Case Summary and Outcome
The monetary damages and the permanent injunction imposed against the publication and further circulation of the author’s novel did not constitute an incompatible restriction of his freedom of expression because the novel violated the plaintiff’s right to privacy by impermissibly detailing her personal information and intimate relationships, which could reveal her identity.
In 2004, the defendant wrote and published a romance novel detailing his secret intimate relationship with a woman. The book contained several identifying information about the woman, including her appearance description, age, specific occupation, and her place of residence. In 2009, she filed a defamation lawsuit against the defendant in the District Court of Jerusalem, Tel Aviv, and sought an injunction order prohibiting further distribution of the novel, as well as compensatory damages for her emotional distress.
The District Court concluded that the defendant abused his right to creative expression in the novel by impermissibly provided descriptive information about his affair with the plaintiff, which severely damaged her privacy. The Court banned its publication and awarded 200,000 shekels to the plaintiff’ for her loss of privacy and pain and suffering.
In 2011, the defendant appealed the decision to Supreme Court of Israel, arguing that the District Court failed to accord a fair balance between the right to creative expression and protection of privacy. He further contended that the Court erred in not giving special status to the fictional nature of his book, and that a reasonable reading of its contents could not lead to the conclusion that it reflected the reality of the plaintiff’s private life.
The Supreme Court first noted that the case reflected the inherent tension between the freedom of speech and the right to privacy. According to the Court, freedom of expression is the essence of Israeli society and one’s freedom to create artistic work in the field of literary and visual field in all its forms must be protected.
However, the Court held that freedom of expression is not absolutely protected and a balance needs to be struck between free speech and other rights, including the right to privacy. The Court applied a three-part analysis: (1) whether the novel was a construction of a fictional discussion and not the reality of the plaintiff’s life; (2) whether the novel violated of plaintiff’s core right of privacy, and (3) whether the defendant’s freedom of expression was substantially harmed by banning the distribution of the novel.
The Court found that the novel was a “severe blow at the heart of the right of privacy” as it described the most intimate identifying details of the plaintiff’s relationship with the defendant and her former boyfriend. As a result, the Court held that the need to protect the plaintiff’s privacy substantially outweighed the defendant’s right to freedom of expression. The court also emphasized the damages caused by the intrusion of plaintiff’s privacy was much greater than the defendant’s inability to punish his novel in the future.
Accordingly, the Court upheld the District Court’s permanent injunction order and damages award.