Summary of cases from the 2018-19 term

Judgments of Interest:

The justices of the Israeli Supreme Court published a list of the Court’s most important decisions delivered between Rosh Hashana 5779 (Sept. 9, 2018) and Rosh Hashana 5780 (Sept. 29, 2019). An abstract of the list, and summaries of the cases that may be of particular interest appear below, arranged by legal category.  The full Hebrew list can be viewed here.

Articles of Interest:

The following articles were published in the November 2019 issue of the Israel Law Review (volume 52(3)):

Recognition in the Context of the Israeli-Palestinian Conflict: Proceedings of an international workshop held at the Hebrew University of Jerusalem, 5 November 2018 (Published online by Cambridge University Press: 21 October 2019, pp. 367-412).

 Hassan Jabareen, The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought: Review Essay of Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013) (Published online by Cambridge University Press: 21 October 2019, pp. 427-454).

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analyzed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

 

Selected Judgments from the 2018-2019 Supreme Court Term

 

Public Law:

1. HCJFH 10190/17 Military Commander v. Alian: In a Further Hearing, the High Court of Justice held that the Military Commander of the Judea and Samaria Area may order the temporary burial of the corpses of terrorists for the purpose of negotiations, by virtue of reg. 133(3) of the Defence (Emergency) Regulations 1945 (summary below).

 

2. EDA 1806/19 In re The Central Elections Committee: A nine-member panel of the Supreme Court granted the appeal against the candidacy of Dr. Michael Ben Ari, and held that he was barred from running for the Knesset in accordance with sec. 7A of Basic Law: The Knesset which concerns incitement to racism (a brief summary of the case appears here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-5).

 

3. EA 5487/19 Segal v. Ben Gvir: A nine-member panel of the Supreme Court granted the appeal against the candidacies of Ben Zion Gopstein and Baruch Marzel, and held that they were barred from running for the Knesset in accordance with sec. 7A of Basic Law: The Knesset which concerns incitement to racism (summary below).

 

4. LAA 7938/17 A v. Population Authority: Domestic violence experienced by a woman who divorced her Israeli husband in the course of the naturalization process is a relevant consideration for the purpose of granting status (summary below).

 

5. LAA 7216/18 Lara Alqasem v. Ministry of the Interior and The Hebrew University: A former BDS activist no longer connected to the boycott movement cannot be “punished” with denial of entry to Israel (a summary of the case appears here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-3).

 

6. HCJ 9018/17 Tbeish v. Attorney General:  The petitioner, who was arrested on suspicion of hostile terrorist activity and selling military ordinance, complained that he had been tortured in the course of his interrogation.  The High Court of Justice held that there were no grounds for intervening in the decision of the Director of the  Department for Complaints Against the Israel Security Agency to close the file (English translation here: https://versa.cardozo.yu.edu/opinions/tbeish-v-attorney-general).

 

7. HCJ 1347/18 A. v. National Labor Court: The Court reversed a Labor Court decision requiring that a complainant who filed an action for sexual harassment at her workplace disclose her psychologists’ notes to the defendants’ expert witness (summary below).

 

Criminal Law:

8. LCrimA 1611/16 State of Israel v. Vardi and others: The Court addressed aspects of the equitable defense doctrine in criminal law, particularly in regard to claims of selective enforcement and negligent omissions and good-faith mistakes that materially undermine the appearance of justice (summary below).

 

9. CrimA 5338/17 Aboutbul – Mayor of Beit Shemesh v. Philip and others: The Court held that “modesty signs” are part of the improper phenomenon of the exclusion of women from the public sphere (summary below).

 

10. CrimA 3745/17 Elbaz et al. v. State of Israel: The conditions for defining a “criminal organization” (English abstract here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-5).

 

 

Civil Law:

 

11. CA 8323/17 State of Israel v. Beham: A dispute between the State and the heirs of the drafter of Israel’s Declaration of Independence concerning the ownership of the early drafts of the Declaration of Independence (English summary here: https://versa.cardozo.yu.edu/viewpoints/who-owns-drafts-declaration-independence).

 

12. CA 3425/17 Société des Produits Nestlé v. Espresso Club Ltd: Does a commercial advertisement based upon a parody of a competitor’s advertisement violate the copyright of the original advertisement? (summary below).

