Israel: Supreme Court Affirms Distribution of Nude Photos without Consent Violates Rights to Privacy and Dignity

(May 14, 2021) On March 17, 2021, the Supreme Court of Israel dismissed an appeal against a decision by the Beersheva District Court regarding a number of criminal offenses, including the distribution of a person’s nude photos online without that person’s consent. The Beersheva court had rejected an appeal against the petitioner’s conviction and sentencing for burglary and theft of a vehicle, unauthorized access to material on a person’s computer and distributing the material without authorization, sexual harassment, and invasion of privacy. The petitioner’s conviction by the magistrate court relied on the totality of circumstantial evidence indicating that the petitioner had broken into the complainant’s vehicle, removed her cellular phone, and posted intimate photos stored in it on her private Instagram account. The petitioner did so while impersonating her in a manner that allowed each of the hundreds of her account’s “followers” to view the photos and disseminate them widely. (CrimA Request 1024/21 Saber Abu Atsa v. State of Israel, State of Israel Court Authority (Mar. 17, 2021) (in Hebrew).)

Rejecting the petition, Justice Yosef Elron determined that a leave to appeal “in the third instance,” as had been requested in the current case, would be granted only in cases involving a legal question of public importance, or when there was a real concern that the petitioner could be subjected to extreme injustice if approval were not granted. The petitioner’s case was not one of those exceptional cases, according to Elron.

The distribution of nude photos of a person without that person’s consent, he emphasized, violated the individual’s privacy and subjected the individual to shame and contempt. As such, it violated the victim’s basic rights to privacy, dignity and a good name.

In accordance with section 3(a)(5a) of the Sexual Harassment Prevention Law 5758-1998, the distribution of still pictures or video recordings of a person’s image that focuses on his/her sexuality, including by editing or incorporation, is unlawful if done

  1. without the person’s consent;
  2. in a way that facilitates identification of the person; and
  3. under circumstances that may degrade or shame him/her.

The distribution of such images constitutes sexual harassment and intentional harm to a person’s privacy under section 5 of the Protection of Privacy Law, 5741-1981, as amended. The crimes are punishable with five years of imprisonment, in addition to subjecting the perpetrator to civil liability and the duty to pay monetary compensation to the victim.

The adoption of section 3(a)(5a) of the Sexual Harassment Law, according to Elron,

expresses the recognition that cyberspace is a fertile ground for sexual assault, enabling the distribution of abusive images in an unlimited manner, which has the potential to cause lasting and irreversible harm to the victim. In light of the severe harm to the victim that accompanies the commission of the offense, and bearing in mind that the possibility of locating the offender is often very limited, a strict punishment policy is needed that will deter potential offenders from committing their act.

The Court accordingly rejected the petition.

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