Satire and Right to Privacy

hallakha

This case concerns use of a private person’s image in a satirical newspaper column. Rabbi Israel Sheinfeld is the Hassid in the image. The picture appeared in a satirical weekend supplement of Yidiot Achronot, Israel’s largest circulation newspaper.

The picture is a photo-montage. It satirized a mobile phone provider’s advertising campaign. In context, the joke is not harmful and the Rabbi Sheinfeld was not even the target of the joke. He was, however, offended, and believes that the joke made him the subject of ridicule, might have resulted in being sacked, and could affect his career as a Rabbinic Judge. He sued the paper for 200,000 Shekels in statutory damage on grounds of invasion of privacy, slander and libel.

Background and Historical Background

The photograph of Rabbi Sheinfeld appeared close to Lag B’Omer 2009. Lag B’Omer is a minor Jewish festival linked to the Bar Cochba Rebellion against the Romans and is apparently the anniversary of the death of Rabbi Shimon Bar Yochai, a Rabbi who went into hiding from the Romans in a cave and lived on a diet of Carobs and water, continuing studying Jewish texts. There is a custom of not having hair-cuts during the 4 1/2 week period from Pessach (Passover) to Lag B’Omer as a sign of mourning for the a a large number of disciples of Rabbi Akiva who backed the Bar Cochba rebellion and were put to death (Responsa of Rabbi Sheririya Gaon). There is an alternative tradition that as a punishment for needless hatred they succumbed to a plague resulting in a choking death. In all probability, the disciples were active fighters in the rebellion which failed due to lack of unity. For obscure reasons, some Jews postpone giving their male sons a haircut until this date after the child’s 3rd birthday, when the haircut turns into a Joyous right of passage.  Rabbi Shimon Bar Yochai is (falsely) attributed with authoring the Zohar – the most central Kabbalistic text.

Just previous to Lag B’Omer in 2009, Cellcom, a leading Israeli telecommunication company had a company for Cellcom Family, a package deal of mobile phone communication aimed at families. This advertising campaign  features a female punk returning home to her Religious family,  where she is welcomed with open arms, under the slogan “the family is the most important thing”.

Statement of Case

  1. The complainant is Ultra Orthodox, married and a father of children. He is known to be modest and unassuming and observant of the religious commandments and practices of the his community. He is an ordained Rabbi who is studying to be a Religious judge.
  2. In 2004, the plaintiff took his son to Mount Meiron for the traditional haircut at aged 3.During the ceremony Mr Gil Nehustan, photographed the plaintiff whilst holding his child during the hair cut, and the picture appeared in Yediot Aharonot that year.
  3. In 2009, the plaintiff learned that the newspaper had recycled the image but this time, instead of holding his son, Rabbi Steinman is shown holding a provocative female model.
  4. Rabbi Steinman alleges that the photo-montage damaged his reputation and his privacy, particularly as the photograph was contrary to his Ultra-Orthodox values. As a Rabbi and a candidate judge the picture could prevent his appointment and make him an object of fun instead of a character commanding respect as a man of the cloth.
  5. On 29 September 2009, the plaintiff approached the newspaper and requested compensation and a public apology, but the paper chose to ignore him.
  6. The plaintiff considers that making him an object of mockery is libelous. There is nothing in artistic freedom or freedom of speech to allow the fabrication of degrading and insulting pictures and the insulting of his entire community by making fun of himself, a private individual. The plaintiff notes that he was a private individual and not a public figure who exposes himself to satire.
  7. The picture was intentionally degrading or at least its creators ignored its degrading potential in a manner that was equivalent to intent to libel and damage his privacy. Citing Section 30a of the Law of Privacy, he was entitled to sue the editors and the publisher. In practice, he suffered real damage, but it was impossible to value and so he requested 200,000 Shekels in statutory damages; 100,000 Shekels or invasion of privacy and 100,000 Shekels for libel and slander.

