Israel's Proposed ‘Facebook Bill’

By Tehilla Shwartz Altshuler, Rachel Aridor-Hershkovitz
Monday, August 6, 2018, 12:31 PM

From 2015 to 2016, Israel experienced a wave of terror, dubbed the “knife intifada,” in which 47 Israelis were murdered. According to Israeli security sources, a majority of the attacks were carried out by individual terrorists without organizational guidance or affiliation. These individuals were exposed to incitement to terrorism on social network.

In light of this reality, in late 2016 the Ministry of Justice submitted the “Bill for the Removal From the Internet of Content Whose Publication Constitutes an Offense,” known as the “Facebook Bill.” The bill sought to provide authorities with tools to efficiently deal with inciting content published on the internet in Israel, specifically in cases in which either the identity of the writer is unknown or the writer is located outside of Israel and cannot be investigated by law enforcement authorities. Presumably in response to concerns over infringing the right to freedom of expression, the bill allows the removal of content from the internet only with very limited procedural safeguards: A judicial order to remove the content can be issued before the criminal proceedings have been exhausted, without a requirement for admissible evidence, and ex parte, without the presence of the content’s writer before the court.

In the last Knesset session, the Constitution, Law and Justice Committee discussed the bill a number of times in preparation for a final reading. Although the committee approved a final version to be put before the Knesset for ultimate approval, the vote did not take place. At the last minute, and in a rather dramatic turn of events, Prime Minister Benjamin Netanyahu decided to halt the proceedings on the grounds that the bill severely infringes on the principle of freedom of expression.

Originally, the goal of the bill was to deal with posts on social media publications—mainly those encouraging terror against Israelis or Jews—in cases in which the post was published by a person sitting beyond the jurisdiction of the State of Israel, making it impossible to commence a criminal investigation. (For example, an incendiary post published by an Iranian would fall into this category.) The final version of the bill, however, is much broader. It authorizes a prosecutor from the Cyber Unit, recently established within the Israeli Ministry of Justice, to request a content removal order from a district court judge. A judge is authorized to grant a content removal order ex parte and based on confidential or inadmissible evidence if she is convinced that: (1) the content is an offense included in Israeli Penal Code and (2) there is a real possibility that its publication will harm the security of a person or the security of the state or cause serious damage to the country's economy or vital infrastructure. The publisher or the owner of a content, a website owner or operator or a search engine, may all be subject to such a content removal order.

Law enforcement agencies in most Western countries are currently facing challenges relating to criminal activity and the spread of racism and hatred on social networks. Germany passed a law in October 2017 that obligates social networks to monitor and remove content suspected of constituting one of the offenses specified in the law. In France, lawmakers are discussing similar legislation. However, the Israeli bill is broader than efforts by other liberal democracies that have chosen to intervene in social media by means of legislation.

First, the bill authorizes the removal of content from any website, be it Facebook or Twitter, and whether the content is hosted on an Israeli server or a server outside of Israel. It also authorizes the removal of content from media sites. For example, an opinion piece posted in an online newspaper criticizing the Israeli government’s fiscal policy and calling the Israeli citizens to stop paying their taxes could be considered as an offense included in Israeli Penal Code which may cause serious damage to the country's economy. Under the bill, a district court judge could order the removal of the opinion piece itself and any links to it in Google’s search result.

Germany’s legislation, in contrast, deals only with the largest social networks and excludes networks that have fewer than two million registered users in Germany. In addition, the German law applies only to third-party platforms and does not extend to sites that edit their own content, such as news sites or Wikipedia. If the purpose of Israeli legislation is to prevent intermediaries—such as the major social media platforms—from evading responsibility for the offensive content published on their sites, the wording of the bill seems to be much broader than what is required.

Second, the bill authorizes the removal of any content the enforcement authorities consider to be an offense included in Israeli Penal Code, if there is a real possibility that its publication will harm the security of a person or the security of the state or cause serious damage to the country's economy or vital infrastructure. In other words, the bill potentially allows content to be removed if it pertains to any criminal offense under Israeli law—from theft or drug trafficking to offenses that limit the expression of the political discourse. This contrasts with the German legislation, which applies only to a defined list of offenses, such as dissemination of propaganda material of unconstitutional organizations or encouraging the commission of a serious violent offence endangering the state. Moreover, the “real possibility” standard circumvents the existing constitutional balance in Israel: According to longstanding Israeli case law, freedom of expression is to be curtailed only if there is near certainty of serious harm to the public interest. For this reason, it the bill may have broader negative implications for the right of freedom of speech in Israel. It seems to be a clear expression of the Israeli legislative branch's position that the existing constitutional balance is unacceptable to it.

