also a newspaper article featuringMs Zur-Klein that was illustrated with one of the card designs that was also not credited.

On 6 June 2012, Ms Rinkov sent Ms Zur Klein a Cease & Desist letter.

The basis of the ensuing court case was the agreement signed by the parties. It is translated below:

Tal prepares for Carni 39 pictures, which together with the picture already executed, provides a set of 40 pictures for cards and other purposes – payment 5000 Shekels.

Apart from the payment for the work, there will be no other royalties for selling packs of cards, books, CDs and other astrological items depicting the images of Tal Rinkov.

The astrological products that Karni is allowed to use the pictures on are: packs of cards, books, audio CDs, video for watching, a banner for a website, business cards and other articles on authorization from the creator. Karni may not manufacture or distribute artistic works such as pictures, mugs, key-rings and the like.

All material displayed on the Internet are at low pixel count.

The name, website and contact details of Tal Rinkov will appear on all products, including future products.

The pictures on the cards and elsewhere will include the artist’s signature.

The original artwork and copyright remains the exclusive property of Tal Rinkov.

Pictures and associated artistic products (that are not astrological) will be produced and distributed exclusively by Tal Rinkov.

Any deal that Karni creates for Tal will generate a 20% commission for Karni.

When Tal sells a product (book, CD, cards and the like) she will profit 20%. Tal will receive a present of a pack of cards.

 According to the plaintiff, the defendant wrote the contract after the negotiations. The defendant claims, however, that the contract was the plaintiff’s idea, and that the plaintiff had written most of the clauses to the detriment of the defendant, such as her not getting benefit from sale of the cards. However, the defendant agreed that she had printed out the agreement.

The defendant claimed that she was entitled to the status of co-creator in the cards as although Ms Rinkov executed the artwork, it was to her, Ms Zur Klein’s specification regarding the symbolism, colors and charms. The plaintiff considered this a change of direction in the defence and objected to it on principle.  The judge ruled that the claim that the defendant hand guided the artist appears in clause 31 of the defence, but is more a factual than a legal defence and so she was willing to contemplate it. The plaintiff countered that Carni Zur-Klein had not, in fact, instructed her, but that she herself had researched the elements and colours.  Both sides supported their contentions with emails and other evidence. It does seem that the astrologer gave guidelines for the design, but these are by way of astrological knowledge rather than artistic input.

RULING

In this instance, Judge Lemelstrich  did not consider that under section 1 of the Copyright Law 2007, the two parties could be considered co-owners of a joint creation. Section 64 creates a rebuttable assumption that the artist is the creator and each card design was signed by Ms Ronkov as the artist.

Section 5 of the Copyright Law notes that the idea, way to implement and facts are not copyright protected, only the  artwork itself is. According to Section 35a of the Copyright Law, a work for hire is the property of the artist in the first instance, unless otherwise agreed implicitly or explicitly. In this instance, both the Copyright Law and the contract  support the artist as owner of the copyright.

In the packs of cards, Ms Rinkov is acknowledged as the artist and Ms Zur-Klein is credited as an astrologer.

The parties agree that Ms Zur-Klein conceived the project, but the copyright in the images remain the property of Ms Rinkov.

Ms Zur-Klein apparently sold some 80 packs at 190 Shekels a pack.

the main issue sees to be the internet reproductions which do not provide the details of Ms Zur-Klein.

The ruling now relates to various astrological websites. Since I find this subject matter morally, ethically and religiously abhorrent, I am refraining from reproducing the links.

The important thing is that Judge Lemelstrich considers that the artist’s moral and financial rights were compromised in numerous infringements in various websites and internet campaigns. That said, the pictures on the Internet were not reproduced at a quality to enable them to be printed and used as playing quality cards.

The changes to the designs for subsequent printing by a graphic artist under the direction of Ms Zur-Klein were minor. These were considered insufficient to create a change to the copyright, in that the original work could not be considered defaced or the artist’s moral rights compromised. Nor did the amendments constitute a copyright protectable creation.

Ms Rinkov claimed 100,000 Shekels in statutory damages for copyright infringement and a further 100,000 Shekels for moral rights infringement, particularly noting the long and arduous legal proceedings and the multiple infringements.

Judge Lemelstrich noted that despite entering a clear contractual relationship to the contrary, Ms Zur-Klein acted as if the creations were hers to do what she liked with. She ruled 35,000 Shekels damages for infringing the moral rights, 15000 Shekels for infringing the material rights and a further 5000 Shekels for an article published after the Cease and Desist letter.

Judge Lemelstrich of the Haifa District Court ruled a permanent injunction against Ms Zur-Klein, her delegates, substitutes and others from performing any action that violates the September 2011 agreement or other rights as per the statement of case.

Ms Zur Klein will compensate Ms Rinkov 55,000 Shekels for copyright infringement, an also will pay 15000 Shekels legal fees. The money will be paid within 30 days.

Civil Ruling 15824-10-12 Tal Rinkov vs. Carni Zur-Klein, Haifa Court before Judge R. Lemelstrich, Ruling 13 October 2014

 

 


Israel Supreme Court Overturns Ruling Concerning Unjust Enrichment

September 16, 2014
Reversed Challa Cover!

Reversed Challa Cover!

Back in January 2012, then Jerusalem District Court Judge Yaakov Shapira issued a permanent injunction against a Merkaz Matanot 2006, a competitor and former client of the plaintiff, Karshi, prohibiting them from importing, exporting or otherwise trading in ceremonial ritual challah cloths that had a similar general design to those that produced and distributed by Karshi. Their client, Ami Motzrei Noi LTD and their owner were also injuncted and they were See here for more details.

Essentially Judge Shapira who is now the State Comptroller ruled that there was Unjust Enrichment, breach of contract and passing off. I was very critical of the decision, and particularly that Shapira gave a world-wide injunction which seemed to have been beyond his judicial competence.

I am pleased to announce that the Israel Supreme Court has now reversed the ruling.

Essentially, Karshi ordered these ritual cloths having the words ‘שבת קודש’ – ‘Holy Shabbat’ in a fairly standard font embroidered on a piece of chiffon with a more solid fabric border from China.

Judge Chayot ruled that since Merkaz HaMatanot labeled their cloths with a tag stating that the supplier was Merkaz HaMatanot, there was no case of passing off. Merkaz HaMatanot was a retail customer of Karshi as wholesaler and not an agent of theirs, there was no contractual relationship and thus no breach of contract.

Karshi made no attempt to register the design and there was no additional consideration to imply that Karshi had rights in the design. There was no case of inequitable behaviour to answer for so there was no grounds for sanctions under the Law of Unjust Enrichment.

Case: Civil Appeal 1898/12 Merkaz Matanot 2006 LTD vs. Karshi Intenrational LTD. before Judges Solberg, Natyot and Chayot.  Hearing 25/6/2013, decision, August 2014.

