Freedom of Expression

http://elyon1.court.gov.il/files/11/650/053/a09/11053650.a09.pdf

Abstract:

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

In 2004 the Director-General of the Antitrust Authority determined that the activity of ACUM (a corporation that operates to manage its members’ copyrights in musical works in Israel) constitutes a monopoly on managing copyright over musical works. In 2011 the Antitrust Tribunal (“the Tribunal”) approved the activity of ACUM as a cartel, subject to a series of requirements (“the permanent requirements”), which would be in force for five years starting from the date of their approval. The disputes at the center of the appeals related to the requirement that at least a third of ACUM’s board of directors consist of external directors (the ACUM appeal) and the requirement regarding the exclusion of rights in a work from management by ACUM. It was argued that the mechanism was overly narrow, as consent of all joint owners of a work is necessary for exclusion, or for segmentation under the four specific categories that permit partial exclusion of the rights (the EMI Israel appeal).

The Supreme Court (opinion written by Justice D. Barak-Erez, Justice Z. Zylbertal and Justice E. Rubinstein concurring) dismissed both appeals on the following grounds –

The requirements for ACUM’s operation should balance the authors’ property rights in their works with the public interest in a market free of monopolistic effects, a unique interest when in the context of a market of works, which inherently must be accessible to the public (albeit for payment). The analysis focused on two issues: the requirement to appoint public directors and the scope of the rights exclusion mechanism. Both should be examined from the unique perspective that combines the purpose of copyright law with that of antitrust law, considering the balance that both fields of law must achieve between individual property rights and economic interests, on the one hand, and the general public interest, on the other hand.

Regarding the requirement that at least a third of appointed members to the board of directors be external public directors (the practical meaning of which was the appointment of a total of four such directors), ACUM failed in its challenges to both the requirement itself and the number of external directors it was obligated to appoint.

The appointment of public directors is one of the mechanisms that facilitates supervising a company’s conduct and that of its directors and controlling shareholders. It helps deal with the various representative problems associated with its activity. Their appointment also adds a professional dimension to the company that would increase its adequate management; the appointment of public directors to ACUM’s board is consistent with the purpose of the cartel’s approval. Although ACUM is not a public company, it effectively manages a resource that has clear public aspects, and in fact those aspects of ACUM’s activity are the basis for the cartel's approval. At the same time ACUM’s monopolistic characteristics and its status as a cartel in the copyright of musical works per se grant it a public dimension. The requirement to appoint public directors to provide another layer of supervision over ACUM’s activity is therefore warranted by and inherent to the rationale of the cartel’s approval from the point of view of protecting both authors and users. The Court added that making the cartel’s approval subject to the appointment of public directors, even when a public corporation in the ordinary sense is not involved, has already been done in the past, for example with respect to the recycling corporation. Moreover, the public directors might represent cross-group interests that carry broader considerations as to the general interest of artists as a whole, rather than representing the interest of certain artists groups, which may conflict. Moreover, without laying down rigid rules, there is prima facie basis for the argument that the importance of a public director is in fact greater in a corporation like ACUM, which is not led by a clear control group and has diverse ownership.

In fact, ACUM itself also acknowledged the advantages of appointing public directors, and the updated language in its articles of incorporation now requires the appointment of two public directors. The basic aspect of the dispute, which had to a certain extent become one of extent and degree, had thereby been somewhat resolved. In this respect, the Court believed that the proportion of directors that was fixed – one third of the total members of the board – was not excessive or unreasonable, considering the character of ACUM as a corporation with diverse ownership and especially in light of the concern for abuse that always exists regarding a cartel.

Under the circumstances, there is no need to rule on whether ACUM should be regarded as a hybrid entity, and in any event a complete discussion of the criteria for recognizing an entity as such is unnecessary. However, it is not superfluous to note that ACUM’s activity does fit many of the factors mentioned in case law as indicative of a hybrid entity. Those factors, even if insufficient to categorize ACUM as a hybrid entity in the ordinary sense of the term, do shed further light on the basic justification of the Director-General’s requirement. Although the appointment of public directors is not ordinarily considered one of a hybrid entity’s duties, the fact that ACUM is an entity that owes important duties to the public can serve as a factor in how the Director-General of the Antitrust Authority exercises power when subjecting a cartel to requirements.

Two questions were at the root of the dispute regarding the requirements about the rights exclusion mechanism. First, whether the requirement for consent by all joint owners of a work in order to exclude it from ACUM’s catalog is justified or whether that power should be held individually by each of the artists; and secondly, how delicate and precise should the “segmentation” mechanism be in the scope of the exclusion ability, in light of distinctions between a work’s different types of use.

As a point of departure it can be assumed that works of the type that ACUM manages are often ones to which several artists share the rights. Conditioning exclusion upon the consent of all rights owners will undoubtedly burden the individual artist who seeks to exclude her own work. However, this is not an undue burden considering the purpose of the permanent permit.

The most important tool available to ACUM in the collective management of the rights is the grant of a sweeping license, known as a “blanket license,” which permits the licensee to use ACUM’s entire catalog. From the perspective of transaction costs, the advantages of a blanket license are the primary reason for ACUM’s activity, despite the conflicts with antitrust law. Given the typical ownership structure of a musical work, an exclusion ability that is not conditional upon the consent of other owners effectively means that a single author, regardless of their role in creating the work, may exclude the entire work from ACUM’s blanket license system. Thus, a user who wishes to make lawful use of the work would have to negotiate with the excluding author in addition to acquiring the blanket license from ACUM. Such a state of affairs would greatly limit the benefit the cartel provides the user public to the point that it is doubtful whether the cartel is indeed “in the public interest” in terms of section 9 of the Antitrust Law. Furthermore, accepting that consent by all joint owners of the work is not necessary in order to exclude it might also allow for some of the artists’ opportunistic exploitation of the exclusion, creating “extortion” or “free-riding” problems.

Ultimately, even in the narrow exclusion regime joint artists can contractually regulate the scope of the work’s exclusion from collective management in advance. Indeed, the narrow exclusion regime merely provides the default for the inclusion of a joint work in ACUM’s catalog. Insofar as the authors wish to regulate decision-making differently in managing joint works, they are at liberty to do so. Presumably such an arrangement, which would be made in a timely manner and before any of the parties is in a position to potentially exploit or become a free rider, would help to limit the coordination challenges in obtaining consent for excluding joint work, as detailed by EMI Israel and Anana. Therefore, the default prescribed – that in the absence of agreement to the contrary between owners of rights in a joint work, all of their consent is necessary in order to exclude it from management by ACUM – is a proper one.

Finally, the Court considered the rights exclusion mechanism that enables artists to exclude their rights in some – rather than all – uses but only in one of four specific alternatives – “exclusion packages” that make limited “segmentation” possible according to types of use. The dispute between the parties revolved around the precision of the necessary segmentation. While the current segmentation mechanism essentially distinguishes between audio and audio-visual uses, EMI Israel (supported by Anana) also wished to distinguish between use in “old media” – like television and radio – and use in “new media” – like Internet and cellular phone services.

Here, the Court held that the exclusion mechanism approved by the Tribunal should be upheld, subject to the question of excluding “new media” – on conditions and restraints – being comprehensively reviewed during the cartel approval’s renewal proceeding.

The distinction between “new” media and “old” media raises fundamental and practical difficulties. The issue is a developing one and more experience and study are necessary to achieve a proper balance. The world of communications is characterized by constant, rapid technological development. In light of this reality the distinction between “old media” and “new media” is not a binary dichotomy, nor is it permanent or stable.

Reviewing the implications of excluding “new media” shows that there is not necessarily any justification for completely prohibiting excluding works from “new media” uses. Nevertheless, there are clear indicators that the same applies only to a limited exclusion mechanism, which focuses on certain types of “new media” uses and strives to minimize harm to users. Such exclusion mechanisms cannot be based merely on the technological distinction between “old media” and “new media” and allow a sweeping exclusion of all uses of the latter, as EMI Israel and Anana propose. In any event, examining the possibility of another “new media” exclusion category and fashioning the boundaries of that category should be done with care after studying interested parties’ positions about the issue and all the relevant facts. As mentioned, this is a matter that the Antitrust Tribunal ought to consider when the extension of the cartel’s approval comes before it. This position is also supported by a factor that concerns the temporary nature of the approval – for only five years. At the end of that period (two years of which have already elapsed), the Tribunal will reconsider approving the cartel, at which time it can also reconsider the extent of the exclusion mechanism’s “segmentation,” in light of the five years’ experience gained with a “narrow” exclusion mechanism. International experience could also enrich the set of information available to the Tribunal.

In conclusion, the Court dismissed the appeals, deciding not to intervene in the requirements attached to the cartel’s approval. Currently, the requirements for the permanent permit, including those challenged in the appeals, are all necessary to dispel the concerns naturally raised by a cartel concerning the collective management of copyright. These conditions are necessary to ensure that the cartel’s benefit to the public does indeed exceed the harm perceived from it. At the same time, the possibility remains that the proper balance between the rights of authors and the general public interest might in the future dictate a result different from that reached by the Tribunal in terms of integrating the distinction between different types of “new media” and “old media” in the rights exclusion mechanism.

Voting Justices:

Barak-Erez, Daphne

Primary Author

majority opinion

Zylbertal, Zvi

majority opinion

Rubinstein, Elyakim

Author

concurrence

Full text of the opinion:

In the Supreme Court

Sitting As a Court of Civil Appeals

CA 5365/11

CA 5489/11

Before:		His Honor, Justice E. Rubinstein His Honor, Justice Z. Zylbertal Her Honor, Justice D. Barak-Erez


The Appellant in CA 5365/11 and the Ninth Respondent in CA 5489/11:		ACUM – The Association of Composers

v.

The Appellant in CA 5489/11 and the Ninth Respondent in CA 5365/11:		EMI Music Publishing Ltd

v.

The Respondents:	1. The Director-General of the Antitrust Authority
	2. The Association of Restaurants in Israel
	3. Partner Communications Company
	4. The Association of Function Hall & Garden Owners
	5. Golden Channels
	6. Matav Cable Communication Systems
	7. Tevel Israel International Communications
	8. Anana Ltd
	9. EMI Music Publishing Ltd

Appeals against the judgment of the Antitrust Tribunal in Jerusalem on June 2, 2011 in AC 513/04 by Her Honor Judge N. Ben-Or

Date of Session:	Nisan 3, 5773 (March 14, 2013)

On behalf of the Appellant in CA 5365/11 and the Ninth Respondent in CA 5489/11:	Adv. Uri Sorek, Adv. Assaf Neuman

On behalf of the Appellant in CA 5489/11 and the Ninth Respondent in CA 5365/11:	Adv. Michelle Keynes


On behalf of the First Respondent:	Adv. Uri Schwartz, Adv. Yael Sheinin, Adv. Elad Mekdasi

On behalf of the Third Respondent:	Adv. Eyal Sagi, Adv. Amir Vang

On behalf of the Fourth to Seventh Respondents:	Exempt from appearance and representation

On behalf of the Eighth Respondent:	Adv. Ronit Amir-Yaniv, Adv. Ido Hitman

JUDGMENT

Justice D. Barak-Erez

1. Which principles should guide the activity of ACUM with regard to the management of copyright in musical works in Israel? This question has been presented to us in full force against the background of the finding by the Director-General of the Antitrust Authority that ACUM’s activity creates a cartel, in order to review the conditions prescribed for the approval of the cartel in a way that will balance the rights of authors with the general interest of works being used in public.

Background and Previous Proceedings

2. “The Association of Composers, Authors and Publishers,” known as ACUM, is a corporation that operates in order to manage the copyright of its members – lyricists, composers, arrangers, translators, and others – in Israel. ACUM members transfer their rights in their works to it, whilst ACUM acts on their behalf in order to license the use of those works in consideration for royalties that it collects for its members. Ordinarily, the licenses that ACUM grants are sweeping licenses ("blanket licenses") that permit licensees to make use of the whole repertoire of works managed by ACUM (mainly by making them accessible to the public in various ways). In addition, ACUM is bound by agreements with foreign copyright collective management entities (hereinafter "affiliates"), by virtue of which it administers in Israel the rights that are managed by the affiliates abroad.

3. On April 30, 2004 the Director-General of the Antitrust Authority (hereinafter "the Director-General") published a ruling pursuant to section 34(a)(1) of the Antitrust Law, 5748-1988 (hereinafter "the Antitrust Law" or "the Law") according to which ACUM’s activity involves the creation of cartels (both between ACUM members and between ACUM and the affiliates) and a declaration under section 26(a) of the Law that ACUM’s activity as a cartel creates a monopoly in the market of managing copyright in musical works (or more precisely, with regard to management of broadcasting, public performance, copying, recording, and synchronization rights in those works). The decision was made by the then Director-General, Mr. Dror Strom. However, it also reflects the position of the officers who have succeeded him, Ms. Ronit Kan and currently, Prof. David Gilo, as detailed below. Reference to the position of the Antitrust Authority will henceforth be made without specifically referring to those successors, using the general title – the Director-General.

4. At that stage, ACUM instigated legal proceedings before the Antitrust Tribunal (hereinafter "the Tribunal") – an appeal against the determination of the Director-General that its activity involves cartels (AT 512/04) or, alternatively, an application for the approval of a cartel in accordance with sections 7 and 9 of the Antitrust Law, on the grounds that the cartel's approval is necessary in the public interest (AT 513/04). Both proceedings were heard together. Subsequently, to ACUM’s request, the appeal it filed was withdrawn, leaving only its application for approval of the cartel. The Director-General did not oppose the cartel's approval considering the public importance involved in ACUM's activity, as explained below, but the Tribunal was moved to set conditions to the approval so as to protect not only the public interest but also the individual rights of authors.

5. To make its continued activity possible until completion of the litigation, ACUM filed a request for a provisional permit for operation of the cartel. The Tribunal granted the request and on December 28, 2004 it granted a provisional permit for ACUM’s activity subject to certain conditions (hereinafter "the Provisional Permit"). As detailed below, those conditions regulated, inter alia, situations in which authors could exclude rights in certain works from ACUM’s management so that those authors, rather than ACUM, would themselves deal with granting licenses to exercise those rights (hereinafter "the Exclusion Mechanism"). Over the years the Provisional Permit was extended from time to time based on of the Director-General’s recommendation, various amendments and modifications introduced to its terms. The last of those provisional permits (before the Tribunal's judgment), granted on February 24, 2009, introduced several significant changes, including making the Exclusion Mechanism "tougher," as detailed below.

6. In addition to the position of the Director-General, oppositions to the cartel's approval were filed to the Tribunal by several other entities, including the Association of Function Hall & Garden Owners, Partner Communications Company (hereinafter "Partner"), the Association of Restaurants in Israel, and several cable companies – Golden Channels, Matav and Tevel (hereinafter "the cable companies") (whose activity has since been consolidated).

7. At a later stage, an application to join the proceedings was made by two publishers that represent authors, the publishers themselves being members of ACUM – Anana Ltd (hereinafter "Anana") and EMI Music Publishing (Israel) Ltd (hereinafter "EMI Israel"). Those applications, like the time when they were made, were explained by the changes that had been made to the Provisional Permit’s conditions on February 24, 2009 as regards the Exclusion Mechanism. On December 1, 2009, the Tribunal partially allowed the applicants to join the proceedings in the sense that it permitted each of the two applicants to file a brief document with reference to the conditions that were acceptable to them and to make summations without extending the existing factual basis of the discussion.

8. In its decision of January 25, 2009, the Tribunal stated that by consent of the parties it would rule based on the parties’ summations and supplemental oral arguments, without hearing evidence. The decision further stated that all of the parties agreed to ACUM's approval as a cartel, and took issue merely with regard to the terms of that approval. Consequently, the conditions of the Provisional Permit of February 24, 2009 (hereinafter "the Provisional Conditions") would serve as point of reference for the parties' positions. Accordingly, each of the parties filed its reservations regarding the Provisional Conditions in such manner that enabled the Tribunal to decide which of the conditions would be adopted as is within the permanent conditions, and which would be modified.

9. On June 2, 2011 the Tribunal approved ACUM’s activity as a cartel, subject to a series of conditions (hereinafter "the Permanent Conditions"), which would remain in force for five years from the date of their approval. The Tribunal stated that the basic premise for reviewing the parties' arguments with regard to the conditions was that the anticipated benefit from the cartel substantially exceeded the damage likely to be caused by it, as required by section 10 of the Antitrust Law. In this context, it was explained that ACUM’s activity benefited not only its members – copyright owners (hereinafter "the authors") but also the general public who uses the works it manages (hereinafter "the users"): on the one hand, the sweeping licenses permit the users to make use of the whole repertoire of works that ACUM holds, thereby sparing the public from having to locate the owners of various rights and to negotiate individually with each of them; on the other hand, the sweeping licenses also benefit the authors since they streamline (and, to a great extent, enable) collection of royalties and enforcement of their rights.

10. Since all parties agreed on principle to the approval of the cartel, the Tribunal hearing focused on the nature of the conditions to which the approval should be subject in order to dispel concern as to its abuse with regard to authors or users. The point of departure for the hearing was, as aforesaid, the Provisional Conditions, some of which were agreed upon by all parties, whilst others were in dispute. The disputes on which the appeal before us focuses pertain to the conditions prescribing the extent of the duty owed by ACUM to appoint external directors and the extent of ACUM members’ ability to exclude their rights from its management, as detailed below.

11. Other controversies, including those concerning the definition of acts that would be construed as an abuse of ACUM's position and the way in which ACUM should act in taking legal action against users, were ultimately not considered by us since only few of the arguments concerning them were raised within the written appeal, while the arguments before us did not in fact concentrate on them.

12. The appointment of external directors – the position of the Director-General was that a condition should be added to the Permanent Conditions to the effect that ACUM should appoint external directors in a proportion of no less than one third of the total members of its board and those directors would be responsible for the internal plan to enforce antitrust law that ACUM is obliged to implement (in accordance with section 10 of the Provisional Conditions). ACUM objected to this requirement, on the grounds, inter alia, that it is not a public company where the appointment of external directors is necessary in order to protect minority rights, and in any event ACUM's articles of association ensure due representation for each category of its members, and even guarantee numerical balance between the categories.

13. The Tribunal accepted the Director-General's position on this matter, noting that a corporation for the collective management of copyright naturally raises concern as to the abuse of power against the authors themselves. Appointing a substantial number of external directors and entrusting them with the internal enforcement plan, it was held, would help deal with that concern, especially considering the fact that the corporation's members are dispersed and lack management expertise. The Tribunal also attributed importance to the fact that from ACUM's position in the proceedings it appeared that ACUM itself acknowledged the need to appoint external directors and was willing to do so even before the Tribunal’s judgment in order to reinforce the "managerial, professional, economic character of ACUM's board of directors".

14. The extent of ACUM members’ ability to exclude rights from ACUM’s management – the Provisional Permit that ACUM had originally obtained (in 2004) included, in section 2.3 of the Provisional Conditions, a mechanism permitting a member to give notice "at any time, of his desire to assume all or any of the copyright with regard to any of his works, with regard to all users or specific categories of users," such that the works included in the notice would cease to be part of ACUM's repertoire, and copyright ownership would revert to the notifying member (hereinafter "the broad exclusion mechanism"). Underlying this mechanism was the concept that a “liberal” option to exclude any right in a work, even specifically, would intensify competition and increase the authors' power against ACUM. Later on, based on the experience accrued from the implementation of this arrangement, the Antitrust Authority reached the conclusion that the broad exclusion mechanism was not yielding the anticipated results with regard to enhancing market competition, and in contrast was aggravating the concern for abuse of the exclusion ability. For example, it turned out, according to the Director-General, that the broad exclusion mechanism that enabled interested authors, inter alia, to exclude from ACUM's management merely the use of "new media" (such as mobile phones and the Internet) and to leave it with the power to grant sweeping licenses for broadcasting rights only in "traditional media" (like television and radio), might undermine the justification for ACUM's existence as a corporation whose purpose is to reduce the substantial transaction costs involved in individually contracting with each of the authors. Accordingly, in 2009 the exclusion mechanism in section 2.3 of the Provisional Conditions was limited in two ways: first, the Provisional Conditions provided that an exclusion notice could only be given with the consent of all joint authors in a collective work whose exclusion was sought (for example, the lyricist, the composer of the music, and the arranger); second, it was provided that partial exclusion, namely exclusion of some of the uses of the work, could only be done in accordance with four "exclusion baskets" concerning different categories of use (hereinafter "the narrow exclusion mechanism"): presentation of the work in an audio format (for example radio broadcasting); its presentation in an audio-visual format (for example in a television program); copying the work; and recording it. The narrow exclusion mechanism therefore did not permit the author to exclude the work in various formats at his discretion, as specifically chosen by him (for example, excluding the work's use only with regard to mobile phones).

15. The Director-General's position, joined by ACUM, Partner, and the cable companies on this issue, was that the narrow exclusion mechanism should be included in the Permanent Conditions. In contrast, EMI Israel and Anana believed that the broad exclusion mechanism should be adopted with regard to both aspects that distinguish it from the narrow exclusion mechanism and they challenged both the requirement for unanimous consent of all authors of a joint work and the restriction of exclusion according to "exclusion baskets."

16. EMI Israel pleaded that the narrow exclusion mechanism improperly infringed on the constitutional property rights of the authors it represented, both because the predefined "exclusion baskets" limit the prerogative of the right’s owner to permit or prohibit certain uses of his work, and because the vast majority of musical works managed by ACUM are jointly owned by several authors. Under these circumstances, it was argued, making the exclusion conditional upon the consent of the other owners in fact negates the ability of a given author to permit or prohibit the use of his work. EMI Israel further asserted that adopting the narrow exclusion mechanism would compromise the competition among ACUM's members in the sense that only large corporations would be able to afford managing rights outside of ACUM, while individual authors would not be able to bear the financial and logistical burden it involves.

17. Anana pleaded that adopting the narrow exclusion mechanism would lead to infringement on its reliance interest, given the fact that, relying upon the wording of the broad exclusion mechanism, it had already excluded works it managed from ACUM's repertoire with regard to the use of "new media" that it would now have to restore. In addition, it made a series of arguments concerning the restrictions set forth in the narrow exclusion mechanism – a lack of distinction between authors whose contribution to a joint work was significant and authors whose contribution was negligible (who nevertheless obtain a de facto veto right to exclude the work); impairing the ability of authors to maximize their profits; as well as infringing on the moral aspect of the author’s right (in the sense that an author who wishes to preclude the use of his work for religious, image-related, or moral reasons would find it difficult to do so under the narrow exclusion regime). Anana further contended that making the exclusion conditional upon the consent of all joint authors effectively makes it a dead letter since joint authors would frustrate any attempt to reach the necessary agreements.

18. The Tribunal held that the approval should be made conditional upon a narrow exclusion mechanism and in that respect it adopted the position of ACUM and the Director-General (joined by Partner and the cable companies). The Tribunal explained that such exclusion mechanism provided an appropriate answer to the necessary balance between enhancing market competition and protecting the individual author's proprietary right. The Tribunal went on to state that a corporation for the collective management of copyright is in any event not intended to enable its members to realize their rights in full. On the contrary, such arrangement is based upon a waiver of complete and total freedom with regard to the works in consideration for reducing the cost of managing and enforcing copyrights. EMI Israel and Anana, the Tribunal held, were in fact seeking to enjoy the benefits of belonging to a cartel without bearing the costs. The Tribunal further explained that copyright grants an author a monopoly that may harm the general public, a concern which is intensified when authors are incorporated in a cartel. Therefore, there is no reason to avoid subjecting the cartel's approval to conditions that restrict the individual author's proprietary right in his work.

19. As aforesaid, the Tribunal ultimately approved ACUM's activity as a cartel, subject to a series of conditions, including those mentioned above. The two appeals before us – the appeal by ACUM and the appeal by EMI Israel – were filed against its said judgment – as detailed below.

The Appeals

20. ACUM's appeal (CA 5365/11) concerns, as aforesaid, only one aspect of the Tribunal's judgment – the condition regarding the duty to appoint external directors. Its arguments in this respect are directed both against the basic obligation to appoint external directors and against their number.

21. EMI Israel’s appeal (CA 5489/11) originally revolved around several of the other conditions to which the Tribunal made the permanent permit subject, but at the hearing before us EMI Israel concentrated its arguments on the details of the condition regulating the rights exclusion mechanism. It should be noted that Anana, which did not appeal the Tribunal’s judgment, appeared at the hearing as a respondent and in that capacity it presented arguments in support of EMI Israel's basic position.

22. Generally, EMI Israel believes that the narrow exclusion mechanism impairs the protection of the authors' rights and reinforces ACUM's monopoly. More specifically, EMI Israel pleads that implementing the narrow exclusion mechanism would lead to infringement on authors' proprietary rights and would impair the possibility of creating a competitive copyright market. According to EMI Israel, the protection of copyright necessitates both recognition of the power of each author to implement the exclusion mechanism with regard to a work he helped create, even without obtaining the other authors’ consent, as well as authors’ right to exclude their works outside of the "exclusion baskets" that necessitate "crude" and imprecise choices that do not express important distinctions, primarily the distinction between "old" media (like radio and television) and "new" media (such as mobile phones).

23. On the other hand, the Director-General believes that both appeals should be dismissed. He supports the Tribunal’s judgment and emphasizes that the conditions it approved are required in order to protect authors and users against the monopolistic power of ACUM and in order to protect the public interest involved in the use of the works.

Our Ruling

24. Having reviewed the parties' arguments we have reached the conclusion that both appeals should be dismissed. We are convinced that, at the moment, the Permanent Conditions, including the conditions against which the appeals have been addressed, are all necessary in order to dispel the concerns raised inherently by a cartel related to the collective management of copyright. These conditions are necessary in order to ensure that the cartel’s benefit to the public will exceed the perceived damage from it. Indeed, as detailed below, reviewing the parties' arguments has made it clear that the distinction between "new" and "old" media within the exclusion mechanism is an evolving issue, the regulation of which should be monitored. However, as noted, the approval and its conditions have been set for a period of five years, of which two have already passed (as the conditions relating to the narrow exclusion mechanism were approved by the Tribunal in June 2011). At the end of that period, it will be possible to revisit the conditions and the way they are being implemented in order to make decisions towards the future. In that sense, our ruling reflects the facts presented in the proceedings, including the experience accumulated in the Israeli market and its existing uses of copyright.

The Normative Framework: Between Copyright Law and Antitrust Law

25. Two normative frameworks frame our discussion: copyright law – as a framework that seeks, inter alia, to balance the author's rights in his work and the public interest to enjoy the fruit of the work for the benefit of all, in order to promote culture and knowledge; and antitrust law – which recognizes, inter alia, the possibility of approving a cartel, subject to conditions aimed at protecting the public from the abuse of monopolistic power. Copyright law is currently governed by a relatively new statute – the Copyright Law, 5768-2007 (hereinafter "the Copyright Law"), which replaced the relevant British Mandate statute, while the issues concerning the activity of cartels are regulated by the Antitrust Law.

26. The activity of ACUM should be evaluated and examined according to these two perspectives. As mentioned in the introduction to our judgment, ACUM was established for the collective management of copyright in musical works. From the perspective of copyright, that management should be for the benefit of authors and in the name of protecting their rights, but without neglecting the public's ability to enjoy the works; from the perspective of antitrust law, that management, which constitutes a cartel and monopoly, should be for the benefit of the public and should ensure that public access to the works is not unreasonably denied. More specifically, in order to comply with the provisions of sections 9 and 10 of the Antitrust Law with regard to the approval of a cartel, it has to be ensured that the benefit to the public from such collective management substantially exceeds the damages that it might cause to all or some of the public.

27. In many ways, the controversies that have arisen before us pinpoint once again the dilemmas that underlie copyright law. Recognition of copyright is aimed at encouraging the creation and dissemination of expression but also at balancing this benefit against the costs of limiting access to protected works (cf: Guy Pesach, The Theoretical Basis for the Recognition of Copyright, 31 Mishpatim 359, 410 (2001)). In the words of Vice President (retired) S. Levin:

"In Anglo-American law the basic justification for these laws is perceived as the desire to provide an incentive to the author in order to achieve maximum access to the work by the public at large. This is the heritage of Israeli copyright law" (CA 326/00 Holon Municipality v. NMC Music Ltd, PD 47(3) 658, 671 (2003)).

Copyright Management Corporations: ACUM as a Test Case

28. The case before us should be examined not only in light of the general principles of copyright law, on the one hand, and antitrust law, on the other hand, but also in light of the experience accumulated from copyright management through corporations established for such purpose. ACUM is a local corporation that was established back in pre-state Israel (see: Michael Birnhack, Colonial Copyright: Intellectual Property in Mandate Palestine 185-186 (2012)). Nevertheless, more broadly speaking it is merely one of many examples of corporations known as "copyright collection societies" or collective management organizations" (hereinafter "collective management corporations"). Such corporations operate in many countries and thereby provide an answer to a genuine need of authors who cannot routinely manage the grant of licenses to use their works, collect royalties, and enforce copyright law on those who infringe their rights. These corporations manage the rights of many authors collectively and thereby contribute to reducing the costs of negotiating with users and reducing enforcement costs. At the same time, the mechanism of collective management also benefits the public who uses the works because it allows bringing these works to the public on a regular basis. The collective management corporation typically offers users "a blanket license" in relation to the corporation's whole repertoire, thereby saving them the need to negotiate individually with each of the authors of works included in the repertoire. Such users are for the most part broadcasting stations owners, producers, hall owners, and others, through whom the works are made accessible to the public at large (see: Ariel Katz, Monopoly and Competition in the Collective Management of Public Performing Rights, 2 Din Ve'Devarim 551 (2006); Guy Pesach, Associations for the Collective Management of Rights – Another Look at Effectiveness and Fairness, 2 Din Ve'Devarim 621 (2006) (hereinafter "Pesach"); Walter Arthur Copinger, Copinger on Copyright, pp 1790-1794 (16th ed., 2011) (hereinafter "Copinger")).

29. Alongside recognizing the fact that collective management corporations are a well-known and widespread phenomenon, the concern that accompanies their activity is also acknowledged. Collective management of copyright involves a significant challenge from the perspective of antitrust law, considering the fact that it has centralized characteristics and therefore raises the concerns involved in the creation of a cartel, including the concern of acquiring and abusing monopolistic market power, either by demanding high royalties or in other ways. Against those disadvantages, we usually weigh the necessity of such activity for effectively managing copyright and it is therefore common to regard collective management corporations as "natural monopolies" (and, to a certain extent, something of a necessary evil) and to allow them to operate subject to supervisory mechanisms and regulation (see: Ariel Katz, The Potential Demise of Another Natural Monopoly: Rethinking the Collective Administration of Performing Rights, 1 J. Comp. L. & Econ. 541, 544-548, 551-553 (2005) (hereinafter "Katz"); Copinger, pp 1798-1800). It is along these lines that the activity of the two major collective management corporations in the U.S. – the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc (BMI) – is regulated by special judicial orders ("consent decrees") as part of antitrust law. These orders, whose conditions are revised from time to time, place collective management corporations under a host of constraints in order to ensure their compliance with the competition criteria set forth in antitrust law (for a discussion of the supervisory mechanisms of collective management corporations in the U.S., see: Stanley M. Besen, An Economic Analysis of Copyright Collectives, 78 Va. L. Rev. 383 (1992).) Similarly, collective management corporations that operate in Europe are under supervision, subject to the antitrust law of the European Union (see: Lucie Gaibault & Stef Van Gompe, Collective Management in the European Union, in Collective Management of Copyright and Related Rights 135 (2nd edition, Daniel Gervias ed. 2010); Copinger, pp 1801-1808).

The Conditions in Dispute: Public Directors and the Exclusion Mechanism

30. As already mentioned, the controversy before us does not concern the basic authority for ACUM’s operation as a cartel but rather the conditions that have been prescribed for its activity, or, more precisely, two of these conditions. In that sense, the discussion is based on the accepted notion, explained above, which views collective management corporations as something of a "natural monopoly," the existence of which is essential but their activity necessitates supervision and restraint in order to protect the public from the potential negative effects of substantial market power being accumulated by a single entity. The conditions for ACUM’s operation should therefore express the balance between the proprietary right of authors and the public interest in a market free of monopolistic influences, which acquires a unique aspect with regard to the market of creative works that naturally need to be accessible to the public (albeit for a fee).

31. Ultimately, the hearing in this case revolved around two matters: the requirement to appoint directors, and the scope of the rights exclusion mechanism. Both of these need to be examined from the unique point of view that combines the purposes of copyright law with those of antitrust law, paying attention to the balance that both those sets of laws seek to achieve between individual proprietary rights and economic interests, on the one hand, and the public interest, on the other hand.

The Appointment of Public Directors: Between the Public Interest and the Interest of the Rights Owners

32. The first condition that was prescribed for the approval of the cartel was to appoint public directors who will constitute a third of the total number of board members (which in practice means appointing four such directors). As aforesaid, ACUM has objected to this condition both in principle and in practice.

33. In principle, ACUM asserted that it is not a public company and therefore there is no justification to enforce on it a supervisory mechanism appropriate to public companies. In this context, it was further asserted that its board of directors includes a delicate balance between all the sectors ACUM represents, which in itself ensures protection of the public interest (article 30.2 of ACUM's current articles of association provides that the company's board of directors shall consist of nine members that include two lyricists, a writer, two easy listening composers, one composer of concert music, one publisher, and two external directors). ACUM also noted that its corporate governance is dispersed and therefore does not raise an "agency problem" of the type with which the mechanism of external directors is designed to deal. ACUM also asserted that in any event it has in place adequate mechanisms to resolve potential disputes and conflicts of interest, including an internal arbitration mechanism as well as the Permanent Conditions that prohibit ACUM from discriminating between its members. According to ACUM, the appointment of public directors would "dilute" the authors' control over their property rights. In practice, ACUM further noted the costs involved in the appointment of the requisite number of public directors, which lead ACUM to be willing to appoint no more than two public directors.

34. According to the Director-General, the need to appoint public directors stems from two factors: first, it will help ensure that ACUM serves the interests of all its member authors, taking into account the interests of individual authors rather than only the group interests of certain categories of authors. Second, the appointments will ensure that at least some of the directors have professional skills in the area of corporate management.

35. With regard to the proportion of public directors on the board, the Director-General's position is that the requirement that no less than a third of the board would be comprised of external directors is justified, since the need for external directors is specifically greater under ACUM’s circumstances, where the corporate structure is dispersed and lacks a distinct controlling shareholder. In this respect the Director-General went on to explain that, in his opinion, ACUM's members need even more protection than "ordinary" shareholders, considering the fact that their livelihood depends on the corporation and they cannot sell their shares to "realize their profits."

36. Having reviewed all this, we have reached the overall conclusion that ACUM's case in this respect should be dismissed.

37. The appointment of public directors – that is, directors who are not employees or shareholders of the company – is one mechanism which allows supervising the behavior of the company, its managers, and its controlling shareholders and helps dispel the various agency problems involved in its activity (see: Irit Haviv-Segal, Company Law, 429, 438 (2007) (hereinafter "Haviv-Segal")). It can be said that the essential contribution of the public director lies in the "external dimension" that he brings to the board's work – as someone who reviews matters referred to the board from a broad, objective, and balanced perspective that also takes into account the public implications of its activity. The provisions of section 240(a1)(1) of the Companies Law, 5759-1999 (hereinafter "the Companies Law"), according to which a public director shall have professional skills or accounting and financial expertise, ensure that his appointment will add a professional dimension to the company that will contribute to its satisfactory management (see: Joseph Gross, The New Companies Law, 386-387 (Fourth Edition, 2007) (hereinafter "Gross")).

38. The mechanism of appointing public directors is typically operated in the context of the activity of public companies – section 239 of the Companies Law requires a public company to appoint at least two public directors, whilst sections 114 and 115(a) of that Law require a public company's board of directors to appoint an audit committee from amongst its members, on which all the public directors shall serve. In addition, there are laws that impose a duty to appoint public directors to serve on the board of certain corporations whose shares are not held by the public, but whose activity has other public importance. Thus, for example, a mutual fund must appoint at least five directors to serve on its board and the proportion of public directors is the same as required of a public company (see: section 16(a) of the Joint Investments Trust Law, 5754-1994); while an insurance company, as defined in the Control of Financial Services (Insurance) Law, 5741-1981, must appoint public directors who will constitute a third of the total members of its board (see: section 2(1) of the Control of Financial Services (Insurance) (Board of Directors and Its Committees) Regulations, 5767-2007). In addition, the board of directors of a company that manages provident funds is required to appoint an investment committee for each fund it manages, the majority of committee members being qualified to serve as public directors (see: section 11(a) of the Control of Financial Services (Provident Funds) Law, 5765-2005).

39. Having reviewed the case, we are satisfied that the condition concerning the appointment of public directors to serve on ACUM's board is consistent with the purpose underlying the approval of the cartel. Although ACUM is not a public company, it does essentially manage a resource that has clear public aspects. From the point of view of the authors, ACUM provides an essential service, without which it would be difficult for them to produce financial benefit from their works. In many ways, that is also the case from the point of view of the public at large: the protected works belong to the authors (and to whoever has acquired rights in them) but it is important that they are used in such a way that will also benefit the general public. Indeed, these public aspects of ACUM's activity underlie its approval as a cartel. At the same time, ACUM's monopolistic characteristics and its status as a cartel in the domain of musical copyright grant it a public dimension in and of themselves. The requirement to appoint external directors to provide a further layer of supervision over ACUM's activity is therefore called for and inherent to the rationale of the cartel's approval in order to protect both authors and users. It should be noted that making the approval of a cartel conditional upon the appointment of external directors, even when the corporation in question is not a public corporation in the ordinary sense, is not unprecedented. Thus, for example, the approval as a cartel of the recycling corporation that was established as a joint venture of manufacturers and importers of soft drinks in Israel was made subject to a similar condition (see section 4 of the Conditions for the Operation of the Recycling Corporation, as approved in AT (J'lem) 4445/01 Shufersal Ltd v. The Director-General of the Antitrust Authority (November 5, 2001)). The same applies to the approval as cartels of two other collective management corporations: the Israeli Federation of Independent Record Producers Ltd. (hereinafter "PIL") (see section 11.3 of the Conditions for the Operation of the Israeli Federation of Independent Record Producers Ltd., as approved in AT (J'lem) 3574/00 The Israeli Federation of Independent Record Producers Ltd. v. The Director-General of the Antitrust Authority (April 29, 2004)), and the Israeli Federation for Records and Cassettes (hereinafter "IFPI") (see: section 13.3 of the Conditions for the Operation of the Israeli Federation for Records and Cassettes Ltd, as approved in AC (J'lem) 705/07 The Israeli Federation for Records and Cassettes Ltd. v. The Director-General of the Antitrust Authority (February 3, 2011).

40. With regard to authors' protection, there appears to be grounds to the argument concerning the importance of protecting the common interests of ACUM's members, regardless of the “category” to which they belong. Public directors can express "cross-category" interests that concern the benefit of authors generally in their relationship with ACUM, as opposed to the benefit of particular categories of authors. Moreover, without laying out hard and fast rules, it can be said that there is prima facie grounds to the assertion that the importance of the public director institution is in fact greater in a corporation characterized by dispersed ownership, in the absence of controlling shareholders, as is the case with ACUM. The agency problem in companies of this type is characterized by interest gaps between management and shareholders (as opposed to interest gaps between the controlling shareholder and minority shareholders, which are typical of companies that have controlling shareholders). Some view the appointment of public directors as a central mechanism for dealing with such gaps (see Haviv-Segal, pp 438-439). Clear expression of this distinction can be found in the First Schedule to the Companies Law, which contains suggested provisions for the corporate governance of public companies. Paragraph 1 of the Schedule prescribes the recommended percentage of independent directors, distinguishing between companies that do and do not have controlling shareholders. With regard to the latter, the Schedule provides that a majority of the directors should be independent, whilst in the former it provides that it is sufficient for a third of the directors to be independent.

41. Furthermore, even assuming that the present structure of ACUM's board of directors faithfully represents its member authors, that structure does not prima facie guarantee that the protection of authors will also take into account the public interest more broadly. Indeed, a public director's fiduciary duty to the company is no different than that of an ordinary director, in the sense that he too must act for the benefit of the company (see: Gross, p. 406; cf: CA 610/94 Buchbinder v. The Official Receiver, para. 43 (May 11, 2003)). However, the public director will presumably represent a broader, more objective point of view, cognizant of the public implications of the corporation's activity.

42. Moreover, as already explained, the appointment of public directors also has great importance as regards guaranteeing a minimum number of directors with professional managerial skills. In fact, ACUM itself acknowledged the professional advantages of appointing public directors even before the Tribunal's judgment was handed off and the revised version of ACUM's articles of association now require the appointment of two such directors. The fundamental aspect of this controversy has thus somewhat eroded and it has become a matter of extent and degree. We believe that the proportion of directors set forth in the Permanent Conditions – a third of the board members – is not excessive or unreasonable, considering ACUM’s character as a corporation whose ownership is dispersed and especially given the lingering concern of abusing monopolistic power.

43. This discussion, which is "internal" and concentrates on corporate and antitrust law, can be supplemented by an "external" discussion, based on the significance that entities with public aspects have from the perspective of public law. According to this Court's case law, a private corporation whose activity has clear public aspects might be regarded as a "hybrid" entity, which places it under additional duties over and above those it is subject to in accordance with private law. Care must be taken not to overextend the category of hybrid entities in order to avoid eroding the significance of acknowledging a public status and blurring the lines between the public and private spheres. Moreover, under the current circumstances, there is no need to rule on whether ACUM should be regarded as a hybrid entity and a complete discussion of the criteria for the recognition of an entity as hybrid is unnecessary. However, it should be noted that ACUM's activity does entail many of the criteria mentioned in previous case law as characterizing a hybrid entity. Thus, for example, in HCJ 731/86 Micro Daf v. Israel Electric Corporation Ltd PD 41(2) 449 (1987) (hereinafter "Micro Daf"), where the question of hybrid entities was discussed for the first time – in the context of the Electric Corporation's activity – the factors taken into account were the monopolistic aspect of the corporation's activity, the nature of the resource it manages, and the fact that statutory powers have been entrusted to it. These factors were not considered an "exhaustive list" and since then entities which lacked those characteristics, at least to the same extent, have also been recognized as hybrid (see: CA 294/91 Jerusalem Community Hevra Kadisha Burial Society v. Kastenbaum PD 46(2) 464 (1992)). For further discussion, see: Daphne Barak-Erez, Administrative Law vol. 3 - Economic Administrative Law 463-492 (2013)). With regard to ACUM, the monopolistic aspect of its activity is beyond dispute. In Israel, although there are other collective management corporations, including the abovementioned PIL and IFPI, the product they supply – licenses for the broadcasting and public playing of sound recordings – does not substitute the product ACUM supplies. As the Director-General stated in his declaration, ACUM has no direct competitors in its relevant market and although formally nothing stops authors from managing their works themselves, few of them find such course of action practical or worthwhile, so that in fact the vast majority of works for which royalties are paid in Israel are under the management of ACUM. The same applies to the implications that the resource managed by ACUM has on the general public. Although the licenses that ACUM offers are acquired by a relatively small category of users, those licenses feature the right to play the works in public (or make them otherwise available to the public). Hence, they have a very significant effect on public access to the works. In other words, the public aspect of ACUM's activity also derives from the fact that the product it supplies is not in fact the musical works themselves but rather the collective management mechanism, which facilitates (and to a great extent enables) playing those works in public and therefore constitutes a product of clear public importance. Finally, although ACUM does not exercise statutory powers, its approval as a cartel entrusts it with power that derives from a statutory decision established in the Antitrust Law. These characteristics, even if they are insufficient to define ACUM as a hybrid entity in the ordinary sense of the term (and, as aforesaid, we have no need to rule on this issue), do support the basic justification for the Director-General's requirement under the current circumstances. Indeed, the appointment of public directors is ordinarily not imposed on a hybrid entity. However, the fact that ACUM constitutes an entity that owes important duties to the public can serve as a factor in the Director-General's decision to subject a cartel to conditions.

The Rights Exclusion Mechanism

44. The other condition at the center of the litigation before us concerns, as aforesaid, the rights exclusion mechanism. Underlying the controversy were two questions: first, is the requirement for the consent of all joint authors of a work in order to exclude it from ACUM's repertoire justified or should that power be held by each of the authors individually? Second, how delicate and precise should the "segmentation" mechanism be with regard to the exclusion ability, as regards the distinction between different types of uses? We shall clarify those questions below.

The Rights Exclusion Mechanism: the Consent of All Authors or a Personal Right?

45. The requirement that the exclusion of the work should be conditional upon the agreement of all its authors prima facie imposes a constraint on the right of each of the authors to control the rewards of his work. For that reason it has been criticized by EMI Israel and Anana. In contrast, the position of the Director-General and ACUM is that making the exclusion conditional upon the consent of the other authors is essential to protect both users and authors. The main argument regarding the protection of users relates to the concern that a "liberal" exclusion mechanism that would give an independent exclusion right to each author would impair ACUM's ability to offer sweeping licenses and thereby undermine the basic justification for its existence from the perspective of public interest. With regard to the protection of authors, it is asserted that the ability to exclude rights without the agreement of the other authors would encourage abuse of that power by "powerful" authors at the expense of the other authors of the work. ACUM explained that if each author of a joint work could exclude his rights from ACUM’s repertoire without the agreement of the other authors, it would grant veto power to that author to prevent works from being used by those to whom other authors wish to grant permission. ACUM also emphasized that where the rights in a work are vested in several authors veto power will forever be involved and the remaining question is only which veto power is least damaging: that of an author wishing to prevent the work's exclusion and leave it with ACUM's repertoire, or that of the excluding author to prevent any use of a work contrary to the position of the other authors. According to ACUM, the former is infinitely preferable. Having reviewed the case, we have reached the overall conclusion that we accept the position of the Director-General and ACUM in this respect.

46. We accept as a starting point for our discussion the (reasonable) assumption that the rights in the type of works that ACUM manages are often shared by several authors. This can be illustrated by the typical case of a song. According to copyright law, every song is made up of several independent works, the rights in each of which are vested in different authors – the words of the song are a literary work owned by the lyricist; the music is a musical work owned by the composer. Moreover, there are also cases in which several composers or lyricists collaborate in the process of creating a work and in such cases the circle of rights owners expands even further. Considering this situation, it is easy to understand EMI Israel and Anana's grievances: making the exclusion power conditional upon the agreement of all authors undoubtedly burdens the individual author who seeks to exclude his work. However, this does not suffice. The question before us is whether this burden is justified, considering the purpose of the permanent permit – and our answer to that question is in the affirmative.

47. In order to discuss this question it is necessary to return to the original reasons that led to managing rights through a corporation like ACUM. The most important tool available to ACUM for the collective management of rights is the grant of a sweeping license known as a "blanket license," the advantages of which in terms of transaction costs constitute the basic reason that legitimates ACUM's activity, despite difficulties in terms of antitrust law. Extending the ability to exclude rights from ACUM's management will naturally impair its ability to offer blanket licenses and thereby reduce the public benefit from its operation as a cartel. Over-extending that possibility will impair the public benefit from ACUM’s activity to such extent that it will no longer be the case necessarily that the benefit substantially exceeds the potential damages to the public interest from the cartel's operation. Having considered matters, we are satisfied that the grant of a personal "exclusion right" to each author would amount to such over-extension. Considering the typical ownership structure of musical works, an exclusion mechanism that is not conditional upon the agreement of the other authors effectively means granting authority to a single author, regardless of his part in the work, to exclude the work as a whole from ACUM's blanket license regime. Thus, a user who wishes to make lawful use of the work would have to negotiate with the excluding author in addition to acquiring the sweeping license from ACUM. Such a state of affairs would greatly limit the benefit of the cartel for users to the point of raising doubts as to whether the cartel is indeed "in the public interest," as required by section 9 of the Antitrust Law whenever a cartel is approved.

48. Furthermore – accepting the position whereby the consent of all the authors of a joint work is unnecessary to exclude it would also raise difficulties for the relationship between the authors themselves as it may enable some of the authors – usually the more "powerful" ones – to exploit their exclusion power at the expense of the other authors. This may occur in situations where the user has already acquired most of the rights to use the work by means of a blanket license and merely needs to "supplement" the excluded right. This may give rise to phenomena of "extortion" and "free-riding," so that the remaining owner of the right will demand exceptionally high license fees for his share. We have already discussed the problem of such a state of affairs from the user's point of view. However, in truth, the problem also exists from the perspective of the excluding author making excess profit at the expense of the other authors. This difficulty is intensified in light of the fact that the ability to exclude rights from ACUM's management – given the complexity involved in negotiating with users individually – would essentially be of benefit to powerful rights owners, like large publishers, as opposed to individual, independent authors.

49. It should be noted that we have so far used the expression "joint authorship" in order to describe all the cases in which the rights in a particular song are shared by several authors, although in fact it is prima facie possible to distinguish between two models of joint authorship. One model, of "joint authorship in indefinite shares," relates to two or more authors who collaborated in such way that it is impossible to distinguish the share of each of them in the finished work. In such a case, the work is considered a "joint work" according to section 1 of the Copyright Law. The other model, of "joint authorship in definite shares," involves a finished product, like a song, which is made up of several units, each of which was created by a different author and is a protected work in itself (for example the words of the song, which were written by one author, constitute a literary work; while the music, which was composed by another author, constitutes a musical work). The authors in such a case are not regarded as joint authors according to the Copyright Law, despite the fact that their relationship is substantively founded upon sharing. It is interesting to note that the American copyright law does distinguish between works where the shares of the various authors are inseparable and works where the shares of the various authors are interdependent. Nevertheless, both situations are considered "joint work" (see: Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.4 (2002) (hereinafter "Nimmer"). In any event, for the purpose of the present discussion concerning the ability of authors to exclude rights from ACUM’s management we need not consider this distinction. In both cases, splitting the licensing authority would place practical obstacles for using the joint work.

50. In fact, the controversy before us derives not only from the different interests that the various parties represent but also from the fact that the Copyright Law does not expressly regulate the issues to which joint authorship gives rise (see: Michael Birnhack, A Cultural Reading: the Law and the Creative Field, Authoring Rights: Readings in Copyright Law 83, 105-106 (Michael Birnhack & Guy Pesach, Editors, 2009) (hereinafter "Birnhack"); Gilad Wexelman, Corporate Creation and Cooperative Creation, Authoring Rights: Readings in Copyright Law, 167, 177-178 (2009) (hereinafter "Wexelman"). Cf Margaret Chon, New Wine Bursting from Old Bottles, Collaborative Internet Art, Joint Works and Entrepreneurship, 75 Or. L. Rev. 257 (1996)). In fact, the only arrangement the Law establishes with regard to joint works (as defined in section 1) relates to the period of protection of the work, which is measured according to the age of the surviving joint author, plus 70 years (section 39 of the Copyright Law).

51. Additionally, reference to comparative law does not yield an unequivocal answer, considering the numerous potential approaches to this issue. Thus, for example, subject to certain restrictions, the law in the U.S. vests each of the joint authors with an independent right to permit use of their work even without the consent of the other authors, provided that they are paid their proportional share of the profit produced from the work (see: Nimmer § 6.10; Russ VerSteeg, Intent, Originality, Creativity and Joint Authorship 68 Brooklyn L. Rev. 123, 149-150 (2002)). In contrast, according to the approach prevailing in English law, the agreement of all authors is necessary in order to permit use (see: Copyright, Design and Patents Act 1988, section 173(2). See also: Copinger, p 334.) For the purpose of the ruling before us, we must be cognizant of the fact that the variety of existing approaches regarding copyright management of joint works attests not only to the great complexity of the matter but also to the fact that recognizing authors' proprietary rights does not inherently dictate a particular result.

52. Since there is no specific regulation of the issue of jointly owned copyright within the Copyright Law, we may turn to legislation in other contexts concerning the joint ownership of property rights. Detailed regulation of this sort exists regarding the joint ownership of land in sections 27 to 36 of the Land Law, 5729-1969 (hereinafter "the Land Law"). According to section 9(e) of the Movable Property Law, 5731-1971 (hereinafter "the Movable Property Law"), arrangements concerning joint ownership of land essentially apply to movable property too, "save as may be otherwise provided in a co-ownership agreement." By virtue of section 13(a) of the Movable Property Law, such arrangements also apply to joint ownership of "rights." Nevertheless, reference to the Land Law with regard to the legal regime governing joint authorship should be made with care. As Prof. Michael Birnhack has noted:

"Even if a model of joint authorship is prescribed, the socio-legal institution can be designed in various ways, ranging from management based on the decisions of all owners, through consent-based management, to each author having freedom of use. Selecting the appropriate point on this range should be influenced by an understanding of the law concerning the creative process and the reciprocal relationship between joint authors, between each of them and the work, or anywhere else where the work and its significance are formed" (Birnhack, p 106).

Similarly, Dr. Gilad Wexelman has also written:

"A joint work raises problems of a different type, when compared with the joint ownership of tangible resources and applying the doctrines that exist regarding joint ownership of tangible resources to joint authorship is therefore improper and inappropriate. These doctrines do not provide the necessary solutions for joint authorship. The inference deriving from this is that it is appropriate to adopt a broader, different conception of the joint authorship process, rather than a conception influenced by the private property model" (Wexelman, p 178).

53. One way or the other, before we seek to draw an analogy based on the arrangements relating to joint ownership of land, it is important to emphasize that we need not consider the legal regime that governs the relationship between joint authors as an independent issue. The question of joint authorship should be analyzed in the case before us merely in the particular context of a joint work's management by a collective management corporation like ACUM – which naturally goes beyond the default rules that apply to joint authorship. In any case, under the circumstances, reference to the existing legal arrangements regarding the management of joint rights should serve merely as a framework and a starting point for the discussion.

54. The arrangement prescribed in the Land Law concerning joint ownership is based on a concept of management by majority decisions, except for matters that go beyond ordinary management and use, in which unanimous agreement is required. In this respect, section 30 of the Land Law provides:

(a) The owner of a majority of the shares in any joint property may determine all matters relating to the ordinary management and use of the property.

(b) A joint owner who considers himself aggrieved by a determination under subsection (a) may apply to the Court for directions and the Court shall decide as seems just and expedient under the circumstances of the case.

55. The joint owners of a land can agree upon a different method for the management of their rights but, as provided in section 29 of the Land Law, this is the arrangement that applies "unless otherwise provided in a joint ownership agreement" (subsection (c)) (see also: CA 810/82 Zol Bo Ltd. v. Zeida PD 37(4) 737 (1983); CA 663/87 Nathan v. Greener PD 45(1) 104 (1990)).

56. At the same time, section 31(a)(1) of the Land Law provides that each joint owner may, without the consent of the other joint owners, make reasonable use of the joint property, provided that he does not prevent another joint owner from conducting such use. In other words, none of the joint owners of land may stop his fellow owners from using the property, so long as it applies to reasonable use.

57. What can be learned from these arrangements for the case in question? Applying the arrangement prescribed in section 30, mutatis mutandis, leads to the conclusion that the requirement of a "unanimous" decision is appropriate insofar as management or use out of the ordinary is involved. It can therefore be argued that the management of copyright through an entity like ACUM is the ordinary, accepted method worldwide for the management of individual authors' rights, and departing from that arrangement therefore constitutes an "extraordinary" decision outside the ordinary realm of rights management. It should therefore be made unanimously, exactly as provided by the conditions that have been approved.

58. Indeed, as stated above, the considerations relevant to joint ownership of land are not necessarily apt with respect to joint authorship. Thus, for example, the arrangement contained in the Land Law can be seen as "hostile" to a state of joint ownership, recognizing that joint ownership of land may burden its efficient management. Section 37 of the Land Law therefore provides that "each joint owner of immovable property is entitled at any time to demand the dissolution of the joint ownership." Yet, joint authorship is not a "pathological" condition. On the contrary, the process of authorship frequently involves collaboration – either direct or indirect – between several authors and dissolving the joint authorship should not be regarded as socially desirable. It is also likely to be more difficult to appraise the value of the work for the purchase of one of the joint authors' shares than severing the joint ownership of land. Consequently, as already mentioned, the analogy from the Land Law should be drawn with all due care. However, even taking into account the difference between joint ownership of land and joint authorship, it does appear that the requirement of unanimous consent for the exclusion mechanism is proper. Particularly because joint authorship is a "natural" condition and typical of many works, it is appropriate to be apprehensive about an exclusion mechanism that is based on each of the authors having an individual right of action, reinforcing the status of strong authors and burdening public access to the works, as explained below.

59. Examining the rule with regard to the reasonable use of jointly owned land also leads, prima facie, to a similar conclusion. By drawing an analogy based on section 31(a)(1) of the Land Law it can be inferred that leaving the work under the management of ACUM constitutes reasonable use, considering the fact that it is the typical, widespread method for the collection of royalties. According to this logic, there appears no justification for adopting an exclusion mechanism that enables a joint author, who so desires, to prevent his fellow author from making reasonable use of the work, by excluding it from the collectively managed repertoire.

60. It should be noted that this Court has previously considered the question of collaboration between joint authors, in CA 1567/99 Sivan v. Sheffer PD 57(2) 913 (2003) (hereinafter "Sivan"). Under the circumstances of that case, we recognized the right of each of the joint authors to terminate a contract that had been made in connection with the use of the rights when the contract was breached. Can it therefore be inferred that it would be proper in the current case to permit each of the joint authors to individually decide on exclusion? Despite the apparent similarity between the situations, in fact they are quite different and the conclusion should therefore be different too. In Sivan the issue was the rescission of a contract due to its breach and ipso facto it was possible to rely on the principle that whosever right has been infringed on is not required to forgive the infringement. This result is supported by considerations deriving from the law of obligations and in particular from the issue of multiple creditors. In contrast, in the case at hand, the question is posed for the purpose of delineating the ordinary rules of management, in the absence of any alleged breach. The relevant considerations are thus different, and so is the result that they dictate. Indeed, in Sivan the Court has made a clear distinction between these two questions. In fact, it noted that it was not ruling on the question of unilateral exercise of copyright in a joint work, which is more similar to the present case, and it went on to state that section 31(a)(1) of the Land Law prima facie makes it possible to adopt a flexible approach in such cases (Sivan p 942).

