Privacy & Information Security Law Blog

In a landmark holding, the Israeli Supreme Court restricted the unmasking of an anonymous defendant on an online defamation case, holding that online anonymity is a constitutional right derived from the right to privacy and free speech.

The majority (2-1) opinion held that absent an appropriate procedure set forth by statute, the identity of the defendant, who was named “John Doe” in the case, may not be disclosed by his or her ISP.

The Court wrote: “Alongside online platforms which provide user anonymity, the Internet may negate the anonymity of those whose personal data are stored in its massive database. In the past, there was no public access to personal and sensitive data and actions taken within the confines of one’s home remained far from the public eye; now the Internet provides direct and indirect access into the very heart and mind of users. The shattering ‘illusion of privacy’ online, a reality where the sense of user privacy is a myth, raises the disturbing specter of ‘big brother.’  This invasion of privacy must be minimized.  The shelter of online anonymity must be preserved within reasonable bounds as a basis for online culture.  To a great extent, anonymity makes the Internet what it is today; without it there would be no liberty in the virtual world.  As the prospect of digital surveillance increases, users’ behavior will radically change.”

The Court’s sweeping language is likely to curtail government access to anonymous user data.  Under Basic Law: Human Liberty and Dignity, a constitutional right may only be infringed upon by statute, enacted for a legitimate cause and only in as much as is required to achieve the statutory goal (proportionality).  The decision settles a long-standing split among District Courts in cases typically pitting plaintiffs in defamation, copyright infringement or privacy violation law suits against the authors of anonymous comments online.