COMMENTS

It seems that A.Sh.I.R. is still good case-law, but the judges want some real indication beyond competition to rule Unjust Enrichment.

The cloths in question were variations on a well-known theme. It is suprising how many of these are sold. I suspect that a lot of ritual Judaica (probably including mezuzot and tefilin) are made in China. Being an importer does not create a monopoly. The original decision was wrong (as were decisions by Shapira concerning the Hallel wine trademark and concerning alleged copyright infringement by Naomi Ragen. I am pleased he no longer rules on IP issues. Whether or not he will be a good state comptroller is beyond the scope of this blog, and beyond my competence to comment on.

 


Trade Secrets in the Employer-Employee Relationship

July 21, 2014

forum shopping

In Israel, workers have freedom of occupation and can change jobs or set up their own businesses and may compete with their former employers. The work relationship often exposes the employee to trade secrets. Ex-employees are obliged to maintain confidentiality with regards to trade secrets and cannot compete with former employers by using such secrets. But was a legitimate trade secret?

Work related disputes are dealt with by the Labour Courts, but what establishes the employer-employee relationship?

Nissim Versano appealed an interim Decision of the Tel Aviv District Court given by Judge Ginat to refer the case to the Labour Court to decide whether or not there was an employer-employee relationship. Judge Amit of the Israel Supreme Court refused the Appeal.

On 25 March 2014, Nissim Versano filed suit in the Tel Aviv District Court, claiming that for a number of years he has been involved in the tobacco industry, and has developed contacts with a number of parties in the field. He claims that he took Moshe Ninio into the business as a partner, with a verbal agreement that Ninio wouldn’t use acquired knowledge against the wishes of Versano.

Versano claimed that Ninio set up a competing shop with similar design, stock and prices to Versano’s and that this created a situation of passing off, Unjust Enrichment and theft of trade secrets.

Ninio claimed that he was an employee of Versano and not a partner. He claimed that the District Court was thus not the correct forum to hear the case which should have been filed in the Tel Aviv Labour Court, and requested that the case be thrown out as not within the jurisdiction of the Tel Aviv Court. To substantiate his case, Ninio appended three salary slips testifying to him being an employee.

Judge Ginat of the Tel Aviv District Court referred the case to the Tel Aviv Labour Court to rule on the issue of whether there was an employee-employer relationship, and Versano appealed this referral.

Versano claimed that the District Court should decide whether it was competent to hear the case and, if not, should refer it.

The Supreme Court ruled that Ginat should either hear the case, refer it or throw it out. In other words, he should have ruled on whether or not it was a labour related dispute, and not referred that decision to the Labour Court. Cases cannot be batted back and forth.

However, the appeal was thrown out. The appellant should have appealed by right instead of requesting right of appeal. If a case is heard by District Court instead of by the Labour or Rabbinical tribunals, there is a right of appeal. However, if a case is transferred to a tribunal, one should appeal immediately.

The Supreme Court could use the Request for Right of Appeal as grounds to rule substantively on the Appeal, but did not see fit to do so.

The issue is a partial transfer, which is correctly seen as an interim decision and therefore there are grounds to file an interim appeal.

The Supreme Court related to a case transferred to the Rabbinical Court by a woman claiming financial support on the grounds of having acquired status of a wife by having had intercourse with a man in a manner establishing common law wife status as being an example of an interim decision that could be appealed, but ruled that in this case, the claim of employee – employer relationship should be heard by the labour tribunal who not only have sole discretion to hear labour disputes but also to rule on whether there is an employer-employee relationship.

Furthermore, cases concerning trade-related disputes having an employer-employee aspect are in the sole jurisdiction of the labour court. Trade secret related cases are also the sole jurisdiction of the labour court if there is an employment aspect to the case.

Once transferred to the Labour Courts, cases should stay there rather than be transferred on.

Appeal to Supreme Court  3930/14 Versano vs. Ninio, by Judge Amit, 26 June 2014

COMMENTS

Having one court only being the correct forum for hearing a case prevents ‘forum shopping’. This decision is likely to have repercussions on employee compensation for patents as well as for trade-secret issues. Many companies might be less than happy with this, since the Labour Courts are seen as being pro-employee. With the Iscar case (Plony vs. Company) on appeal to the Supreme Court, this could get interesting.


Fair Use

July 9, 2014

Shelley-Yachimovich-Labor-Party

Shelly Yachimovich is a member of the Knesset. She used to be a journalist, and during the incidents in question, was the Head of Israel’s Labour Party.

Danon PR Communications publishes a local newspaper in Modiin –  an Israeli city.

On 6 October 2011, the local paper published an interview of a worker in Yachimovich’ headquarters, that was written by Channa Stern. Yachimovich posted this on her website, and the paper asked for it to be removed and for 40,000 Shekels compensation for copyright infringement. When this tactic didn’t work, the paper sued Yachimovich under Sections 11 and 34 of the 2007 Israel Copyright Act and under Section 1 of the Law Against Unjust Enrichment, claiming statutory damages of 100,000 Shekels and legal costs.

Yachimovich claimed that the article was posted under a section of the website devoted to newspaper articles and that the source was clearly marked. The article was posted by a volunteer, and, on the newspaper complaining, it was removed. Nevertheless, no guilt was admitted.

In her defense, Yachimovich claimed that the interview was in a question & answer format, and thus the copyright belonged to the interviewee and not to the interviewer. Furthermore, she claimed fair use under Section 19 of the Copyright Act. She argued that the article had no inherent value, no potential for resale and no way of monetizing, and that the reposting on her website only gave further coverage to the article and to the local paper to a fresh audience who would otherwise not have been aware of it.

Finally, the paper had used a publicity photo of Yachimovich without her permission. Although this was a PR picture, it had cost money. This raised equal and opposite copyright issues. To the extent that there were grounds for copyright compensation in the publication of the article, Yachimovich was entitled to equal compensation in use of her picture and the two payments should be offset. Attempts to reach a compromise failed, and the court was authorized to rule on the basis of the evidence submitted without cross-examination.

The first issue that the court grappled with was whether an interview is considered copyright of the interviewer, or if it is a list of answers attributed to the interviewee?

The court accepted that there was copyright in interviews if there was at least a minimum of creativity in the wording of the questions or their arrangement and editing. There was a cute reference to Peah 1: 1 which discusses minimum standards for various Biblical commandments, including visiting the Temple on pilgrim holidays, where the term for sighting the Temple, is identical to the term for interview.

The amount of creativity was at least that of tables and anthologies, and on the basis of the work-product definition, there was copyright in the publication.

Posting the article on the internet website, where some 20% of the interview was posted was considered republication.

The interviewer is more than merely a technician and has rights in the interview. The question of joint ownership of interviewer and interviewee is discussed at length, and the understanding developed is that of use of jointly owned real estate by one party.