61. Taking a broader view, it appears that the position presented to us by EMI Israel and Anana does not give proper weight to the effect of high transaction costs and free-riding in the management of multiple ownership resources, a phenomenon referred to as "the tragedy of the anti-commons" alongside the better-known term "the tragedy of the common property" or "the tragedy of the commons" (see generally: Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv L. Rev 621 (1998); James Buchanan & Yong J. Yoon, Symmetric Tragedies: Commons and Anticommons, 43 J. L. & Econ. 1 (2000)). Indeed, the narrow exclusion mechanism that the Tribunal approved appears more suitable for dealing with these phenomena. In connection with joint authorship, “the tragedy of the anti-commons” is manifested in sub-optimal use of the work as a result of uncoordinated behavior by its owners. In a legal regime where a license to use a particular work necessitates the agreement of all its owners, each of the owners might act to maximize his own profits by claiming a high fee for agreeing to its use, without considering the negative externality that such behavior for the other owners. Ultimately many users will find it difficult to meet the overall price required of them and the work will be used to a lesser extent, thus harming both the joint authors and the public, whose access to the work has been limited. It is common to believe that the solution to this problem is one of the major advantages embodied in the activity of collective management corporations (see: Katz, p 561; Francesco Parisi & Ben Depoorter, The Market for Intellectual Property: the Case of Complementary Oligopoly in The Economics of Copyright 162, 168-169, Wendy J. Gordon & Richard Watt eds. 2003 (hereinafter "Parisi & Depoorter")). Since dealing with the market failings associated with joint authorship is one advantage that justifies the monopolistic activity of corporations like ACUM, great importance is attributed to the design of an exclusion mechanism that will not frustrate that advantage by vesting veto power in each joint author who wishes to preclude use of a joint work.

62. Ultimately, even under the narrow exclusion regime joint authors can agree in advance, contractually, on the scope of their understandings with regard to the work's exclusion from collective management. In fact, the narrow exclusion regime merely provides the default with regard to the inclusion of a joint work in the repertoire managed by ACUM. Insofar as the authors wish to agree on a different decision-making mechanism with respect to the management of joint works, they are at liberty to do so. Presumably such an arrangement, made before any of the parties is in a position for extortion or "free-riding," will help limit the coordination difficulties asserted by EMI Israel and Anana with regard to obtaining the consents necessary for the exclusion of a joint work. In view of the aforesaid, the default mechanism prescribed – according to which in the absence of an agreement between the joint authors to the contrary, the consent of all authors is necessary to exclude the work from management by ACUM – is appropriate.

The Rights Exclusion Mechanism: the Degree of Segmentation and the Distinction between New and Old Media

63. As mentioned above, the arguments by EMI Israel and Anana also revolved around the fact that the "exclusion packages" defined in the Permanent Conditions do not distinguish between uses for the purpose of "old media" and uses for the purpose of "new media." In this respect Anana reiterated the case that it made before the Tribunal concerning the impairment of authors' ability to exhaust the full financial potential embodied in their works by excluding the works from management by ACUM solely with regard to "new media," and concerning the damage caused to Anana itself, having prima facie relied upon the previous exclusion mechanism in excluding rights that it will now have to restore to ACUM’s management.

64. In contrast, the Director-General and ACUM argued before us that categorizing the necessary permissions according to types of media will allow ACUM members to abuse their power against users by forcing them to purchase specific uses (for example using the work on a cellular platform) in addition to the general fee for the license awarded through ACUM. In addition, ACUM mentioned that the adoption of a "liberal" exclusion regime enabling a precise "segmentation" of the excluded uses of any work would involve a significant logistic and financial burden on its ability to manage copyright of its repertoire.

65. Deciding between the conflicting positions in this respect has proven to be more complex than the parties' arguments revealed. In truth, as we explain below, both positions are extreme and fail to fully address the difficulties they entail. Consequently, at present, we believe that the exclusion mechanism approved by the Tribunal should be upheld, provided that the question of excluding "new media" – subject to conditions and constraints – will be comprehensively reviewed towards the renewal of the cartel’s approval. We shall explain our said position.

66. The present exclusion mechanism, as expressed in section 2.3 of the Permanent Conditions, enables an author to exclude his rights completely, in respect of all their potential uses. Moreover, the mechanism allows excluding the rights in respect of some of the uses, yet solely in accordance with one of four alternatives – "the exclusion packages" that stand at the center of the discussion. Because of their importance, we shall lay them out in full below:

"2.3.1 Excluding the rights for audiovisual broadcasting, including synchronization and recording for the purposes of such broadcasting, and including the provision of interactive and/or on demand services and any similar service, including by television, Internet, telephony or mobile phone.

2.3.2 Excluding the broadcasting rights by means of audio, including recording for the purposes of such broadcasting, and including the provision of interactive and/or on demand services and any similar service, including by television, Internet, telephony or mobile phone.

2.3.3 Excluding the right of copying. For the avoidance of doubt, it is clarified that excluding the right of copying does not include the right of copying for broadcasting purposes.

2.3.4 Excluding the right of imprinting and/or recording. For the avoidance of doubt, it is clarified that excluding the right of imprinting and/or recording does not include the right of imprinting and/or recording for broadcasting purposes".

67. The alternatives at the center of the present controversy are the first and the second (and to a limited extent also the fourth, insofar as the exercise of the right of copying is aimed at integrating a musical work in the soundtrack of an audiovisual work). These alternatives deal with uses that make the work available to the general public – its broadcasting on television or radio, making it accessible by means of "streaming" technology, which enables viewing or listening to content through the Internet without copying it to the user's computer, and the like. The main distinction that the exclusion mechanism makes in this context is between presenting the work by audiovisual means and presenting it by audio only. Thus, for example, given the present situation, an author can be represented by ACUM for the purpose of playing songs on the radio but not for using them in the format of television content.

68. Presumably, maximum protection of the author's rights and his financial interests should have enabled every author to make specific exclusion decisions as much as possible – even with reference to a specific work in a particular use. Along these lines, ACUM's present exclusion mechanism permits, as aforesaid, limited "segmentation" by types of use. However, it has been argued before us that this does not suffice. The dispute revolved around the degree of precision required by segmentation. While the present segmentation mechanism essentially distinguishes between audio and audiovisual uses, EMI Israel (supported by Anana) also wishes to distinguish between "old media" – like television and radio – and "new media" – such as the Internet and cellular phone services. This position was presented to us as warranted by technological progress and the launching of new channels to use works, as well as the protection of the author's prerogative to manage the works he owns. However, as we explain below, this position raises fundamental and practical difficulties and thus cannot be adopted in the format in which it was presented.

69. It should be stated that the question of excluding "new media" should first be considered in light of the two perspectives that fashion the discussion as a whole – that of copyright law and that of antitrust law. However, in this context, it is important to bear in mind another point of view which relates to the interface between law and technology and focuses on the adaptation of the legal framework to technological developments as well as its implications to future technological development, for better or worse (see and compare: Dotan Oliar, The Copyright-Innovation Trade-Off: Property Rules, Liability Rules and Intentional Infliction of Harm, 64 Stan. L. Rev. 951 (2012)).

70. At the outset, we should consider the fact that the ability to exclude "new media" that EMI Israel seeks to adopt relies primarily on a technological distinction between "old" and "new" communication platforms. This distinction is replete with difficulties. The world of communications is characterized by constant, rapid technological development. More importantly, the technological aspect of this area is characterized by a phenomenon sometimes called "technology collapse": with the development of technology the walls that separate various media platforms gradually collapse and different types of technology "collapse" into each other, creating new interfaces. Thus, for example, a movie that is distributed through the Internet is also available for viewing on a smartphone, while traditional radio stations also broadcast songs and programs by streaming technology over the Internet. Given this technological reality, the distinction between "old media" and "new media" is not dichotomous, nor is it permanent or stable. In fact, EMI Israel and Anana did not even explain how these categories should be defined in their view, and settled for giving clear-cut examples (such as using a song as a ringtone), which were insufficient to delineate the boundaries of the distinction. Their case therefore left many practical questions unanswered. For example, no explanation was given as to whether the transmission of television broadcasts through the Internet to be viewed on smartphones would, according to the proposed approach, require a license for "new media" or "old media" or in any event how would this example be classified to one category or the other. The rapid, constant development of new communication technology guarantees that questions of this type will not remain theoretical. In this context, we should note the interesting case of the American company MobiTV, which at the beginning of the 21st century developed technology that enabled receiving satellite or cable broadcasts and viewing them on mobile phones. A dispute (which gave rise to several legal proceedings) arose between MobiTV and ASCAP, one of the two largest collective management corporations in the U.S. The dispute concerned the purchase of a blanket license necessary to legitimate the transmissions, as a result, among other things, of MobiTV's objection to being charged a "new media" rate even though the content it offered its customers was the same as broadcast by traditional means (although ultimately the judgment did not rule on this question directly. See: United States v. ASCAP, 712 F. Supp. 2d 206 (SDNY 2010)). With regard to the controversy relating to the classification of MobiTV's services as "new media," see also its preliminary response in the legal proceeding it initiated (Applicant Mobitv, Inc's Pre-Trial Memorandum at 25, United States v. ASCAP, 712 F. Supp. 2d 206 (SDNY 2010)).

71. Insofar as the distinction between "new media" and "old media" is intended to extend to situations in which the content of radio and television programs is transmitted through the Internet to computer screens or by cellular phone services to mobile phone screens, adopting this distinction is likely to have a "chilling effect" on the use of the works in "old media" too. This is because users would presumably refrain in advance from integrating excluded works in productions intended for "old media," if only given their concern of future marketing constraints in "new media." Thus, for example, when a television program is produced, certain songs might not be included in it – as a cautionary measure – so as not to impair the possibility of broadcasting the program over the Internet too. Such indirect implications are not always clear "in real time" to an author who wishes to exclude his work, but recognizing them might also be weighed against the distinction proposed by EMI Israel and Anana.

72. Another aspect to be considered is the likely implications of the exclusion mechanism on cyberspace users. In their arguments before us EMI Israel and Anana concentrated on institutional and corporate users, such as large communications companies, thereby presenting only a partial perspective on the matter in dispute. However, the exclusion mechanism they sought to adopt is not intended to apply only to such users. In fact, a sweeping exclusion of "new media" uses is likely to lead, without distinction, to difficulties for small website operators, including, for example, Internet radio operators, for which the ability to contract with collective management corporations constitutes a lawful, practical way for making regular use of a wide variety of works (and indeed some believe that the activity of collective management corporations is of especial importance for authorized use of musical works over the Internet. See, for example: Daniel Gervais, The Landscape of Collective Management Schemes 34 COLUM. J. L. & ARTS 591, 601 (2011) (hereinafter "Gervais, Landscape"). For a discussion of the importance of collectively managing works in a digital environment, see also: Recommendation 2005/737/EC on collective cross-border management of copyright and related right for legitimate online music services [2005] OJ L276/54 (hereinafter "the 2005 EC recommendation"); Proposal for a Directive of the European Parliament and of the Council on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online uses in the internal market (July 11, 2012) (hereinafter "the 2012 proposed directive"). See also Copinger, pp 1816-1826).

73. The effects of the requirement to distinguish the use of new technologies on making works accessible to the public should also be considered in view of past experience in similar contexts. Thus, for example, in New York Times Co. v. Tasini 533 US 483 (2001) (hereinafter "Tasini"), the US Supreme Court considered whether a newspaper (the New York Times) could upload articles by freelance writes to a computer database. After lengthy litigation, the US Supreme Court accepted the position of the writers who argued that the license previously given to the newspaper was merely for the purpose of printed publication, as opposed to electronic media. Following the judgment the newspaper had to acquire permission from the writers to publish their articles in the database. Yet, since the newspaper believed that taking such action would not be financially viable, the result in practice was the removal of the articles from the database, thereby denying public access to them. We do not need to go into the merits of the judicial ruling in Tasini insofar as it relates to the understandings between the newspaper and its writers at the relevant times. In fact, the ruling in Tasini is not directly relevant to the technological aspects of the publication format and is instead focused on whether uploading the articles to a general computerized database (of numerous articles from various newspapers and journals) could be construed as a newspaper publication (indeed, in another case of similar circumstances the Supreme Court of Canada held that a newspaper could copy articles published in its printed edition to digital CDs containing articles of that newspaper alone. See: Robertson v. Thomson Corp. 2006 SCC 43 (2006)). Nevertheless, the results of this case embody an important lesson. Taking the broader view it teaches us that an arrangement that does not take into account the dynamic nature of uses might prove to burden and damage the public interest. Taking a forward-looking view, it appears that experience teaches us that it is difficult to base licenses for use on a distinction between technologies as this might subsequently frustrate broad access to cultural assets (see also: Francesco Parisi & Catherine Sevcenko, Lessons from the Anticommons: The Economics of New York Times Co. v. Tasini, 90 Ky. L. J. 295 (2001-2002)).

74. What is the experience of other legal systems regarding the exclusion of "new media"? On the face of it, this is an important question, considering the fact that the challenges of technology in the area of copyright are by no means unique to Israel. However, for the reasons detailed below, the benefit of a comparative study has proven limited at the present stage of developments in the area.

75. Truth be told, reference to legal developments in Europe and the U.S. shows that the exclusion of "new media" is often recognized as possible. Presumably, this reinforces the position of EMI Israel and Anana. However, studying matters in depth indicates that this experience has limited application to the case before us, because, among other reasons, the issue under consideration here is still in the early stages of formulation, trial, and controversy in other systems too.

76. The two major collective management corporations in the U.S. – BMI and ASCAP – recently permitted two of their members (including global EMI) to exclude the rights owned by them from collective management for the purpose of certain aspects of the works' use in "new media" (as detailed on their websites – http://www.bmi.com and http://www.ascap.com). Yet, it is important to note that the ability to do so is embodied in the decisions of the corporations themselves rather than the result of external regulation. Moreover, the American rights management corporations operate in a different way than ACUM in the sense that they manage only one type of rights – public performance rights, which concern the permission to perform the work in public, to broadcast it, or to make it available to the public (but not the permission to copy the works or integrate them in audiovisual productions). That is, the starting point for the exclusion is a market of rights that is more "split" than the market in which users and authors operate in Israel. This background is likely to influence the factors relating to the desirable exclusion mechanism. Subsequently, it should be noted that reference to the exclusion of "new media" from administration by collective management corporations in the U.S. is not made in "all or nothing" terms, and in fact includes certain restrictions. For example, BMI's most up to date announcement on the matter (as published on its website) has clarified that the ability to exclude "new media" is aimed at cases where the work's use necessitates more than one type of license, while ASCAP has emphasized in addition that exclusion is possible with regard to making works accessible to the public exclusively through "new media," and does not apply to users that are broadcasters. Finally, and this is a major point, it cannot be ignored that some of the decisions on these matters are very recent (for example, BMI's announcement, of February 11, 2013, was published long after the litigation between the parties before the Tribunal had ended). It is therefore difficult to draw inferences from other legal systems' sustainable experience in this area. In fact, it can be said that at this stage the secondary effects of the "shock waves" that the new reforms have created for users have not yet been fully clarified, although the existence of such "shock waves" is already apparent. For example, we may point to a new development – lawsuits brought by users against management corporations to reduce the fee charged for a "blanket license," since "the blanket" no longer covers "new media" too (for instance, the claim brought against ASCAP by a large Internet radio company called Pandora at the end of 2012, which is still pending. For reports in the media about the case, see, for example: Don Jeffrey, Pandora Media Sues ASCAP Seeking Lower Songwriter Fees (November 6, 2012, available at http://www.bloomberg.com/news/2012-11-05/pandora-media-sues-ascap-seekin... Ed Christman, Pandora Files Motion to Keep Low Publishing Rates (June 20, 2013) available at http://www.billboard.com/ biz/articles/news/digital-and-mobile/1567890/pandora-files-motion-to-keep-low-publi-shing-rates).

77. In principle, European law permits a rights owner to join a collective management corporation even when he seeks to reserve the use of the rights on the Internet or through CDs (see: Commission Decision of August 6, 2002 in case COMP/C2/37.219 Banghalter/Homem Christo (Daft Punk) v. SACEM. See also: section 5(3) of the 2005 Commission recommendation and the 2012 proposed directive, mentioned above). Nevertheless, it is important to bear in mind that this arrangement is also the result of factors irrelevant to Israeli reality, primarily the desire to reach a standard, coordinated pan-European regulation where there are multiple collective management corporations.

78. Another factor that should be mentioned parenthetically involves the broader context in which the exclusion mechanism is embodied, with regard to the acceptance of the Conditions towards authors' freedom of action and freedom of choice. In this context, for example, it is significant that the Permanent Conditions ensure the right of each of ACUM’s members to contract with users individually and to offer them individual licenses to use certain works alongside the management of those works by ACUM, without excluding them from its repertoire (section 2.4 of the Permanent Conditions). This is similar to the U.S. practice and different from the norm in Europe, where most collective management corporations require exclusivity from their members in respect of all rights in their work (see: Gervais, Landscape, p 598). Indeed, it is possible that this course of action will not be frequently used and it is likely to be significant mainly from the perspective of users who do not require blanket licenses but rather individual licenses for certain works. However, from a more general perspective, this mechanism creates something of a balancing effect on ACUM's coercive power (see also and compare: Parisi & Deporter, pp 170-172).

79. More generally, it can be said that EMI Israel and Anana’s requirement to allow a sweeping exclusion of "new media" uses was based on the assumption that they are entitled to enjoy the fruits of the cartel while realizing the financial potential embodied in the works they manage to its fullest. That is a mistake. Indeed, once ACUM's activity was recognized as a cartel, which raises concern of abuse of monopolistic power against the public, it can no longer be said that ACUM members are entitled to fully exercise their proprietary rights while enjoying the benefits of the cartel. Although the cartel has been approved, its approval was made subject to conditions. Those conditions bear a price that ACUM and its member authors must pay in order to balance the excess benefits such membership confers and to ensure that the public is protected against the concerns involved in the cartel's activity. In fact, what we have previously stated regarding the exclusion of a work without the consent of all joint authors is also appropriate with regard to the issue of segmentation – the adoption of a segmentation mechanism that enables the exclusion of works based on a technological distinction between new and old media, without reservation, might reduce the benefit that ACUM’s activity yields for the public to such extent that may undermine the justification of its approval as a cartel.

80. We can therefore sum up and say that even if the ability to exclude "new media" uses should not be outright dismissed, EMI Israel and Anana have at present failed to lay a substantial foundation for the considerations and details of the exclusion mechanism they wish to adopt, regarding, inter alia, the ability of such a mechanism to provide an answer to the concerns indicated above. For that reason, we cannot accept their position. We should parenthetically emphasize that we have not ignored the possibility that the ability of an author to manage his works independently in the realm of "new media" might prove to be significant for some authors, including "small" or independent ones. The Internet is a flexible technological platform that is far more accessible to private agents than traditional media. It allows direct, convenient, and relatively easy communication between the rights owner and the individual user and thereby yields more direct patterns of consumption, sometimes dramatically reducing transaction costs and thus enabling "small" authors to profit from their works without the assistance of collective management mechanisms (see: Casey Rae-Hunter, Better Mousetraps: Licensing, Access and Innovation in the New Music Marketplace, Journal of Business & Technology Law 7(1) 35, 39 (2012)). However, this is merely one of many considerations and it has not been argued before us. Thus, for example, in contrast, the ability to exclude "new media" might actually be damaging to small authors in particular given the "dilution" it would generate in the value of blanket licenses. Consequently, as a general rule and as already mentioned, the question of "new media" should be revisited comprehensively as part of the cartel's re-approval at the end of the five-year period allotted to it. This is based on the understanding that one cannot rule out in advance the possibility that a delineated and limited format of "new media" exclusion (insofar as such a format is proposed in the future) might enable interested authors greater independence in the management of their works, without impairing the interests of the public at large, to an extent that will undermine the reasons underlying the cartel's approval.

81. In other words, the precise definition of the "exclusion category" sought in respect of "new media" is likely to have a decisive impact on whether the overall exclusion mechanism yields a balanced result. An important, albeit not the only, aspect of this definition relates to the phenomena of "technology collapse" and "content leakage" that we have already considered. As previously mentioned, a sweeping, generalized definition of "new media" regarding the exclusion ability would yield uncertainty in respect of the scope of the excluded uses, might lead to many users being charged double fees (not only by ACUM but also by authors themselves), and would create a "chilling effect" from the users’ perspective, as they might refrain from including an excluded work in productions intended for "old media" based on their concern that new media marketing will be limited in future. In contrast, a narrower definition of excludable uses, particularly a definition that focuses on uses designated for new media (for example the production of a ringtone based on an existing tune) would help reduce the awkwardness that numerous exclusion possibilities yield, moderate the negative effects of "content leakage" between different technological platforms from the users’ perspective, and reduce the damage caused to their financial interests. In this context, we may add that part of the negative experience accumulated from the operation of the broad exclusion mechanism (in the scope of the Provisional Conditions for ACUM’s activity before their 2009 amendment) resulted from the fact that it granted complete flexibility with regard to the exclusion format and did not consider the significance of the term "new media" nor did it regulate the boundaries of the exclusion options related to it.

82. To complete the picture it should be noted that the issue of excluding rights in "new media" from collective management as part of a cartel's approval in Israel has not arisen for the first time in ACUM’s case. As already mentioned, the Tribunal had authorized in the past the activity of two other collective management corporations that were also considered a cartel – PIL and IFPI. In both cases the conditions for the approval regulate the corporation members’ ability to exclude rights from collective management in accordance with a predetermined "exclusion basket," and include several categories concerning various Internet and mobile phone uses (see: section 3.3 of the conditions for the operation of IFPI and section 2.2 of the conditions for the operation of PIL). Recognition of this is prima facie relevant to the discussion. However, we should consider the fact that both those entities deal with the management of producers rights (the owners of sound recordings), an area which is not identical to the area in which ACUM operates (management of composers, songwriters, and arrangers rights). We expected the parties before us to refer to this comparison – one way or the other – but they failed to do so. Each of them clung to the position of "all or nothing" and sided, respectively, either with a complete exclusion of "new media" or an absolute negation of the ability to exclude new media uses. Thus, the option of excluding "new media" and the conditions for it were not fully addressed.

83. What emerges from all the aforementioned is this: reviewing the implications of excluding "new media" shows that it is not necessarily justified to completely negate the option to exclude works for the purposes of "new media." Nevertheless, there are clear indications that this applies only to a limited exclusion mechanism, which concentrates on certain types of "new media" uses and strives to minimize the harm caused to users. Such an exclusion mechanism cannot be based merely on a technological distinction between "old media" and "new media" which allows a sweeping exclusion of all uses of the latter type – as proposed by EMI Israel and Anana. In any event, examining the possibility of another exclusion category concerning "new media" and fashioning the boundaries of that category should be done with care after studying the positions of all interested parties and all the relevant facts. As aforesaid, this matter is for the Tribunal to consider when the extension of the cartel's approval arises. Our position is also supported by the temporary nature of the approval – for only five years. At the end of that period (two years of which have already passed), the Tribunal will revisit the approval of the cartel, at which time it can also reconsider the scope of the exclusion mechanism's "segmentation," on the basis of five years’ experience with the operation of a "narrow" exclusion mechanism. That experience will join with lessons already learned from the operation of an unlimited exclusion mechanism (as part of the Provisional Conditions) and will help the Tribunal evaluate the possibility of adopting a balanced, intermediate alternative that will permit the exclusion of limited uses for the purposes of "new media," without undermining ACUM’s purpose as a collective management corporation. Presumably, by the time the Tribunal considers the extension of the cartel's approval, international experience on this issue will also be established which will enrich the set of facts before the Tribunal.

84. To sum up, our opinion is that the conditions for the permanent approval should be left as they are for the time being, including the issue of excluding works for the purposes of "new media," based on the assumption that the Tribunal will be able to revisit this issue when the current conditions expire. It should be emphasized that this does not express any substantive holding regarding the result to which the Tribunal should reach on this or any other issue, beyond the general statement that the possibility of permitting a limited, well-defined exclusion of "new media" uses should not be ruled out. On the basis of the up-to-date facts laid out before it, the Tribunal will presumably reach a correct decision regarding the proper and most effective way to do so, insofar as it deems fit to follow such path.

Conclusion

85. The appeals before us revolved around ACUM’s activity, yet they necessitated a broad discussion with regard to the collective management of copyright, considering not only the complexity of jointly owned works that derive from the talents of several authors but also the complexity of the variety of uses in a constantly changing technological world. At the present time we have reached the overall view that according to the facts before us we should not intervene in the conditions attached to the cartel's approval – from the perspective of balancing the proprietary rights of all authors against the public interest of accessibility to works that are part of the general cultural repertoire and it is therefore important to avoid placing substantial barriers to their use. We have not ruled out the possibility that in future the proper balance between authors’ rights and the public interest might dictate a different result with respect to integrating the distinction between different types of "new media" and "old media" in the rights exclusion mechanism. To a great extent, this issue represents the challenge of collectively managing rights in the modern era with its changing technological and business environment, where the practice of collective management is more essential than ever but also raises more serious difficulties and complexities than ever. The answer to these challenges (both with regard to "the segmentation mechanism" and with regard to other matters discussed before us) lies in a delicate, changing balance between the relevant interests. As we have mentioned, this balance might be affected by changes in technological platforms and business practices, by studying new information, and by lessons derived from ACUM’s activity in Israel and the operation of collective management corporations worldwide.

86. In conclusion, I would suggest to my fellow justices to dismiss both appeals. ACUM would bear the Director-General's costs in the amount of NIS 20,000. EMI Israel would bear the Director-General's costs in the amount of NIS 40,000 and Partner's costs in the amount of NIS 10,000.

Justice Z. Zylbertal

I concur.

Justice E. Rubinstein

A. I concur with the comprehensive opinion of my colleague, Justice Barak-Erez.

B. Without wishing to gild the lily, I would like to add brief remarks. We are dealing with ACUM, a special entity established in 1936, during the British Mandate, to protect the rights of authors and artists in their intellectual property and it is as though it has always been a fundamental Israeli institution. Indeed, perhaps if we could start over today it would have been possible to think of other ways of organization for this purpose, not necessarily a private company, but such is the situation we are facing, in which we are called upon to have our say. However, even given the current situation, the challenges of dealing with the rights of those in need of ACUM’s services are ever-changing, especially with the dynamic technology, and it is not without reason that my colleague qualified the second part of her opinion with regard to the exclusion mechanism, by looking to the future.

C. With regard to public directors, the Tribunal was indeed right in its decision. In my opinion, the more the better, provided that these directors do their work faithfully as agents of the public and it is to be hoped that this is the norm, in which case the financial expense involved is justified. Regarding their duties, see Prof. J. Gross, Directors and Officers in the Era of Corporate Governance (Second Edition, 2011) Chapter I, p 1 et seq and the references there; and see also Amendment No. 8 to the Companies Law (2008) with regard to the possibility of appointing independent directors; I. Bahat, Companies, 12th edition, 5771-2011, 386. My colleague described in detail the circumstances of this case but also added notes drawn from general public law, namely when a particular entity appears to be hybrid, and as derived from this analysis – the fact that ACUM is similar to that model in view of its duties to the public, without deeming it necessary to rule that it is indeed a hybrid entity. I myself would tend to say that we are indeed dealing with a hybrid entity, whether we take a relatively narrow view of it, through the eyes of its direct beneficiaries, or a broader view of the general population of users; see also my comments in ALAA 1106/04 Haifa Local Planning and Building Committee v. The Electric Corporation (2006), paras. C and D.

D. The author A. Harel in his work Hybrid Entities – Private Entities in Administrative Law (5768) enumerates (pp 118-125) criteria for analyzing the hybrid nature of an entity, including a vital public function, providing a service to the public, not-for-profit activity, a monopoly, the concentration of great power that might be abused, and functional public funding. When dealing with a monopoly, as in the case before us, although ACUM is incorporated as a private company, it is painted in bold colors of hybridity, in particular considering the narrow choice given to individuals (ibid, 115). Indeed, in a rapidly changing world of varied technological possibilities for using works, the interest of authors and artists, as well as the general public, is one of fairness towards everyone; see also D. Barak-Erez, Citizen, Subject, Consumer and Government in a Changing Country (2012), 119, 121, who characterizes an entity as hybrid, when, inter alia, it serves as an actual substitute for government involvement. In the case before us, as implied above, the matter could have presumably been dealt with through a regulatory framework and this component justifies, in my view, a thorough discussion of the issue of public representatives. Indeed, before us is a private company, yet this is merely its framework and shell while its content is significantly broader; even the name attests to its belonging to the public realm – the Association of Composers, Authors and Publishers. ACUM's articles of association (as last approved on July 21, 2013 according to its website) include external directors and the controversy consists merely of their number. According to its website, ACUM presently has approximately 7,500 author members; don’t they deserve extensive protection against a potential clash of interests between various groups within the company?

E. Now a few words on the role of external directors, which is the current legal term, or public directors; as we know, the Companies Law, 5759-1999 refers to an external director (article five, sections 239 et seq) but the literature uses this expression interchangeably with public director, as it was termed in the Companies Ordinance (section 96(b)(c)). Indeed, according to the learned author J. Gross (Directors and Officers in the Era of Corporate Governance (2011) 92), the external director "does not represent the regulator or the general public. He owes a fiduciary duty to the company and to it alone and he only has to bear the interest of the company in mind"; and see also Dr. O. Haviv-Segal, Company Law (2007) 438. However, even if this narrow definition is correct in principle, without going into a comprehensive discussion, the current case involves a special instance of a "private-non-private" company, which does not strive to maximize its profits. In this context, see by analogy the statement by Haviv-Segal, ibid, about the external director’s function in restraining "opportunistic behavior" by a controlling shareholder or management: "in this respect the external director can be regarded as the representative of the public shareholders on the company's board of directors." We should also mention (Gross, p 93) that the external director "brings with him knowledge, experience, and objective judgment and might balance the various views within the company, especially when the board of directors is made up of several cohesive groups"; he is "removed from the shareholders' personal interests… can express objective opinions in cases where differences have arisen between various groups in the company and balance the different interests in the company…". By analogy, this statement is presumably consistent with the present case, despite ACUM's "private" corporate framework. Therefore, the external directors have a particularly important role from the broad, overall perspective of the interests of ACUM's members generally as well as the public at large; see also Hadara Bar-Mor, Corporate Law III (5769-2009) 307-309. Thus, we should not intervene in the ruling of the Tribunal on this matter.

Regarding my colleague's remarks concerning the rights exclusion mechanism and old and new media, what can be inferred from them is a lesson in complexity and arbiter humility. We are dealing with money and maximizing authors’ benefit but the question is whether the baby won’t be thrown out with the bathwater. My colleague pointed out the difficulties and her conclusion is that more experience and study is necessary in order to reach a proper balance (see para. 82). My sense is that this appears difficult and challenging; the technological means are constantly changing before our very eyes, along with their implications to the issue before us, and hence solutions are likely to be short-lived. The regulator, the Director-General of the Antitrust Authority, has an extremely important role in this respect since the Tribunal has only what its eyes can see, while the Director-General is equipped with available monitoring tools. Finally, this summer I have had the opportunity to serve as a "secondary partner" in three intellectual property decisions. Their common denominator is the complexity caused by time, complexity of different types, technological and economic. Studying the fascinating collection Copyright – Readings in Copyright Law (M. Birnhack & G. Pesach, 5769-2009) reveals a variety of insights that will concern us a great deal in the future. Apart from the need to plough through the specific material, the constant changes, perhaps more than in any other area of civil law, also place the courts, and equally so – the regulatory entities, under weighty responsibility. The tension between property and competition, and between the long, short and medium term, poses real challenges. The professionalism of the regulators – be it the Patent Office or, as aforesaid, the Director-General of the Antitrust Authority – helps courts in making their rulings but does not relieve them of their responsibility. In these matters comparative law may also be useful. The bottom line is that this judgment ought to be a starting point for lessons to be learned; over, but not done.

Held as per the opinion of Justice D. Barak-Erez

September 3, 2013 (Elul 28, 5773)

Full opinion:

ACUM v. EMI.pdf

Link to original Hebrew text of decision on official ISC website:

Avneri v. The Knesset (summary)

Case/docket number:

HCJ 5239/11

Date Decided:

Wednesday, April 15, 2015

Decision Type:

Original

Topics:

Basic Law: Freedom of Occupation

Basic Law: Human Dignity and Liberty

Boycott case_Abstract.pdf

Equality Before the Law

Torts

Abstract:

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott (“Boycott Law”). This 2001 law establishes tort liability for, and sets administrative restrictions on, knowingly and publicly publishing calls for a boycott on Israel. The petitioners claimed that the Boycott Law infringes on various constitutional rights, including free expression, equality, and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. A divided Court upheld most of the law's provisions.

Voting Justices:

Melcer, Hanan

Primary Author

majority opinion

Grunis, Asher

Author

concurrence

Naor, Miriam

Author

concurrence

Rubinstein, Elyakim

Author

concurrence

Amit, Isaac

Author

concurrence

Danziger, Yoram

Author

dissent

Hendel, Neal

Author

dissent

Joubran, Salim

Author

dissent

Vogelman, Uzi

Author

dissent

Full text of the opinion:

HCJ 5239/11

HCJ 5392/11

HCJ 5549/11

HCJ 2072/12

Avneri v. The Knesset

The Supreme Court sitting as the High Court of Justice

[15 April 2015]

Before President (Emeritus) A. Grunis, President M. Naor, Deputy President A. Rubinstein, and Justices S. Joubran, H. Melcer, Y. Danziger, N. Hendel, U. Fogelman, and Y. Amit

Summary

Translated by Orly Rachmilovitz

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott, 2001 (“Boycott Law”, “law”). The law establishes tort liability and sets administrative restrictions on anyone who knowingly and publicly publishes calls for a boycott on Israel. The petitioners claimed that the Boycott Law is unconstitutional because it infringes on various constitutional rights, including free expression, equality and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation.

The High Court of Justice upheld most of the provisions in the law both in terms of the civil tort and the administrative sanction. Regarding the civil tort, the majority decided to dismiss the petitions targeting sections 2(a) and 2(b) while adopting the narrow interpretive position articulated by Justice Melcer. In an extended panel of nine, the Court ruled unanimously to strike down section 2(c) of the Boycott Law, which addresses compensation without proof of damage, for being disproportional, but to dismiss the petitions as far as sections 3 and 4. The majority (written by Justice Melcer, with former President Grunis, current President Naor, Deputy President Rubinstein and Justice Amit joining) decided to dismiss the petitions in terms of sections 2(a) and 2(b), against the dissents by Justice Danziger (with Justice Joubran concurring), by Justice Hendel and by Justice Vogelman.

Justice Melcer found that according to the language of the law, knowingly publishing calls for boycott on Israel could be considered a tort. Additionally, the State may limit participation in tenders by people publishing calls for boycott, and may prevent publishers from receiving different financial benefits, such as government grants, tax exemptions and the like. Therefore most of the sanctions under the Boycott Law target the time of speech and thus the statute infringes upon free expression and is inconsistent with the constitutional right to human dignity. That said, though political speech is at stake, Justice Melcer does not believe this infringement reaches the core of the right to free expression because the limit is relatively narrow and applies only to calls for boycotts against Israel, as defined in the statute, or to anyone who has committed to participate in such a boycott, which is legal action that goes beyond speech.

Additionally, this constitutional right, like other constitutional rights in Israel, is not absolute and may be limited if the infringement passes the tests of the limitation clause. The limitation clause includes four prongs: (1) that limits on constitutional rights are made in statutes or according to statutes; (2) that the limitation fits the values of the State of Israel as a Jewish and democratic state; (3) that the limitation is for a worthy propose; and (4) that the limitation is the least restrictive means necessary. The last prong includes three sub-prongs, which are the rational connection test, the least restrictive means test, and a “narrow” proportionality test. For his analysis here, Justice Melcer relies, among others, on comparative law.

In terms of the first prong, there is no doubt it is met. As for the others, Justice Melcer found that the statute is designed to prevent harm to Israel through economic, cultural or academic boycotts on Israel, anyone else vis-à-vis their relationship to Israel, an agency or institute of the State, or a territory controlled by it. Thus the Boycott Law falls under the “defensive state” doctrine and promotes preservation of the State and its values including equality and liberty. The law then has a worthy purpose and fits the values of the State of Israel as a Jewish and democratic state. Justice Melcer wrote that “calls for a boycott on Israel, as defined in the Boycott Law, do not fall under the classic purposes of free speech.” This approach stems from Justice Melcer’s distinction between speech that is meant to be persuasive and speech that works as a compelling force. In his view, a call for boycott is compelling speech, and therefore should be less protected than other political speech.

However, in terms of the Boycott Law’s proportionality, and applying a narrow interpretive approach, Justice Melcer concluded that sections 2(a), 2(b), 3 and 4 pass the proportionality test. Section 2(c), however, does not because it does not employ the least restrictive means. In this context, Justice Melcer considered the chilling effect doctrine, and suggested reducing the chilling effect through narrow interpretation of what constitutes a tort under section 2(a). Justice Melcer proposed that this “boycott tort” be contingent upon existence of harm and causation between the tort and the harm. Still, merely a potential causation would be insufficient. Awareness of the reasonable probability that the contents of the call and the circumstances of its publication will cause the boycott should be necessary. A further requirement should be that only one directly harmed by the tort may have standing to sue.

This interpretation cures section 2(b) as well. Here, the Court ruled that anyone interested in recovering compensation under section 2(b) would be required to prove – in addition to the element of calling for a boycott – the elements of causing a breach under section 62(A) of the Torts Ordinance, a breach, causation between the call for boycott and the breach, awareness, and monetary harm.

On the other hand, Justice Melcer does not find section 2(c), which deals with compensation that is not contingent upon harm (“punitive damages”) and is not limited in amount, to pass the second sub-test of a least restrictive means. It should therefore be struck down. Under this approach, even if the caller for a boycott has been found liable in torts, the compensation awarded would not exceed the actual harm caused.

As for sections 3-4, Justice Melcer finds that the administrative sanction – limiting participation in tenders and limiting benefits – is only a secondary infringement of free speech. He views these sanctions to be proportional, this in light of the procedure required to place these sanctions and considering the State’s power to withhold benefits from those who use them against it. Justice Melcer equated a boycott on the State and a boycott on a territory. He left the discussion on the constitutionality of sections 3 and 4 and wait until specific petitions against a concrete decision by the Minister of the Treasury based on a concrete set of facts.

Finally, Justice Melcer presents additional approaches supporting his proposal: (1) that an interpretation that maintains a statute’s constitutionality is preferable to striking the statute down; (2) that the Court should show deference to the legislature; (3) the margin of appreciation doctrine; (4) that under a theory of ripeness, arguments by potential parties must be examined beyond the striking down of sections 2(c).

Former President Grunis, President Naor, Deputy President Rubinstein and Justice Amit join Justice Melcer and offer comments.

In his dissent, Justice Danziger found the Boycott Law to materially violate free speech. It is a violation of political speech, which is at the core of the constitutional right to free expression, encompassed in the constitutional right to human dignity. This violation, in his view, does not pass the tests of the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. In his view, the Boycott Law does not pass the third sub-prong of the proportionality test, the “narrow” proportionality prong, because calls for boycotts are clearly within legitimate democratic discourse. He opposes Justice Melcer’s proposal for narrow interpretation as insufficient.

Despite his conclusion, Justice Danziger believes the harsh outcome of striking down the law as unconstitutional may be avoided through interpretation, thus significantly reducing the extent of the Boycott Law’s infringement upon rights and allowing it to pass constitutional muster. He suggest interpreting section 1, which is the gateway to the law, to mean that only a boycott on an “institution” or an “area” vis-à-vis their association with the State and that effectively constitutes a boycott on Israel as a whole would be considered a boycott for the purposes of the statute.

Justice Hendel accepted Justice Melcer’s proposal as legitimate interpretation. However, to him section 2 as a whole should be struck down. Section 2(a) as a tort and section 2(b) in terms of a sufficient justification for causing a breach of contract and section 2(c) in terms of compensation without proof of damage do not pass the third sub-prong of the proportionality test. Therefore, Justice Hendel would strike down the entire section for being disproportional, but for the time being he supports curing sections 3 and 4.

Justice Vogelman joins the interpretation by Justice Danziger, but believes redrafting is more suited relief in this case, and therefore proposes to delete the phrase “an area in its control” from section 1. Still, he believes section 2(c) should be struck down and sections 3 and 4 should be upheld. Additionally, in his view, maintaining the Boycott Law’s validity requires interpreting it to apply only in cases where the singly justification to call for “refraining purposefully from economic, cultural or academic connections with a person or other entity” is that person or entity’s relationship to the State of Israel or any of its institutions.

Justice Joubran finds that section 2(c) should be struck down and that section 1 should be interpreted according to Justice Danziger’s proposal regarding the areas in the State’s control. Additionally, he joins Justices Danziger and Vogelman in distinguishing a call for boycott on a person because of their relationship to the State of Israel or one of its institutions and a call for boycott on a person because of their relationship to an area controlled by the State.

Full opinion:

Universal City Studios v. Films and Plays Censorship Board

Case/docket number:

HCJ 806/88

Date Decided:

Thursday, June 15, 1989

Decision Type:

Original

Topics:

Administrative Law

Discretion

Abstract:

The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ" on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel.

The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

1. The point of departure for examining the legality of the Board's decision is the basic principle of freedom of expression, including freedom of artistic creativity, which is the central feature of freedom of human thought and the ability of the human being to attain self expression.

2. Freedom of expression is widely regarded as a right, enjoying supra-legal status, and at any rate constitutes one of the most fundamental features of a democratic society. It is very wide in extent and covers the right to express views which may be unpopular or unpleasant to certain audiences.

3. Restrictions on the freedom of expression must of necessity be applied as narrowly as possible in order to protect the freedom itself. Nevertheless, the freedom cannot be entirely unrestricted, but must yield, in exceptional cases, to competing values, interests and principles. This applies, however, only to extreme cases where it is clearly shown, for example, that there is a close certainty of imminent danger to public order or security in allowing unlimited freedom of expression.

4. In the present case, it was not sufficient to show that the literary and artistic expression as manifested in the film was liable to cause offence to some persons. In order to disqualify the film on the grounds put forward by the Board, it must be shown that such expression was so extreme in its offensiveness against the Christian religion, that public viewing of the film must be prevented. In the present case, the intensity and extent of the offensiveness was not proved, so that the decision of the Board could not be upheld.

5. The fact that the film has been released for almost universal showing, including in most Christian countries, removes the basis from the argument that the screening of the film amounts to a serious offence to Christians. The "political" argument as to potential damage to the State of Israel in allowing the film to be shown has no foundation.

6. The High Court of Justice in this case was bound to intervene in the discretion of the Board in disallowing the showing of the film in order to uphold the principle of freedom of expression, since there was no basis for restricting that freedom.

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Universal City Studios Inc. v. Films and Plays Censorship Board.pdf

Author

concurrence

Levin, Shlomo

Author

concurrence

Goldberg, Eliezer

Author

concurrence

Malz, Yaakov

Author

concurrence

Full text of the opinion:

H.C.J 806/88

I. Universal City Studios Inc.

2. United International Pictures Ltd.

3. Golan Globus Cannon Israel (1983) Ltd.

1. Films and Plays Censorship Board.

2. Minister of the Interior.

3. Yehoshua Justman.

In the Supreme Court Sitting as the High Court of Justice

[June 15, 1989]

The President (Justice M. Shamgar), A. Barak, J., S. Levin, J. E. Goldberg J. and Y. Maltz J.

Editor's Summary

The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ", on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel

The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

Israel Supreme Court Cases cited:

[1] C.A. 723/74 "Ha'aretz" Newspaper Publication Co. Ltd. v. Israel Electric Corporation Ltd., 31 (2) P.D. 281.

[2] H.C. 14/86 Laor v. Films and Plays Censorship Board, 41(1) PD 421.

[3] H.C. 146/59 Cohen v. Minister of Interior, 14 P.D. 284.

[4] H.C. 243/62 Israel Film Studios Ltd. v. Gueri, 16 P.D. 2407.

[5] F.H. 3/87 Films and Plays Censorship Board v. Laor, 41(2) P.D. 162.

[6] H.C. 351/72 Keinan v. Films and Plays Censorship Board, 26(2) P,D, 81.

[7] H.C. 399/85 Kahana v. Executive Committee of Broadcasting Authority, 41(3) P.D. 255.

[8] H.C. 73, 87/53 "Kol Haam" Co. Ltd.; "AI Atiahad" Newspaper v. Minister of the Interior, 7 P.D. 871.

[9] F. H. 9/77 Israel Electric Corporation Ltd, v. "Ha'aretz"Newspaper Ltd., 32(3) P.D. 337.

[10] H.C. 243/81 Yaki Yosha Co. Ltd. v. Films and Plays Censorship Board, 35(3) P.D. 421.

[11] Election Appeals 2, 3/84 Neimann v. Chairman of Central Elections Committee for the 11th Knesset; Avni v. the same 39(2) P.D. 225.

[12] Cr. A. 255/68 State of Israel v. Ben Moshe, 22(2) P.D. 427.

[13] H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(2) P.D. 233.

[14] H.C. 153/83 Levi v. Commander of Israel Police Southern District, 38(2) P.D. 393.

[15] Cr. A. 677/83 Borochov v. Yefet, 39(3) P.D. 205.

[16] H.C. 206/61 The Israel Communist Party v. Mayor of Jerusalem, 15 P.D. 1723.

[17] H.C. 448/85 Dahar v. Minister of Interior, 40(2) P.D. 701.

[18] H.C. 896/87 Ayalon Insurance Co. Ltd. v. Broadcasting Authority, 43(1) P.D. 701.

[19] Bar Association Appeal 13/86 Hoter-Yishai v. Tel Aviv District Committee of the Israel Bar, 41(4) P.D. 838.

[20] H.C. 807/78 Ein Gal v. Films and Plays Censorship Board, 33(1) PD 274.

[21] H.C. 680/88 Shnitzer v. Chief Military Censor, 42(4) P.D. 617.

[22] Cr. A. 126/62 Disenchik v. Attorney General, 17 P.D. 169.

[23] H.C. 549/75 Noah Films Co. Ltd. v. Films Censorship Board, 30(1) P.D. 757.

American Cases Cited:

[24] Dennis v. United States 341 U.S. 494 (1951).

[25] New York Times v. Sullivan 84 S.Ct. 710 (1964).

[26] Joseph Burstyn Inc. v. Wilson 343 U.S. 495 (1952).

[27] Superior Films v. Dept. of Education 346 U.S. 587 (1954).

Jewish Law Source Cited:

[A] Ecclesiastes, Ch. 8, v. 8.

Objection to order nisi dated 30.11.88. Petition allowed and order nisi made absolute.

D. Peri, S. Schretzer - for petitioners;

N. Arad, Head of High Court Cases Dept., State Attorney's Office, - for respondents

JUDGMENT

Shamgar P.:

1. This petition concerns the decision of the Films Censorship Board to ban the showing of the film "The Last Temptation of Christ".

2. That film was produced by the first petitioner. The second and third petitioners are the distributors of the film world-wide and in Israel respectively.

The film, which was shot in Morocco, is based on the book of the same name by the Greek author, Nikos Kazantzakis, and was staged by Martin Scorsese.

As to its content, the film describes the life of Jesus from the time of his sojourn in Jerusalem - including his baptism in the River Jordan, the adherence of his apostles, his miracles and the spreading of his doctrines - up to the time of his crucifixion. The film contains realistic overtones which give expression to the clear and obvious tendency of the author and the director to introduce human elements into the image of Jesus, despite the popular conception of his in the eyes of believers in the Christian faith. At the same time there is a dominant thread in the film which is purely Christian, the descriptions of the miracles affording an outstanding example of this. In other words, as in the book so in the film there are deviations from accepted Christian religious doctrine. But as against this the creators of the film could claim that the realism and the bases for the humanisation are included in most of the artistic and theatrical creations influenced by Christian doctrine, and even in those authorised and accepted by it. Nor is it superfluous to recall that this matter has been the subject of many theological and philosophical arguments and has been the cause of theoretical disputes and religious conflicts, as is well-known.

One scene, which the objectors to the screening of the film noted in particular, depicts an ostensibly erotic hallucination in which the hero of the film participates. This episode describes Jesus' reflections on a possible alternative style of living other than being the victim of crucifixion. This is one of the scenes in which descriptions of Satan's attempts at seduction are described, and is the one which gave the film its title (of "The Last Temptation of Jesus").

All comments on the content of the film are made without any intention of identifying, or clearly typifying of, any ideas and descriptions in the film, and are intended only to emphasise the central theme of the dispute based on the clash of opinion between those in favour of banning the film and those in favour of allowing it to be shown.

3. As appears from the letter of the Censorship Board dated October 18, the Board decided not to allow the film to be screened in Israel because "in the opinion of the Board screening of the film which goes to the very foundations of Christianity would be most offensive to the religious feelings and faith of the Christian community."

The petitioners appealed against this decision to the Board, who decided not to alter its earlier decision prohibiting the showing of the film. The petition before us concerns this prohibition.

4. What is the normative framework within which the court's considerations are crystallised when deciding whether or not to interfere with the discretion of the council?

The basis of our examination of this question is the essential rule of freedom of expression from which emanates, inter alia, freedom of artistic creation in the fields of literature and the visual arts. In this matter it is of course irrelevant whether the creation takes the form of theoretical, philosophical treatise, or a play, or any other visual medium. For us it is clear and straight forward that a person is entitled to express his ideas and thoughts publicly, including his interpretation of past, present and future events, without any restrictions. That is the central characteristic of freedom of human thought and man's ability to achieve self-expression.

The theoretical point of departure from which freedom of expression derives is that the law may not prevent a person from behaving as he pleases, unless there be a positive reason for doing so owing to harm or possible harm to others. This is what is called, inter alia, the minimal principle of freedom (see K. Greenawalt, "Free Speech Justifications, 89 Colum L. Rev. (1989) 119). In order to give meaning to the principle of freedom of expression, substantial restraint must be exercised at the time of laying down any restrictions or reservations with respect to this right. In other words, for the sake of this end a special protected status must be conferred which safeguards this freedom against any retreat in the face of an opposing interest (F. Schauer, "Free Speech: A Philosophical Inquiry" (Cambridge, 1982) 5.) A similar idea was expressed in C.A. 723/74 [1], at p. 295:

"...The nature of freedom of expression, described as one of the basic constitutional rights confers upon it supra-legal it constitutes a guideline for the consolidation and drafting obligation to uphold of legislation and the reviewing of the legality of governmental authorities' actions. Furthermore, it has a direct influence on the legal interpretation of every enactment. Every restriction of the bounds and right extent of such emanating from an enactment, must be construed narrowly with the aim of giving this right maximum scope and not restricting it beyond what is clearly and distinctly obligatory according to the law (H.C. 75/76, "Hilron" v. The Fruit and Marketing Board, p. 653). Freedom of expression and a provision of law aimed at restricting it do not have similar and equal status. On the contrary, to the extent to which it is compatible with the text, this right must be given preference at all times over a provision of law which has a tendency to restrict it. To sum up, the criterion to be used in safeguarding the primary of freedom of expression, when it clashes with another right, should be fully manifested not only when the legislator drafts provisions of law, but also when the law is interpreted and its provisions are applied to circumstances in which its nature and implementation are reviewed in practice."

5. The problem is, as has already been hinted, that this freedom cannot be absolutely unlimited, as the rights of one person cannot be allowed to prejudice the rights and freedoms of another or disturb public order.

The question, therefore, arises as to what the extent of the limitation should be or, in other words, how extreme the disturbance of public order, or the prejudice of another's rights, should be in order to justify limiting a man's freedom (of expression). In order to solve this problem recourse symmetry is had to the rules of the application of which in practice is often not easy. We shall return to this matter later.

6. The Censorship Board has been vested with the power to preclude in advance the showing of a play or film which prejudices public order (H.C. 14/86 [2] p. 430). As my colleague, Justice Barak, pointed out there:

"...The range of the (legislative- M.S.) purpose at the basis of the Ordinance is far-reaching, and includes prejudice of public order, whether as a result of a criminal act or of an immoral act or of any other act which is offensive to the feelings of the public or to its well-being (see H. 281/78, p. 409). Justice Silberg emphasised this as follows: 'It would appear to us-without entering into details - that the criterion by which the Board should be guided, when weighing up a decision to refuse or cancel a permit, should be that a film which is an offence to morals and good taste, or which can lead to demoralisation should not be allowed to be screened (H.C. 146/59, p. 284)."

There is room for questioning whether the above criterion as defined by Justice Silberg is not too broad and sweeping. In accordance with the standards acceptable to us, and in particular in the light of the special status granted to freedom of expression, we would not today think of disqualifying a film or play only because it is 'offensive to good taste'. The Board- and even the courts - are not guardians of good taste, which is a subjective concept by its very nature and content. The court would not presume to educate theatre or cinema audiences in accordance with the artistic taste of the judges, such cultural paternalism being foreign to its philosophy. According to appropriate criteria only a serious, meaningful and extreme infringement of a protected value could serve as a cause for interference of the courts with freedom of expression. A narrowing of what was said in H.C. 146/ 59 [3] to a desirable dimension can be perceived to some extent in the words of Justice Landau in H.C. 243/62 [4] at page 2413. I referred to this in greater detail in F.H. 3/87 [5], page 163:

"As learned counsel for the petitioner rightly pointed out, we have adopted the test of 'near certainty'. Thus we cannot accept the petitioner's suggestion that we distinguish between publication of news, to which the said rule would apply, and publication of plays, to which a more stringent rule would apply- that is the rule that the showing of a play or film should not be permitted if it is 'an offence against morality or good taste, or likely to cause demoralisation' (in the words of H.C. 146/59).

As already stated, I do not think that there is room for the suggested distinction and, in particular, I do not think that there is any basis for it in the present case. This court has expressed its opinion on the question of expression on many an occasion (see, for example, H.C. 372/84; E.A. 2,3/84) and the judgment to which this petition refers gave expression to the traditional approach to this matter.

The suggested distinction between implementing and recognising a basic right, according to whether it applies to information or to literature and culture, is inherently inconsistent, with the basic principles which it purports to uphold. In short, the theory that the courts recognise that the Board can lay down standards of morality, consolidate educational standards and ban performances which are not educational in their opinion, is too far-fetched and is not consistent with our legal concepts."

7. As mentioned above, the aim of the Cinematograph Films Ordinance is to vest the Board with the power to prevent in advance the public screening of a film which is prejudicial to public order. That is, in the context of the present case, the "protected value "to which I referred above.

As already explained by Justice Barak in H.C. 14/86 [2]:

'"Public order' is a wide term which is difficult to define and which changes according to its context. In its present context it includes endangering the existence of the State, its democratic regime and the public welfare, and offending morals, religious sentiments and a person's good name, as well as prejudicing the guarantee of fair judicial process and similar matters concerning public order (see H.C. 243/62, p. 2418; H.C. 81/78. p. 409; H.C. 807/78)."

We have seen that disturbing public order - which includes also outraging religious sentiments - can be a cause for restricting freedom of expression, as has in fact been confirmed by this court in, for example, H.C. 351/72 [6] p. 813; and see also H.C. 399/85 [7], p. 295.

Thus, although freedom of expression also fosters freedom of religion, such freedom does not extend to cases where there is a serious offence to religious sentiments. In other words: freedom of expression produces an atmosphere of tolerance of others' opinions, and this is the breeding ground for freedom of religion (L.C. Bollinger, "The Tolerant Society" (Oxford, 1986) and see also V. Blasi, "The Teaching Function of the First Amendment", 87 Colum. L. Review (1987), p. 387).

But this tolerance should not serve as a license for seriously outraging the religious sentiments of others. One can even say that serious offence to religious sentiments is the antithesis of tolerance, which is directed to the positive cultivation and advance of human self-expression and not for outraging and suppressing feelings. Mutual tolerance among persons of different outlook, opinions and faiths is a fundamental precondition for the existence of a free, democratic society, and serious offence to feelings is not consistent with that. We have held, therefore, that both plays and films are not exempt from the obligation to refrain from seriously and substantively offending the religious sentiments of others (H. C. 351/ 72 [6] above). There are, therefore, circumstances in which the basic principle of freedom of expression must retreat before such outrage.

8. Hence comes the derivative question: how serious does the outrage have to be in order to justify restricting freedom of expression? In other words, as already mentioned, we accept the fact that in certain circumstances there could be a clash between freedom of expression and the aim of preserving public order, both of which are basic values of our policy concepts and our system of law.

There is, therefore, a kind of competition, in the language of Justice Agranat (as he then was) in H.C. 73/53 [8], between two interests, each of which is of primary importance from the point of view of social policy.

The solution to this "tug-of-war" lies in finding a balance between the competing, and even conflicting, principles (see H.C. 14/86 [2], p. 434). This balance was struck by the court by laying down a value guideline (F.H. 9/77 [9], p. 361) which is consistent with the enlightened views of our society. According to our concept, freedom of expression cannot be restricted because of an affront which is not serious. Only an extreme, offensive and deep affront would justify restricting freedom of expression (H.C. 351/ 72 [6] and H.C. 243/81[10]).

9. Insofar as the probability of an affront inducing us to restrict freedom of speech for reasons of public order is concerned, we have adopted the test that if there be a "near certainty" in a concrete case that implementation of some particular right would prejudice public safety or order, then a statutory authority with the competence to do so may restrict in practice the implementation of that right (E.A. 3,2/84 [11], pp. 265-266). In that case I quoted as follows from Douglas J.'s judgment in Dennis v. United States [24]:

"The restraint to be constitutional must be on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377:

'Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one'".

This concept was adopted by us, as already mentioned, in that we laid down that the offence must be serious, extreme, and gross and that there must be a near and inevitable certainty that it would harm public order.

The test of ''near certainty" is an objective one, and the court will examine, within the scope of judicial review in a concrete case before it, whether the rest served as a theoretical guideline only for the statutory authority or whether it was also applied as a practical criterion in a proper and correct manner.

