An Impingement on Journalistic Immunity

Recent cases point to freedom of press with limits

The detention of the editor of an on-line arts and culture magazine earlier this week reveals the fragile state of journalistic immunity in Israel, and represents one of several recent cases in which the police have impinged on this immunity.

The editor of the Internet publication Ma'arav, Ronen Eidelman, posted photos on the Web site showing the burning of one of the bull statues on Rothschild Boulevard in Tel Aviv. The statues are part of a PR campaign sponsored by the stock exchange and a number of large companies.

Painted blue and white and sponsored by El Al Israel Airlines, the statue presumably was set alight in protest over harnessing culture to big business.

Eidelman said he had decided to post the photos without seeking the identity of the photographer in order to spark debate. However, detectives arrived at his apartment Tuesday morning, and told him he was a suspect in the arson. They impounded all his computer equipment, and asked him to come in for questioning.

When the officers were persuaded that Eidelman was not involved in the arson, they pressed him for the photographer's identity. He refused, citing the obligation of a journalist to protect his sources.

The police responded that this clause in the journalists' code of ethics did not apply to him, and in any case,the law regarding journalistic immunity was "general and unclear."

Moshe Negbi, a legal expert and lecturer on journalistic ethics at the Hebrew University of Jerusalem, says the police are not entirely wrong in their assessment. Journalistic immunity "in fact does not exist," he says. There is no legal impediment to the police confiscating material as they did in Eidelman's case, and using it to uncover the source's identity, Negbi says.

In a number of recent cases, the police have marred journalistic immunity. At the beginning of the month, Tel Aviv Magistrate's Court Judge Miriam Diskin ruled that the Channel 2's "Fact" investigative program had to turn over unedited and unaired material from an interview with the principals in the Trojan horse affair - Michael and Ruth Haefrati. Diskin's ruling was not challenged by an appeal, because the Haefratis subsequently authorized the transfer of the material.

"In the question of the balance between the interest of freedom of information, and the public well-being and meeting the needs of the investigation, the obvious answer is to prefer the protection of the latter," the judge wrote.

In another case now before the court, the police have demanded that unedited documentation by the media of the evacuation of Amona be turned over to them. The daily papers did not oppose the demand. However, the Channel 2 news company asked the Jerusalem Magistrate's Court to annul the police order. Lawyers for the channel argued that the demand opposes freedom of the press and recognition by the High Court of Justice of journalistic immunity in its decision in the Citrin ruling.

However, Negbi explains that the Citrin ruling grants only partial journalistic immunity; it recognizes the right of journalists to protect their sources, but not the right to protect materials they have received. Negbi calls this "a very serious loophole." Even if a journalist has assured his source that statements have been made off the record, "the police can demand the material, and claim that non-compliance constitutes obstruction of justice. The journalist is completely defenseless in such a case," Negbi says.

Such was the case with the "Fact" interview, but Negbi says the Eidelman case is different. "This was a public event. There is no obligation toward the demonstrators, and therefore, the media is divided over the issues. Some believe the media must not be seen as an 'agent' of the police, while others say it is their public obligation to stand with law enforcement."

The recent spate of incidents underscores the need for proper legislation to anchor journalistic immunity, which despite efforts, for example by Uri Avneri in the 1970s, has not passed.

"The Knesset isn't interested in such legislation," Negbi says. "It strengthens journalists and protects those who leak information, which MKs are not interested in doing."