Fair Use

Various decisions relating to summaries of newspapers has established that merely relating to copyright materials as being a review is not sufficient to create a fair use presumption. One paper cannot simply quote large chunks of another and claim fair use. On the other hand, there are no simple tests of quantity or quality, and the issue is one of context. In this instance, Yachimovich has created an anthology of newspaper articles and source was accredited. The use is non-commercial. There was no compelling reason for reproduction under the public’s right to know, but review purposes are also considered fair use. The article was not reproduced in its totality, but rather a selection was made. The reproduction neither damaged the circulation of the original paper, nor boosted Yachimovich’s website’s circulation. Yachimovich claimed that reproducing such articles was common practice, but didn’t provide evidence of this. Nevertheless, the claim of fair use was upheld.

Moral Rights

Although moral rights create separate grounds for claiming damages, in this instance, the source was attributed, so moral rights were not compromised.

Unjust Enrichment

Since Yachimovich did nothing underhand, did not profit herself, or prevent the plaintiff from profiting from the publication, it was considered unfitting to consider unjust enrichment beyond the copyright issue.

Statutory damages

Having established fair use, the question of statutory damages was moot. Nevertheless, the judge saw fit to expand a little.

The plaintiff claimed that Yachimovich had made “Political Gains” and since she was an ex-journalist herself and a Member of the Knesset, she should be an example to the public. The plaintiff further argued that with statutory damages, there was no requirement to estimate the actual damages. However the defendant argued that 100,000 Shekels was exaggerated and baseless in this case.

The court accepted that the plaintiff could save themselves the trouble of estimating and proving exact damages, but the court had the prerogative to rule less than maximum damages if it saw fit. In this case, the defendant had immediately removed the offending article, there was no damages and no claims of inequitable behaviour.

Shamgar from 592/88 Sagi vs. the Estate of Abraham Ninio (2) 254, 265 (1992), was cited and Judge Michal Agmon-Gonen in Zoom p. 601 was referred to, noting that when ruling damages one has to look at the damages caused and the warning effect.

In this instance, the case was taken down quickly. The creative piece was an interview of low inherent worth, and the plaintiff had no suffered any damages as the website was not a competitor to the local paper. The defendant’s profit was indirect and minor. The article was posted by a junior and there was nothing inequitable in the defendant’s behaviour. The bottom line is that there is copyright infringement. It is covered by the fair use exception and the damages are zero.

Regarding usage of the photo of Shelly Yachimovich, the copyright claim was only made by way of offset and not in its own right, so once the damages to be offset are zero, the issue is moot. Nevertheless, the picture is a PR photo that is supplied for use by papers. It is a creative work and is owned by Ms Yachimovich as it was work for hire, created for her. The paper, despite claiming to be a local non-profit publication had intentionally used this creative work.

The picture was used to add colour to the article and this is generally accepted use of publicity photos. Although the paper is given away free, it is a profit generating paper that lives off advertisements. Nevertheless, the article had newsworthiness and furthers free speech and other values leading to a conclusion of fair use. The photo was attributed to “Yachimovich PR” which indicates that there was no attempt to profit by it. The photo was a PR photo that was used for PR purposes, and this is fair use. Thus there was no grounds to grant damages to Yachimovich for using this photograph in this manner.

Since the defendant had raised counter claims, both parties had conducted themselves fairly, and related to the issues raised, the judge did not see fit to rule costs.

Civil Ruling 57588-05-12 Danon PR Telecommunications vs. Shelly Yachimovich, before Judge Ronit FinShuk Alt, 3 July 2014 

COMMENT

This seems to be a good decision. It is a timely one as well. Plaintiffs are too quick to sue claiming copyright infringement. There is and should be a robust fair use doctrine.


Secondary Use Claims – Some Thoughts…

June 27, 2014

second use

Yesterday I attended a meeting of the Association of Israel Patent Attorneys in ZOA  House, Tel Aviv. The invitation and program were blogged here.

The topic under discussion was Secondary Use Claims. Unfortunately, I arrived late and missed the first talk by Adv. Yair Ziv, but caught most of Adv. David Gilat’s presentation, that of Dr Ron Tomer, and that of Ena Pugatsch.

The event was well-organized and well attended. From the remains of the refreshments by the time I arrived, they seemed the usual ZOA fayre. Kudos to the committee headed by Ex-Commissioner Dr Noam, for organizing the event. There were 85 participants in the meeting. This is impressive for a highly specialized topic at an event open to a small organization (noting with approval however, that there were both lawyers and in-house patent coordinators present that are not patent attorneys and thus not members, and also trainees).

Adv. David Gilat posited that drug patents were necessary to compensate the drug developers for their investment, and that secondary uses were also the result of research.  Dr Ron Tomer (confusingly called Dr Yaron Tomer in the original invitation to the event) expertly and clearly countered all of Davidi’s positions, and demonstrated that the pharma industry were creatively filing secondary uses that lacked inventive step and were obvious. He gave various examples. Firstly, he referred to sildenafil citrate, originally developed for treating angina and now used almost exclusively as a treatment for erectile disfunction, as a hard problem. (I thought it was a flaccid problem and a hard solution, but I digress). He went on to argue that an oncological drug for one type of cancer may fairly obviously be tried for another type of cancer since the underlying effects of the drug would treat both mutant cells the same way.  He noted that patents were not awarded for research but for inventions. He claimed that there was nothing new in the drug, despite the new use. He gave convincing examples of ever-greening, and also argued that if it is surprisingly found that a drug treatment for gastro-reflux also kills bacteria in the stomach, then the patient using it takes the same drug for the same purpose that he took it for originally. Since the drug is public domain he could take the generic drug, but to kill the bacteria, he’d have to take the patented drug for a couple of weeks and then move back to the generic. similarly, someone taking a generic statin for cholesterol, on being diagnosed as having genetic cholesterol, would have to switch to the patented version offering protection for this ‘secondary use.’ The talk was intelligent and entertaining, and it was a valuable demonstration of the ubsurd results of secondary use patents.

Ena Pugatsch gave an example of a secondary use claim for a mechanical device that issued in Israel and was upheld by the courts. The device in question was a blackboard that could be used as a screen for showing projected images, where the device and method of manufacture were known but the secondary use wasn’t, and the court upheld the patent. Comparing to European case-law and to US law, she felt that the ruling was ‘problematic’ (a nice way of saying that she considered that the court had got it wrong).

When the floor was opened for questions Mr Zebulun Tomer (Ron’s father and the director of Unipharm) took the opportunity, as he has done on other occasions, to give a little impassioned speech, rather than a question. He made some noises about the results of lobbying and argued that Section 7 prohibits therapeutic treatment of the person and that no-one can convince him that a secondary use is anything other than a method of treatment of the person. Instead of merely pointing out that the issue wasn’t convincing him, but of convincing neutral judge, Adv. David Gilat agreed with him, but said that this was precisely what the Use Claim (Swiss type claims) were for – that is, to allow patents for pharmaceutical methods of treatment despite the prohibition for patents for methods of therapeutic treatment, and this was because of the costs incurred in research and development.