10. In the case before us was there a near certainty that there would be a serious disturbance of public order as a result of the alleged offence to religious feelings?

The Board decided to impose the ban on the film on the grounds that screening it would cause serious outrage to the religious feelings and faith of the Christian community. Such outrage could, on a suitable occasion, provide a cause for disqualifying a film (H.C. 351/72 [6]). But the question before us is whether there was a real basis for the Board's opinion that the expected outrage would be so exaggerated and serious as to warrant their conclusion, which was based on two main factors: first, an independent viewing of the film and the conclusion concerning the possible outrage which could result from it; and, secondly, the many written requests which they received sought to persuade them that it was only right to ban the picture.

11. I am of the opinion that in the case before us there was no justification for banning the film. I am not oblivious of the fact that the theses and theories put forward in the film often clash with accepted, official Christian doctrine. But the Christian world is also pluralistic and in order to disqualify the film one must be satisfied that the literary and artistic subjective expressions of the author, Kazantakis, and of the director, Scorsese, are so extremely offensive to the Christian faith as to warrant suppression of their public expression in Israel. The fact that the film could arouse opposition, and even disgust, amongst some of those who elect to see it, is not sufficient.

In this context, one cannot ignore the fact that Jesus is portrayed in the film in a positive and sympathetic manner and that his super-human power is a basic element in the concepts of the author and director. Incidentally, the only ones to come out negatively in the film are the Jews who fought against the Romans and those among the common people of Jerusalem who did not follow Jesus. But that, also, would not justify banning the film on the basis of the criteria by which we have formulated our decisions in similar cases.

For my part, the main thing is that the decisive majority of the Christian public will not see this film in Israeli cinemas but will see it throughout the Western world. I cannot see the logic of banning a film in Israel because it is ostensibly so extremely offensive to the Christian community, whereas at the same time it is being shown, without any legal restrictions, in all the countries of the Christian world (including Italy, Spain, Germany and France).

I cannot accept the argument that we should restrict freedom of expression more stringently than is common in Western countries with purely Christian populations. This argument has an uncomplimentary and unconvincing implication: the theory that there is a difference between the level of education and sophistication of the local Christian population and that of other countries, as suggested in several of the letters sent to the Board, contains an unjustified insult against the Christians in Israel, and, in particular, has simply no factual basis. With all due respect, there is no foundation for the opinion that the Christian inhabitants of Nazareth of Ramallah are culturally inferior to the inhabitants of Calabria or Normandy.

There is no near certainty of serious and far-reaching danger to public safety which could justify limiting freedom of expression in the present case. There is no evidentiary foundation for deciding that what the Christians of Rome and Paris may see should be forbidden in Jerusalem. As to the argument about "an inclination towards evil" (in the words of Justice Agranat (as he then was) in H.C. 73/53 [8]) which could have a negative influence, I agree that one should not be oblivious to the fact that in the eyes of the believer every description which differs from the one accepted by, and sacred to him, would annoy him. But "an inclination towards evil" is not sufficient to justify the suppression of free speech, and the extent and force of the injury must be substantial as explained above in detail. The free showing of the film in purely Christian countries is sufficient, in my opinion, to negate the reasons for banning the film, and to render illogical the adoption of a more extreme stand in our country. We are used to being open-minded and tolerant to the extreme even in the face of serious affronts to values which are at the foundation of our existence (see H.C. 14/86 [2]) so that there is no justification or logic for diverting from our accepted and traditional judicial standards and adopting a more extreme attitude in matters which are the subject of this petition.

I would, therefore, allow the petition and make the order nisi absolute.

A. Barak J.:

I concur with the President's judgment and with the observations of Justice Goldberg. Because of the importance of the problem before us, I should like to add several comments.

1. Freedom of expression is one of the basic values of our law (H.C. 14/86 [2], p. 878). It constitutes a "supreme right" (in the words of Justice Agranat, as he then was, in H.C. 73/53 [8]). There are those who vest it with a supra-legal status (C.A. 723/74 [12 ], p. 295). But even those who do not go so far regard it as being "the very essence of democracy" (Justice Agranat in Cr.A. 255/68). The justifications for this evaluation are complex and interwoven (see H.C. 399/85 [7]).

One justification is the desire to lay bare the truth. Freedom of expression must be ensured in order to enable different and variegated views and ideas to compete with one another. This competition and not a directive from above, will, in the final analysis, lead to revelation of the truth. Another justification is the need for man's self-fulfilment. Only through freedom of expression can this self-fulfilment be attained. A third justification bases freedom of expression on democracy. "The principle of freedom of expression is connected closely with the democratic process" (Justice Agranat in H.C. 73/53 [8], p. 876). Freedom of expression is an essential requisite for the existence and development of a democratic regime (H.C. 372/84 [13]).

The connection between freedom of expression and democracy has many different aspects. Freedom of expression guarantees an exchange of opinions between members of a society and thus enables them to formulate their approach to matters of national interest. In that way a government can be moulded, controlled and replaced. Furthermore, freedom of expression contributes towards social stability, as social pressure receives expression from speech rather than from deeds. In addition, a democratic regime is based on tolerance. Freedom of expression enhances tolerance and thus strengthens democracy. Thus between freedom of expression and democracy there is a state of mutual interdependence. Democracy is the basis for freedom of expression and freedom of expression gives democracy the breath of life. Without freedom of expression democracy loses its soul. That is why freedom of expression enjoys a special status. It ensures the existence of a democratic regime which, in turn, ensures the existence of other basic rights.

2. Every discussion of freedom of expression necessarily entails reference to two separate questions: first, what is included in that basic value called freedom of expression and what is excluded from it. This differentiation creates a boundary-line for expressions which are "covered" by the principle of freedom of expression. It competes with the question of what could be called "expression" within the meaning of this basic value. For instance, would freedom of expression "cover" the giving of false evidence in court or would perjury be completely excluded from its framework? Is the right to demonstrate included with freedom of expression, and does such freedom cover commercial advertising?

Secondly, what is the extent of the protection which the law gives to those expressions which are included within the framework of freedom of expression. Do they have "absolute" protection or only relative protection? And if they have only relative protection what are the criteria thereof? (see Schauer, above, p. 89).

3. Our approach to the question of the scope of freedom of expression is a broad one. Such freedom applies to every expression, whether political, literary, commercial or any other, and whether verbal or behavioural (symbolic or otherwise) such as demonstrations (see H.C. 153/83 [14]). Within the framework of freedom of expression there is no differentiating between truth and falsehood. Therefore, in principle, even an expression which is defamatory is "covered" by freedom of expression (see Cr.A. 677/83 [15]). Freedom of expression extends to every expression, whatever its content, influence, or style. In the words of Justice Agranat in H.C. 73/53 [8], p. 877:

"The principle of freedom of expression serves as a means and an instrument for discovering the truth, since only by airing all points of view and by a free exchange of all opinions can that 'truth' be clarified."

And President Shamgar supported this approach in holding that:

"Exchange of opinions, airing of viewpoints, public debate, the desire to know and learn and persuade are all essential tools at the disposal of every opinion, every point of view and very belief in a free society." (E.A 2/84[11], p 278).

Freedom of expression, therefore, covers all opinions, whether popular or unpopular, whether those which people like to hear or those which annoy and are deviant, and those which "antagonise by their content, and disgust" (President Shamgar in E.A. 2/ 84 [11]). Freedom of expression is not only freedom to give quiet and pleasant expression to something. It is also freedom to cry out in a manner which grates on the ears (C.A. 206/61 [16] p. 1728). It also includes freedom to express an "uninhibited, robust and wide open opinion"(Judge Brennan in New York Times v. Sullivan, 1964 [25] p. 721, adopted by President Landau in F.H. 9/77 [9], p. 351) Freedom of expression covers "matters which annoy and grate on the ears" (Justice Beisky in C.A 2/84 [11], p. 325). Even an expression which is "a nasty spread of erotics, politics and aberrations of all kinds" comes within the framework of freedom of expression (H.C. 14/86 [2], p. 433). We have consequently held that racial expressions are covered by the principle of freedom of expression (H.C. 399/85 [7], p. 281). An expression offensive to religious sentiments, or which includes obscene material, is also covered by freedom of expression.

4. Once a positive reply has been given to the question of "scope", the second question must be dealt with. This concerns the extent of the protection given to an expression by a particular system of law. This question assumes that we are interested only in expressions over which the principle of freedom of expression extends its protection. However, every system of law seeks to apply limitations on freedom of expression; and, therefore recognition of an expression as coming with the scope of freedom of expression does not mean that it is protected in all circumstances. The reason for this is that freedom of expression is not the only value which a democratic society seeks to preserve. There are additional values, the recognition of which justifies imposing limitations and restrictions on freedom of expression. For example, in every society it is common to find cause for restricting freedom of expression in order to protect a person's good name. Likewise, it is justified in every society to limit a person's right to demonstrate against the background of another's right to walk in the streets of the town. Similarly, it is natural for rowdy expressions to be restricted in consideration of the quality of life and the environment.

The common approach in all systems of law is to regard freedom of expression as not being "absolute". Our conception is that freedom of expression is "relative". "A distinction must be drawn between freedom and unbridled license" (Justice Agranat in H.C. 73/53 [8], p. 878; President Landau in F.H. 9/77 [9], p. 343).

"Freedom does not mean unbridled license, and there are circumstances in which it is vital to impose restrictions" (President Shamgar in E.A. 2/84 [11], p. 279). It could be argued that the distinction between "cover" and "restriction" is artificial, as when a "restriction" is imposed on freedom of expression then the expression is not "covered" by the principle of freedom of expression.

I cannot accept this argument. The distinction between "cover" and "restriction" is very important. First, it emphasises the fact that prima facie the expression is protected, that it would require special justification in order to restrict it, and that in the absence of such justification it must be permitted. Secondly, where there is some restriction then freedom of expression would continue to exist beyond the restriction. The restriction does not establish the extent of the right, it only lays down limitations.

5. The restrictions on freedom of expression take different forms, three of which are the main ones. The most serious restrictions are those which prevent expression in advance. This actually excludes publication, making the prejudice to freedom of expression immediate. This means that the protection given to the other values worthy of protection is the fullest. A less serious restriction is the criminal or civil liability of the person giving vent to the expression.

Here the expression comes to light "in advance" while the perpetrator is liable "post factum". While restriction in advance "freezes" the expression, "post factum" liability "chills" it (see A. M. Bickel, the Morality of Consent [New Haven and London, 1975] p. 61). The third main restriction of freedom of expression - a "weak" one - is the regime of permits. According to this arrangement the State exercises control, through the medium of permits, over several aspects of freedom of expression. For example, permission is required for the publication of a newspaper, or a permit for holding a demonstration. It should be noted that these forms of restriction are not separated from one another. Very often the system requires a combination of several of them. Of course, the greater the combination the more severe the restrictions on freedom of expression.

6. The restrictions on freedom of expression are of two kinds: first, a restriction whose source is in the content of the expression itself which is of such a nature that it could lead to consequences which a democratic society would seek to prevent. The legal system creates a balance between the freedom of expression value and values which that freedom could prejudice. Examples of instances in which freedom of expression would be curbed can be found in the defamation laws, in the criminal laws with respect to obscenity and in the sub judice rule. Censorship of films and plays would be included in this kind of restriction, as the purpose of censorship is to protect the public against the harmful content of the expression itself. As these restrictions prejudice the very essence of freedom of expression every democratic society will confine them to the most vital instances only.

The second kind of restriction of freedom of expression is not connected with the content of the expression itself, but with its method of communication. The system of law creates a balance between the way in which freedom of expression operates in practice (without any connection with the content of the expression itself) and other values which are prejudiced by its application. An example of this can be found in laws which curb the freedom of demonstration. This restriction is not aimed against the content of the message which a demonstration seeks to deliver, but to the manner in which it is delivered, which could harm freedom of movement or other values which society seeks to protect (see M. Nimmer, On Freedom of Speech: A Treatise on the Theory of the First Amendment [1984] pp. 2-25; L.H. Tribe, American Constitutional Law [Mineola, 2nd ed. 1988] p. 789).

7. When is it justified to restrict freedom of expression, and how should the restriction be applied? There is no general reply to this question. It all depends on the values, interests and principles with which freedom of expression clashes (see H.C. 153/83 [14]; H.C. 448/85 [17]).

There can, therefore, be instances in which freedom of expression would not be restricted at all, and would be given full force, where there is no value or interest which justifies curbing it. Where there are values and interests which would justify curbing freedom of expression, a clash would be created which would require finding a balance between the restriction and the competing value. This balance could be laid down by the legislature itself. In the absence of any enactment the balance will be laid down by the courts. Since the Kol Ha-am case (H.C. 73/53 [8]) we have accepted the idea that this balance should be one of principle and not an ad hoc one.

We have to establish a "rational principle" (Justice Agranat in H.C. 73/53 [8], p. 881) which would constitute "a yardstick which contains a value guideline", which distancing ourselves from any "random paternalistic yardstick, whose direction and nature no-one can evaluate in advance" (Justice Shamgar in F.H. 9/77 [8], p. 361). This yardstick balances the various conflicting values and provides a "balancing formula" in principle. This formula revolves round two axes: the seriousness of the injury which revolves around freedom of expression causes to other interests deserving of protection; and the probability of such injury occurring. I emphasise this in another case as follows:

"The Board's powers are determined by the need to preserve public order. This criterion raises two questions, the answers to which are relevant to the petition before us: first, what is the intensity of the harm to public order, and whether all harm, however slight, would allow use of the Board's powers; and, secondly, what is the extent of probability which must exist between the showing of the play and the harm to public order, and whether it is sufficient that there was a distant probability of this harm's occurring in order to justify the use of the Board's powers (H.C. 14/86, p. 431)."

8. We must approach an examination of the petition before us against the background of this normative attitude. The first question to be asked is whether a cinematographic expression would come within the framework of the principle of freedom of expression. The unequivocal answer to this question is that freedom of expression covers also cinematographic expressions. It is true that these latter expressions have a commercial aspect, but we have held in the past that commercial expressions are also covered by the principle of freedom of expression (see Joseph Burstyn Inc. v. Wilson [26] and H.C. 896/ 87 [18]; see also Bar Association Appeal 13/86 [19]). Freedom of expression does not distinguish between different forms of expression (see Superior Films v. Dept. of Education [27]).

The second question which arises is whether in the circumstances of the case before us there could, in principle, be values or interests which come into conflict with freedom of expression, requiring a balance between them to be found. For example, if freedom of expression results in harming the good name of a person or public, this would usually harm values and interests which must be protected. The balance between these competing values is effected mainly by the legislator, in the Defamation Law, 1965 (see F.H. 9/77 [9] above). Similarly, if freedom of expression violently harms public order (in the case, for instance, of bodily injury or injury to property) then it is usual to restrict this freedom for the sake of protecting physical and proprietary values (see H.C. 907/78 [20]). The same rule applies when an expression endangers the security of the State (H.C. 680/ 88 [21], or judicial integrity (Cr.A. 126/62 [22]). In the absence of sufficient legislative guidance this balance is effected mainly by case law, in which tests with respect to the nature and extent of the harm and the probability of its occurrence are laid down.

9. In the circumstances of the petition before us are there interests and values which justify restricting freedom of expression? It was argued before us that religious sentiments are values which must be protected against injury caused by the implementation of the principle of freedom of expression. Is this an acceptable argument? The question is far from being a simple one. On the one hand, one can say that there is no reason for distinguishing between injury to body or property and injury to sentiments; and just as it might be justified to restrict freedom of expression in the former case so would it be justified in the latter case. But, on the other hand, one can say that every expression might harm some sentiment and recognition of harm to sentiments as a basis for restricting freedom of expression- without drawing any distinction between religious sentiments and other sentiments - could make an empty letter of freedom of expression.

It is difficult to decide between these conflicting opinions. Different systems of law could produce conflicting conclusions and under any system of law the answer to the question could vary in accordance with the differences in the context in which the question arises. We can, therefore, frame the question as follows: within the framework of the Cinematographic Films Ordinance is the Censorship Board, established by virtue of that Ordinance, entitled to take into consideration injury to religious sentiment as a cause for restricting freedom of cinematographic expression? In my opinion the answer to this question is in the affirmative, for the following reasons.

First, the very nature of "censorship" of films calls for granting this power. It is true that one can object to censorship on the grounds that there is no justification for allowing a government body to restrict freedom of expression on account of injury to sentiments. But once censorship exists then the power to restrict freedom of expression on account of injury to sentiments follows from its very nature. It is inconceivable that the only function of the Censorship Board should be to examine whether showing a film would constitute a criminal act or not. The make-up of the Board and its functions point to the fact that injury to sentiments - alongside injury to other values - is a consideration which it should be able to take into account.

Secondly, in Israel it is a criminal offence to outrage religious feelings (section 173 of the Penal Law, 1977). So that the Board would be entitled - although not obliged - to include the criminal nature of a publication amongst its considerations (see H.C. 351/ 72 [6]). Furthermore, in a long series of judgments the Supreme Court has recognised outrage of feelings (religious, bereavement and others) as an injury to values which justifies, in principle, the use of the Board's powers to restrict freedom of expression (see H.C. 146/59 [3], H.C. 243/81 [10], H.C. 14/86 [2]). '"The consideration which we owe to their feelings counterbalances the abhorrence of all forms of censorship". (H.C. 243/81 [10], p. 425).

10. In short, the feelings of the public are values which the Censorship Board, in its capacity as censors of films, should take into consideration and any outrage of those feelings could justify curbing freedom of expression. Against this background comes the third question which concerns the kind of outrage which would justify curbing freedom of expression. This question can be divided into two subquestions: the seriousness of the outrage and the probability of its occurrence. I shall examine each separately.

11.. An outrage against public feelings must be "harsh, serious and severe" in order to justify imposing a limitation on freedom of expression. (H.C. 14/86 [12], p. 435). What is the meaning of this test? It reflects, in my opinion, the conception that a democratic society, by its very nature and content, is based on tolerance of others' opinions. In a pluralistic society tolerance is the one power allowing for shared existence. Thus, every member of the public takes upon himself the "risk" of suffering some offence to his feelings in the course of free exchange of opinions. A society which is based on social pluralism must, therefore, allow free exchange of opinions even though this may hurt the feelings of those who object to the opinions. "That is the other side of the mutual tolerance necessary in a pluralistic society (Justice Witkon in H.C. 549/75 [24] p. 764). Recognition of the fact that there is bound to be a certain degree of exposure to hurt feelings on the part of members of the public follows from the very nature of a democratic regime. A "harsh, serious and severe" outrage, justifying the curbing of free expression within the framework of censorship of films, is that same outrage which exceeds "the tolerance standard" of a democratic society (see H.C. 243/81 [10] p. 425).

So that when we are concerned with the matter of a film which takes a stand on a controversial subject (historical, religious, social or other) and does so in a manner which does not involve criminal liability - in that it does not contain anything obscene or outrageous to religious feelings - it would be difficult to imagine situations in which such "harsh, serious and severe" damage is caused as crosses the boundary-line of what is permissible in a democratic society, whether it contains some factual truth or not (see H.C. 807/78 [20], p. 277). It should also not be forgotten that the same creation in the form of literature would be accepted unconditionally, and, furthermore, that no-one is forced to see a film, or be exposed to its message. This would appear to be the rule to be gleaned from the judgment in H.C. 351/72 [6], in which the Supreme Court held that a play outraged the feelings of bereaved parents and assailed moral social values, but that was not sufficient to justify curbing free expression. According to Justice Landau (at p. 816):

"...there is no doubt that the offences to the feelings of bereaved individuals and the public as a whole with which the words of the play testify to unprecedented strewn callousness and vulgarity. But we would still have hesitated to confirm the banning of the play, however repulsive to us it may be, were that the only reason for doing so, for fear of prejudicing the freedom of expression."

In that way Justice Landau gave expression to this court's opinion that "the tolerance standard" of our society towards the expression of controversial opinions which are not against the law is very high. Only in the rare and exceptional case would there be found to have been "harsh, serious and severe" damage in a film which conveys a message not containing anything criminal to a "non-captive" audience. Such cases could occur, of course (see H.C. 243 / 81 [10]), but our tradition of freedom of expression and the fact that we recoil from imposing an early ban based on the content of the expression itself, limits such cases to only the most exceptional. These must be cases which shock mutual tolerance to the very limit.

And note that the fact that screening a film may constitute a criminal offence (such as publishing something calculated to outrage religious feelings, contrary to section 173 of the Penal Law, or publishing any obscene matter contrary to section 214 of the Penal Law) is not an essential or sufficient precondition for an advance prohibition on the part of the censor. It is not an essential precondition because a film can, in certain exceptional circumstances, cause outrage in a harsh, serious and severe manner without breaking the law. It is not a sufficient precondition because a balance between conflicting values could justify refraining from imposing an early ban (through censorship) while having recourse to banning "after the event" (through ordinary criminal proceedings). Nevertheless, the criminality of a play has substantial meaning, as it reflects the attitude of Israeli Society to its "red lines".

12. This is of particular significance insofar as a film dealing with religious matters is concerned. It is only natural that religious beliefs should penetrate to the depths of the individual's conscience. A contrary religious belief is not only an intellectual outlook with which one disagrees. It can also constitute an outrage to feelings. The atheist can outrage the feelings of the believer. Followers of opposing faiths can outrage one another's feelings. That is the reality of life which a democratic society must accept. It is this very difference which unites us around what we have in common. Thus, a democratic society must recognise that there are outrages against religious feelings. Only in this way can those who have different religious beliefs live together. The solution is not to repress the offensive opinion. Frankfurter J. noted quite rightly that:

"To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects". (Joseph Burstyn, Inc. [27] p. 519).

But nor does the solution tie in repressing all controversial opinions, as that would suffocate the human spirit. The strength of democracy lies in the freedom it accords to the creative person to release what is locked in his heart, to spread his wings and give free vent to his thoughts. "The writer or dramatist may aim, to his heart's content, the whip of criticism or satire at preachers of religion who sin, as did Moliere in 'Tartuffe' or, in our times, Hochhut in 'The Representative'." (Justice Landau in H.C. 351/72 [6], p. 815).

13. The play which is the subject of this petition does, without any doubt, outrage the feelings of Christian believers. My colleague, Justice Maltz, even points to a particularly serious outrage. However, such outrages do not exceed what is permissible in a democratic society, founded on tolerance and pluralism.

During the course of proceedings we asked respondents' counsel whether in her opinion screening of the film would constitute the criminal offence of publishing something which could outrage religious feelings, contrary to section 173 of the Penal Law. She replied in the negative. To her credit she noted, on the contrary, that the film has artistic value, and does not constitute a criminal offence. If to this one adds the fact - as pointed out by my colleague, the President - that the film is being shown in most countries of the world (except for India and Pakistan), including the Christian countries, in some of which there is film censorship, then it is clear that the film's offensiveness is not so serious as to justify the advance banning of its publication in a democratic state which recognises the tradition of freedom of expression and is built on tolerance of opposing opinions. In this connection any outrage committed by the publication of the book or the making of the film should not be taken into account. We are concerned only with outrages to religious feelings by the fact that the film is being shown in Israel. Furthermore, the outrage which must be considered is to the feelings of those who will not see the film, as no-one is obliged to see it. We are, therefore, not concerned here with a captive audience. In such circumstances, the offensiveness of the film does not cross the threshold of "harsh, serious and severe damage".

14. In the light of my conclusion concerning the nature of the damage, I do not need to examine the question of the probability of its occurrence. According to the precedents on this subject the test of probability to be applied in matters concerning the powers of the censor is that of "near certainty." (see H.C. 243/62 [4], H.C. 14/86 [2]). It is not sufficient that there should be "malice" or the possibility - even if reasonable - that the damage could occur. There is also no need for real certainty that the harsh, serious and severe damage should actually materialise. The demand is for a causal relationship of the nature of "near certainty". If, therefore, I thought that in the petition before us the outrage to religious feelings had overstepped the permitted threshold, I would have thought that the causal test existed, as there would be not only a near certainty, but a real and indisputable certainty - that religious feelings had been outraged. I therefore concur with Justice Goldberg's comments.

15. I have, therefore, reached the conclusion that screening the film will indeed outrage the religious feelings of believers, but that the damage is not harsh, serious and severe to the extent that would justify refusing a permit for the showing of the film. On the other hand, the Censorship Board was of the opinion that showing the film would outrage the religious feelings of believers in a harsh, serious and severe manner. Can we, in these circumstances, exchange the Board's discretion for our own? Would that not be non-permissible interference with the exercise of a government authority's discretion? In my opinion it is our right and duty to interfere, in such circumstances, with the Board's exercise of discretion. I discussed this in a previous case in the following words:

"The Board does not have the discretion to choose a possibility which does not contain the elements of near certainty and serious danger. The Board's subjective opinion that the danger is serious and that its occurrence as a near certainty is not relevant. The test of near certainty and serious danger is an objective one. The Court must be satisfied that a reasonable Board was entitled, on the basis of the facts before it, to reach the conclusion that the danger was serious and that its occurrence was a near certainty. To that end the Court has to be satisfied that the Board gave proper weight to conflicting basic principles, that is, to freedom of expression on the one hand and public order on the other hand. "Proper weight" in this case means weight that the Court is of the opinion would be consistent with the requirements of an enlightened democratic society." (H.C. 14/86 [2], pp. 438-439).

The question, therefore, which is before us is a basic constitutional one. It touches on the nature of freedom of expression and its limitations. The responsibility for all these matters rests with the courts. The question before us is not that of choosing between opinions in the field of reasonableness. It is the fixing of bounds for that field itself.

For these reasons I concur with my colleagues that the order nisi should be made absolute.

S. Levin J.: like my distinguished colleague, Justice Barak, I too am of the opinion that the extent of our permissible interference with the decision of the Censorship Board is wide, as long as we are dealing with basic rights. From an examination of the minutes of the Board and of their decision, it transpires that the Board gave great weight to letters from intellectuals who objected to permitting the film to be screened. Some of their reasons centered on the fact that the showing of the film would be extremely offensive to the Christian population of Israel in particular, while others concentrated on the damage which could be caused to Israel itself, although even they did not deny the film's artistic value. For the reasons enumerated by Justice Barak in paragraphs 12 and 13 of his judgment, in particular, I think that the decision of the Board is not well-founded, while the "political" reason - that is, that showing the film would cause damage to Israel- is, to the extent that it served as a prop for the Boards' considerations, invalid per se in my opinion. Respondents' counsel agreed that the showing of the film would not constitute a criminal offence, and I shall, therefore, refrain from expressing an opinion on the question of what the law would be if it transpired that showing the film was indeed a criminal offence.

I concur that the order nisi should be made absolute.

Justice E. Goldberg:

In a clash between two basic values it is essential to assess the "comparative social importance of the various principles" (Justice Barak in H.C. 14/ 86 [2] p. 434) together with the probability, impact, extent and scope of the damage caused by one of them to the other.

The probability test for the risk of the damage's occurring does not, in my opinion, come within the scope of the present case. The need to consider the probability of a risk of damage arises as long as it is not possible to make a factual finding on the basis of evidence. So then we would have to assess the extent of the likelihood of the damage occurring (or not occurring) and we would then hold that the test of "near certainty" would be the proper test for purposes of the Censorship Board's powers, as "the test of' public order would be a consequential test" (H.C. 14/86 [2] above, pp. 430-1).

We would then have to assess the degree of risk that a film might be prejudicial to public order and whether this reaches the level of "near certainty" or whether this degree of certainty exists with respect to the film because "the special power of persuasion in the pictorial material would serve as an effective instrument of incitement" (H.C. 8907/78 [20] p. 278).

But when we can establish in an independent way whether the film outrages religious feelings or (to give another example) if it damages the good name of any person, we do not need to assess the probability of damage being caused. We can perceive with our senses whether or not damage has been inflicted (the extent of the damage) constituting a separate question, as stated below). In our case it would appear that no-one disputes the fact that screening of the film would offend a section of those who believe in the Christian faith.

The central question for us to put forward is, therefore, whether there is an irreconcilable conflict between freedom of expression and public order (as personified by an outrage to religious feelings) which obliges us to seek a solution to "the parallelogram of forces" and find a "balancing formula" between principles; or whether we have to regard this as an "ancillary" conflict and not a "frontal" one between principles, which allows for co-existence, even if not a peaceful one, making the balance "natural" and self-understood.

I do not underestimate the offensiveness to some viewers of the film. But neither the gravity of the offensiveness nor its extent make me question the words of the wisest of all men: "There is no man that hath power over the spirit to imprison the spirit" (Ecclesiastes 8.8[A]).

I concur, therefore, with the judgment of the distinguished President.

Maltz J.:

I approve of the analysis of the legal position established by our caselaw, as summarised in the President's judgment, and with the conclusion he has reached.

In the whole film I found only one scene which I considered would give serious, extreme and rude affront to the religious feelings of Christians. I refer to the imaginary conversation between Jesus and Paul in which Paul says to Jesus: "If you had not been crucified, I would have crucified you myself"'. I weighed up whether it would not be desirable to make the showing of the film conditional upon the excision of this scene. But on second thoughts I came to the conclusion that against the background of the film as a whole this scene would not create a near certainty of endangering public safety or order.

I, therefore, concur with the President's opinion that the film should be allowed to be shown.

Petition allowed and order nisi made absolute.

Dov Peri and Shaul Stratzker appeared for the Petitioners, and Nili Arad, Director of the High Court Division of the State Attorney's Office, appeared for the Respondents.

Judgment given on 15.6.89.

Full opinion:

Szenes v. Broadcasting Authority

Case/docket number:

HCJ 6126/94

HCJ 6143/94

HCJ 6126/94

Date Decided:

Monday, July 26, 1999

Decision Type:

Original

Topics:

Communications

Basic Law: Human Dignity and Liberty

Torts

Defamation

Abstract:

Facts: Chana Szenes, born in Budapest, Hungary in 1921, emigrated to Mandatory Palestine alone at the age of 18. In 1943, during World War II, she enlisted in the British army. In June 1944, Chana Szenes parachuted in Yugoslavia, and crossed the border into Hungary with the aid of partisan groups. The German army captured her almost immediately. Chana Szenes was executed by a German firing squad on November 8, 1944. The current petition concerns the play “The Kastner Trial,” written by respondent no. four. The play, based on the true story of the Kastner affair, was intended to be televised. In one of the scenes of the play, one of the characters claims that Chana Szenes broke under interrogation by the Hungarian police and betrayed her comrades. Petitioners, including relatives of Szenes, petitioned this court to prevent the broadcast of that scene in the play. Petitioners claimed that the scene contained falsehoods, defamed Chana Szenes, and injured the feelings of many, including survivors of the Holocaust.

Held: For the purposes of the petition, the Court assumed that the play, with the scene in question, defamed Chana Szenes, and also injured the feelings of the public in general and that of Holocaust survivors in particular. The Court held, however, that, in a democratic society, only a near certainty of grave and severe injury to feelings can justify the prior restraint of expression. The court held that the scene in question did not present a near certainty of such injury. As such, the petition was denied. Justice Cheshin dissented.

Voting Justices:

http://elyon1.court.gov.il/files/94/260/061/A01/94061260.a01.pdf

Primary Author

majority opinion

Mazza, Eliahu

majority opinion

Cheshin, Mishael

Author

dissent

Full text of the opinion:

HCJ 6126/94

HCJ 6143/94

HCJ 6126/94

1. Giora Szenes

2. Eitan Szenes

3. Dr. David Szenes

4. Deputy Chairman of Yad Va‑Shem

HCJ 6143/94

1. Nadia Matar

2. Women’s Association for the Future of Israel

1. The Broadcasting Authority

2. Chairman of the Broadcasting Authority

3. Director-General of National Television

4. Mordechai Lerner

5. Uri Barbash

The Supreme Court Sitting as the High Court of Justice

[July 26, 1999]

Before President A. Barak, Justices E. Mazza, M. Cheshin

Petition for an order nisi and Interim Order

Israeli Cases Cited:

HCJ 58/68 Shalit v. Minister of the Interior, IsrSC 23(2) 477.
CA165/82 Kibbutz Hatzor v. Assessment Clerk Rechovot, IsrSC 39(2) 70.
HCJ 953/87 Poraz v. Mayor of Tel‑Aviv/ Jaffa, IsrSC 42(2) 309.
FH 9/77 Israel Electric Company v. “Ha’aretz” Newspaper, IsrSC 32(3) 337.
HCJ14/86 Laor v. Film and Play Review Board, IsrSC 41(1) 421.
EA 2/84 Neiman v. Chairman of the Central Elections Committee of the Eleventh Knesset, IsrSC 39(2) 225.
CA 723/74 “Ha’aretz” Newspaper Publications v. Israel Electric Company, IsrSC 31(2) 281.
HCJ 73/53 “Kol Ha’Am” v. Minister of the Interior, IsrSC 7 871.
HCJ 153/83 Levi v. District Commander of Israeli Police Southern Command, IsrSC 38(2) 393.
CA 105/92 Re’em Engineers and Contractors v. Municipality of Upper Nazareth, IsrSC 47(5) 189.
CrimA 225/68 State of Israel v. Ben Moshe, IsrSC 22(2) 427.
HCJ 4804/94 Station Film Company v. Film and Play Review Board, IsrSC 50(5) 661; [1997] IsrLR 23.
HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board, IsrSC 43(2) 22.
HCJ 399/85 Kahane v. Broadcasting Authority, IsrSC 41(3) 255.
HCJ 5503/94 Segal v. Speaker of the Knesset, IsrSC 51(4) 529.
CA 214/89 Avneri v. Shapira, IsrSC 43(3) 840.
HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.
CA 294/91 Jerusalem Community Burial Society v. Kestenbaum, IsrSC 46(2) 464.
HCJ 5688/92 Vichselbaum v. Minister of Defense, IsrSC 47(2) 812.
FH 3299/93 Vichselbaum v. Minister of Defense, IsrSC 49(2) 195.
HCJ 109/70 The Orthodox Coptic Patriarch of Jerusalem v. Minister of Police, IsrSC 25(1) 225.
HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51(4) 1; [1997] IsrLR 149.
HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49(4) 94; [1995-6] IsrLR 178.
CrimFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589.
HCJ 372/84 Kloppfer-Naveh v. Minister of Education and Culture, IsrSC 38(3) 233.
HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683.
HCJ 257/89 Hoffman v. Appointee for the Western Wall, IsrSC 48(2) 265.
HCJ 606/93 Kiddum Yazamoth (1981) and Publishing v. Broadcasting Authority, IsrSC 48(2) 1.
HCJ 2888/97 Novik v. Channel Two Television and Radio, IsrSC 51(5)193.
CrimA 126/62 Dizenchik v. Attorney General, IsrSC 17 169.
CrimA. 696/81 Azulai v. State of Israel, IsrSC 37(2) 565.
CrimA 6696/96 Kahane v. State of Israel, IsrSC 52(1) 535.
HCJ 987/94 Euronet Kavei Zahav (1992) v. Minister of Communications, IsrSC 48(5) 412.
HCJ 3477/95 Ben-Attia v. Minister of Education, Culture and Sport, IsrSC 49(5) 1.
HCJ 351/72 Keinan v. Film and Play Review Board, IsrSC 26(2) 811.
HCJ 7128/96 Temple Mount Faithful Movement v. Government of Israel, IsrSC 51(2) 509.
HCJ 807/78 Ein Gal v. Films and Play Review Board, IsrSC 33(1) 274.
HCJ 273/97 Association for the Preservation of Individual Rights of Homosexuals, Lesbians and Bisexuals in Israel v. Minister of Education, Culture and Sport, IsrSC 51(5) 822.
HC 1/81 Shiran v. Broadcasting Authority, IsrSC 35(3) 365.
HCJ156/75 Dakah v. Minister of Transportation, IsrSC 30(2) 94.
HCJ 266/81 Avron v. Broadcasting Authority, IsrSC 35(3) 502.
HCJ 2137/98 Elias v. Chairman of Managerial Committee, Broadcasting Authority (unreported case).
HCJ 935/89 Ganor v. Attorney General, IsrSC 44(2) 485.
HCJ 6163/92 Eisenberg v. Minister of Construction and Housing, IsrSC 47(2) 229; [1992-4] IsrLR 19.
HCJ 259/84 M.I.L.N Israeli Institute for Better Business and Product v. Broadcasting Authority, IsrSC 38(2) 673.
HCJ 243/82 Zichroni v. Directorial Committee of the Broadcasting Authority, IsrSC 37(1) 757.
CrimA 232/55 Attorney General v. Greenwald, IsrSC 12 2017.
FH 7325/95 Yediot Acharonot v. Krauss, IsrSC 52(3) 1.
CrimApp 537/95 Ganimat v. State of Israel, IsrSC 49(3) 355.
CA 506/88 Shefer v. State of Israel, IsrSC 48(1) 87; [1992-4] IsrLR 170.
CA 1482/92 Hagar v. Hagar, IsrSC 47(2) 793.
HCJ 3933/92 Barachat v. C.O.S. Central Command, IsrSC 46(5) 1.
CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society, IsrSC 53(3) 600; [1998-9] IsrLR insert.
CA 1182/90 Shacham v. Rothman, IsrSC 46(4) 330.

District Court Cases Cited

DC (Jer) 124/53 Attorney General. v. Greenwald, IsrDC 44 3.

American Cases Cited

New York Times v. Sullivan, 376 U.S. 254 (1964).
Masson v. New Yorker Magazine, 501 U.S. 496 (1991).
Davis v. Costa-Gravas, 654 F. Supp. 653 (S.D.N.Y. 1987).
Seale v. Gramercy Pictures, 964 F. Supp. 918 (E.D. Pa. 1997).
Whitney v. California, 274 U.S. 357 (1927).

German Cases Cited

30 BVerfGE 173 (1971).

Israeli Books Cited

H. Cohen, Z’chuyot Haadam Bimikra Ubitalmud [Human Rights in Jewish Law] (1984).
2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (5th ed. 1997).
R. Cohen-Almagor, Gvulot Hasavlanut Vihacherut [Limits of Tolerance and Freedom] (1994).
3 A. Barak, Parshanut Bimishpat, Parshanut Chukatit [Interpretation in Law, Constitutional] (1993).

Israeli Articles Cited

A. Barak, Chofesh Habitoi Umigbaloteha [Freedom of Expression and its Limitations], 40 Hapraklit 5 (1993).
A. Barak, Hamisoret shel Chofesh Habitoi Biyisrael Ubiayoteha [The Tradition of Freedom of Expression in Israel and its Problems], 27 Mishpatim 223 (1997).
H. Sommer, Hazchuyot Habilti Minuyot Vihekefa shel Hamahapacha Hachukatit [The Unspecified Rights – The Scope of the Constitutional Revolution], 28 Mishpatim 257 (1997).
A. Barak, Zchuyot Adam Muganot: Hahekef Vihahagbala [Protected Human Rights], 1 Mishpat Umimshal 253 (1992-1993).
Y. Karp, Mikztat Shielot Al Kvod Haadam lifi Chok Hayesod: Kvod Haadam Vicheruto [Questions about Human Dignity], 25 Mishpatim 129 (1995).
A. Bendor, Chofesh Lishhon-Hara [Freedom of Defamation], 20 Mishpatim 561 (1990-1991).

Foreign Books Cited:

F.F. Schauer, Free Speech: A Philosophical Enquiry (1982).
D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed., 1997).
D.P. Currie, The Constitution of the Federal Republic of Germany (1994).

Foreign Articles Cited:

D.A. Anderson, Symposium: Defamation in Fiction: Avoiding Defamation Problems in Fiction, 51 Brook. L. Rev. 383 (1984-1985).

Jewish Law Sources Cited:

Babylonian Talmud, Tractate Eruvin, 13b.
Bamidbar Rabbah, Pinchas, 21:2
Babylonian Talmud, Tractate Baba Metzia, 58b
Maimonides, Mishneh Torah, Hilchot Deot, 7:2.
Mishnah, Ethics of our Fathers, 2:14, 3:14.
Babylonian Talmud, Tractate Taanit, 23a.
Exodus 1:6, 1:8
Judges 2:8, 2:10.
Genesis 1:27.
Mishnah, Ethics of our Fathers 3:14.
I Samuel 2:30.

JUDGMENT

President A. Barak

1. “The Kastner Trial” is a screenplay, penned by M. Lerner. It was intended for television broadcast. The play, an artistic creation divided into three parts, was inspired by the Kastner affair, especially by the trial in the Jerusalem District Court. See D.C. 124/53 The Attorney-General v. Greenwald [55]. The screenplay takes place primarily in the courtroom. It retells the story of the rescue of the Jews of Hungary during the Second World War and the moral dilemmas that these efforts involved. It is a docudrama – an artistic genre that does not purport to accurately reflect the events that it depicts. Quite naturally, it mixes both reality and fiction. Each episode is prefaced by a notice which states:

The events depicted in this film were inspired by the Kastner-Greenwald trial. Nonetheless, the movie should not be regarded as a recreation of these events, but rather as a drama of historical fiction.

2. One of these episodes features the mother of Chana Szenes, Mrs. Catherine Szenes. She is seen testifying as a witness in the criminal trial of Mr. Greenwald. As Mrs. Szenes is being cross-examined, Mr. Kastner, who is sitting in the courtroom, interrupts. In one of his outbursts, he lashes out at Catherine Szenes, exclaiming:

How dare you criticize me? Who even asked your daughter to come to Budapest? What did she think she would do? Due to her own recklessness, and the arrogance of those who sent her, she crossed the border like a new recruit and was captured five minutes later. And I will tell you who told the Hungarian police that Palgi and Goldstein were on their way to me. It was her! Your daughter, Chana Szenes, the heroine! She broke under interrogation and revealed everything. I can imagine the sort of tortures she underwent. Nobody could have withstood such torture. But it was not because of me that Palgi and Goldstein were arrested, but because of her! (emphasis added).

To this Catherine Szenes replies: “Not true!”

3. Kastner’s lines in the script, which I italicized, offended Chana Szenes’ brother and his sons, the petitioners in HCJ 6126/94. They also offended Ms. Matar and the Women’s Association for the Future of Israel, the petitioners in HCJ 6143/94. The petitioners approached the Broadcasting Authority and the playwright and requested that the italicized lines – according to which Chana Szenes broke under interrogation and revealed that Palgi and Goldstein were on their way to meet Kastner – be deleted from the broadcast. They claimed that the lines were false, that Chana Szenes had bravely borne her interrogation and did not betray her comrades. Furthermore, they maintain, these falsities tarnish the image of Chana Szenes as one of the greatest Jewish heroines in history. They argued that broadcasting the lines will deeply offend thousands of people who cherish Chana Szenes’ memory. These include both Holocaust survivors and native-born Israelis. Both the author and the Broadcasting Authority rejected the petitioners’ requests, emphasizing the principles of the freedom of expression and artistic creativity. They noted that the screenplay was a fictional drama, merely inspired by events that had actually occurred. Mr. Lerner explained that he had attempted to balance between historical facts and the need to express his own worldview, as well as his commitment to artistic quality. It was for the public to judge whether he had fulfilled these tasks. In its response, the Broadcasting Authority stated that the screenplay was prefaced by the “Author’s Explanation,” which stated that the play is:

A fictional drama inspired by events that actually occurred. The drama strives to integrate these historical events with the behavioral patterns of dramatic characters. Casting events in this manner obviously necessitated divergence from how the events actually occurred and, as such, posed a difficult dilemma concerning the degree of historic accuracy required in an artistic creation.

Respondents informed us that it would be stressed, at the beginning of each episode, that the film should not be seen as a documentary presentation, but rather as historical fiction. They also stated that, after the film’s conclusion, an in-studio discussion would be held to which Chana Szenes’ brother would be invited, along with historians and journalists. In this forum, all those dissatisfied with the series would have an opportunity to respond.

4. The response of the Broadcasting Authority did not satisfy petitioners. They petitioned this Court to order the Broadcasting Authority to delete the paragraph in which Kastner states that Chana Szenes had broken under interrogation and revealed the imminent arrival of Palgi and Goldstein. Petitioners asked the Court for an interim order preventing the broadcast, scheduled for November 7, 1994, from being aired until the petitions were decided. That same morning, the Court convened to hear the claims. All agreed that Kastner never actually spoke the words attributed to him by the script. Nor was it disputed that Kastner’s lines were substantively untrue and lacked historical basis. As such, petitioners argued that the Broadcasting Authority, as a national agency, must refrain from airing misleading and unreliable information. See The Broadcasting Authority Law-1965, § 4. Petitioners also argued that airing the false statements would deeply and seriously taint Chana Szenes’ dignity and good name. Thus, petitioners submit, Kastner’s lines constitute intentional defamation, without the protection of the defenses of “good faith” or “truth.” Moreover, petitioners argue that this injury is magnified by the inability of the late Chana Szenes to protect her rights. Petitioners further argue that broadcasting the false paragraph will offend the feelings of the public. The tale of Chana Szenes’ bravery belongs to the history of the Jewish nation. It is part of our national folklore. This being the case, petitioners maintain, in the conflict between freedom of expression on the one hand, and the public’s feelings and the individual’s right to dignity on the other, the latter must prevail.

5. Respondents defend their position. They argue that freedom of expression may only be infringed under extreme circumstances, which involve a clear and present danger to the public peace. Such circumstances do not characterize the case at bar. The Broadcasting Authority, they argue, gave appropriate weight to the conflicting interests. Its decision is reasonable and the necessary measures were adopted in order to mitigate the damage to the dignity of Chana Szenes, and that of her family and the general public.

6. On that same day, we rendered our decision and held as follows:

We have decided to reject the petition, in accordance with the majority opinion of Justices Barak and Mazza, with Justice Cheshin dissenting. Our reasons for this decision will be provided separately. The three of us are convinced that deleting the disputed paragraph would not interfere with the flow of the screenplay. Even so, the majority held that such a decision is subject to the authority of the Broadcasting Authority, it is not the Court’s place to instruct them in this regard. The dissent, for its part, contended that, since the Broadcasting Authority was not the drama’s original author, it may be ordered to comply with the petitioners’ request.

The time has come to give our reasons for that decision.

The Normative Framework

7. Our point of departure is the Broadcasting Authority’s power and discretion, which derive from the Broadcasting Authority Law. According to the provisions of that law, the Broadcasting Authority shall “broadcast educational, entertainment and informational programs in the areas of politics, social life, economics, culture, science, and art.” See the Broadcasting Authority Law-1965, § 3. In these broadcasts, the Authority must present the “different outlooks and opinions of the public, as well as supply reliable information.” Id., § 4. The scope of this power and discretion is determined by the interpretation of the law’s provisions, in view of the fundamental principles of our legal system. Indeed, a statute is “a creature of its surroundings.” HCJ 58/68 Shalit v. Minister of the Interior [1] at 513 (Sussman, J.). A statute’s surroundings are not limited to its textual setting but also include the statute’s broader context. This context is predicated on “broad circles of accepted principles, fundamental goals and basic criteria.” CA 165/82 Kibbutz Hatzor v. Assessment Clerk Rehovot [2] at 75. These values and principles form the statute’s general purpose. It may be presumed that the legislature intended to bring these values to fruition. See HCJ 953/87 Poraz v. Mayor of Tel‑Aviv/Jaffa [3] at 329.

8. There are three principles and values applicable to our case. First, we must consider the freedom of expression and creativity. Second, we must bear in mind a person’s right to his or her good name. Finally, we must consider the public welfare. At times, these values are compatible. Occasionally, however, they conflict, making it necessary to strike an appropriate balance. Quite often, the values and principles come in pairs, each one pulling in its own direction. The thesis confronts the antithesis, and a synthesis between the two is required. This synthesis is achieved by examining the relative weight associated with the different values in the conflict. The balancing must be normative and principled; the basic criteria for deciding this balance must be determined. See FH 9/77 Israel Electric Company v. “Ha’aretz” Newspaper [4] at 361; HCJ 14/86 Laor v. Film and Play Review Board [5] at 434.

9. In interpreting the scope of the Broadcasting Authority’s discretion, the first value to be considered is the freedom of expression. This is a basic value derived from the values of the State of Israel as a Jewish and democratic state. Indeed, Jewish heritage is based on a plurality of opinions and views. See Justice Elon’s opinion in EA 2/84 Neiman v. Chairman of the Eleventh Knesset Elections Committee [6] at 294. “Both are the words of the Living God.” See Babylonian Talmud, Tractate Eruvin 136b [76]. Jewish Law is characterized by pluralism, without the interference of the sovereign. “Just as people’s faces are not alike, so too their opinions are not the same. Rather, each one has an opinion of their own.” Bamidbar Rabbah, Pinchas 21:2 [77]. Justice Elon, in Neiman [6] at 296, summed up the Jewish approach to freedom of expression in the following manner:

This is the doctrine of leadership and government in the Jewish tradition. Every single person should be tolerated. Every single group, according to its own views and opinions. This is the great secret of tolerance and listening to the other, and the great power of the freedom of expression for every person and community. Not only is this essential for proper and enlightened government, it is also essential for its creativity. In this world, two opposing forces confront each other and reproduce, and how much more so is this true in the spiritual world.

A classic expression of this is the freedom of expression granted the biblical prophet, as H. Cohen noted:

The typical embodiment of freedom of speech in ancient Jewish history is not negative, but positive, namely the institution of prophecy … there arose for us prophets, whose prophecies embodied the freedom of speech.

H. Cohen, Z’chuyot Haadam Bimikra Ubitalmud 69 (1984) [62].

Freedom of speech is one of the State of Israel’s fundamental values as a democratic state, which regards freedom of speech as a “supreme” or “sublime” right. See CA 723/74 “Ha’aretz” Newspaper Publications v. Israel Electric Company [7] at 295; HCJ 73/53 “Kol Ha’Am” v. Minister of the Interior [8] at 878. As such, it occupies a “place of honor in the pantheon of basic human rights.” HCJ 153/83 Levy v. District Commander of the Israeli Police – Southern Command [9] at 398. Indeed, freedom of speech is “an integral part of our legal system’s ethos.” CA 105/92 Re’em Engineers v. Municipality of Upper‑Nazareth [10] at 201, and it is said to constitute democracy’s “soul.” CrimA 255/68 The State of Israel v. Ben Moshe [11] at 435 (Agranat, J.). Artistic expression is a central element of the freedom of expression. HCJ 4804/94 Station Film Company v. Films and Play Review Board [12] at 680 {41}.

Freedom of expression “forms a basis of the freedom of artistic creation in the literary sphere and in forms of visual expression.” HCJ 806/88 Universal City Studios v. Film and Play Review Board [13] at 27 (Shamgar, P.). “Freedom of expression is the freedom of the creator to burst out of the confines of his or her heart, spread out his or her wings and let his or her thoughts roam free.” Laor [5] at 433. Freedom of expression is not the only source of the individual’s freedom of artistic creation. This latter freedom can also be regarded as an independent human right, existing in its own right. This is a person’s right to freedom of artistic creation, to which I referred in Station Film [12] at 680 {41}, stating:

It may be understood as a constitutional right that “stands on its own two feet,” so to speak. It is based on the notion that man is an autonomous creature, entitled to self-actualization, as both a creator and as one who benefits from creation. Indeed, freedom of artistic expression is the artist’s freedom to create. It is the freedom to choose a subject and the manner in which it is presented. It is also the freedom of others to listen and absorb.

In our case, the freedom of artistic creation in question is that of Mr. Lerner. It is his freedom of expression. From the perspective of the Broadcasting Authority, this case also involves its own freedom of expression, as both speaker and as the forum. HCJ 399/85 Kahane v. Broadcasting Authority [16] at 268; HCJ 5503/94 Segal v. Speaker of the Knesset [15] at 545. Freedom of expression and freedom of artistic creation include the freedom of every one of us to read, to look, and to absorb. The public’s “right to know” is to be taken literally. It signifies the right of everyone to listen and to understand, to form an opinion, to debate and to persuade.

10. Do freedom of expression and artistic creation extend to expression that is not true? The answer to this question is affirmative. Speech which is false is contained within the freedom of expression and creation. Speech which is false and defamatory is included within the definition of freedom of expression. See CA 214/89 Avneri v. Shapira [16] at 857. An obscenity based on a falsehood is included in freedom of expression. See Station Film [12] at 676 {35}. An artistic work based on falsehood is included in freedom of expression. Compare Laor [5] at 433.

11. This having been said, freedom of expression and creation are not the only values that we must consider. A democratic society is founded on a spectrum of values and principles, with the freedom of speech and of artistic creation being only one of these. Realization of these other values dictates that we rein in the protection afforded the freedom of expression and creation, in order to extend appropriate protection to these other values. My freedom of movement ends where your body begins. My freedom of expression does not give me license to defame another, nor does it allow me to disclose confidential state secrets or to endanger the public welfare. Freedom of expression is not the freedom to commit perjury. Constitutional theory distinguishes between the scope of a human liberty and the degree of protection that the legal system confers upon it; between the coverage of the freedom and its protection. See Kahane [14] at 270; Avneri [16] at 857; F.F. Schauer Free Speech: A Philosophical Enquiry 89 (1982) [72]. I addressed this distinction in Universal City Studios [13] at 33, where I wrote:

Any discussion of freedom of expression demands consideration of two separate questions. First, we must examine the content of freedom of expression – what it includes and what it does not. This examination delineates the scope of the expression “covered” by freedom of expression. It deals with the issue of what constitutes “expression” for the purposes of this fundamental value. For example, is giving false testimony in court included in the freedom of expression? Does the freedom of expression include demonstrations; does it extend to commercial advertising? Second, what is the scope of protection afforded by law to those expressions covered by the freedom of speech? Do they enjoy absolute or only relative protection? If the protection accorded to them is relative, what are its criteria?

On the basis of this distinction it was held, for example, that the freedom of expression, as a constitutional right, extends to “any opinion, view and belief in a free society.” Neiman [6] at 278 (Shamgar, P.). Freedom of expression is the freedom to voice an opinion in a manner that is “uninhibited, robust and wide-open,” New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (Brennan, J.) [56], regardless of its content. Even so, not everything that is included within the constitutional definition of free speech is necessarily granted constitutional protection. The scope of protection given to this freedom is a function of balancing between freedom of expression and other conflicting principles. It is the product of the horizontal balancing between the rights of two persons. My freedom of speech ends where the protection of your good name begins. It is also the product of the vertical balance between individual freedom and the public interest. My freedom of expression ends where there is a near certainty of imminent actual harm to public safety. HCJ 2481/93 Dayan v. Jerusalem District Commander [17] at 475. Practically speaking, the main problem that generally arises, which in fact is the issue in the case before us, is the demarcation of the borders of the respective rights – an individual’s right as opposed to the public’s needs. To do this, we must balance, either vertically or horizontally, between the competing values and interests. We must, in the words of Justice Agranat in Kol Ha’Am [8] at 879:

weigh the various competing values in the balance and, after reflection, select those, which, under the circumstances prevail.

We therefore now examine the other values and principles to be taken into account.

12. The second value we must consider is human dignity. In the context of this petition, our concern is with the aspect of human dignity relating to a person’s good reputation. This aspect of human dignity is vital to all people. A person’s right to his or her good name is a basic value in every democratic system. It is a necessary condition for a freedom-loving society. It is predicated on the need for an internal sense of value, personal pride and personal recognition among people. I mentioned this in Avneri [16] at 856, in which I wrote:

A person’s dignity and good name may be as important to him or her as life itself. They can be cherished by that person above and beyond all other assets.

The above is derived from the values of the State of Israel as a Jewish state, as our Jewish heritage attaches central importance to a person’s good name. Indeed, our sources teach that “slander kills” and that “whoever publicly shames his neighbour is deemed to have shed blood” Babylonian Talmud, Tractate Baba Metzia 58b [78]. Even if the victim forgave the slanderer, the slander continues to “burn within him.” To this effect, the sources further state that “our forefathers in the desert were not punished for any reason other than slander” Maimonides, Mishneh Torah, Hilchot Deot, 7:2 [79].

The significance of preserving a person’s reputation also derives from the values of the State of Israel as a democratic state. One who steals my property can compensate me monetarily, but he who robs me of my good name has stolen the very reason for my existence. One’s good name determines the manner in which one perceives oneself and how one’s peers and society relate to one. In effect, the only asset of many people, both public servants and those working in the private sector, is their reputation, which they cherish as life itself. This applies to both the living and the dead. We must protect the dignity of the deceased and their good name. See CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [18] at 519; HCJ 5688/92 Vichselbaum v. Minister of Defense [19] at 827; FH 3299/93 Vichselbaum v. Minister of Defense [20] at 195. In the case at bar, the paragraph in dispute in Mr. Lerner’s screenplay, as produced by the Broadcasting Authority, offended the memory of Chana Szenes; it maligned her dignity and the myth surrounding her. The petitioners emphasize this point, stressing that “the name of one of the heroes of Israel, who gave her life to save her brethren and who, in the middle of the Holocaust, was prepared to enter the lion’s jaws of the Nazi regime in an attempt to rescue the remnants of the survivors, is being disgraced.” Sec. 3 of the petition in HCJ 6143/94.

13. The third value to be considered is the public interest. A person is a social creature; he or she does not live on an island but is part of a society. Society has interests that it seeks to realize, including the state’s existence, its democratic character, public security and welfare, the integrity of the judiciary and other similar values. If these public interests are not realized, human rights cannot be upheld. Human rights cannot be a national suicide pact. In the absence of public order there can be no freedom. Freedom is not anarchy and a democracy should not commit suicide in order to prove its vitality. Without public order, a democratic system cannot be maintained. See HCJ 109/70 The Orthodox Coptic Patriarch of Jerusalem v. Minister of Police [21] at 246. Each state has its own collective identity; each state has its national history and its own social goals, the realization of which forms part of the public interest. See Laor [5] at 433.

