Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The Supreme Court of Israel struck down a requirement to automatically de-index from search engines decisions that had been made available by commercial databases but were originally obtained from the official database of the Court of Administration. The Supreme Court made reference to the “right to be forgotten”, but observed that no guidance had been provided by the Court of Justice of the European Union since the seminal Google Spain judgment about how to approach the indexing of judicial decisions. The Supreme Court concluded that the Court of Administration requirement did not protect the privacy of the litigants and, instead, imposed a disproportionate restriction on the right to access court decisions.
Hashavim H.P.S. Business Data is a company that manages a website, Takdin-Light, that contained a database of court and other institutional decisions. Takdin-Light attracts most of its visitors through online search engines. An individual can request that his/her name be anonymized in decisions available on Takdin-Light. Such requests will be processed immediately and without cost, but it takes a few weeks until search engines stop providing the relevant decisions on Takdin-Light in response to a search of the person’s name.
The Court of Administration (CA) updated its rules, and began demanding from companies that manage commercial databases that they not index on search engines court decisions that have been pulled from the CA’s database of cases. The new rules would have prevented court decisions published by Hashavim and other commercial legal database operators from being accessible through search engines such as Google and Bing.
Hashavim H.P.S. Business Data brought a claim against the CA, arguing that the new de-indexing requirements were not necessary to protect the right to privacy, and harmed public access to information.
The presiding Justices Elyakim Rubinstein, Esther Hayut and Uzi Vogelman agreed that the case raised complex questions regarding the intersection of law and technology. Justice Rubinstein opined that judicial decisions, if published, can cause harm to the parties’ privacy.
The Supreme Court of Israel (Court) then referred to the “right to be forgotten”, as defined by the Court of Justice of the European Union (CJEU) in Google Spain, and noted that the CJEU had not offered any guidance on how to examine the de-indexing of judicial decisions. Therefore, it was “hard to say if – according to the system [instituted by] the [CJEU] – there is “a right to be forgotten” also for official court decisions that were lawfully published.” [Para. 15] Justice Rubinstein also added that courts in the United States prioritized freedom of information and thus rejected the “right to be forgotten.”
Then Justice Rubenstein turned to the specifics of this case. He noted that one of Hashavim’s databases, Takdin-Light, attracted most of its customers through search engine results. Therefore, the CA’s de-indexing requirements undermined an essential element of Harshavim’s chain of business activity and potentially harmed its freedom to do business. Additionally, this limitation on commercial speech might have impaired freedom of expression, causing “not an insignificant harm to the basic rights of a private body [perpetrated] by a public body.” [Para. 21]
Justice Rubenstein proceeded to review the impact of technology on the right to privacy. He accepted that there must be a balance among competing rights, including the rights to privacy, access to information, open court, and freedom of occupation. According to the 1992 Basic Law on Human Dignity and Liberty, the Court had to apply a three-part test to balance these principles:
After reviewing the circumstances of the case in light of the three-part test, the Court ruled that CA’s de-indexing requirements did not protect the privacy of litigants. First, the rule only demanded the de-indexing from search engines of decisions published on commercial databases that had been pulled directly from the CA’s database, and third parties could still publish decisions on their own websites. Second, there were less restrictive ways to protect the litigants’ privacy: laws could be passed demanding that the names of the litigants be abbreviated; judges could be trained on protecting privacy in writing court decisions; the verdicts could be disclosed only to the litigants several days prior to their publication, so that they could request some private information be redacted.
The Court concluded that the blocking of access to court decisions would pose an unacceptable obstacle to finding court decisions in Israel – a country with a rich tradition of common law – and thus would limit the ability to be informed about the “full scope of the law in Israel.” [Para. 42]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by finding that the automatic de-indexing of court decisions from search engines would disproportionately harm access to public information. In its judgment, the Court recognised the importance of the accessibility of judicial decisions for safeguarding the open court principle. It also took a cautious approach to the practice of de-indexing in these contexts by recognizing that there may be other measures available that can protect the right to privacy in a way that is less restrictive on the right to freedom of expression.
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