COMMENTS

David Gilat spoke well as would be expected from an experienced litigator. Dr Tomer’s response was also very clear and well constructed. Ena Pugatsch is not an orator, nor is Hebrew her first language (or, I expect, her second language). Nevertheless, her talk, though not the most fluent, was the most thought provoking. All three speakers had far too much content per slide, but none are lecturers. Designing good slides is an art.

David and Ron each presented their opposing positions. As Gilat Bareket represents drug development companies and the Tomer family own Unipharm which manufactures generic drugs, their views were hardly unexpected. I suspect that those in the audience actively involved in prosecuting or litigating pharmaceuticals have equally strong positions based on their source of income. (Richard Luthi, another leading litigator who represents pharma, once told me that under the former Commissioner Dr Noam, the pharmaceutical development industry didn’t have a chance. Whether Dr Naom was biased, whether Unipharm had better arguments, or whether Adi Levit is simply a better litigator, is open to discussion).

The percentage of my income coming from work on pharmaceutical patents is very small. I’ve been involved with both local and foreign clients on both sides of the fence. I tend to find the generic companies’ arguments more persuasive, but can’t tell if this is an inherent bias or whether their arguments are actually better. It is also possible that drugs that are opposed or challenged in cancellation procedures are ones that generally should not have issued, and the both the drug development industries and their litigators have an uphill battle. What is clear, is that Unipharm have had some impressive victories in recent years against Mercke, Smithkline Glaxco, Lunbeck, etc.

Ena’s talk got me thinking. I believe that the original Section 7 law against methods of therapeutic treatment is a historic artefact designed to protect doctors from being sued and represents a moral position that despite obvious utility, novelty and inventive-step, such subject matter would not be patentable. It is a remnant from a period predating the modern pharmaceutical industry. David is correct however. Without effective patent protection, drug development companies would not invest the significant sums required to research and bring a new drug to market. The long approval period also justifies patent term extensions. This development is indeed the result of lobbying, but is, nevertheless, justified. What may not have been justified, is to apply the extensions on cases that were already filed, granting the pharma industry a massive handout that perhaps resulted in them NOT investing in developing new drugs.

Drug developing companies can fairly be accused of ever-greening, and their tactics in filing for secondary uses are commercially driven. However, despite the Special 301 Reports, the generic drug industry are not Robin Hood like outlaws. It is there right to challenge the validity of patents, and some applications are allowed that shouldn’t be. Nevertheless, I suspect that sometimes oppositions are filed for commercial rather than solid legal reasons.

The Swiss Claim (use claim) format is a legal work-around the method of therapeutic treatment clause. Use claims are acceptable in European and Israeli law and are essentially method claims. They do not exist in the US, however in the US one can file methods for therapeutic treatment. What one cannot do, is enforce them against the doctor or surgeon.

After TRIPS, it is clear that one cannot exclude drugs from patent protection. One can still have a principle against patenting methods of treatment. However, countries have to allow patent protection for drugs.

As David Gilat reminded us, patent term extensions were indeed allowed as a package with and justified by a bone thrown to the generic industry – the so-called TEVA amendment, allowing the generic companies to experiment and obtain marketing approval, but not to stock-pile generic patents prior to the patent terminating.  However, one right does not balance the other. Mr Zebulun Tomer is correct that the current balance is the result of lobbying. There were lobbyists on both sides. The ‘one size fits all’ patent law does fail for pharmaceutical patents if such patents have, in the past, been allowed after the 20 year expiry date.

As to second use, the first thing to understand is that use claims are method claims and should be treated as such. The Rav Bareakh crook-lock ruling by the Israel Supreme Court allows contributory infringement and inducement to infringe. However, in Srori vs. Regba, the fact that a sink could be mounted flush with the work surface was insufficient grounds to grant an injunction against the importer, since, As Adi Levit argued effectively, the sinks in question could be mounted under the work-surface, or could be mounted with the lip overlapping the work surface (over-mounted) or could be filled with earth and used as a flower-pot.  Thus, the proper infringers were the kitchen installation companies, and there was no effective bottle neck to sue in the supply chain.  Getting back to secondary uses for drugs, lets assume that using aspirin to dilute blood to prevent thrombosis is indeed novel and inventive. This does not prevent patients buying aspirin over the counter for treating aches and pains and then using it for the new patented use. Manufacturers of aspirin are not infringing the secondary use patent. Similarly, generally speaking, patents for secondary uses are not for the drug itself, but for its use in treating a particular illness. They are method claims. I agree with Dr Ron Tomer that the manufacturer is generally not the infringing party. The physician or patient might be, that the US exception against suing health care officials should apply. There are, of course, some particular dosages that are borderline cases. In such cases, the newly packaged drug is a new product. Whether or not, it is also inventive, is arguable.

Referring back to the blackboard; Ena is correct, it was not a new product, nor was its method of manufacture new. The novelty lay in the method of use, i.e. for projecting an image thereonto. The patent provided grounds for suing schools and teachers for direct infringing – both customers of the patentee and of competitors. This is a patent without teeth. If competing manufacturers note that their blackboards may also serve as a screen, is this inducement to infringe? Maybe it would be better for them to note that although the blackboards may be used as screens, this use is protected by Israel Patent Number IL XXXX, and as long as the patent is valid, is not allowed. This is very different from the crook-lock case where the imported part was designed and manufactured for combining with two common elements to provide the crook-lock, and could only be used for infringing the patent, or for a trivial use such as a paper-weight or land fill.

At the end of the day, it is the job of the patent attorney to draft patentable and enforceable claims. I note that in the US, the pendulum has recently swung away from secondary infringement. See US Supreme Court Ruling 12–786 Limelight Networks v Akamai Technologies Inc et al., June 2, 2014. I believe that often these cases result from poor claim drafting, as do Marksman disagreements. In the past, I drafted and successfully prosecuted a  patent for a kitchen sink AFTER Tsrori vs. Negba. See  US6782593B1.  I’ve also had fun drafting together with Adv. and Patent Attorney Tami Winitz a patent for a new method of using an existing heart valve, where I believe the creative claim-set provides enforceability. See US8408214B2.  Patent attorneys drafting applications try to protect their client’s inventions and stretch the law. Litigators opposing patents do the opposite. We all have our roles to play.

 


Franchisee for Sports Broadcasting Fails to Uphold Rights Against Restaurant Screening Matches

June 25, 2014

Football on TV

Charlton LTD claims to be the franchisee with exclusive rights to license the broadcasting of sporting events and sports channels to satellite and cable distributors in Israel. E.M.T. Gormet LTD is a restaurant that screened sports events for benefit of their patrons. Charlton sued the restaurant and its owners for Copyright Infringement, claiming 85,000 Shekels in statutory damages.

Judge Hadassah Assif of the Hadeira Magistrate’s Court threw the case out and ruled costs of 1500 Shekels against the plaintiff.

