The bill on social media incitement is a danger to freedom of expression – Haaretz

The bill to prevent incitement on social media is supposed to address a real problem that ought to be addressed. But despite its good intentions, the bills provisions are excessive and completely disconnected from the requirements of proportionality. It is extremely dangerous to freedom of expression, in both the short term and the long, and will also be of dubious effectiveness. Moreover, its far from clear that alternatives were properly considered.

The bill would turn district court judges into censors at the request of prosecutors. Granted, judges wouldnt be able to prevent publication a priori, but they could order content removed from a website. It fails to draw the vital distinction between social media and local or foreign news sites, which obey the rules of journalistic ethics and editorial responsibility. Its provisions would apply to both alike.

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Two conditions are listed for issuing a content removal order. First, the contents publication must be a criminal offense. Second, theres a real chance that letting it remain online would undermine personal safety, public safety or national security.

The first condition is extremely broad, which in and of itself makes the bill disproportionate. Were the criminal offenses that restrict free speech here only the ones suited to a democratic country, like incitement to violence, that would be one thing. But they arent.

We inherited outdated offenses that contradict democracy from the British Mandate, which wasnt a democratic regime. These include insulting a public servant, contempt of court, offending religious sensibilities and, worst of all, incitement to sedition. This alone would be enough to spark contempt for the government and public dissatisfaction. But Israels legislature also added poorly worded criminal provisions on issues like revealing official secrets and slander.

Despite repeated urging by courts and academics that the definitions of these crimes be adapted to a democratic system of government, nothing has been done. And now, the government seeks to turn them into a platform for serious harm to freedom of expression. It would be no exaggeration to say that massive use of these offenses could even endanger freedom of expression.

Granted, the prosecution generally exercises restraint in their use, but thats in criminal proceedings against individuals. Its not clear similar restraint would be exercised about content removal. Moreover, theres no guarantee that current prosecution practices wont change tomorrow.

Nor is the second condition reassuring. While harm to personal safety is clear and defined, national security and public safety are extremely vague terms that can be infinitely expanded.

Court rulings allow publication to be barred only to avoid grave harm to an important public interest, and only when such harm is a near certainty. But the bill turns its back on these essential limitations, thereby showing contempt for freedom of expression.

Sometimes, the harm that publishing something does to a significant public interest is offset by the very public value of publishing it, such as its contribution to freedom of political, religious or artistic expression. But the bill makes no mention of this idea.

Moreover, in the event of a criminal conviction, the court will be authorized to order content removed even if the second condition isnt met. But if removing content is a preventive measure, what justifies doing so if the conditions justifying prevention havent been met?

This broad willingness to undermine freedom of expression ought to worry us. Israelis seem to be greatly concerned about their own freedom of expression and that of people who think like them, but they waive this concern with regard to conflicting opinions. The understanding that our commitment to freedom of expression is actually judged by our treatment of offensive, outrageous, stomach-churning statements hasnt taken root. Without full freedom of expression, democracy cant exist even in the thin, procedural sense of the term. Without full freedom of expression, self-actualization, cultural flourishing and progress are all impossible. A bill like this contributes to eroding the principle of freedom of expression.

If district court judges are authorized to serve as a kind of censor, the day is not far off when proposals will be made to expand their powers by letting them prevent publication a priori, even in the classic, non-internet media. The day is also not far off when proposals will be made to turn the content removal order into a basis for conviction of the very crime that the order deemed the content to commit.

The bill also reflects the Knessets fondness for legal proceedings that rely on classified information that the party injured by the order isnt allowed to see, even if this material is inadmissible as evidence. Nor does the bill insist that the party liable to be harmed by the order be present during the proceedings. In other words, these proceedings will be far from due process.

In addition, the bill reflects contempt for the criminal process, since a judicial ruling that a law was violated will essentially replace a criminal conviction obtained with all the procedural safeguards that criminal trials are supposed to include. If its possible to determine that a crime was committed through such an abbreviated process, why even hold criminal trials, with all their complications?

One also has to ask whether this system which is based on the states employment of force via the judicial branch will even be effective in achieving its goals. After all, quite a lot of time will pass before the prosecution decides to go to court and the court holds a hearing and rules.

But the nature of the internet is that offensive, juicy content spreads like wildfire in all directions, to other online platforms and the mainstream media. Thus, the question is whether this isnt a vain pursuit, because it will respond too late.

Its highly unlikely that the government thoroughly explored alternatives that would empower the individual who was harmed and assign liability to the social media companies. These companies cant be trusted to keep their platforms from being turned into a no mans land where justified, proportionate prohibitions on truly dangerous speech are violated. But they could be made to do so through professional intermediaries free of economic or political interests.

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The bill on social media incitement is a danger to freedom of expression - Haaretz