Case Number

HCJ 7846/19

Date Decided

4-12-2021

Decision Type

Original

Document Type

Full Opinion

Abstract

The petition addressed the question of the authority to conduct “voluntary enforcement” activity for the removal of harmful content from the internet, the manner and configuration of the activity of the Cyber Department of the State Attorney’s Office, and the lack of express statutory authority for the activity.

Background: In accordance with the Work Procedure established by the State Attorney’s Office, the Cyber Department initiates referrals to online platform operators, content providers, and other internet platforms (like Facebook and Google), reporting publications that the State Attorney’s Office deems as constituting an offense under Israeli criminal law, and that also breach the Terms of Use of the platform itself. According to the Department’s preliminary response to the petition, such referrals are sent to online platform operators only when there are additional considerations to justify the referral, among them the severity of the content, the scope of its distribution and its “viral” potential. In practice, the Department concentrates primarily upon publications that relate to terrorism and extreme violence, and incitement to violence and terrorism. Referrals are also sent in regard to content that threatens harm to minors, certain public servants, or to the integrity of Knesset elections.

The High Court of Justice denied the petition (per Deputy President H. Melcer, Justice A. Stein concurring, over the dissenting opinion of President E. Hayut that the petition should be denied in limine), subject to a number of observations for the future, for the following reasons:

The petition suffered from two serious defects that could justify dismissal in limine, as follows:

A. An insufficient factual foundation for the argument that the Department acts without authority. This, inter alia, due to a lack of evidence as to the scope of the violation of freedom of expression and access to information; uncertainty as to whether the publishers who are the subjects of the referrals are human or “bots”; whether they are located in the State of Israel or abroad; and whether the online platform operators independently decide whether or not to remove content or whether their decisions are influenced by the fact that the referring body is the State Attorney’s Office.

B. A failure to join the online platform operators as respondents to the petition. The question of exercising independent discretion by those entities could have material consequences for the primary questions addressed by the proceedings.

However, due to the material arguments raised in regard to the Cyber Department’s activities, the importance of matters raised and their possible consequences, and in view of the subject being a matter of first impression, Deputy President Melcer decided to address the Petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in the air.

According to the State Attorney’s Office, because the Department’s activity is limited to sending voluntary referrals to the online platform operators, which leave the issue of enforcement to the discretion of the platform operators, the Cyber Department’s activity should be viewed as lacking any governmental force. Therefore, they are not subject to the doctrine of administrative legality and do not require any statutory conferral of authority. Justice Melcer disagreed.

In his opinion, the Department’s activity constitutes a governmental act. One cannot compare a referral to online platform operators by a private individual to one sent by a government agency that interacts with the platform operator as a “repeating player” that may also act against them in other ways. Where there is a possibility that the Cyber Department’s voluntary referrals may serve as a trigger for enforcement by the platform operators (regarding whom the Court had no data), and that the Department’s referrals may influence their discretion, there is a need for statutory authority, even if only general, for the sake of establishing that the Department’s referral activities are lawful.

Justice Melcer concluded that the Department could rely upon the residual power granted to the government under sec. 32 of Basic Law: The Government, as long as its activities do not infringe fundamental rights, inasmuch as residual power cannot ground such violations.

In view of the foundation before the Court in regard to the Cyber Department’s activity and the consequences of that activity for the online platform operators, and in view of the serious deficiency of that foundation, Justice Melcer was of the opinion that it could not be said that it is the government that infringes freedom of expression. In this regard, Justice Melcer emphasized the significant difficulty inherent in recognizing the possibility of violating the right to freedom of expression of a non-human actor (e.g., “bots” and “avatars”). He further emphasized that it is the platform operator – not the government – that holds the power to decide whether or not to remove content.

Justice Melcer therefore held that “as long as it has not been proven that it is the activities of the Cyber Department that directly and certainly lead to a violation of fundamental rights, and as long as no evidentiary foundation has been laid showing that the discretion of the online platform operators is not actually independent, a voluntary referral from the Department to the online platform operators is not prohibited. In these cases, it is difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense.”

The voluntary method by which the Cyber Department acts in this regard is not, however, free of difficulties, primarily in regard to the problem of the absence of specific authority for its activity in primary legislation. However, until the enactment of detailed legislation on the matter (as has been done in some countries), the current situation can continue by virtue of residual power or auxiliary authority.

Looking to the future, Justice Melcer noted a number of overall problems that should be addressed and remedied by the Respondents, as detailed in paras. 73-74 of his opinion, among them: a lack of documentation of the content of the publications that the Cyber Department seeks to remove, inadequate details in the transparency reports produced by the Department (subject to the exigencies in regard to security offenses), and not publishing the Work Procedure. In addition, there is a problem in clarifying the role of the online platform operators (which might have been clarified had those operators been joined as respondents to the petition), and the agreements between them and the Department. In making its referrals to the online platform operators, the Department should guide itself in accordance with the case law of the Court, which supersedes residual authority. Also, a legislative initiative should be weighed to provide a detailed arrangement of the voluntary enforcement mechanism, as has been done in some other countries. There is also a need for establishing a post facto oversight and supervision mechanism for the Department’s activities, and it was recommended that this be considered.

President E. Hayut concurred with Deputy President Melcer’s conclusion that the Cyber Department’s activity constitutes a governmental act that requires a conferral of authority. However, deciding whether there is sufficient authorization for the activity of the Cyber Department is largely contingent upon whether that activity infringes fundamental rights. In her opinion, the two material defects addressed by Deputy President Melcer – the failure to join the online platform operators as respondents, and the insufficiency of the factual foundation – frustrate any possibility of deciding the petition on the merits. She was, therefore, of the opinion that the petition should be dismissed in limine. The President joined Deputy President Melcer’s comments in para. 73 in regard to the problems presented by the Cyber Departments activity, and his call to publish the Cyber Department’s Work Procedure.

Keywords

Constitutional Law -- Basic Law: The Government, Internet Law -- Governmental oversight, Internet Law -- Social media

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