The Ruling

Citing Appeal to Supreme Court 2173/94 Tele-Event vs. Golden Channels 55 (5) 529, Judge Hadassah Assif  accepted that there was copyright in sports events. Such copyright belongs to the producers or to licensees. In this case, Charlton was not the producer, but claimed to be a licensee. However, Charlton did not provide evidence of having any contract with producers covering the period of alleged infringement.  Thus despite proving that the restaurant had shown sporting events, Charlton could not prove that they had rights to the copyright. Claims of Unjust Enrichment were similarly dismissed.

As to the owners of the company, the court ruled that companies always have owners and actions of companies are generally performed by people. However, company law distances the owners from actions by the company, and one has to show good reason for raising the mask provided by the company as a legal entity.

It was considered insufficient to merely show court rulings and a licensing agreement from a period three years before the alleged infringement and to claim that the legal circumstances were the same. No evidence to the effect that the existing agreement was automatically renewed was produced.  In the absence of a contract clause or a general principle of law, Charlton failed to establish that they had rights in the sporting event.


Israel Supreme Court Upholds Decision to Ban Book

June 24, 2014

privacy

This decision by the Israel Supreme Court concerns an Appeal by an author against a decision by Judge Kanfi-Steinitz of the Jerusalem District Court that included a permanent injunction prohibiting publication of his book and 200,000 Shekels in statutory damages.

The decision tackles fundamental constitutional issues and is notable for its review of Jewish sources as well as democratic ones.

All human beings have three lives: public, private, and secretGabriel García Márquez

The decision relates to the correct balance between the right of free speech and freedom to create on one side and the right to privacy and good name on the other.

The book in question was marketed as a fictional romance but apparently is heavily based on an affair that started in 2001 and lasted 5 years between the author, a married man with children, and a student. Apparently the book goes into intimate detail in the most intimate details of the relationship including preferred sexual practices of the student.

The student, lived with her boyfriend in the appellant’s neighborhood, and worked in a Jerusalem cinema and studied art. The appellant got to know the defendant in the cinema and eventually an intimate relationship developed. This was kept private at first, but was later known to their close acquaintances and was afterwards described in the novel. Once the relationship became known, the appellant divorced his wife and the defendant separated from her boyfriend.

The defendant’s final art project was prepared whilst the affair was ongoing and related to the male-female relationship. In 2004, the appellant worked on his own creation, a novel based on the drama of the dissolution of a family. The novel describes the intimate relationship between a man of the age of the appellant suffering from an unfulfilled marriage, and a young student that he meets in a cinema. The man’s employment is that of the appellant, the cinema is where the defendant worked and, in the book, the man was married, a parent and living in Jerusalem, and the woman was single, living with her partner in rented accommodation near to the man.

The book was published with much marketing fanfare, including reviews in weekend supplements, television and internet interviews and the like. On publication the woman sued the author and the publishing house claiming that the book was autobiographical and went into intimate detail of the physical aspects of the relationship and was a serious invasion of her privacy, libel and slander and since use was made of her letters, also gave rise to an independent copyright suit. The publishing house recalled the books and stopped their sale, pending the court ruling.

The sides were unable to settle their differences and the Jerusalem District Court issued a temporary injunction against distribution of the book that Judge Gronis (now president of the Supreme Court) refused to annul.

The woman claimed that the book provided her full resume, a description of her appearance, body, likes and dislikes, character, weaknesses, conscience, sexual preferences and intimate relations. It also described her artwork. She argued that the book exposed her to acquaintances and caused her much personal and professional distress.

The author produced expert literary witnesses who argued that the book was a work of fiction, that may have been based to some extent on the author’s experiences, but that is generally the case with fiction, and preventing publishing would damage the literary arts. The author went on to allege that the woman noted the similarities to herself, but was oblivious to the substantial differences. She knew about the book and was given the opportunity to review parts of it, but decided to wait for the publication, and he claimed that this should estoppel her case. He claimed fair use, the right to self-expression, an implicit license to publish since she was aware of the book during its preparation, and that the injunction was a serious damage to his right to create and to self expression.

The publishers claimed that they published the work in good faith as a work of fiction and were unaware of any autobiographical elements. They also noted that they withdrew the book on learning of the woman’s charges.

The District Court’s Ruling may be found here

Grounds for Appeal

In the Appeal, the author argued that the issue was not whether the source of one’s inspiration could be guessed, but whether one would assume that the details described are true. (This is an interesting argument. What the author is suggesting is that if he describes a relationship involving, say bondage, fellatio and cunnilingus, how could anyone other than the partner know what was based on their intimacy and what was the results of his imagination?).

The author argued that although he claimed that the work in question was fictional the District Court’s ruling lacked balance and would effectively kill off the entire genre of autobiography since any book about oneself relates to one’s relationship with others.

The author further argued that to be found guilty of invasion of privacy, intent is required, and was lacking in this case. The woman countered by saying the total disregard of her reputation was sufficient. The author further argued that since the woman’s name does not appear, there cannot be an invasion of privacy. It was, he felt, inconceivable that story-teller could be hauled up in court on grounds of invasion of privacy for alleged similarities between a fictional character and an acquaintance.  The author accused the District Court of unfairly meddling with literary editing. Whilst he could have used a pseudonym, the use of his real name did not necessarily give rise to identification of the inspiration of the woman character.

As to the District Court’s argument that the author could have disguised his source of inspiration, he responded that this was based on hindsight and did not prove that he had malicious intent.

The Author requested the opportunity to reedit his work and remove references that might identify the woman, arguing that a complete ban lacked balance. The Author further argued that the book was praising of the woman’s artistic exhibition and that she was aware that he was writing a book, had shown no interest in reading it prior to publication and had therefore implicitly consented to it being written. He felt that the correct balance between freedom of expression and right to privacy was intent to harm, which was not proven. Furthermore, he argued that even if poor judgment could be shown, that was not, in and of itself, sufficient to find him guilty.

The author argued public interest and produced testimony of a reader who found his treatment of the subject matter helpful. Finally, the author suggested that any damages should be borne by the publishers who benefited from the publication of the book.

 

Counter-arguments

The woman argued that the District Court’s decision was fair and just. She suggested that censorship of autobiographies and creative work should only be allowed in the most extreme circumstances, but felt that this case, where every aspect of her personal and private life were exposed was such an extreme circumstance.

She argued that the District Court had already ruled that this was a publication of an intimate relationship in the guise of a novel, and not a work of fiction. All claims to a the book being a work of fiction were voided by the constant references to events and places that related to her and the author as a couple, and that third parties were aware of.

The woman rejected arguments that the correct defendant was the publisher and that the time past from the affair made the whole issue moot. As to the argument that the similarities were outweighed by the differences, she considered that not to be the case in this instance. She was in favour of literature and was aware that much literature is based on fact. She was against wholesale censorship, but felt that the facts in this case with the major invasion of privacy justified extreme measures.

