No matter what, at this moment all the Israeli legal community knows that someone, somewhere in the internet, called Rami Mor a quack.
The supreme court’s decision in RCA 4447/07 Rami Mor v. Barak was quite a surprise. Rami Mor an alternative medicine practitioner, was enraged that someone, somewhere in the internet, slandered him. Mor filed two different motions, the first against 013-Barak, (OCR 1238/07 Rami Mor v. Barak) and another one against Bezeq International (OCR 1752/06 Rami Mor v. Bezeq Int) to reveal the identity of anonymous posters. After the motions were dismissed, Mor petitioned to the Haifa District Court, where judge Yitzhak Amit ruled (RPA 850/06 Rami Mor v. Yedioth Internet) that the veil of anonymity shall only be removed where a cause of action against the anonymous commenter exists and where the anonymity was used in order to avoid liability; moreover, the court explained that “an additional mean is required” in order to accept the petition. Mor, who did not accept the ruling, appealed again to the supreme court. This week, in a precedent decision, the Israeli supreme court ruled that the veil of anonymity is, sometimes, a constitutional right, and that currently Israel has no procedure to unmask commenters who post anonymously as there is no legislation.
Hon. Justice Eliezer Rivlin dismissed Mor’s petition and analysed the procedure to reveal anonymous posters. According to his ruling “it is an attempt to harness, prior to a legal proceeding, the justice system and a third party in order to conduct an inquiry which will lead to the revealing of a person committing a tort so that a civil suit could be filed against him. It is, de facto, an investigative-like procedure that the court is drafted to in a preliminary procedure in this way or another. This procedure is not trivial, it involves policy consideration and requires legislative regulation“. His decision rules, actually, that until a procedure will be legislated, petitions to reveal anonymous users may not be granted (and according to estimations, there is at least one daily request per ISP).
Justice Rivlin alson rules out the availability of an Israeli John Doe process as it contradicts due process. “It is, in fact, a judicial change of the civil procedure rules by adding a new chapter titled ‘John Doe Lawsuits’, if such update is needed, it should be done by legislation“. This is a substantial ruling as it has implications on standing cases where John Does are presenting their case to avoid being revealed (see, for example, OCR 567/08 א 4854/07 Barlomenfeld v. Google Inc). But it mostly have meaning in another pending case, the appeal on OCR 11646/08 Premier League v. Doe (which the supreme court is hearing under CA 9183/09 Premier League v. Doe) (English summary of the case). The Premier League’s request was to reveal an anonymous website operator who posted links to video streams of sport events. But does the Rami Mor decision say anything else?
4.The supreme court ruled that:
Shattering the ‘illusion of anonymity’, in a reality where a user’s privacy feeling is a myth, may raise associations of a “big brother”. Such violation of privacy should be minimized. In adequate boundaries the anonymity shelters should be preserved as a part of the Internet Culture. You may say that anonymity makes the internet what it is, and without it the virtual freedom may be reduced.
Actually, at this moment there are dozens of requests to unmask anonymous users that following the Mor decision may be dismissed; apart from that, several lawsuits are based on evidence that was obtained in such manner (or not in such manner, decent disclosure etc) and may be dismissed as the evidence was obtained by violation of privacy (see HCJ 6650/04 Doe v. The Rabbinical Court of Netanya). In fact, the supreme court took five years of case law, and ruled that it is based on a legal mistake. No more cases which need to choose between Judge Amit’s approach to the method construed by Judge Michal Agmon-Gonen in PP 541/07 Jacob Sabo v. Yedioth Internet and the interpretation of Judge Drora Pilpel in PP (Tel-Aviv) 250/08 Brokertov v. Google, but a ruled precedent by the supreme court.
The real meaning is that now a hasty legislator needs to start drafting an adequate procedure, where the Knesset may ask if there is room for a John Doe process in Israel or not.