Free Speech in Israel

According to Judge Haim Cohen , the history of freedom of speech in Israel has its roots in Tanah and Talmud . In Jewish law , as in other legal systems, the principle applies: everything that is not prohibited by law is permitted. There are, for example, prohibitions on slander , on disrespectful statements in relation to the father and mother, but everything that is not directly prohibited is permitted. According to him, in the history of ancient Israel, the most striking manifestation of freedom of speech in a positive form was the speech and prediction of the prophets. It is the free spirit of these predictions that explains ^{[3] the} text of the Declaration of Independence of Israel, which states that the state “will be based on the principles of freedom, justice and peace in accordance with the plans of the Jewish prophets” ^[4] .

On May 14, 1948, the Declaration of Independence of Israel was approved, the legal force of which has been repeatedly discussed by the High Court of Justice ( BAGAC ). In 1953, in a case-law in the Kol Ha-Am case ^[5] , which dealt with the closure of the media, Supreme Court Judge Shimon Agranat , relying on his interpretation of the law on the Declaration of Independence, laid the foundations of freedom of speech in Israeli law. The decision of the Supreme Court in the Kol Ha-Am case not only paved the way for the protection of freedom of speech, but also served as an example for a number of other precedents in the field of human rights.

In 1986, in the Laor case, ^{[6] the} Supreme Court examined the lawsuit regarding the refusal of the Film and Theater Control Board to allow the production of Yitzhak Laor's play. The Council noted that the play maliciously distorted the image of the military governor in Judea and Samaria , comparing his rule with the Nazi regime, and that showing the play would arouse spectators' disgust for the IDF and the State of Israel. Judge Aaron Barak ruled in this case that freedom of speech cannot be restricted unless there is a serious threat of serious harm to public order ^[7] .

In 1989, in the Schnitzer case ^{[8], the} Supreme Court for the first time considered a lawsuit on the legality of military censorship. In the BAGAC’s decision on this case, Judge Aaron Barak noted that security is not only the state of the army, but also the strength of morality and adherence to democratic principles, among which freedom of speech occupies an important place. According to Judge Barak, freedom of speech can be restricted only if there is a firm belief in a threat to security interests and this threat cannot be prevented without harming freedom of speech ^[9] .

In 1989, the Decree on Public Performances (criticism) of 1927 was suspended for two years, and in 1991 this law was repealed.

In August 1991, Israel ratified the International Covenant on Civil and Political Rights , which it signed back in 1966. ^[10]

The human right to freedom of speech and expression is not enshrined in Israeli law and is not included in the basic laws of the state ^[11] . In 1992, the Basic Law on Human Dignity and Freedom ^[12] was adopted, the purpose of which is to protect the dignity of a person and his freedom and to fix the "values ​​of the State of Israel as a Jewish democratic state" in the basic law. Under this law, basic human rights should be respected in the spirit of the principles embodied in the Declaration of Independence of Israel. The law does not explicitly include the right to freedom of speech.

In 2003, the opposition channel Seventh Channel was closed. In 2006, RTVi was deprived of its main source of income ^[13] .

The behavior of some media representatives during the Second Lebanon War in 2006 was sharply criticized by the public ^[14] . The Vinograd Commission recommended a review of the work methods of military censorship and the openness policy of the IDF towards the media during times of emergency ^[15] . In particular, it was recommended that the reporters' access to the scene of hostilities and direct reporting from the scene be reviewed. During the military operation Cast Lead in late 2008 - early 2009, new press restrictions were already in place. Israel suffered less casualties during the operation, but the state’s rating for press freedom has declined.

Freedom of speech is not regarded as an absolute right. Freedom of speech and press may be restricted by state laws ^{[16] [17]} .

In Israel, freedom of speech is not absolute, as it is not the only principle that guides Israeli democracy. Other basic principles include human dignity, ownership, proper (unhindered) judicial procedure, and public safety. When these principles clash with each other, a balance must be struck between them. The balance is primarily set by the legislator. If the legislator refrained from this, the balance between freedom of speech and other principles is established by the court ^[18] .