 

13. LCA 8164/18 Edelcom Ltd. v. Eilat-Ashkelon Infrastructure Services Company Ltd: A private legal consultation between an arbitrator and counsel representing a party in that arbitration constitutes grounds for recusal (summary below).

 

 

14. LCA 7064/17 Arad v. Manx Online Trading Ltd: An action for compensation without proof of damage under the Telecommunications (Bezeq and Broadcasting) Law, 5742-1982, cannot be denied merely because the plaintiff was represented by a company that assists in filing such complaints for a fee (the case was reported here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-4, and a summary appears below).

 

15. CA 8710/17 A. and B. v. Clalit Health Services: The disclosure requirement that applies to physicians comprises only medical information, and does not extend to providing a patient with information in regard to religious duties and restrictions (summary below).

 

Abstracts

 

Public Law

1. HCJFH 10190/17 Military Commander v. Alian: A seven-justice panel of the Court held (per President E. Hayut, and Justices N. Hendel, I. Amit, and N. Sohlberg, Justices U. Vogelman, D. Barak-Erez, and G. Karra dissenting) that the Military Commander is permitted to order the temporary burial of the corpses of terrorists for the purpose of negotiations, by virtue of reg. 133(3) of the Defence (Emergency) Regulations 1945. The Court thus reversed the decision handed down on Dec. 14, 2017 in HCJ 446/16 Alian v. Military Commander that held that the Military Commander is not so authorized.

Reg. 133(3) states:

Notwithstanding anything contained in any law, it shall be lawful for a Military Commander to order that the dead body of any person shall be buried in such place as the Military Commander may direct. The Military Commander may by such order direct to whom and at what hour the said body shall be buried. The said order shall be full and sufficient authority for the burial of the said body, and any person who contravenes or obstructs such order shall be guilty of an offence against these Regulations.

The majority held that reg. 133(3) is part of the law in force in the State of Israel and in the Judea and Samaria Area, and that it is intended, inter alia, to defend state security. The majority held that the defense of state security also includes an ongoing, determined effort for the return of the remains of Israeli soldiers, and Israeli citizens held by terrorist organizations. This purpose leads to the interpretive conclusion that the Military Commander holds authority to order the temporary burial of terrorists for the purpose of conducting negotiations with the terrorist organizations. The Court noted that inasmuch as this authority violates the dignity of the deceased and his family to some degree, it must be circumscribed and exercised in accordance with appropriate limitations and balances, inter alia, the 2004 opinion of the Attorney General.

As opposed to the majority view in the judgment under appeal, it was further held that international law does not expressly prohibit holding corpses in the course of an armed conflict, and there is no basis in international law for holding that the practice is legally problematic.

The dissenting justices were of the opinion that reg. 133(3) does not authorize the Military Commander to order a temporary burial for the purpose of negotiations, and that specific legislation to that effect is required.

Justice D. Barak-Erez (dissenting) adopted the “middle ground”, arguing for a distinction between terrorists who are Gaza residents – whose remains can be held for the purpose of negotiations without special legislation to that effect– and the remains of residents of the Judea and Samaria Area and Israeli citizens.

2. EDA 1806/19 In re The Central Elections Committee summarized here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-5.

 

3. EA 5487/19 Segal v. Ben Gvir: A nine-justice panel of the Court (President E. Hayut, Justices N. Hendel, U. Vogelman, I. Amit, N. Sohlberg, M. Mazuz, E. Baron, G. Karra and D. Mintz) unanimously granted the appeal in the matter of Otzma Yehudit candidate Ben Zion Gopstein, and granted the appeal (Justice N. Sohlberg dissenting) in the matter of Otzma Yehudit candidate Baruch Marzel, holding that they were both barred from standing for election to the 22^nd Knesset by virtue of sec. 7A(a)(2) of Basic Law: The Knesset, which establishes three criteria for prohibiting the participation of a list or a candidate in elections to the Knesset:

1. negation of the existence of the State of Israel as a Jewish and democratic state;
2. incitement to racism;
3. support of armed struggle, by a hostile state or a terrorist organization, against the             State of Israel.

The Court unanimously denied the petitions challenging the decisions not to disqualify the head of the Otzma Yehudit list, Itamar Ben Gvir and the list itself. The Court also unanimously denied the petition challenging the decision not to disqualify the Joint Arab List.