The Statement of Defense

  1. The picture appeared in the satirical column and didn’t relate to the plaintiff or make any claims about him.
  2. The picture is neither libelous nor invasive of privacy.
  3.  The picture appeared prior to Lag B’Omer with its customary ritual haircuts on Mount Meiron. The item satirized the “Cellcom Family” advert which features a punk girl with a spiky haircut who returns to her religious family which accepts her with open arms.
  4. The advertisement played on the family ties and the conflicts between secularity and tradition. It was widely broadcast on commercial television and was thus a target for satire and criticism.
  5. The picture appeared in the satire column and was a joke, in that the punk girl went one stage further towards her traditional religious family and decided to undergo a ritual haircut on Meiron. This joke did not relate to the plaintiff
  6. The photo-montage applied Cellcom’s punk girl to a consensual picture of the plaintiff taken at a hair-cutting ceremony five years earlier.
  7. The picture is clearly faked and not a real photograph and its appearance in a satirical column clarifies that it is satirical as does the title “after returning to the bosom of the family, the punk from the Cellcom Campaign has a ritual haircut in Meiron”. No reader would consider this as being an authentic picture of a ritual haircut ceremony and it is clear that it is fictitious. The hair-cutting ceremony is a well known custom, certainly among religious and Ultra-Orthodox and it is well known that it involves three year old boys and not teenage girls.
  8. The satirical column is clearly just that. The adjacent picture shows the Pope apparently claiming that Jews crucified him, and it is clear that the items are made up.
  9. The plaintiff is upset about his picture being used in a satirical column but this is a baseless complaint since the original picture was taken in public or with his consent. The photo-montage is clearly that; the plaintiff is indirect to the item, his name is not mentioned, his picture is small, out-of-date and unclear. The item does not relate to him. In this instance, the picture is not damaging to the plaintiff.
  10. There is nothing in the item that can be taken as offensive or degrading to the individual or to the Ultra-Orthodox, and all claims to the contrary are taking the publication out of context.
  11. The editor of Efes, the third defendant is himself a son of the Ultra-Orthodox community. The Efes column was originally founded by Ultra-Orthodox journalists and covers issues relating to the conflict between religious and secular in Israel. The item in question is not insulting to the Ultra Orthodox in general or to the plaintiff in particular.
  12.  The picture is clearly photo-montage but is not a provocative photo-montage. It satirizes the Cellcom family oriented campaign.
  13. The plaintiff is trying to create a picture that the Ultra-Orthodox world has no sense of humour and no understanding, and what is clearly a satirical image created for a satirical column will be understood by them as authentic.
  14. There is no room to conclude that the defendants intended to harm the plaintiff. The article is related to Cellcom, not the plaintiff and not Ultra-Orthodox. The defendants did not know the plaintiff and his name is not mentioned.
  15.   When the plaintiff contacted the paper, the defendant’s representative attempted to contact him in vain, and sent him a fax inviting him to make contact.
  16. The publication is not an invasion of privacy as defined in the Law of Privacy 1981, and is not Libelous as defined in the Law of Libel 1965.
  17. Since no reasonable reader would consider the picture as relating to an authentic situation but merely to a satirical situation this cannot be considered either libelous or an invasion of privacy.
  18. The picture appeared in a satirical column and satirized Cellcom who used the conflict between secularism and tradition for a commercial advertisement. The item was tongue-in-cheek and the plaintiff is taking it out of context in a baseless attempt to collect legal damages.
  19. The defendants are entitled to all statutory defenses for libel and invasion of privacy. They deny damages in general and the claimed damage in particular and claim that the plaintiff is attempting to claim twice for the same action.