14. The public interest is not a static, defined concept. Rather, it reflects society’s basic credo. It is an expression of the general interest, required by it as an organized collective. See Dayan [17] at 472. It also includes various aspects of the individual’s interests. Consequently, protection of freedom of expression and of artistic creation is in the public interest. Similarly, protection of a person’s dignity and good name are also in the public interest. It is in the public interest that human rights be protected and upheld. It is in the public interest that the freedom of expression and artistic creation be maintained. But, in addition to this, the public interest also includes the interests of the general public. It includes the nurturing of culture, art and language. It includes the protection of language as a tool for national expression and cultural value, Re’em Engineers [10] at 203, the consideration of public sensitivities as an expression of social tolerance, HCJ 5016/96 Horev v. Minister of Transportation [22] at 44 {196}, the maintenance of historical continuity, and honoring national values. In our case I will assume that the paragraph in dispute does disgrace the good name and dignity of Chana Szenes. I will assume that it does harm national values, that it offends public feelings in general and the feelings of Holocaust survivors in particular. I will assume that it injures all those who cherish the memory of Chana Szenes.

The Balance

15. We began by addressing the freedom of expression and of artistic creation. We distinguished between the scope of these rights and the protection that we accord them. The paragraph in dispute in Mr. Lerner’s screenplay, as it appears in a film prepared by the Broadcasting Authority, is included in both Mr. Lerner’s and the Broadcasting Authority’s freedom of expression. It is part of their freedom of artistic creation and part of the freedom of creation of every member of the public. Freedom of expression and creation also includes the freedom to create and express that which is untrue. The issue before us, however, is whether the paragraph in dispute is constitutionally protected. Freedom of expression and creation, be it the creator’s, the producer’s or the public’s, is not absolute. Rather, it is relative. Its full scope is not protected. Does the paragraph in dispute benefit from the protection of Israeli law? In order to respond to this question we must first consider the other values and interests to be taken into account. Each of these values and interests must be given the weight that reflects its relative importance. Each must be placed on the scales and balanced. This balancing exercise is not conducted according to a single balancing formula. Instead, it is the substance of these conflicting values that determines how the balancing is to be carried out. Thus, the appropriate balance between the freedom of expression and between one’s good reputation is not the same as the appropriate balance between the freedom of expression and between the public peace. “The variety of nuances necessitates many points of balance.” Levy [9] at 401. We will now examine the appropriate modes of balancing.

16. The first pair of values to be discussed is freedom of expression and a person’s right to his or her good reputation. Where these two values conflict, which takes precedence? The answer is that speech which harms a person’s reputation does not cease to be protected speech, merely by virtue of its offensive content. The constitutional right to freedom of expression also extends to speech that harms an individual’s reputation. Even so, our legal system is sensitive to the need to safeguard a person’s good name in addition to protecting the freedom of expression. In the final analysis, they are both sustained from the same source – human dignity. Every legal system attempts to balance between conflicting values. This balance determines both the scope of the values and the extent of legal protection afforded the freedom of speech and reputation. This balance is reflected in the laws prohibiting defamation. These laws are the product of the balance which the legal system establishes between the freedom of expression on the one hand, and the need to protect a person’s reputation, on the other. They are the “conduit” via which the correct balance between freedom of expression and reputation is infused into the legal system. Whatever falls within the category of defamation loses the protection given to the freedom of expression. This balance is a “horizontal one”, for it determines the borders of the pertinent rights. The remedies for infringing these rights constitute part of the private law. Sometimes, the laws of defamation are not commensurate with the appropriate criteria for balancing between conflicting values. In such cases, the defamation laws may be adjusted in order to reflect the correct balance. See Sullivan [56].

17. Within the framework of the law of defamation, the genre of the docudrama is liable to raise special problems. The author of a docudrama is a creative interpreter. Reality is initially only the basis of his or her screenplay, but it eventually becomes an inseparable part of the artistic creation. The artistic creation reconstructs reality and supplements it. See D.A. Anderson, Symposium: Defamation in Fiction; Avoiding Defamation Problems in Fiction, 51 Brook. L. Rev. 383 (1984) [75] at 393. In these circumstances, the line between reality and imagination may be blurred, as well as the distinction between facts and assessments. In such a case, unique difficulties may be encountered in enforcing defamation laws. See Masson v. New Yorker Magazine, 501 U.S. 496 (1991) [57]; Davis v. Costa Gravas, 654 F. Supp. 653 (S.D.N.Y. 1987) [58]; Seale v. Gramercy Pictures, 964 F. Supp. 918 (E.D. Pa. 1997) [59]. We have no need to discuss these issues here, for the petitioners’ suit is not based on the law of defamation. Rather, their claim was filed within the framework of public law. They have requested that the Broadcasting Authority refrain from broadcasting the paragraph in dispute, for reasons of public interest, and for these reasons only.

18. In this case, in the context of public law, the freedom of expression and of artistic creation conflict with the public interest. The freedom of expression and creation at issue here is that of the playwright, Mr. Lerner. It is also that of the Broadcasting Authority. It is also the freedom of expression of every member of the public wishing to view the program, in the sense of “the public’s right to know.” The public interest in the case before us is complex, for it includes the public interest in protecting the rights of Mr. Lerner, of the Broadcasting Authority and of Chana Szenes, including the dignity and good name of Chana Szenes. The public interest also includes the interest in protecting historical truth and honoring national values. It further extends to the public interest in seeking not to offend public feelings in general and the feelings of Holocaust victims in particular. Indeed, these Holocaust survivors were particularly offended by the harm to the legend of Chana Szenes. How is this conflict then to be resolved?

The issue is not a new one for us; it raises the well-worn question regarding the “vertical” balance between individual rights and the public interest. This balance does not establish the scope of the right, but rather determines the degree of protection afforded it, and the license given to government authorities to violate it. In a long series of judgments, which anchored the tradition of freedom of expression in Israel, this Court examined this balancing exercise. See A. Barak, Chofesh Habitoi Umigbaloteha, 40 Hapraklit 5 (1993) [66]; A. Barak, Hamisoret shel Chofesh Habitoi Biyisrael Ubiayoteha, 27 Mishpatim 233 (1997) [67]. Our point of departure is that, in a freedom-loving, democratic society, it is justified to limit the protection granted to freedom of expression and creation when doing so harms the public interest. Nonetheless, not all harm to the public interest warrants circumscribing the protection granted freedom of speech and expression. Such limitations are considered justified only if they are consistent with the values of the State of Israel as a Jewish and democratic state, if the limitation is for a proper purpose and if the limitation is not greater than necessary to prevent the harm. These requirements are entrenched in the limitation clause of the Basic Law: Human Dignity and Liberty, § 8, and reflect the position of the legislature regarding the public interest’s ability to curtail individual freedom. See HCJ 4541/94 Miller v. Minister of Defence [23] at 138 {231}; CrimFH 2316/95 Ganimat v. State of Israel [24] at 653; Horev [22] at 41-43 {193-95}. Indeed, if every public interest justified withdrawing the protection granted to the freedom of expression, these freedoms would be dealt a fatal blow, seriously undermining the democratic character of the state.

19. Do the values of the State of Israel as a Jewish and democratic state allow for the freedom of expression and artistic creation to be violated in order to uphold a public interest? The answer to this question is in the affirmative. Admittedly, the freedoms of expression and creation are integral parts of a democracy. Democracy and the freedom of speech are inextricably intertwined. An improper infringement of the freedom of expression and creation infringes all other human rights and jeopardizes the democratic nature of the regime. See Israel Electric Company [4] at 293. Democracy is the heart of freedom of expression, and freedom of expression revitalizes democracy. See Kol Ha’Am [8] at 876; HCJ 372/84 Kloppfer-Naveh v. Minister of Education and Culture [25] at 238; Kahane [14] at 274. This having been said, in order to sustain a democratic regime that protects human rights, it is sometimes justified to infringe the freedom of expression and artistic creation.

20. In the framework of the public interest, harm to which justifies curtailing the freedom of expression and creation, we should also consider offense to public feelings. This conclusion is by no means obvious; it poses a difficult dilemma for any legal system founded on democratic values. See Horev [22] at 47-48 {200-01}. On the one hand, there is a serious danger of violating freedom of expression and artistic creation if offense to public feelings is cause for restricting these freedoms. Expression can offend another person’s feelings; if every such offense was to justify infringement of the freedom of expression and creation, surely these freedoms, and indeed democracy itself, would be emptied of meaning. HCJ 953/89 Indoor v. Mayor of Jerusalem [26] at 690. A democratic society is based on the recognition that the feelings of some will inevitably be offended by their fellows’ exercise of their respective freedoms. This is part of tolerance for the opinions of others, which characterizes the democratic regime. Universal City Studios [13] at 37. On the other hand, a democratic regime is sensitive to these feelings, for this too is an aspect of tolerance:

The sons and daughters of a free society, in which human dignity is a cherished value, are all called upon to respect the personal religious feelings of the individual and his or her human dignity. This must be based on tolerance and the understanding that personal religious feelings and their various modes of expression differ from one individual to another.

HCJ 257/89 Hoffman v. Appointee over the Western Wall [27] at 354 (Shamgar, P.).

The solution to this dilemma is found in the understanding that only severe offenses to feelings warrant curtailing the freedom of expression and creation. Thus, a democratic regime must arrive at a “level of tolerance” for offending feelings. Only where the degree of offensiveness exceeds this “level of tolerance” can restrictions on the freedom of expression and creation be justified in a democratic society. See Horev [22] at 47‑48 {200-01}. I explained this in Indoor [26] at 690, in which I wrote:

A democratic society that endeavors to protect both freedom of expression and public feelings must set a “level of tolerance,” according to which only an offense to public feelings that exceeds this level can justify curtailing the freedom of expression.

In Horev [22] at 48 {201}, I added:

[I]t is possible to infringe human rights for the purpose of protecting feelings – particularly religious feelings and lifestyle – in a society with democratic values, provided that the harm exceeds the threshold of tolerance accepted in that society.

In HCJ 606/93 Kiddum Yazamoth and Publishing (1981) v. Broadcasting Authority [28] at 16, Justice Dorner wrote:

A democratic society, characterized by tolerance extended to differing views, assumes and permits that feelings be offended up to a certain point. For expressions that are pleasant to the ears of all do not require protection… Harm which is sufficiently great to warrant restricting freedom of expression must be both severe and significant.

The same idea was raised by Justice Mazza, in HCJ 2888/97 Novik v. Channel Two Television and Radio [29] at 201, who wrote:

In order for the Court to impose prior restraints on speech, based on the argument that publishing the expression will harm public feelings, it must first be convinced that the speech’s content is so severe, and the harm expected to the public so grave, that failing to prohibit the publication will create a clear and imminent danger of undermining public order or will severely and concretely disrupt it.

Thus, in view of the priority that democracy sees in the freedom of expression and artistic creation, only an offense to public feelings that is both severe and grave – one which exceeds the level of tolerance level that a person assumes in a democratic society – will justify restricting or withdrawing the protection normally afforded freedom of expression and artistic creation. Moreover, the likelihood of the harm actually occurring must be one of “near certainty.” A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael 1003 (5th ed. 1997) [63]. Even so, special and exceptional circumstances may justify a standard of “reasonable likelihood.” See CrimA 126/62 Disentzik v. Attorney General [30] at 169; CrimA. 696/81 Azulai v. The State of Israel [47]; CrimA 6696/96 Kahane v. The State of Israel [32].

A Proper Purpose and the Appropriate Means

21. An infringement on freedom of expression and creation is only justified when the infringement is for a proper purpose and the least restrictive means are used to achieve that purpose. A purpose is deemed proper if it constitutes a social goal in a society sensitive to human rights. An infringement will be considered not to exceed that which is necessary if it adheres to the standards of proportionality. See HCJ 987/94 Euronet Kavei Zahav (1992) v. Minister of Communications [33]; HCJ 3477/95 Ben Attia v. Minister of Education Culture and Sport [34]. An examination must always be conducted in order to ascertain whether it is possible to adopt less restrictive measures for the purpose of achieving the purpose in question.

From the General to the Specific

22. My presumption is that the paragraph in dispute offended the dignity and good name of Chana Szenes and harmed the legend of Chana Szenes. It is not an accurate description of historical events. It offended the feelings of the public and, specifically, the feelings of Holocaust survivors. All of these harm the public interest. Does this harm justify withdrawing the statutory protection afforded Mr. Lerner, the Broadcasting Authority and the freedom of expression and creation? My answer is in the negative. This answer is based on the fact that infringing the freedom of expression and artistic creation of Mr. Lerner and the Broadcasting Authority is inconsistent with the values of the State of Israel as a Jewish and democratic state. This being the case, I need not conduct the further examination of determining whether the infringement was for a proper purpose and did not exceed that which was necessary.

23. The values of Israel as a Jewish and democratic state include the freedom of expression and artistic creation of every individual, even when his or her expression is offensive to the feelings of others. For it is precisely in those cases, when expression is provocative, that the speech and its author require protection. A democracy’s strength lies in the protection that it extends to unpopular opinions and works. The test of democracy is not the protection granted to expressions that are pleasant to hear. Its test is in those difficult cases, in which the population rejects the expression and shuns the creation. See HCJ 351/72 Keinan v. The Film and Play Review Board [35] at 816. This is the doctrine of tolerance, on which democracy is founded. Each individual in society accepts that certain expressions will, to some extent, hurt his or her feelings, as long as the offensiveness does not exceed the appropriate level of tolerance. In my opinion, the offensiveness of the disputed paragraph, to the feelings of the public in general and of the Holocaust survivors in particular, does not exceed the level of tolerance which binds the members of a Jewish, democratic society. It is true that many have been offended, and the offense is real and sincere. Yet this is not sufficient; much more is required. To be precise, our concern here is not whether the heirs of Chana Szenes have a legal claim to civil damages. We are not dealing with the horizontal balance between the rights of the speaker and creator and between the rights of the maligned and defamed person. Our concern is with the restriction of freedom of speech for reasons of public interest, and as part of the offense caused to public feelings. In this context, my position is that the harm to Chana Szenes’ dignity and good name does not exceed the tolerance level assumed by every member of Israeli society.

24. The “level of tolerance” for offense to feelings differs from freedom to freedom. HCJ 7128/96 Movement for Temple Mount Faithful v. Government of Israel [36] at 521. The tolerance threshold is particularly high in the context of limitations on the freedom of speech and creation. Only in exceptional and extreme cases will we find that feelings are offended beyond that high level of tolerance. In reference to these instances, I noted in Universal City Studios [13] at 38 that:

Our tradition of freedom of expression and our reluctance to impose content-based prior restraints, limits these cases to those that are exceptional and unusual. These must be cases that shake the very foundations of mutual tolerance.

As such, expression can only be limited if it offends public feelings to the extent that it shakes the foundations of mutual tolerance. This high degree of offensiveness does not exist in the case before us. Despite all the pain that results from the maligned image of Chana Szenes, it certainly cannot be contended that the screenplay shakes the foundations of mutual tolerance. It is no different than instances of offended feelings in other cases, in which this Court ruled that the offensiveness does not exceed the level which warrants imposing restrictions on freedom of speech. See e.g., Keinan [35]; Laor [5]; Universal City Studios [13].

25. The disputed paragraph is not historically accurate. Indeed, it lacks any historical basis and is false. Is it appropriate to protect false expression? Is the expression’s falsehood sufficient to transfer it beyond the “level of tolerance”? The answer to these questions is that a democratic, freedom loving society does not predicate the protection of speech and creation on that speech being an accurate reflection of the truth. This point was made by Acting President Landau:

If it was only an issue of fabricating historical facts, this in itself would be insufficient to ban the film. For the authors could argue that there is no one historical truth and that each historian has his own truth. In any event, generally speaking, since when does falsehood in a film or play provide grounds for banning it in a state which guarantees freedom of expression to its citizens?

HCJ 807/78 Ein Gal v. Film and Play Review Board [37] at 277.

The rationale underlying this approach is not that we cannot know what the truth is, as yesterday’s lie may yet become tomorrow’s truth. This approach does not derive from our indifference to the lie and or our placing it on equal footing with the truth. This approach does not attach the same degree of importance to truths and lies. Rather, it is premised on a preference for the truth. Underlying this understanding is an approach beckoning us to seek to reveal the truth and frustrate the lie. At foundation, this stance is based on the philosophy of freedom, according to which the test of truth is its persuasive power. The way to deal with falsehood is not by suppressing it but by explaining the truth. Falsehood fails when it is exposed, not when it is suppressed. Compare R. Cohen Almagor, Gvulot Hasavlanut Vihacherut 130 (1994) [64]. Lies are not fought by suppressing the freedom of the one who lies, but by strengthening the freedom of the one who speaks the truth. See Kahane [14] at 272. The truth shall prevail by virtue of its own inner power and ability to defeat falsehood in the clash of ideas. The truth shall emerge from the struggle between it and falsehood. President Agranat made this point in Kol Ha’Am [8] noting:

At foundation, the process is no more than the process of clarifying the truth, so that the state may learn and know how to choose a course of action and achieve that action in the most efficient manner. Freedom of expression serves as a means and as an instrument to clarify what that truth is, since it is only by considering “all” points of view, and through the free exchange of all ideas that “truth” can be uncovered.

Id .at 877.

The following statements made by Justice Brandeis, in Whitney v. California (1927) [60] at 377, are also well-known:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

These words reflect the tradition of freedom of speech in Israel. Falsehoods shall fail as a result of education. Lies will be put to the test in confronting the truth. Encouraging public discussion, rather than its suppression, is the remedy that democracy supplies against the malady of falsehood. With respect to Chana Szenes, the truth will emerge in the public discussion likely to follow in the wake of the screenplay’s broadcast. Public discussion, together with the publication of articles on the matter by researchers and writers, will lead to the triumph of truth over falsehood. These will enhance Chana Szenes’ grandeur and illuminate the flame that she kindled. Internal conviction, not government prohibition, shall lead to the victory of truth over falsehood. See HCJ 273/97 Association for the Preservation of Individual Rights of Homosexuals, Lesbians and Bisexuals in Israel v. Minister of Education, Culture and Sport [38].

26. This high threshold required to justify restricting the freedom of speech is especially applicable to the literary genre of the docudrama. This genre combines historical truth and literary imagination. Classic creations throughout the generations were premised on this combination. Indeed, human culture would be stunted were creators unable to draw upon historical characters. Authors and playwrights are not historians and one should not expect them to reconstruct the truth. Their freedom of imagination should be protected and they should be subject to an artistic, rather than scientific, examination. An artistic creation should be assessed artistically and comprehensively, not historically.

27. Is this case unique since the work in question damages the legend of Chana Szenes, a national heroine and revered figure? Should this myth be shattered in the name of freedom of expression? The paragraph in dispute is quite unfortunate. Had I written the screenplay myself, I would have done without it. But the play was written by Mr. Lerner – he is its creator. In his opinion, his artistic criteria necessitated the paragraph. It is not for us to censor plays and movies. One can only be sorry for the possible damage to the legend of Chana Szenes. However, a democratic society does not preserve the image of its heroes by repressing freedom of expression and artistic creation. The legend must flow from the free exchange of ideas and opinions. It cannot be the fruit of governmental restrictions imposed on freedom of expression and creation. The legend of Chana Szenes will survive and flourish by virtue of the truth that lies in freedom, not by way of stifling falsehood. The legend is founded on Chana Szenes’ poetry and bravery. Falsehood can harm neither her nor her memory. In the struggle between them, in the “free market” of ideas, truth shall reject falsehood.

28. Mr. Lerner and the Broadcasting Authority offended both the dignity of Chana Szenes and her good name. Is this offense protected by the freedom of expression? We must be precise: we are not concerned with conflicting basic rights in the framework of private law. Our concern is not deciding whether private law – for example, the law of torts or contracts – recognizes a right of action and offers a remedy. We are not dealing with an action by Chana Szenes or her heirs against Mr. Lerner and the Broadcasting Authority. This is not an issue of defamation or damages. Nor is it an issue of an injunction within a civil claim. As we observed above, a civil claim is both difficult and complex.

Our concern is different, for we are dealing with Chana Szenes’ human dignity and good name as part of the public interest. In this context, human dignity, as a right, is subsumed within the public interest. We are therefore dealing with the vertical balance between a person’s right to freedom of expression and the public interest in preserving Chana Szenes’ good name and dignity. The issue is whether the injury to her dignity and good name warrants the violation of the freedom of speech and artistic creativity. The answer to this question is provided by the vertical balance, according to which freedom of expression and creativity can be violated only if such violation is consistent with the values of the State of Israel, is for a proper purpose, and does not exceed the necessary means. The infringement is deemed to be consistent with the State of Israel’s values only if the probability of its materialization is nearly certain, and only if the harm to the public interest is harsh, serious and severe. Such harm will be considered to have occurred when it exceeds the “level of tolerance.” As such, the fact that Chana Szenes’ dignity and good name were violated is insufficient to justify a parallel violation of freedom of expression and creativity. Nor is it sufficient that the violation of dignity and reputation are extreme and severe. Within the framework of the vertical balance between freedom of expression and creativity and the right to preserving one’s reputation, the question we must ask ourselves is whether the harm to dignity and reputation, as part of the public interest, is so grave as to exceed Israeli society’s level of tolerance. The question is whether the harm to Chana Szenes can be said to shake the very foundation of mutual tolerance. We do not ask ourselves whether the rights of Chana Szenes or her heirs were transgressed; instead, we ask whether the public interest was gravely harmed so as to justify restricting freedom of expression and artistic creation, irrespective of the rights of Chana Szenes and her heirs. These questions must be answered in the negative. Within the framework of public law, even serious damage to Chana Szenes’ reputation and dignity cannot be considered sufficient to justify violating freedom of expression and creativity. Such a violation becomes possible only when it appears that the harm to the dignity and reputation of Chana Szenes, including the damage to her ethos, to historical truth and to the other components of the public interest, is serious and grave, so that it may be said, with near certainty, that it is above and beyond that which can be tolerated in a freedom-loving democratic society. As we have seen, the harm in question did not reach this dimension. The remedy for the damage to Chana Szenes’ dignity can only be sought in the realm of private law.

I am aware that, under similar circumstances, the German Constitutional Court recognized the possibility of restricting freedom of expression. See 30 BverfGE 173 (1971) [61] [hereinafter Mephisto]; D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany [73] at 301. Even so, this ruling – itself the subject of controversy, D. Currie, The Constitution of the Federal Republic of Germany [74] at 195 – related to private law relationships and had no application to public law. The case dealt with the right of an actor’s relatives to request an injunction against the publication of a book that, in their opinion, defamed their relative, the deceased. It does not address the duty of a public authority to prevent the work’s publication for reasons of public interest. Mephisto [61] involved a conflict between two rights – the freedom of expression and artistic creativity as opposed to human dignity. The remedy requested was within the realm of private law. In the petition at bar, the right of freedom of expression and artistic creation conflicts with the public interest (human dignity). Accordingly, the balance in the two cases may be different.

29. Prior to completing my remarks on this subject, I will stress that there is no sharp distinction between balancing in public law and in private law. Just as considerations of individual rights form part of the public law, so too do public policy considerations flow into the private law realm and help shape the rights protected there. See CA 294/91 [18]; see also 3 A. Barak, Parshanut Bimishpat, Parshanut Chukatit 649 (1994) [65]. This having been said, we are not dealing here with total identity of interests. Rather, the weight that attaches to the different considerations and interests is likely to vary with the context – private or public law – and with the specific case. Accordingly, the final balance may also change. In our case, both the horizontal balance, which determines the scope of the right to freedom of expression and artistic creation when these conflict with human dignity (as part of the public interest), and the vertical balance, which determines whether freedom of expression and artistic creation may be violated in order to protect human dignity, are conducted within the framework of public law. The question before us is whether the public interest, in its broad sense, justifies violating the freedom of expression and artistic creation. My answer to this question is in the negative.

The Discretion of the Broadcasting Authority

30. Until now, we have discussed the freedom of expression of Mr. Lerner, the Broadcasting Authority and of the public. We have concluded that Mr. Lerner and the Broadcasting Authority are free to publish and broadcast the screenplay, without that freedom being restricted for reasons of public interest. In our analysis, we did not distinguish between Mr. Lerner and the Broadcasting Authority. We related to them as to any other person in the State of Israel. But is the Broadcasting Authority like any other person? Is the Broadcasting Authority, by virtue of its special status, not subject to restrictions which are not applicable to Mr. Lerner? The Broadcasting Authority Law provides that the Broadcasting Authority shall conduct its programming as “a government service.” The Broadcasting Authority Law, § 2. Can a government authority televise a program, fully aware of its historically inaccurate basis, which disgraces a revered public figure like Chana Szenes? One of the Broadcasting Authority’s functions is to reflect the life of the State of Israel. The Broadcasting Authority Law, § 3(1)(a). Does it discharge this duty when it publishes falsities regarding Chana Szenes? How does this broadcast comply with the Broadcasting Authority’s duty to ensure that “reliable information,” see The Broadcasting Authority Law, § 4, is available to the public? Can it not be said that the Broadcasting Authority exercised its discretion in an unreasonable manner?

31. These questions are not new for us. The scope of the Broadcasting Authority’s discretion has been examined by our case law. In this respect, this Court emphasized two basic propositions, one general and the other specifically relating to the Broadcasting Authority. The general proposition is that a decision is only deemed unreasonable if no reasonable agency could have adopted such a decision. The degree of unreasonableness, it follows, must therefore be extreme. Indeed, “only a blatant affront to our sense of justice can justify striking down an agency’s act.” HCJ 1/81 Shiran v. Broadcasting Authority [39] at 378 (Shamgar, J.). The unreasonableness must be extreme, going to the root of the matter. HCJ 156/75 Dakah v. Minister of Transportation [40] at 103.

The specific proposition, for its part, relates to judicial intervention concerning the freedom of expression. To this effect, Justice Shamgar wrote, in Shiran [62] at 378:

[t]he fact that we are dealing with the broadcasts or publication of written material prompts us to act with further restraint. This is due to the additional guiding principle of freedom of expression, which is a component to which special weight attaches. Thus, in order for this Court to prohibit a public authority from broadcasting or publishing a particular broadcast or publication, extreme circumstances indicating the presence of a tangible and nearly certain danger to public peace … or other clear and obvious illegality, must exist.

Justice Shamgar continued, Id. at 379, holding:

[E]verything must be done in order to prevent issues which are no more than disputes over culture, education, good taste or the like, from being dragged into Court. For, as stated, this Court cannot take upon itself a supervisory role over the contents of broadcasts, nor should it do so ... except in extreme circumstances, as mentioned above.

Justice Shamgar pointed out that the supervision over the Broadcasting Authority’s exercise of its discretion in such matters is administrative and internal, rather than judicial and external. He noted that the Authority’s organs are charged with this role. Hence, the Court should not intervene except where a blatantly unreasonable decision, which creates an almost certain danger to the public interest, is adopted. See also HCJ 266/81 Avron v. Broadcasting Authority [41]. Indeed:

Be the historical truth what it may, the Court will not censor the Broadcasting Authority by prohibiting programs which any particular petitioner, the Court, feels that it does not reflect the real truth. This is the dictate of freedom of expression, upon which the State of Israel as a democratic state is founded.

HCJ 2137/98 Elias v. Chairman of the Broadcasting Authority’s Managerial Committee [42].

32. I accept that the Broadcasting Authority has discretion in determining its programming. Mr. Lerner’s freedom of expression, however, does not necessarily obligate the Broadcasting Authority to broadcast his screenplay on the radio or television. The Broadcasting Authority functions both as a forum and a spokesman and its freedom of expression allows it to decide what to broadcast and what not to broadcast. Indeed, the Authority is entitled to decide that, for any particular reason, that it will not broadcast Mr. Lerner’s screenplay. I am even prepared to grant that the paragraph in dispute would have constituted an appropriate reason for such purposes. However, the Broadcasting Authority did in fact decide to broadcast Mr. Lerner’s screenplay and we are now being asked to interfere with that decision. This we cannot do, for two reasons. First, the Authority’s decision is not so unreasonable as to justify the intervention of the High Court of Justice. Second, it certainly cannot be said that no reasonable Broadcasting Authority could have decided to broadcast Mr. Lerner’s screenplay, including the paragraph in dispute. The reasonableness of a decision is a function of the appropriate balance between conflicting values. HCJ 935/89 Ganor v. Attorney General [43] at 513; HCJ 6163/92 Eisenberg v. Minister of Construction and Housing [44]. The conflicting values in this case are freedom of expression and artistic creation, on the one hand, and the public interest, on the other. Additional factors to be considered are the Broadcasting Authority’s status as a government service provider, its role and its integrity. As we observed, with respect to the conflict in the case before us between freedom of expression and artistic creation, on the one hand, and the public interest, on the other, the freedom of expression and artistic creation prevail. Considerations relating to the Broadcasting Authority’s status cannot cause the decision to broadcast the program to be regarded as exceeding the parameters of reasonability. Certainly, it cannot be said that this decision’s unreasonableness is so extreme that no reasonable Broadcasting Authority could have adopted it.

33. Second, the scope of the High Court of Justice’s intervention in the Broadcasting Authority’s freedom of choice is narrow. As Justice Shamgar noted in Shiran [39] exceptional circumstances are required to justify a judicial decision enjoining the Broadcasting Authority from exercising its freedom of expression and artistic creation. Deputy President Justice Ben-Porat dwelled on this point, in HCJ 259/84 M.I.L.N, Israeli Institute for Better Business and Product v. Broadcasting Authority [45] at 680, stating:

It is established that when freedom of publication or broadcast is involved, this Court will act with great restraint and will limit its intervention to extreme cases, such as a tangible and nearly certain danger to the welfare of the public at large… or clear and obvious illegality. The public has a right to freedom of expression being preserved in the media. The broadcast spectrum belongs to the public and the Broadcasting Authority’s various organs are entitled, and even obligated, to assume the responsibility for complying with the law when gathering and broadcasting information. Thus, this Court’s powers of supervision and review are to be exercised cautiously and rarely when considering intervention in the freedom of publication.

Such exceptional circumstances are said to exist only if the broadcast will cause severe, grave damage to the public interest. When the alleged damage is injury to feelings, such injury must be extreme to the point of shaking the foundations of mutual tolerance in a democratic society. Harm of this nature is not present in this case. Consequently, there are no grounds for the intervention of this Court.

34. These two are interrelated and are bound up with the balance between freedom of expression and artistic creation, on the one hand, and the public interest, on the other. Indeed, the discretion of the Broadcasting Authority must not be isolated from the total complex of constitutional values and the appropriate balance between them. See HCJ 243/82 Zichroni v. Directorial Committee of the Broadcasting Authority [46] at 785; Kahane [14] at 307. Our determination that harm to the public interest does not justify suspending the protection offered by freedom of expression and artistic creation necessarily affects the reasonableness of the decision of the Broadcasting Authority. This is certainly the case when the Broadcasting Authority’s decides to permit, rather than censor, a publication. This is certainly the case when we are requested to impose a prior restraint on a program, despite the Broadcasting Authority’s decision to televise it. We will only adopt the role of censor as a last resort. In this context, I concur with the comments of my colleague, Justice M. Cheshin: “the director of the Broadcasting Authority is responsible for its broadcasts; this Court is not responsible for the content of the broadcasts. I refuse to assume the management of the Authority.” Kiddum [28] at 37.

As such, when the Broadcasting Authority decides to broadcast a particular program that offends the feelings of the public, only very extreme and exceptionally severe cases will warrant this Court’s intervention. Such intervention, in the form of the prior restraint of the expression, infringes on the freedom of expression and artistic creation of the program’s author. It violates the Broadcasting Authority’s freedom of expression, both as a speaker and forum. Moreover, it violates the right of every member of the public. This three-tiered violation can only be allowed when the harm to the public interest is so severe and serious that it shakes the very foundations of mutual tolerance. The case must be extreme to the extent of shattering all that unites us. The harm to the public interest must be, in the words of Justice Mazza, “so fatal that refraining from prohibiting the publication will create a concrete and imminent danger of uprooting the public order, or of severely and gravely disrupting it.” Novik [29] at 202. These are not the circumstances in the case before us.

35. What then will become of the Broadcasting Authority’s public role? My response to this is that airing the play will not interfere with the function of the Broadcasting Authority. The play is a docudrama, interpolating imagination with reality. It is based on a combination of historical figures and historical events. The falsehoods in the play are peripheral, intended for artistic effect. All of these factors bring the decision to broadcast the screenplay within the boundaries of reasonableness. Admittedly, the Broadcasting Authority is under a duty to broadcast “reliable information.” A docudrama, however, is not a program that broadcasts information. It is an artistic creation and must be viewed as such. It must be assessed according to its artistic character, not according to its historical message. It must be understood as an artistic whole, comprising elements both true and false. With respect to the Broadcasting Authority’s role and the reasonableness of the decision, the work’s artistic character is decisive. The case is not so extreme as to justify our intervention.

It is for these reasons that I have decided to reject the petition.

Justice E. Mazza

I concur with the judgment of my colleague, the President.

Justice M. Cheshin

He was born on March 25, 1992. When he was two years old, we improved his appearance and gave him understanding. Today he is about seven and a half. Long may he live. I am, of course, referring to the Basic Law: Human Dignity and Liberty, the law enacted in honor of human dignity and liberty. Human dignity is this central pillar of this law. The law is infused with human dignity. Human dignity gives it life. I had hoped that the petition before us would drive a stake deep into the bedrock of our law and that, above ground, this stake would be a mast, flying the flag of human dignity. All would know – all over the land – that the beginning, the middle and the end are human dignity. That in the absence of human dignity there is neither man nor society. This was my hope; this was my expectation. I am sorry that we missed this opportunity. We will not despair; we wait for tomorrow.

The Facts

2. Our case concerns a screenplay written by the playwright Motty Lerner. It is called “The Kastner Trial.” Israel Television was scheduled to broadcast, and did broadcast, the screenplay in three parts, beginning on November 7, 1994 – the 50th anniversary of Chana Szenes’ murder by the Gestapo. The screenplay is rooted in the actual events that occurred in Hungary during the Second World War, in 1944, and during the Kastner trial, which took place in Israel from 1953 through 1958.

3. First, there was the terrible tragedy that befell the Jews of Hungary during the Second World War – the murder of these Jews by the Nazis and the attempts made to rescue some of them from this inferno. This tragedy was the background to the indictment filed by the Attorney-General of Israel against Malchiel Greenwald, charging him with defaming Dr. Yisrael Kastner. In 1944, Dr. Kastner was one of the leaders of Hungarian Jewry. Greenwald distributed a pamphlet in which he publicly accused Dr. Kastner of being guilty of the following four charges, in the words of the court:

(a) Collaboration with the Nazis;

(b) The “indirect murder” or “preparing the ground for the murder” of Hungarian Jewry;

(d) Helping that criminal evade punishment after the war.

Greenwald’s trial was conducted in the Jerusalem District Court, with President B. Halevi presiding. Ultimately, President Halevi decided to acquit Greenwald of three of the four counts of defamation. Greenwald was only convicted on the third count. In recognition of his acquittal on all the other counts, he was fined the token sum of one Israeli Lira. DC (Jer) 124/53 Attorney General v. Greenwald [55].

The Attorney-General appealed the district court’s judgment. In a panel of five judges, the Supreme Court accepted the main part of the appeal. Greenwald was convicted of charges (a) and (b). With respect to charge (a), he was convicted by a majority opinion of four against one. His acquittal on charge (d), however, remained intact. See CrimA 232/55 Attorney-General v. Greenwald [47].

4. Motty Lerner’s screenplay is the third floor of the story, built on the two floors underneath. The first floor is the tragedy that struck Hungarian Jewry in 1944. The second floor is the drama played out in the Jerusalem District Court during the Greenwald trial, the trial known as the “Kastner Trial.” The third floor is the drama on stage – Motty Lerner’s screenplay “The Kastner Trial.” Whoever saw the play on television – and I saw it – knows that the playwright is particularly gifted. And we know that the play’s impact on viewers is directly proportional to the talent of the playwright and the power of the play.

5. One paragraph in the play particularly troubles the petitioners here. We refer to the part where Mrs. Catherine Szenes, the mother of Chana Szenes, is cross-examined. Mrs. Szenes appeared as a witness in the trial and was cross-examined by Greenwald’s attorney. During her testimony, Dr. Kastner repeatedly interrupts her, until the climax in which he accuses Chana Szenes of betraying her comrades to the Gestapo. The script reads as follows:

“Kastner

(angrily, at Catherine Szenes):

Catherine Szenes:

Not true!!! “

These lines formed the basis of the petitioners’ claim. The petitioners request that the paragraph be deleted from the play. They claim that the statement that Chana Szenes betrayed her two comrades, Peretz Goldstein and Yoel Palgi, to the Gestapo, is a lie, and that this will irreparably defame Chana Szenes. In fact, they claim, Chana Szenes bravely endured severe torture at the hands of the Gestapo and did not divulge secrets to her torturers. This was the case with Goldstein and Palgi, and it was also the case regarding the secret code that she had for British intelligence transmissions, which the Nazis wanted in order to transmit disinformation.

6. Petitioners submitted evidence to prove their claim. In fact, it is undisputed that Kastner’s statement in the play was false. There is not even a shred of evidence that Chana Szenes betrayed her comrades to the Gestapo. Thus, we may dispense with the first floor, the events that occurred in Hungary in 1944. Proceeding to the second floor – the trial itself – all agree that, at Greenwald’s trial, Kastner never made the allegation attributed to him by Lerner. In other words: Kastner’s words in the play, as cited above, have no basis in reality and are no more than a figment of the playwright’s imagination.

7. Motty Lerner and the Broadcasting Authority were obviously aware of the sensitivity of televising the play. Thus, each segment was prefaced by the following paragraph:

Furthermore, the play was shown at the Tel‑Aviv Cinematheque. At the time of the screening, an explanatory sheet was distributed to the audience, entitled “The Author’s Apology.” The following is Motty Lerner’s explanation of the screenplay:

The film ‘The Kastner Trial’ is a fictional drama inspired by events that actually occurred. The drama strives to integrate these historical events with the behavioral patterns of dramatic characters. Casting events in this manner obviously necessitated divergence from how the events actually occurred and, as such, posed a difficult dilemma concerning the degree of historic accuracy required in an artistic creation.

This dilemma may be avoided by responding that the film is merely an artistic creation, not a historical document. As such, it must be assessed according to artistic standards, as opposed to historical ones. Even so, there is no escaping the fact that the script offers an interpretation of events which are the subject of sharp controversy; clearly many viewers will choose to see it as interference with the historical record, rather than simply as an artistic creation. Given that, while writing the script, I wavered between these two approaches. As such, I think that I should clarify some of the rules that I set for myself.

As a rule, I strove to be as accurate as possible. Even so, and specifically with respect to scenes that took place behind closed doors, where I was unable to discover what had actually happened, I assumed poetic license to recreate events with my own imagination, with the reservation that the events must be consistent with the historic reality. I did my best to utilize this freedom in order to give the characters depth, and to put the events that actually occurred into a sharper focus. My working principle was that I would not facilitate my task by deleting events that contradicted my own political, historical world-view. This was not just because I wanted to act with artistic and intellectual integrity, but also because it was precisely those events that challenged my political views that created a more authentic, penetrating and moving drama.

I hope that I have succeeded in finding the optimal balance between the historical imperatives, the need to express my own personal worldview, and my commitment to the quality of the artistic creation.

Motty Lerner (emphasis added).

About ten days before the first showing, on October 28, 1994, an article appeared in the weekend section of the newspaper Yediot Aharonot, entitled “Did She Break?”

A huge controversy is liable to erupt following the new television series, which will accuse the paratrooper Chana Szenes, who was sent to the aid of Hungarian Jewry during the Holocaust, of breaking under interrogation and betraying her comrade paratroopers to the Fascist police. The accusation comes from the mouth of Yisrael Kastner, the organizer of the rescue train from Budapest and the man “who sold his soul to Satan.” Author Aharon Meged: “this is a travesty and lies.”

Ms. Aspa Peled, the author of the article, interviewed Mr. Lerner:

[Peled:] “... Motty Lerner, is the legend a lie?

[Lerner:] I see myself as someone disclosing the subjective truth of Kastner and the members of the Rescue Commission, who were trapped in a web of mythology and myth, one which they could not escape. Perhaps they were even afraid to do so. It seems to me that today we have the maturity to understand that Chana Szenes was indeed a great heroine, even though she may have broken under interrogation. In the final analysis, how many of the Israeli soldiers who fell prisoner to the Egyptians or the Syrians did not break under interrogation? In my view, this in no way detracts from her bravery.

[Peled:] So was she a traitor or not?

[Lerner] I was not present at the interrogation and I do not know. What is clear is that Chana crossed the border and she had one contact address that she had to reach – Kastner. Three days later, Goldstein and Palgi reached Kastner without him even knowing that they were on their way to him. I have no tools with which to examine the matter and so in the film, I present it as Kastner’s opinion.

[Peled:] But Kastner never said that.

[Lerner:] Kastner was convinced that Chana had turned the paratroopers in. This I know from hints in his writings.

In reaction to Mr. Lerner’s last comments regarding the “hints” in Dr. Kastner’s letters, we note that this argument, nor anything similar to it, was ever raised at the trial before us, neither directly or even by implication. All agree that the words attributed to Dr. Kastner in the play are false, both in that cursed year 1944 in Hungary, and in Greenwald’s trial. There is not a shred of evidence that Chana betrayed her comrades to the Gestapo. Quite the opposite. Furthermore, Dr. Kastner never made the statements attributed to him by the screenplay’s author. In plain language, it may be said that the accusation leveled at Chana Szenes by Dr. Kastner in the play is defamatory.

This completes our review of the facts, some of which we shall revisit during the course of our comments.

The Broadcasting Authority’s Duty and Our Authority to Disallow the Broadcast

8. Prior to entering the chamber of values and truth, we will say a few words regarding our authority to order the Broadcasting Authority to comply with the petitioners’ request. No one questions our authority to prevent the Broadcasting Authority from televising the disputed paragraph. The Broadcasting Authority was entitled to refuse to broadcast “The Kastner Trial,” either in its entirety or in part, and its decision to reject the petitioners’ request to delete the paragraph in question is subject to our judicial review. The question is not whether this is the sort of matter that the High Court of Justice can review and reverse. Up to this point, my colleagues and I agree. But from here on, our ways part. My colleagues argue that the petitioners did not succeed in crossing the threshold; in my opinion they indeed crossed it, and with room to spare.

The Issue in Dispute

9. These are the two forces, each pulling in different directions. On one end, Motty Lerner’s freedom of expression and artistic creation and, on the other, human dignity. The dignity of Chana Szenes, a young woman murdered by the Gestapo, who is unable to come and defend her dignity. Shall we accede to the petitioners’ request and enjoin the Broadcasting Authority from broadcasting that paragraph, about one minute long, since it violates Chana Szenes’ dignity? Or, in recognition of the creative author’s freedom of expression and creation, shall we refuse to grant their request?

For the purpose of examining the matter, let us position all the leading actors on stage, present them individually, and listen to their monologues. All being assembled on the stage, we will allow them to converse among themselves and we will then know whose rights prevail. We shall divide our comments in this respect into three sections. First, we shall discuss freedom of expression and the right to reputation, as concepts and legal principles. We shall then examine the hierarchical status of freedom of expression and the right to reputation. Finally, we will have them confront one another, so that we can measure the power of one against the other.

We will begin our discussion by examining the freedom of expression and creation, and thereafter we shall proceed to human dignity.

Freedom of Expression and Artistic Creation

10. Freedom of expression and artistic creation have deep roots in Israeli law. We need not recap their origin; this has been explained on many occasions. I have expressed my own opinion regarding certain aspects of the freedom of expression and the conflict between freedom of expression and other values, occasionally at length, in at least three places. They are, in chronological order, HCJ 606/93 Kiddum [28] at 17; HCJ 4804/94 Station Film [12] at 688 {55}; FH 7325/95 Yediot Acharonot v. Krauss [48]. In these three decisions, as in this case, I was in the minority. My opinion has not changed. While I obviously do not contest the basic right of freedom of expression and artistic creation, I nonetheless feel that my colleagues have gone too far in the protection they grant freedom of expression, in the process curtailing other, extremely important rights.

11. I will not repeat what I wrote and will limit my comments to the issue at hand. Freedom of expression is not a single unit. It is a federation, a federation of rights and interests. There is the chronicle and the speech, the polemic article, fiction and poetry, criticism of the government and commercial advertising. There is the procession and the demonstration, the play and the film. Each of these modes of expression reflects a particular value, and one interest is not identical to the other. Commercial advertising does not benefit, nor should it, from the same protection granted to a chronicle. Instead of referring to freedom of expression in the abstract, we must pick out the particular component relevant for our purposes. Obviously, our concern is not merely with labels – fiction, non‑fiction, poetry or demonstration. It is incumbent upon us to conduct a deep investigation in an attempt to understand the interest requiring protection, its substance and the substantive content of the right presented before the Court. It was in this context that I wrote in Station Film [12] at 689 {56-57}:

In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech will wage the battle, each with its own intensity. Freedom of expression is not an idol, before which we should prostrate ourselves wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression – an expression that finds shelter under the wings of the broader principle – we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of molecularization - dividing the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there are films, there is theatre and then there is television, there is radio and then there is the stage.

In the same vein I also wrote:

[P]eople often try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue in a manner compatible with the issue being discussed before it ‑ an issue forming one of the pillars of the democratic regime.

Id. At 689 {57-58}.

See also Id. at 688-91; Kiddum [28] at 25‑28; Krauss [46] at 78-80.

12. Let us return to our case. Which kind of freedom of expression are we referring to? If you will, what is the interest that freedom of expression, in this case, places against other conflicting interests? We are dealing with a screenplay, but not one that is the fruit of the playwright’s imagination from beginning to end. Our concern is with a special kind of play known as a docudrama. In other words – a creation including both drama and documentation. Facts based on reality interpolated with dramatic foundations. The veneer is dramatic, but actual events, which all or at least some of the spectators have heard of and are familiar with, are inseparably woven into the drama. Needless to say, in this kaleidoscope of life and imagination, each docudrama is different. There is no fixed degree of imagination or historical facts; it is entirely up to the creator, who may broaden or narrow either.

13. “The Kastner Trial” is deeply rooted in historical facts. The plot is basically true, taken from “real life,” and the heroes of the play appear with their own names. Thus, the judge is Judge Binyamin Halevi, the prosecutor is the Attorney-General, Haim Cohen. The attorney for the defense is Shmuel Tamir. The accused is Malchiel Greenwald. Ms. Catherine Szenes, Ms. Hanz Brand, Yoel Palgi and, most importantly, Chana Szenes, also appear in the play. Motty Lerner, the playwright, took specific real life events and cast them into dramatic format. The innocent viewer, as well as the informed viewer, do not know which parts of the play are true and which are false. Did Kastner really say the words attributed to him? Is there any factual basis for Kastner’s allegations against Chana Szenes, or perhaps Kastner is not telling the truth? The viewer does not know.

This is the artistic creation before us; it contains elements of both life and drama. Given what we know about the play, I reject Lerner’s statement that the play is “a fictional drama inspired by events that actually occurred.” The drama is by no means fictitious and the “events that actually occurred” were not just a source of “inspiration” for the author. They are an integral, indistinguishable part of the creation. Nor can I concur that “the script offers an interpretation of events which are the subject of sharp controversy”. The issue before us is not disputed – all agree that Chana Szenes did not betray her comrades to the Gestapo. I also find it difficult to accept Lerner’s statement that “I strove to be as accurate as possible.” His intentions may have been commendable, but his actions were not. In the disputed paragraph Motty Lerner was not just inaccurate – he spoke untruthfully. This is not a question of “poetic license,” as Motty Lerner claims. Motty Lerner did not even comply with his own commitment that “the result of the events must be consistent with the historic reality.” Kastner did not say the words that Lerner attributed to him. Nor are the words substantively correct. Motty Lerner thought that Kastner’s outrageous words in the play would raise the dramatic tension; this indeed is their effect. I am, indeed, at a loss to find any other reason for the scene in which the actor portraying Dr. Kastner lashes out at Chana Szenes. The actor playing Dr. Kastner was Sasson Gabbai; his performance was superb and moving and anyone who saw Dr. Kastner in the play making his accusation against Chana Szenes could not fail to be convinced that his words were true. I find it difficult to accept the claim that “The Kastner Trial” is a “fictional drama.” The drama is far from being “fictional.”

14. This cocktail of imagination and reality situates the play somewhere between a documentary‑chronicle and a dramatic creation. As its name indicates, it is a docudrama, with the primary emphasis being on the documentary‑chronicle component. Chana Szenes was imprisoned and tortured by the Nazis. Yoel Palgi and Peretz Goldstein were captured by the Nazis. Chana Szenes was executed by the Nazis. All of these are historical facts, and they are all woven around Dr. Kastner’s outrageous accusation thrown at Chana Szenes’ mother. If all of the surrounding facts are true, then wouldn’t the innocent viewer believe that statement to be equally accurate? Why wouldn’t one believe that Dr. Kastner had actually said those words and why wouldn’t he believe that Kastner knew, or believed, that Chana Szenes had betrayed her friends to the Nazis? It would have been different had Kastner stood up in the middle of Catherine Szenes’ testimony, attempted to open his mouth and then begun to float around the room, like a character out of one of Marquez’s books. But this was not the case.

Personally, it seems to me that the playwright cannot hide behind the label of a “fictional drama,” nor would it be appropriate for us to allow him or her to do so. The words attributed to Dr. Kastner regarding Chana Szenes are clearly perceived as part of the docudrama’s documentary aspect. In any event, we certainly cannot see this as belonging to the dramatic part of the play, distinct from the reality being displayed on stage. If we imagine the documentary and dramatic parts of the play as celestial objects with their own individual gravitational pull, then Dr. Kastner’s fabricated statement revolves in a “figure 8” around these two bodies. In other words, Dr. Kastner’s fabricated statement purports to have a little of this and a little of that: a description of the reality, as it supposedly was – in Hungary of 1944 and in the Jerusalem Court – and dramatic elements. The viewer does not know whether he or she is viewing reality or a figment of the playwright’s imagination.

15. Freedom of speech and of creative expression have therefore produced a sort of hybrid creation, a documentary presenting the truth as it (supposedly) was, as well as drama which is the product of the playwright’s imagination.

16. Until now we have discussed freedom of speech and artistic creation. We shall now proceed to examine a person’s right to his or her good name.

Human Dignity –One’s Right to One’s Good Name

17. A person’s deep, psychological need for a good reputation, a natural yearning, has long been legally recognized. Our nation has been escorted by rabbinic dictums such as “whoever publicly shames his neighbour is deemed to have shed blood” Babylonian Talmud, Tractate Baba Metzia 58b [78]. Similarly, “all who descend into Gehenna reascend, except for three persons who descend and do not reascend... he who publicly shames his neighbour…”Id. [78]. Indeed, “a person’s good name and dignity may be dearer to him or her than any other asset” CA 214/89 Avneri [16] at 856 (Barak, J.) A person’s dignity and reputation are at least as dear to that person as his or her body. Just as a person has a right to bodily integrity, so too is a person entitled to protect his or her dignity and good name. Maligning a person’s dignity and reputation can be likened to rape or an indecent act performed on a person’s body. The difference between both forms of damage is only that, in the case of rape, one first damages the body and only after the soul. In the case of a person’s dignity and reputation, it is the soul that is initially damaged, which may lead to the body being harmed as well.

18. A person can look to two legal sources for recognition of his or her right to reputation: namely, the Basic Law: Human Dignity and Liberty and the Defamation Law, 1965. We shall discuss the Basic Law at a later juncture. Infra. paras. 28 and 29. For now, we shall turn to the Defamation Law.

19. The Defamation Law expressly and specifically sets out the rights a person has to his or her good name. The law itself balances between a person’s reputation and his fellow’s freedom of expression. If Chana Szenes were with us today, I do not have the slightest doubt that she would have a claim, under the Defamation Law, against the playwright and against the Broadcasting Authority. As defined in section 1(1) of the Defamation Law, defamation is anything the publication of which may “lower a person in the estimation of others, or make him or her the object of hatred, contempt, or ridicule on their part.” Defamation Law, 1; or a publication which may “bring a person into disrepute because of acts, conduct or qualities attributed to him or her.” Sec. 1(2) of the Law. As such, the statement of Dr. Kastner in the screenplay constitutes defamation. There are those who will claim that it is not for us to pass judgment on one who suffered and, in his pain, revealed such secrets. As our rabbis said: “Do not judge thy neighbour until you are in his place” Mishnah, Ethics of our Fathers, 2:4 [80]. One could even claim that, as such, neither the playwright nor the Broadcasting Authority defamed Chana Szenes. Even having cited the words of our rabbis, however, it would seem that there are few who would dispute that the words uttered by Dr. Kastner constitute defamation.

Were Chana Szenes with us today – seventy-eight years old – she would be able to petition this Court to enjoin the statement attributed to Dr. Kastner. Chana Szenes, however, returned her soul to God in suffering, after being tortured and murdered, on November 7, 1944, at the age of twenty-three. Chana Szenes is no longer with us, and the question is only whether there is another who can file suit to reclaim her dignity. The following people have claimed to represent Chana Szenes’ dignity: In HCJ 6126/94 the petitioners are her brother, Giora Szenes, his two sons Eitan Szenes and Dr. David Szenes, as well as Reuven Dafni, the chairman of Yad Vashem, who, in 1944, parachuted into Yugoslavia with Chana Szenes. In HCJ 6143/94 the petitioners are Ms. Nadia Matar and the Women’s Association for the future of Israel (“Women in Green”).

What is the law regarding the defamation of the dead?

20. It turns out that the law has changed in this matter. Initially, at the time of its enactment, the Defamation Law provided:

Defamation of a

Deceased Person

5. Where defamatory matter is published after a person’s death, it shall be treated as the defamation of a living person. The spouse, children, parents, brothers and sisters of the deceased shall be regarded as persons injured by the defamation.

This is to say, defamation of the deceased was the same as defamation of the living, except that the right to file for judicial redress was exclusively reserved to the deceased’s spouse, children, parents, brothers and sisters. Under this law, Chana Szenes’ brother, Giora Szenes, was fully entitled to demand that the disputed paragraph be expunged from the play. This was in contrast to the previous law. See section 6 of the draft proposal for the Defamation Law-1962.

The law, however, was amended in 1967, see Defamation Law (Amended Version), 1967, and the right to file suit for the defamation of a deceased was curtailed. The following is the current language of section 5 of the Defamation Law:

Defamation of a

Deceased
Person

5. Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person, but do not constitute cause for a civil claim or a private criminal complaint, and no indictment shall be submitted for an offense under this section unless it is requested by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters.

This amended Defamation Law contains three principles. The first is that defamatory matter regarding a dead person “does not constitute cause for a civil claim or a private criminal complaint.” The second is that charges may be laid for defamatory statements regarding the deceased, after a request by the deceased’s spouse or one of his children, grandchildren, parents, brothers or sisters. The third principle is that, subject to the first two principles, defamation of the dead shall be treated as defamation of the living. We regard this third principle as constituting the heart of the law: essentially, defamation of the dead is the same as defamation of the living, even though, procedurally speaking, the law imposes restrictions on the ability to seek legal redress, either in a civil claim or in a criminal indictment.

To complete the picture, we will also mention section 25 of the law, which deals with the institution of legal proceedings by one of the deceased’s relatives, within a limited period after the death of the deceased. It also deals with the continuation of defamation proceedings begun by the deceased, if he or she passed away prior to the termination of such proceeding.

21. What does all of the above tell us? We see that defamation of the deceased is subject to the same law as defamation of the living. This is the credo of the law and its message. This is the version of human dignity presented by the Defamation Law. Defamation of the deceased does not constitute grounds for a civil claim or a private criminal complaint, but sealing off the road to the Court does not detract from the substantive prohibition against publishing material defamatory of the dead and does not lessen the statutory moral‑legal condemnation of such defamation.

Defamation of the dead does not provide grounds for a civil claim – a claim for damages, an injunction or a declaratory judgment within the framework of the civil law. However, I am unable to see any good reason why a person should not be able to file suit within the framework of public law, provided that the issue concerns a body or person subject to public law. The Broadcasting Authority is indeed exempt from the yoke of private law with respect to defamation of the dead, as is any other person or body operating within the realm of private law. However, as a body which is also subject to public law, it must be held legally accountable within the parameters of that law.

22. Thus, the Defamation Law does not prevent the petitioners from petitioning the High Court of Justice for a public law remedy against the Broadcasting Authority. Granted, the petition of the brother, Giora Szenes, is not equivalent to the petition filed by the Women in Green. By its very nature, the latter is a public petition, relating to the collective interest. As such, it raises the issue of the public interest regarding the publication of a statement defaming Chana Szenes. In other words, in this petition, the defamation of Chana Szenes does not appear as an independent and exclusive basis for the legal claim, but rather as a component of the public interest in the wider sense of that concept. The public interest includes many other elements besides the protection of a person’s good name, including the freedom of expression and the playwright’s freedom of artistic creation. In this petition, the right to one’s good name must battle all the other components of the public interest. It is only then, if it finds itself victorious in this battle, that the right to a good name can wage its war against the freedom of expression and of artistic creation.

Giora Szenes’ petition, for its part, is different. It is, by its very essence, a private petition, one that raises the interest of the individual. I would go a step further and say that it is an intimate petition. Should we be surprised when a son or daughter comes to protect the honor of his or her mother or father? Does it astonish us when a brother battles for his sister’s dignity, or when a sister fights for her brother’s dignity? Surely, a father and mother would protect their children in the same way. While Giora Szenes refers to his sister as “the soldier-poet who sacrificed her life on the altar of human dignity and liberty,” he makes it equally clear that his petition is focused on the “maligning of the dignity of Chana, of blessed memory, and that of her family,” and that the injury “is further intensified by the series being scheduled on the fiftieth anniversary of her execution.” It is no wonder that, in his affidavit, Giora Szenes speaks of “my sister” and states that, “since becoming aware of the scheduled broadcast, I feel as though my world has fallen apart and that I am powerless.” This is the statement of a brother afflicted.

As such, the petition of Giora Szenes raises the issue of defamation in its purest sense, as a right to reputation standing on its own, as though Chana Szenes herself had petitioned the Court. This is not the nature of the petition of the Women in Green, which seeks to protect the right to a good name as a component of the public interest. Giora Szenes carries the sword of reputation, not the sword of the public interest. It is with this sword that he sets out to battle.

Giora Szenes brings a private claim in the realm of the public law. Chana Szenes is unable to file suit to reclaim her dignity, and her brother does so in her stead. Here, Giora Szenes and Chana Szenes are one and the same. The same applies to the other relatives in section 5 of the Defamation law.

