Israeli Supreme Court: Israel must explain legal authority under which ‘Cyber Unit’ conducts online censorship with social media giants

04/08/2020

Following hearing of Adalah-ACRI petition against Israel’s Cyber Unit, Supreme Court also calls on Israel to present similar censorship mechanisms in other countries and clarify their respective legal authorities.

The Israeli Supreme Court yesterday, 3 August 2020, ordered Israeli state authorities to explain the legal authority under which the state’s “Cyber Unit” conducts online censorship of user-created content in collaboration with social media giants such as Facebook and Google.

The court issued its decision following yesterday’s hearing on a petition filed by Adalah – The Legal Center for Arab Minority Rights in Israel and the Association for Civil Rights in Israel (ACRI) against the Israeli state attorney’s office Cyber Unit and its "alternative enforcement" model of censoring social media content.

Israel’s Cyber Unit uses an "alternative enforcement" mechanism to essentially censor social media platforms and muzzle users: it flags and submits social media posts – without legal proceedings and often without even the knowledge of the individual user – to social media giants and requests their removal.

This Israeli state practice is aimed at clamping down on social media dissent, and frequently even results in the suspension or removal of users.

Similar units are generally known internationally as Internet Referral Units (IRUs).

Adalah attorneys Fady Khoury and Rabea Eghbariah filed the petition to the Israeli Supreme Court on 26 November 2019. They stressed that the Israeli Cyber Unit’s "alternative enforcement" mechanism violates the constitutional rights of freedom of expression and due process, and that the unit is operating without any legal authority.

CLICK HERE to learn more about the petition

Adalah Attorney Rabea Eghbariah argued before the court yesterday that Israeli state authorities do not deny that the Cyber Unit is violating basic rights without any legal authorization:

"[Israeli state authorities] do not really dispute that what we have here is a violation of fundamental rights, freedom of expression, due process, and the legal system’s principles of separation of powers, and they do not point to any source of legal authority – even according to the rules under which they claim to be operating. And the state goes so far as to argue that all this alternative enforcement activity does not require legal authority. The Cyber Unit is utilizing state attorneys, who examine and analyze content, and proactively appeal to [social media platforms] and of all this – in the state's view - is not to be considered an exercise requiring legal authority?”

Despite repeated questions from Supreme Court justices during yesterday’s hearing regarding their purported source of legal authority, Israeli officials argued that: “The state does not exercise authority. The state informs. This is an action the purpose of which is recognized, in cases where important interests are harmed.”

Israeli state officials emphasized that the social networks themselves – rather than the State of Israel – are the bodies that actually remove user content from their platforms.

In addition to requiring Israeli state authorities to explain the legal authority under which the Cyber Unit operates, the justices also ordered authorities to present similar censorship mechanisms employed by other countries and to clarify their respective legal authorities.

Adalah Attorney Rabea Eghbariah commented following yesterday’s hearing:

“The picture that emerged in court today is clear: The Israeli Cyber Unit circumvents basic public law principles and constitutional constraints by submitting informal takedown requests to private social media companies. This activity takes place without any legal authority whatsoever, and by submitting these requests to private companies, the state aims to achieve what would otherwise be impermissible under public law. This amounts to a privatization of unilateral judicial action conducted without the knowledge of the alleged perpetrator. The Supreme Court's interim decision confirms that there is something fundamentally wrong here: no state authority can suspend basic constitutional rights such as freedom of expression without the explicit authority of the legislature, and without a supervisory oversight mechanism that guarantees such actions are taken transparently, proportionately, and reasonably.”

Case Citation: HCJ 7846/19 Adalah -The Legal Center for Arab Minority Rights in Israel v. The State Attorney – Cyber Unit

(Handout photo courtesy of Facebook)