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Comment on the Kahn Committee Report on the Protection of Privacy

Published online by Cambridge University Press:  12 February 2016

Peter Elman
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Extract

Since the preceding article was written, the Kahn Committee, mentioned therein, has presented its report with a minority report by one of its members on the communications media. The central feature of the report is the Bill of a Protection of Privacy Law which the Committee recommends; a copy of the Bill is appended to show Israel thinking on the subject and to illustrate how far the Bill meets the matters raised by Dr. Gavison.

Apart from a very general discussion of the problems involved, the report contains a brief sketch by Dr. N. Rakover of those aspects of the subjects which are covered by traditional Jewish law and a comparative study by Dr. Gavison herself of the position mainly in the U.S.A., England, Germany, France and Canada and incidentally in Sweden, Switzerland, the Argentine, Brazil, Mexico and Venezuela, with special reference to recent legislation.

For the record it may be noted that the Committee was appointed in August 1974 by the Minister of Justice to examine the means by which protection of privacy can be secured. It held 16 meetings and heard or received in writing the views of various institutions and individuals.

Type
Articles
Information
Israel Law Review , Volume 12 , Issue 2 , April 1977 , pp. 172 - 179
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1977

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References

1 For a more extended account in English, see Rakover, N., “The Protection of Privacy in Jewish Law” (1975) 5 Israel Yearbook on Human Rights 168.Google Scholar

2 Both Dr. Gavison and Dr. Rakover were members of the Committee.

3 See, e.g., sec. 2(2) of the British Columbia Privacy Act, 1968.

4 See, e.g., sec. 7 of the Bill generally.

5 “Private domain and privacy 9. (a) Every person is entitled to due protection of (his) private domain and privacy.

(b) No entry shall be made without permission upon the dwelling of a person and no search shall be carried out there, or of his things or person, except by virtue of law and in accordance with the procedure therein prescribed.

(c) No violation of the privacy of the private or family life of a person, the secrecy of his conversations, his writings, correspondence and communications shall be perpetrated except (i) with prior authorisation of a court by virtue of law, or (ii) by virtue of the provisions of a Law intended to safeguard the security of the State and in either event in accordance with the procedure prescribed therefor”.

The Bill of this Basic Law also contains sections on the freedom of occupation, research (scientific creation, literature and art) and expression.

6 See, e.g., Sanhedrin 56b.

7 The exclusion of sec. 2(9) from criminal liability is explained by the availability of remedies in contract. Why, however, should that make any difference? In the case of the other matters mentioned in the section, there is also a remedy in tort. Is the latter of lesser value than one in contract to make it necessary to add a criminal sanction?

8 The fine mentioned may be imposed by virtue of sec. 28(2) of the Penal Law (Modes of Punishment) (Consolidated Version) Law, 1970.

9 The latter was probably included in deference to Jewish law.

10 Cf. sec. 2(6).

page 177 note 1 “…publication by speech, writing or printing, including painting, effigy, gesture, sound or by any other means”.

page 177 note 2 Permitted publications include Knesset debates and other government publications.

page 178 note 3 These paragraphs deal with cases of qualified privilege.

page 178 note 4 Section 3 excludes negligence from the non-liability of the State for bona fide acts done under authority. Section 5 excludes acts done in the course of war operations.

page 179 note 5 Section 21 empowers the court to prohibit publication of the proceedings and pleadings but not the judgment so far as necessary to protect a party's reputation. Section 22 excludes evidence and examination as to bad reputation and the like except as relevant to the proceedings, including sentence and award of damages.

page 179 note 6 Section 34A is similar to sections 2(7) and 11 (a) of the Bill.

page 179 note 7 This Schedule lists offences in respect of which (a) a private criminal complaint can be made and (b) no objection can be made to the Attorney General against a decision not to investigate or prosecute an alleged offence either for lack of public interest or evidence.