The geostrategic position of Israel is more complex than most other states ^[19] .
During the Second Lebanon War, the IDF practiced a policy of openness towards the media, which included free access for reporters to the scene and direct reporting from the front line. Some reports contained detailed data on the direction of the army's offensive and on the places where rockets fell in the rear. The state controller noted in his report that during the war the media often published classified information, which is unacceptable during hostilities ^[20] . Channel 9 war correspondent believed that excessive openness prevented the army from conducting military operations ^[21] . One of the authors of the Globes newspaper expressed concern that the reports provided the enemy with important information, and military censorship and the Press Council were unable to cope with this situation. The author of the article proposed the adoption of a law restricting freedom of the press in cases where the life of a soldier or civilian population is threatened and motivated it this way: “If the legislator considered it necessary to protect the dignity of a person, then why not protect the human life?” ^[22] .
The activities of the media during the Second Lebanon War were investigated by the Commission of Vinohrad, which published the results of this investigation in its report in the chapter on information security. “When national security and freedom of expression clash, state security is more important than freedom of expression, since security is an indispensable condition for the realization of all other rights,” the report says, “however, due to the great importance of freedom of expression, its restriction should be minimized.” The report contains criteria for the balance between freedom of speech and state and public security ^[23] . In the Kol Ha-Am case, the BAGAC applied the criterion of “near certainty” to assess threats to public safety in cases where authorities tried to hide criticism in relation to themselves. In the Schnitzer case, this criterion was extended to the case when it came to the publication of information that could help the adversary inflict damage on state security. The Vinograd Commission expressed the view that Israel’s geostrategic position obliges the prohibition of publishing that could cause real harm to security and the application of the criterion of “reasonable certainty”, which is a lower probabilistic assessment of the possibility of damage to security than “undoubted certainty”. The criterion of “reasonable certainty” was established by the Supreme Court in the Tenenboim case ^[24] , when the possibility of disclosing information would endanger human life was discussed.

The restrictions on freedom of the press in Israel include:

• Print Media Licenses and Powers of the Minister of the Interior ^[25]
• Dependence of the Broadcasting Authority on the Government ^[26]
• State monopoly on news broadcasts ^[26]
• Status “ Galei IDF ”
• Training TV Status
• Cross-media ownership
• Commercial Broadcast Concessions
• Control of the advertising market
• Press Decree of 1933 ^[25]
• 1927 Motion Pictures Decree
• Defense Orders (Emergency) of 1945 ^[27]
• Media Closing Cases
• The existence of opposition media
• Military Censorship ^[28]
• Editors Commission ^[29]
• Film and Theater Control Board
• Sub judice (case pending trial) ^[30]
• 1948 Counter-Terrorism Ordinance
• Privacy Act 1981
• 1965 Anti-Slander Act
• Bans on individual publications:
  • Incitement to Racism
  • Call for violence
  • Insulting religious beliefs or beliefs
• Prohibition of the publication of information on minors
• Conditions for obtaining a journalist’s certificate
• Journalistic ethics
• Reduction of state financing of organizations acting against the principles of the state ^[31]

In 2010-2011, the Israeli parliament passed several laws, which are sometimes perceived as attempts to restrict freedom of speech in Israel ^[32]

• In July 2011, the ^[33] Law on Preventing Damage to the State of Israel through a boycott ^[34] was passed, according to which sanctions are imposed against Israeli organizations calling for a boycott ^[35] . Some Knesset members are of the opinion that the law does not encroach on freedom of speech, but merely makes it possible to demand compensation for damage caused by the boycott ^[36] . The organization “ Gush Shalom ” filed the BAGAC with a request to repeal the law ^{[37] [38]} . In April 2015, the BAGAC recognized the Law on Prevention of Damage to the State of Israel through a boycott of 1911 as valid. At the same time, the Supreme Court repealed the provision of the law that allowed compensation to victims of the boycott without proving the extent of the damage caused to them. The court decision noted that the call for a boycott is a violation of freedom of speech, as there is an attempt to impose an opinion through economic or other pressure and threats ^{[39] [40] [41]} .

