A ministerial panel unanimously approved on Monday moving ahead with a bill to prevent incitement on social networks, which would allow Israel to remove content on a wide variety of topics from any website or app – not only posts deemed to be inciting to terror.
The Ministerial Legislation Committee sent the bill to the Knesset for a vote, in a major test of how far the current government is willing to expand the state's powers of censorship.
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In March 2016 Ayelet Shaked – justice minister at the time – and Gilad Erdan – then public security minister – established a team to examine legislation that would achieve this end.
However, the current proposal – which resembles that of former Prime Minister Benjamin Netanyahu’s government on its preliminary vote in the Knesset at the start of 2017 – is far broader than initially planned.
Under the proposal, any deputy state prosecutor or police officer could, with permission from the attorney general, ask a district court to remove online material. This applies to material that, in the prosecutor’s opinion, constitutes a “criminal offense” and that “in the specific circumstances of the issue, there is a real possibility that its continued publication could be harmful to the security of an individual, public safety or the security of the state.”
The proposal is also far-reaching in what it covers. It would apply to every website, including an app to which part of the public has access, even if entry requires a code or a password, regardless of whether it’s free or not, or whether its server is in Israel or elsewhere.
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In deciding whether to order the material removed, “the court will consider, in part, the gravity of the offense that has been committed, the extent of the danger, the expected damage to freedom of speech in the wake of the issuance of the order, including consideration of the existence of the news, artistic or political value in the continuation of the publication.”
Even though the Netanyahu government promoted a similar bill in 2017, on Tuesday Netanyahu tweeted that “Israeli democracy in danger,” and that Justice Minister “Gideon Sa’ar has passed in the ministerial committee on legislation the Iranian law to censor the social networks in Israel.”
Sa’ar was quick to reply: “Bibi, take a drink of cold water. It’s the same law your government passed in the 20th Knesset until you changed your mind, a moment before its approval on the second and [final] third votes.”
Criticism of the law goes beyond political circles. Legal experts warn that it gives the state too much freedom to censor online material, which could lead to harming freedom of speech. It has already been dubbed “the law to censor the internet.”
Prof. Karine Nahon, head of the Data, Government and Democracy program at Reichman University (Herzliya Interdisciplinary Center) warned that "the law in its current format has been expanded excessively. It includes vague tests that do not examine near certainty that content would cause real harm to national security and on the other hand, it gives too much power to the state to censor legitimate content.”
According to Nahon, the law goes far beyond combatting incitement. “The law gives the state the ability to censor legitimate content that ‘harms public security,’ but what does ‘harm to public security’ mean? Of course this is a vague and problematic criterion,” she said.
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Prof. Tehilla Shwartz Altshuler of the Israel Democracy Institute also sees the provision that talks about the possibility of removing material that “harms public security” as dangerously fluid. “Public security,” she said, “is a concept that is as flexible as [gymnast] Lenoy Ashram. It is a provision that could be used to censor posts that criticize the regime. In criminal law, there are offenses we have inherited from the British – like insulting a public servant, incitement to rebellion, spreading information that is liable to cause panic among the public – offenses to which it is necessary to relate in a very narrow way."
Altshuler also pointed out that the bill allows the prosecution, in urgent cases, to receive court orders to remove the material unilaterally, and using confidential evidence. “This will be like gag orders and wiretapping orders that given in courts in the ex parte and without any public oversight.”
“There is a need to give the authorities enforcement tools to deal with grave criminal offenses on the internet,” said Dr. Asaf Wiener of the Israel Internet Association, “and therefore the law stems from a worthy purpose – but it is formulated in a such a broad and overloaded way that it is really very dangerous.”
“The new bill gives too much leeway to the prosecution to censor anything that is uncomfortable for the regime. The law is dangerous because it makes it possible to censor content on the basis of evidence that is not acceptable in a court of law, like hearsay or a copy of a photograph and not eyewitness testimony and more. The idea of censorship of content clashes head-on with the values of a democratic state and a free society.”