23. A question: are the relatives named in section 5 of the Defamation Law the only ones who possess a “private right” in the public law realm? I would not restrict the right to these relatives exclusively. There are situations in which a friend is like a brother to the deceased and if “spouse” means a husband and wife who are legally married, then it would seem that even those who are not legally married, but who are also a couple, have a private right within the public law realm. However, we need not decide this question, since it is Giora Szenes, Chana Szenes’ brother, who has come to protect the dignity of his sister.

24. A final word: “Defamatory statements regarding a person that are published after his or her death shall be treated as the defamation of a living person.” Does this apply to everyone that has lived since the dawn of mankind? Can one defame Abraham? Moses? Miriam? Yael, the wife of the Keni? Samson? King David? Jeremiah? Judah the Maccabee? Hillel the Elder? Bar-Kochba? Maimonides? Spinoza? Does the defamation of any of these figures confer rights under public law?

It could be argued that the question is whether all of these, our nation’s historical figures, are included in the definition of “person” as provide by the law. It could further be claimed that a distinction must be made between a “person” and a “historical figure.” The law intended to protect a “person” and not a “figure.” All of the above are “figures,” not “persons,” as defined by the law. When then does a person become a “historical figure”? Is Ben Gurion a “figure” or a “person”? The question is far from simple and at this stage we shall be satisfied with the tentative determination that a “person,” within the meaning of the Defamation Law, is someone whose family members, as specified in section 5, bring a claim of defamation. The determination of those entitled to file suit establishes the confines of the right and delineates the border between a “person” and a “figure.”

Another criterion for defining a dead “person,” for the purposes of defamation, is whether there are people alive who knew him or her personally. For as long as there are people living who knew the deceased, he or she continues to live as a “person.” As the poet Chanoch Levin wrote in “When My Eyes Shall Grow Dark,” in his book The Lives of the Dead (1999):

When my eyes shall grow dark

Draw my dead eyes

Towards your open eyes

And welcome my lifeless image into your embrace,

…

…draw my eyes

my dead eyes towards your eyes

there I will live a little longer

I will see through your living, seeing eyes

I will see the world that I cannot see

The world I so loved, and now

It is lost to me, and I am no more,

Only my dead eyes peering through your seeing eyes

In your living eyes, my dead eyes

live a little more, so long

as you will live

I too live, so long

as you will remember,

so long.

In this context we cannot but refer to the wonderful legend of Choni the Circle Maker who was overtaken by slumber and slept for seventy years. When he woke up there was no one that knew him, and he knew no one, as his generation had already passed away. “His resolve was weakened, begged for mercy ‑ and died.” Babylonian Talmud, Tractate Taanit, 23a [81]. And so it is in every generation. “And Joseph died, and all his brethren and all that generation” (Exodus, 1:6 [82]); and immediately following: “Now there arose a new king over Egypt who knew not Joseph.” Id. Thus it was in the days of the prophets: “And Joshua the son of Nun, servant of the Lord died, being an hundred and ten years old ... And also all that generation was gathered to its fathers; and there arose another generation after it which knew not the Lord nor yet the work which He had done for Israel.” Judges 2:8, 2:10 [83].

Needless to say, this question does not arise in the case at bar. Chana Szenes’ brother, her own flesh and blood, stands before us, and demands that his sister’s dignity be restored. These being the circumstances, is it possible or appropriate that we refer to her as a “figure”? There can be no doubt – Chana Szenes is a national heroine, a historical figure. We were educated through her heritage and sang her songs. This is the Chana Szenes of the petition of the Women in Green. However, this is not the case in the private, personal petition of Giora Szenes.

Intermediate Summary

25. Up to this point we have addressed the freedom of expression and a person’s right to reputation as substantive legal concepts. They are independent principles in their own right, which grant rights to some and obligate others. They also serve as foundations for the interpretation of statutes and case law. They are interpretative principles both in the narrow sense and in the creative sense. However, the examination of the essence of the rights is not sufficient. Given our awareness that these two rights will come into direct conflict, we must further examine their hierarchical status in the legal system and whether one of the two has prevalence over the other in the legal hierarchy, or whether they share the same status in the legal pyramid. Deciding this question is a prior condition for preparing the rights for the struggle in which they are to engage. We will therefore examine the legal hierarchy of the rights, and we will begin with freedom of expression.

Human Dignity – Freedom of Expression’s Hierarchical Status

26. Until the enactment of the Basic Law: Human Dignity and Liberty, the right to reputation and the right to freedom of expression possessed equal legal status. The right to reputation was already enshrined in statute – in the Defamation Law, as well as in preceding case law. Freedom of expression, in contrast, was exclusively a product of case law. Of course, that case law had the status of law. In other words, with the exception of the internal balancing tests within the parameters of the law itself, all of which defined the scope of freedom of expression, it was an accepted presumption that freedom of expression could only be curtailed or circumscribed by force of Knesset legislation. See e.g., CrimFH 537/95 Ganimat v. State of Israel [24] at 400, and citations there. As with other basic rights, freedom of expression had the status of law. This was so until the enactment of the Basic Law Human Dignity and Liberty. Since the promulgation of the Basic Law, there has been some confusion as to the exact state of the law.

27. The right to freedom of expression was not specifically recognized in the Basic Law: Human Dignity and Liberty, or in any other Basic Law. Even so, there are those who maintain that the concept of human dignity in the Basic Law also includes the freedom of speech, which they see as one of the derivatives of human dignity. According to this view, “Human Dignity” is an overflowing fountain, nourishing all those human rights that may possibly derive from it, or that are implicit therein. One of these basic rights is the right to freedom of expression. On the other hand, there are those who maintain that human dignity is human dignity and in the Basic Law: Human Dignity and Liberty, human dignity does not include freedom of expression. This, they claimed, is particularly true in the case of this specific Basic Law and its legislative history. Between these two extremes there are a number of variations on this theme. See e.g., H. Sommer, Hazchuyot Habilti Minuyot Vihekefa shel Hamahapacha Hachukatit, 28 Mishpatim, 259-61 (1997) [68]; A. Barak, Zchuyot Adam Muganot: Hahekef Vihahagbala, [69], 253; Y. Karp, Mikztat Shielot Al Kvod Haadam lifi Chok Hayesod: Kvod Haadam Vicheruto, [70]; A. Barak, Interpretation in Law [65] at 413. Judges too are occasionally tempted to speculate, in obiter dictum, regarding the nature and scope of the concept of human dignity.

We will not take that path and will not reveal our inner-most thoughts. For our purposes, without ruling upon the matter, we shall agree that freedom of expression is a derivative of human dignity in the Basic Law: Human Dignity and Liberty. We shall therefore presume, without ruling upon the matter, that since the enactment of the Basic Law: Human Dignity and Liberty, freedom of speech has ascended the legal hierarchy and today reigns supreme on the throne of rights set out in the Basic Law: Human Dignity and Liberty.

An Aside

In his opinion, my colleague, the President, distinguishes between the scope of freedom of expression and the protection that the law should grant that expression. That is to say, there are times when a person has freedom of expression even though the law may not extend its protection to him or her. Thus, for instance, a lie will find shelter under the wings of free speech, even if it will not be protected. This statement requires further examination, but, given that there is no need to decide the matter, I have not discussed it.

Human Dignity – The Hierarchical Status of the Right to Reputation

28. Since the enactment of the Basic Law: Human Dignity and Liberty we all know, including those who were previously ignorant, that human dignity is the crown jewel. The concept of “human dignity” is expressly referred to four times in the Basic Law, and once by implication. First, in the law’s title – The Basic Law: Human Dignity and Liberty. Second, section 1(a) of the law provides that “[t]he purpose of this Basic Law is to protect human dignity and liberty.” Third, section 2 of the law provides that “[t]here shall be no violation of the life, body or dignity of any person as such.” Fourth, section 4 of the law establishes that “[a]ll persons are entitled to the protection of their life, body and dignity.” In addition to these, section 1 of the law specifies the “basic principles” according to which “[b]asic human rights in Israel are founded upon recognition of the value of the human being.” The “value of the human being,” as is self-evident, includes human dignity.

And so, one must conclude that human dignity is the fundamental pillar of the Basic Law: Human Dignity and Liberty. Further on in our remarks, we will address the force of a person’s right to dignity. Here we have merely noted its centrality in the system of basic rights.

29. Be the territory covered by “Human Dignity,” as distinct from the freedom of expression, what it may, it is unanimously agreed that human dignity includes a person’s reputation. Human dignity has a number of progeny, but it is clear that one’s good name – or perhaps we should say one’s very name, it being one’s own name – is one’s first-born child. For if human dignity does not include a person’s good name, what then is human dignity? Seeing as how our concern is with human dignity, we need not pursue our search for other basic rights implicit in the concept of human dignity. Furthermore, a person retains his or her dignity both in life and after death. This is the specific stipulation of section 5 of the Defamation Law. Case law further added expressly and definitively that the human dignity in the Basic Law: Human Dignity and Liberty also extends to the dignity of the deceased. See e.g., CA 506/88 Shefer v. State of Israel [50] at 102 {184}; CA 105/92 [10] at 201; CA 1482/92 Hagar v. Hagar [51] at 801; HCJ 294/91 [18] at 523; HCJ 5688/92 [19] at 820, 827-28; FH 3299/93 [20] at 201, 205, 208, 211; HCJ 3933/92 Barachat v. C.O.S. Central Command [52] at 6; A. Barak Interpretation in Law [65] at 437-38; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society [53].

A person’s good name has therefore been directly recognized and protected by the Basic Law: Human Dignity and Liberty.

The Hierarchical Status of the Right to Freedom of Expression and the Right to Reputation – A Summary

30. It appears to us, therefore, that both the right to freedom of expression and the right to one’s reputation are protected on two levels. One level is that of the law. With respect to freedom of expression, we are dealing with case law that has the status of statutory law. The higher level is that of the Basic Law: Human Dignity and Liberty. Chana Szenes, too, has the right to her good name – some will say the right of the living to maintain the good name of Chana Szenes. This right, as well as the freedom of expression of the playwright and the Broadcasting Authority, enjoys the status of basic rights, or supreme rights. It is these two supreme rights that are locked in a duel. Which of them will prevail?

We cannot decide between the two rights on the basis of their fundamental essence. They are both deeply rooted rights – rights without which our democratic society could not survive. Nor can we decide between them according to their hierarchical status in the legal system, for both are of royal stature. We must therefore search for an appropriate criterion for deciding between the rival rights. Such a criterion can be found by a deeper examination of the essence of the rights. We will not refer to each of the rights purely as principles, or by reference to their respective proximity to the apex of the pyramid of rights. Instead, by way of metaphor, we will use a geiger-meter, to measure the internal power of each of the rights claiming supremacy. We will measure the internal power of the right to freedom of expression of the playwright and the Broadcasting Authority and we will then measure the internal power of Chana Szenes’ right to her good name, as it is carried on the petitioners’ shoulders. Finally we will compare their respective powers. The right which has more power, its internal light shining brighter, is the right which will prevail in the case before us.

We will now examine the internal power of each of the rights before us.

The Right to Freedom of Expression and the Right to a Good Name

31. We will begin with freedom of expression and artistic creation. As we saw, we cannot be satisfied with the examination of the right of freedom of expression in the general sense. It is incumbent upon us to further examine that particular thread of freedom of expression presenting itself before us. Its internal power must be evaluated in order to assess its strength in the confrontation with other basic rights that it attempts to curtail.

32. In fact, we already examined the aspects of freedom of expression relevant for our purposes. We found that we are dealing with part fiction and part drama. As indicated by its name, it is a “docudrama.” To the extent that the dramatic element is involved, we have no quarrel with either the playwright or the Broadcasting Authority. Furthermore, even if, for dramatic effect, the playwright occasionally diverges from the truth, we would not take issue with the matter. The dramatic element of the play is the life-breath of the docudrama’s author. It forms that creation’s soul and we would dare not damage it.

This is not the case with the other element, that of the chronicle. Indeed, here too we will not be overly meticulous, nor can we be, for the author is a playwright, not a historian. Thus, for example, regarding the crossing of the border from Yugoslavia to Hungary: Chana Szenes crossed the border on the night between the 9th and 10th of June in 1944 and was caught after two hours. Yoel Palgi and Peretz Goldstein crossed the border two weeks later, on June 23rd. Chana did not know when they were to cross the border, and the two of them crossed the border about 100 kilometers away from where Chana herself crossed the border (see the affidavit of Reuven Dafni, who, as their leader, was responsible for the group of paratroopers in Yugoslavia). Diverging from this fact, Yoel Palgi in the play says – as does the playwright in his interview with Yediot Aharonot, supra para. 7 – that he crossed the border three days after Chana Szenes. By distorting their respective dates of crossing the border, reducing the period between crossings from two weeks to three days, the playwright sows the seeds that give rise to Kastner’s accusation that Chana betrayed both Palgi and Goldstein to the Nazis. The proximity of the dates could indicate that Chana knew the date when Palgi and Goldstein would arrive. Had this been the total extent of the divergence from the truth, no one would have criticized the playwright. The same applies to other similar divergences. However the divergence in the case before us is different. For it is not only a divergence from the truth; while diverging from the truth it viciously damages a person’s good name.

33. Freedom of expression regarding actions or events that occurred is of the highest importance. The freedom and right to report events and actions, especially events and actions about which the public must know, is not just a right. When speaking of the media, the right goes hand in hand with the obligation. There is a public duty on those reporting, to report that which should be reported. It is for this reason that the reporter has the defense of “truth of publication” under section 14 of the Defamation Law. I dwelt at length upon the defense of truth in my opinion in the Krauss [48] and will not deal with it here (In that decision, my opinion was the minority view, but not with respect to the defense of truth).

The freedom of expression with regard to the publication of a chronicle, as well as the defense of truth, also subject the reporter to a special duty to restrict himself or herself to the truth and not to report untruths – even if unintentionally and unwittingly. Certainly this is the case when the reporter knowingly or recklessly reports untruths. In any event, even if we say that the freedom of expression includes falsehood – and we express no opinion on this point – I am at a loss to understand why the law should protect falsehood with the same protection granted to freedom of expression. I cannot see what the protected interest is. Just as my right to lift my hands on either side terminates when I reach another person’s nose, so too, the freedom of expression terminates upon encountering a person’s good name. One way or another, regarding a false report, I find no interest capable of supporting the right to freedom of expression in its battle with another person’s right to his good name.

All of this relates to the power of the rights of the playwright and the Broadcasting Authority to freedom of expression and artistic creation.

34. With respect to Chana Szenes’ right to dignity and her good name, as they are borne on the petitioners’ shoulders, I find it difficult to find a more noble right. Regarding human dignity, I said the following in Krauss [48] at 74:

With respect to human dignity, truth be told, we will find it exceedingly difficult to distinguish between a person and his or her dignity. A person and his or her dignity enter this world intertwined. One is one’s dignity, and one’s dignity is oneself. “A person and his or her dignity emerged together from the mother’s womb, and the two become one. A person is his or her dignity, and that dignity is the person.” CA 3077/90 A. v. B. at 592. One who lost one’s dignity is merely the shell of a person, if you will: the shadow of a person.

Thus, a person and his or her dignity are identical, and a person without dignity is but nothing more than the shell of a person. To quote the sublime words of Shakespeare in Richard the Second:

The Purest Treasure mortal times afford

Is spotless reputation; that away,

Men are but gilded loam or painted clay.

…

Mine honour is my life, both grow in one,

Take honour from me and my life is done”

See William Shakespeare, Richard II, act I, sc. I.

In our own sources, human dignity is reserved a place of honor in the Temple of basic rights. The reason, we are taught, is that man was created in God’s image: “So God created man in His own image, in the image of God created He him.” Genesis 1:27 [84]. And Rabbi Akiva taught us “Beloved is man, who was created in the image of God.” Mishnah, Ethics of our Fathers 3:14 [85] To this the Court added, in Krauss [48] at 75:

Those who are believers and observe the commandments derive the dignity of man from the honor of The Holy One, Blessed be He. In so doing, they elevate human dignity to supreme heights. And what will those say who do not believe and who do not observe? They will say: why should we anchor our recognition of the noble value of human dignity in God? Isn’t a person qua person sufficient reason for protecting one’s dignity? For a person is his or her dignity, and that dignity is the person. Nor can we forget the Basic Law: Human Dignity and Liberty, the basic law that engraved human dignity both in its name and content, establishing it in the Israeli legal system.

From all of the above, we know that the power emanating from Chana Szenes’ right to dignity is unparalleled. Regarding Chana Szenes, we can further say that her dignity and good name are larger than life itself, for as much as she was tortured, until she was murdered, she did not divulge her secret. To be precise, our concern is with Chana Szenes’ refined and pure right to her dignity and reputation, both of these having been carried by Giora Szenes from the battlefield and presented to us.

35. Chana Szenes’ right to dignity and reputation are laid before us in all their grandeur. We no longer need to examine the claims of the “Women in Green,” who present Chana Szenes’ interest as part of the public interest. The private, immediate interest of the brother Giora is sufficient, and we need not discuss the collective interest of the Women in Green. Nonetheless, it bears mentioning that all of the judgments cited by my colleague, the President, in support of his opinion, deal with freedom of expression conflicting with the collective interest and not with freedom of expression conflicting with an individual interest. In referring to an individual interest our intention is to a particular person cited by name and description. The only exception is the ruling in Avneri [16] with regard to which we have two comments. First, the issue there concerned a temporary injunction, in circumstances that were not entirely clear. Second, in any event, the rule established in that case warrants renewed examination for since then the Basic Law: Human Dignity and Liberty has been enacted. My colleague, the President, also agrees with this. In his own words in Ganimat supra [49] at 418:

The new status for the right to a good name, part of the right to human dignity, may justify a renewed examination of the exercise of judicial discretion in granting temporary injunctions against publications which are allegedly defamatory.

Compare CA 214/89 Avneri v. Shapira. See also A. Bendor, Chofesh Lishhon-Hara, 20 Mishpatim 561 (1990-1991) [71].

36. Here we must add and understand the need to peel off the label of “freedom of expression” from the group of interests to which it attaches, and to further examine the nature and texture of the particular component of the specific interest. Having peeled off the label, we now know that even if we state that human dignity encompasses freedom of expression – and we take no position either way on the matter – the dignity of Motty Lerner confronts the dignity of Chana Szenes. This being the case, we can further ask: could anyone dare to claim that Motty Lerner’s dignity prevails over that of Chana Szenes? Motty Lerner’s dignity is indeed dignity and he is worthy of it, but we will not agree to his dignity being constructed over that of Chana Szenes, or to his dignity dismissing the dignity of Chana Szenes. As the verse says: “for them that honor me, I will honor.” I Samuel, 2:30 [86].

37. The results of the confrontation between the rights are clear. Our concern is not with rights of equal standing. We are dealing with a right of dimensions struggling against a smaller right. The dignity and reputation of Chana easily prevail over the rights of the playwright and the Broadcasting Authority.

In HCJ 1/81 supra [39] at 378, Justice Shamgar wrote:

In order for this Court to prohibit an individual, responsible for public broadcasting and advertising, from publishing a particular broadcast, there must exist extreme circumstances, posing a tangible and near certain danger to the public welfare at large… or a clear and obvious illegality (emphasis added).

In the paragraph that the petitioners requested be deleted, there is a “clear and obvious illegality.”

Epilogue

38. Soon after turning twenty-three, Chana Szenes returned her soul, in all its purity, to God. Chana Szenes cannot come to claim her dignity. It is incumbent upon us to restore her dignity to her. In CA 1182/90 Shacham v. Rothman [54] at 347, the Court decided to honor a person’s wishes expressed in his will, and I concluded my opinion there with the following words:

I am happy with the result that I have reached, which in my opinion is the fulfillment of the deceased’s wishes. A person’s will is his or her dignity; it is human dignity. But the dead are unable to realize their wishes and preserve their dignity. We have therefore acted for the fulfillment of the deceased’s wish and the preservation of the deceased’s dignity.

Chana Szenes was a soldier-poet, or perhaps we could say poet‑soldier. She was a poet, a soldier, and a dreamer. Chana loved life. And when Chana wandered barefoot on the golden sands of Caesarea, a young girl, twenty years old, she prayed to God:

O Lord, my God

I pray that these never end

the sand and the sea,

the rush of the water,

the flash of the heaven,

the prayer of man.

In those days that were blacker than black, redder than blood, before she entered the inferno, Chana sang of the rebellion, of death and dignity. This was Chana’s song in Serditza, Yugoslavia:

Happy…

Happy is the match that burnt and ignited the flames

Happy is the flame that burnt in the recesses of hearts

Happy are the hearts that knew to extinguish in dignity…

Happy is the match that burnt and ignited flames.

Chana Szenes’ heart knew how to extinguish in dignity. Whether by words or by action, the dignity and good name of Chana Szenes cannot be taken away.

Chana Szenes

11 Tammuz 5781 – 28 Cheshvan 5805

July 17, 1921 – November 7, 1944

******

The case was decided in accordance with the majority opinion, as per the opinion of President A. Barak, with Justice Mazza concurring and against the dissenting opinion of Justice M. Cheshin.

July 26th, 1999.

Full opinion:

Szenes v. Matar.pdf

Link to original Hebrew text of decision on official ISC website:

Station Film Co. v. The Film Review Board

Case/docket number:

HCJ 4804/94

Date Decided:

Thursday, January 9, 1997

Decision Type:

Original

Topics:

Administrative Law

Discretion

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.

Voting Justices:

Station Film Co. v. Film Review Board.pdf

Primary Author

majority opinion

Mazza, Eliahu

majority opinion

Cheshin, Mishael

Author

dissent

Full text of the opinion:

HCJ 4804/94

Station Film Co.
Gil Besarev

The Film Review Board
Minister of the Interior

The Supreme Court Sitting as the High Court of Justice

[January 9, 1997]

Before President A. Barak and Justices E. Mazza, M. Cheshin

Israeli Supreme Court Cases Cited:

[1] Crim. App. 255/68 The State of Israel v. Ben Moshe, IsrSC 22(2) 427

[2] HCJ 153/83 Levy v. Southern District Commander of the Israeli Police Force, IsrSC 38(2) 393

[3] CA 723/74 "Ha’aretz" Newspaper Publications v. The Israel Electric Company, IsrSC 31(2) 281

[4] HCJ 73/53 Kol Ha’Am v. The Minister of the Interior, IsrSC 7 871

[5] CA 105/92 Re’em Engineers and Contractors v. The Municipality of Nazareth-Illith, IsrSC 47(5) 189

[6] HCJ 243/62 Israeli Film Studios v. Gary, IsrSC 16 2407

[7] PCA 4463/94 PIA 4409/94 Golan v. Prison Services, IsrSC 50(4) 136

[8] HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority, IsrSC 41(3) 255

[9] HCJ 372/84 Klopfer-Nave v. The Minister of Education and Culture, IsrSC 38(3) 232

[10] HCJ 806/88 Universal City Studios v. The Film and Play Review Board, IsrSC 43(2) 22

[11] HCJ 606/93 Advancement of Entrepreneurship and Planning (1981) v. The Broadcasting Authority, IsrSC 48(2) 1

[12] IA 2/84 Neiman v. Chairman of the Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225

[13] Crim. App. 677/83 Borochov v. Yeffet, IsrSC 39(3) 205

[14] HCJ 14/86 Laor v. The Film and Play Review Board, IsrSC 41(1) 421

[15] FH 9/77 The Israel Electric Company v. "Ha’aretz" Newspaper Publishing Company Ltd., IsrSC 32(3) 337.

[16] HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.

[17] PLA 7504/95 Yassin v. Party Registrar, IsrSC 50(2) 45.

[18] Crim. App. 126/62 Dissenchik v. The Attorney-General, IsrSC 17 169.

[19] HCJ 411/89 The Temple Mount Faithful and Land of Israel Movement v. The Jerusalem District Police Commander, IsrSC 43(2) 17.

[20] HCJ 448/85 Daher v. The Minister of the Interior, IsrSC 40(2) 701

[21] HCJ 243/81 Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421

[22] HCJ 89/80 Ohayon v. The Play and Film Review Board, IsrSC 34(2) 530

[23] Crim. App. 495/69 Omer v. The State of Israel, IsrSC 24(1) 408

[24] HCJ 175/71 Abu-Ghosh/Kiryat Yearim Music Festival v. The Minister of Education and Culture, IsrSC 25(2) 821

[25] CA 448/60 Lev v. The Central "Mashbir" Ltd., IsrSC 16 2688

[26] HCJ 549/75 Noah Films Ltd. v. The Film Review Board, IsrSC 30(1) 757

[27] FH 3/87 The Film Review Board v. Laor, IsrSC 41(2) 162

[28] CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, IsrSC 49(4) 221

[29] HCJ 6218/93 Dr. Cohen v. The Israeli Bar Association, IsrSC 49(2) 529

[30] Crim.App. 3520/91 Turgeman v. The State of Israel, IsrSC 47(1) 441

[31] HCJ 241/60 Kardosh v. The Registrar of Companies, IsrSC 15 1151

[32] HCJ 742/84 Kahana v. The Speaker of the Knesset, IsrSC 39(4) 85

[33] HCJ 758/88 Kendall v. The Minister of the Interior, IsrSC 46(4) 505

[34] HCJ 146/59 Cohen v. The Minister of the Interior, IsrSC 14 283

[35] HCJ 92/56 Weiss v. The Chairman and Members of the Legal Council, IsrSC 10 1592

[36] HCJ 176/58 Parcel 11 Block 6605 Co. Ltd. v. The Minister of Development, IsrSC 13 1109

[37] HCJ 383/73 Avidan v. Gary, Chairman of the Film and Play Review Board, IsrSC 28(2) 766

[38] HCJ 193/58 Rosenberg Orthopedics Company v. The Chief Certified Physician, The Department of Rehabilitation, IsrSC 13 1654

[39] HCJ 162/72 Kinross v. The State of Israel, IsrSC 27(1) 238

[40] HCJ 260/60 Forum Film v. The Film and Play Review Board, IsrSC 15 611

[41] HCJ 807/78 Ein Gal v. The Film and Play Review Board, IsrSC 33(1) 274

[42] HCJ 351/72 Keinan v. The Film and Play Review Board, IsrSC 26(2) 811

[43] PL Crim. App. 1127/93 The State of Israel v. Klein, IsrSC 48(3) 485

[44] HCJ 73/85 "Kach" Faction v. The Speaker of the Knesset, IsrSC 39(3) 141

[45] HCJ 910/86 Ressler v. The minister of Defence, IsrSC 42(2) 441

Israeli District Court Cases Cited:

[46] DC (Haifa) 404/82 Yishayahu v. The State of Israel, 1984 (2) D.C. 522.

Irish Cases Cited:

[47] Irish Family Planning Association v. Ryan [1979] I.R.J. 295.

United States Cases Cited:

[48] Jacobellis v. State of Ohio, 378 U.S. 184 (1964).

[49] Roth v. United States, 354 U.S. 476 (1951).

[50] Miller v. California, 413 U.S. 15 (1973).

[51] Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).

[52] United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934).

[53] Grove Press v. Christenberry, 276 F.2d 433 (2d Cir. 1959).

[54] Memoirs v. Massachusetts, 383 U.S. 413 (1966).

[55] Freedman v. Maryland, 380 U.S. 51 (1965).

[56] Kaplan v. California, 413 U.S. 115 (1973).

[57] Fort Wayne Book v. Indiana, 489 U.S. 46 (1989).

English Cases Cited:

[58] The Queen v. Hicklin (1868) 3 Q.B. 360.

German Cases Cited:

[59] 67 BverfGe 218 (1984).

[60] “17 Mar. 1977” 86 Archiv fur Urheber– , Film, Fumk– , und Theaterrecht (1980) 204.

Canadian Cases Cited:

[61] Re Ont. Film & Video and Ont. Bd. Of Censors [1983] 41 O.R. 2d 583.

[62] R. v. Butler [1992] 89 D.L.R. 4^th 449.

[63] The Queen v. Towne Cinema Theaters Ltd. [1985] 18 D.L.R. 4^th 1.

Jewish Law Sources Cited

[64] Genesis 2:9, 25; 3:7, 10; 22:12

[65] Ecclesiastes 3:19

[66] Babylonian Talmud, Tractate Shabbat 33a

[67] Babylonian Talmud, Tractate Avoda Zara 5a

For the petitioner—A. Tzafrir

For the respondent—S. Nitzan (Office of the State Attorney)

JUDGMENT

President A. Barak

The Film Review Board was asked to grant a permit for the film “L'Empire Des Sens.” The Board conditioned the issuance of the permit on the deletion of certain parts of the movie, which was to be shown to adults only. According to the Board, the targeted sections are of a pornographic nature and there is near certainty that allowing them to be viewed will cause serious, grave and severe harm to societal sensibilities and public morality. In the opinion of the film’s distributor, the film has artistic value, and should remain intact. At base, this petition presents the need to decide between two conflicting positions, between an argument that focuses on the problems of pornography, and an argument that focuses on artistic merit.

The Film

1. “L'Empire Des Sens” is a Japanese-French film, directed by the Japanese director Nagissa Oshima. The film deals with the love between a girl named Sadda and her lover-master Kichi San. The film examines the couple’s relationship. This relationship revolves around the couple’s sexual encounters, which take on increasing intensity. Their quest for challenges to satisfy their lust ends in death, as Sadda chokes her lover in the course of intercourse. At the end, she cuts off his sexual organ with a knife. During the film, there are shots of intercourse, with depictions of the sex act.

The Facts

2. The petitioners are the distributors of the film “L'Empire Des Sens." They applied to the Film Review Board [hereinafter the Board] for a permit to screen the film; the Board had rejected similar requests by other distributors in the past. During its meeting on April 18, 1994, the Board viewed the film and decided unanimously not to grant the requested permit. In a notice delivered to the petitioners, the Board opined that “the film exceeds the limits of good taste with its excessive pornography, and contains scenes capable of arousing feelings of revulsion." A few months later, on July 11, 1994, the Board reexamined its decision. The petitioners’ arguments were heard, and a discussion was held. This time, differences of opinion surfaced among the Board members. Some members pointed to the film’s artistic quality, the caliber and prominence of the director, and to the awards that the film received at various festivals. Others claimed that the film was an obscenity, that there was nothing artistic about it, and that even if it did have artistic value, such value was not sufficient to negate the film’s pornographic character.

The majority decision was to disallow the film’s screening. Shortly thereafter, on August 8, 1994, the Board once again discussed the film. Once more, some Board members made reference to the film’s artistic value. Others, however, pointed to differences of opinion regarding the film’s actual artistic value. This time too the Board decided to disallow the film’s screening. In its decision, the Board stated that its refusal was based on “the excess of intercourse scenes with the exposure of sexual organs, penetration, sexual abuse involving children, and the like." Nevertheless, in his letter to the petitioners, the Board’s Chairman stated: “the Board might find a way to approve the screening of the film if you were to remove about eight sections."

3. Following the Board’s decision, the petition before us was filed. After its submission, the Board convened to discuss the film on September 11, 1994. By a majority decision, the Board decided to approve the screening of the film for viewers of eighteen years of age and up. The Board conditioned this permit upon the removal of nine sections, which, in total, amount to several minutes of the film. According to the Board, the screening of these sections is certainly capable of causing serious, grave and severe injury to societal sensibilities and public morality. The petitioners accept the Board’s decision to restrict the film to adult viewers, but take issue with the demand to cut several scenes, save for the sections involving the appearance of minors.

The Parties’ Submissions

4. Petitioners raised a number of arguments before this Court. First, they claimed that both the Board’s working procedures and its composition were flawed. The Board, they argued, exceeded its authority by taking into account aspects not germane to the issue. Its initial decision to disallow the film’s screening resulted from the “limits of good taste” test. This test has been invalidated under case law. The most recent decision to permit the screening of the film under certain conditions, they argue, was intended to “legitimize” its decision in the eyes of this Court. Petitioners further contend that the Board did not seriously consider the matter of the existence of a risk of injury to protected values, the intensity of the danger, and the degree of its probability. Regarding the Board’s composition, it was argued that the Board should not include people who are or have ever been government officials. It was also asserted that the Board does not constitute a representative cross-section of the public. Thus, it was contended that, in this situation, the Board does not represent the public and does not voice its concerns.

Second, it is submitted that the criteria that guided the Board in its decision were erroneous. According to this argument, the Board’s task was to examine whether screening the film, in its entirety, entailed a near certainty of serious, grave and severe injury to the public order. Instead, the Board began examining the effect of the screening of certain sections—in isolation of their place in the film as a whole. Based on the proper test, petitioners argue, it cannot be said that the screening of the film in its entirety entails a serious, grave and severe injury to societal morality. According to this test, petitioners assert, the film should not be considered pornographic. It is imbued with social– artistic values that redeem the controversial sections. The film’s message, context and artistic value distinguish it from a pornographic film that merely deals with sex. According to the argument advanced, proof of the artistic value of "L'Empire Des Sens" can be found in the international artistic recognition the film enjoyed, including the awards it has won, and the opinion of film critics and lecturers who have joined this petition. Furthermore, in terms of the asserted harm, petitioners claim that one must take into account the fact that the film will be screened before an adult audience only. The audience is not captive; the public is accustomed to permissiveness and openness, and, in any case, has access to material that features sex acts similar to those in the film under discussion. The petitioners also point out that the film has already been screened publicly, on February 28, 1995, on the European culture channel “Arte," which could be received in the Jerusalem area and in Ramat Gan. No resulting injury was shown. According to the petitioners, all of these facts illustrate the appropriateness of striking down the Board’s decision.

Third, petitioners argue that the State must not be allowed to interfere with adults’ decisions to watch films importing issues of morality and sexuality. The Board’s decision may be characterized as a form of paternalism, which has no place in a democratic country. Alternatively, petitioners argue for the adoption of a more stringent test for limiting freedom of expression, such as the test of clear and present danger, which would be more appropriate.

Fourth, even if the Board is of the opinion that, by screening the film, the petitioners will violate Section 214 of the Penal Law-1997, thereby committing the criminal offence of the publication and display of obscene material, petitioners argue that the criminal offense is not a germane consideration. The crucial nature of freedom of expression means that only post- facto punishment can be imposed, rather than prior restraint of the expression. Further, it must be left to the courts to decide whether a criminal offence has in fact been committed. Alternatively, it was argued that the artistic merit of the work in its entirety redeems the disputed sections, so that they do not constitute obscenity. The film is a work of art.

Fifth, petitioners claim that they were discriminated against by the Board, which approved the screening of other films containing explicit sex scenes, such as "Last Tango in Paris," “Clockwork Orange," "Rising Sun," and "Conan the Barbarian."

Finally, petitioners conclude that the Board did not attach appropriate weight to freedom of expression, particularly in view of the enactment of the Basic Law: Human Dignity and Liberty. They argue that freedom of expression is part of human dignity, and that the individual must not be denied the right to decide whether he wishes to view a particular film. The petitioners also point out that the Board’s claim that they are protecting human dignity by prohibiting the screening of the disputed sections is an argument first raised in this petition. Indeed, there is no mention of this reason in any of the Board’s discussions or decisions.

5. In their submissions, the respondents defend the Board’s decision. Their arguments are as follows. First, that the Board’s composition reflects the diverse opinions of the Israeli population on the matter and is therefore representative. Most of its members are not civil servants. In addition, the Board claims to have acted within the scope of its authority. Its decision is reasonable. Its considerations were not “non-germane," but rather relevant and commensurate with the case law on the matter. Indeed, the case law instructs that when it is nearly certain that allowing freedom of expression in a particular instance will cause serious, grave and severe injury to societal sensibilities and public morality, the former must give way to the latter. Based on this criterion, the Board decided that, if the film is to be screened, the disputed sections must be deleted. The respondents stress that, in applying this criterion, the Board took into account the harm to the enlightened public’s sensibilities and to current societal morality, rather than the feelings of extreme minorities. In their view, the Board adopted the “least restrictive means” for impairing freedom of expression, as the film was approved, rather than censored, and the parts that need to be deleted are small in length and number. In so doing, the Board by no means disregarded freedom of expression. Instead, it gave it significant weight. The respondents conclude by stating that the Board’s decision strikes the proper balance between the conflicting interests in the matter.

Second, they point out that in reaching its decision, the Board took into account the fact that some of the disallowed sections contain humiliating scenes that entail certain and severe injury to man’s dignity. The reference here is to scenes that feature close-ups of a man’s sexual organ being cut off or a woman’s clitoris being split. The same applies to scenes depicting sexual abuse of minors or the elderly.

Third, respondents note that the Board weighed the film’s artistic value. Conflicting opinions regarding whether the film should be classified as art or pornography were presented to the Board. According to most of the Board members, the film is devoid of artistic value. Moreover, they argue that even if the film as a whole has artistic value, the disqualified sections themselves lack such artistic value; consequently, cutting these particularly offensive scenes from the film will not harm the film’s artistic value. Their approach invites us to examine the redeeming artistic value of the individual sections, rather than to consider whether the film’s general value, as a whole, is capable of redeeming the individual sections. In addition, the respondents maintain that even if the artistic value of the individual sections were proven, this value would have to yield in view of the certain and severe injury to societal sensibilities and public morality which would ensue were those sections to be screened. The Board’s members are not art critics, and neither is the public. The film’s artistic value is a relevant, but not singular, consideration. We are not discussing art, and in any event, artistic freedom must occasionally yield to the values that clash with it.

Fourth, it is submitted that the expression’s criminality is a germane consideration. The law, at the very least, can serve as an indicator of the public’s tolerance level. According to the Board, the controversial sections are tantamount to an exhibition of obscenity, in violation of Section 214 of the Penal Law. The Board attached significant, although not determinative, weight to this consideration.

Fifth, as per the Board’s contention, there is nothing to support the discrimination argument advanced by the petitioners. Indeed, the Board has never permitted the screening of segments as problematic as those at issue here. Regarding the assertion that the obscenity law is not being enforced, no factual proof has been offered in support of this argument. Moreover, the fact that others may violate this law by no means compels the Board to grant a permit in this case. The respondent’s conclusion, therefore, is that the Board’s decision is a reasonable one. The Court must not replace the Board’s discretion with its own. As long as the institution of the censor exists, we must not empty the Board’s authority of all substance. Thus, they argue, the petition must be rejected.

Concerning Freedom of Expression and its Restrictions

6. Freedom of expression is a fundamental right in Israel. It is “democracy’s most cherished principle.” Crim. App. 255/68 The State of Israel v. Ben Moshe [1] (Agranat, J.). It occupies a place of honor in the “shrine of fundamental human rights.” HCJ 153/83 Levy v. Southern District Commander of the Israeli Police Force [2]. It constitutes a “supreme right." CA 723/74 “Ha’aretz" Newspaper Publications Ltd. v. Israel Electric Company Ltd. [3] (Shamgar, P.); a “superior right.” HCJ 73, 87/53 Kol Ha’Am. v. Minister of Interior [4] (Agranat, J.) “It is an integral part of our judicial ethos” CA 105/92 Re’em Engineers and Contractors v. Municipality of Nazareth-Illith [5]. The freedom of expression in Israel was first recognized by the Courts as being “among those fundamental rights that are not written in a book." Rather, they stem directly from the nature of our country as a freedom-loving democracy," HCJ 243/62 Israel Film Studios Ltd. v. Gary [6], at 2415 (Landua, J.). In several obiter dicta, a number of judges—myself included—expressed the view that today, freedom of expression enjoys constitutional status, as part of the right to human dignity anchored in the Basic Law: Human Dignity and Liberty. See CA 4463/94 PLA 4409/94 Golan v. Prison Services [7] (Mazza, J.).

Three rationales form the basis for recognizing freedom of expression as a fundamental right. The first rationale is the desire to expose the truth:

Freedom of expression must be ensured in order to allow for different and varied views and ideas to compete with each other. From this competition—and not from the regime’s dictate of a single ‘truth'—shall the truth surface and emerge. For, in the end, the truth shall be victorious in the battle of ideas.

HCJ 399/85 Kahane v. Broadcast Authority [8], at 272

The second rationale is based on the need for human self-fulfillment. “The spiritual and intellectual development of man is based on his ability to freely formulate his world views.” HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority [8] 273. Lastly, freedom of expression is a prerequisite for democracy. Thus, “the free voicing of opinions and the unrestricted exchange of ideas among people is a sine qua non for the existence of a political and social regime in which the citizen can weigh—without fear—what is required, to the best of his understanding, for the benefit and welfare of both the public as well as the individual, and how to ensure the continued existence of the democratic regime and the political framework in which it operates.” HCJ 372/84 Klopfer-Nave v. Minister of Education and Culture [9], at 238 (Shamgar, P.).

7. Like other freedoms enjoyed by the individual in a democratic country, freedom of expression is not “absolute." Thus, we recognize the possibility, and even the need, to restrict freedom of expression in order to satisfy other values which society wishes to realize. Indeed, we distinguish between the scope of freedom of expression as a fundamental human right (“the issue of scope”) and the scope of the protection given to freedom of expression (“the issue of protection”). See HCJ 806/88 Universal City Studios. v. The Film and Play Review Board [10].

According to our legal tradition, freedom of expression enjoys a broad scope. HCJ 606/93 Advancement of Entrepreneurship and Planning (1981) v. The Broadcasting Authority [11] Hence, freedom of expression as a constitutional right extends to every form of expression. It extends to any activity seeking to convey a message or meaning. It extends to any expression of a political, literary or commercial nature. The expression may take the form of words or behavior, symbolic or otherwise. With respect to the scope of freedom of expression, we do not examine whether the expression is truthful or false; no one scrutinizes its content; no one examines its consequences. “Freedom of expression extends to every expression, regardless of its content, impact and the manner in which it is expressed.” Universal City [10], at 34; see also Re Ont. Film & Video and Ont. Bd. of Censors [1983] 41 O.R. 2d 583 [61]. As President Shamgar has noted:

The exchange of ideas, the voicing of perspectives, public debate, and the will to know, to learn and to convince: all these are educational tools at the disposition of every opinion, every perspective, and every belief in a free society.

IA 2/84 Neiman v. Chairman of the Elections Committee for the Eleventh Knesset [12] 278 (emphasis added)

Thus, an expression entailing defamation is “covered” by the scope of freedom of expression. See Crim. App. 677/83 Borochov v. Yeffet [13]. Expression that offends is “covered” by freedom of expression. HCJ14/86 Laor v. The Film and Play Review Board [14]. An expression that constitutes a criminal offence is “covered” by freedom of expression. HCJ 399/85, supra [8].

8. A democratic regime, which seeks to protect the entire spectrum of human liberties and to further social goals, will not protect the full scope of freedom of expression. Recognition that certain expression is covered by freedom of expression does not guarantee that that the expression shall be protected. Thus, in order to advance human rights such as a person’s dignity, good name, property, privacy and occupational freedom, we allow freedom of expression to be infringed. See FH 9/77 The Israel Electric Company v. "Ha’aretz" Newspaper Publishing Company Ltd. [15]; HCJ 153/83 supra [2]; HCJ 2481/93 Dayan v. Jerusalem District Commander [16]. We allow freedom of expression to be infringed in order to advance societal goals, such as ensuring country’s very existence and democratic nature, as well as protecting the integrity of the judicial system, as well as public peace and security. See IA 2/84 supra [12]; HCJ 399/85 supra [8]; PLA 7504/95 Yassin v. Party Registrar [17]; Crim. App. 126/62 Dissenchik v. The Attorney General [18]; HCJ 411/89 The Temple Mount Faithful and Land of Israel Movement v. Jerusalem District Police Commander [19]. Freedom is not anarchy. Without order there is no liberty.

9. Restrictions on freedom of expression take different forms. There are those restrictions known as prior restraints. Other restrictions punish expression only subsequent to its publication. Another sort of restriction would require permits to be obtained. The most severe of these is, of course, prior restraint. At times, such restriction is required by reason of the expression’s content. We prohibit an expression which causes defamation or entails harmf to the integrity of the judicial system. Sometimes, the expression's effect necessitates the restriction. Thus, we restrict the freedom to protest—regardless of the message conveyed by a particular demonstration—in order to protect the freedom of movement. These restrictions derive from the societal significance of the expression, on the one hand, and the values, interests and principles with which freedom of expression clashes, on the other. Moreover, political freedom of expression is not equivalent to its commercial counterpart. See Advancement, supra [11], at 13. Harm to state security is not on the same footing as harm to the freedom of movement. Indeed, the substance of the restrictions is the product of a balance between aspects of freedom of expression and other human rights and the public good. It is related to an evaluation of the social significance of the various values. It is based on the idea that infringements on freedom of expression can only be for a worthy purpose and may not exceed the necessary measure. Thus, in principle, we seeks to establish “a value-oriented guiding principle," which distances itself from any “chance paternalistic criterion.” FH 9/77 supra [15], at 361 (Shamgar, J.).

Indeed, since the establishment of the state, Israeli jurisprudence has developed an extensive system of balances between freedom of expression and the values and principles with which it clashes. Fundamental guidelines were established, which determine the level of protection to be conferred on freedom of expression, on the basis of the relative social importance of the values and principles with which it may clash. One formulation of the freedom of expression in Israel was conceived by Justice Agranat in Kol Ha’Am [4]. This formula examines the proper balance between freedom of expression and public peace. It provides that, in such a clash, freedom of expression may be impaired if the following two conditions are satisfied. First, the harm that the expression causes to the public peace must be serious, grave and severe. The harm must exceed the “level of tolerance” acceptable in a democratic society and shake that society to its very foundations. Second, the probability of such an injury to public peace occurring must be nearly certain. It is insufficient that the harm be only possible or probable. Of course, this is not the only balancing formula. Indeed, “the proper criterion is not fixed and uniform with respect to all types of cases... it is necessary to adopt a suitable test, while considering the substance and importance of competing principles, in our perception with respect to their relative priority and the measure of protection which we would like to grant each principle or interest.” HCJ 448/85 Daher v. The Minister of the Interior [20], at 708 (Porat, D.P.).

Restrictions on Pornographic Expression

10. Freedom of expression, of course, extends to cinematic expression, be it commercial or noncommercial. Cinematic expression is an important tool for ideological discourse. Like a book and a picture, a film conveys an ideological message. It is a source of information and entertainment. It constitutes part of freedom of expression. Freedom of expression also extends to cinematic expression the content of which is pornographic. Indeed, freedom of expression “covers” expression featuring obscene or pornographic material. Universal City, supra [10], at 34, and does not distinguish between the two. See F. Schauer, Free Speech: A Philosophical Enquiry 179 (1982). Pornographic expression is also an activity that seeks to convey a meaning or message, and is, therefore classified as “expression." Indeed, the depiction of the sex act—be its content and offensiveness what it may—is expression encompassed by freedom of speech. See R.. v. Butler (1992) [62]; P.W. Hogg Constitutional Law of Canada 977 (3rd. ed., 1992); M. Reiman, Prurient Interest and Human Dignity: Pornography Regulation in West Germany and the United States, 21 U. Mich. J.L. Ref. 201 (1988).

11. Although pornographic expression is “covered” by freedom of expression, like any other expression, it too may be restricted. Indeed, no constitutional arrangement granting constitutional protection to freedom of expression protects all obscene material. Freedom of expression is not the freedom to express obscenities. In constitutional democracies, sensitive to freedom of expression, there is no general constitutional right to create or consume obscene material. Every society is entitled to protect itself against obscene expressions. Therefore, every society that is sensitive to human rights, in general, and to the right to freedom of expression in particular, is entitled to impose restrictions on freedom of expression with respect to obscenities. These restrictions should be for a worthy purpose. Their infringement on expression should not exceed the necessary.

We have stated that it is possible to restrict pornographic expression if there is near certainty that it would cause serious, grave, and severe injury to public peace. See HCJ 243/81 Yeki Yosha v. The Film and Play Review Board [21]; HCJ 14/86 supra [14]; Universal City supra [10]. In this manner, offensiveness may justify restricting freedom of expression if it exceeds the standard of social tolerance. In other words, if it is capable of shaking the foundations of mutual tolerance. See Universal City [10], at 38; The Queen v. Towne Cinema Theaters [1985] 18 D.L.R. 4^th 1 [63]. Such harm can justify restricting pornographic expression to the extent that it is capable of degrading a woman, thereby causing both direct and indirect harm to the equal status of women in our society and encouraging violence, particularly towards women. Addressing the issue of criminal liability for pornographic advertisements, Justice Sopinka, of the Supreme Court of Canada, wrote:

This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible to exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women, and therefore to society as a whole.

Bulter [62], at 467.

Indeed, in the hearing before us, the parties did not dispute that a pornographic film can entail a near certainty of serious, grave and severe harm to public peace. See HCJ 89/80 Ohayon v. The Film and Play Review Board [22], at 531. Therefore, it was not necessary for us to consider the empirical basis for these shared postulates. The dispute before us relates to the pornographic nature of the film "L'Empire Des Sens." The petitioners claim that the film has artistic value, and is therefore not pornographic. The respondents, for their part, argue that the film is of no artistic value and, in any event, the sections that the Board wishes to see deleted are of a pornographic character. We shall now turn our attention to an examination of this issue.

On Pornography and Art

12. The dispute between the parties gives rise to the following question: what is pornography? A well-known answer is that provided by Justice Stewart, who, unable to define obscenity, said: “I know it when I see it.” Jacobellis v. State of Ohio, 378 U.S. 184 (1964) [48]. This answer is unsatisfactory. Indeed, the modern approach defines pornography as a publication in which—according to accepted contemporary community standards—the material’s dominant theme, in its entirety, arouses impure carnal desire. This was the formula accepted by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 489 (1951) [49] and forms the basis of the test for pornography adopted by the Court:

[w]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest

We can employ this as an “operational” definition, while recognizing that it is not unique, and that other formulae exist for this purpose. See, for example, the definition of pornography in Miller v. California, 413 U.S. 15 (1973) [50]. Perhaps an all-encompassing definition cannot be formulated—see the words of Justice Brennan in Paris Adult Theater I v. Slaton, 413 U.S. 49, 85 (1973) [51]. We, however, have no need for deciding this matter, as all the relevant definitions have one thing in common: that a publication boasting artistic, literary, political or scientific value is not caught by the ban on pornographic publications. Thus, in Roth [49], at 487, Justice Brennan said:

Sex and obscenity are not synonymous. Obscene material is material that deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

Two very different perspectives may support this approach. According to the first of these, art and pornography are mutually exclusive. If the publication is of an artistic, literary, scientific or political nature, its character is, by definition, non-pornographic. Such is the law in the United States and Canada. According to the other viewpoint, the publication’s artistic nature does not serve to negate its pornographic character. Rather, it alters the fundamental balance between freedom of expression and the restrictions that can be placed upon it, and is likely to offer a pornographic publication “protection” against criminal conviction. Such is the law in England. See C.R. Sunstein, The Partial Constitution 261 (1993). According to both the first and second approach, a publication of an artistic nature—literary, political or scientific—cannot be subject to the same restrictions as a pornographic publication. Opinions differ as to the measure of the literary, political or scientific value required. There are those who maintain—and so it was held in Roth [49]—that any such value is sufficient, and the work need not be of serious value. Others, for their part, maintain—and so it was held in Miller [50]—that serious literary, political or scientific value is required. See F.F. Schauer, The Law of Obscenity 136 (1976). Thus, constitutional weight is allotted not only to freedom of expression, in general, but also to freedom of artistic expression. This freedom can be understood as being part of freedom of expression, “out of which several things grow, including the freedom of artistic expression in the literary field and in the visual area in all its forms.” Universal City supra [10], at 27. “Freedom of expression is the author’s freedom to break through his innermost feelings, to spread his wings and have his idea take flight.” Laor, supra [14], at 433. It may be understood as a constitutional right that “stands on its own two feet," so to speak. It is based on the notion that man is an autonomous creature, entitled to self-actualization, as both a creator and as one who benefits from the creation. Indeed, freedom of artistic expression is the artist’s freedom to create. It is the freedom to choose a subject and the manner in which it is presented. It is also the freedom of others to listen and absorb. Of course, freedom of artistic expression is also not absolute. Like other “freedoms," its nature is relative. Thus, it may be impaired for a worthy purpose, provided that the infringement does not exceed the required measure.

The "Work as a Whole" Test

13. As such, if the publication has (serious) artistic value, it is not caught by the prohibition on publishing pornographic material. The question, therefore, is how to determine whether a particular piece is of an obscene or an artistic character. For these purposes, the practice in nineteenth-century England was to examine individual sections of the piece alleged to be pornographic. According to this approach, it was deemed sufficient to base the fate of an entire piece on the effect of its individual sections. See Regina v. Hicklin (1868) 3 Q.B. 360 [58]. As per this test, important works of literature or art were deemed pornographic if they featured sections of a prohibited pornographic character. This test is no longer valid, neither in England nor outside it. See Irish Family Planning Association v. Ryan [1979] I.R.J. [47]. In Roth [49], Justice Brennan wrote:

The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible person, might well encompass material legitimately treating with sex and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press.

The modern test for assessing a work’s pornographic nature is holistic and involves the integration of sections alleged to be pornographic. This is commonly referred to as the “taken as a whole” test. This test was accepted in Roth [49], and subsequently in Miller [50]. This case marked the inception of “the work as a whole test” to determine whether a piece constitutes art. According to this test, material will be deemed pornographic only if the following three cumulative conditions are satisfied:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Id., at 24.

For our purposes, the third component of the Miller [50] test is of the essence. This prong provides that a work’s artistic value is evaluated on the basis of the work as a whole. Thus, the artistic value of individual sections per se is not examined. This approach is also accepted in Canada. In Butler [62], Justice Sopinka wrote:

The "internal necessities" test, or what has been referred to as the "artistic defence," has been interpreted to assess whether the exploitation of sex has a justifiable role in advancing the plot or the theme, and in considering the work as a whole, does not merely represent "dirt for dirt’s sake" but has a legitimate role when measured by the internal necessities of the work itself.

Id., at 469. German jurisprudence adopted a similar approach in BVerfGE 67 (1984), 213 (known as “The Street Theater case”). There, the Constitutional Court wrote:

Artistic expressions can be interpreted and are in need of interpretation. An indispensable element of this interpretation is that the work of art be viewed in its entirety. One may not take individual parts of the work out of context and examine them separately to see if they merit criminal sanctions.

The Constitutional Jurisprudence of the Federal Republic of Germany 435 (D.P. Kommers trans., 1989)

This approach is also currently accepted in England: although the work as a whole may be of artistic value, this in itself is not sufficient to preclude application of the obscenity law. See section 1(1) of the Obscene Publications Act-1959. It is also necessary that the sections alleged to be pornographic form part of the plot and of the message. It therefore follows that when a section of a work is ostensibly alien to the work as a whole, it may be examined in isolation. Based on “the work as a whole test," it was decided that James Joyce’s Ulysses was not pornographic. The Court stressed that the book contains several passages, which, if examined in isolation, would be considered pornographic. When examined as a whole, however, the book has artistic value. See United States v. One Book Entitled Ulysses, 72 F.2d 705, 707 (2d Cir. 1934) [52]. Similarly, it was held that Lawrence’s Lady Chatterly’s Lover was not pornographic, notwithstanding certain passages which, if isolated and examined on their own merit, can be described as being of a pornographic character. See Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d Cir. 1959) [53]. Similarly, it was held that John Cleland’s Memoirs of a Woman of Pleasure, also known as Fanny Hill, has artistic value, despite the pornographic passages it contains. See Memoirs v. Massachusetts, 383 U.S. 413 (1966) [54].

14. The work as a whole test is also the test applied in Israel. It is compatible with the path taken by our case law: to examine the expression according to its context and circumstances. To this effect, Justice Cheshin has written:

The same word, or several words, can be unworthy of protection in one context—if, for instance, they stand on their own—but may warrant heightened protection in a different context, such as in a literary test.

HCJ 606/93 supra, at 29 [11].

Consequently, it was held that “we are bound by an enlightened viewpoint—according to what is commonly accepted nowadays—to accept even a substantial measure of provocative depictions of sex if they appear as an integral part of a work of literary or scientific value, which compensate for the works pornographic aspect.” Crim. App. 495/69 Omer v. The State of Israel 412 [23] (Landau, J.); see also DC (Haifa) 404/82 Yishayahu v. The State of Israel 526 [46]. Thus, sections, which in and of themselves and taken in isolation, are liable to be perceived as pornographic, lose this character if they are part and parcel of an artistic work or a work that boasts other societal value.

The Board’s Decision and the Scope of Judicial Review

15. It is incumbent upon the Board to examine whether the film is of (serious) artistic nature. If the film does indeed have artistic value, its screening must not be prevented by reason of its pornographic character. Hence, the Board must probe the work’s artistic value. It must also ascertain whether certain sections, which, in isolation, could be deemed to be pornographic, form part of the work’s evolution, in terms of its plot and its message or, on the other hand, are alien to the film. To this end, the Board is entitled to seek out expert opinions. On the basis of the evidence before it, the Board will have to decide, employing “the work as a whole test," whether the film, as a whole, has artistic value, and whether the sections asserted to be of a pornographic character are part of the plot’s evolution and of the message. For this purpose, it is not necessary that the Board become an art critic. It should not grade work, or determine whether its artistic value is great or minimal. Nor should it impose its own members’ artistic preferences the members of our society. I highlighted this point in one of the cases cited:

The question is not whether the script is of remarkable artistic value or not. The Board is not an art critic, nor is it the body responsible for evaluating scripts’ artistic value

Laor [14], at 431.

Rather, the Board must determine whether the film, as a whole, has any (serious) artistic value. For this purpose, the Board must distance itself from all “cultural paternalism” (as per President Shamgar in Universal City [10]). It must understand that, at times, artistic expression seeks to break through the existing boundaries and establish new artistic horizons. It must take into consideration that artistic expression grants its creative author freedom, which must not be restricted in the name of contemporary conventions. Compare HCJ 175/71 The Abu-Gosh/Kiryat Ye’arim Music Festival v. The Minister of Education and Culture 828 [24]. In the area of artistic creativity, we must let a thousand flowers bloom in the artistic garden. Indeed, we must recognize the existence of artistic pluralism, and acknowledge the lack of clear-cut, objective criteria for this purpose. Thus, what is today perceived as a work devoid of artistic value may, in coming years, be considered a masterpiece. In light of the above, the Board must take a neutral stance with respect to competing artistic perceptions. Therefore, in order to establish a work’s artistic character, thereby negating its pornographic aspect, it is sufficient that the Board’s assessment affirm the work's (serious) artistic nature, even if this assessment is controversial, and even if it does not reflect the assessment voiced by the majority of the public or by the majority of art experts.