Freedom House Report on Press Freedom

According to a report by Freedom House ^[42], Israel received a relatively high rating (the highest in its region — the Middle East and North Africa ) of press freedom and is the only “free” country in the region. Noting the pluralism and freedom of the media in Israel, the authors of the report express some criticism of it, but explain some cases of restrictions on movement by the ongoing conflict between Israel and Palestinian groups and some neighboring countries. The report said that the basis for restricting freedom of speech are laws, including the Counter-Terrorism Ordinance, which prohibits the support of terrorist organizations calling for the destruction of Israel. There have been cases of denial of accreditation of foreign journalists, as well as a ban on their entry into the Gaza Strip during Operation Cast Lead . Israeli journalists, like other citizens of the country, require permission to visit the Gaza Strip and enter “hostile” states such as Lebanon and Syria. The report noted that most Israeli newspapers show independence, some of them freely criticize government policies and boldly cover corruption. Despite a wide selection of broadcast media, ownership in this sector, according to Freedom House, is too concentrated. In a 2011 report ^[43], Israel (along with India, Italy and South Africa) was called a country with “established democracy,” where freedom of speech falls under pressure.

Reporters Without Borders Press Freedom Index

The Reporters Without Borders organization annually publishes the Press Freedom Index, which lists the rating of different countries in the field of press freedom and their place in the Index. The following are data on Israel’s position in the Index since its publication in 2002:

In 2009, Israel ranked 93th in the Index ^[44] . Israel's rating has fallen after it has held higher places for several years. The decrease in assessment is due to censorship restrictions during the military operation Cast Lead in the Gaza Strip ^[45] . “Reporters Without Borders” mentions the arrests of 5 journalists in this report, some of which, according to the organization, were “completely illegal”. Three of these journalists were convicted of providing information to the enemy, two others were expelled after they entered Gaza on a ship. Israel’s rating was established on the basis of questionnaires filled out by journalist Gideon Levy , a spokeswoman for Reporters Without Borders, Soazig Dolle, and three other people who wanted to remain anonymous ^[46] .

In 2010, Israel took 86th place ^[47] . Having improved its position in the Press Freedom Index, however, Israel did not reiterate its previous higher performance.

World Audit Press Freedom Rating

In a ranking of 150 countries by democracy and freedom of the press published by World Audit in December 2011, Israel ranked 36th in the world in terms of press freedom and 31st in terms of democracy ^[48] . The Israeli press freedom rating, published by this organization since 2000, ranges from 36 to 43 places, which indicates a fairly high and stable level of press freedom. However, attention should be paid to the fact that Israel ranks lower on the basis of freedom of the press than on the state of democracy in general. Israel’s position in the Press Freedom Index, published by Reporters Without Borders, differs significantly from the results presented here, which is apparently due to the use of World Audit by another research methodology ^[48] .

Publications of Amnesty International

In its reports, Amnesty International, known for disproportionately frequent condemnations of Israel ^{[49] [50] [51] [52]} , strongly criticizes the 2011 “anti-boycott” law ^[53] (or rather, the Law on Preventing Damage to the State of Israel through a Boycott ^{[34 ]} ) and the Law on State Financing of Organizations ^[54] (or rather the Law on Fundamentals of the Budget (Amendment No. 40) ^[31] ), calling the latter “only one example of the Knesset’s legislative activity, which is a serious attack on freedom of expression in Israel.”
The Israeli Supreme Court dismissed a claim to repeal certain provisions of the law on state financing of organizations ^[55] and thereby did not confirm Amnesty International’s allegations of a violation of freedom of speech. The “Anti-Boycott” law is pending before the Supreme Court and will be premature to summarize the differences between Amnesty International and Israeli lawmakers.

Human Rights Watch Publications

In one of its publications, Human Rights Watch, which is biased against Israel ^{[56] [57] [58] [51] [59] [52]} , criticizes the “anti-boycott” law ^[34] , believing that it violates freedom of expression ^[60] , but this law is still pending before the Israeli Supreme Court.

• freedom of speech
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