Case Number

HCJ 4804/94

Date Decided

1-9-1997

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: Respondent no. 1 decided to allow the screening of the film "L'Empire Des Sens," on the condition that several scenes be omitted from the film, and that the film only be shown to adults. According to respondent no. 1, these scenes were of a pornographic nature, and there was a near certainty that screening these parts of the film would cause serious, grave and severe harm to societal sensibilities and public morality. Petitioner accepted that the film could only be shown to adults. In this petition, it contests the deletion of the omitted scenes, except for scenes in which minors appeared.

Held: Freedom of expression is a fundamental right in Israel. The Court held, however, that this freedom may not be extended to pornography if there exists a near certainty that the pornography would cause serious, grave and severe harm to public order. Whether a work is pornographic should be judged by looking to the work as a whole, when the pornographic parts are seen as part of the entire work. It is not enough that the entire work be seen as having artistic merit. Instead, the pornographic parts of the work must contribute towards the work as a whole. The Court held that respondent no. 1 did not use the "work as a whole" test when evaluating the film. Instead, respondent evaluated the pornographic parts of the film in isolation from the film as a whole. As such, respondent's order to delete the pornographic parts of the film was invalid, except for the portions which the petitioner had agreed to delete.

Keywords

Administrative Law -- Discretion, Constitutional Law -- Freedom of Expression

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