The woman considered that in such cases, proving intent to harm was not the correct standard and that the total disregard for the effects of publication was sufficient to rule guilt. She noted that in addition to hurting her, the author’s ex-wife and children had also exhorted him not to publish.  She dismissed claims of an effective agreement to the publication by noting that the District Court had accepted that she was unaware of the intimate and graphic nature of the writing.

The Author cited US case law concerning the ‘people’s right to know’. The woman argued that where the persons concerned are public figures and where the level of invasion of privacy is minimal, there is some justification for publication, however she was not a public figure and the invasion of privacy in this case was neither incidental nor trivial. She argued that 200,000 Shekels damages was far from the maximum that the court could have ruled and was therefore reasonable, particularly when compared to rulings in other cases of invasion of privacy. She also argued that she was entitled to copyright damages for reproduction of her love-letters. The court noted that this was not part of the appeal and therefore they could not address this issue.

 

The Ruling

The Supreme Court first established a normative framework for considering freedom of expression, rights to publish an autobiography and rights to privacy and then went on to relate to the specific case.

The court noted the fundamental importance of Freedom of Expression but considered that where it might invade someone’s four cubits of privacy, the issues involved are fundamental to constitutional values. Since the State of Israel is a Jewish Democratic State, the judges first analyzed the issues from Jewish and Democratic sources. In this regard, we note that the main ruling was by the Hallachically Observant Judge Noam Solberg.

Citing Talmud Bavli, Taanit 8bBlessings are only found in that kept out of sight“, Judge Solberg noted that airing private matters in public in an untimely manner without full consent could destroy worlds.

Judge Solberg acknowledged that Freedom of Expression in general and autobiography in particular were vital interests. The court considered that the interaction of these essential values with the conflicting right of privacy is the kernel of this ruling.

The Court considered Freedom of Expression an essential anchor of democracy and of paramount importance in a divided and polarized society such as Israel. Noting that Judaism has always promoted dialogue and discussion as summarized by the maxim “These and these (contrary positions) are the word of the Living God” Talmud Bavli Erubim 13b.

Referring to the classic ruling 73/53 Voice of the People vs. State of Israel, the court noted that the importance of free speech cannot be exaggerated.

The court argued that both the democratic tradition and Judaism accepted plurality of expression and the right to express one’s opinions, and cited the introduction to the Hallachic work Arukh HaShulchan (Yechiel Michel Epstein (1829-1908)) to the effect that the glory of the Holy Torah is a Cocophany of Disparate voices creating a harmony, and referred to Meny Alon in 2/84 Neiman vs. Central Election Committee and to Aviad HaCohen‘s essay “Freedom of Expression, Tolerance and Pluralism in Jewish Law“. The Court posited that Former Chief Justice Barak had accepted that freedom of expression was based on both Democracy and Judaism in 6129/84 Senesh vs. the Israel Broadcasting Authority (1999).

The court went on to note that freedom of Expression is not limited to political views but also encompasses artwork, and protected the rights of artists to break conventional boundaries, citing Appeal to Supreme Court 14/86 Leor v. The Authority for Critiquing Films and Plays, the court noted that it is not just consensus views and opinions that are complimentary to the authorities that are protected, but also the rights to break boundaries and to produce artwork of ‘low inherent value, indecent pornography, political and deviant work.’ Referring to an essay by Alexander Ron in a weekly Study Sheet – Parshat Shevua, BaMidbar 5762, the court argued that such rights were also accepted in Jewish Law.

The court was not sure if Freedom of Creativity was derived from Freedom of Expression or is an independent right, but, paraphrasing the Yom Kippur Hymn, whether independent or derived, there was consensus that the silver smith had the right to both purify and to alloy his material.

As far as Autobiography is concerned, the court accepted that this has equitable value to the author and that people have the right to express themselves, but that this has to be balanced with possible damage to others. Citing Rabbi Kook (first Chief Rabbi of Israel pre-State and something of a mystic):

Literature, drawing and sculpture are realizations of the spiritual values inherent in humanity and as long as there is a drawing based deeply in a soul that has not yet been placed on paper, there is an obligation to produce it“.

The Court noted that without allowing people to express themselves to hear and be heard, to read and to write, man’s humanity is damaged and his spiritual development and intellect are stifled and prevent him from realizing himself.

As far as autobiography is concerned, the court noted that in the era of cheap publishing, internet and blogs, autobiography is not the province of the selected few, but anyone and everyone should be able to express himself and record his life story. Furthermore, truth is not a universal truth knowable in advance, but reveals itself through an appreciation of different life experiences and perspectives and to the extent that more people record their lives, the sum of human knowledge will grow. Since different people are more influential and the media is biased, it is of societal interest to encourage as many people as possible to record their experiences and to the break monopolies on knowledge.

What the court has done is to show that knowledge in general and autiobiography in particular are democratization, giving a vote and a value to the individual separate from the collective.

Citing the Maggid of Mezeritch (a Hasidic Master 1704 – 1772), Judge Solberg challenged the Appelant’s assumption that free speech was necessary for creativity, and suggested that privacy may be more essential. The Maggid noted that the great act of creativity is procreation which is (normatively) a private act. Also, a seed needs to be covered in the dirt and hidden from view to germinate.

He noted that elections are only democratic if they are preceded by an opportunity for people to express themselves and their concerns and accompanied by debate and attempts to persuade by argument.

The court sees a problem with gatekeepers and sensors, media and political censoring  The courts noted that the democratization effect of social media has forced dialogue and change in surrounding totalitarian Arab regimes. Democracy without free speech is considered a soul-less regime.

Nevertheless, despite the centrality of freedom of expression, creative expression and autobiography, the court does not accept these values as being absolute. The court ruled that my freedom of action stops at your nose. My freedom of expression does not allow slander or libel. It does not justify damaging national security, creating a civil disturbance or the right to give false witness in court.

The right to privacy is enshrined in Section 7 of the Basic Law – Respect of Man and His Freedom 1980 which states that each man is titled to privacy. One does not enter a person’s territory without permission. One cannot search a person, his body or chattels, and one must not damage a person’s self expression, writings or records.

The courts have upheld the rights to privacy. This again, is subject to checks and balances:

Objectifying another person for one’s own gains damages his personal integrity:

“Man, and in general every rational being, exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. He must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end… Persons are, therefore, not merelysubjective ends, whose existence as an effect of our actions has a value for us; but such beings are objective ends, ie, exist as ends in themselves.” (Immanuel Kant, Groundwork of the Metaphysic of Morals, 428 (H. J. Paton trans., 1964)).

It is totally forbidden to use someone else’s person for one’s gain, and the privacy of the individual is the hard core (maybe an unfortunate choice of wording?) of his person.

