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Volume 43, December 2007

Adalah: The proposed press law should not be adopted as it has severe consequences for freedom of the press and freedom of expression

On 9 December 2007, the Directorate of the Israel Press Council, headed by former Supreme Court Justice Dalia Dorner, discussed the proposed new press law following its approval in 25 November 2007 by the Israeli Cabinet’s Legislation Committee. The bill is scheduled to be submitted shortly to the Knesset for approval as government-sponsored legislation.

Adalah Attorney Orna Kohn presented Adalah’s position to the Press Council’s Directorate at its meeting, emphasizing the severe consequences of the proposed law for freedom of the press and freedom of expression in general, and on the Arabic-language press in particular.

The Directorate of the Press Council decided to oppose the proposed legislation and, in particular, the authority it provides for shutting down newspapers, and demanded that freedom of the press and freedom of expression be anchored into law as fundamental rights.

The proposed Press Law is designed to replace the mandatory-era Press Ordinance of 1933, which severely violates freedom of the press and freedom of expression, and has primarily been used against the Arab press. Although the proposed legislation revokes most of the directives of the Press Ordinance, it nonetheless constitutes a step backwards from the legal status quo, in which the directives of the Press Ordinance are subject to the Supreme Court’s interpretation as set out in the Kol Ha’am case (H.C. 75/53, Kol Ha’am v. The Minister of the Interior, P.D. 7, 871). This landmark case set forth the ‘probable danger’ test for restricting freedom of expression and freedom of the press.

The most serious flaw in the bill is that it does not revoke the extremely dangerous power granted by the Press Ordinance: the authority to shut down newspapers. Article 7(a) of the proposed bill authorizes district courts, upon the request of the Attorney General, “to prohibit or limit the publication of a newspaper, including the printing of copies of its editions, or the distribution of a newspaper – including a newspaper published abroad and distributed in Israel.”

Under article 7(a) of the proposed bill, this power arises if the court “were convinced that the publication of the newspaper is liable to endanger the security of the state or public security.” The exercise of this power is permitted, in accordance with article 7(b) of the proposed bill, “to the extent necessary in order to protect the security of the state or public security.” Thus the proposed legislation lowers the level of protection for freedom of the press from its current level.

In addition, according to article 7(a) of the bill, the closure of a newspaper “will be for a period and in accordance with terms stipulated by the court,” that is, without strict limitations. The proposed legislation does not even stipulate the right to appeal a decision to shut down or limit the publication of a newspaper.

Especially grave is article 7(c) of the proposed law in that it allows a newspaper to be shut down on the basis of secret evidence and to circumvent the laws of evidence. The proposed legislation thereby allows the most serious violation of freedom of the press – shutting down a newspaper – without due process.

Therefore, while the legal situation would ostensibly be improved by transferring the power to order a newspaper’s closure from the Interior Minister to the district courts, this transfer of authority to the court pursuant to the proposed law is only a superficial improvement without affording appropriate protection to the right of due process.

The initiators of the bill emphasize that it revokes the Press Ordinance and they portray it as an expansion of the protection for freedom of the press and freedom of expression. However, this explanation is a misrepresentation. While the press bill formally revokes the Press Ordinance, in practice, it leaves the power to close newspapers in tact, while removing the protection for freedom of the press that has developed in judicial interpretation. The conclusion is thus clear: the Press Ordinance should be revoked and should not be replaced with the proposed press bill.