Case Number

CrimApp 8225/12

Date Decided

2-24-2013

Decision Type

Appellate

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.]

The Supreme Court (Justice Vogelman, Justices Hayut and Amit, concurring) granted leave to appeal, upheld the appeal and ruled as follows.

The Court considered the proceedings on the premise that the provisions of section 70(e1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter – the “Act”), which refers to a “suspect” as defined in section 70(e2) of the Act “as someone against whom a criminal investigation has been commenced” applies; the Court held that the appeal in Crim.App. 8225/12 was filed absent a right to appeal, but did not decide the issue of that right, since the Applicant filed an application for leave to appeal, justifying hearing the application as though it were an appeal.

The Court noted that the issue of a gag order prohibiting the publication of identifying details of a person suspected of committing a criminal offence calls for balancing the rule that derives from the paramount principle of public proceedings and one’s right to dignity, a good reputation and privacy. The principle of public proceedings and the public’s right to know are the rule, and under extreme circumstances they will yield to the need to protect a suspect’s reputation and privacy. One such circumstance is detailed in section 70(e1)(1) of the Act, and gives the Court discretion to prevent identification of suspect where the interest in protecting his reputation outweighs freedom of expression and the public’s interest to know. The Court will prohibit publication on two aggregate grounds: the suspect must show that the publication will result in grave harm to him; preventing such grave harm should prevail over the public interest in publication.

The Court noted that disclosing an investigation of interest, coupled with the possibility to publish information on the Internet anonymously, increases concern that a suspect’s identity will be exposed despite having imposed a gag order in his case. The greater the public interest, the greater the chances that the suspect’s identity will be exposed and “grave harm” will result. There is a great deal of uncertainty in evaluating such likelihood. The Court held that the possibility that a gag order will be violated should be evaluated when considering whether to prohibit publication of additional details, to the extent that imposing a gag order on the details of the entire matter is warranted. The Court added that it is incumbent upon it to additionally consider the likelihood that publishing details of a matter under investigation even without [publishing] the suspect’s name would result in his identification and cause him “grave harm”. This likelihood of identification and extent of harm will be examined on a case-by-case basis. The Court detailed, without exhaustion, the following considerations: the Court held that a gag order is presumed to be complied with and is sufficient to prevent identification. A suspect wishing to prevent the publication of further details, to the point of imposing a gag order on the details of the entire matter, must show that in his circumstances there is a substantial concern that the order will be violated, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing that harm outweighs the public interest in publication.

The Court held that balancing between extent of the “grave harm” to the Respondent that will likely result from the qualified publication, which is not high, and the public interest in publication, the matter’s publication should be permitted, while omitting the Respondent’s name and any identifying detail. Accordingly the appeal was upheld and the Magistrates Court’s order reinstated. The Court emphasized that the aforesaid does not amount to pronouncing on the proper balance between these interests if the decision not to prosecute the Respondent becomes final.

Keywords

Constitutional Law -- Freedom of Expression, Constitutional Law -- Right to Privacy, Courts -- Publicizing proceedings, Evidence, Torts -- Defamation

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