The decision to bar Gopstein was premised upon a large amount of evidence that clearly, unequivocally and manifestly demonstrated that Gopstein’s statements and activities systematically incited racism against the Arab public. It was found that Gopstein presents the Arab public in general as an enemy, and that there should be no engagement with the Arab public that might be interpreted as coexistence. Such engagement would include employing Arabs and permitting Arabs to live in Jewish neighborhoods. Gopstein’s statements were characterized as representing a new low in racist expression. Gopstein declared that he did not regret and would not retract anything.

The starting point of the majority opinion barring Marzel from participating in the elections was the fact that Marzel did not deny that the evidence against him crossed the line and represented incitement to racism. However, Marzel argued that decisive weight should be granted to his declaration before the Central Elections Committee that his statements were “slips of the tongue”, or that the statements were interpreted as more severe than they were intended. Moreover, the statements were made in his status as a private individual and he did not intend to continue to make such statements once elected to the Knesset. However, the Court noted that the matter of Marzel’s disqualification came before the Court in 2003 and in 2015, and he then argued that he had changed his ways and accepted the democratic “rules of the game”, yet he persisted in a manner that represented incitement to racism. It was, therefore, held that his similar declarations today should be given little if any weight.

Justice Sohlberg (dissenting) was of the opinion that Marzel should not be disqualified. Justice Sohlberg was of the opinion that Marzel’s admission that he had spoken improperly, and his unequivocal retraction achieved the purpose of sec. 7A. While there was some doubt as to the genuineness of his expressed regret and his intention to change his ways, the doubt should work in his favor inasmuch as the issue concerned a mortal blow to the constitutional right to participate in the electoral process, which should only be undertaken when all else fails.

The appeals in regard to Ben Gvir, Otzma Yehudit, and the Joint List were denied in the absence of sufficient evidence to ground disqualification in accordance with the strict standards established in the case law.

 

4.         LAA 7938/17 A v. Population Authority: In general, the dissolution of the family unit in the course of the special, incremental procedure that expedites the naturalization of foreign spouses of Israeli citizens puts an end to the process grounded in secs. 7 and 5(b) of the Nationality Law, 5712-1952. However, the expectation interest of the foreign spouse, and the connection that developed over the course of the marriage between that person and the State of Israel may result in granting a person an alternative status on humanitarian grounds by virtue of the Entry into Israel Law, 5712-1952. The case primarily focused upon the special procedure for establishing the status of foreign spouses whose marriage ended as a result of violence by the Israeli spouse.

The Court (per Justice N. Hendel, Justices D. Barak-Erez and G. Karra concurring) stressed that the procedure had a special purpose: encouraging victims of violence to free themselves from the harmful situation in which they were trapped, without fear that this might lead to their deportation from Israel. In view of this purpose, Justice Hendel rejected the position that while the procedure opened the door to the inter-ministerial committee, it did not view the violence suffered by the victim as a materially relevant consideration in deciding upon the victim’s application. Justice Hendel was of the opinion that such an approach deprived the procedure of any meaning. Spouses with an alternative humanitarian claim do not need it, while enabling persons who have such a claim to come before the committee would contribute nothing as it would lead to a dead end. “The fight against the phenomenon of violence in the family is too important to suffice with a mere appearance of treatment of victims” by virtue of meaningless procedural accommodations. In order to remove the threat of deportation from victims of violence and allow them to free themselves from the harmful relationship, the violence toward them should be recognized as a material consideration in the granting of status, and the procedure should be interpreted accordingly.

The result is that, in the absence children with the Israeli spouse, the inter-ministerial committee must strike a balance between the considerations of vital interests and the fight against violence. As opposed to this, when there are joint children whose best interest requires their remaining in Israel, that suffices to establish a “presumption of center of vital interests”, and tilt the scale – together with the consideration of violence – in favor of establishing the status of the foreign spouse (subject to meeting the preconditions set out in the procedure).

Inasmuch as the committee ignored the ramifications of the violence upon the applicant, the Court granted leave to appeal and remanded the matter to the committee “to reexamine all of the relevant considerations”.

In her concurring opinion, Justice D. Erez-Barak further emphasized that not granting weight to the fact that the relationship ended as a result of violence could result in exposing foreign spouses – generally women – to ongoing domestic violence and even threaten their lives when they are confronted with choosing between two evils: remaining in the country even at the cost of daily exposure to violence by the Israeli spouse or deportation in circumstances that may be very detrimental for the foreign spouses or their children.

