2013-11-03

By Ala Abdullah, Advocate and Lobbyist 

Free speech and the right to information create freedom of the press, which is considered fundamental to democracy. Freedom of the press in any society shows to what extent the government – whose view is often the most threatened – respects people’s right to express their opinions and criticisms, and expose facts to the general public.       

The Israeli government guarantees other liberties that were legalized in the Knesset and which protect citizens from the possibility of tyranny at the hands of the government. However, no body of law in Israel protects freedom of speech; rather, it is determined by the courts. The Israeli government has refrained from incorporating freedom of the press into its Basic Laws, despite that the country and the judiciary have acknowledged its importance as a core constitutional right since the state was founded. Democracy is not complete without the appropriate safeguards for this particular liberty.

Freedom of the press in Israel faces challenges at the levels of technicality, logistics, and content. The owner of a newspaper must have prior authorization, specifically a license, from the district commissioner of the Ministry of the Interior before publishing or printing content, according to Article 4 of the 1933 Journalism Ordinance (a law from the days of the British Mandate, which the Israeli government adopted when the state was founded in 1948).

Whoever defies this regulation risks the penalties stipulated by the law, which include punishments such as a monetary fine or prison for up to 6 months (see Article 22 of the Journalism Ordinance). Article 19 entitles the Minister of the Interior to issue an arrest warrant for a specific period of time if a newspaper publishes particular content that the minister believes would endanger public security, or if a newspaper publishes false and misleading information or rumors that could spread panic among the general public, again according to the minister’s opinion (see Article 19, Section 2 of the Journalism Ordinance).

 According to Article 94, Section 1 of the Defense (Emergency) Regulations of 1945, no newspaper can be published unless the owner has a prior permit from the district commissioner of the district in which the newspaper will or is supposed to be printed. 

According to Section 2 of the same article, the district commissioner can refuse a request for or revoke previously granted permission according to his judgment. He also doesn’t have to give the owner of a newspaper any reason for his decision.

Whoever goes against the orders of the district commissioner or the Defense (Emergency) Regulations, including the owner and editor of a newspaper, risks the penalties as they are written in the law.

The reason for such power during the British Mandate was the bloody clashes of 1929 (also known as the Buraq Uprising) between Arab residents and Jewish immigrants, out of which the Shaw Commission formed to investigate the events. The report said, “The press in Palestine has excessive freedom, and has exploited it to publish biased and provocative articles.” The report concluded that it was necessary to limit this freedom.

It should be noted that the Shaw Commission did not make recommendations on how to develop a policy for licenses, and that such power not exist during the days of the Ottoman Empire. Nor was it common for someone who wanted to start or publish a newspaper to obtain permission from the appropriate authorities; according to the law at that time, it was enough to simply inform them.

In the Supreme Court, it has been challenging to deal with issues regarding decisions to close newspapers, especially those rulings based on Article 94. As mentioned previously, this body of laws gives the district commissioner wide-ranging control without requiring that he demonstrate his motives in front of a court, which makes it impossible for the court to examine the legality of his decisions.

For example, in the 1960s, the district commissioner shut down the newspaper of the Arab movement “Al-Ard” (The Land). He relied on Article 94. The court admitted that it was unable to intervene. The judge, Tisibee Branson, said that if the district commissioner were to disclose his reasons, it would be possible to investigate the validity of his action.

In the 1980s, Dr. Najwa Makhoul, a lecturer at Hebrew University, applied for a permit to publish the newspaper “Majala al-Taqadum” (The Journal of Progress), but the district commissioner refused without stating why, basing his decision on Article 94. The judge in the case, Menachem Alon, described Article 94 as not having enough support in the court; despite this, he denied Makhoul’s request.

In the 1990s, the Public (“Jamahiriya”) Committee was formed to examine press laws in Israel. In 1997, the committee recommended that the 1933 Journalism Ordinance be abolished, as well as Articles 94 and 96 of the Defense (Emergency) Regulations, and said it was necessary to create legislation within the Israeli legal system to protect freedom of the press and freedom of speech.

In 2002, the Association for Civil Rights in Israel (ACRI) petitioned the Supreme Court to nullify the 1933 Journalism Ordinance, as well as Article 94 of the Defense (Emergency) Regulations of 1945. The court issued an injunction against the Minister of the Interior and ordered him to present a list of his answers to ACRI’s request.

However, during this process ACRI withdrew its petition after the two sides reached a settlement whereby the minister agreed to inform them of any intention to restrict or grant permission to any newspaper. At this point, efforts to replace the laws with new ones came to a halt.

In 2008, the 17th Knesset created a bill to change the media laws, which the members of the Knesset approved during the first reading. The Minister of the Interior then passed the initiative on to the Economic Affairs Committee, which took control. However, after the 18th Knesset was elected, it relied on the Communicative Government Act of 1993, and the attempt fell by the wayside. 

Despite calls for the need to change the legal reality of state power over newspapers’ publishing rights – for example, I’lam Media Center sent letters to the Minister of Justice, the Ministerial Committee, and the Economic Affairs Committee – the 32nd government (2009-2013) has not completed the work of its predecessors. Thus all the bills regarding the abolishment of the 1933 Journalism Ordinance which were submitted during the 18th Knesset remain in the Knesset archives.