Dan Or-Hof, CIPP
As of 1992, the right of privacy in Israel maintains a constitutional status. Section 7 of the Human Dignity and Liberty Basic Law 5752 — 1992 (the basic law) provides that all persons have a right to privacy and to intimacy.
The basic law further stipulates that no entry shall be made into a person's private premises without that person's consent; no search shall be conducted on the private premises of a person, nor in a person's body or personal effects; and there shall be no violation of the confidentiality of conversation, or of the writings or records of a person. Under the Basic Law, no violations of these rights are allowed, except by a law conforming to the values of the State of Israel that was enacted for an appropriate purpose and to the extent no greater than is required. All governmental authorities are bound to respect the rights under the basic law.
Eleven years earlier, the Knesset (the Israeli Parliament) enacted the Protection of Privacy Law 5741—1981 (the privacy law). It is a comprehensive piece of legislation on privacy issues, governing basic principles of privacy protection, regulation of data processing and security, rules for direct marketing and the exchange of information between public entities.
Alongside the privacy law, certain areas of law such as protection of patients' privacy, confidentiality of bank reports, processing of genetic data, transfer of personal information outside Israel, and workplace privacy are subject to specific laws, regulations and court decisions.
Like other countries, Israel did not define the right of privacy under the law. Instead, the privacy law sets out the fundamental principle of consent, i.e., the privacy of a person must not be infringed without that person's consent. Failure to comply with the provisions of the privacy law constitutes a civil tort and in certain cases criminal liability as well.
The privacy law provides an array of privacy principles, the most important of which, are the following:
- Tracking, monitoring, harassing and eavesdropping, as well as the use, or transfer of personal information otherwise than for a purpose for which it was given, constitute privacy infringement;
- Processing of personal information in a database must be preceded with a proper written notification to the information's subject. A database is defined under the privacy law as a collection of data stored on a magnetic, or optic medium, and intended for commercial and computerized processing (with specific exceptions defined therein).
- Every person is entitled access to information stored in a database and to information that pertains to that person, and has a further right to rectify and delete such inaccurate information; and
- Personal information must be kept confidential and undisclosed.
A national authority called the Registrar of Databases supervises and monitors the protection of privacy in Israel. Until recently, enforcement of information privacy was predominantly carried out through the registration of databases containing personal information. However, In January 2006, the Israeli Government ordered the formation of the Legal Authority for Information Technology and the Protection of Privacy, under the Ministry of Justice.
The new authority's objectives were set out to be the enforcement of privacy protection, the coordination of government activities in its fields of operation (IT, privacy and computer crimes) and the promotion of legislation in these issues. The authority has merged under its auspices three previously independent authorities, one of which was the Registrar of Databases. While still in its infancy and operating under limited budget and human resources, the authority clearly aims to make its mark on privacy protection in Israel.
For example, the authority has:
- Investigated a breach in EL-AL's (Israel's national airline carrier) email system;
- Toughened procedures for registering databases;
- Placed strict restrictions on the transfer and use of personal information held by pension funds following recent mergers and acquisitions in Israel's financial sector; and
- Ordered the Defense Ministry to halt the processing of information in a sensitive database as a result of information misuse.
In June 2007, a second substantial change occurred in the privacy environment in Israel, when an amendment to the privacy law was enacted to include two important provisions: The first provides that a person's consent must be "mindful". Whether consent would require an informed indication of wishes, similar to the provisions of the EU Data Protection Directive, or a different level of assurance, is something for Israeli courts to decide in future case law.
Nevertheless, this requirement clearly confines the permissible consent into much narrower boundaries than before. The second amendment to the privacy law provides courts with the authority to award statutory damages of up to NIS 50,000 (approximately $12,000) per privacy infringement and twice as much if the infringement is found to be the result of a willful act. A court may also fine infringers in criminal cases with similar sums. As a result, the extent of privacy litigation in Israel is likely to increase substantially.
A two-year review of the legal aspects pertaining to the protection of privacy in databases was finished in February 2007, when a government committee report was submitted to the Minister of Justice. Led by the Deputy Attorney General of the State of Israel, Joshua Schoffman, the committee consisted of government officials, scholars, members of the Public Council for the Protection of Privacy, representatives of the Association for Civil Rights in Israel, and private practitioners. The committee's recommendations urged a shift toward more efficient enforcement of privacy protection and security of personal information.
The committee recommended the following:
- The database registration requirement must be limited to databases that store sensitive data such as genetic data;
- The Registrar of Databases must have an independent discretion to take part in legal proceedings and obtain enforcement measures to investigate complaints. The registrar must also have discretion to form and publish best practice codes;
- Unlawful cross-border data transfer must be deemed a criminal offense;
- Provisions similar to the California SB1386 Security Breach Information Act must be enacted; and
- Class actions must be enabled to confront mass privacy infringements incidents.
As of July 2007, the Authority for Law, Technology and Information is drafting a bill based upon the Schoffman Committee's findings.
Dan Or-Hof is a Senior Counsel and the manager of the IT and Internet group at Pearl Cohen Zedek and Latzer LLP. Currently based in Israel, Or-Hof is an attorney (LLM) and a CIPP. His fields of expertise are computer and Internet law, communications law, copyright law, and Data Protection and Privacy law. He publishes articles and lectures on privacy and other legal issues, participates in bills discussions and hearings held by the Justice Department and the Knesset and co-contributes to his firm's first Israeli legal Web site at: www.law.co.il. He can be contacted at firstname.lastname@example.org and at +972.9.9728000.