If material has serious literary value for a significant portion of the population, then the fact that this portion is neither average nor it be majority is irrelevant... If a work is a serious literary endeavor, with the purpose of stimulating the mind, and if it has this effect on a significant number of people, then literary value exists and there can be no finding of obscenity.

The Law of Obscenity, at 144.

We must bear in mind the following: in matters artistic and aesthetic, differences of opinion abound. We must not demand universality. It is sufficient that there is an opinion, even if it is controversial, with respect to the (serious) artistic value of a work. For our purposes, the words of President Agranat are rather fitting:

A work of art is not required to be universally esthetically pleasing, and its artistic value does not depend on the majority’s ability to appreciate it; the true test for these purposes is anchored in the degree of satisfaction and type of pleasure that the work confers on those able to best appreciate it

CA 448/60 Lev v. The Central "Mashbir" 2700 [25]. Indeed, if it is possible for us to err, we should err on the side of promoting freedom of expression and freedom of artistic creation. As Justice Landau, Omer at 411 [23], rightly stated:

The line between that which is permitted and what is prohibited should be set by the Court in every case according to its discretion, in accordance with enlightened views, prevalent in our modern society, bearing in mind that each restriction of freedom of expression smacks of censorship; in borderline cases, therefore, the tendency must be to permit rather than prohibit.

Similarly, the ruling handed down by Justice Sopinka, Butler [62] at 471, dealing with criminal liability for obscene publications, provided:

Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.

This approach gives proper expression to the idea of “the mutual tolerance required in a pluralistic society." HCJ 549/75 Noah Films Ltd. v. The Film Review Board. [26] (Vitkon, J.). Indeed, the Board was not intended to fashion “criteria for morality,” and its job is not to formulate “educational criteria." FH 3/87 The Film and Play Review Board v. Laor supra [27], at 163 (Shamgar, J.). True, the Board is composed of people from the fields of education, literature, journalism and law. They, however, must not express their subjective views with respect to the artistic value of a work. Instead, they must consider and decide, according to the material before them, whether it is possible to conclude that the film could be deemed to be of (serious) artistic character— even if this would not correspond to their own assessment— and that parts of it, even if they are pornographic taken independently, constitute an integral part of the piece.

16. The Board’s decision is subject to judicial review by the High Court of Justice. Inter alia, the Court examines whether the purpose underlying the restriction on expression is proper, and whether the means adopted by the Board to restrict this expression do not exceed the required measure. When the argument is that the film has artistic value and is therefore not pornographic, the Court must examine whether the Board’s decision in this regard is reasonable. It is not enough for the Board to opine that certain parts of the film—if isolated from the whole of the work and observed independently—are pornographic. Instead, it is incumbent on the Board to examine the artistic nature of the work as a whole, in order to determine whether it is to be considered art or obscenity. Thus, it is also insufficient for the Board members to opine that the film, as a whole, is of no artistic value. The Court must ask itself if, employing the appropriate standard, a reasonable board would be justified in deciding that the film, in its entirety, is of no artistic value. Indeed, the test for the artistic value of a work must be based on the data before the Board and on the objective criteria according to which a work’s artistic nature is determined. Laor [14], at 438. The question is not, whether, according to a Board member’s subjective artistic perception, a work has no artistic value. Rather, the question is whether, according to the evidence presented to the Board members—and against the backdrop of the objective criteria used for testing the work’s artistic nature—the work has artistic value. If the Board has not taken this objective approach, this Court will not hesitate to strike down its decision. Indeed, the work’s pornographic character and the lack of all artistic, scientific, literary or political value constitute “constitutional data." This data has a mixed character of fact and law. The ultimate responsibility for determining it rests with the Court, as I noted in one of the cases:

[T]he question before us is a basic constitutional question. It touches on the very substance of freedom of expression and the matter of delineating its boundaries. The responsibility for these matters rests with the Court.

Universal City [10], at 40. In a similar vein, Justice Harlan noted in Roth supra [49], at 497-98:

[I]f ‘obscenity’ is to be suppressed, the question of whether a particular work is of that character does not really involve a question of fact but rather a constitutional judgment of the most sensitive and delicate sort.

Indeed, the Court will not ask itself if, in its own opinion, the work possesses artistic value. The Court—like the Board itself—is not an art critic. Instead, the Court will ask itself if whether, on the basis of the facts presented to it, a serious assessment affirming the work’s artistic value exists, even if this assessment is controversial. More specifically, the Supreme Court does not conduct its own independent examination. This examination is conducted by the Board. The Supreme Court asks itself if, according to the material presented to the Board, this body, acting as a reasonable board, was entitled to conclude that the material is pornographic and of no redeeming artistic value. Schauer referred to this in his book, The Law of Obscenity, supra at 152, stating:

What the scope of review involves is a determination of whether, as a matter of constitutional law, the materials are of such character as to be clearly outside the scope of First Amendment protection.

This test does not obviate the Board’s function. It is the Board that establishes the facts and performs the assessment. This assessment, however, has a constitutional dimension. It infringes on freedom of expression. The Court therefore has the constitutional obligation to examine whether the Board’s determination is anchored in the facts that were presented to it and whether it has reasonably exercised its discretion.

After all, the following must be borne in mind: the Board’s refusal to grant a permit to a film prevents that film from being screened, thereby constituting a prior restraint. The prior restraint is imposed by a body that is not a court and does not possess the tools that a judge, using judicial criteria, has for testing whether a publication is obscene. It imposes the burden on those wishing to obtain a permit. In a constitutional regime that protects freedom of expression, it is necessary to exercise stringency with a procedure involving prior restraint, which “freezes” freedom of expression and is carried out by a body other than a court. See HCJ 399/85 supra [8], at 297; see also Freedman v. Maryland, 380 U.S. 51 (1965) [55]. Indeed, a number of constitutional democracies do not allow the imposition of any prior restraints, such as the censorship of films, plays or books, and satisfy themselves with subsequent criminal proceeding, in which the burden of proof rests with the prosecution and where the defendant’s rights are guaranteed. In Israel, the censorship of films is recognized. It forms part of the law, the validity of which is preserved as existing legislation, prior to the enactment of the Basic Laws, by virtue of Section 10 of the Basic Law: Human Dignity and Liberty. In exercising this censorship, it is necessary to ensure the effectiveness of judicial supervision. As Justice Dorner correctly pointed out:

In cases in which the law authorizes an administrative authority to restrict freedom of expression, the law—as it is interpreted by the Court—determines the tests according to which the authority will decide whether or not to deny freedom of expression. Thus, the Court examines whether the authority’s decision meets the conditions set out by the tests to which it is subject.

Advancement [11], at 10.

From the General to the Particular: Does the Film “L'Empire Des Sens” Have Artistic Value?

17. Reviews of the film "L'Empire Des Sens" are divided. On one hand, there are several opinions holding that the film is devoid of any artistic value and is nothing but pornography for pornography’s sake. These statements stress that the film is merely an endless series of sex acts in different variations. According to this view, the film offers nothing but “hard-core pornography." Most of the Board members took this approach. They stated that the film has no artistic value, and that all it contains is a series of sex acts. It contains sexual perversions and close-ups of genitalia. It features severe violence, and is merely an obscenity. The members stressed that if the Board has any purpose at all, it is to censor films of this sort.

18. On the other hand, there are many opinions, which hold that the film has great artistic value. These opinions, which were presented to the Board and to the Court, emphasize that the film does not encourage sexual arousal. On the contrary, it conveys an “anti-pornography” message; it stresses the folly of lust, and how it flickers, ending in death. It is emphasized that "L'Empire Des Sens" is a profoundly artistic film. True, the film deals with human sexuality, but it is not obscene nor pornographic. It expands and increases our aesthetic and spiritual wealth. Those who are of this opinion state that the film is exciting in its intensity and cinematic language. In addition, the Board and the Court were informed of the important awards won by the film at international film festivals, such as Cannes, Lugarno, London, New York and Chicago, the rules of which forbid the screening of pornographic films. It also won the award for the Best Film of 1976 in England. The Board and the Court were shown reviews published in the most important American and British weeklies and newspapers, including Newsweek, Guardian, Sunday Times, Los Angeles Times, Times. All of these articles emphasized that “L'Empire Des Sens” is an extraordinary, beautiful, real and powerful film. They also stated that the film is not pornographic, that it is the pioneer of art films dealing with sexual obsession, and that it is a high-level artistic work. It was screened in Israel on February 28, 1995 on cable TV’s European culture and arts channel, “Arte," which is broadcast all over Europe. It has been approved for distribution in various European countries. Furthermore, previous judicial decisions have cited the film’s respectable artistic value. Thus, German courts, both at the first instance and at the Supreme Court, dealing with the criminal aspect of exhibiting the film, held the film not to be pornographic, as it was not intended to sexually arouse the viewer, but rather to warn him of the danger inherent to an obsession focusing on sexual relations between two people. See, Archiv fuer Urheber-, Film-, Funk-, und Theaterrechte, 17 Mar. 1977 at 204. Some of the Board members also expressed the view that the film is a cinema classic.

19. It seems to me that, in light of the above, the Board should have determined that the film has serious artistic value, which precludes its classification as a pornographic film. The Board was presented with a factual basis according to which there was an assessment affirming the film’s serious artistic nature. Based on these facts, the Board should have concluded that the film is art. The fact that there are differences of opinion in this regard should not negate this assessment. Several Board members stressed that they are not film critics, and rightly so. The obvious conclusion to be drawn from this is that where there is a credible and serious basis for upholding the film’s artistic nature, this is sufficient to support an assessment of artistic value, even if there are dissenting opinions in this regard, and even if the dissenting opinion is voiced by the Board members themselves. They must not express their subjective view with respect to a work’s artistic nature, but rather an objective view with regard to the question of whether there exists a serious opinion—even if it is not their own opinion—concerning the artistic nature of the work.

20. As mentioned above, the Board decided to condition a permit for the film on the deletion of several sections. In the vote taken, the Board members’ opinions were divided. Most maintained that the film as a whole is of a pornographic nature and should not be permitted. The minority maintained that the film is of an artistic nature and consequently should be permitted, subject to deletion of the parts in which children appear). Ultimately—and after the Attorney General’s representative pointed out to the Board that he could not defend a full ban on the screening of the film—the members reached a compromise whereby the film would be permitted if a number of sections were deleted from it. Therefore, very little attention was paid to the question of the fate of sections which, in isolation, could be characterized as pornographic, but which fit into the artistic work, and appear to be required for the plot’s development and for the integrity of the message conveyed therein. Thus, it was found that the Board did not discuss the pivotal question of this petition. During oral arguments, we brought up this point. In his answer, Mr. Nitzan pointed out that even if the film has artistic value, such value is not sufficient to prevent the deletion of certain sections, provided that these sections have no “redeeming societal, artistic value." This approach, as we have seen, is fundamentally erroneous. As noted, the test that the Board must employ is the “work taken as a whole” test. One must not scrutinize a number of isolated sections with a “magnifying glass," and ask whether these sections, per se, are pornographic. Instead, one must look at the entire work “from a distance” and ask whether this work, which integrates these and other sections, is a film with artistic value. The Board did not perform this examination.

21. I have concluded that there is no choice but to strike down the Board’s decision. Indeed, if the film before us had constituted obscene material, there would have been no room to interfere with the Board’s decision. The trouble is, that, according to the facts presented to the Board, the film as a whole is not pornographic, despite sections of it, which, if isolated—and not taken as part of the work as a whole—could be perceived as being so. According to the proper criteria, the Board should have determined that, in view of the differences of opinion regarding its artistic value, the work should be classified as having artistic value. It should have determined that, on the basis of the work taken as a whole test, it is unwarranted to delete sections which, if isolated, could be deleted as being pornographic. The Board’s decision deviates from the bounds of reasonableness and must therefore be struck down. In view of this conclusion, we need not consider the other arguments advanced, as the Board based its decision on the film’s pornographic character. In view of the collapse of the reasoning underlying its decision, there is no choice but to strike it down. There is therefore no room for examining the question of whether, notwithstanding the film’s artistic character, it would have been appropriate to deny a permit for its screening, in view of the harm it causes to public feelings. As stated above, the main rationale for the Board’s decision is the film’s pornographic character. Since this rationale has collapsed, the basis for the Board’s decision has also disintegrated.

As a result, the order nisi is hereby made absolute. This is to say that the Board must allow the film to be screened, without deleting any sections from it (save for the two sections that the petitioners agreed to cut). The film shall be restricted to adults only.

Justice E. Mazza

I agree.

Justice M. Cheshin

I have read the opinion of my colleague, President Barak and, truly, it is a song of praise to the freedom of expression. I placed my hand in his and allowed him to draw me in his wake, as he made his way among the thickets. Happy and supportive, I followed him some distance. Nearing the path’s end, however, I felt the road growing difficult for me. At the risk of stumbling, I decided to find my own path. Thus, I started, and in the end found myself alone, my colleagues not at my side.

Indeed, I agree with the main points made by my colleague, almost all of them. That “almost” signifies the small difference between us, and—perhaps—this difference might not be so small.

The Framework of the Discussion and the Clashing Interests

2. Prior to commencing a substantive examination of the issues, it is appropriate to dwell upon the discussion’s framework and the expanse in which we are to move. In the subject upon which we deliberate, two main interests compete with each other, each pulling in its own direction. The first interest is that of the individual’s freedom of expression. The other interest, likely to change from matter to matter, is variously formulated as “the public order," “the public good," “public feelings," and other such names and terms, which generally refer to the good of the community and the public interest. Beginning with the individual’s freedom of expression, let us examine both of these two types of interests.

3. My colleague dwells at length on the various areas of freedom of expression, and I am prepared to agree with him—without, however, ruling on the matter—that this principle extends to all means of communication between man and man, whether in categories that man has preeminence over beast, or whether in categories that "man hath no preeminence above a beast." Ecclesiastes 3:19 [65]. To this effect, see my comments regarding the Gal Law, in CA 6821/93, PLA 1908/94, PLA 3363/94 United Mizrahi Bank v. Migdal Cooperative Village [28], 568-71. At the same time, let us remember that the ideal of the freedom of speech does not lay with equal force upon all modes of expression and types of statements, as if it was a rigid, stiff monument.

I was required to address this issue in the Advancement [11] case. In that matter, which dealt with commercial advertising, I opined that freedom of expression in matters of commercial advertising is far weaker than freedom of expression in matters of supreme importance, such as the issue of criticism of the regime and reporting about events that have occurred:

In our attempts to examine the clashing interests lying at the heart of the conflict, we will take heed to distinguish between the great and the small, between primary interests and those below them; the protection accorded to freedom of speech and expression shall, to my mind, be in conformity with the interest being examined. Thus, for instance, the right to voice criticism directed at the regime or establishment—including the citizen’s right to information—shall be guarded strictly, with heightened care and dedication. Commercial publications, for their part, do not require us to adopt such an extreme position, and we are satisfied with humbler tests. The level of protection shall correspond to the interest at hand. We will not adopt an extreme position with respect to commercial advertisements, even though its older brother and sisters are entitled to enhanced protection. When we deal with criticism directed at the government, we find ourselves in the fiery heart and soul of the ideal of freedom of speech, which we spare no effort to protect. Commercial advertisement is situated at the peripheries, a humbler place.

Id. at 28. See also Id., at 11-13 (Dorner, J.) See also HCJ 6218/93 Dr. Cohen Adv. v. The Israeli Bar Association [29], 550-51 (Shamgar, P.)

In other words, even though commercial advertising resides in the house of freedom of expression, its status is not like that of freedom of expression relating, for example, to criticism of the regime. In the house of freedom of expression there are various modes of expression and speech, which have a place in the sanctuary, and there are other modes of expression and speech that do not. When freedom of expression clashes with opposing interests, the various modes of expression and speech wage battle, each with its own intensity. Freedom of expression is not an idol, that we should prostrate ourselves before it wherever we encounter it. Upon concluding that the matter at hand involves one of the derivatives of freedom of expression—an expression that finds shelter under the wings of the broader principle—we test its mettle before sending it out to battle with conflicting interests. Our way is the way of atomization, or, if one prefers: the way of moleculization—we divide the field of freedom of expression into individual categories, according to the type of interest which we protect. There is an article in a newspaper and then there are belles-lettres, there is a description of events and then there is a speech, there is a commercial advertisement and then there is criticism of the regime, there is societal criticism and then there are parades. Each one of these, and others besides them, reflect a certain interest, and the strength of the right will be equal to the strength of the interest. The same applies to modes of expression and speech: there are newspapers and then there is film, there is theatre and then there is television, there is radio and then there is the stage.

At times, sectors partially overlap, and sometimes, different sectors will constitute the two faces of Janus. Thus it is, for example, with radio or television commercial advertisements, or a social critique in a theatrical show or film. It is not relevant to analyze each of these sectors at this juncture. Our purpose now is to say only that various forms of freedom of expression are not fashioned from the same clay, and that in the area of freedom of expression, different types of flowers bloom, and though all are members of a single family—the family of freedom of expression—not all members are identical. Thus, when examining a particular matter, it will be incumbent upon us to focus on the relevant sector and examine it closely, in order to clarify its intensity and magnitude.

4. It is important that we say these things—that we say them and say them precisely—if only because we often find that people try to explain the nature of one type of freedom of expression using interests that support freedom of expression of another type, and thus we find ourselves mixing apples and oranges. Hence, for example, when considering freedom of the press or a documentary report on certain events, it is simple for the Court to establish the boundaries and strength of freedom of expression in a way which is commensurate with the issue being discussed before it—an issue forming one of the pillars of the democratic regime. In Film Studios in Israel [6], Justice Landau noted:

A regime which takes upon itself the authority to determine what is good for the citizen to know, will eventually also determine what is good for the citizen to think; and there is no greater contradiction for a genuine democracy, which is not "guided" from above.

Id., at 2416. In Advancement [11], I quoted the remarks made by Justice Landau, and my question was whether:

[t]hese things will apply—with all the intensity and feeling with which they were uttered—even to a commercial advertisement, such as advertisements for laundry detergent or hot-air balloons? Will the lofty and noble statements, which the Court was required to address, and rightly so, in Kol Ha’Am, Ha’aretz, Avneri, Shiran, and in HCJ 680/88 Schnitzer v. The Chief Military Censor, in Kahana—will these same lofty, noble statements bet set as a canopy over the head of commercial advertisements for the promotion of such and such a product or such and such a service? Does application of the principle of freedom of expression, in all its glory, to a commercial advertising, not constitute, if only to a small degree, a loss of perspective?

Words emanating from the pen of Justice Landau—lofty words in Orwellian language—will not hold in relation to freedom of speech in the matter at bar, and certainly will not hold in relation to other issues, such as commercial advertisements. This was the case when Justice Agranat said that freedom of expression is “democracy’s most cherished principle,” Ben-Moshe [1], at 435, and when Justice Shamgar granted freedom of expression a “supra-legal status." Israel Electric Company supra [3], at 295. I think I would not be wrong if I said that neither of the two directed his remarks and thoughts at a film such as "L'Empire Des Sens." Indeed, Ben Moshe [1] involved a defendant on trial for attempting to murder Member of Knesset Wilner because of the MK’s opinions and statements. In discussing this act, Justice Agranat said that “any act committed outside the law’s framework and intended to harm others’ freedom of expression—and, a fortiori, a violent act—is tantamount to harm to democracy’s most cherished principle. Id. at 435. Israel Electric Company [3], for its part, turned on the issue of defamation. There, the Court primarily occupied itself with “the character of the democratic regime." What business have we to speak in flowery language and make use of expressions and descriptions—themselves full of substance—that are fundamentally unrelated to the matter at hand?

In the Advancement case [11], at.17, I cited the well-known saying attributed to Voltaire: “I may disagree with what you have to say, but I shall defend, to the death, your right to say it." To this, I added that were we to ask Voltaire if he would be willing to defend the petitioner’s right to voice vulgarities to the death, "he would ask us to repeat the question: so far removed is the matter from his intent." Id., at 18. That which we said regarding the above commercial slogan is equally applicable to the case at bar. To apply lofty principles, dealing with freedom of expression, to a movie that some deem to be pornography—and that, in any event, is fraught, and indeed overflowing, with sexual acts—demeans the importance allotted freedom of expression, thereby bringing these great principles into derision. Indeed, my statements in Advancement [11], at 19 are applicable to the case at bar, subject to the necessary modifications:

Regarding the weight attaching to the saying summum jus summa injuria, I will say the following: enlisting freedom of speech in order to protect a commercial advertisement or a vulgarity is an unworthy use of conceptions of freedom and liberty, and is tantamount to equating the nation’s most revered with the lowest of the land.

In Chief Justice Berger’s words in Miller [50], at 30:

The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press'"

See also S. Kentridge, Freedom of Speech: Is It The Primary Right?, 45 Int. & Comp. L.Q. 253 (1996). For a different view, see Y. Zilberschatz, On Commercial Freedom of Expression, 3 Mishpat U’Mimshal 509 (1995-96).

We shall, therefore, separate between distant relatives, so that we shall not err in our way. Thus, in reading what judges (and others) have said regarding freedom of speech, we shall consider the context in which the remarks were made, as well as the background to their utterance. In this manner, and in this manner alone, shall we know how to gauge their proper measure and tell their correct weight.

5. In emerging into reality, freedom of expression meets opposing interests, which seek to make it vanish or, at least, to diminish its value and dimensions. These interests are collected and come from various areas and find shelter under the canopies of “public order," “public peace," “public feelings," and other similar expressions. These concepts are all-inclusive, and their scope of application will vary from time to time. See Laor [14], at 430. However, the expressions “public order” or “public feelings”—per se—are not sufficient to diminish the power of freedom of expression. We shall kindly request of the person who pleads on their behalf and relies on them to expound on his remarks, just as the person pleading on behalf of freedom of expression, must expound on what freedom of expression says on his behalf. For example, "harm to the existence of the state, to its democratic regime, to public peace, to morality, to religious feelings, to a person’s good name, to the guarantee of fair judicial proceedings,” Id., [14] is insufficient. It is incumbent upon us to delve further and further into the said interest, to turn it upside down and on its feet, on its head and its sides, examine it thoroughly inside and out and, at the end of the examination, send it forth to contend with the specific freedom of speech interest that awaits it.

6. Against the backdrop of the two opposing interests, let us make a few comments about the film before us and about the question being disputed by the litigants.

The Film "L'Empire Des Sens" and the Matter in Dispute

7. Sharp differences of opinion have surfaced with regard to the artistic value of the film before us. There are those who praise it to the heavens, while others denounce it vigorously. However, there are no differences of opinion—and there cannot be any differences of opinion—regarding the film’s contents and the events that it depicts. The story is about the tangled relationship between the film’s main character, a Japanese man, and a girl who works in his household. Almost the entire film deals with the sexual encounters between the man and the girl, between the man and his wife, and even between the man and other women. The frequency and intensity of sexual encounters between the man and the girl constantly increase—in a myriad of variations—and they are at the center of their being and at the core of the film itself. The man and the girl sink into a sexual obsession, and one sex act follows another, almost from the beginning of the film until the end. One can say—without exaggeration—that no sooner does one sexual escapade culminates that the next one begins. Indeed, other than short statements exchanged between the actors— a little here and a little there—we find ourselves knee-deep in sexual encounters between the man and the girl, and in a minority of cases, between the man and other women. Many scenes combine sex and violence, including intercourse clearly exhibited, physical abuse of the genitalia of an old man and a boy, the rape of a woman, the rape of a girl with a wooden instrument, the girl’s strangulation of the man, the strangulation of the man until he is dead, and the subsequent severing of his sexual organ. The actors’ genitalia are clearly exposed to the viewer, be it during the sex act or otherwise.

The Board held many stormy discussions regarding the film. A summary of these sessions may be found in President Barak’s opinion. At the end of these discussions, the Board took the following decision:

The Film Review Board’s September 11, 1994. Decision with Regard to the Screening of the Film L'Empire Des Sens.

After studying its previous decisions on the matter, after hearing a review of the legal situation, and, in particular, a review of the rulings set forth in the judgment with respect to the screening of The Last Temptation of Christ and the staging of the play Ephraim Returns to the Army, and after deliberations, in which members of the Board participated, the Board decided as follows:

The screening of the film L'Empire Des Sens shall be approved for screening to viewers who are at least 18 years of age, contingent upon the deletion of the following sections:

(a) Sexual intercourse in which the viewer clearly sees the male sexual organ penetrating the female.

(b) Physical abuse of the sexual organ of an old man by children (the section appears at the beginning of the film).

(d) Oral sex performed on the male lead by the female lead, until ejaculation.

(e) Sexual abuse of a boy (a two second section at the end of the first reel in which a woman pinches a boy’s sexual organ).

(f) A lesbian rape of a young girl by several women.

(g) An orgy involving the main characters, during which we see close-ups of exposed genitalia.

(h) Sexual intercourse in a sitting position, during which the male lead is strangled by the female lead.

(i) A scene in which the female lead cuts off the sexual organ of the dead male lead and holds the severed piece.

According to the Board’s decision, in each of the above- mentioned scenes, only those isolated seconds, in which the camera focuses on the genitalia during intercourse or sexual abuse, need be deleted.

In our assessment, the deletions total only a few minutes. In the Board’s opinion, the screening of these sections entails certain or, at least, near certain probability of harm of a severe, serious, and grave nature to societal sensibilities and public morality.

This decision was approved by a majority of 8 members against 4, with the dissenters maintaining that the previous decision should be left in place, which disqualified the entire film for screening.

The decision’s significance is as follows: the Board is prepared to approve the public screening of the film, provided that the distributors delete from it isolated seconds in certain scenes “in which the camera focuses on genitalia—during sex acts or sexual abuse." The total length of the deletions is, in the Board’s opinion, “a few minutes.” The petitioner has agreed to cut segments B and E (“abuse of the sexual organ of an old man by children” and “sexual abuse of a boy.”) We are therefore talking about the other seven segments.

8. The battle before us is between freedom of expression and pornography, with the following question being asked: did the Board act within the confines of its authority, and did it carefully and properly exercise its discretion when it decided to disallow the screening of the film unless certain specific segments were cut from it? Was the Board entitled to disqualify the screening of those segments that it banned, when it maintained that they are capable of causing “severe, serious and grave harm to societal sensibilities and public morality?” These are the main questions in the matter at bar, but before we deal with them, let us speak a little about the subject of pornography, which lies at the heart of our deliberations.

A Preliminary Note on Pornography in Contemporary Times

9. During the course of a trial—and even now—I am permeated with a strange sense of hot and cold, of yes and no. As though I am supposed to rule on differences of opinion, which have surfaced between litigants who are neither of our time nor of our place. The Board gave an order prohibiting the screening of the film entitled L'Empire Des Sens unless the distributors delete certain specific sections. And why, because the Board finds that those same film segments “are capable of causing certain, or at least a probability of near certain, harm of a severe, serious and grave nature to societal sensibilities and public morality." For the sake of brevity and convenience, we shall henceforth refer to these sections as “pornographic.” In examining the Board’s decision in isolation, detached from all that surrounds it—everything is perfectly proper. A strange feeling, however, overcomes us when we turn our heads to the sides and look around us. Is the Board’s decision truly compatible with what we see and hear and know?

Indeed, the streets of our cities are filled with stores that rent out video films, and anyone with a credit card in his pocket—and who does not have a credit card?—can rent the video of his choice. And, as we all know, video films include the leading pornographic films. And if—heaven forbid—you are late and the store is closed, do not despair! Next to the same stores, there are automatic video machines—and your credit card will take you where you wish to go. Next to these stores, we all know about the adult bookshops, the sex paraphernalia shops, the “sex boutiques." At these stores, you can buy or rent pornographic video films; and the daily press continuously informs us of new film imports that feature new and diverse tricks and stunts. Pure, unadulterated pornography.

Among our people we dwell, we among our people and our people among us. Thus are we and thus are the Board members. Knowing everything that we know, an obvious question arises: Are we dealing with reality? If you will: knowing these things, do they influence our discretion or the discretion of the Board? A few years ago, a similar yet dissimilar case came before us, Crim. App. 3520/91 Turgeman v. The State of Israel [30]. In that case, a woman operated a “massage parlor” at which customers were provided with sex services for pay. The Court convicted the woman of two crimes: procurement for acts of prostitution, and maintenance of a house of prostitution. She was given a prison sentence of eighteen months, six of which she was to actually serve in prison. The woman appealed to the Supreme Court, and the appeal before us primarily revolved around the punishment’s severity. My colleagues, who presided over the case with me—Deputy President Elon and Justice D. Levin—believed that we must not interfere with the sentence imposed on the woman, whereas my own opinion was different. The judgment is long and complex, but the main point, for the purpose of our present deliberations, is that I discovered that “massage parlors” such as the one maintained by the woman in question, have mushroomed all over the country; that the press is crammed full of advertisements providing addresses and telephone numbers (and sometimes even relevant pictures); and that the police know about all these “parlors” and do not lift a finger to shut them down unless a neighbor files a complaint about the nuisance created by the parlor. In view of all these facts, I held that it was incumbent upon us to classify the appellant’s acts—at least for the purpose of sentencing—not as the crime of procurement or a similar crime, but rather as the offence of “nuisance”; and the proper punishment for it, so I concluded, ought to be the same as for the punishment meted out to the creator of a nuisance.

Will we learn from the Turgeman [30] case and draw an inference to the case at bar, regarding the prohibition or permission of the screening of pornographic films? Will we shut our eyes to what is happening around us? And perhaps the Board will become a kind of “last Victorian Island” in the sea that surrounds it? To be more precise: “The Pornography Index” (or, if you will: “The Tolerance Index”) has changed, is changing and will change from place to place and from time to time, and there is no doubt that it must influence the Board’s discretion with regard to the essence of one film or another. And yet, the question being asked revolves around the very existence and activity of the Board. Is it not a creature, a sort of anachronistic, clumsy dinosaur, belonging to a different place and era? What is the point of closing the front door to an uninvited guest if he can enter the house, undisturbed, through the back door, which isn’t even such a “back door” anymore?

All of these questions—these and their progeny—accompany us at all times, and we shall keep them in our hearts.

A Little About Pornography and Obscene Material

10. The battle is between the pressing need to protect freedom of expression in the creation of a cinematic work and the Board’s authority to prohibit the dissemination of pornography and obscene material. Everyone agrees that the Board has acquired the authority to act to prevent the distribution of “pornography” and “obscene material." However, when the question arises as to the definition of pornography and obscene material, a problem surfaces and confusion reigns. Thus, my colleague, President Barak, adopts as a “working formula” the words of the United States Supreme Court in Roth [49]. According to Mr. Justice Brennan, the test for pornography is

Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Id., at 489. Near the same place, Justice Brennan speaks about treatment of the topic of sex “in a manner appealing to prurient interest.” And in the words of my colleague, in para. 12 of his judgment, “modern approach defines pornography as a publication in which—according to accepted contemporary community standards—the material’s dominant theme, in its entirety, arouses impure carnal desire."

A perusal of this definition proposed to us—even if only a cursory reading—will reveal that it holds but only to a small extent. First of all, it directs us to standards accepted by the public, at a time when these standards themselves are veiled in thick fog. On the contrary, we may stand and ask: how will the Court know which standards the community accepts? Does it have, at its free disposal, "consultants for acceptable standards?" In the United States, this matter is subject to the decision of a jury, the presumption being that the jury is aware of the accepted community standards. However, where will we, who have no jury, find those accepted standards? In truth, the definition seeks to create a “reasonable man” for the purposes of pornography and obscene material. The Court sits among its people, and just as it creates “a reasonable man” for other purposes—for example, in relation to issues of damages—so will it also create the accepted "community standards." This merely means that the Court is supposed to act in its own way within its precincts. Indeed, the Court is supposed to reflect “objective” truth—it does not invent “subjective” standards—but we all know how close these matters are. This is the situation in the area of criminal law, whereas in the matter at hand, as we shall see below, the standard is to be determined by the Board.

Thus, a film dealing with “impure carnal lust," a “sexually depraved” film, revolving around “passionate urges," “lustfulness," “licentiousness," “debauchery," is prohibited. And what are these? We must admit: it will not always be easy for us to identify what is within the bounds of obscenity and what is beyond them. Moreover, these expressions are highly reminiscent of the Middle Ages (as this concept is interpreted in the common vernacular), Puritanism and monasticism, introversion and seclusion from the vanities of this world. If this were not enough, we know that the very same act can be classified as pornography or obscenity if it is presented to the general public, but if it is done in private by two consenting adults—certainly if performed with affection—no one would dream of classifying it so. I wonder if an act performed by two consenting adults in private and with affection can be “impure carnal lust.” Indeed, paternalism imposes itself powerfully in the subject matter before us, and needless to say, the answer to the question of the proper measure of paternalism will not be easily found. Thus, we cannot deny, not to ourselves and not to our fellow-men: we are walking in the kingdom of paternalism—we must remember that the concept of paternalism does not always connote something negative and is not always a disparagement—the question is only how far reaching it will be.

Finally, it is not our intention to engage in a discussion of the concept of pornography per se. This is not the issue before us. The accepted definitions of pornography are numerous, and it seems that, in view of their generality and vagueness, it is a good idea, even here, to take the path of atomization, i.e. to detail the types of material we see as obscene material and pornography. Apparently, this is the path followed by the Canadian Supreme Court, by both the majority and minority opinion, in deciding the Butler [62] case. Without voicing agreement or disagreement regarding what was said there, we seek only to point to a proper method of analysis.

11. Why does the law seek—without much success—to prohibit the distribution of pornographic material? They tell us, for example, that a pornographic film will harm the “public order,” yet it is clear that this does not mean that it is feared that the screening of a pornographic film will lead to riots. What it primarily meant is harm to “public morality," which is one of the foundations of public order. Here again the question arises: what is the basis of this “public morality”? What is the purpose of a ban on the distribution of pornographic or quasi-pornographic material? After all, it is the purpose which will determine the limits of the prohibition.

In the beginning, there was Adam and Eve, and they were in the Garden of Eden. “And they were both naked, the man and his wife, and were not ashamed.” Genesis 2:25 [64]. Then, there was no pornography, if only for the reason that there was no one to whom to exhibit it to. In the Garden of Eden, God planted “every tree that is pleasant to the sight, and good for food ... and the tree of the knowledge of good and evil.” Genesis 2:9 [64]. And, Adam and Eve ate from the tree of knowledge, thereby transgressing God’s commandment—“And the eyes of them both were opened, and they knew that they were naked; and they sewed fig-leaves together and made themselves girdles.” Genesis 3:7 [64]. Adam and Eve became ashamed of each other’s bodies, and even of God. So Adam said to God: “I heard thy voice in the garden, and I was afraid, because I was naked, and I hid myself.” Genesis 3:10 [64]. Thus it was in the beginning, and since then man has been embarrassed to expose his genitalia. This embarrassment is so deeply imprinted on our consciousness that it has always resembled an instinct or a quasi-instinct in man (as we know, the position is different in certain communities around the world). This is the case regarding the exposure of genitalia and sexual contact; an internal consideration within us demands of us and commands us to do these things in private and not in public. This is man's preeminence over beast, animal and bird. Subsequently came the community, which built walls of education and a judicial system around these quasi-instincts, converting them into “public morality.”

Following all these came the ban on discourse about these same things, which are in the private domain. Even though we know all the things we know, we shall not talk about them:

Said Rabbi Hanan b. Raba: All know for what purpose a bride enters the bridal canopy. Yet against whomsoever speaks obscenely thereof, even if a sentence of seventy years happiness has been sealed for him, it is reversed for evil.

Babylonian Talmud, Tractate Shabbat 33a [66]. We all know why a bride enters the wedding canopy; the bride knows and we all know. But we shall not speak about it. There are things that are better said in private. The act shall be performed but we shall seal our lips. When Rabbi Hanan bar Raba said what he said, there were no films, television or video, therefore, he ordained a ban on speech. However, the ban that was established was a “framework ban”—a ban that was filled with substance from time to time, according to the place and the hour. The ban on discourse, like the dissemination of pornography nowadays, is a framework prohibition. This constitutes one reason—in the instant case, the main reason—for a ban on the dissemination of pornography.

I made similar statements in Advancement [11], regarding the voicing of crude expressions in public:

[i]t is so with regard to human esthetics and so it is regarding man’s behavior outside the home. Be a man when you go out in public: among the creations, act in the manner in which people act in public. At home, man can go around naked or in his underwear—all or part—but he will not do so outside his house. This is not only because it constitutes a criminal offence, but because in public, we act a certain way. The fact that man finds himself in public obligates him, to a certain degree. This is the way of the world. While we will not require a person to speak with the same refinement as though he were visiting the President’s house, there is, however, a certain line, below which we will not sink.

Id., at 32-33. These things can particularly be applied to hard-core pornography, see, for instance, the Supreme Court of Canada’s statements in Butler [62], but are also relevant to more subdued forms of pornography. For instance, a scene featuring intimate touching lets us see what we see. A human being has certain needs, and fulfilling those needs is the way of nature. These natural acts, however, should be done in private. We will not allow them to be performed in the town square. This, in principle, is the matter before the Court. In the words of Justice Sopinka in Butler [62], at 469 (quoting other sources): we shall not condone “dirt for dirt’s sake."

To these reasons, which are inherent to human nature, we add general social reasons, such as the denigration or degradation of human dignity, women’s dignity being particularly relevant, and our fight against violence and the exploitation of minors. See Butler [62]; see also the following provisions of article 214A of the Penal Law, cited below.

The Board’s Authority and the Limits of its Discretion

12. In the present case we are concerned with the Cinematic Films Ordinance-1927 [hereinafter the Ordinance]. Section 3 of the Ordinance instructs us to establish a Film Review Board, and Section 4 prohibits the screening of a cinematic film unless it has first been approved for screening by the Board. The Board’s authority is established in Section 6(2) of the Ordinance, which instructs us, in the original English, as follows:

6. (2) Application to the Board for Authorization

The Board may in its discretion grant, either with or without conditions imposed, or withhold authority for, the exhibition of any film or any part therefore, or any advertisement of a film.

This statute’s provisions establish the framework of the Board’s authority. It is indisputable that, in the matter at bar, the Board has acted within the limits of its authority. Section 6(2) of the Ordinance provides that the Board is entitled to make the screening of a film conditional upon the deletion of sections from it (“The Board is entitled ... to authorize the screening of any film or any part thereof ... either with or without conditions imposed...”). And yet, what about the Board’s discretionary leeway in terms of the essence of a particular film? The Ordinance is a framework Ordinance: It provides for the establishment of a Board and empowers that Board to authorize or withhold permission for the screening of films, with or without conditions. The Ordinance does not instruct us how the Board shall guide itself in deciding one way or another, and what weight it shall attach to its considerations. That which was omitted by the legislature, however, has been filled by case law and common practice.

13. First, we shall all agree that the Board’s discretion is not “absolute discretion." Even discretion described as “absolute” is not absolute in fact. HCJ 241/60 Kardosh v. The Registrar of Companies [31], at 1162; HCJ 742/84 Kahana v. The Speaker of the Knesset [32], at 91-92; HCJ 758/88, 431/89, 2901/90 Kendall v. The Minister of the Interior [33], at 527-28); this is all the more so, where the law contains no explicit indication regarding the framework of the authority’s discretion. Indeed, the lack of a statutory indication regarding the framework of the authority’s discretion never points to the grant of “absolute” discretion. In effect, bestowing absolute discretion to an authority is not compatible with either the rule of law or a democratic regime. Israel is a democracy, governed by the rule of law. This was held to be true with regard to the interpretation of the Ordinance, in other words, the Board is not “entirely free in its considerations," and limitations have been placed upon its discretion. HCJ 146/59 Cohen v. The Minister of the Interior [34] at 284. (Silberg, J.), and in Laor [14], at 429 (Barak, P.).

What, therefore, is the framework of the Board’s discretion? What considerations are the Board entitled to bring to bear and which considerations is it not allowed to take into account? Everyone would agree with respect to the following: the Board is entitled to take into account all those considerations intended to bring the statute’s purpose to fruition and which seek to maintain the arrangement established by the law. “The fundamental point is that the purpose, for the sake of which the authority was granted, and the objective that it seeks to fulfill, determine its limits.” Id. [14]. Accompanying this fundamental principle is an auxiliary rule, concerning the issue of whether or not certain considerations come within the law’s purpose. “Lacking a foothold in the wording of the law according to which it is possible to define the scope of the considerations belonging to the matter, the Court will not hurry to contradict the decision of the public body, where the question has diverse aspects, and it is likely to be at the center of a sincere controversy among people of ordinary intelligence.” HCJ 92/56 Weiss v. The Chairman and Members of the Legal Council [35], at 1595 (Landau, J.). See also HCJ 176/58 Parcel 11 Block 6605 Co. Ltd. v. The Minister of Development [36], at 1113 (Agranat, J.) This ruling, concerning “the lack of a foothold," was explicitly applied to the authority of Film Review Board; see HCJ 383/73 Avidan v. Gary, The Chairman of the Film and Play Review Board [37], at 769 (Berenson, J.).

14. And after all this—what is the scope of the Film Review Board’s authority? What are the considerations, which it is entitled—and obliged—to set before itself in deciding whatever it decides? Initially, the Board’s authority was interpreted with excessive breadth. Thus, to this effect, Justice Silberg stated in Cohen [34], at 284:

It seems to us, without getting into the minutest of detail, that the line of thinking directing the Committee in deciding whether to refuse or cancel a license must be as follows: a film whose screening is likely to offend morality or good taste, or likely to corrupt morals should be disallowed. This is because films today serve as an educational tool. We should therefore endeavor to prevent them from instilling spiritual and cultural values considered by the public to be undesirable.

Over time, the Court added and held that the Board’s authority is narrower than originally defined, and that it is not appropriate to use the paternalistic standards of "good taste" or "educational tools." In President Shamgar’s words in Universal City [10], at 28-29:

There is concern that the above measure, as defined by Justice Silberg, will be understood in too broad and sweeping a manner. In accordance with the standards that are acceptable to us, essentially in light of the special status enjoyed by freedom of expression for our purposes, we would not, today, find it acceptable to ban a script or film merely because it "infringes on good taste." The Board—and even the Court—are not the guardians of good taste, itself a subjective term. The Court is not responsible for educating theatergoers or movie viewers according to the judges’ personal artistic taste. Paternalism of this sort is foreign to our worldview. Rather, only a serious, severe and extreme infringement on a protected value can justify interference with freedom of expression.

The Court further determined that the code word is “public order,” i.e. the Board’s considerations in disqualifying a film—in whole or in part—are supposed to revolve around whether that film harms “public order,” in the broad sense of the term. This concept of “public order” is a slippery and elusive concept, and it is no wonder that courts have not defined it precisely and sharply. For our purposes, we can rely on President Barak’s words in Laor [14], at 430-31:

We have seen that the Board’s authority is to refuse or permit, depending on whether, in its opinion, the performance is likely to harm public order. "Public order," in this context, is not limited to a script the presentation of which constitutes a criminal offence. "Public order" is a broad concept, which is difficult to define, and whose definition varies depending on the context in which it is defined. In the context at bar, public order includes threatening the state’s existence, harming the democratic regime, public peace, morals, religious sensibilities, a person’s reputation, and fair judicial proceedings, as well as other matters that touch on the issue of public order.

See also President Shamgar’s opinion in Universal City [10], at 29-30.

“Public order” is a father, and a father generally has offspring. Even after we have familiarized ourselves with many of these offspring, we know that we have not met them all—after all, the very same “public order” also includes “other matters that touch on the issue of public order. Laor [14], at 431. Idem per idem. I have not said these things in order to criticize; on the contrary. Fundamentally, the concept of “public order” is an abstract framework concept, a concept with an “open texture,” an absorbent concept. Although it is not boundless, the outline it creates does not, by its very nature, lend itself to precise definition. "To each generation its seekers" Babylonian Talmud, Tractate Avoda Zara 5a [67]; to each generation its commentators. Furthermore, knowing that the Ordinance essentially does not establish a rigid framework for the Board’s considerations; and after we have learned that the concept of “public order” covers a range of flexible areas, we also know that what will apply to us—as we have already said—is the auxiliary rule established by Justice Landau: that, lacking a foothold in the law regarding a framework for its considerations, the Court will not hurry to contradict decisions taken by the Film Review Board where the issue involved is likely to be the subject of a sincere controversy among people of ordinary intelligence.

15. Still, we have not said enough. A long-established theory says that it is possible to learn about the discretionary expanse of an authority by dwelling upon the nature of that particular authority. Thus, for example, where the legislature entrusts a physician with discretion, one can conclude that the discretion is intended to be based on medical considerations. See, e.g., HCJ 193/58 Rosenberg Orthopedics Company v. The Chief Physician, Department of Rehabilitation [38], at 1659 (Landua, J.). When a government minister or the government itself is endowed with discretion, the presumption there is that this discretion is broad (though not limitless)—considering the status of the entity with whom the discretion rests. See, e.g., HCJ 162/72 Kinross v. The State of Israel [39], at 241-42.

And with respect to the Board? Is the Board’s composition indicative of its discretionary expanse? Does its composition tell us something about this Court’s ability to intervene in the Board’s discretion? The Ordinance itself does not teach us much about the Board’s composition. According to Section 3(1) of the Ordinance, the Board is to be composed of “a chairman and several members, including at least one woman,” and all of these “shall be appointed from time to time by the Minister of the Interior with the government’s approval.” See The Films Ordinance (Amended)-1948. Even if this provision provides a hint with regard to the Board’s place in the civil service system, it appears that there is nothing in the law, capable of telling us much about the composition of the Board and its status. And yet, the Courts have long respected the Board’s decisions—after they realized that it has a rich and diverse composition of prominent personalities. These are supposed to represent the public, and the Board’s decision resembles the decision of the public. As per Justice Silberg in HCJ 260/60 Forum Film Ltd. v. The Film and Play Review Board [40] at 613:

The Board is a representative public body, which reflects the various opinion prevailing among the public. This being the case, it was given broad powers by virtue of section 6(2) of The Films Ordinance-1927.

An even sharper tone was taken by Justice Berenson in Avidan [37], at 771:

The law is what it is, and the Board is a public body responsible for enforcing it. Its opinion is therefore determinative. I can barely fathom a situation in which the Court will see itself authorized and free to strike down the Board’s decision, following its careful and weighty deliberations, to permit or ban the screening of a non-documentary entertainment film. After all, the Board was chosen to represent the public’s view in this matter. So long as it exists, its opinion must be the determining one. Such is the case when the decision in the matter before us was accepted unanimously, with only two board members being prepared to recommend this film for screening, but only after significant alterations, leaving it unrecognizable. Had the Court intervened in such an extreme case, it would have been tantamount to substituting the Court’s critique for the Board’s—and this is not for us to do.

Thus, the Board has been chosen to represent the public, and it is its opinion which is determinative. Sitting on the Board are representatives of the public, they are the ones who represent the people—Vox Populi Vox Dei. “I can barely fathom a situation in which the Court will see itself authorized and free to strike down the Board’s decision, following its careful and weighty deliberations, to permit or ban the screening of a film." Forthright words. To this, Justice Vitkon added:

I see no reason for us, as a court, to engage in film critiques. Indeed, a decision regarding whether a particular film should properly be screened or not, can only be the fruit of the viewer’s taste and worldview. Thus, in vain we ask here what the "reasonable man" would conclude; the search for an objective standard here is futile. If we are at all convinced that films and plays should be subject to review prior to their screening, it is clear that only a body that represents the public, its diversity and views, can be entrusted with this task, not the Court. In this matter to, I agree with my colleague, Justice Berenson.

Similar words were spoken by Justice Landau in HCJ 807/78 Ein Gal v. The Film and Play Review Board [41] at 278:

The respondent Board is endowed with broad discretion to permit or disallow a film, by reason of it being a public body, expressing the public’s views.

And thus, in HCJ 243/81 [21], at 426, Justice Landau said: “as a body representing the public, the Board is charged with reviewing films." My colleague, the President, also held in Laor [14], at 430, that the Board’s authority to prevent the screening of a film, said to offend public order, emanates from “the Board’s composition… that is not composed of public servants… but is instead, a ‘representative, public body’…”; and here, my brother cites the words of Justice Silberg in Forum Films [40]. We shall recall, in closing, Justice Vitkon’s statements in Noah [26], at 764, regarding the breadth of the Film Review Board’s discretion. There, Justice Vitkon criticizes the fact that the Board members were influenced by outside factors:

My words should not be misinterpreted. I am not saying that the Board members are precluded from taking public opinion into account. In fact, the opposite is true, they were appointed to represent the public, its various sectors and strata. Indeed, the public speaks through their mouths. They are, however, held to decide what is to be screened, and what is beyond the level of tolerance, in accordance with their own discretion.

16. Thus, the law is as follows: the Board’s composition is intended to represent—and indeed it does represent—the general public. Board members are not civil servants, but rather, prominent personalities who reflect the mood of the nation. This leads us to conclude that the Board’s decisions should be respected. Of course, we will not say that the Board’s decision is the be-all-and-end-all of every case, but only in rare instances will we interfere in its decision.

The Board before us is a “representative Board,” as were its predecessors. Sitting on it are four journalists, three authors and educators, two Middle East scholars, four legal experts, a sociologist, three teachers, a police official, and two civil servants. Would it be difficult for us to say that they represent the public at large? Twelve members attended each of the most recent Board discussions. Eight of them requested that certain segments—tiny segments—be cut from the film, whereas four requested that the entire film be disqualified. What good reason is there for us to interfere with the Board’s decision?

17. Generally speaking, at this time, we have not found a good and proper reason for interfering with the Board’s decision, as did President Barak, who instructed: Lay not thine hand upon the film, neither do thou any thing unto it. Cf. Genesis 22:12 [64]

Interim Summary

18. We have seen the framework of the Board’s authority and the limits on its discretion. We learned that the Board has acquired the authority to prohibit the screening of pornography and obscene material, and we know that these are difficult to define. The case law that we have reviewed relates that the Court only rarely intervenes in the Board’s decisions to disqualify the screening of a film, in whole or in part. In particular, this is so because we know that the Board is a body that represents the public. Against this backdrop, and following an examination of the film before us, our conclusion must be not to interfere with the Board’s decision. We are not under any duty to share the Board’s opinion. Indeed, if I were a Board member, it seems to me that I would approve the film for screening without any cuts. However, this is not the matter that we have to decide. The legislature granted the authority in question to the Board—to the Board and not to the Court. Suffice it to say that I have not been provided with a good and proper reason to interfere with the Board’s decision. In my opinion, the doctrine of separation of powers requires us to refrain from interfering with the Board’s decision. We should also remember that the separation of powers is one of the fundamental principles of the rule of law. This signifies that the Board’s decision should remain precisely as it stands.

19. This summary does not appear to reveal any differences of opinion—at any rate, no decisive differences of opinion—between President Barak and myself. But it is here that our paths diverge. And, as we bid each other farewell, it is important that we pinpoint precisely the point of our separation.

The Board requests that several segments be deleted from the film, maintaining that screening these particular segments, all of which are “pornographic," “sex segments," “is capable of causing severe, serious, and grave harm to societal sensibilities and public morality." President Barak, for his part, does not examine these specific segments on their merits—either in whole or in part. Moreover, he does not make any effort whatsoever to contradict the Board’s qualification of all these segments as pornographic. Thus, our assumption must be that those segments, which the Board sought to delete, individually and all of them together, are pornographic. In effect, this is how my colleague characterizes those segments intended for deletion “which, if taken in isolation, it would be possible to delete, by reason of their being pornographic in nature.” Supra, para. 21. Consequently, since they are pornographic in nature, it is proper that these segments be cut from the film, and the Board’s decision to cut them is, therefore, a decision taken lawfully and within the framework of its authority to delete. How, then, does my brother reach the conclusion that the Board must allow the film to be screened in its entirety, including these same “pornographic” segments? For this purpose, my colleague clings to a two-pronged test, composed of “the work as a whole” and “the artistic value” of the work tests. In traversing this corridor, he would like to escort the film to freedom. Is this possible?

The Two-pronged "Work as a Whole" and "Artistic Value" Test

20. The two-pronged “work as a whole” and “artistic value” test is not new. It finds shelter in our law. The first part of the test is the formal examination of the work, which must be done from the perspective of the “work as a whole." As such, individual segments of the work—those parts that are allegedly "pornographic"—should not be taken in isolation. Were we to do so, the entire piece would be deemed pornographic, as these "unkosher" segments would contaminate the entire work, rendering the entire work “impure." Instead, we probe the piece “cumulatively," as it “came out of the factory," and integrate the allegedly pornographic segments into the rest of the work, itself untainted by pornography. An artistic work cannot be cut to pieces, and we cannot take it upon ourselves to independently probe individual sections. Here ends the formal aspect of the test, this is to say, the “work as a whole aspect.” it instructs us to take the work as a whole, as it came into the world, and only in this manner can it be judged.

21. The second part of the test instructs us to proceed as follows: in applying the “work as a whole" test, will it be possible to deem the given piece a work of art, due to artistic value of the work as a whole, beyond those segments tainted by pornography? Are those segments part and parcel of the piece in its entirety, such that they are “swallowed” by the whole? If so, the work will be found to have artistic value: the impurity is deemed to have been absorbed by the whole; the beautiful is deemed to have compensated for the ugly. If, on the other hand, we shall find that the work was only created in honor of those tainted segments, we shall conclude that the work has not successfully passed the “artistic value” test. In the words of Justice Landau in Omer [23], at 412:

Respecting literary material, it is sufficient, for our purposes, to assert that we have before us descriptions of sexual subjects, whose only purpose is to arouse the reader via repugnant filth for its own sake. Such portrayals, in and of themselves, are capable of corrupting morals, as per section 179. On the other hand, we must take an enlightened view which, requires us to reconcile ourselves with a certain measure of discomfort according to what is deemed acceptable nowadays, regarding explicit sexual descriptions, provided that these appear as an integral part of a work boasting literary or scientific value, thereby compensating for its pornographic aspect. In such a case, we shall assert, in the words of the United States Supreme Court, that a book having "redeeming social value," shall redeem the obscene from its obscenity.

And in the words of the United States Supreme Court in Miller [50], at 24, the issue is:

[w]hether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In adopting this test my colleague, President Barak, seeks to examine the film and, in finding that numerous film critics were convinced that the film has artistic value, my colleague concludes that the Board is precluded from censoring the film. My colleague does not judge these segments for himself; in his mind, the film critics’ opinions were decisive, leading him to conclude that the Board’s decision should be reversed. In his own words, supra at para. 18:

These opinions, which were presented to the Board and to the Court, emphasize that the film does not encourage sexual arousal. On the contrary, it conveys an “anti-pornography” message.

Later on in his opinion, my colleague cites a German court, dealing with a criminal case, stating that the film “not to be pornographic, as it was not intended to sexually arouse the viewer," and agrees with the court’s opinion, see supra para. 19:

It seems to me that, in light of the above, the Board should have determined that the film has serious artistic value, which precludes its classification as a pornographic film. The Board was presented with a factual basis according to which there was an assessment affirming the film’s serious artistic nature. Based on these facts, the Board should have concluded that the film is art.

And, subsequently, in paras. 20-21 of his judgement.

[t]he test that the Board must employ is the “work taken as a whole” test. One must not scrutinize a number of isolated sections with a “magnifying glass," and ask whether these sections, per se, are pornographic. Instead, one must look at the entire work “from a distance” and ask whether this work, which integrates these and other sections, is a film with artistic value. The Board did not perform this examination.

22. To my chagrin, I find myself unable to concur with my brother’s opinion. For my part, I believe that the “work as a whole” test does not apply in the matter at bar—it certainly does not apply with the same force that my colleague ascribes to it. Indeed, the same may be said with regard to the test of the work’s “artistic value." These two tests—which is really one two-pronged test—were born in another other area of the law. Thus, even if it is possible to import them to the present case, their strength is weakened beyond recognition when applied to the case at bar.

The Two-pronged Test: Invented for Criminal Law

23. A study of the case law setting forth the two-pronged test teaches us that this test—from beginning to end—encircles the concept of “obscenity”; that the concept of obscenity is that which brought about the birth of the case law, because the latter was designed—from beginning to end—to create a fence around the prohibition on “obscenity."

In Omer [23], for example, Omer was tried for possession of “obscene material” for the purposes of sale and dissemination, as defined by the criminal law. In Butler [62], the subject of the hearing was the indictment of a person for the sale and possession of obscene material, as defined by the Canadian Criminal Code. The case of “A Book Named John Cleland’s Memoirs of a Woman of Pleasures” [54] (also known as “Fanny Hill”), involved a petition filed by the Massachusetts Attorney-General, seeking to declare the book obscene. In Miller [50], the deliberations concerned the defendant’s indictment for dissemination of “obscene material." Roth [49] was also a criminal case: some of the defendants were indicted for the offence of sending “obscene” material by mail, contrary to the Federal Obscenity Statute, and the others were tried, under the California Penal Code, for the offence of possession and sale of obscene or indecent material. The Grove Press Inc. [53] case discussed the book Lady Chatterly’s Lover, the issue being whether the book may be deemed “obscene” and could therefore not lawfully be sent by the mail. This was also the issue in One Book Entitled Ulysses [52], where the Court examined a legal provision prohibiting the importation of “obscene” printed material.

24. In this manner, the two-pronged test revolves around the concept of “obscenity” and its boundaries are constituted by the criminal law and related legal provisions. In the words of Judge Bein in DC (Haifa) 404/82 [46], at 526:

It is unwarranted. despite the various expressions adopted by the legislature, to distinguish between the "indecent or obscene" test in Section 42 of the Customs Ordinance and the "indecent or obscene" test in Section 12 of the Post Office Ordinance (New Version) and "obscene material" in Section 214 of the Penal Code.