Third, the bill allows authorities to submit of an application for a removal order even if the identity of the publisher of the content is known and the writer is located within the borders of the State of Israel and can be reached and summoned for criminal investigation for committing an offense. Even if the original goal of the bill was to deal with social media publications in cases where it is not possible to commence a criminal investigation in Israel, the current version of the bill actually authorizes the use of censorship tools against Israeli citizens. This is a clear deviation from the accepted norm in democratic countries, according to which delayed punishment is preferable to early censorship. Notably, the censoring nature of the bill was not concealed in the Knesset committee’s discussions: For example, the Israel Courts Administration supported the bill as a means by which to remove critical content about judges. The claim raised during the discussions was that there is a policy of inadequate and ineffective enforcement by the police when dealing with severe and inadequate statements against judges, which may be considered an offence under Israeli Penal Code. So while the original justification for the bill was counter-terrorism and preventing transnational terrorism, various authorities attempted to turn the law into a tool for censoring Israeli citizens who criticize government institutions.

Fourth, the bill is not particularly effective. While the large internet platforms have announced that they would respect Israeli court orders, the content would actually be removed only from the eyes of users accessing the internet from Israeli IP addresses. In other words, the main effect of the bill would be to restrict public discourse within Israel, rather than ridding the entire internet of expressions of incitement or hatred against Israelis or Jews. The law would have no effect, for example, in a situation in which a boy living in the Palestinian Authority reads a post that advocates the stabbing of Jews but was published by a person sitting in Yemen.

The bill was intended, according to its explanatory notes, to enable an efficient process for dealing with viral distribution through social networks. However, the Knesset committee agreed that the prosecuting authorities would need to issue specific regulations regarding when and where a senior level of authorization would be required to request removal orders. Requiring such an approval undermines the ability of law enforcement to respond quickly, meaning that the aims of the bill cannot be practically realized.

Fifth, the bill does not exist in a vacuum. In 2016, the Israeli Ministry of Justice established the “Cyber Unit,” which coordinates requests from various police and security bodies regarding inciting or offensive content in social networks. These requests are then informally submitted to social networks, on the grounds that such expressions violate the networks` own terms of use. According to Ministry of Justice representatives, while in 2016 there were only several hundred requests for removal of content, in 2017 these numbers rose to 12,000 requests. As far as we were able to verify, approximately 85 percent of the requests were successful. This procedure is conducted without explicit legal authorization and without transparency or accountability. The bill, however, contains no language that would halt this process. Therefore, it is not clear that the bill is even justified: The Israeli government can already remove content without any legal authorization, so the government would only need to issue orders under the new law in cases in which the networks refused to accede to the informal requests submitted by authorities.

The bill is a response to a genuine problem: the need to deal with incitement to terrorism and online violence by people outside the state’s jurisdiction yet calling for harm to its citizens. Online platforms should not be able to evade responsibility for removing such content. However, the bill represents an attempt to broaden the scope of Israeli legal authorities over content removal without justification. Under the guise of dealing with terrorism, the drafters of the bill seek to increase control over speech and other forms of expression—and to do so in a manner that will mainly target Israeli citizens and not to those who seek to harm them.

Unfortunately, this is not the only example of recent Israeli legislation using a seed of national-security imperative in order to vastly expand government’s control over citizens. This trend can be seen in the Cyber Bill proposal, which, for example, grants the Israel National Cyber Directorate—a division within the prime minister’s office—the authority to access computers and collect and process information in order to identify cyber security infiltrators under only a vague limitation: as long as these activities do not infringe upon the right to privacy more than is necessary. It is also apparent in the recently passed legislation which allows Israeli police to mandatorily collect location data of emergency calls. The prime minister did well when removing the proposal from the agenda of the Knesset. When the bill returns to the Knesset’s agenda next time, hopefully it will be of a different nature, one more fitting of a liberal democracy.