 “The injury is to our individuality, to our dignity as individuals, and the legal remedy represents a social vindication of the human spirit thus threatened rather than a recompense for the loss suffered.” (Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 1003 (1964)

To conceive someone as a person is to see him as actually a chooser, as one attempting to steer his course through the world, adjusting his behavior, as his appreciation of the world changes, and correcting course as he perceives his errors. It is to understand that his life is for him a kind of enterprise, like one’s own… To respect someone as a person is to concede that one ought to take the account of the way in which his enterprise might be affected by one’s own decisions. By the principle of respect for persons, then, I mean the principle that every human being, insofar as he is qualified as a person, is entitled to this minimal degree of consideration”(Stanley I. Benn, Freedom, and Respect for Persons, in privacy & personality 1, 9 (J. Roland Pennock and John W. Chapman eds., 2009)).

The right of privacy, is a consequence of the Right of Human Dignity, see Civil Appeal: Eloneal vs. Mc Donald, 45(4) 314, Judge Rivlin there, Anon. in A Barak‘s ruling, Ruth GavesonThe right to privacy and respect, articles in memory of Shelach 61 (1988).

Functional Justifications

Normative existence in a democracy requires trust between people, particularly those in intimate relationships.

There are a number of theories that confidence and privacy are necessary to allow a person to fully develop and realize himself. George Orwelles’s 1984 is given as an example of where this privacy is not respected.

Brandeis:

 “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.” (Olmstead v. United States, 277 U.S. 438, 479 (1928).

The man who is compelled to live every minute of his life among others and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality… Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones” (Bloustein,.(1003

See also R. v. Dyment, [1988] 2 S.C.R. 417, and the Birnhack on the Rights for Privacy in Law and Technology.

Privacy differentiates between the ‘I’ and society, and defines a space where the individual is left alone to develop as an individual without external interference (the Dayan case).

Liberty includes the right to live as one will, so long as that will does not interfere with the rights of another or of the public. One may desire to live a life of seclusion; another may desire to live a life of publicity; still another may wish to live a life of privacy as to certain matters, and of publicity as to others. One may wish to live a life of toil, where his work is of a nature that keeps him constantly before the public gaze, while another may wish to live a life of research and contemplation, only moving before the public at such times and under such circumstances as may be necessary to his actual existence. Each is entitled to a liberty of choice as to his manner of life, and neither an individual nor the public has a right to arbitrarily take away from this liberty” (Pavesich v. New England Life Insurance Co., 50 S.E. 68, 71 (Ga 1905)).

 Citing the Medieval commentator Rashi and the Midrash Tachuma on Exodus 34:3, the Ten Commandments were first given publicly with thunder, lightening and the sounding of the ram’s horn (audio-visual extravaganza?), but the evil eye was therefore upon them and they were broken. The second set were given in a small quiet voice and were the ones that lasted.

The decision continues to cite widely from Jewish sources, Aristotle and modern legal and philosophical works to show that Man needs relationships: It is not good for man to live alone Genesis 2:18, Man is a political animal Aristotle Politicals Book I 28-37, a study partner of death (Bavli, Ta’anit 23a). These sources indicate that every one of us is involved in a plethora of relationships in our complex lives, each of which has its own character.

The relationship between man and wife has a  character of intimacy that the Law  protects. Most clearly in the legally defined relationship of Man and Wife, but this is extended to long term, steady Common Law relationships which also have legal recognition and responsibilities of confidentiality. It is precisely for this reason that Rabbinic Responsa Nahlat Sheva, Contracts 9) rules that business circumstances where a man is unable to give witness, his wife is also unacceptable. A man can appoint his wife as his proxy for actions that a third aprty would not be acceptable for,, and In Israel Law of Evidence 1981, in criminal law, spouses may not testify against each other.

In the novel, it is the woman’s right not to be exploited and to have her privacy respected.

COMPARATIVE LAW

English Approach,

In the past, the available tort was Breach of Confidence, which depends on the type of confidence, how it became known and whether there is an assumption of confidentiality.

In the past decade, the British law has expanded this. Lord Hoffman in Campbell:

“The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.”

In personam rights have in rem obligations. Notice is made of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Australia

Not all acts taking place in private on ones private property deserve confidentiality, a factory owner claiming that the method that opposums (why isn’t this opposii?) were killed in his factory was confidential, was rejected.

“There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private. (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63).

New Zealand – see P v D [2000] 2 NZLR 591 and alsoWilliam L. Prosser, Privacy, 48 Cal. L. Rev. 383, 396-397 (1960).

“20. ….article 10(2), (like article 8(2)of the European Convention for the Protection of Human Rights and Fundamental Freedoms), recognises there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way. When both these articles are engaged a difficult question of proportionality may arise. This question is distinct from the initial question of whether the published information engaged article 8 at all by being within the sphere of the complainant’s private or family life.

21. Accordingly, in deciding what was the ambit of an individual’s ‘private life’ in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”

Lord Hoffman in Cambell:

  “I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it isnecessaryto qualify the one right in order to protect the underlying value which is protected by the other. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA is publicised in his local newspaper. The violation of the citizen’s autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information”

“The weight to be attached to these various considerations is a matter of fact and degree. Not every statement about a person’s health will carry the badge of confidentiality or risk doing harm to that person’s physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press’s freedom to report it.” The Baroness Hale Of Richmond

In A v B [2003] Q.B. 195 (C.A. 2002), concerning a British footballer’s one night stand with two women, revealed to the press by one of them, despite anticipated damage to footballer’s family:

“The fact that the confidence was a shared confidence which only one of the parties wishes to preserve does not extinguish the other party’s right to have the confidence respected, but it does undermine that right.  While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it”

As contrasted with Ms Kennitt and Ms Ash:

 “… the relationship between Ms Mckennitt and Ms Ash…was miles away from the relationship between A and C and D. In the preceding paragraph I deliberately and not merely conventionally described the latter as a relationship of casual sex. A could not have thought, and did not say, that when he picked the woman up they realized that they were entering into a relationship of confidence with him.”

Thus in A and B, the shortness of the relationship did not create an obligation of confidentiality on the women, who had the right to enjoy their moment of fame and Mirror payment for their story. Here, the relationship lasted 5 years and the rights and obligations, whilst not sanctified by marriage, are, nevertheless, recognized by the Law.

EUROPEAN LAW

In  Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 ECHR, the rights of the Monacao royal family to prevent photos of them on holiday is discussed. Considerations regarding bannig  publication include the extent to which the material contributes to public discussion, whether the personalities are public or private, the person’s attitude re publicizing the material in question, content, form and consequences of publication and how the material was obtained.

It is noted that Continental Law greatly respects the rights of public figures to have a private life:

“Even serious public interests cannot justify encroachments of this area; an evaluation according to the principle of proportionality does not take place” (BVerfGE 80, 367 (1989) NJW 1990 563).

Code Civil [C. CIV.]:

“Everyone has the right to respect for his private life. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

AMERICA

Restatement (Second) of Torts, § 652 (1977)  ‘Public disclosure of Private facts’

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that:
(a)  would be highly offensive to a reasonable person, and
(b)  is not of legitimate concern to the public”

Campbell v. Seabury Press, 614 F.2d 395 (5th Cir. 1980)

“A review of the record in this action clearly shows the requisite logical nexus. An account of the author’s close association with his older brother certainly is appropriate in the autobiography. Likewise, accounts of his brother’s marriage as they impacted on the author have the requisite logical nexus to fall within the ambit of constitutional protection”.