This result, holds Judge Bein—and we concur—is desirable and it involves “the adoption of one standard for all the provisions which are in pari material and which are intended to protect—although by different means—the same social interest.” Id. This interest is to prevent the dissemination of “obscene” material.

25. When the context of the two-pronged test against “obscenity” is set out, its logic and reason are manifest. Take Reuben, who is charged with the crime of disseminating “obscene” material. Reuben admits to disseminating the material but, in his defense, asserts that the material he disseminated was not “obscene." When the prosecution points out the “obscene” segments in the material, Reuben replies in his defense that he did not disseminate those segments individually, but rather as an integral part of the “work as a whole.” As he disseminated a whole work—and not segments of a work—“the work as a whole” must be examined. Only if the “work as a whole” is “obscene," claims Reuben, is it possible to lawfully convict him. Reuben further and points to the work’s “artistic value,” the second prong of the two-pronged test.

Formulated as such, we can understand that the two-pronged test acts as “internal” protection for the crime of “obscenity." In other words, the two-pronged test is intended to determine the precise scope of the crime of “obscenity" Indeed, a work, which possesses, in its totality, “artistic value,” according to its very characterization, will therefore not be considered “obscene” material. Art precludes obscenity, and vice-versa. Art and obscenity shall not live under one roof. Essentially, the two-pronged test is meant to serve as a built-in protection within the definition of the crime of “obscenity."

26. As we have seen, the two-pronged test was born and lives in the arena of criminal law. What does my colleague, the President, suggest we do? He suggests that we go to the criminal law, take the test in our hands, and plant it permanently into the considerations which the Board takes into account. We respond with a difficult question: is it indeed possible to draw an analogy between the area of criminal law to the powers—and particularly to the considerations—of the Board? Is the analogy indeed proper and legitimate? The answer, in my opinion, is negative for many reasons. We shall now expound upon these reasons, one at a time.

The Board’s Authority is Not Restricted to the Crime of Obscenity

27. To begin with, the Board’s authority is not restricted, by law, to obscene material as it is defined under the criminal law. Indeed, “when the Board is convinced that a play features a clear violation of an express penal stipulation in the empowering law ... it must not be a party to a breach of statute and it is entitled to restrain the presentation of the play.” HCJ 351/72 Keinan v. The Film and Play Review Board [42], at 815 (Landua, J.) However, even if the play does not contain obscene material, and even if the play does not amount to a criminal offence, the Board is entitled to prohibit the screening of a film—in whole or in part—if, in its opinion, the film offends “public order," “public morality," “social morality," and the like. In the words of Justice Barak in Laor [14], at 430:

It seems to me that the statute must be interpreted in light of its rationale: the Board’s substantive authority is not limited to merely banning those films or plays whose screening would constitute a criminal offence. The statute’s language in no way suggests a limitation of this nature. Neither is such a limitation required by the background of this statute’s enactment. Indeed, the justificatory purposes underlying the statute are numerous, and include preventing harm to public order, whether the harm in question flows from the commission of a criminal offence or whether it results from an immoral act, or any other act that offends the public as a whole.

To this effect, see also Justice Barak’s judgment in Universal City [10], at 37 n. 4. Compare with section 6 of the Telecommunications Law-1982, which distinguishes between films whose screening the Board did not permit, and pornographic material referred to by the Penal Law.

If this is the law—and it is—why should we “import” the two-pronged test from the area of criminal law to the area under consideration here? The two-pronged test is not a “modular” test, applicable in all places and at all times; it has adapted itself to criminal law, and therein it resides. What use shall we make of the two-pronged test in the Board’s considerations? After all, even if the film does not amount to an “obscenity," the Board is entitled to prohibit its screening— if it harms the public order—as the scope of application of “public order” is broader than the scope of “obscenity."

Limited use of the two-pronged test may also be made with regard to the Board’s authority. However, the test’s content will differ from its content in the criminal law context. It will somewhat narrow the range of the Board’s considerations, but will not enable it—as it would in the context of the criminal law—to determine a verdict. In other words, whereas in criminal law, the two-pronged test has the strength of giants in terms of its ability to immediately negate a transgression, in the matter at bar, it must be defined modestly, as being, at most, an ordinary consideration, among others.

The Different Functions of the Court in Criminal Law and Film Censorship

28. Second, in being required to interpret a law, the Court stands directly in front of the law, and in the process of determining the proper and correct interpretation of the law, the Court uses the tools at its disposal. The legislature has said its piece, and now the Court must “knead” with the ingredients before it. It is such in the arena of criminal law, and also in the arena of civil law. It will also be so if the Court is required to determine whether someone has committed the offence of “publication and display of an obscene matter," or if he has committed the offence of “offensive publication on advertisements." Those offences are defined, respectively, in sections 214 and 214A of the Penal Law. Those offences are defined as follows:

214. Publication and Display of an Obscene Matter

a.Every person who commits one of the following acts is guilty of an offence and liable for imprisonment for a term not exceeding three years:

1.Publishing a pornographic publication or preparing it for the purposes of publication;

2.Exhibiting, organizing or producing the display of pornography:

A.in a public area or

B.in a non-public area—unless it serves as a dwelling place or serves an association, whose membership is restricted to individuals eighteen years and older.

b.Every person who uses the image or body of a minor in the publication or display of obscene matter is guilty of an offence and liable to imprisonment for a term not exceeding five years.

214A. Offensive Publication on Advertisements

a.Every person who publishes an offensive publication on a placard is guilty of an offence and is liable for imprisonment for a term not exceeding six months or a payment of a fee, three times the amount of the fee provided for in section 61(a)(1).

b.For the purposes of this section, an "offensive publication" shall be considered one of the following:

1.a picture of nudity or a picture featuring a man or woman’s private parts;

2.a picture featuring sexual relations or sexual violence, or that contains sexual degradation or humiliation, or that features a person as a sexual object, to be exploited

3.A picture featuring partial nudity, of a man or woman, which offends the public’s, or portions of the public's, moral sensibilities, or corrupts public morals, or harms minors or their education;

c.Advertisements shall be defined as—advertising signs placed on the side of roads, inside buses, public transportation, or on their outside of bus stations. This also applies to notice boards under the authority and supervision of a locality.

In considering the offence under Section 214 of the Penal Law, the Court meets “obscenity” face-to-face, and must decide whether the publication displayed is an “obscene” publication or not. The same is true for the offence defined in Section 214A, where the Court must decide whether a certain publication features “sexual degradation or humiliation” or if it displays a human being “as a sexual object to be exploited." This is not to say that the Court is precluded from seeking the assistance of expert testimony, for example, in relation to the matter of “the artistic value” of a certain work. At the end of the day, however, it is the court's duty to decide, and it will shoulder the responsibility. The Court is the body entrusted by the legislature to determine the scope of application of “obscenity," and in outlining its own powers it has established the two-pronged test. Compare Crim. App. 1127/93 The State of Israel v. Klein [43], at 499-501.

And so it is throughout the criminal law. So it is in civil law. It is not so, however, in the matter at bar, and this for two separate reasons, sharpening the difference between the various contexts. First, in the matter at bar, the face-to-face struggle between interests is not encountered. Second, the criterion for the test in the present case does not concern the concept of “obscenity” but rather a different, more general societal standard—pornography, which we dwelt upon in para. 27 supra. Moreover, the power to censor films is conferred, first and foremost, not on the Court but on the Board, composed of public servants, and supposed to apply general standards of “public order." In the case at bar, we are not at all referring to the “interpretation” of a statute, but rather to the application of a certain “public order," and the body responsible for that “public order” is the Board. Indeed, unlike the exercise of statutory interpretation, the present case involves the Board—the body entrusted to set the relevant standards, and the discretion with which it is endowed. In light of the above, the Court’s role is to review the Board’s discretion, and unlike the matter of “obscenity” and criminal law, the Court does not stand directly opposite the law. Fundamentally, the Court, in cases such as the one at bar, is not supposed to decide between the various interests pulling in opposing directions. The subject of the hearing before the Court is not the struggle of interests as such. The Court’s business is to review the Board’s decision, and in conducting this review it is held to observe the struggle of interests through the veil of the Board’s discretion.

We do not mean to say, of course, that the Board’s discretion is the be-all-and-end-all. Nevertheless, we cannot ignore the fact that the legislature has established a type of “division of labor” between the Board and the Court, and the Court, as a servant of the Rule of Law, is obliged to preserve this “division of labor." We must not treat the discretion that the legislature has imparted to the Board as though it did not exist. We must respect the legislature as well as the Board members, as we explain below.

29. In this context, the opinions expressed by cinematic art experts were poles apart. Thus, alongside experts who praised the film as a work of art, we found critics who saw it as nothing more than a run-of-the-mill porn flick. My colleague believes that the praise bearers have the upper hand, if for no other reason than that we are concerned with freedom of expression. In this context, my brother says, supra para. 15:

It is sufficient that there is an opinion, even if it is controversial, with respect to the (serious) artistic value of a work … Indeed, if it is possible for us to err, we should err on the side of promoting freedom of expression and freedom of artistic creation.

I find it difficult to agree with the above. First, the references my colleague brings in support of his viewpoint are irrelevant to the matter at bar, since all of them concern criminal cases dealing with obscene publications, apart from one reference which revolves around copyrights and certainly does not bear directly upon our matter. Under criminal law, no one would dispute that differences of opinion regarding the artistic value of a work should be interpreted to the defendant’s benefit. Indeed, just as, in criminal law, significance attaches to the work’s artistic value—as an element that negates its being qualified as “obscene"—so too does value attach to differences of opinion among the experts. It is arguable that differences of opinion are sufficient to raise a doubt as to whether a certain publication is an “obscenity," and, as such, these differences of opinion are sufficient to bring about the acquittal of a defendant. In the instant case, however, the opposite is true. The underlying assumption is that the film, which is the subject of the hearing, contains pornographic segments, and hence the “burden” is on the applicant to prove that the film as a whole is of an artistic nature. Accordingly, since the onus is on the film applicant, one may contend that differences of opinion regarding the film’s artistic value must actually be interpreted to his detriment. We do not, however, believe that this opinion will take us to such far-reaching lengths.

Moreover, as we have seen, the Board has been given discretion in deciding whether to allow or disallow the screening of a particular film. At any rate, the Board is authorized to prefer Reuben's evaluation over Simon's. If even this discretion has not been granted, then what has it been entrusted to do? In other words, in a criminal proceeding, the Court is the body responsible for determining “the artistic value” of a work; and this determination may be based on the testimony of experts on the subject. As an aside, it should be noted that, even in this connection, the Courts have expressed grave doubts, see, e.g., Omer [23], at 413-14. However, in relation to a ban on the screening of a film, the Board is the relevant body, and is charged with ascertaining the film’s “redeeming qualities." True, the Court will not refrain from interfering with the Board’s decision in appropriate cases, but we shall not be able to pass over the Board’s discretion as though it did not exist. I fear that my colleague’s way leads to a wholesale invalidation of the Board.

An Additional Difference Between Criminal Proceedings and the Proceedings Before the Board

30. Third, criminal law sees in black and white: the accused is either acquitted or convicted. There is no partial-acquittal or partial-conviction with respect to the same charge. Even regarding the criminal charge of “obscenity," it is possible that the Court will either find that the defendant has published an “obscenity” and will convict him, or it is possible that the Court will find that the charge has not been proved and, accordingly, will acquit him. The proceeding follows an “either/or” path. The path pursued by the Board is not so. The Board, for its part, is both competent and entitled to decide “in installments," so to speak, and it is undeniable that the statute has expressly empowered it to “grant ... or withhold authority for, the exhibition or of any film or any part thereof." See the Ordinance, § 6(2). We are all aware that this power is characteristic of public law but foreign in body and spirit to criminal law.

Therefore, a permit or license may be granted to parts of a film. This is an express power with which the Board is endowed. By conferring the power to disqualify parts of a film, not only did the legislature place the Board in a different camp from that of the criminal law, but in so doing, the legislature showed us that it is aware of the possibility that parts will be clipped from a film; as if it sought to instruct us that alongside considerations for allowing or disallowing the screening of a certain film, and until the Board decides to ban the screening of a film, it may also consider the alternative possibility of deleting certain parts from the film. Nowadays, we call this “the rule of proportionality." We do not mean to say—nor have we said—that the very conferral of this power on the Board entitles it to make use of this power in any way it pleases. Nonetheless, we have learned that there is no similarity between a film placed on the table of the Film Review Board and the publication of “obscene” material, which is placed before the Court: judgment of the former may be a divided judgment, but not judgment of the latter. Furthermore, the Board’s authority to order the deletion of segments from a film is likely to show us that the “work as a whole” test does not have the same force in this context as it does in the area of criminal law. Indeed, the Board’s very authority to cut segments from a film illustrates that even if the “work as a whole” is not pornographic, the Board nevertheless has the power to delete certain segments that it deems unfit for screening, because they are harmful to “public morals"—whether by reason of their being pornographic or almost pornographic, or for any other reason.

Additional Reasons for Not Intervening in the Film Review Board’s Decision

31. Fourth, we cannot disregard the striking difference between a book and a film. In Avidan [37], at 770, Justice Berenson said that “reading is not similar to an potent visual presentation." Justice Landau also spoke of “the special power of persuasion inherent to visual material.” HCJ 807/78 [41], at 278. And in view of the fact that the impact of a film can be greater than that of a book, the Court must naturally respect the Board when it rules as it does, and all the more so when it reaches its decision after holding numerous in-depth discussions.

Furthermore, we are all sensitive to prohibitions on freedom of expression—or to restrictions thereupon—regarding the spoken or printed word. Our sensitivity to these modes is greater than our sensitivity with regard to restrictions imposed on obscene films. As stated by the United States Supreme Court in Kaplan v. California, 413 U.S. 115, 119 (1973)[56]:

A book seems to have a different and preferred place in our hierarchy of values, and so it should be.

It is possible that the traumatic events of the past—books being burnt at the stake—continue to influence us, even in our day. And perhaps there is a different reason for our attitude. It is also possible that our taste—the taste of our sons, grandsons, and great-grandsons—will change. However, at this time, the book and the spoken word have a loftier status than that of the film, and this cannot be ignored. Compare A. Rubinstein, The Constitutional Law of the State of Israel 772-74 (1991).

32. Fifth, in general, we can say that the audience that goes to see films is, on average, different from the audience that reads books, and as has been said many times, the audience that watches films—a sector which mainly consists of youth—is exposed to more harmful influences than the audience that reads books. See, e.g., H. Fenwick, Civil Liberties 180 (1994). This difference too, per se, is capable of enlarging the extent of the Board’s discretion, and, in any event, reducing the Court’s discretion when intervening in the Board’s discretion.

33. One final note: quantity is not converted into quality. But quantity has its own impact, and so it is in the matter at hand. In the case involving One Book Entitled Ulysses [52], the court noted

The erotic passages are submerged in the book as a whole and have little resultant effect.

72 F.2d at 707. Can we say this about the film before us? Certainly not. The segments that the Board would like to see deleted from the film under discussion are not submerged in the film as a whole: the entire film is cut from the same cloth but some segments are more prominent than others. It seems that this factor, too, has an impact on the two-prong test.

Is "Artistic Value" Applicable to this Matter?

34. I summarize before I begin: the two-prong test will not apply to the case at bar, certainly not with the same force that is ascribed to it in relation to the obscenity offences in criminal law. The transplantation of the two-prong test from the area of criminal law to the area of film censorship is out of place.

35. Finally, and perhaps most importantly, in the area of criminal law, it has been held—and rightly so—that a work’s “artistic value” is sufficient to extract it from the realm of “obscenity," that the two are mutually exclusive. The situation is different regarding the screening of a film for the public at large. Ultimately, the real question in the instant case does not revolve exclusively around the film’s artistic value—as such—but rather around the possible deleterious impact of the film on its viewers. And here, with respect to impact on the viewer, neither the Board members nor the Court itself—and they are the “reasonable men”—are less expert than the art experts. Indeed, the Board members—and, similarly, the Court—can and may be assisted by the opinions supplied by experts in the field, but these opinions shall not be determinative or bind either the Board or the Court. These things were clearly and explicitly stated by Justice Landau in Omer [23], at 413:

[I]n the face of arguments asking us to reconcile ourselves with the publication of material that is generally considered pornographic, by reason of the publication’s importance to advancing significant scientific goals, it will be appropriate for the Court to hear expert testimony regarding the publication’s scientific value. This, however, is not the case, when the argument advanced is that the work’s social value resides is its literary value. Literature is written for the public at large and the author’s work is subject to the public’s critique. Indeed, while literary review is a respected profession, requiring particular expertise, these reviews are also written for the public, seeking to convince via reasoning understood by any educated person, so that it may be understood with the help of general knowledge alone. Thus, even if experts and reviewers such as these are permitted to testify, in the end, the judge will have to decide for himself, among conflicting opinions, according to his own understanding and knowledge. His consideration of the matter shall outweigh all these expert opinions. This being the case, expert opinions of this nature may be presented to the Court, even in the parties’ arguments, and literary experts may be heard.

These words were uttered regarding the submission of expert opinions in a criminal hearing, involving the publication of a book. All the more so will this rule apply to expert opinions presented before the Board, concerning the screening of a film. As noted above, the authority in these matters rests first and foremost with the Board—not the Court. The Court’s role is therefore not that of a first instance decision maker, but rather of a body intended to supervise and review other decisions.

36. And so, the law in Israel stipulates, and explicitly so, that it is not a film’s “artistic value," which determines whether it harms—or does not harm—“public order," “social morality” and the like, but rather the nature of a film’s impact on its viewers. The test is one of result, not of art and intention. And in the words of my colleague, Justice Barak in Laor [14], at 430-31:

We have seen that it is within the Board’s authority to consent or refuse to hand out a permit, if, in its opinion, displaying the script is likely to offend public order. "Public order," in this context, is not limited to those scripts whose publication constitutes a criminal offence. Rather, "public order" is a broad concept, not easily defined, which changes in function of its surroundings. It can mean threats to the state’s existence, harm to the democratic regime, or harm to public peace, morality, religious sensibilities, a person’s reputation, or fair legal proceedings. All these are all encompassed by "public order." The relevant test for ascertaining harm to the "public order" is results oriented. Thus, the question is not whether or not the script boasts an adequate degree of artistic value. The Board is not an art critic, nor is it a body responsible for handing out artistic grades. "The sufficiently brilliant or open-minded clerk, capable of and willing to distinguish between good and bad ideas, between good and bad art, has yet to be born." The question is whether presenting the play, be its artistic value what it may, threatens to harm public order. Hence, the question is also not whether the play properly reflects the reality it seeks to describe or not. The question is whether presenting the play, be its truth what it may, is likely to harm public order.

The issue of “artistic value” is relevant in determining whether the film is “obscene”—for, after all, “artistic value” pushes obscenity aside—however, regarding the question of a film’s impact on “public morality," the issue of art, per se, is itself pushed into a corner.

If we adopt this test that has been accepted in the case law, the following conclusion in the matter at bar will automatically emerge: the experts’ opinions will have negligible value, meager strength, and the determination regarding the question of the film’s impact will depend—in principle—on the Board members’ wisdom: as people who emerge from among the people and who represent the people. As one of the members stated at the Board meeting held on August 8, 1994:

When viewers come to see the film, they do not bring with them experts who will tell them if the film is artistic or not. To a very great extent, we represent the general public, equipped with nothing other than what its eyes can see.

Indeed, the Court will review the Board’s discretion, and in performing this review, will be guided by the fundamental principles of Israeli law, including freedom of expression. At the same time, however, the Court will not be entitled to disregard the Board’s opinion.

37. A film’s artistic value is significant, yet no less importance is attached to conflicting values, namely, the values prohibiting violence, preserving human dignity, “public morality," and the like. Possibly, art experts consider these conflicting values to be inferior to that of “art in its purest form." Who, however, appointed the art critics as supreme judges in the task of striking a balance between the values?

In my view, any evaluation—be it in law, morality, religion, art, politics or daily life—reflects a decision between various interests and desires, each pulling in their own directions. The decision may be a sharp, one-sided decision or it may reflect a compromise, but in each case the decision will be made by the “authorized individual." For instance, in institutionalized religion, the decisions will be made by the religious clerics; and in art reviews, the art critics, literary critics, theatre critics, film critics, and the like will be those tipping the scales. It is possible that differences of opinion will emerge among authorities; it is possible that it will lead to the creation of schools of thought, a majority opinion and a minority opinion and other variations. Thus, when the “art critic” reviews the value of a certain film, his decision will, in the end, amount to a choice between diverse considerations. However, one way or another, the decision of the “cinema art expert” will be a decision of a film aesthete, a decision made by a person of the arts.

In applying all this to the matter at bar, the following may be said: It seems that no one would disagree that the film "L'Empire Des Sens" is one continuous series of sex acts and sex scenes between men and women. It also seems that no one would dispute that the deletion of certain excerpts from the film, and the screening of these excerpts individually, would reveal scenes infected with pornography to their very core. Even cinema art experts would admit this to be the case. Yet, some of these same experts (some—but not all) would also tell us that, in viewing the entire film, we would know that we have seen a piece of art, and thus it is incumbent upon us to judge the film as a whole. I am prepared to respect these art critics’ opinion. I shall respect their judgment, and at a cinema art seminar, I shall open my heart to their words. But these art experts’ opinion cannot be what determines either the Board members’ opinion or our opinion as judges.

There are two reasons for this: First, the way in which the Board members—and the Court—think and judge is different from the way of the art experts. The latter are concerned with art in its simplicity, art in its “purest form," and general aesthetic values can sway their opinion, conquering all scenes infested with pornography. The Board members—and the Court—have a different viewpoint. This is what the law commands of them, and in making their determination, they must attach different weight to the factors. Their concern is not art in its purest form, but rather the film’s impact on those who view it. Indeed, the Board members can and may attach weight to the art experts’ opinion; the Board’s decision too is a compromise of sorts, and we are all in the same boat. However, in my opinion, the Board members are prohibited from attaching decisive weight to the art experts’ opinion; they must not feel compelled to walk in the art experts’ footsteps, if only because the role assigned to them by the legislature is different from the role of the art experts. If the Board members embrace the experts’ opinion as is, I believe they err in interpreting their role, for the Board’s “balancing norm” and the art critics’ “balancing norm” are two different norms.

My colleague, the President, does not discuss the content of those short excerpts which the Board wishes to cut from the film. He settles for the film experts’ opinion, holding that the judgment should be rendered according to their opinion. This absolute delegation of discretion to film experts in my view is inappropriate. Regardless of our opinion of the Board, we must bow our heads before the law, and the law provides that discretion has been granted to the Board, to it and not to the film experts.

Secondly, even if we had said that the art experts’ considerations and the Board’s considerations were the same—or even similar—it would still be forbidden for the Board members to delegate their authority and scrape and bow before the art experts’ decision. According to the Ordinance, the authority to censor films was granted to the Board—to it and not to any other body. The Board is obligated to exercise “independent” discretion, and it must not delegate this discretion and its authority to others. See, e.g., II B. Bracha, Administrative Law 43 (1996).

38. The ensuing conclusion is that the Board is prohibited from adopting the art experts’ opinion merely because these opined the way they did. The same has also been said concerning the interpretation of “obscenity” in criminal law, see supra, para. 35. This principle is also, a fortiori, applicable to the issue at bar—where the legislature placed discretion in the hands of the Film Review Board.

39. Let us illustrate this point so we may learn from it: there is a play which is praised to the heavens by all the experts. They say it is a classic, a glorious work, pure art, and truth for generations to come. And it is indeed such a play. But there is a problem: in the middle of the play, and as an integral part thereof (“the play as a whole”), the male lead has intercourse with the female lead—on the stage and in full view of the audience. They act precisely as did Adam and Eve before eating of the Tree of Knowledge: they are not ashamed. The play lasts approximately two and a half hours, whereas the sex act lasts only five minutes. It is truly submerged in the play as a whole. Everyone agrees that the sex act is a natural follow-up to what transpires prior to it, and that what comes after it is a natural follow-up to the sex act. The copulation is, without a doubt, an integral part of the play. It is wonderfully interwoven into the play, truly the work of a skilled artist. Everyone (or almost everyone) is happy and generous about it except the Play Review Board (which today is nothing but a legend). It rules that the sex excerpts must be removed from the play, or, at least, the message of the sex act must be conveyed to the audience in a different manner.

Would anyone among us, legal practitioners, open their mouth or raise a finger to object?

Before us is an example of the Board’s right to delete excerpts from a film, even if the “film as a whole” is “art." There are “pornographic” segments that are so strong and make such an impression that they stand independently and warrant that the Board address them specifically. Even if the description of the continuous sex acts between Lady Chatterley and the forest ranger is identical to the display we have just watched on the stage, each must be judged for itself: one will not be disqualified whereas the other may be. Reading is unlike seeing, and the impact of seeing is a thousand times greater than that of reading or merely listening.

40. Furthermore, the petitioners willingly agreed to delete two excerpts from the film. One excerpt depicts the “abuse of the sexual organ of an old man by children," and the other “sexual abuse of a boy." When the petitioners themselves waived the screening of these two excerpts, it obviated the need for us to express our opinion regarding these two parts. The question before us, however, is a question of principle and, in questions of principle, we shall not decide on the basis of the petitioners’ stance. These excerpts are an “integral” part of the film. The art experts are full of praise for the film that includes those segments, and we have not heard them say that the said excerpts deserve to be deleted. And here, the question presents itself in full force: acceptance of the art experts’ view—as per the President’s opinion—almost automatically compels us to approve the film as is, including the excerpts featuring children; after all, the experts in the field have spoken. Is this what my colleague truly means? Shall we in fact approve excerpts featuring sexual abuse involving children merely because art experts did not find any flaw with their being integrated into the “film as a whole”? Whereas if it is possible to disqualify these segments—even without the petitioners’ consent—what is the difference between these and other excerpts which the Board sought to disqualify?

Prior Restraint vs. Ex Post Facto Restrictions

41. Israel’s judicial system examines restrictions on speech through several lenses. These include the a priori publication bans (as in the matter before us) and the imposition of ex post facto criminal liability in respect of a prohibited publication (for example, for the publication and exhibition of obscenity and an injurious publication, as provided by sections 214 and 214A of the Penal Law). My colleague, the President, characterizes the a priori restriction as the most severe, whereas he classifies the criminal sanction as a restriction of less severity. In his words, in Universal City [10], at 35:

The restriction of freedom of expression takes various forms. The most severe restrictions are those which prevent the expression in advance. An a priori ban prevents publication. The damage caused to freedom of expression is immediate. A less severe restriction is the criminal or civil liability of the person uttering the expression. The expression sees the light of day, but the person uttering the expression bears the responsibility "post-facto." If the a priori prohibition "freezes" the expression, then after-the-fact responsibility "chills" it.

If we were to anthropomorphize freedom of expression and position it at center stage, we would agree that the a priori ban is the heaviest restraint of all. That is because an a priori ban on a publication prevents its very birth, while the criminal sanction assumes that the publication has already been published. Preventing the publication’s birth is more severe, from the publication’s point of view, than imposing a sanction on the publisher after the publication has already seen the light of day.

However, it is arguable that it is not the publication, but rather the publisher or author, who takes center stage. Freedom of expression is nothing but a concept essentially intended to serve man. Man is the purpose, and freedom of publication is nothing but a tool, a means for improving man’s situation. In a country such as ours, given the choice, I would rather that the authorities prohibit me from publishing, thereby forcing me to seek a remedy from a court of law, than that I be tried in criminal court and risk being sent to prison, or even carry on my back the hump known as a “suspended prison sentence," with the conviction recorded in the books. I take the liberty of assuming that my colleague is also of the same opinion, as is everyone else. In the final analysis, a pre-ruling is preferable to an after-the-fact sanction. And since criminal law is the severest of all, the judicial system adds reservations to a conviction under the law, both in the interpretation of the law, in the amount of evidence which is required for a decision, and in the diligent preservation of the defendant’s rights.

In the margins of the issue—and perhaps not so much in the margins—we shall add that, as is known, the United States judicial system meticulously safeguards freedom of expression, particularly when it comes to prior restraints. However, an obscene publication forms an exception to this rule. In the words of J.E. Nowak and R.D. Rotunda, Constitutional Law 1148 (1991):

The Court has often stated that "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Obscenity, however, is one of a few areas of the law in which prior restraint has been upheld.

What is United States Case Law Doing in Israeli Law?

42. Freedom of expression and “public morality." Both these concepts are pleasing to us and we have found them to be good and proper. What shall we do if one pulls northward while its companion pulls southward, and we are caught in the middle, between the two? How should we determine the boundaries of the protected freedom of expression, and how far should we be willing to go in spreading the protection around it? Primarily, the question is not a “legal” question. The tools placed in our hands are too crude and bulky for us to fashion with them clear, distinct legal rules. The tests are general and vague and we would find it difficult to apply them to daily life. The extra-judicial elements in the material before us fill most of the vacuum, and the jurist finds himself roving in a field that is outside his natural province. How, therefore, shall we decide between the opposing views?

Lacking direction from the legislature, we jurists are required—as is our way—to draw analogies from other places, to study fundamental principles, which guide our lives and our judicial system, as well as to interpret life around us. I have said elsewhere that the judge is the “interpreter of life. See M. Cheshin, Meir Shamgar—A President of Judges; a Justice and a Human Being, 26 Mishpatim 203, 207 (1995-96). If that is so in general, then a fortiori is it so regarding a subject that raises fundamental social questions, as does this case.

43. My colleague the President, as well as I, quote from American jurisprudence, from which we seek to derive guidance. In particular, we have referred to the three-pronged theory, established in Miller [50], at 24, which instructs us, in the following manner:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Of course, we do not see ourselves bound by American rulings. However, in order to fertilize our country’s judicial field, we seek to acquire knowledge from others. As for myself, I must admit that this is not an easy path for me to follow.

A judicial system that is in force in country “X” is analogous to a branch that grows on the trees of life and knowledge in that country. The residents of that country will eat from the fruit of the tree and it is good for them for, after all, the tree grew in their garden and on their soil. In our case, however, since the tree did not grow in our garden and on our soil, how may we eat from its fruit without jeopardizing our health? The law is merely a reflection of social and political life. And if we look into the mirror of strangers, will we not see their faces instead of our own? Indeed, in going towards the stranger, we shall distance ourselves from the particular and the specific, and bring ourselves closer to the general and the universal. Where is that miraculous apparatus capable of separating the glue between the general and the particular—and how shall we separate those who cannot be separated? After all, the rules in that foreign country are made of a single clay; they did not prepare themselves for a “modular” separation of the elements that comprise them, so that some of them would go for export and some would remain for local consumption only.

Nevertheless, in so far as problem-solving judicial techniques are concerned, I do not see any obstacle to seeking assistance from foreign judicial methods. The same applies to judicial framework formulae, formulae that are free of substantive content. With regard to norms with substantive content, it would be relatively easy to find analogies in the areas of civil and criminal law. This is even the case in the area of commercial law, and is certainly so in the areas of international commerce. However, our concern here is with society’s delicate fabric, its lifestyles, world-view, public morality—substance that grows from the depths of the human soul and society. Can we draw from them without harming ourselves? We should look around us and know that we live in our own world while others live in theirs.

44. In terms of the present case, three factors distinguish between American law and us. First, freedom of expression has gained a formal and unique status in the United States Constitution. Freedom of expression dwells on the mountaintop, and all interests that seek to detract from it must themselves first reach that peak. Only those among them that succeed in attaining the summit will be able to strive against the Sovereign, freedom of expression. That is the point of departure under American law. This is also the reason for certain techniques adopted by the United States courts, such as the ruling that material which is obscene is fundamentally not included in the First Amendment to the Constitution and, in any event, is not granted the protection of freedom of expression. See Roth [49] at 1308-09 and Miller [50], at 2614-15. Needless to say, all of these judgments are integrally connected to the social views prevailing in the United States. Consequently we should be cautious not to import into our country principles, which have not been adapted to suit us, or our lifestyles. In Israel, unlike the United States, freedom of expression has not gained a formal supra-legal status. In any case, we would find it difficult to apply rules established in the United States, as if we did not know otherwise. Indeed, in our country, the place of freedom of expression has a place in the sanctuary, but it is not the Holy of Holies itself.

Second, the United States is composed of fifty States, and the law has recognized a certain expanse for each and every state in terms of defining obscene material. This is the second prong of the Miller [50] ruling. Thus, the law in the United States has recognized the difference between social life in its various States, and rejected an all-inclusive principle, which would apply to the entire country. This second part of the Miller [50] test gives clear expression to the fact that the subject of obscenity is derived from the heart of society, boasting a social dimension that varies from one society to another. Thus, for example, the various American states have broad powers to regulate nonverbal physical conduct in comparison to their authority to prevent the depiction or descriptions of that same behavior. See Miller [50], at 2616 n.8. To which of the states in the United States should we liken ourselves? Must we at all resemble an American state at all?

Third, in the United States, the decision regarding whether or not certain material is obscene rests with the jury, the same jury that is supposed to represent the society in which it lives. Indeed, while the jury must be guided by the legal tests established by the Court, the substantive decision is in its hands—as the representative of the people—not in the hands of the Court. Moreover, as we know, the jury does not give reasons for its ruling. The jury is also the body responsible for deciding the issues set out in Miller [50], i.e. a “division of labor” has been established between the jury and the Court. Is not the analogy to the matter at bar clear? We will provide judicial guidance to the Board, but the Board will decide what will be exhibited and what will not be exhibited to the general public.

Requiem for the Board?

45. We have dwelt on the inherent difficulty in rendering a decision on a matter such as the one before us, and we shall not repeat what we have already said. This difficulty increases when we consider the permissive nature of contemporary society, and our knowledge of the pornographic material that is incessantly disseminated around us. See supra, para. 9. Nevertheless, we cannot ignore the special arrangement established by the legislature in setting up the Board and entrusting it with the decision whether or not a film should be screened to the general public. I regard the “division of labor” between the Board and the Court as being of supreme importance. As I have already noted, this division of labor is similar to that in force in the United States: on the one hand, the Court and the State legislatures establish legal guidelines for disqualifying obscene, and, on the other hand, the jury determines and decides in the cases that arise. The jury is the people, and as we have remarked time and again, so is the Board. There have always been differences of opinion with regard to the subject of “pornography," and we are condemned to live with them in the future as well. However, since the Board was established, we must honor it and we cannot disregard its decisions as though they did not exist. Even if my opinion differs from the Board’s—and my opinion is indeed different, as I noted in para. 18 supra— the Board’s decision is the decisive one.

46. Whether the Board should continue to exist is a separate question. Aware of the problems connected with its existence, the law has more than once delved into the issue of whether the Board should be allowed to continue functioning. Commenting on this matter, Justice Berenson noted in Avidan [37], at 770:

Far be it from me to support censorship of any kind, other than that required for security reasons, public order, and perhaps for the purpose of safeguarding Israel’s foreign relations. Censors are not always sensitive to the zeitgeist, particularly with regard to the younger generation, struggling to rise up and take its rightful place in society and to express its discontents. Every cultural and artistic work, provided that it does not harm state security or turn public order on its head, encouraging the violent overthrow of the political regime, is worthy of being given a chance to prove itself. If it will find favor in the public’s eyes, it will flourish. If, on the other hand, it will displease, its destiny will in any event be to disappear in a flash and be relegated to the dustbin of history.

The judges, for their part, have always seen themselves as obliged to obey the legislature. In the words of Justice Berenson in Avidan [37], at 770-71:

The abolition of censorship on films or the narrowing of its sphere of operation are a matter for the legislature, not the Courts, which usually only interprets and implements its instructions, to decide. If I am not mistaken, the Minister of Education and Culture recently decided to recommend that censorship of plays be abolished. Perhaps in our permissive generation we should also think the same about films? However, as noted, this is a matter for the government and the Knesset to attend to. For the time being, the law is what it is, and the Board is the public body responsible for implementing it. Its opinion is therefore the decisive one.

In Noah Films Company [26], at 763, Justice Vitkon added:

We must bear in mind that whether we reject or support the institution of censorship—and it seems to me that it would be difficult to forego it completely—it is the arrangement that the legislature set out. Hence, we must not interfere with the Board’s decisions when the true reason underlying our interference is merely—conscious or unconscious—opposition to the institution of censorship per se. We must be careful not to confuse issues. Abolition of censorship is a matter for the legislature to attend to, if it sees fit to do so, and it is not our role to narrow its boundaries and empty it of all content.

In light of the Board’s unique composition, it seems to me that it is as it should be. We should also bear in mind that the Board does not count itself among the government authorities and that the majority of the Board’s members are not civil servants. The issue of the Board’s existence is a matter for the legislative body to address, and it is the legislative body that is supposed to express the public’s inner feelings. Until a change is made in the existing law, we judges should not force the Board to embrace norms that it does not accept. No matter what our personal opinion of the film under discussion; no matter what the opinion expressed by the art experts; the Board has voiced its opinion in a clear manner, and I, for my part, have not found a good reason not to honor its decision. The authority to censor films was granted to the Board in principle, and, in the absence of proven harm to recognized basic values, we shall honor this representative body’s decision.

This is the meaning of authority and this is the meaning of review of authority; this is the meaning of the separation of authorities and this is the meaning of respect for the members of the authorities. We do not refer to the respect, which we must have for the Board as an institution, when referring to a law, which sets the limits of the institution’s authority. The Court is entrusted with interpreting the law. If the Court’s interpretation of a statute is different from the interpretation given by the authoritative body, the honor of that body will not be impaired if the Court points to the law’s correct interpretation. See HCJ 73/85 Kach Faction v. The Speaker of the Knesset [44], at 163; HCJ 910/86 Ressler v. The Minister of Defense [45], at 490. The position in relation to the Board members is different. They were chosen for the job from the very beginning as representative public figures, persons who are supposed to give expression in their decision to the standards of public morality accepted by the general public. Overturning the Board’s decision violates the statute’s purpose and may even be interpreted as impairing the Board member’s honor. We can see this very clearly in the statements made by the members during Board meetings. For instance, in the meeting of September 11^th 1994, Professor M. Sharon noted:

Even if I will be the only one here of this mind, I will vote that the film be disallowed. I would like the Supreme Court to take the role of censor upon itself. If has already done so in the past, and it is best that we reach the moment of truth … we are not unaware of the Supreme Court’s decisions. We, however, employ tests of our own. Here, our test will be clear and straightforward, as we have sat in deliberations a number of times and our feeling for ‘near certainty’ perhaps differs from the Court’s.

And on July 11, 1994:

We act according to a certain standard, unrelated to one film review or another. We have viewed the film four times, and each time reached the same conclusion, in light of what we saw. We are not an artistic body or film critics—that is not our role. We are a public body, and we see this film as pornographic and for this reason seek to prevent it screening. If the High Court of Justice will see fit to permit it, then so be it. Let the Court then substitute itself for the Board.

In a similar vein were the words spoken by Mr. Y. Markovitz (at the same meeting):

With all due respect, if the High Court of Justice sees fit to substitute itself for the Board, then let it replace it.

Said Mr. Y. Gutman at the Board meeting held on August 8, 1994:

If we were to permit the screening of this film as is, we can, to my mind, allow each and every film. We will then deal merely with age limits and not with reviewing content.

And more, and more of these things were said.

47. My colleague, the President, feels that his decision, as he decided it, serves to play down the Board’s status, and its powers drift away almost like smoke. In order to placate the Board members my colleague therefore adds that his words should not be understood as though they were meant to render the Board totally superfluous. On the contrary, the Board retains very valuable functions. In the words of my colleague, supra para. 16:

This test does not obviate the need for the Board. It establishes the facts. It performs the assessment.

This food, which my colleague sets before the Board members, is but a meager portion; not only because these functions may be assigned to a clerk, but also when we consider the remainder of the President’s words, to the effect that the same assessment which is performed by the Board “is of a constitutional dimension” in that it is “harmful to freedom of expression." In other words, a Court will examine the Board’s “assessment” in depth, and in fact: a Court will replace the Board. For reasons, which we have already dwelt upon at length—perhaps at undue length—I find it difficult to agree with my colleague.

48. Ours is a pluralistic society, but even in pluralism, the place of paternalism is not lost. The Board is one expression of paternalism, and as long as this body exists, we are forbidden to dispossess its powers of real content. Had the Board disqualified film segments featuring close- ups of a person’s intestines spilling out, or a person whose eyes are being slowly gouged out, it seems to me that we would not have interfered in its decision—even though the film was of an “artistic nature." The Board members feel this way regarding the excerpts that they want to cut from the film, and I have not found any reason why we should interfere in their decision.

We will not bring salvation to the world whether we approve or overturn the Board’s decision. However, in the end, the matter that we must decide centers on appropriate social mores and public morality. These cannot be measured or weighed but lie at the heart of our existence. I do not know from whence comes our authority to teach the Board members what the standards of social mores and public morality are. The question is one of conscience, and I will not agree that my conscience is to be considered any purer than theirs. In this vein, it is appropriate to consider the remarks made by a committee set up in the United States to discuss the issue of pornography (The Attorney General’s Commission on Pornography), as they are quoted in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) [57], at n. 22:

The most important harms [of pornography—added by Justice Cheshin] must be seen in moral terms, and the act of moral condemnation of that which is immoral is not merely important but essential. From this perspective there are acts that need be seen not only as causes of immorality but as manifestations of it. Issues of human dignity and human decency, no less real for their lack of scientific measurability, are for many of us central to thinking about the question of harm. And when we think about harm in this way, there are acts that must be condemned not because the evils of the world will thereby be eliminated, but because conscience demands it.

I fear that the opinion voiced by my brother, the President, is a requiem for the Board. From this day forward, we no longer require public figures, but can be content with a clerk. And so it shall be: films depicting brutal violence or hard pornography will not pose any problem and their fate will be disqualification. Nor will any problem be caused by films such as “Gone With the Wind” or “My Left Foot." With regard to “in between” films—and they constitute the majority—their fate will be decided according to the opinion of art experts. Pure and simple. This too, of course, is a method of censoring films, and it is worthy of study among the other ways of censorship. However, the question we must ask ourselves is whether in taking this path we have not, without proper consideration, abolished binding legislation. Irrespective of our opinion regarding the necessity for the Board, the issue of deciding whether or not such a body should exist rests with the legislature, not the Court.

If my opinion were accepted, the order nisi would be vacated and the petition dismissed.

Decided in accordance with the President’s judgment.

Rendered today, January 9, 1997.

Full opinion:

State of Israel v. Jabarin

Case/docket number:

CrimFH 8613/96

Date Decided:

Monday, November 27, 2000

Decision Type:

Appellate

Topics:

State of Emergency and National Security

Abstract:

Facts: A further hearing on the judgment of the Supreme Court in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel in which the appellant was convicted of an offense under section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 for an article he had published. This further hearing addresses the question whether the construction of section 4(a) of the Prevention of Terrorism Ordinance requires a causal connection between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication, for a conviction. The court further addresses the question whether section 4(a) of the Prevention of Terrorism Ordinance relates only to “acts of violence” of a terrorist organization or to any “acts of violence”.

Held: The Court held in an opinion by Justice T. Or that section 4(a) relates to acts of violence of a terrorist organizations and the words of praise and encouragement relate to acts of violence of a terrorist organization. Justice Or further held that the words and praise and encouragement in the publication which was the subject of the conviction do not constitute acts of violence of a terrorist organization. Therefore, the Court held that the defendant was to be acquitted of the offense under section 4(a) of the Ordinance.

Justice Y. Kedmi in a separate opinion was of the view that the further hearing should have been denied. Justice Kedmi agreed with the construction given to section 4(a) in the Elba case [2], as it was adopted by the Justices in the panel in the first hearing of this matter. Justice Kedmi was therefore of the opinion that the appellant’s conviction should have been upheld. Justice Kedmi further stated that even according to the narrower construction of section 4(a), the appellant’s conviction should have been upheld as the actions for which the appellant showed support, also meet the requirements of section 4(a) when narrowly construed.

Vice-President S. Levin in a separate opinion stated his general agreement with Justice Or and disagreed that section 4(a) is to be interpreted as referring to “acts of violence” of a terrorist organization alone, but rather should include the type of violent activity that characterizes terrorist organizations. In his view the appellant’s article satisfied this definition and therefore the conviction should have been upheld.

Justice E. Mazza in a separate opinion was of the view that the appellant’s conviction should have been upheld and referenced his judgments in CrimA 2831/95 Elba v. State of Israel and in CrimA 4147/95 Jabarin v. State of Israel which was the subject of the further hearing.

Voting Justices:

Or, Theodor

Primary Author

majority opinion

State of Israel v. Jabarin.pdf

majority opinion

Dorner, Dalia

majority opinion

Turkel, Jacob

Author

concurrence

Levin, Dov

Author

concurrence

Kedmi, Yaakov

Author

dissent

Mazza, Eliahu

Author

dissent

Full text of the opinion:

CrimFH 8613/96

State of Israel

Jabarin

The Supreme Court Sitting as the Court of Criminal Appeals

[November 27, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, Y. Kedmi, D. Dorner J. Türkel

Petition to the Supreme Court sitting as the High Court of Justice

A further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel on October 20, 1996.

For the petitioner—Dan Yakir

For the respondents —Talya Sasson, Eyal Yannon

Legislation cited:

Prevention of Terrorism Ordinance 5798-1948, ss. 1, 2, 3, 4, 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g).

Penal Law 5737-1977, ss. 136(c), 144B(a), ch. H, sections A, A1.

Regulations cited:

Emergency Regulations for Prevention of Terrorism 5708-1948

Israeli Supreme Court cases cited:

CrimA 4147/95 Jabarin v. State of Israel (not yet reported).
CrimA 2831/95 Elba v. State of Israel IsrSC 50(5) 221.
HCJ 58/68 Shalit v. Minister of Interior IsrSC 23(2) 477.
CrimA 317/63 Tzur v. Attorney General IsrSC 18(1) 85.
CrimA 697/98 Susskin v. State of Israel IsrSC 52(3) 289.
CA 2000/97 Lindorn v. Karnit, Fund for Compensation of those Injured in Traffic Accidents IsrSC 55(1)12.
CrFH 1789/98 State of Israel v. Benyamin Kahane (not yet reported).
CrimA 6696/96 Kahane v. State of Israel IsrSC 52 (1) 535.
CrimA 401/79 Lamdan v. State of Israel IsrSC 34(4) 46.

Israeli books cited:

Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993)

Foreign books cited:

D.E. Long The Anatomy of Terrorism (New-York, 1990).

Jewish law sources cited:

Ecclesiastes 8, 8.

JUDGMENT

Justice T. Or

A further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) from October 20, 1996 in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] (hereinafter: “the Jabarin case [1]”). In the judgment the appellant (hereinafter: “Jabarin”) was convicted of the offense established in section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 (hereinafter: “Prevention of Terrorism Ordinance” or “the Ordinance”) of support of a terrorist organization. This further hearing revolves around the question of the construction of this offense. The special importance of the issue stems from its ramifications for freedom of expression, as this freedom retreats within the borders of the deployment of this offense.

The Facts and the Processes

1. Over the course of the years 1990-1991, Jabarin, a reporter from Umm El Fahm published three articles. In the third article which, as we shall clarify below, was the only article that remained relevant to our matter, Jabarin wrote, among other things:“Truth be told, I will tell you my friend, that whenever I said: ‘hurray’, ‘hurray’ and threw a stone I was overwhelmed by the feeling that victory was calling us: ‘continue to throw, increase the patience, contribute and insist more, and the dawn will come which you have been awaiting for so long’ I will not deny my friend, that whenever I shouted: ‘hurray, hurray’ and threw a Molotov cocktail I feel that I am adorned in majesty and splendor, I feel that I have found my identity and that I am taking part in defending that identity and that I am a person worthy of leading a respectable life. This feeling awakens within me beautiful feelings.”Consequent to the publication of the three articles Jabarin was charged with support of a terrorist organization, an offense under section 4(a) of the Prevention of Terrorism Ordinance. This offense establishes:

“4. A person who:

(a) Publishes either in writing or orally praise of, sympathy for, or encouragement of acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence;

. . .

will be prosecuted and if found guilty will be liable for imprisonment of up to three years, or a fine of 1000 Israeli lira, or both.”

The Magistrate’s court convicted Jabarin of the offense attributed to him. Jabarin appealed to the District Court. His appeal was denied. The applicant filed leave to appeal to this court and was granted leave as requested. In the framework of consideration of the appeal, the respondent informed the court that it agrees to the acquittal of the applicant for his conviction as far as it relates to the first two articles he published, however, it supports his conviction as to the third article. In reliance on the case law decided in CrimA 2831/95 Rabbi Ido Elba v. State of Israel [2] (hereinafter: “the Elba Case”) as relates to the construction of section 4(a) of the Prevention of Terrorism Ordinance, the Court denied Jabarin’s appeal of his conviction for publication of the third article.

Jabarin filed an application for a further hearing on the judgment. In his decision the President determined that it would be proper to grant the application and hold a further hearing on the question:

“whether the interpretation of section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 requires that there exist a causal connection -- and if so what is it – between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication.”

On February 16, 2000 we asked the parties to relate, by way of written summations, to an additional question and that is: whether section 4(a) of the Prevention of Terrorism Ordinance relates to any “acts of violence” or only to “acts of violence” of a terrorist organization. As far as I have been able to ascertain, this question has not yet arisen and has not been considered until the proceedings in this case.

The Positions of the Judges as to the Construction of Section 4(a) in the Elba [2] and Jabarin [1] Judgments

2. The further hearing before us in fact focuses on the Jabarin case [1], however, its foundations are anchored in the case law regarding section 4(a) of the Prevention of Terrorism Ordinance in the Elba judgment [2]. The Elba judgment [2] was handed down by a special panel of seven judges. The core of the discussion in the Elba case [2] surrounded the offense of incitement to racism established in section 144B (a) of the Penal Law 5737-1977, however it included reference by some of the Justices to the offense we are dealing with.

In the Elba case [2] Justice Mazza determined that the prohibition specified in section 4(a) includes among its elements, a probability potential for risk. In his view, the phrase “may” that is in the section relates to “acts of violence” and not to the published words. The expression “the death of a person or his bodily injury” which appears after the phrase “may” was intended only to describe the type of acts of violence. Justice Mazza determined further that the prohibition specified in section 4(a) is derived from the character of the violent activity and not from its attribution to a terrorist organization.

“For the realization of the offense according to section 4(a) it is sufficient that the words of praise, sympathy, or encouragement relate to the type of activity which characterizes a terrorist organization, meaning ‘acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.’ However, it is reasonable to think that not every publication of a word of praise or encouragement for an act of violence which may, by its nature, cause the death of a person, can constitute an offense according to section 4(a) of the Ordinance (while it is possible it will constitute another offense). From the purpose of the Ordinance it ostensibly necessarily arises that only publications which praise or encourage acts of violence of the type that characterize terrorist activity will be included in the framework of said prohibition. Nevertheless, it is clear that the prohibition also applies to the publication of words of praise, sympathy or encouragement for violent activity of this type, even if the activity is by an individual, or a group that is not identified as a member of a terrorist organization. Meaning: the prohibition on publication is derivative of the terrorist character of the violent activity, and not from its attribution to a terrorist organization, or from its doers belonging to such an organization.” (para. 44 Ibid. emphasis in the original.)

In conclusion Justice Mazza determines that:

“. . . the risk that pursuant to the publication defined as prohibited, violent activity will actually take place is not of the elements of the offense. The presumption inherent in the prohibition is that the very publication of words of support of activity which characterizes a terrorist organization can endanger the peace and security of the public. We find that the prosecution meets its obligation by proving the publication and that it supports (via words of praise, sympathy or encouragement) the types of activities that are characteristic of a terrorist organization; and it does not have to prove that the publication itself may (at a certain level of probability) cause violent action” (para. 45 of his opinion).

Justice Goldberg supported the view of Justice Mazza both relating to the attribution of the phrase “may” to “acts of violence” and to the absence of a probability test.

President Barak agreed with the view of Justice Mazza according to which the phrase “may cause the death of a person or his bodily injury” relates to the “acts of violence” and not to the words of praise. From hence, that even in his view the section does not include within it an element of potential risk of the occurrence of acts of violence pursuant to the publication. However, and in contrast to Justice Mazza, the President was of the view that the section includes within it, in the framework of the circumstantial element, a probability test. This test relates to the character of the actions described and its function is to examine whether acts of the type described may cause death or severe injury. The judgment in the Jabarin judgment [1] was handed down about five months after the Elba judgment [2]. Justice Mazza referred to that case and adopted the interpretation given there to section 4(a) of the Prevention of Terrorism Ordinance. Justices E. Goldberg and Y. Kedmi shared his view.

The Position of the Parties in the Further Hearing

3. Counsel for Jabarin claims that the construction the court adopted in the matter of section 4(a) of the Prevention of Terrorism Ordinance is an overly broad construction that does severe and unjustified harm to the foundational principles of our legal system. According to his claim, the status of freedom of expression, which constitutes a “supra” value in our law, necessitates narrowing the area of deployment of the offense, in order not to harm it more than is necessary. It is justified to harm this freedom only when there is a probability that a danger is posed from the expression. As to the degree of probability of the danger, in his view the test of near certainty is to be adopted, a test that was adopted in Israeli case law as the balancing formula that is to be preferred when freedom of expression on the one hand and public peace on the other are placed on the scales. The respondent, for its part, seeks to adhere to the construction given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba judgment [2] and the Jabarin judgment [1]. Although it makes a point of emphasizing that it is not oblivious to the importance of freedom of expression, nonetheless, in its view, this principle does not have ramifications for the question of the existence of a probability test in the framework of section 4(a) of the Prevention of Terrorism Ordinance and does not constitute grounds for narrowing the limits of the prohibition beyond that which is established in it. In the balance between the system of values the section protects and freedom of expression, the first prevails. The State also claims that applying a probability test that analyzes the influence of the words of praise on an audience exposed to it will place an unreasonable, if not impossible, burden of proof on the prosecution.

As for the Court’s question whether section 4(a) is to be interpreted as relating to “acts of violence” of a terrorist organization only, the position of Jabarin’s counsel is that such construction is indeed consistent with the foundational principles of the system and with the purpose of the Ordinance. On the other hand, the respondent is of the opinion that giving a narrow definition of the expression “acts of violence” in the section such that it relates to terrorist organizations only, is not consistent with the purpose of the provision in the section and therefore objects to it.

I will preface and say that I reached the conclusion that Jabarin is to be acquitted of the offense according to section 4(a) of the Ordinance. In my view section 4(a) relates to acts of violence of a “terrorist organization” according to its meaning in the Ordinance (hereinafter: “terrorist organization”) and the words of praise and encouragement for acts of violence that were described in said publication do not satisfy this requirement. I will preface and explain my rationale for limiting the range of deployment of section 4(a) of the Prevention of Terrorism Ordinance to words of praise, sympathy or encouragement for acts of violence of a terrorist organization. Following that, I will examine whether the words of praise and encouragement in said publication constitute acts of violence of a terrorist organization. As said, my answer to this is in the negative.

Attributing the Provision in Section 4(a) to Acts of Violence of a Terrorist Organization

4. Section 4(a) deals with the prohibition of a publication which relates to “acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.” From a textual standpoint, when one reads section 4(a) on its own, the section does not include a limitation according to which the acts of violence mentioned in it include only acts of violence of a terrorist organization or acts which are characteristic of a terrorist organization. However, my colleague Justice Mazza was of the opinion, as quoted above, that the section is not to be interpreted in such a broad manner, and that according to the purpose of the Ordinance the acts mention in section 4(a) are to be limited to actions and activities which characterize terrorist activity, even if they are done by an individual who is not connected to a terrorist organization.

I accept my colleague’s view that the deployment of section 4(a) is not to be broadened to include any acts of violence which may cause a person’s death or injury. But, in my opinion, the application of the clause is to be limited further, such that it will apply only to acts of violence of a terrorist organization. While my colleague is of the opinion that the section deals with terrorist activity, in my opinion it deals with the activity of terrorist organizations. I will detail my reasoning below.

5. In construction of a section in a statute it is not sufficient to examine a given statutory provision detached from the overall statute in which it appears. It is not a “lonely island” which stands on its own detached from its surroundings. The law is “a creature living within its environment” (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [3] at 513). The proximate environment of the statutory sections is the overall statute within which they are found. Such a statute radiates and affects the manner of construction of each of the sections which make it up:

“. . . the interpreter must review the legislation in its entirety. The words of Justice Frankfurter are well known that there are three laws to statutory construction: “read the law, read the law, read the law.” Indeed, the organic unit which the judge interprets directly was not legislated on its own. It was legislated as part of a broader unit – the entire piece of legislation. Just as one is not to interpret a section in a literary or musical composition without looking at the entire composition, so too one is not to interpret a provision in the law without reviewing the law in its entirety.” (A. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993) [10] at p. 308)

When examining the Prevention of Terrorism Ordinance in its entirety it is immediately apparent that the phrase “terrorist organization” is scattered throughout it. All the offenses established in the Ordinance, including section 4, apart from subsection (a) in it, relate directly to terrorist organizations. The Ordinance does not make do with dealing with the direct doers of the acts of violence who act on behalf of terrorist organizations. The prohibitions established in it are directed at the broad foundation of these organizations; it also covers members of terrorist organizations who are not direct partners of the acts of violence and their supporters and accomplices from without. Reading the Ordinance as one unit reveals a clear and unified picture as to its purpose. This purpose is dealing with terrorist organizations with the goal of eliminating them.

The purpose of the Ordinance also radiates on identification of the purpose of section 4(a). Indeed, section 4(a) according to its text, when it is examined on its own, does not associate the words of praise and encouragement to the acts of violence of a terrorist organization specifically. However, when section 4(a) is read as one unit with the rest of the provisions of the Ordinance, it becomes apparent that the offense specified in it is to be related to the context of terrorist organizations.

