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Israel: Prohibition of Images of Children in Election Propaganda

(Feb. 5, 2015) On January 20, 2015, the Chairman of the Central Election Committee, Supreme Court Judge Salim Joubran, issued an injunction prohibiting the dissemination of an election advertisement that included images of children. (Knesset Elections Case, No. 5/20, The Movement for Quality of Government in Israel v. Binyamin Netanyahu and the Likud Party, Central Elections Committee for the 20th Knesset website (Jan. 20, 2015) (in Hebrew).)

Israel’s general election is scheduled for March 17, 2015. (Law for the Disbursement of the 19th Knesset, 5775-2014, Knesset website (in Hebrew) [scroll down to appropriate link on the right].)

The injunction was issued in response to a petition alleging a violation of section 2C of the Elections (Modes of Propaganda) Law by dissemination of an election film advertisement. (Elections (Modes of Propaganda) Law 5919-1959 (as amended) [Law] up-to-date text available at Nevo Legal Database (by subscription).) The film showed children misbehaving in a nursery school. Prime Minister Binyamin Netanyahu, appearing as a teacher, is shown trying to instill order by making comments to the naughty children, whose names are the same as those of the heads of the competing political parties. (Knesset Elections Case, at ¶1.) According to the Law, “[a] child under the age of 15 will not participate in election propaganda; for this matter, “participation” in election propaganda … [does not include] when, in a photograph or a record … a child appears [engaged] in a regular activity.” (Law, § 2C.)

The respondents argued that the prohibition does not apply to cases where parents had consented to their children’s participation in election propaganda. They further stated that the children in the film were photographed while performing a regular activity, that of playing. The respondents added that the film had been released on the Internet inadvertently and that in any event it contained an important political message that needed to be conveyed. That message was that in the parliamentary system that applies in Israel, where the coalition government is composed of a “…mosaic of small parties, it is impossible to manage an effective government.” (Knesset Elections Case, ¶ 4.)

Accepting the petition, Judge Joubran noted that the Central Election Committee had previously determined that the objective of the Law is to protect minors, so that even “if their legal guardians are not aware or do not do the utmost to protect them, the Law replaces them [the legal guardians] and removes minors outside the arena of the political game.” (Id. ¶ 7. ) Joubran held that the principle of the best interest of the child is a supreme norm in the Israeli legal system. The importance of this norm is further reflected in section 3 of the International Convention on the Rights of the Child, to which Israel is a signatory. (Convention on the Rights of the Child, G.A. Res. 44/25 (Nov. 20, 1989) Office of the High Commissioner for Human Rights website.) This principle, according to Joubran, is “the dominant basis that led to the enactment of the prohibition in section 2C of the Law… .” (Knesset Elections Case, ¶ 9.)

Joubran explained that the prohibition on participation of children in election propaganda had been adopted by the legislature because of concern for a “slippery slope” that might result in the misuse of children for political motives. Therefore, in his opinion, it makes no difference if parental consent was received for this purpose. (Id. ¶¶ 11-12.) Considering that the objective of the prohibition is to prevent the use of children in activities that are not in their best interest, even if, as in this case, parental consent was given, the propaganda in question was “a political film that does not advance … the interest of the children appearing in it … .” (Id. ¶ 13.)

Unlike other prohibitions in the Law, the prohibition on participation of children in election propaganda, according to Joubran, is general in nature and applies to all types of media, including the Internet. (Id. ¶¶ 15-21.) Furthermore, the “play” of the children in the film, according to Joubran, was not an ordinary activity. The children appeared wearing fake wigs and beards and were referred to by the names of Israeli politicians. (Id. ¶ 24.) The film was directed and designed to deliver a political message resulting in political gain, the judge asserted. (Id. ¶ 25.) It was hard, therefore, in his view to believe that the film was released to the Internet by mistake. (Id. ¶ 27.)

Considering that the film had already gone viral, Joubran ordered the Likud Party to do everything in its power to make sure that the injunction issued against dissemination of the film would be honored, including requesting YouTube and Israeli news Internet sites that had already published the film to remove it immediately from their websites. (Id. ¶ 30.)