(July 9, 2019) On February 27, 2019, Israel’s Central Elections Committee, headed by Chairman Hanan Melcer, deputy president of the Supreme Court, accepted a petition filed by two private attorneys against the attorney general and ten parties and lists (blocs) of candidates that competed in the national elections of April 9, 2019. (Election Case 8/21 Shahar Ben Meir v. the Likud Party et al., Central Elections Committee for the 21st Knesset, Central Elections Committee website (in Hebrew).)
The petitioners requested an injunction ordering the respondents to refrain from publishing on the internet, in social media, and in other telecommunications platforms anything that might constitute election advertising, in the absence of identifying the party or list of candidates on behalf of which it is published. (Id. para 1.)
Roles and Authority of the Central Elections Committee
The Central Elections Committee is established within 60 days of the convening of a new Knesset (Parliament) in accordance with the Knesset Elections Law. (Knesset Elections Law [Consolidated Version] 5729-1969, SEFER HAHUKIM [SH, BOOK OF LAWS] (official gazette) 5729 No. 556 p. 103, as amended (in Hebrew).)
The Committee is responsible for ensuring the proper conduct of elections. Its functions include receiving and approving lists of candidates, recruiting personnel for polling stations, preparing all necessary voting equipment and transferring it to the polling stations, and ensuring that voting is carried out properly at each polling place on election day.
The Committee is headed by a Supreme Court justice who is elected by the panel of justices in the Supreme Court. (Id. ch. D; see also General Overview of the Committee and Its Activities, CENTRAL ELECTIONS COMMITTEE (in Hebrew; last visited July 9, 2019).)
Decisions of the Central Elections Committee may be appealed to the Supreme Court. A list of decisions is available in the Nevo Legal Database (in Hebrew, by subscription).
Transparency Requirements for Election Ads
In accordance with section 10 of the Election (Modes of Propaganda) Law 5719-1959,
(a) Election propaganda shall not be made by means of printed advertisements presented in public, but by the following limitations:
. . . .
(3) The ad shall bear the name and address of the printer who printed it and of the person responsible for ordering it; and if that person acted on behalf of a parliamentary group, [or] a list of candidates … the notice shall bear the name of the parliamentary group, [or] candidate list.
. . . .
(b) Election propaganda shall not be made through printed ads published in daily newspapers, magazines or magazines, except with the following restrictions:
. . . .
(5) The ad must bear the name and address of the person responsible for ordering it, and if the person acted on behalf of a party group, [or] a list of candidates … the notice shall bear the name of the parliamentary group, list of candidates, or the letter or alias of the faction or list of candidates.
(Election (Modes of Propaganda) Law 5719-1959, § 10(a)(3) & (b)(5), SEFER HAHUKIM [SH, BOOK OF LAWS] (official gazette) 5719 No. 284 p. 138, as amended) (Propaganda Law) (all translations by author).)
The petition centered on whether the identification and disclosure requirements under the Propaganda Law extend to advertisements that are not tangible signs or publications in the printed press. In particular, the question arises regarding virtual publications—on different websites or social networks, and for election propaganda via other media platforms. (Election Case 8/21 para. 63.)
- Objectives of Transparency Requirements and Freedom of Political Expression
The limitations on modes of publication of election ads under the Propaganda Law, according to Melcer, are based on three main objectives: ensuring the freedom and integrity of elections; ensuring equality among parties trying to reach the voter; and limiting parties’ expenses. “In the background [however], the constitutional rights for freedom of political expression also stand,” he stated. (Id. paras. 68–69.) Melcer opined that the specific objective of sections 10(a)(3) and 10(b)(5) of the Propaganda Law is to apply general rules of transparency and identification in connection with the publication of election ads. (Id. para. 70.) This objective should be met while preserving the principle of freedom of political expression, including the freedom for anonymity in the virtual world. The right to such anonymity derives from both the right to freedom of expression and the right to privacy. (Id.) The extension of transparency and identification requirements for election ads on the internet during the election period, as requested by the petitioners, would constitute a certain limitation of the right to anonymous political speech, Melcer recognized. (Id. para. 71.)
