District Court overturns lower court's decision on use of personal name as keyword
Overturning the Tel Aviv Magistrate Court's decision, the District Court has ruled that Proportzia PMC Ltd was entitled to use the name of the plaintiff, Dr Klein, as a keyword in Google's AdWords service, provided that the search results were not misleading. As Dr Klein's name had become known as part of his business, there was no difference between using his name and using a trademark and, therefore, such use did not constitute a violation of privacy.
The plaintiff, Dr Dov Klein, is a well-known plastic surgeon in Israel. The plaintiff brought an action against Proportzia, an Israeli chain of cosmetic surgery clinics, and against companies related to Google, claiming that the defendants were not entitled to use his name - or variations thereof - as a Google AdWord without his consent. Such use resulted in Dr Klein's potential clients being directed to Proportzia's website, a company to which Dr Klein was not commercially related.
The Magistrate's Court of Tel Aviv ruled that Proportzia's use of Dr Klein's name for commercial purposes, without his consent, constituted a violation of his right to privacy in accordance with the Privacy Law 5741-1981, as well as his rights under Israel's Law on Basic Human Dignity and Liberty, which provides for the protection of the right to privacy, as well as the right to property.
The District Court overturned the Magistrate court's decision, holding that Proportzia's use of Dr Klein's name as a keyword - in the sense that, when internet users searched for 'Dr Klein', an advertisement for Proportzia would appear on the search result page as a sponsored link - was permitted.
The court based its holding on the Matim Li case - a District Court judgment which addressed the same question, but concerned the use of a competitor's trademark, rather than a private name. The court ruled that this difference did not justify diverging from the Matim Li ruling, since it was not disputed that Dr Klein's name had become known as part of his business and that it was identified with his line of work (ie, providing plastic surgery services). There was no difference between using Dr Klein's name and using a trademark.
The District Court held that:
- the Magistrate Court had erred in finding that Proportzia used Dr Klein's name for commercial purposes; and
- the advertisement itself, which was highlighted as a sponsored link, was not misleading and did not include Dr Klein's name or any specific information about him.
The District Court then turned to comparative law, concluding that, in such cases, the advertiser will be found accountable only when the search results are misleading. Additionally, in similar circumstances, privacy laws do not prevent the use of a person's name as a keyword in search engines.
The court further held that there was no connection between the protection of human dignity, property and privacy under the Law on Basic Human Dignity and Liberty, and the use of a name that has become a trademark, as in the present case. Proportzia did not publish Dr Klein's name, but used it as a keyword in a way that did not constitute a violation of privacy under Article 2(6) of the Privacy Law. In this regard, the court referred to Aloniel Ltd v Ariel McDonald (CA 8483/02, March 30 2004), stating that, when a person commercialises his or her name, he or she cannot expect to enjoy the right to privacy with regard to his or her name.
David Gilat, Gilat Bareket & Co, Reinhold Cohn Group, Tel Aviv
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