Israeli Rabbinical tribunal: content retrieved from spouse’s smartphone without consent is admissible evidence

By‎ עו"ד דותן המר

שותף בקבוצת הסייבר, הפרטיות וזכויות היוצרים במשרד פרל כהן צדק לצר ברץ

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The Israeli rabbinical tribunal in Netanya ruled that text messages and e-mails that a wife secretly retrieved from her husband’s smartphone and computer are admissible evidence in divorce proceedings. According to the rabbinical tribunal, “the necessity to determine the truth outweighs the husband's right to privacy and right to conceal the abovementioned text messages and e-mails”. The tribunal also stated that “if the wife’s allegations that the divorce” is at the fault of her husband, “she indeed deserves to demand and to receive her “Ketuba”” (a uniquel prenuptial agreement in Judaism). The rabbinical judges explained that the degree of invasion of privacy is minor considering that the content in not of intimate nature. 
 
The wife’s attorney expressed satisfaction with the rabbinical tribunal’s decision and praised the rabbinical judges. On the opposing bench, the husband and his attorney indicated they intend to appeal to the supreme rabbinical tribunal and even file a petition to the High Court of Justice against the rabbinical court. The husband’s attorney explained that “the rabbinical judges’ decision contradicts case law which held that meddling with e-mails or smartphones is an invasion of privacy and is actually a criminal offense”. Source (in Hebrew): TheMarker (by Shimon Efargan and Ehud Keinan).
 
Law.co.il notes that the Israeli Protection of Privacy Law (“PPL”) provides that invasion of privacy is among others:
  • Spying on or trailing a person in a manner likely to harass him, or any other harassment; or
  • Copying or using, without permission from the addressee or writer, the contents of a letter or any other writing not intended for publication.
In addition, section 32 of the PPL prescribes a unique exclusionary rule in Israeli law, according to which material obtained in the course of invasion of privacy shall not be used as evidence in court without the consent of the person whose privacy was invaded, unless the court permits it to be used for justifiable reasons, or if the individual who committed the invasion of privacy, being a party to the proceedings, is shielded from liability by a defense to invasion of privacy or by an exculpation under the PPL.

In 2006, The Israeli High Court of Justice overturned judgments by the Rabbinical tribunal in Netanya and the Supreme rabbinical tribunal, on the admissibility of a photograph obtained through invasion of privacy. The High Court of Justice held that under the circumstances then, which involved a photograph of an intimate nature that wasn’t dispositive to the rabbinical tribunal’s decision, the photograph is no admissible due to the severity of the invasion of privacy involved.