 

5.         LAA 7216/18 Lara Alqasem v. Ministry of the Interior and The Hebrew University:  summary of the case here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-3.

6.         HCJ 9018/17 Tbeish v. Attorney General: English translation here: https://versa.cardozo.yu.edu/opinions/tbeish-v-attorney-general.

 

7.         HCJ 1347/18 A. v. National Labor Court: The petition before the Court challenged a decision by the National Labor Court that a plaintiff who complained that she had been sexually harassed at work must disclose her psychologist’s notes to the defendants’ expert witness. In a unanimous decision, the Court (Justices I. Amit, D. Mintz, and A. Stein) reversed that decision, holding that the plaintiff is not required to disclose those records.

Justice Amit held that a plaintiff, merely by virtue of being a plaintiff, is not stripped of the right to privacy or of any other privilege, contrary to prior case law that established a “complain – reveal” rule. Justice Amit noted that inasmuch as filing suit expressed an implied waiver of the privacy defense, an examination of a claim of privilege by a plaintiff will initially tend towards disclosure, but that does not decide the outcome. Rather, the court must examine the justification of rescinding privilege based upon the “relative force”, in view of the relevance and necessity of the requested documents, as opposed to the intensity of the harm to the privilege or privacy right. As a rule, documents prepared in the framework of psychotherapeutic treatment (as opposed to documents testifying to its occurrence) are not relevant to establishing the percentage of disability in a psychiatric opinion. Thus, the present issue almost never arises in tort suits for psychological harm. As opposed to this, revealing the documents would lead to violating the privacy of the patient and the therapist, the quality of treatment, and the willingness of persons suffering from psychological harm to seek treatment from the outset. This is particularly so for suits arising from a claim of sexual nature. The Court therefore held that the plaintiff was not required to disclose the documents.

            Justice Stein concurred with the result in the present case, but expressed his view that courts should only deviate from the “complain-reveal” rule in carefully defined, exceptional cases. In his opinion, psychotherapist-patient confidentiality should be defined as one of those exceptions that should not be breached unless the party seeking disclosure proves the necessity of the privileged documents.

 

Criminal Law

8.         LCrimA 1611/16 State of Israel v. Vardi and others: This judgment addressed two cases: LCrimA 1611/16 that concerned criminal charges filed against the chair and engineer of a local council in regard to alleged illegal issuing of building permits, and LCrimA 4238/16 concerning irregularities in the enforcement proceedings against teachers who had submitted false applications for recognition of foreign academic degrees by the Ministry of Education. The decision examined several fundamental questions in regard to the nature and scope of the equitable defense doctrine in criminal law, particularly the claim of selective enforcement.

The equitable defense is established under the Criminal Procedure (Consolidated Version) Law, 5742-1982, sec. 149(10) (Preliminary Pleadings), as follows: 

After the commencement of the trial, the defendant is entitled to make preliminary pleadings, including the following:

 …

(10) The filing of an information or the conduct of criminal proceedings materially contradicts the principles of justice and legal fairness.

 

            The main question addressed concerned the application of the doctrine in situations where negligent omissions and good-faith mistakes result in a significant sense of injustice as to the manner of in which a defendant’s issue was addressed.

            The Court (per Deputy President H. Melcer, Justices U. Shoham and D. Barak-Erez concurring) held that the equitable defense also comprises cases in which the defendant claims that there was a defect in filing charges against him or in conducting the criminal proceedings, even if only as a result of a good-faith mistake or an omission (along with cases in which the authorities acted with intentional arbitrariness, bad faith, or due to foreign considerations).

            The Court further held that, in exceptional cases, the equitable defense could also be recognized due to a significant delay in filing charges, and that the fact that the accused is a public servant would not prevent the application of the defense.

            Another issue addressed by the Court concerned the relationship between the equitable defense doctrine and the doctrine of administrative review in criminal matters, under which the acts and omissions of the authorities can be challenged under the rules for judicial review under administrative law. In this regard, Deputy President Melcer held that the Court should not recognize application of two concurrent standards of review of enforcement and filing charges, and that administrative review would generally retreat before the equitable defense doctrine.

