The likelihood that a gag order will be violated on the Internet isn't necessarily a reason to refrain from issuing one, the Supreme Court ruled on Sunday.
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In his ruling, Justice Uzi Vogelman said this possibility is certainly one of the factors a court must consider in deciding whether to issue a gag order. "We aren't blind to the virtual reality, or to the enforcement difficulties that confront anyone who seeks to impose the law's authority in cyberspace," he wrote, with Justices Isaac Amit and Esther Hayut concurring. Nevertheless, he added, "even given these facts, one shouldn't exaggerate the fear that gag orders will be violated as a matter of routine."
He did acknowledge one possible exception: "When we're talking about an earth-shaking case, or one that can be expected to have especially wide resonance beyond the state's borders, there are grounds for the view that in the Internet era, issuing such an order won't prevent information about the case from quickly becoming public knowledge. Thus in those special, exceptional cases, it could be that different thinking is needed." But he declined to rule decisively on this point, merely citing it as a question worthy of further study.
Regarding the media's role, Vogelman said "there's no need to waste words on the fact that the media's watchful gaze and wide-open eyes are one of the foundations of every democratic system ... As a rule, we should aspire to let the press publish concrete information in real time about current events that are on the public agenda."
Nevertheless, he stressed, "a court order isn't merely a recommendation. Every person is obligated to obey the order - any order - to the letter.."
Vogelman's ruling was issued in the case of a man suspected of sexual offenses against a minor. After the prosecution decided to close it due to lack of evidence, the man sought a gag order not only on his identity, but on the entire case, arguing that even without his name, publicizing details of the case would lead to his identity being revealed on the Internet.
But the ruling drew extra attention because the recent case of "Prisoner X" has sparked a public debate over the efficacy of gag orders in the Internet era. In that case, a blanket gag order was slapped on the fact that an Australian-Israeli dual citizen - whom foreign media have identified as a Mossad agent named Ben Zygier - was arrested in 2010, held in Ayalon Prison under a false name and subsequently committed suicide. The order had to be partially lifted after the Australian media reported the case.
In the current case, Vogelman agreed that the courts had to consider whether publicizing the incident even without the man's name would lead to exposure of his identity. Nevertheless, he decided this fear wasn't sufficient to justify a blanket gag order and permitted publication of the case as long as all identifying details about the suspect were omitted.