Kiss but don’t tell

In a case referred to as Plonit vs Ploni and Almonit (from Ruth 4:1), the Jerusalem District Court has issued an injunction to recall a book written by a student “Ploni” (i.e.  John Doe), that documented his relationship with a second student “Plonit”  (i.e.  Jane Doe) that he had previously enjoyed a romantic liaison with.  The relationship was originally kept discreet as Ploni was married and the student was living with her “Significant Other”, but eventually their circle of friends knew about the relationship, and, after Ploni separated from his wife, he was known to be living with the student.

A temporary injunction to recall unsold books and to prevent their circulation and further publication was obtained fairly quickly and upheld by the Judge Gronis of the Supreme Court. This ruling concerns making the temporary restraining order permanent and alleged damages to the plaintiff.

The plaintiff claimed that her private and public world were described in graphic detail, including her body, emotions, weaknesses, conscience, activities and preferences for sexual stimulation. She alleged that the publication damaged her privacy, good name, and cruelly exposed, shamed and insulted her. Furthermore, since extracts of some of Plonit’s letters were published, and her final college project was described, there were charges of copyright infringement in addition to invasion of privacy.

The publisher claimed ignorance of the biographical aspects of the book and that they were under the impression that the work was pure fiction. On the suit being filed, they recalled the unsold books pending judgement. However, nearly one thousand copies were already sold by then.

The defendant led a spirited defense to allow publication, and brought expert opinions of literature professors Ariel Hershfeld, Hanan Hever and Mira Magen to substantiate his claims that the style of the work was that of fiction. He claimed a free speech defense, alleging that allowing the plaintiff to prevent publication of a fictitious work based on alleged similarity would prevent the publication of fiction in general, since the author invariably draws on his/her life experiences.  He further asserted that the public interest was to allow publication, in that the subject matter of broken families and relationships are of clear public interest.

In her ruling, Judge Kanfei-Steinitz found the publishers claim of ignorance convincing and dismissed the charges against them.

Though recognizing the value of free speech, she ruled that free speech is not absolutely protected and a balance needs to be struck between free speech and other rights, including the right to privacy, noting that both are fundamental rights, with right to privacy being protected by the Basic Laws. In addition to the case-law, she quoted from the ruling by Supreme Court Judge Gronis, concerning the appeal to the temporary restriction order in this case, where he pointed out that one of a couple in an intimate relationship is entitled to prevent the other party from publishing details of that relationship as this is fundamental to society.

The plaintiff’s case was strengthened by the defendant’s ex-wife’s attempts to prevent damaging details about her and the children being published and by a recording of a conversation between herself and the author where she asked him how he could publish all the details of their relationship.

Due to the nature of the final year project of the heroine of the book, her place of study, the area where she lived and where her parents lived, her physical description including build, hair and eye colour and tattoos, and the clear identity of the author who wrote in the first person without a pseudonym and was known to have lived with the plaintiff, Judge Kanfei-Steinitz ruled that whether or not the work was categorized as fiction, there was a clear and compelling case that there was an invasion of privacy and that the balance between literary freedom and right of privacy justified preventing the book from being published.

In addition to ordering the books recalled, the court ordered that Ploni pay NIS 700,000 in damages for invasion of privacy according to the abstract (NIS 200,000 according to the end of the ruling – so the actual sum is unclear) and a further NIS 50,000 costs.

T.A. 3213/09 Plonit vs. Ploni and Almonit, Judge Gila Kanfei-Shteinitz, Jerusalem District Court, 11 October 2011.

COMMENT

The copyright issues in this squalid case are actually quite interesting since the author can claim a moral right to his work, in addition to freedom of expression. Nevertheless, I think this judgement was correct to focus on the privacy issues.

One wonders how much the good name of a known adulteress and family breaker is actually worth. then again, I don’t know whether the damages awarded were NIS 200,000 which seems rather low and NIS 700,000 which seems a little high. I concur with the judge that the plaintiff is entitled to prevent her ex-partner from publishing intimate details of their relationship in the guise of fiction. Sadly, I suspect that the nearly a thousand copies sold before the recall and following excerpts published in the weekend papers and described in television interviews, were no doubt largely snapped up by acquaintances of the litigants.

The decision is a good one, and seems very thorough and well-reasoned.

As to the public interest, a distinction should be made between what the public is interested in knowing and what is fairly considered as public interest.

Ayn Rand: “The idea that ‘the public interest‘ supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others.

James Wilson: In the long run, the public interest depends on private virtue.

 

2 Responses to Kiss but don’t tell

  1. ruth soetendorp says:

    You couldn’t make it up….. Devising exam questions is always an arduous task. Thanks, Michael, for sending decisions that trigger the creative juices to write scenarios which hopefully will stimulate the students to demonstrate what they have learnt.

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