Case Number

HCJ 5228/14

Date Decided

8-13-2014

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A petition seeking to quash the decision of the Broadcasting Authority to preclude the broadcasting of a commercial by B’Tselem comprising a partial list of the names of Palestinian children killed in the course of Operation Protective Edge. The dispute concerned whether this commercial constituted a prohibited broadcast under rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, concerning – inter alia – “a broadcast on a matter which is the subject of public political-ideological controversy”.

The High Court of Justice (per E. Rubinstein J., N. Hendel and U. Shoham JJ. concurring) denied the petition, holding:

In accordance with the case law, the infusion of political matter into advertisements should be limited to the utmost extent, in keeping with the view that paid advertising, per se, does not fall within the scope of freedom of expression. Even if the case law has not hermetically barred advertising of a political character that is not of a persuasive nature, that approach has been significantly restricted in holding that the dominant factor test must be narrowly construed so as to prevent the infiltration of a political current into advertising. At the end of the day, we are concerned with the “reasonableness and common sense” test, and there is no need for a new test. The ruling in the Hamateh Lehatzalat Ha’am Veha’aretz case is sufficient, and the narrower it is construed the better. Even under the approach that does not entirely preclude informational broadcasts as opposed to political persuasion, a broadcast of a partial list of the names of Palestinian children killed in Operation Protective Edge would clearly fall within the scope a “prohibited broadcast” under rule 2(7), as being “on a matter which is the subject of public political-ideological controversy”, inasmuch as it is intended for political persuasion and not purely informational. In this regard, Hendel J. added that the timing of the broadcast – during a period of combat – intensifies not only the purpose of the broadcast, but also its objective significance. In conclusion, the Court noted that the relevant authorities would be well advised to establish clear procedures in this matter.

Keywords

Communications -- Broadcasting Authority, Communications -- Political Advertisements, Constitutional Law -- Freedom of Expression

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