In the present cases, a unanimous Court held that the information filed against the defendants in the building permits case be withdrawn due to the long-term inaction of the senior planning authorities who ignored the matter and failed to take administrative action even after the matter became known, and due to the fact that charges were filed only eight years after the perpetration of the alleged offense. 

As for the phony degrees affair, the majority (Deputy President H. Melcer and Justice U. Shoham) denied the appeal and upheld the acquittal by the District Court due to irregularities in the steps taken against all those involved, inter alia, selective prosecution (that resulted from a good-faith error in discretion by the prosecution such that at least fifteen other teachers in identical circumstances were not charged and remain employed by the Ministry) and in view of the length of time (seventeen years) that had passed since the perpetration of the offenses. Justice D. Barak-Erez (dissenting) was of the opinion that the appeal should be granted such that the teachers would be ordered to perform public service without a conviction.

 

9.         CrimA 5338/17 Aboutbul – Mayor of Beit Shemesh v. Philip and others: This case concerned an order under the Contempt of Court Ordinance in regard to signs posted throughout the city of Beit Shemesh that comprised messages that were insulting to women. The Court (per Deputy President H. Melcer, Justices U. Shoham and D. Mintz concurring) held that “modesty signs” form part of a severe, improper phenomenon of excluding women from the public sphere. The signs, posted in public, instructed women to dress in accordance with certain rules of attire, and to absent themselves from certain places. Such signs constitute an expropriation of the public space from the female public and turning it into a private space through social pressure and a violation of the autonomy and safety of women. Therefore, in such cases, the municipality is under a duty to give appropriate weight to the said violation, and act decisively to remove such signs and take appropriate legal action against those responsible for posting the signs.

It was further held that the municipality ensure that proper weight be given to the severe harm to human rights caused by the very posting of such signs, which constitutes an improper and offensive phenomenon that critically violates human dignity.

In prior procedures, the appellants had undertaken to adopt all the enforcement powers at their disposal under law to remove the said signs and others that suffered from the same illegality, but did not do so despite the severe violation of the fundamental rights of women.

The Court held that the contempt of court procedure is a special, extreme enforcement measure that should be employed judiciously and exceptionally. It is reserved for situations in which all other measures have been exhausted, and where there is no alternative available to enforce a judicial order. In this regard, the Court held that if the appellants do not act as required, the respondents will be free to resume the contempt of court proceedings.

 

10. CrimA 3745/17 Elbaz et al. v. State of Israel: The conditions for defining a “criminal organization”. English abstract here: https://versa.cardozo.yu.edu/viewpoints/recent-developments-israeli-law-5.

 

Civil Law

11. CA 8323/17 State of Israel v. Beham: A dispute between the State and the heirs of the drafter of Israel’s Declaration of Independence concerning the ownership of the early drafts of the Declaration of Independence (English summary here: https://versa.cardozo.yu.edu/viewpoints/who-owns-drafts-declaration-independence).

 

12. CA 3425/17 Société des Produits Nestlé v. Espresso Club Ltd: What is the rule in regard to a commercial advertisement based upon a parody of a competitor’s advertisement? This is the question that arose as the result of an advertisement for an espresso machine by Espresso Club that parodied the image of George Clooney, who appears in advertisements for the Nespresso coffee machine. A suit filed by Nespresso in the District Court was denied. On appeal, the Supreme Court (per Justice N. Hendel, Justices N. Sohlberg and G. Karra concurring) upheld the decision of the District Court, holding that the satirical advertisement did not violate the copyright of the original advertisement. The Court extensively surveyed Israeli and foreign case law, as well as Jewish law.

 

The Court held that while the parody was indeed based upon the original creation, the question of fair use had to be considered. The Court surveyed the fair-use exception, its source, and Israeli and foreign case law that treated of satiric advertisements and found that the parody of the image of Clooney fell within the scope of fair use, particularly because it comprised relevant criticism of the advertisement or services of Nespresso, and because a parody is a new creation that delivers a different message, and not a copy of the Nespresso advertisement.