In America, Freedom of Speech is protected by the constitution, privacy, is however, is not. As noted by Judge Miriam Naot, it is thus possible that in a similar case the US, the courts would reach a different conclusion from that of Israel and other Common Law countries

In Bonome:

“As noted above, there is an additional interest in this case: Kaysen’s right to disclose her own intimate affairs. In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story–which inextricably involves Bonome in an intimate way. In this regard, several courts have held that where an autobiographical account related to a matter of legitimate public interest reveals private information concerning a third party, the disclosure is protected so long as there is a sufficient nexus between those private details and the issue of public concern. Id.; Anonsen, 857 S.W.2d at 705-06; Campbell v. Seabury Press, 614 F.2d 395, 397 (5th Cir. 1980). Where one’s own personal story involves issues of legitimate public concern, it is often difficult, if not impossible, to separate one’s intimate and personal experiences from the people with whom those experiences are shared. Thus, it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident”.

In Israel, where the rights cannot coexist, it is fitting for the right of expression of one party to give way to the right of privacy to the other.

The Supreme Court quoted Jewish Rabbinic sources, philosophy, political and Israeli and foreign legal sources to try to provide a framework for balancing the conflicting rights of privacy and self-expression. They acknowledged that literature is often based on fact, but upheld the district court’s ruling that acquaintances of the woman would recognize her, and that she was entitled to privacy. The details of the character could and should have been changed more significantly.

The main Judge, Noam Solberg (who is religious and Jewish) declined from illustrating how the woman’s sexual habits were described, since this would damage her privacy, but noted that his ruling was written after reading the novel in its entirety. The ruling of the district court was upheld by all three judges.
Deputy Supreme Court Judge Miriam Naot (Secular, Jewish) also noted that she had read the book but considered that it would be improper to go into the salient details, but she felt that the invasion of privacy exceeded a release of a film of their bedroom romping since it attempted to get into the woman’s  head.

Judge Jubrian (Moslem) felt there was a vital constitutional right to allow of freedom of speech on political subjects, including views that one disagrees with and minority-held extreme views have a right to be heard. This constitutional right does not have the same validity when the rights of others are trampled on. Judge Jubrian ruled than on fundamental political issues the right for the freedom of speech is paramount. In this case the author could have taken pains to create a work of literature that was less invasive. As an alleged work of literature it is not entitled to the protection forwarded to autobiography.

The ruling was held unanimously and the man was fined NIS 750,000 and legal fees.

Civil Appeal 8954/11 Plony vs. Plonit, Supreme Court.

 

COMMENTS

  1. This decision may be slightly off-subject for an IP Blog, but the original case was reported since the woman claimed copyright infringement in personal letters that were reproduced. As the decision is an important one, is well reasoned, and since I am in favour of promoting Jewish Civil Law, I am happy to blog it to bring it to the attention of the English speaking world, and suspect that it will generate a lot of interest. I have reported this case at length since I was approached by a British QC to report on the case.
  2. In Memoirs Of Fanny Hill By John Cleland (London, 1749), a fictional memoir of a woman of pleasure, the male characters are referred to as Lord D, Mr H, etc. Road names are changed. It does seem that this is the correct standard.
  3. In many ways this is the literary equivalent to a recent decision in Germany where a woman who had an affair with a photographer obtained an injunction preventing the publication of compromising pictures of her. Indeed, Judge Miriam Naot ruled that were the man to publish compromising photographs of himself with the student, clearly the court would agree to a request by the student to impound those pictures. The present case was considered more exposing, in that it also attempted to describe what went on in her head.
  4. The Campbell case related to drug dependency of the model Naomi Campbell. The relevance of this decision to newspapers publishing photos and articles concerning royalty and political figures (Duchess of Kent changing bikini, Prince Harry in Las Vegas, Bill Clinton and Monica Lowinski, Mosley Junior with prostitutes in Nazi uniform, Netanyahu’s affair, etc) is clear.
  5. People are entitled to privacy in their private lives. Letting someone into your bedroom does not give him license to expose what happened there to the rest of the world.
  6. I believe that the ease with which anyone can publish words or pictures taken with a mobile phone and reach an unlimited audience with blogs, facebook and the like, justifies the Supreme Court’s stance.
  7. I am unhappy with all three judges referring to the male and female characters as the hero and heroine of the book. I see to reason to romanticize an affair that broke marriage vows and left other people hurt.
  8. Despite the precedents mentioned, the there have been cases of curtailing free speech by both the Israel courts and by the Jewish religious leadership.
  9. The Israeli courts did indeed allow a communist paper to flourish and Kol HaAm is an important decision. Communists are one thing. The same Supreme Court later banned the popular Arutz 7 radio station in an en blanc that doesn’t even mention the value of freedom of speech and expression, ignoring the fact that those who campaigned for this important nationalist voice to be silenced were the same people who wanted Abu Natan, the DJ behind the Voice of Peace to receive a Nobel Prize. The Minister of Communications who created legal private radio stations, Shulamit Alony intentionally crafted the law to block Arutz 7.
  10. Former Arab Knesset members who were later found to be spying for Syria were not banned, but Meir Kahannah was banned from running for the Knesset due to his right wing politics. In general, we note that it is dangerous to ban political parties as it makes outlaws of ideologists and moves them outside the system. It also boosts their attraction.
  11. The books of Maimonides, Gersonides and Spinoza were banned. The Chassidic movement was banned in its day. More recently the late Rav Shach banned Rabbi Steinzalz, Rav Schneerson, Rav Riskin and Rav Lichtenstein. There were recent attempts to dicommuniate Rav Stav. I am scared by those that know the whole truth because God speaks to them. A few years ago, some extreme ultra-Orthodox rabbis created the concept of Daas Torah. They apparently have a monopoly on the truth. Dangerous. Let ideas win in the market place.
  12. Generally, excommunication and banning merely makes a work or a rabbi more popular, this is true of forbidden literature and music as well.
  13. Banned views sometimes become main-stream over time. Let the Sun Rise was banned and is now main stream in Israel. We note that the Rolling Stones are performing in Israel this summer. They’ve been banned before.
  14. Judge Noam Solberg is a settler living in Gush Ezion, a West Bank enclave that is a rebuilding of settlements destroyed in 1948. His ruling was adored by Mekor Rishon and was criticized by HaAretz. We wait to see whether this is a one-off ruling or whether the Jewish scholarly and legal traditional will be influential in future rulings.
  15. So the courts aren’t perfect. I think this ruling is nevertheless correct. I’ve recognized characters in books where the authors haven’t changed names. In general, this should be avoided, at least as far as personal lives are considered.

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