Case Number

HCJ 10203/03

Date Decided

8-20-2008

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The petitioner is a private company working for the promotion of political program to solve the Israeli-Arab conflict. It applied to the respondents for permission to expose the public to the central principles of its political program by way of advertisements on television and radio. Due to the political contents of the advertisements the Authorities rejected the applications, relying on, respectively, Broadcasting Authority’s Rules - (Advertisements and Notifications on Radio) and the Second Authority Rules (Ethics in Advertising in Radio Broadcast) and (Ethics in Television Advertising) (hereinafter-the Rules).

The petitioner contested this refusal in the High Court of Justice, claiming that the Rules unconstitutionally infringed his right to freedom of political expression, which is a part of his right to human dignity, and was thus unconstitutional and invalid. The infringement did not comply with the conditions of the limitation clause because neither the Broadcasting Authority Law nor the Second Authority Law authorize any infringement of the freedom of expression, and a prohibition on broadcasting a political advertisement would not serve any legitimate public interest, because there are no grounds for distinguishing between other media avenues in which political content is permitted, and the advertising media in which it is prohibited. Moreover, the Rules are disproportionate, in terms of its various subtests, specifically in terms of their ability to attain their purpose and of being the least harmful means of achieving the purpose of the violation.

The respondents claimed that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to broadcast the political messages of the petitioners at the time, place, and manner requested by the petitioner, and the petitioner has no vested right to transfer information specifically by way of advertisements. The regular broadcasting framework is the appropriate framework for exercising freedom of speech, because the broadcasts must comply with the duty of balancing between different viewpoints, as opposed to the advertising framework which could be unfairly exploited by those with financial power. The law contains an express general authorization for prohibitions and restrictions on the broadcast of advertisements, leaving the specification of particular restrictions to the discretion of the administrative authority. Furthermore, channeling political speech into the appropriate framework of regular broadcasts, which is subject to the fairness doctrine and the duty of balancing, protects the equality of opportunity to present political opinions, and prevents a situation in which extensive dissemination of opinions is granted to those with financial means. Invalidation of the rules would undermine this doctrine which does not apply to the advertising framework, and enable the financially powerful bodies to purchase advertising time and be more effective in influencing social and political discourse without being subject to the restrictions attendant to the duty of balance prescribed by the Law. Moreover, imposing a blanket restriction is the most effective way of achieving the purpose, because invalidating the existing rules and imposing specific regulation would drag the regulator into the realm of political censorship.

Held: In a majority opinion, the petition against the legality and constitutionality of the Rules of the Broadcasting Authority and the Second Authority for Television and Radio, prohibiting broadcast of advertisement carrying political contents, was dismissed.

Per Justice Naor: The constitutionality of the Rules in this case must be decided based on the two stage examination: the first stage examines whether the Rules prohibiting political content in advertisements violate a right protected in the Basic law, and the second stage examines whether the Rules satisfy the requirements of the limitations clause.

In the case at hand, the Rules violate the freedom of political expression, which constitutes a violation of the constitutionally protected value of human dignity. With respect to the second stage however the Rules satisfy the requirements of the limitation clause, insofar as the authorizing sections of the relevant legislation authorize the regulator to restrict the contents of the advertising broadcasts by conferring the authority to establish content based “restrictions” and “prohibitions” on the broadcasting of advertisements. Despite the absence of primary legislation determining the limits of its powers, the legislative provisions establish requirements to ensure fair and balanced expression of all views to the public, and as such justify regulation of the communication marketplace and the Rules are consistent with that overall purpose and the fairness doctrine, that has been adopted in Israeli law, and they effectively achieve that purpose in a proportionate manner.

Per Justice Levy, The opposition to political advertisements is also and primarily supported by the fundamental consideration of the maintenance or at least the prevention of further deterioration, of the character of public discourse in Israel. Opening the broadcasting realm to political content poses a substantive danger to the quality of political discourse in Israel, and the relevant rules of the broadcasting authorities should be interpreted first and foremost with the goal of distinguishing between political expression and its commercial aspect. This form of analysis enables a synthesis between the purpose and the means adopted to achieve the appropriate purpose in a proportionate manner are satisfied by the ban on political advertising.

Per Justice Joubran, concurred with Justice M. Naor and held that enabling the broadcast of political expressions on disputed matters in the framework of paid advertisements would, in practice, spell the demise of the fairness doctrine in Israel, and given that the fairness doctrine is thoroughly anchored in the primary legislation, the rules satisfy the requirement of “explicit authorization”.

Per Justice Procaccia – Having reference to the two stage examination for purposes of constitutional review, held that in the case at hand, the prohibition on political advertisements does not violate the constitutional right to freedom of speech, including the freedom of political expression. The existence of a constitutional right to freedom of speech, including political expression does not necessarily mean that every possible means of expression is included in the right. According to its purpose, the scope of the right to political expression does not extend to expression in the form of paid advertisements by way of public media authorities. Political expression is given an extensive platform in the framework of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention

Per President Beinisch (dissenting view) - The authorization to establish limitations on the contents of advertising broadcast in the Broadcasting Authority Law and the Second Authority Law are general. The immense importance of freedom of political expression for the individual and for society and its contribution to the democratic process affects not only its constitutional status, but also the scope and degree of the protection given to such expression, and given that the absolute violation under the Rules significantly and severely violates the freedom of political expression, the general authorization does not suffice. The establishment of that kind of prohibition requires an explicit authorization that determines the fundamental principles governing the particular prohibition, even if only in general terms. As such, the absolute ban on the broadcast of political advertisements in the Rules was established without the appropriate statutory authorization, and as such in contravention of the first condition of the limitations clause.

Per Justice Hayut – Concurs with the President’s position that in the absence of an explicit authorization in primary legislation, rules restricting freedom of expression cannot stand, but in the case in point, section 86 (a) of the Second Authority Law satisfies the requirement of explicitness, and provides a statutory anchor for the Second Authority to prohibit political advertisements. The asymmetry thus caused between the Broadcast Authority and the Second Authority with respect to the same politically based advertisements is undesirable and points to the need for a standard statutory arrangement.

Keywords

Administrative Law -- Judicial review, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Freedom of Expression

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