The Court also rejected Nespresso’s claim of trademark infringement in view of the fact that no Nespresso trademark appeared in the parody. The claim of “dilution of the repute of Nespresso” was also rejected. The Court held that this was nothing more than an additional claim of violation of the well-known, registered trademark which did not appear in the advertisement. The Court also rejected claims regarding misinformation and the misleading of consumers. Lastly, the Court examined the question of unjust enrichment and whether it would be proper to prohibit satirical advertising for reasons of fair competition. The Court noted that this presented a complex issue of economic and legal policy, and that as long as the legislature has not prohibited this commercial practice, the Court would not impose a comprehensive ban. As for the specific, concrete circumstances of the case, the Court held that they do not present any particular severity that would justify imposing specific liability.

 

The Court further held that recognizing critiques and parody as fair use of a creation expressed respect for a person as a creator, and grants freedom for self-expression, while recognizing the creation as property and protecting intellectual property rights, and while allowing the possibility of advancement, development and even competition within the boundaries of fairness.

 

13. LCA 8164/18 Edelcom Ltd. v. Eilat-Ashkelon Infrastructure Services Company Ltd: This decision addressed the question whether a request by an arbitrator for personal legal advice from counsel of a party appearing before that arbitrator in an arbitration constitutes grounds for recusal.

 

The Supreme Court (per Justice D. Mintz, Justice N. Sohlberg concurring, Justice G. Karra dissenting) held that it does. First, it was noted that if a judge seeks legal advice from one of the attorneys appearing before him, it constitutes grounds for recusal under the Code of Ethics for Judges, 5767-2007. While there are many, significant differences between the ethical demands of a judge and of an arbitrator, and the said rules do not fully apply to an arbitrator, the rules of behavior and procedural conduct that apply to an arbitrator in the performance of his quasi-judicial role – including the rules for recusal – are identical to the rules that apply to a judge. Therefore, even a brief, focused legal consultation raises grounds for recusal, and the arbitrator should therefore be removed from her role in this case. This holds even though the parties agreed not to raise claims for recusal against the arbitrator, inasmuch as the legal consultation requested by the arbitrator deviated from that agreement.

Justice Sohlberg (concurring) emphasized that the recusal of the arbitrator was required by law and was not a matter of discretion inasmuch as a legal consultation between an arbitrator and a lawyer on a sensitive, personal matter constitutes “a close relationship” as defined under sec. 77A(1a)(1) of the Courts [Consolidated Version] Law, 5744-1984. In his opinion, the term “close relationship” should be interpreted as including, inter alia, attorney-client relationships in view of sec. 15(b)(6) of the Code of Ethics that instructs that a judge shall not sit in a case where “the lawyer representing a party is handling a matter of the judge”. Justice Sohlberg agreed with Justice Mintz that the rules for recusal applicable to an arbitrator are similar to those applicable to a judge, and therefore, under the circumstances, the arbitrator should be recused. He added that this was all the more so in the present matter in view of the fact that the arbitrator had previously served as a judge and president of a district court.

Justice G. Karra (dissenting) was of the opinion that the recusal of an arbitrator is necessarily contingent upon the circumstances and, therefore, the Court should not intervene in the findings of the District Court that considered the circumstances of the case and found that in view of the fact that the parties were all aware of the special relationship between the arbitrator and the attorneys of the parties, the misstep did not warrant her recusal.

 

14.       LCA 7064/17 Arad v. Manx Online Trading Ltd: This request for leave to appeal originated in an action brought in the Tel Aviv Small Claims Court for sending “spam”. The action was filed against the defendant with the aid of Spam Off Technologies Ltd., a company that offers services to locate the sender of spam and file claims. Because sixty separate claims were filed against the defendant, all the cases were joined. Thirty of the claims were filed with the assistance of Spam Off. In all sixty cases, the trial court found that the advertising had been sent in violation of the law. The court ordered compensation for each of the thirty individual plaintiffs, but denied compensation to all the plaintiffs represented by Spam Off. The appellant was granted leave to appeal the judgment to the Tel Aviv District Court, which affirmed the trial court’s ruling.

The Supreme Court granted leave to appeal. In granting the appeal, the Court (per Justice M. Mazuz, Justices U. Vogelman and Y. Willner concurring) held that in view of the purpose of sec. 30(a) of the Telecommunications (Bezeq and Broadcasting) Law, 5742-1982 (hereinafter: the Spam Law) and the purposes of small claims, an action for compensation without proof of damage under the Spam Law should not be denied merely because the plaintiff was represented by a company that assists in filing such complaints for a fee.

