The ruling in C 48511-07 Dr. Dov Klein v. Proportzia ltd will most probably not be in any future cyberlaw schoolbook unless Google, one of the defendants (or actually three of them), will decide do appeal even though such a small amount (around 12,000 US$) was ruled against it and Proportzia. In brief, before we discuss the problems of this ruling, let’s tell the story. Dr. Dov Klein is a plastic surgeon. One day he found out that Proportzia, a clinic providing cosmetic surgery and other beauty treatments, decided to purchase AdWords under his name. Klein did not like the use of his name and decided to sue Proportzia as well as Google, the service provider. The Magistrate Court of Tel Aviv-Jaffa ruled that Proportzia and Google are liable for invasion of privacy and must compensate Dr. Klein.
Google AdWords lawsuits were a big issue in the past (where the most famous was Government Employees Insurance Co. v. Google, Inc., No. 1:04cv507, see more at Eric Goldman’s blog). In Israel, however, there was one material ruling, OP 506/06 Matim Li v. Crazy Line, where the Israeli District Court of Tel-Aviv ruled that as long as the ad itself is not misleading, there is no problem with purchasing ads using someone’s tradename. But here the court needs to explain why he deviated from this decision, so he ruled that “These are keywords which contain a personal name, and not a trademark, and therefore you cannot say that in regards to this name the internet is an advertising space similar to others. So it would be adequate to rule that in regards that without the personal name’s holder’s permission, the name shall not be used for advertising”
The court goes with the infamous publicity rights and determines that when the use use is of someone’s personal name, and not a trade name, then the use has to be with permission of its “owners“. However, here already stands a first problem in regards to publicity rights. Dr. Klein is a celebrity, and as such he has not right for privacy (in regards to publicity rights). Israeli courts ruled that when a person uses his name for trade, he cannot later state that he does not want others to rely on such business name. In a recent case, the court ruled that “the right for privacy is a right that protects the emotional-personal interest of a person, his autonomy and his private matters, but not his financial interests” (C 534-08 Hava Koren v. Shai Cohen). Meaning, the rationale behind publicity rights apply where a person does not wish to be known publicly and is coerced to do so, not where he is already known.
The second problem here is where is the border between a person’s name and a trade name. Is Ford protected under this ruling, being the surname of Henry Ford? This is the incoherence that later calls of over-litigation and pays the lawyer’s retainer is bad lawsuits. If the court had a reasonable rationale, it had to provide it in a detailed manner, even if it means writing 50 pages instead of 14.
Now, after having said that, the real problem arises. As the court did not provide reasoning for its ruling, it did not explain where Google’s active involvement that provides incurring liability on it. That’s why Google did not know, and was not expected to know, about the existence of a person named Dr. Klein and that he does not want others to use his name. The court here goes against any other service provider liability case in Israe (C 567-08-09 ALIS v. Rotter, C 1559/05 Hemda Gilad v. Netvision, C 64045/04 Al Hashulchan v. Ort).
The fact that the court did not provide reasoning to its ruling is a problem. It does not let us understand why it decided that Google is liable and does not let us understand the issue. We have to wait and see whether Google appeals this.