Discussion

  1. The plaintiff agreed to be photographed but did not know that the photographer was a journalist and that the image would be published in a newspaper.
  2. He considers that the photo-montage creates an image of closeness to  a teenage punk girl and his affection for his son  is portrayed as his affection for her.
  3. As soon as it was published, his friend Ephraim Moskovitz contacted him and asked if he knew about the picture. The plaintiff is religious and doesn’t allow the paper into his house, he only saw the image sometime later when another friend, Moshe Appel, brought him a copy, and he imagined the embarrassment were the picture to reach his family of friends. He kept it private and didn’t show anyone. Such was the state of affairs until another friend, Moshe Fried gave the picture to his brother Yechiel, and this resulted in the picture being circulated in the family and the resultant embarrassment and suffering.
  4. The picture damaged his good name and his families feelings.
  5.  As a teacher, the picture was damaging for him, and he lived in constant fear of it reaching his pupils and his supervisors, which could prevent his career progressing or even result in him being made redundant. Despite his good reputation he was recently made redundant without explanation and he considers that the image might have been embarrassing to the institution.
  6. As a candidate Rabbinical court judge he dedicated his days and nights to studying the material, yet this publication could prevent his appointment to the Rabbinic courts since such an appointment required total cleanliness from any hint of impropriety.
  7. From comments from his friends and colleagues he understood that this image was distributed across the country and could come back to haunt him at any time, preventing him being appointed to a court.
  8.  Mr Moskowitz testified that he was a Hassidic resident of Bet Shemesh who worked as a Kashrut supervisor. He knew the plaintiff as he visited his Rabbi, they prayed in the same Synagogue and he knew some of his family. He testified that a secular friend brought him the paper one Friday and showed him the image saying “See how the ultra-Orthodox behave”. He told the friend that he knew the person who then said that “this is how you and your friends behave.” Mr Moskowitz asked for the cutting but was refused. Mr Moskowitz then looked for the  plaintiff’s number and reached it via a relative. He rang him and told him about the image. The plaintiff asked him to obtain the paper, but since he didn’t read it, he couldn’t obtain a copy.
  9. Mr Moskowitz further testified that in his society such a picture is insulting and one doesn’t even show a photograph of one with one’s wife to strangers but only to family. As Rabbi Sheinfeld appears to be hugging a provocatively dressed stranger, the picture is particularly insulting.
  10.  Finally, Moskowitz testified that one day he met the editor of the satirical column and asked him about how he could publish such a picture. The Editor acknowledged that he knew about the image but denied responsibility.
  11. In his statement, Mr Fried stated he knew the plaintiff and his family. Rabbi Sheinfeld’s father had been Mr Fried’s headmaster, and he knew Rabbi Sheinfeld from their Hassidic cult community. He testified that he’d bought the weekend Yediot Aharonot paper and suddenly noticed the picture of Rabbi Sheinfeld in close proximity with the provocatively dressed female. He considered the picture exceptional and insulting and cut it out to pass on to the plaintiff. He  only saw the plaintiff’s brother, Yechiel Sheinfeld about six months later and gave him the picture to pass on. He testified that in their community such a picture made the person depicted an object of ridicule and was damaging and insulting. To give substance to the ramifications of such a picture, he recounted how a photograph of an ultra-orthodox person standing with someone elses wife resulted in the children of both families being withdrawn from their school and one of the families emigrating.
  12. The editor of Efes explained that it was a satirical column that was originally written by Ultra-Orthodox staff and that it looked at religious – secular current affairs from an Ultra Orthodox perspective. The column was originally published in the Eretz paper and for four years was published in Yediot Aharonot.
  13. He noted that most Ultra Orthodox do not read Yediot Aharonot and were not exposed to its content.
  14. The Editor stated that the image was not offensive to the Ultra Orthodox and alleged that Rabbi Sheinfeld’s dismissal 2 1/2 years later was nothing to do with the photo-montage. He further alleged that the law suit was based on stigmas about the Ultra Orthodox community and that it was the lack of real grounds for complaint that resulted in the case against him being brought in a civil court and not in a Rabbinical Court.

The Ruling

  1.  Someone seeing the satirical image could not fail to understand that it was a satirical take off of the Celcom campaign. This was emphasized by the accompanying text which made the joke clear.
  2. The other jokes in the same issue related to other large companies and to public personages including the then President Katzav, the Pope, the Chief of Staff and others. The subjects of the column were not private individuals.
  3. Additionally, the viewer of such a picture could not fail to notice that the picture was a photo-montage and that there was no connection between the Hassidic barber and the punk girl. The girl, though provocatively dressed (punk) was not immodestly dressed (i.e. undressed) and, contrary to the plaintiff’s allegations, the picture does not show contact between the parties, and the punk is not shown sitting in the plaintiff’s lap.
  4. The judge noted that the plaintiff himself had testified that none of his acquaintances suspected him of improper behaviour and had admitted that the Halakha ceremony is performed on three year old boys, not teenage girls.
  5. The standard for libel and slander was not whether the plaintiff or his witnesses felt that there was slander or libel but whether objectively there was something improper with the image. In this instance, the fact that the plaintiff would not want to appear in such an image is not sufficient grounds to conclude that the plaintiff was insulted or ridiculed in the public eye.
  6. Satire is, by nature, exaggeration to the point of ridicule therefore it is necessary to understand things in context from the perspective of the reasonable person. See Appeal 4352/02 Shoco LTD ve. Herzikowits PD 55 (3) 558. 
  7. The rules of Libel and Slander strike a balance between the basic right of a good name on one side and freedom of speech on the other. The scales are tipped towards freedom of speech where the issue is satire designed to create controversy and not to present a factual truth and censorship would be particularly damaging to the market place of ideas that is the heart of democracy.
  8. As to the right of privacy, the plaintiff claims that the picture was an innocent picture of the ritual hair-cutting ceremony. However, this is not the case. The picture wasn’t a snapshot of the action, but had the plaintiff’s full consent.  In fact it was staged to the extent that the plaintiff allowed the photographer to take several pictures and requested that he be sent them. He also had no problem to the photos being used in the original newspaper article commemorating the ritual hair-cutting rite.
  9. Since the picture was taken in the public domain with consent of the subject, there was no invasion of privacy.
  10.  Allegations that the plaintiff did not know that the photographer was a press-photographer are denied by the photographer who was not a party to the case. Such allegations are widening the statement of case and are thrown out.
  11.  Since the plaintiff did not limit his consent to be photographed in any way, such as to non-commercial uses, there is no limitation to the picture being used in a photo-montage and doing so is not an invasion of privacy.
  12. Finally, the judge noted that the plaintiff was a certified teacher, a trainee Rabbinic court judge and an author of a substantive book on the prohibition of interest in Jewish Law that had received wide approbation. Nothing in his life was damaged by the satirical publication. He himself noted that his community is particularly closed and Yediot Aharonot does no enter it. It was his brother who showed the image to the family and none of them suspected him. The plaintiff notes his good name. The allegations that he was filed as a result of the publication are unsubstantiated, and apparently he still has his good name.