In addressing the purposes of the small claims procedure, the Court explained that it was meant to provide a quick, cheap and readily available legal tool for the common person who would be hard-pressed to exhaust his rights in regular and potentially costly legal proceedings. This is particularly so where we are concerned with rights and money disputes that do not involve the kind of sums that would economically justify the costs of regular litigation, such as spam complaints without proof of damage, which are limited to NIS 1000 in compensation.

 

The Court also addressed the purpose of the Spam Law, which is to grant exemplary damages as a deterrent response to the widespread phenomenon of mass advertising mailings by means of the various communication networks. This phenomenon poses a nuisance to users, as well as problems related to violation of privacy and the security of data, as well as economic costs resulting from lost time and the investment of resources to filter such advertisements. Given all the above purposes, the Court held that entities that provide the service of filing spam complaints, whether free or for a fee, help in realizing the deterrent purpose underlying the Spam Law, and their activities do not conflict with the purposes of the small claims procedure, or the prohibition upon legal representation in small claims proceedings. Therefore, there was no justification in denying damages in the claims brought by plaintiffs represented by such entities.

 

15. CA 8710/17 A. and B. v. Clalit Health Services: This case focused upon the scope of a physician’s duty of disclosure to a patient, and specifically, whether that duty includes an obligation to provide religious information or medical information adapted to the patient’s religious beliefs.

 

The appellants brought suit for wrongful birth, alleging that they were not provided appropriate medical advice in regard to a pregnancy, and were thus deprived of the opportunity to terminate the pregnancy. The basic facts of the case were that appellant A, a 41-year-old Moslem woman, was advised by the respondent’s medical staff of the need to perform various prenatal screening tests in the course of her pregnancy. When the initial screening tests showed a likelihood of Down syndrome, the appellant was referred for counseling and advised to undergo amniocentesis. After some delay, the appellant underwent amniocentesis, which verified the diagnosis. The appellants then sought the advice of a Moslem clergyman who informed them that termination of pregnancy was only permitted until 120 days following conception, and that it was therefore too late to terminate the pregnancy. The appellants therefore brought suit for wrongful birth.

 

The appellants’ primary argument was that it was the duty of the medical staff to provide medical advice appropriate to their religious beliefs, and that had they been informed of the need to terminate the pregnancy before 120 days of conception, they could have acted more quickly.

 

The Court (per Justice Y. Willner, Justices N. Hendel and D. Mintz concurring) held that a physician’s duty of disclosure is limited solely to medical information and does not include religious information in regard to religious restrictions and injunctions. This conclusion derives from the relevant legal provisions and the scope of the disclosure duty, as well as from the case law, and is consistent with the purpose of the duty, which derives from the inherent disparity in the doctor-patient relationship in regard to medical matters.

 

 As opposed to this, a physician, as such, enjoys no advantage over the patient in knowledge or expertise in religious matters, nor is it a physician’s role to advise patients in non-medical matters. It was further held that a physician is not required to tailor medical advice given in the disclosure framework to the patient’s religious beliefs or restrictions when there is no medical reason for such disclosure. Such adapting of medical information to religious characteristics is inconsistent with the nature of the tort of negligence and would significantly raise the costs deriving from the duty of disclosure, which would ultimately apply to every person seeking medical advice. Refraining from broadening the scope of disclosure is also a consequence of the inherent difficulty in the assumption that a physician knows the relevant religious characteristics of each individual patient. Moreover, questioning a patient in regard to matters of faith and religion might constitute a violation of the patient’s right to privacy and freedom of and from religion. A physician’s assumptions as to the particular nature of a patient, on the basis of some external expression, would be paternalistic, and might even lead to medical treatment that is inconsistent with the patient’s desires or real needs.

To the extent that medical advice that is consistent with a patient’s religious beliefs is desired, it is the patient who bears the burden of initiating such a request from the physician. A physician is only required to disclose medical information adapted to a patient’s religious beliefs in response to a request initiated by the patient, and within the framework of reasonableness that applies to medical disclosure.

 

While concurring with the main points of the opinion of Justice Willner, Justice Hendel stated (contrary to the opinion of Justice Willner) that there may be situations in which it would be proper for a physician to inform a patient of what he knows in regard to religious issues, even if indirectly, but he did not argue for imposing such a duty.