Free Consultation
Arbitration

Can illegally obtained evidence be used in an Israeli arbitration?

Usually not without serious risk. Section 32 of the Protection of Privacy Law 5741-1981 bars using material obtained through an infringement of privacy as evidence without the injured person's consent, unless the adjudicator permits it for recorded reasons, and Section 13 of the Secret Monitoring Law 5739-1979 excludes the product of unlawful eavesdropping. Arbitrators have more latitude than judges, because the First Schedule to the Arbitration Law 5728-1968 frees them from the formal rules of evidence. Relying on unlawfully obtained material can still expose the award to a set-aside application under Section 24.

Two separate questions arise: whether the material can be admitted, and what the party who obtained it risks. Section 32 is not an absolute ban. The adjudicator may admit privacy-infringing material for reasons recorded in writing, and the bar does not apply where the party who obtained it has a defense under the Privacy Law itself, such as a legitimate interest. Recordings follow different rules. A participant may lawfully record a conversation they take part in, but secretly recording a conversation between others is a criminal offense, and its product is inadmissible in civil proceedings. Material taken by breaking into another person's email account or computer adds criminal exposure under the Computers Law 5755-1995.

The problem arises most often in commercial and shareholder disputes: emails copied from a former partner's account, messages taken from a shared phone, or a private investigator's covert recordings. A tribunal that admits contested material without addressing the statutory bars gives the losing party grounds to argue, within the 45-day deadline, that the award offends public policy or that the hearing was unfair. The person whose privacy was infringed can also sue separately, and the Privacy Law allows compensation without proof of damage. Admissibility objections are commonly raised at the procedural-order stage, so the tribunal rules on them expressly. Our guide to evidence in Israeli arbitration covers documents and witnesses.

⚖ In Practice
  • Governing law: Section 32, Protection of Privacy Law 5741-1981; Section 13, Secret Monitoring Law 5739-1979; First Schedule, Arbitration Law 5728-1968
  • Competent authority: the arbitral tribunal rules on admissibility; the District Court (Beit Mishpat Mehozi) hears applications to set aside the award
  • Timeline: an application to set aside an award must be filed within 45 days of receiving it
  • Fees/amounts: compensation without proof of damage for an infringement of privacy of up to NIS 50,000, and up to double that where intent to harm is proved (statutory figures, index-linked)
  • Criminal exposure: unlawful eavesdropping carries up to 5 years' imprisonment; unauthorized access to a computer carries up to 3 years under the Computers Law
  • Lawful exception: a party who records a conversation they took part in commits no offense under the Secret Monitoring Law

From the full guide: Evidence in Israeli Arbitration: Documents, Witnesses & Experts

Related Questions

Related Guides

Need legal help with this topic?
Get a Free Consultation with Adv. Eli ShimonyPrepared under the direction of Adv. Eli Shimony, Eli Shimony Law Office · Editorial policy

← Browse all Q&A