For the first time an Israeli court has found Google liable for invasion of privacy, because the company’s AdWords service allowed a person's name to be used as a keyword without consent.
During 2007, a plastic surgery services company called: Proportzia PMC used Google's AdWords service to promote its services through sponsored links on Google search result pages. Among the keywords used by Proportzia were the name of the Dr. Dov Klein, a renowned plastic surgeon, and several combinations of his name with additional words. As a result, search results for Dr. Klein were accompanied by sponsored links for Proportzia's services. The sponsored links did not contain the search term – namely, the Dr. Klein's name. Rather, the use of his name was in the background only, and not visible to the users.
Dr. Dov Klein, brought a legal action against Proportzia and Google Israel, Google Ireland and Google Inc. (Case No. 48511-07 Dr. Dov Klein v. Proportzia PMC Ltd and others).
The facts of the case are seemingly similar to keyword trademark-infringement cases that have been tried during the past few years in several jurisdictions. This case stands out, however, because the plaintiff's trade name was also his personal name. Therefore, Dr. Klein based the claim on two causes of action: the tort of passing off and an invasion of privacy, the latter based on the Privacy Protection Act's prohibition on using a person's name for profit without consent, as well as on the constitutional right for privacy under the Basic Law: Human Dignity and Liberty.
In ruling in favor of the plaintiff, the magistrate court in Tel Aviv made a controversial distinction between a person's name and a trademark. According to the court's decision, a person's name is not a generic term or a trademark and one person may not use the name of another for advertising purposes without proper consent. Consequently, although Proportzia used Dr. Dov Klein's name in an evident trade-name context, the court nonetheless ruled that such activity constitutes an invasion to a person's privacy.
Proportzia relied on a previous decision delivered by the Tel Aviv district court that dismissed a similar case on the grounds of the need to maintain free competition and the public's access to information (Motion No. 506/06 Matiim Li v. Crazy Line, delivered in July 2006). In that case, the keyword at hand was a generic term: the Hebrew phrase "Mateem Li," that translates as "suits me". In the Klein v. Proportzia decision, the court distinguished between the two cases because the former case did not involve a person's name, and marketing interests, the court ruled, succumb to a person's right to his or her name.
The court found all defendants, including Google's three entities liable for invasion of Dr. Dov Klein's privacy, without distinguishing between Proportzia and Google's roles. Based on the court's decision, Dr. Klein was awarded NIS 60,000 (about $16,000) in statutory damages and legal fees.
For further details contact Dan Or-Hof, CIPP, at Pearl Cohen Zedek Latzer.