WhatsApp Correspondence: When Its Publication Violates Privacy and When It Is Protected

Hacking and Subsequent Publication Are Not the Same

The clarification was issued following the distribution of thousands of messages attributed to Prime Minister’s adviser Yonatan Urich. His lawyers warned of liability both for the hackers and for anyone who publishes or forwards the messages. However, the legal assessment varies: involvement in hacking may fall under the Computers Law, the Wiretap Law and the Protection of Privacy Law, while the subsequent publication of material that has already been distributed is examined separately.

What the Protection of Privacy Law Says

Section 2(5) of the Protection of Privacy Law defines copying or using, without permission, the contents of a letter or another document not intended for publication as a violation. Forwarding another person’s correspondence may also be considered publication, even if the material is already available online. At the same time, the law allows defenses based on good faith, a public or professional duty, and public interest; at the time of publication, the material must not be false.

How the Courts Draw the Line

The District Court ordered journalist Hadas Steif and the Galei Tzahal radio station to pay former head of the Israel Bar Association Efi Naveh 450,000 shekels. According to the source, Steif received Naveh’s old phones from his wife and participated in hacking them and extracting the data, and therefore could not simultaneously rely on the defenses provided by law. The lawsuits against Razi Barkai and the program’s editors, who transferred the material for broadcast but did not participate in obtaining it, were dismissed.

Public Interest and the Personal Sphere

In another case, Minister Itamar Ben-Gvir sought to prohibit Raviv Drucker from presenting raw materials from WhatsApp groups of which he had been a member on the program “Hamakor.” The Supreme Court rejected the request, pointing to the public importance of the correspondence, whose authenticity was not disputed, and to the importance of being able to examine the raw material. However, information about health, emotions and family relationships generally belongs to a deeply personal sphere, while correspondence by an influential adviser concerning campaigns, speeches and the management of media coverage of events may be of substantial public interest.

Falsifying Messages Changes the Assessment

Urich claims that some of the messages were altered. According to the position presented in the source, anyone who distributes a fabricated message loses the ability to rely on public interest and may also face a defamation claim. At the same time, the Supreme Court has previously clarified that a lawsuit filed only against certain distributors, when the publication at issue was disseminated widely, may be dismissed due to selective enforcement.

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