1. The Israeli legal system
In order to understand how data protection law works in Israel, it’s necessary to understand the Israeli legal system. The Israeli legal system is a unique hybrid. It has continental, North American and common-law influences. These come together to give practical effect to Israeli privacy law.
As a common law country, Israel’s laws are interpreted and developed through the specific decisions of the courts. Its judiciary enjoys wide judicial power and discretion in making case law, something that is guaranteed in Israel’s ‘Basic’ laws – these are described later in this paper It is important to understand that the principle of precedent in Israeli law means that a decision in of a higher court will bind a lower court, and the Supreme Court is not bound by its own decisions.
A growing body of court rulings is defining the character of the Israeli data protection regime. It is clarifying how Israeli data protection law applies in real-life situations, explaining how the balance between privacy protection and the collection and use of personal information should be struck. However, the differences between Israel’s essentially common-law system and a civil law system (as in most of Europe) should not be overestimated. Both systems start off with bare legal texts. These are given meaning by regulatory actions by Data Protection Authorities and by tribunal and court rulings. These elaborate the principles and definitions that constitute applicable law.
The Israeli legal system is a hierarchy consisting of several tiers. At the top are the ‘Basic laws’, which enshrine constitutional values and rights. This means that the power of the legislative, and the executive branch, to interfere with these rights is limited. According to Israeli constitutional jurisprudence, any court can declare a law conflicting with the Basic laws to be “unconstitutional” and
therefore null.
Below the Basic laws are regular laws, and below these various acts of the executive branch (Ministers), which are administrative regulations. As in other legal systems, the lower tiers are subordinate to the higher ones, and the overarching influence of Israel’s Supreme Court and Basic laws should not be underestimated. Israel’s Supreme Court has wide discretion and applies an active interpretive approach, which shapes and regulates administrative discretion. Where a right protected by the Basic laws is interfered with, the relevant Basic law will be the touchstone against which the provision in question is tested.
2. Israel’s ‘Basic laws’
Like the UK, Israel does not have a written constitution. However, its system of Basic laws now has a de-facto constitutional status. This means that even laws passed in the Knesset must comply with the overarching values enshrined in these laws.
The Basic laws are similar to those found in Canadian constitutional legislation. They set out the overarching standards that Israeli institutions – legislative, executive and judicial – must adhere to. From a privacy perspective, section 7 in the Basic Law: Human Dignity and Liberty is most relevant. This states that:
A) All persons have the right to privacy and to intimacy;
B) There shall be no entry into the private domain of a person without that person’s consent;
C) No search shall be conducted in the private domain or on the body of a person, nor in the body or effects of a person;
D) There shall be no violation of the secrecy of the communications, writings, or records of a person.
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