The Publicity Right in Israel: An Example of Mixed Origins, Values, Rules, Interests and Branches of Law

Abstract

Personality rights are gaining force in Israeli law. The cluster of these rights, namely the right to reputation, privacy, the traditional moral right and the publicity right, which rests on a mixture of origins, interests and values, poses some very interesting questions. Some of these questions will be analysed in this paper in light of a recent decision by Israel’s Supreme Court on the publicity right which will serve as a helpful case study.

McDonald v McDonald ended a long and widely publicised advertising battle waged between two hamburger chains and a basketball player named Ariel McDonald. After tracing the essence and origins of the interests protected by the publicity right, the court decided that Israeli law protects this right through the Unjust Enrichment Law (UJEL) rather than the Protection of Privacy Law (PPL) despite explicit references in the latter to circumstances of using someone’s image, picture or voice for profit. The court’s decision thus seriously handicapped and regrettably obscured this law in particular and the law of torts in general.

The decision of Israel’s Supreme Court in the McDonald case will be analysed by applying two avenues of argumentation. First, “pure Israeli system-based” arguments relating to the inner logic of the structure of personality rights at large and the publicity right in particular as constructed by Israeli legislation will be applied to the history of the right’s evolution from a “non-existent” status to a debatable right at the crossroads of constitutional law, tort law and UJEL. Secondly, the comparative law perspective, which offers a wealth of academic research and a rich diversity of theoretical and practical legal tools for conducting such an examination, will be used to support the position taken.

Apart from providing a close look at the way the publicity right developed – between legislation and case law, between pure theory and real life – this paper will also show how delicate the use of comparative law is and how vigilantly the findings of comparative research should be applied.

Keywords: publicity right, defamation law