2. Balancing Conflicting Objectives
Considering the need to balance the objective of limiting propaganda methods against the right to anonymous political expression, Melcer held that
[t]he balancing point in this context has already been established within the framework of the Law [Propaganda Law], according to which during the 90 days up to the election day, propaganda ads (in the central format that was known at the time of the enactment of the provision) will bear identification signs. The basic presumption for our review is that the principle of disclosure and transparency in election propaganda, at least under the conditions and circumstances detailed in the provisions of sections 10 (a) (3) and 10 (b) (5) of the Law, reflects a proper balance between conflicting objectives and rights, and such a balance is permitted and possible to ensure even when it comes to harm in the periphery of political freedom of expression (that of anonymity), since in our constitutional law all basic rights are relative. … The principle of transparency allows, in relation to the limitations that apply to the publication of propaganda ads, the prevention of fraudulent acts, and [this principle] requires the list of candidates to … [take responsibility for] publications made on its behalf. … [By doing this], this principle contributes, within the framework of the aforementioned limitations, to the creation of a more responsible political discourse. (Id.)
3. Application of Transparency Requirements to Online Ads to Achieve the Law’s Objectives
According to Melcer, the Law expressly applies transparency requirements to printed materials because this was the method that was known and available at the time of its passage. He did not see any justification for distinguishing between propaganda ads that are published on social networks or internet sites and those published in print or displayed on signs in the streets. He similarly saw no significant reason for the sake of transparency to distinguish between publishing an ad in a printed newspaper, on a journalist’s website, or on social networks. (Id. para 72.)
In view of the significant change in the characteristics of election propaganda in recent years, and the transfer of most election propaganda activity to cyberspace, especially social media, Melcer recognized that a strict interpretation of sections 10(a)(3) and 10(b)(5) of the Law, restricting them to physical publications, might make legal requirements useless and harm the interests they are meant to achieve. A broad interpretation of the transparency requirements, extending them to cyber publications, on the other hand, would fulfill the interests the legislature sought to realize and be consistent with the principles and values reflected in the Law. (Id. para. 74.)
The same conclusion may also be reached on the basis of the broad language used in section 13 of the Propaganda Law. This section generally prohibits the publication of election propaganda “by a party or list of candidates in a form or manner that constitutes an unfair interference of election propaganda on behalf of or for another party or candidates’ list.” (Propaganda Law § 13; Election Case 8/21 para. 75.)
4. Doctrine of “Defensive Democracy”
Israeli courts have previously recognized the doctrine of “defensive democracy,” which, in extreme cases, allows the imposition of governmental restrictions on parties seeking to harm important interests recognized as basic rights, even by nonviolent methods. According to Melcer, the risks posed for the conduct of a proper election campaign through the use of anonymous virtual publications, a large part of which are via bots, may justify applying the doctrine of “defensive democracy” to impose transparency requirements on publications in cyberspace. (Id. para. 81.)
Accepting the petition, Melcer expressed his conviction that limitations on election ads in cyberspace should be expressed in comprehensive legislation. Even in the absence of legislation, there is a legal basis for applying the transparency requirements to internet and social media publications. Such limitations must be applied in a way that would reflect the objectives of the Law and balance them against the restrictions on freedom of political expression during the election period.
Melcer recognized that in the new digital age, freedom of speech no longer applies to situations merely involving the speaker and the listener or viewer. Instead, it is “three-sided” in the sense that online platforms such as Facebook, Google, Twitter, WhatsApp, YouTube, Telegram, and other online publishers also play a role. Parties, lists of candidates, and similar bodies must adapt themselves to advertising on online platforms. Online publishers on their part also share responsibility to comply with relevant rules under law. (Id. paras. 86–87.)
Recognizing the need for transparency in response to national security concerns, Melcer further emphasized that
[b]eyond legal liability – any anonymous advertising on the internet … makes it difficult for our security services to act to ward off fears of foreign interference in the upcoming elections to the 21st Knesset, which could be done in an anonymous manner, and this against the background of suspicions and lessons learned from election campaigns held in other countries in recent years. (Id. para. 87.)
(Updated July 11, 2019)