Who Let the Barnoar Gag Order Fall Through the Cracks?

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Ooops! The police got confused twice on Monday. At the same time, Tel Aviv Magistrate's Court Judge Ido Druyan neglected to adopt the liberal approach to the Internet age that has recently been shown by the Supreme Court.

The first time the police got confused was when it thought that the court worked for it. It turns out that wasn't the case. It may be rare to find judges that don’t say amen and bow their heads before the gag order requests of the police, but one can occasionally find these rare cases here and there.

Judge Druyan is a former prosecutor who had experience with criminal cases of this type during his time at the Tel Aviv District Attorney's Office. He knows how to examine evidence and how to conduct a criminal investigation. When it comes to matters of freedom of speech and the public's right to know, Druyan is on the liberal side of the spectrum.

In his decision on Monday regarding the removal of the gag order over the murder investigation into the killings at the Barnoar gay youth center in Tel Aviv, he emphasized that the public interest in the publication of the details of the investigation is almost axiomatic.

The public's right to know the details of the investigation and the identities of the suspects is weighed against the resulting damage to the suspects' reputation. The court ruled in favor of publication, and the suspects will have to fight for their good name in the public eye.

So what happened? Druyan quite rightly notes that information once it has already been released cannot be contained. So he suspended the lifting of the gag order and the names of the suspects, in order to allow their defense attorneys to appeal his decision.

Their chances are slim – but they have the legal right to try. The police did not anticipate this. The confused and embarrassed police were forced to halt the publication of the information they had given out at a scheduled press conference that they had called to announce the lifting of the gag order.

But despite his best intentions, the judge made a mistake. He had already voiced discontent over the last few days, after the police requested that the gag order be extended. He warned them that he would remove it soon. But when the police asked to remove the gag order on Monday, Druyan delayed the publication of all details of the case for another night.

This was too much. No major damage would have been done if the details of the investigation were published without the suspect's names. It could have been a partial publication of details – as the judge himself said.

The Supreme Court Justice Uzi Fogelman recently said that as we live in an age where information that is subject to a gag order can be published on the Internet, the court must take this fact into account when it censors information. Judge Druyan made a mistake when he decided to prevent the "established" media from publishing information that was already widespread, especially when he himself stated that the information circulating online had different versions – some that are true and some that are false. His mistake demonstrates that the legal system has still not found a way to deal with the social networks. It is very far from doing so.

The second time the police got confused was a much deeper systemic failure. The police press conference was planned for the date that the police thought the gag order would be lifted. The timing shows that these gag orders – and especially the removal of these gag orders – are also serving the police's PR machine rather than just serving the needs of the investigation. True, the information about the investigation is important, and it is essential for the public to know it. However, the police are using the "public's right to know" as a way of coordinating the timing of the removal of the order in a way that will make them look good. This conduct intensifies the attacks on the suspects and fuels the public criticism of the police. Law enforcement officials are setting up legislative initiatives that call for a blackout to be imposed on suspects' names until they are indicted. Thus, the police's PR attempts are actually indirectly strengthening those who want information to be concealed, and are harming the public's right to know.

Head of the Police's Tel Aviv District giving a press conference on the Barnoar case, June 10, 2013.Credit: Moti Milrod
A suspect in the Barnoar gay youth center shooting at court, June 6, 2013.Credit: Moti Milrod

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