Q&A: On the Right to Privacy
On the Right to Privacy
Question
Hello Rabbi,
Recently, an article was published about a woman who was photographed eating shawarma and was awarded 20,000 shekels. Do you think this ruling is correct? Prima facie, I would have thought that anything a person does in the public domain, or in another person’s private domain, gives the owner of that domain (or anyone, in the case of the public domain) the (moral) right to photograph or record them, whether with or without the knowledge/consent of the person being recorded, and to make use of the recorded information as they see fit. What do you think?
Best regards,
Answer
It is clear that distributing such a photograph is not a nice thing to do, since it is somewhat of an invasion of a person’s privacy. It is not only a question of wide distribution; the focus on that person is stronger and more concentrated. When someone is just eating on the street and people pass by, they are not really looking at him.
The question of compensation is a different matter. Are these damages? In my opinion, this can only be discussed under the laws of humiliation, but at least in Jewish law there is no payment for humiliation in a case like this. Humiliation by words is exempt (Shulchan Arukh, 420:38). However, see the gloss of Rabbi Moshe Isserles there and the commentaries, and a survey here: http://www.eretzhemdah.org/newsletterArticle.asp?lang=he&pageid=43&cat=5&newsletter=558&article=2722
Reasoning it out, it seems that if she was eating in the public domain anyway, then it is obvious that there is no humiliation here in the sense that would obligate compensation.
Of course, the Rosh wrote that it is proper for a religious court in every generation to establish safeguards as needed. Therefore, in our context there is room to set punitive compensation (a fine). As for the matter itself, it is hard to decide. It seems to me that what matters is setting a binding norm, and from that point on everyone can weigh their actions. If the norm is that photographing is permitted, then everyone knows that if they do something they may be photographed. And if it is determined that it is not permitted, then everyone will be able to act more freely accordingly.