 

Based on the above analysis, the case is thrown out. The Plaintiff will pay 7500 Shekels legal costs to Yediot Aharonot.

Case 45143/02-10 Israel Sheinfeld vs. Yediot Aharonto, the Editor in Chief and the Editor of the Satirical Supplement. by Ronit Pinchock Alt, Tel Aviv Magistrate’s Court, 15 November 2015

 

COMMENT

As far as I am aware, there is no family connection between Sheinfeld and the American comedian Seinfeld.

I think it is ironic that Yediot Aharonot are complaining that ‘the plaintiff is taking their image out of context’ and that he is ‘trying to create a picture’. This is exactly what they did.

The photographer was not a defendant because there was no invasion of privacy or problem with the original photograph. The consent given was for use of the images taken or what the camera sees. The second usage of the picture was a fabrication. It was not malicious and the intended subject matter of the satire was not Rabbi Sheinfeld. Had the image been created using an actor, no-one would have been hurt and no-one sued. Yediot Aharonot’s Weekend Edition has a large circulation. The paper is a cheap tabloid with a focus on tittle tattle of celebrities – i.e. television personalities, sportsmen and models. The paper is not widely read by Ultra Orthodox Jews leading a narrow lifestyle. However, despite rabbinic disapproval,  both television and secular papers do have some viewers and readership in the Ultra Orthodox world.  In context, the image is a satire of a telecommunications campaign. The problem is that just as Yediot Aharonot took Rabbi Sheinfeld’s image out of context, so might members of the public viewing the image after a time or without the caption. Images, once created, may assume a life of their own. It was not for nothing that the Baal Shem Tov considers a statement once made, like tearing a feather pillow on a hillside on a windy day and shaking. The problem here is that Yediot Aharonot were blase about the subject of the original picture, assuming that all viewers would be familiar with the Cellcom advert and would understand the joke. The problem is that not all readers watch television. There are families that do not allow Yediot Aharonot into their houses, but there are more families that don’t have television but do have weekend papers.

Is the photo-montage clearly that? If it is scanned or photocopied will it remain clearly a photo-montage?

Rabbi Sheinberg has indeed failed to show damage but I am not sure that he should have to when hundreds of thousands of images of him in a compromised position are distributed. In context, both the original picture and the photo-montage relate to the ritual hair-cutting ceremony.  Is it clear to all viewers that he wasn’t in proximity with a teenage girl who was clearly not a member of his community? Having a daughter who is no longer religious could affect the  marriage prospects of other children. There are Ultra Orthodox men who frequent prostitutes. They have the same libido issues that other men do.  There are other ways of interpreting the image than the caption given. Could such an image be harmful? I think the answer is ‘yes’. Newspapers are aware of the power of images and that pictures may be taken out of context. I am aware that Ultra Orthodox papers regularly edit photos to remove women. I am not sure if Ultra Orthodox readers are aware of the editing. I think that the image could be damaging and though not malicious, the paper was less than concerned about possible harm to the individual. As the paper is not an Ultra Orthodox publication and the Editor in Chief is not Ultra Orthodox, there is no reason for Rabbi Sheinfeld to have gone to a Rabbinic Court to air his issues. If the state law provides statutory damages without proof, Rabbi Sheinfeld is entitled to sue in a secular court.

As the image is central to this article, I have reproduced it. I have named it as a photo-montage to do my bit to prevent it being taken out of context.

 

 

 

 

 

 

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