6. This conclusion is supported by the language of the margin headings of the sections of the Ordinance. Most of the margin headings, including the margin heading of section 4, include the phrase “terrorist organization”. For example, the margin heading of section 2 is “Activity in a Terrorist Organization”; the margin heading of section 3 is “Membership in a Terrorist Organization”; the margin heading of section 4 is “Support of a Terrorist Organization” and the like. As to the role of margin notes in the framework of statutory construction, it has already been said:

“. . .although it is true that neither chapter headings nor margin headings add or detract as compared with the clear and unequivocal language of the law’s provision itself. . . where it arises from the statutory provision itself the possibility of a limiting interpretation which is consistent with the goal that was expressed in the heading of the chapter or the margin heading it is my view that it is proper to interpret the statute narrowly as aforesaid, in particular when it is a matter of criminal law” (my emphasis T.O) (CrimA 317/63 Tzur v. Attorney General [4] at 95 and see A. Barak, supra at pp. 316-321 and references there).

Indeed, the weight of margin headings in legal interpretation is not substantial, but it certainly may shed light on the purpose of legislation (Ibid.). In our matter the consistent use of the phrase “terrorist organization” in the margin headings of the sections of the Ordinance, strengthens the construction according to which the Ordinance overall deals with overcoming terrorist organizations.

7. Even the analysis of section 4, including all of its alternatives, supports this conclusion. As said, the margin heading of this section is “Support of a Terrorist Organization”. Indeed, all of its subsections, apart from subsection (a), deal with a type of support of a terrorist organization. It prohibits support of a terrorist organization by way of publication of words of praise, sympathy or encouragement of its acts of violence. The section does not deal with publication of words of praise, encouragement or sympathy for acts of violence which are not attributed to such an organization. In short, the protected value in section 4 is the prevention of support of a terrorist organization, and this as part of the overall layout of the Ordinance, whose purpose is elimination of the foundation of these organizations.

It should be noted in this context that even in the text of section 4(a) there is a hint to the fact that the publication of the words of praise, sympathy or encouragement dealt with within it relate to acts of violence of a terrorist organization. The section deals with publication of words of praise, encouragement or sympathy for “acts of violence which may cause the death of a person or his bodily injury”. The definition of terrorist organization in section 1 of the Ordinance is “a group of people that in its operations makes use of ‘acts of violence which may cause the death of a person or his bodily injury’”. Section 4(a) uses the very same words which constitute the backbone of the definition of “terrorist organization” in section 1. This rationale also provides support for the argument that the legislator specifically directed section 4(a) of the law at words of praise, sympathy or encouragement for violent activity of a terrorist organization.

8. The conclusion that the provision of section 4(a) relates to encouragement of acts of violence of a terrorist organization is only strengthened when one examines the historical background and the legislative history of the Ordinance. The Prevention of Terrorism Ordinance was legislated under the dark shadow of the murder of Count Bernadotte, representative of the United Nations Assembly and his aide Colonel Serot in Jerusalem on September 17, 1948. This murder hastened the legislation of the Ordinance, but its legislation had a broader background which was the attempt of the provisional government, after the government was established, to bring about the disbandment of the Jewish underground. Several days after the murder, on September 20, 1948, the Emergency Regulations for Prevention of Terrorism 5708-1948 were passed. On September 23, 1948, members of the Provisional Council of State gathered for their 19th meeting, in the framework of which said regulations were repealed and replaced with the Prevention of Terrorism Ordinance. The meeting was opened with the notice of the then-Prime Minister, David Ben-Gurion, as to the murder and a sharp condemnation of the act (see: Minutes of the Meeting of the Provisional Council of State of September 23, 1948, The Council of the Nation and the Provisional Council of State, Minutes of Discussions, Volume A at p. 31). From this notice, detailed below we learn of the purpose for which the Prevention of Terrorism Ordinance was passed:

“After consulting with several members of the government – those members that I could reach on Friday evening and Saturday morning – I approached the Ministry of Justice, to immediately prepare emergency regulations against terrorist organizations, according to which it would be possible to punish not only those who commit acts of terrorism – for this the existing laws suffice – but also members of the terrorist organization, even if they themselves do not participate in the terrorist act, and their helpers, and those encouraging them with money, propaganda or other assistance.

On Saturday night the government convened at the Ministry of Defense, heard a detailed report from me as to these activities and decided to proceed with them with full vigor, until the criminals will be caught and brought to justice and the terrorist organizations uprooted. The government dealt that evening with the proposed Emergency Regulations against Terrorist Organizations, prepared by the Ministry of Justice, ratified it in principle, and assigned a committee of three ministers to draft a final draft for publication in the Official Register as an emergency regulation. The government weighed whether to delay the publication until the meeting of the Council of State and reached the conclusion – that delay would be wrong and that immediate action was necessary, and it was to publish the regulations within the authority it had, as emergency regulations, however, with the convening of the Council of State the government submits the regulations for the Council’s approval so that the regulations will be made into an ordinance on behalf of the Council of State.” (Emphases mine-- T.O.).

From these words it arises that the Prevention of Terrorism Ordinance was legislated in order to combat the phenomenon of terrorist organizations. This historical background strengthens the conclusion I reached according to what is said in the Prevention of Terrorism Ordinance overall, that the Ordinance deals exclusively with offenses which relate to terrorist organizations.

9. The conclusion I reached clarifies and provides a satisfactory explanation for the severity of the criminal prohibition established in section 4(a), a prohibition that contains an infringement on freedom of expression. When this section is examined detached from its legislative environment and from its historical and legislative background, the impression is created that the infringement on freedom of expression is severe and disproportionate in its degree. However, this first impression changes, when the section is examined against the background of its context the purpose is understood and the borders of its deployment are clarified. The prohibition specified in section 4(a), as the rest of the prohibitions in the Ordinance, was intended to defeat the foundation of terrorist organizations. Against the background of the special severity of this risk, the legislator was of the view that it would be proper to go even further and to also consider publication of praise for violent acts of a terrorist organization as an offense, even if they were done in the past, and even if the publisher of the words of praise is not a member of such an organization himself and does not pose a danger himself. Moreover, and this is to be emphasized, the section does not require the existence of potential for the realization of any harm as a result of the publication. One can become accustomed to such a prohibition in a democratic society, although it contains a significant infringement on freedom of expression, when we are dealing with terrorist organizations, with the great and unique risk they embody.

10. The respondent is aware of the historical background for legislating the Ordinance, but according to its claim, the language of section 4(a) enables its interpretation in a manner that does not limit the prohibition established in it to the description of violent acts of a terrorist organization, and in its view, such an interpretation is more desirable.

As for the language of the article, it is the claim of the respondent, that from review of section 4 one can reach a conclusion opposite to the one reached above. First, as opposed to each of its subsections, in subsection (a) it is not explicitly noted that the prohibition specified in it refers to a terrorist organization. From this it can be concluded that there was no intention to limit what was said in it to acts of a terrorist organization. Moreover, the respondent also claims that limiting the scope of section 4(a) to describing acts of violence of a terrorist organization, will in fact make superfluous the prohibition found in it as this prohibition is covered by other alternatives in section 4. For example, section 4(b) establishes that a person will be charged with an offense who:

“publishes, in writing or orally, words of praise, sympathy or calls for help or support of a terrorist organization.”

It is the claim of the respondent, that words of praise, sympathy or encouragement for undertaking acts of violence by a terrorist organization are included within this general prohibition of publication of words of praise and encouragement of a terrorist organization. This act is in its view also covered by section 4(g) of the Ordinance which establishes that a person will be charged with an offense who:

“commits an act that contains an expression of identification with a terrorist organization or sympathy for it, by waving a flag, presenting a symbol or a slogan or voicing an anthem or slogan, or any similar expressive act which clearly reveals such identification or sympathy, and all this in a public place or in a manner that people who are in a public place can see or hear this expression of identification or sympathy.”

Such arguments are to be rejected. First, the argument according to which the interpretation which bounds the definition of section 4(a) to a terrorist organization, makes the prohibition established in it superfluous, is not to be accepted. The distinction between the prohibitions established in the various alternatives of section 4 is clear. The prohibition specified in subsection (b) prohibits publication which contains words of praise, sympathy or calls for help or support of a terrorist organization. On the other hand, subsection (a) relates to a publication which contains words of praise, sympathy or encouragement of violent acts of a terrorist organization. The emphasis is on acts of violence of a terrorist organization, and not the terrorist organization itself.

Second, as to section 4(g), from review of the case based description of the type of activities it applies to it is apparent that the section deals with expressions of support and identification via symbolic means, such as anthem, flag waving, slogan and the like (see on this issue CrimA 697/98 Tatiana Susskin v. State of Israel [5] at para. 35). It does not deal with a publication that contains direct literal support of acts of violence of a terrorist organization.

Third, indeed the language of section 4(a) itself can also be interpreted as applying to the type of violent activity that defines terrorist organizations, or even to any violent activity and not necessarily the violent activity of terrorist organizations. As I noted in the beginning of my words, from a textual standpoint, this possibility is not to be ruled out. However, as explained above, this interpretation is not consistent with the purpose of the Ordinance, its margin headings, its historical and legislative background and the alternatives of section 4.

11. According to the respondent’s claim, it is desirable to dismiss the interpretation that limits section 4(a) to publication of words of praise for terrorist acts of a terrorist organization alone also for the reason that it leads, in its view, to an unwanted result. The respondent brings as an example in support of this argument the fact that the publisher, for example, of words of praise for the massacre at the Cave of Mahpelah or the murder of Prime Minister Yitzhak Rabin, could not be charged with an offense according to section 4(a) of the Prevention of Terrorism Ordinance, and this because these terrorist acts were not carried out by agents of a terrorist organization but by individuals. In this context, the respondent emphasizes that the reality in Israel proves that the threat that is posed from individuals is no less tangible than the threat posed by organized groups. In its view, the special importance of section 4(a) of the Ordinance is to be understood in light of this reality. The prohibition on publishing publications which incite to severe acts of violence on an ideological background, established in section 4(a) of the Ordinance, constitutes a central tool in the effort to prevent terrorist acts in general and those by individuals in particular. Its importance stems from the fact that its task is to prohibit these seditious publications and thereby prevent an atmosphere which grants the lone damaging person the necessary support to carry out the terrorist act. In the view of the respondent, accepting the proposed interpretation will leave the prosecution without the tools to cope with the phenomenon of incitement by individuals to commit severe acts of violence with terrorist characteristics.

The respondent proposes to adopt the view of Justice Mazza, which was expressed in the Elba judgment [2] and the Jabarin judgment [1], according to which within the framework of the prohibition in section 4(a) will be included publications which praise or encourage acts of violence of the type that characterizes terrorist activity. The respondent even suggests a number of central components which make such activity unique in its view, and which distinguish it from “regular” acts of violence.

12. As I have shown above, the Ordinance was legislated in order to fight against terrorist organizations. However, the law is that a statute is to be given an updated meaning, in accordance with the changing reality (see A.Barak in his book supra, at p. 264; and see also, for example, CA 2000/97 Lindorn Nicole v. Karnit, Fund for Compensation of those Injured in Traffic Accidents [6] at paragraph 17). If this is the case, is it not desirable, in the face of the argued change in the character of terrorist activity over time, to walk in the pathway the respondent suggests and broaden the boundaries of the deployment of the prohibition specified in section 4(a) beyond the boundaries originally delineated? My view is that we are not to do so. The Ordinance deals with organized terror, and not with acts of violence undertaken by individuals. It deals with the risk entailed in the joining together of a band of people who undertake in their activities acts of violence which endanger human life. Organizations of this type, to the extent that they are not cut off at their core, may spread like a cancer in the body of society, and endanger its foundations, and possibly even sabotage the foundations of the regime. In light of the severity of this risk, primarily during a period of emergency, the use of the severe means utilized by the Ordinance to eliminate this blight is understandable. I have clarified above, that the special severity of the means utilized are to be understood against this background, as this is also reflected in the essence of the prohibition established in section 4(a). Broadening the scope of 4(a) to additional circumstances, which it did not purport to deal with, may destroy the balance established in it, which enables severe infringement on freedom of expression, but only for the purpose of dealing with the extreme phenomenon of terrorist organizations.

13. As stated, the respondent expresses concern, that accepting the proposed construction will leave the prosecution without the tools to cope with the phenomenon of incitement to commit severe acts of violence with terrorist characteristics, when these are not connected to a terrorist organization. This claim, to the extent that it reflects the face of reality, indeed is not to be belittled. However, it cannot change the purpose of section 4(a) which was intended, along with the other offenses established in the Ordinance, to serve as a weapon in the fight against terrorist organizations. This purpose has not lost its force. Unfortunately, such organizations have not yet left this world. Indeed, at the time the Ordinance was legislated it was intended to deal with organizations of a different identity than those we are familiar with today. A change in times has also brought about a change in the identity of terrorist organizations which constitute a risk to the State. However, the risk rooted in terrorist organization has remained, and therefore the original meaning of section 4(a) as described above has not faded.

It will be noted, that in existing legislation there exist a number of provisions which may serve the state in its war against the phenomenon of incitement, as the offense of sedition found in Title A of Chapter H of the Penal Law 5737-1977, and the offense of Incitement to Racism established in Title A1 in it. According to the claims of the respondent the existing arsenal is not sufficient to battle the phenomenon of sedition. If that is the case, this is a matter for the legislator to address and regulate the prohibition of incitement, in its various aspects.

Based on what has been said above, my conclusion is that the Ordinance only applies to situations in which terrorist organizations are involved. It does not relate to violent activity, of any type, which has no connection to these organizations. Therefore, section 4(a) is not deployed over publications which contain words of praise, sympathy or identification with violent acts which were committed by people who are not associated with a terrorist organization. Limiting the scope of section 4(a) in such a manner, preserves the balance established in it between freedom of expression and the value protected within it. This prohibition eliminates the concern of a disproportionate infringement on freedom of expression; the infringement is proportional in consideration of the special risk rooted in terrorist organizations.

The Question of the Association of the Described Acts of Violence with a Terrorist Organization

15. In our matter, Jabarin published, during the Intifada, an article which expresses support, encouragement and sympathy for the throwing of stones and throwing of Molotov cocktails. Did Jabarin commit an offense according to section 4(a) of the Prevention of Terrorism Ordinance with this publication? My answer to this is in the negative.

In order to establish whether a publication is included within the prohibition established in section 4(a), one is to examine whether the acts of violence described in it, which it praises, encourages or sympathizes, are the acts of violence of a terrorist organization. Section 1 of the Ordinance defines a “terrorist organization”:

“‘a terrorist organization’ is a group of people that uses in its operations acts of violence which may cause the death of a person or his bodily injury or threats of such acts of violence”

There is no doubt that throwing stones and throwing Molotov cocktails are activities which can endanger human life. But the question is, does Jabarin’s article, which praises and encourages acts of violence, relate to the acts of violence of a terrorist organization?

The acts of violence of the type described in said article were undertaken, during the course of the Intifada, both by individuals and by organized groups that fall under the definition of “terrorist organization”. Stones and Molotov cocktails were thrown in a disorganized manner, by individuals including children, who acted independently. However, these activities were also undertaken by groups with an organized foundation that undertook acts of violence to achieve their goals. I clarified above, that in order to apply section 4(a) of the Ordinance, it is not sufficient that the acts described in the publication are of the type that characterize terrorist activity, but it is necessary that they be the acts of such an organization. Does section 4(a) apply to a publication of the type we are dealing with, a publication which praises and encourages acts of violence undertaken both by individuals and by terrorist organizations, and which in itself contains no indication, explicit or implicit, of whose activities it wishes to encourage and praise, and when the emphasis in it is on the acts of violence themselves without any connection to the characteristics of those undertaking them?

16. It is my view that section 4(a) does not apply to said publication. The reason for this is found in the purpose of section 4(a). I clarified above, that its purpose is not to prohibit a publication which encourages, praises or sympathizes with acts of violence of the type which characterize terrorist activity. It is intended, as are the rest of the alternatives of section 4, to prevent support of terrorist organizations, and this as part of an overall system in the Ordinance whose purpose is to eliminate the foundation of such organizations. In order for a publication to be included in the framework of section 4(a), it is necessary, in my opinion, for it to be understood from it that it supports acts of violence of a terrorist organization. Indeed, it is not necessary that the publication contain explicit reference to such an organization. It is sufficient that it be implied from it that it supports violent activities undertaken by it. For example, a publication which praises acts of violence without relating to those undertaking it, when it is known to all that a terrorist organization is behind the act, will fall within the framework of section 4(a) of the Ordinance. However, a publication which praises and encourages acts of violence, from the content of which it is not to be understood that it is intended to support a terrorist organization, but the emphasis in it is on the acts of violence itself, without connection to the characteristics of those undertaking them, does not fall within the prohibition established in section 4(a).

In our matter, the publication includes words of praise and sympathy for acts of violence of the type of throwing of stones and Molotov cocktails. As said, it contains no indication that it was intended to praise an act of violence of a terrorist organization. My impression from reading the article is that the emphasis in it is on acts of violence, when the characteristics of those undertaking them do not add or detract. Moreover, in the major portion of the article, as can also be seen from the section quoted in paragraph 1 above, Jabarin relates to acts of violence that he himself undertakes, or seeks to undertake. The respondent is not claiming that Jabarin himself is a member of a terrorist organization. Therefore, words of praise for his actions, or encouragement to act like him, are not included within the framework of words of praise or encouragement for acts of violence of a terrorist organization.

17. In light of this, my conclusion is that the article does not support a terrorist organization, by means of sounding words of praise and encouragement for acts of violence undertaken by it. From hence that the publication we are dealing with does not include the required elements for formation of the offense of support of a terrorist organization established in section 4(a) of the Ordinance.

18. Based on the above, I will propose to my colleagues that the petitioner’s appeal be allowed and that he be acquitted of the charge he was convicted of.

President A. Barak

I agree

Justice D. Dorner

I agree

Justice J. Türkel

1. I concluded my opinion in CrimA 2831/95 Rabbi Ido Elba v. State of Israel [2] with the words: “it is said in the book of Kohelet that “no man controls the spirit—to trap the spirit” [Ecclesiastes 8,8] Let us not hold back man’s spirit.” (Ibid. at 337)

In the view of the respondent’s counsel in the briefs they submitted “there are expressions, and the petitioner’s expression is included among these, that even if perhaps they express man’s spirit it is appropriate to place limitations on this spirit as the entire purpose and goal of that spirit is to incite harm to the spirit and body of other people.”

2. I go in my way, as in the Elba case [2] and as in CrFH 1789/98 State of Israel v. Benyamin Kahane [7] the decision on which is to be given alongside the decision here. In my opinion it is proper to narrow, by way of construction, the scope of deployment of the criminal law provisions which infringe on freedom of expression. As I said in the Elba judgment “according to my perspective, across the standard at one end of which is absolute freedom of expression and at the other end of which – its prohibition, the balancing point is to be set very close to the first edge.” (Ibid. at p. 331).

Indeed the words that the petitioner wrote in the article that was published, for which he was convicted in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] are deserving of serious condemnation; however, such things are not to be prevented nor is their sting to be dulled, using the authority of section 4(a) of the Prevention of Terrorism Ordinance 5708-1948 (hereinafter: “the section”). In the battle for freedom of expression we should not lower our gaze to the close range of the throwing of a stone or hurling of a Molotov cocktail but rather raise our eyes to the horizon of Jewish and Democratic Israel, for which freedom of expression is one of its foundation stones. Protection of the petitioner’s right to speak his words is not protection of his defamatory words, but it is protection of the right of the person holding another opinion to speak his mind. Protection of the right of the petitioner is protection of my right to speak my words, to sound the poetry of the poets that speak from my heart, and to cry out my cry of truth.

3. The construction of my colleague, Justice T. Or, narrows the range of deployment of the section and is favorable in my eyes. I agree with his view.

Justice Y. Kedmi

I read through the opinion of my colleague Justice Or, and unfortunately I cannot agree with his view. According to my approach, as it will be presented below, the construction that was given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba case (CrimA 2831/95)[2] – by Justice Mazza – is the proper construction; and I have not found any justification to change it or deviate from it. Two topics are up for discussion in the case before us as to the construction of said section 4(a). The one, which is the issue for which the further hearing was granted – deals with the question, whether a “causal connection” is needed between the publication of words of praise, sympathy or encouragement of acts of violence, and the occurrence of acts of violence in fact. And the second -- deals with the question, whether section 4(a) speaks only of publication of words of praise for acts of violence that were committed by a terrorist organization; or whether in its framework are also included words of praise for acts of violence that were committed by private persons not on behalf of a terrorist organization when they satisfy the characteristics of the acts detailed in the body of the article.

As to the causal connection , I accept, in principle, the approach that states: that lacking an explicit statement, noting a prohibited “character mark” of a circumstance – in this case the publication – is not sufficient to convey a requirement for the presence of any particular level of probability of the actualization of that “character mark”; and that there is to be seen in noting the prohibited character mark a requirement which relates to an inherent trait of the circumstance as opposed to its potential to occur. On this matter see the words of my colleague, Justice Mazza in CrimA 6696/96 [8] in connection with section 136(c) of the Penal Law: “the phrase ‘of a seditious nature’ is directed at the content of the publication and not the degree of probability that the publication will cause rebellion.”

However, when it has become clear that there is no debate that the requirement that the acts of violence which the petitioner’s article deals with, are acts of violence “which may cause the death of a person or his bodily injury” as in their meaning in said section 4(a), I do not find it appropriate to expand on this issue here; and in my view it remains “open for further discussion”.

As to limiting the application of the prohibition established in said section 4(a) to words of praise and encouragement of acts of a terrorist organization only, I agree with the position that was presented by Justice Mazza in the Elba case, according to which: this section relates to the publication of words of praise and encouragement for violence of the type that characterizes terrorist activity; and it is of no consequence whether these are committed by a terrorist organization or a private individual not on behalf of such an organization.

From a textual perspective, there are two rationales at the basis of my approach. The first – the language of said section 4(a) does not include a requirement that the acts which are the subject of the encouragement and praise will be such that they are committed by a terrorist organization in particular; as opposed to all the other subsections of section 4, which speak specifically of terrorist organizations. And the second – in describing the acts subject to the prohibition established in said section 4(a) – “that may cause the death of a person or his bodily injury, or of threats of such acts of violence”—the legislator repeated, with vigorous precision, the acts which characterize a terrorist organization, as per the definition in section 1 of the Ordinance; when the reference in that definition to a “band of people” as the doers of the actions, was dropped from section 4(a). This situation teaches, in my approach, that the legislator intended to establish in said section 4(a) a general prohibition on words of praise and encouragement for acts which characterize a terrorist organization; and this – and Justice Or has described this at length – as an exception within its environment, which overall, speaks of the activity of a terrorist organization explicitly.

The language of section 4(a) is not suffering from a textual “failure” which must be healed by way of construction, as is necessitated by the approach of my colleague. “Omission” of the requirement according to which it is a matter of praise and encouragement for acts “of” a terrorist organization, repeats itself twice: first in the very absence of the mention of the terrorist organization; and later, in copying the definition of the acts which characterize a terrorist organization without mentioning the doer. The language of section 4(a) is clear, and deliberately does not include the requirement that the doer of the actions the subject of the encouragement and praise will be a terrorist organization. Adding the requirement which narrows the prohibition established in said section 4(a) as suggested by my colleague Justice Or, constitutes in the present case, “judicial legislation” as opposed to “construction”.

The result I have reached is not necessitated just from the textual aspect of the version of the provision, as detailed above, but also fits in -- in my approach – with the legislative purpose and the framework in which it is found. Indeed, as is apparent from the legislative history of the Ordinance, the factor that led to its legislation was the need to create a tool to combat terrorist organizations; and apparently the conclusion is necessitated that section 4(a) is also directed to serve this tool. However, at the end of the day, the struggle is not with an “organization” as such, but the “activity” for which the organization was set up and which it carries out; and it is not surprising, to see the “intertwining” of a provision which is directed at deterring from “activity” which characterizes the organization, even when this is not carried out by a member of the organization, in its name or on its behalf. When the final result of the struggle is prevention of “terrorist activity”, we do not see an absence of logic– requiring repair -- in that among the rest of the prohibitions there has also been established a prohibition which speaks directly to preventing “activity” of the type that a terrorist organization carries out. Prohibition of the publication of words of praise for “activity of a terrorist nature” that was carried out by one who was not a member of a terrorist organization, does not constitute, according to this approach, a “foreign seed” – lacking in logic – in the Ordinance – which is directed at blocking the activity of terrorist organizations.

Aside from and in addition to what is said above – and beyond what is needed – I feel it appropriate to add the following comment. Even if the language of the provision were to leave room for a restricting definition, I would reject such construction due to the “change of circumstances” since the legislation of the Ordinance; and this by authority of the rule which denies reliance on historical construction which was good in its day and which ignores the development which has occurred in reality.

“legislative history must not control us ‘from the graves’; but we also must not build our legislative structure without roots. The proper balance between past and future, between knowledge of what was, and knowledge of what should be, is what stands at the foundation of proper use of legislative history in establishing the purpose of the legislation.” (A. Barak, Interpretation in Law, Volume 2, Legislative Construction, 1993 [13] at p. 351).

The phenomenon of terror has undergone many changes over the years. In the past, including at the time of legislation of the Ordinance, the phenomenon was focused on activity carried out by terrorist organizations; and the phenomenon of private terrorists – “freelancers” – was in its infancy. However, today the phenomenon of terrorism has ceased to be the exclusive activity of terrorist organizations; and the role of individuals, who mimic the members of the organizations but act on their own accord, has reached significant proportions. It is not without reason then, that the definition acceptable to the United States Government for terrorism also specifically includes within it reference to terrorism by individuals.

““Terrorism is the threat or use of violence for polotical [sic] purposes by individuals or groups, whether acting for or in opposition to established governmental authority, when such actions are intended to shock, stun, or intimidate a target group wider than the immediate victims.” (D. E. Long, The Anatomy of Terrorism (1990) [11] at p. 3; emphasis added Y.K.).

Our State has recently witnessed the harsh dangers embedded in acts of terrorism of individuals – who do not act on behalf of an organization –with the murder of the prime minister Yitzhak Rabin (may his memory be a blessing), in the actions with a terrorist character by someone who was not acting on behalf of a terrorist organization. The danger embedded within those “unorganized” terrorists is continually increasing and its strength has lately surpassed that embedded in terrorist organizations; experience has shown that the task of foiling the activities of those individual terrorists is particularly difficult given their seclusion.

In such a situation, there is no justification for the distinction between words of praise for violent acts of members of an organization and words of praise for actions of the same type that were committed by those who are not members of any organization; as the purpose of the prohibition is to prevent the existence of activity of a terrorist nature; whoever those carrying it out may be.

And finally, I am not oblivious to the fact that my position as to the construction of the provision of said section 4(a) clashes with the basic right of freedom of expression. Indeed, such is the face of things. However, said right is not an absolute right but a relative one; where the legislator gnaws away at it from the authority of the right to life and security while preserving the necessary “proportionality” we must honor its provision. Said section 4(a) establishes such a provision.

Conclusion

According to my approach, the construction given to section 4(a) in the Elba case [2] is to be left standing as it was adopted by the Justices in the panel in first discussion in the matter before us; and it is not appropriate to intervene in the conviction of the appellant.

As an aside I would like to add that even if the opinion of my colleague Justice Or is accepted, according to which section 4(a) speaks only of words of praise for violent actions “of a terrorist organization” the appeal is still to be denied; and this, as the actions for which the appellant showed support, meet, at the end of the day, this requirement as well. It is well known that throwing stones and Molotov cocktails during the intifada, was committed first and foremost by members of Palestinian terrorist organizations on behalf of their organizations; when individuals, who are not members of organizations, were dragged in after them. The possibility and even the fact – that these acts were committed also by individuals who are not members of a terrorist organization, does not remove the words of praise the appellant published from the purview of said section 4(a) even according to the “restricting” formula proposed by my colleague. Review of the appellant’s article shows, that it speaks of sweeping support of all acts of throwing stones and Molotov cocktails without distinction as to those committed by members of terrorist organizations and those committed by individuals that are not such; from hence that the support also refers to activities of terrorist organizations.

Vice-President S. Levin

1. I agree with my hon. colleague Justice T. Or that the language of section 4(a) of the Prevention of Terrorism Ordinance, on its own, can also encompass violent activity of the type that characterizes terrorist organizations, or even violent activity of any type, however, in my view, it must be so interpreted. I do not agree with him that the said paragraph is to be interpreted as referring only to “acts of violence” of a terrorist organization.

The thesis which bases the acquittal on a narrow interpretation of section 4(a) relies on the purpose of the Prevention of Terrorism Ordinance, the margin heading of section 4 and other sections of the Ordinance, the similarity between the language of section 4(a) and the definition of “terrorist organization” in section 1 of the Ordinance, the historical background of the Ordinance and the need to interpret said statute as much as possible in a manner that does not infringe on freedom of expression. I do not accept this position, for the purposes of the petition before us.

As to the purpose of the Prevention of Terrorism Ordinance said thesis creates circuitous reasoning (inextricabilis circulus): if you start with the assumption that the purpose of the Ordinance is only war with terrorist organizations, then the thesis is well based; if you start from the conclusion that the Ordinance has an additional purposes which is also to fight against the actions of individuals who publish words of praise, sympathy or encouragement for acts of violence which may cause a person’s death or injury then the thesis is not well based and it assumes the desired result as the basis of its rationale. Moreover, a similar question came before us in CrFH 1789/98 [7] and the court determined there that a broad construction was to be given to the offense of sedition although it was also possible there to interpret the wording “to incite to seditious acts” as referring to an act that that causes harm to the structure of the regime alone, and I do not see a significant difference in the means of interpretation of the two statutes.

2. The value of a margin heading in the construction of section 4(a) of the Ordinance is minimal and it is given sufficient weight in the approach of Justice Mazza in CrimA 2831/95 [2], that section 4(a) speaks of types of activity that are characteristic of a terrorist organization and not violent activity when it stands on its own; even in the similarity between the grounds of paragraph (a) of section 4 and the definition of “terrorist organization” in section 1 of the Ordinance there is not in my view support of the acquitting result and vice versa; the fact that in section 4(b)(c)(d)(e)(f) of the Ordinance a “terrorist organization” is mentioned, as opposed to in paragraph (a), can teach, by way of evidence from the contrary, that paragraph 4(a) does not refer specifically to a “terrorist organization”; the examples from the legislative history which led to the legislation of the Ordinance are in my view of little weight, if they did not find expression in the wording of the Ordinance, that with its legislation became a living thing that carries its own weight. Absent sufficient indication in the wording of section 4 of the Ordinance that the protected value in this section is only the struggle with a terrorist organization, it appears to me that text is to remain within its literal meaning and the protected interest in paragraph (a) is also the struggle with one who commits the types of activities that are characteristic of a terrorist organization.

3. The central question in this further hearing is whether proper construction of section 4(a) of the Ordinance requires limiting the scope of deployment of the section only to activity of a terrorist organization although this was not said in paragraph (a) and that is – in order to defend freedom of expression. The topic we are dealing with is the normative construction of a primary statute and not its application to a concrete instance, as in our matter it is possible that it will be necessary to utilize stringent criteria of probability in order to prevent infringement of freedom of expression. All agree that the deployment of the principle of freedom of expression can be pushed back in the presence of restrictions and limitations which relate to considerations which may narrow the scope of its deployment. Accepting the position of the petitioner in the normative sphere means closing off options for a conviction based on clear text for offenses of severe incitement to acts of violence characteristic of a terrorist organization, when, apparently there is no other statutory source to rely on in order to convict one who commits the act. Under these circumstances I am not of the view that the interpreter has the option of applying a general norm of freedom of expression that can limit the statute’s words resulting in the release of the accused from criminal liability. Just as it is true that the law is a “a “creature living within its environment” for the purpose of restricting the scope of its deployment in the appropriate case in the face of the application of general principles, so too is it a “a creature living within its environment” for the purpose of applying its exacting words, if it turns out – in the appropriate case – that a restrictive construction of the section will harm the interest which the law comes to protect; compare: the judgment of Justice Landau in CrimA 401/79 Lamdan v. State of Israel [9] at p. 56 near the letter “a”. Such, in my view, is the situation in the present case.

4. Were my opinion to be heard we would therefore decide that section 4(a) of the Prevention of Terrorism Ordinance also applies to those who commit acts of terror which characterize terrorist organizations and I have no doubt that the content of the article meets this definition. Therefore, in theory I should have expressed my view also as to the question for which the further hearing was granted which relates to the existence of a causal connection between the publication of the words of praise, sympathy or encouragement to the risk of the occurrence of acts of violence as a consequence of the publication; and the degree of its strength; as my honorable colleague, Justice Kedmi, I have been satisfied that the content of the articles also meets the more stringent test of “clear and present danger”. Therefore I do not see a need to express an opinion as to the first question brought before us for determination.

I have therefore reached the conclusion that the judgment of the Supreme Court in the first hearing is to be upheld and the conviction of the petitioner is to be left as is.

Justice E. Mazza

I cannot agree with the opinion of my colleague Justice Or. I have expressed my stance relative to the construction of section 4(a) of the Prevention of Terrorism Ordinance 5708-1948 in my judgment in CrimA 2831/95 Elba v. State of Israel [2] at pp. 282-286, and in my judgment in the appeal which is the subject of the further hearing before us (CrimA 4147/95 Jabarin v. State of Israel [1]) The reasoning of my colleagues, the Vice-President and Justice Kedmi, only strengthened me as to the correctness of the position I expressed in these judgments. If our views were to be heard, this appeal would be denied.

It has been decided by a majority of opinions as per the judgment of Justice T. Or.

29 Kislev 5760

November 27, 2000

Editor’s note: Following this judgment and the Court’s determination that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 applies only to sedition by a terrorist organization and does not apply to sedition by individuals, the Ordinance was amended such that section 4(a) of the Ordinance was nullified and in its stead an offense of sedition to violence or terror was established in the Penal Code.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/96/130/086/E20/96086130.e20.pdf

SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting

Case/docket number:

HCJ 5432/03

HCJ 5477/03

Date Decided:

Wednesday, March 3, 2004

Decision Type:

Original

Topics:

Communications

Basic Law: Human Dignity and Liberty

Abstract:

Facts: The third respondent held a concession for broadcasting the ‘Playboy’ channel in Israel. This channel shows material of an erotic or pornographic nature. The first respondent gave a licence to respondents 4-7 to broadcast the ‘Playboy’ channel, subject to a number of restrictions relating, inter alia, to the times when the broadcasts were permitted, the manner of subscribing to the channel, and measures that needed to be taken to ensure that the channel was not accessible to persons under the age of 18. The petitioners challenged the decision of the first respondent, on the grounds that the first respondent erred in its interpretation of the law, and that the broadcasts of the ‘Playboy’ channel fell within the scope of a provision in the law that prohibits ‘a depiction of a person or any part of a person as a sex object.’ The petitioners further argued that the broadcasts of the ‘Playboy’ channel offended the feelings and dignity of women.

Held: The majority of the Supreme Court justices who heard the petition held that even pornography enjoyed the protection of the constitutional right of freedom of expression. As such, even though there were conflicting rights or interests, the first respondent’s decision struck a proper balance by permitting the broadcast of the ‘Playboy’ channel, subject to the restrictions that it imposed. Even those minority justices who questioned whether pornographic expression fell within the scope of the right of freedom of expression accepted that there were no grounds for intervention in the decision permitting the broadcasting of the ‘Playboy’ channel, in view of the restrictions imposed on the broadcasts.

Petitions denied.

Voting Justices:

Dorner, Dalia

Primary Author

majority opinion

majority opinion

majority opinion

majority opinion

majority opinion

majority opinion

Author

concurrence

Turkel, Jacob

Author

concurrence

Beinisch, Dorit

Author

concurrence

Rivlin, Eliezer

Author

concurrence

SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting.pdf

majority opinion

Full text of the opinion:

HCJ 5432/03

HCJ 5477/03

SHIN, Israeli Movement for Equal Representation of Women, and 11 others (HCJ 5432/03)

Chairperson of the Knesset Committee on the Status of Women, MK Gila Gamliel and 52 others (HCJ 5477/03)

1. Council for Cable TV and Satellite Broadcasting

2. Adv. Dorit Inbar, chairperson of the Council for Cable TV and Satellite Broadcasting

3. Play TV Ltd

4. D.B.S. Satellite Services (1998) Ltd (‘Yes’)

5. Tevel Israel International Communication Ltd

6. MATAV Cable Communication Systems Ltd

7. Golden Channels & Co.

The Supreme Court sitting as the High Court of Justice

[3 March 2004]

Before President A. Barak, Vice-President T. Or and Justices E. Mazza, M. Cheshin, D. Dorner, J. Türkel, D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis

Petition to the Supreme Court sitting as the High Court of Justice

Petitions denied.

Legislation cited:

Basic Law: Human Dignity and Liberty.

Basic Law: Freedom of Occupation, s. 3.

Classification, Marking and Prohibition of Damaging Broadcasts, 5761-2001, s. 3(a)(4).

Communications (Telecommunications and Broadcasting) Law, 5742-1982, ss. 6Y, 6Y(2), 6Y(2)(3), 6Y(2A), 6AK, 6BE.

Communications (Telecommunications and Broadcasting) Law (Amendment no. 27), 5762-2002.

Penal Law, 5737-1977, ss. 34U, 214, 214A.

Telecommunications Law (Amendment no. 25), 5761-2001.

Israeli Supreme Court cases cited:

[1] HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441.

[2] CrimA 4693/01 State of Israel v. Babizaib [2002] IsrSC 56(5) 580.

[3] HCJ 4804/94 Station Film Ltd v. Film and Play Review Board [1996] IsrSC 50(5) 661; [1997] IsrLR 23.

[4] HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [1994] IsrSC 48(2) 1.

[5] HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[6] HCJ 4644/00 Jaffora Tavori Ltd v. Second Television and Radio Authority [2000] IsrSC 54(4) 178.

[7] CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

[8] HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[9] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[10] HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[11] HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509.

[12] HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [1989] IsrSC 43(2) 22; IsrSJ 10 229.

[13] HCJ 6126/94 Szenes v. Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.

[14] HCJ 2888/97 Novik v. Second Television and Radio Authority [1997] IsrSC 51(5) 193.

[15] HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[16] HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[17] HCJ 701/81 Malach v. Chairman of District Planning and Building Committee [1982] IsrSC 36(3) 1.

[18] CrimFH 8613/96 Jabarin v. State of Israel [2000] IsrSC 54(5) 193.

[19] HCJ 2753/03 Kirsch v. Chief of Staff, IDF [2003] IsrSC 57(6) 359.

[20] HCJ 92/56 Weiss v. Chairman and Members of the Legal Council [1956] IsrSC 10 1592.

[21] CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

[22] FH 16/61 Registrar of Companies v. Kardosh [1962] IsrSC 16(2) 1209; IsrSJ 4 7.

[23] HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701.

[24] HCJFH 4128/00 Director-General of Prime Minister’s Office v. Hoffman [2003] IsrSC 57(3) 289.

American cases cited:

[25] American Booksellers Ass’n, Inc. v. Hudnut, 771 F. 2d 323 (1985).

[26] Miller v. California, 413 U.S. 15 (1973).

[27] United States v. Playboy Ent. Gp., 529 U.S. 803 (2000).

Canadian cases cited:

[28] R. v. Butler [1992] 1 S.C.R. 452.

[29] R. v. Hawkins (1993) 15 O.R. (3d) 549.

Jewish law sources cited:

[30] Babylonian Talmud, Tractate Berachot 48a.

[31] Isaiah 11, 9.

For the petitioners in HCJ 5432/03 — Y. Abadi.

For the petitioners in HCJ 5477/03 — S. Ben-Natan.

For respondents 1-2 — A. Licht.

For respondent 3 — Z. Bar-Natan, R. Peled, A. Halfon, R. Gazit, B. Rottenberg, A. Wang.

For respondent 4 — M. Matalon, L. Porat.

For respondents 5-7 — U. Rahat.

JUDGMENT

Justice D. Dorner

The Council for Cable TV and Satellite Broadcasting permitted the broadcast of the ‘Playboy’ channel on cable TV and satellite. The law prohibits the depiction of ‘a person or any part of a person as a sex object.’ The question before us is whether permitting the broadcasts of the ‘Playboy’ channel was lawful, i.e., whether the broadcasts of the channel breach the prohibition prescribed by law.

The petitioners and the respondents

1. The petitioners in HCJ 5432/03 are feminist and social organizations who have joined in order to prevent pornographic broadcasts on the cable and satellite channels. The petitioners in HCJ 5477/03 currently serve, or served in the past, as Knesset members. The first respondent is a public council (hereafter — the Council), which operates pursuant to the Communications (Telecommunications and Broadcasting) Law, 5742-1982. The second respondent, Adv. Dorit Inbar, was at the relevant times for our purposes the chairperson of the Council. The third respondent (hereafter — the Playboy company) is a private company that holds a concession for broadcasting in Israel the broadcasts of Playboy TV International LLC, including broadcasts of the ‘Playboy’ channel. This channel is an erotic channel, which has enjoyed great success around the world. It is broadcast in 175 countries, including the United States, Canada, Australia, England, Belgium, France, the Scandinavian countries, the countries of Latin America, Japan, Taiwan, New Zealand, Poland, Turkey, Spain and Portugal. The fourth respondent (hereafter — ‘Yes’) is a licensee for television broadcasts by satellite, which is operates under the name ‘Yes.’ Respondents 5-7 (hereafter — the cable companies) broadcast television programs on cable in accordance with a licence given to them for this purpose.

The background to the petitions

2. The possibility of broadcasting erotic and pornographic channels (hereafter — adult channels) on television began when ‘Yes’ came into the market and began operating digital technology that allows the separation of adult channels from other channels. In decisions of the Council dated 6 July 2000 and 9 July 2000, the ‘Blue’ channel was approved for broadcasting, and in its decision dated 17 July 2000, the ‘Playboy’ channel was also approved. In July 2000 ‘Yes’ began marketing and broadcasting the approved channels.

MK Zevulun Orlev and MK Shulamit Aloni filed a petition to this court against the approvals that the Council gave to the ‘Blue’ channel only, in HCJ 5885/00, but on 3 September 2000, following the recommendation of the court, the petitioners withdrew the petition, and it was struck out.

In April and May 2001, the cable companies also began to broadcast with digital technology, and so they too obtained the possibility of marketing adult channels. In June 2001, after receiving the approval of the Council, the cable companies began broadcasting three adult channels — ‘Vivid,’ ‘Spice’ and ‘Playboy’ — while complying with various restrictions that the Council had stipulated. These restrictions were fully formulated on 7 June 2001, after the Council took into account the public positions that it surveyed and after it formulated a general policy with regard to the content of the broadcasting and the manner of broadcasting sexual content.

The broadcasting of the adult channels in general, and the ‘Playboy’ channel in particular, met with great commercial success. According to the reports of the companies, more than 50% of the satellite subscribers and 65% of the cable subscribers bought the ‘Playboy’ channel broadcasts.

3. On 25 July 2001, the Knesset passed the Telecommunications Law (Amendment no. 25), 5761-2001 (hereafter — amendment 25), which changed the name of the law to the Communications (Telecommunications and Broadcasting) Law (hereafter — the Communications Law). Amendment 25 added to the law s. 6Y(2A), which prohibits the broadcast of a channel whose main broadcasts are sex broadcasts. A criminal sanction was also prescribed for a breach of this provision, in s. 6AK, and this stipulates a penalty of five years imprisonment or a fine in an amount of seven million new sheqels.

This change in legislation led the Council to hold meetings and even to announce a public hearing. On 9 August 2001, following various positions that were presented to the Council, it published a new policy, whereby the law applies to sex broadcast channels, but not to broadcasts using the ‘pay-per-view’ system, which allows subscribers to purchase individual broadcasts and to pay for them separately. Accordingly, the Council determined that the approvals that were given for the broadcasts of the adult channels would be cancelled, and instead it permitted the broadcast of the adult channels according to the pay-per-view system and with additional restrictions that it determined. On 26 September 2001, the adult broadcasts were stopped in the format of channels, and they were broadcast according to the new format only. Subsequently the permits were again amended in order to permit watching of the ‘Playboy’ channel on a ‘pay-per-night’ basis, namely the purchase of a whole night of broadcasts.

On 16 October 2001, the Playboy company and its main shareholder filed a petition in this court against amendment 25 of the Communications Law on the grounds that the amendment was unconstitutional in that it violated freedom of expression, freedom of occupation and property rights. In the petition, the court was asked to cancel the amendment, suspend it or order the State to pay compensation for the harm that it caused the petitioner. This petition, HCJ 8003/01, is also pending before the High Court of Justice with a panel of eleven judges, after it was amended several times as a result of the changes in the legal position, as will be set out below.

At the beginning of March 2002, the ‘Playboy’ channel stopped its broadcasts completely as a result of difficulties in selling its broadcasts in accordance with the conditions of the Council.

4. The legislative developments continued. On 9 July 2002, the Communications (Telecommunications and Broadcasting) Law (Amendment no. 27), 5762-2002, was passed (hereafter — amendment 27), in which s. 6Y(2) of the law was amended. The section in this version, which is also the most recent version that is in force today (hereafter — the section), prohibits broadcasts which contain obscenities, as defined in the Penal Law, 5737-1977, especially when their subject-matter is the ‘depiction of a person or any part of a person as a sex object.’

As a result of the enactment of the section, all the broadcasts of the adult channels were stopped immediately. At the same time, the Playboy company applied to this court with an application to amend its petition so that it would be directed at amendment 27. In addition to the amendment of the petition, the Playboy company and the cable and satellite companies applied to the Council with a request to approve the channel. A hearing was held before the Council, and the two parties submitted to it a legal opinion. The Council also received an opinion of its legal advisors, which supported the approval of the channel. The Council went further and made a request to the Attorney-General, Mr Elyakim Rubinstein. At the end of several meetings, the Attorney-General submitted to the Council, on 24 October 2002 and 21 November 2004, his response and his clarification of the response. The position of the Attorney-General was that the law could be interpreted in different ways, and therefore the Council had the right to decide in accordance with its discretion.

In a decision dated 28 November 2002 (hereafter — the first decision) the Council prohibited the broadcast of the ‘Playboy’ channel within the framework of the cable and satellite broadcasts on account of the offence to women and on account of the public interest in protecting children and adolescents, stating that ‘in the balance of the interests, it is possible to prohibit the broadcast of the channel.’

Following this decision, the third respondent amended its petition once again, so that it was directed against this decision of the Council. On 3 March 2003, a hearing of the petition was held, and at this counsel for the Playboy company asked that the panel should be expanded, in view of the drastic nature of the relief sought, namely the disqualification of a law of the Knesset. The application was granted, and on 25 March 2003, the President of this court decided to form a panel of eleven judges.

5. Then the Playboy company and the cable and satellite companies applied once again to the Council with a request to reconsider their application to approve the channel. In response to this, the petitioners in HCJ 5432/02 applied to the Council with a request to prevent such a further consideration. On 12 June 2003, after its legal adviser held that it was entitled to reconsider the first decision, the Council decided to approve the ‘Playboy’ channel. In the decision after the reconsideration (hereafter — the second decision) the Council decided that the first decision was defective and was based on an erroneous legal test. The following, inter alia, was written in the second decision:

‘The Council, after it examined the scope of the possible interpretations of this term [of a “sex object”], is of the opinion that it should be interpreted as applying to situations in which a human being is treated as an object or as a tool without a personality or will of his own, and not in every case in which a person is depicted in a way intended to arouse sexual gratification or a person is depicted in a sexual context. The Council was persuaded that the purpose of the legislation that amended the law was not the desire of the legislator to prohibit every depiction of nudity or eroticism in television broadcasts, but to prevent a situation of “objectification” of the participants in those broadcasts, including a depiction of involuntary acts or physical humiliation of the participants.’

In this interpretation, the Council also took into account the restrictions that could be imposed on the pornographic channel, whose main purpose was to protect children. Therefore it decided that:

‘In the view of the Council, the correct balance… does not prohibit broadcast of the channel… but approval of the broadcast of the channel subject to the conditions and restrictions set out below:

a. The channel will be broadcast digitally only.

b. The channel will broadcast only from 10:00 p.m. until 5:00 a.m. each day.

c. The channel will be offered and sold within the framework of a separate channel and it will not be included in existing or future packages…

d. For the purpose of purchasing the channel, a positive notice or consent of the subscriber will be required, and this will relate to the channel independently of any other channel or service or package.

e. The licensee will adopt reasonable measures in order to ensure that the age of the subscriber purchasing the channel is over 18.

f. The channel will be sold as a channel requiring payment… a separate payment will be charged for the channel…

g. The channel will be encoded and encrypted in such a way that only someone with a personal decryption code will be able to watch it. Each entry into the channel will be done by means of entering a secret code with at least four digits.

h. The licensee will include, in the course of the broadcasts of the channel, broadcasts that are at least 30 seconds long, explaining the prohibition against exposing children and adolescents to the channel, recommending the encryption of the channel in order to prevent it being watched by children and adolescents, and including a detailed and clear explanation of the way of blocking the channel and changing the secret code…

i. No previews will be broadcast for the channel on other channels and also no content will be presented in the electronic program guide (EPG)… including visual, verbal, textual or oral expressions of sex, including expressions as aforesaid that contain full or partial nudity, with regard to the channel.

j. The Council reserves the authority to order any reference to the names of programs to be deleted from the channel’s information strips that are broadcast to subscribers who have not bought the channel.’

The petitions in HCJ 5432/03 dated 18 June 2003 and HCJ 5477/03 dated 19 June 2003 (hereafter — the petitions) were filed against the second decision. The hearing of the petitions was joined on 26 June 2003.

The arguments of the parties

6. The petitioners argue that the interpretation that the Council gave to the law in its second decision is mistaken as to the intention of the proponents of the law and the intention of the legislature, which was to prohibit the broadcasts of the ‘Playboy’ channel. This, in their opinion, is reflected by the number of Knesset members who are petitioners. In the view of the petitioners, the interpretation in the first decision constituted a proper balance between the rights of the women who appear in the programs on the channel and women among the public, in general, to dignity, integrity of body, protection of their feelings, positive freedom and ‘active’ freedom of expression, and the rights and interests that conflict with these rights — freedom of property and occupation of the ‘pimps.’ The petitioners believe that it was actually the first decision that gave proper weight to the public interest and expressed social justice. Their position is that the pornographic and erotic industries, both softcore and hardcore — and they see no difference between them — are not entitled to the protection of freedom of expression, since in their opinion these are industries that treat women like a commercial object and fall within the scope of prostitution and obscenity. In addition they inculcate sexual discrimination in society, encourage physical and emotional attacks on women and even endanger public order. Consequently, ‘true freedom’ will come only from restraining the strong and from regulatory intervention in the market, as was done with regard to racism and slavery. In the view of the petitioners, the principle of proportionality allows, and even requires, the prevention of pornographic and erotic broadcasts, including broadcasts of the ‘Playboy’ channel, on cable TV and satellite. This is because of the accessibility of these media and because the television is a public resource supervised by the State.

According to the petitioners, the legislature chose to adopt the term ‘object’ which is derived in the context under discussion from radical feminism, and which is true to the teachings of Kant that regard every person as a purpose in himself, to the ‘Communist Manifesto’ of Karl Marx that opposes the ‘objectification’ of the workers (who can be compared to the slave element that remains among women), to the war against fascism and to the criticism of the school of Critical Legal Studies (CLS), and thereby to stand firm against the male capitalist outlook.

The argument of the petitioners is that the prohibition in the law, whose main purpose is to protect women, includes a depiction of women as available for sexual intercourse. It does not apply only to the explicit and complete depiction of sexual intercourse, and it is sufficient if the broadcast contains enough to allow male viewers to achieve sexual satisfaction in their homes. The fact that this channel does not also show male nudity makes it perhaps the ‘most discriminatory channel of all.’ According to the petitioners’ approach, it is even possible that the softer the pornography is, the stronger the objectification is.

The petitioners also have claims that are procedural in nature. First, they argue against the willingness of the Council to reconsider the first decision and the procedures of the reconsideration. According to them, holding a reconsideration, without justification, harmed stability and the public interest. Second, their argument is that the second decision of the Council was made in an underhand manner, without a proper factual and legal basis, without giving the petitioners a right to make additional arguments as required, and that the considerations of the Council were political, irrelevant and improper. They also claim that the chairperson of the Council, Adv. Inbar, was tainted by prejudice when she expressed in public her preconceived opinion that was formed before the decision was adopted by the Council.

7. The respondents, on the other hand, support the interpretation given to the law by the Council in the second decision. According to them, there is no clear subjective purpose of the legislature, and in any event the legislative history and the language and purpose of the law, from an overall perspective, support their interpretation. On the merits, the ‘Playboy’ channel does not, in their opinion, contain any degradation, violence or sexual intercourse with minors, and women are not presented as empty objects devoid of will. In any event, its broadcasts do not fall within the scope of the prohibition in the law and the scope of its main purpose, namely the protection of minors. Disqualifying the channel harms the freedom of expression, the freedom of occupation, the right to privacy and personal autonomy, and it will constitute discrimination in relation to other channels that have been approved and in relation to other media, such as video and the Internet, which broadcast similar and even more hardcore content. Disqualification of the channel will lead also to heavy losses and many redundancies, after the Playboy company and the satellite and cable TV companies relied on the concessions and the permits that they received and made huge investments. In the respondents’ opinion, the position of the public at large, many of whom watch the channel, should not be ignored. The ‘Yes’ company also said that, when interpreting the prohibition, weight should also be given to the fact that amendment 27 cancelled the transition provisions enacted in amendment 25 in order to protect its interests.

The respondents further argue with regard to the procedural claims of the petitioners that there was no impropriety in the Council’s reconsideration of its decision as a result of its concern that it was not consistent with the purpose of the law. This concern arose as a result of a proceeding before this court, the attitudes of the general public and the policy formulated by the Council with regard to other channels. In changing its decision, the Council took into account the fact that the reasonable reliance of any party should not be harmed. The respondents insist that there was also no impropriety in the proceedings in which the decision was made or in the conduct of Adv. Inbar.

Interpretation of the law

8. Amendment 27 provides as follows:

‘Prohibited broadcasts	6Y. A licensee for cable TV [and satellite (see s. 6BE of the law)] broadcasts shall not transmit any broadcasts —
	…
	(2) that contain any obscene material within the meaning thereof in the Penal Law, 5737-1977, including broadcasts involving one of the following:
	(1) A depiction of sexual intercourse that involves violence, abuse, humiliation, degradation or exploitation;
	(2) A depiction of sexual intercourse with a minor or with a person that appears to be a minor;
	(3) A depiction of a person or any part of a person as a sex object;
	all of which when the broadcasts listed in sub-paragraphs (1) to (3) do not have significant artistic, scientific, newsworthy, educational or explanatory value that justifies, in the circumstances of the case, their broadcast.

[Emphasis not in the original].

As stated above, of the various subsections the one that, in the opinion of the petitioners, prohibits the broadcasts of the ‘Playboy’ channel is the one prohibiting ‘a depiction of a person or any part of a person as a sex object.’

9. Indeed, the interpretation of this subsection, as well as the decision whether the broadcasts of the ‘Playboy’ channel fall within its scope, are likely to involve a degree of discretion. Nonetheless, the question of interpretation and the basic ‘factual’ question are legal questions. Although the legal authorities — the legal advisers of the Council and of course the Attorney-General — may indeed take into consideration the professional media evaluation of the members of the Council, such as with regard to the anticipated effect of the channel’s broadcasts, from the viewpoint of the State, the authority to interpret the law and to determine whether the prohibition in the law applies to a specific case falls to its legal advisers. See and cf. HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1], at p. 473. It is therefore difficult to accept the position of the Attorney-General that since the law, in his opinion, can be interpreted in various ways, the Council may decide in accordance with its discretion. The existence of various possible interpretations is the beginning of the professional interpretive procedure, not its end. The more difficult or complex a legal question of interpretation may be, and the greater the degree of discretion, expertise and professional experience involved in solving it, the more important it is that the decision of the State should be made by its competent authorities in the relevant field, namely the law. And in cases where there is a dispute on a legal question between the State (whose position on this matter, as aforesaid, is determined by its competent legal advisers) and another party, the dispute should be referred to the court for its determination.

In such cases, as well as in the case before us, even the judicial decision is not merely judicial review of the objectivity and reasonableness of the discretion that the authority exercised with regard to the legal question. The court must, within the framework of its primary function of interpreting the law, itself consider the question and decide it.

10. Turning to the issue, the interpretation of the law on which the second decision was based, according to which the depiction of sexual intercourse or content intended for sexual stimulation does not make a broadcast prohibited, is correct. This is the case both in view of the interpretive considerations concerning the specific law and also in view of more general constitutional considerations that reflect the basic principles of our legal system and that govern the interpretation of all laws.

Specific interpretive considerations

11. With regard to the considerations of the first kind, first, the interpretation of the Council is consistent with the internal logic of the section. The law itself refers to ‘obscenity’ according to the meaning thereof in the Penal Law, and the Communications Law itself, in s. 6AK, provides that the breaches of the prohibitions therein are criminal offences. In any case the interpretation of the provisions in the law should be made cautiously, with an awareness of the ramifications of the interpretation on the criminal liability. This is required also by the provisions of s. 34U of the Penal Law, which requires the matter to be decided ‘… in accordance with the interpretation that is most lenient to the person who is going to be held criminally liable under that law.’ Cf. the remarks of Justice Türkel in CrimA 4693/01 State of Israel v. Babizaib [2], at p. 586.

Second, the other subsections in the section require an express depiction of hardcore sexual intercourse or paedophilia. A broad interpretation of the subsection of ‘a depiction of a person or any part of a person as a sex object’ to include any depiction of sexual intercourse or content intended for sexual gratification is inconsistent with the serious content in the other subsections, for whose broadcast a similar sanction is prescribed, and it even renders them de facto redundant.

Third, we must take into account the change that the Knesset made to the current version as compared with the previous version, in amendment 25, in which s. 6Y said:

‘A licensee for cable TV broadcasts shall not transmit broadcasts —

…

(2A) [of]… a channel whose main broadcasts are sex broadcasts; for the purpose of this paragraph, ‘sex broadcasts’ — broadcasts of which a substantial part includes content concerning sex by way of depicting sexual intercourse or by way of depicting acts intended to arouse sexual gratification or which involve sexual humiliation or degradation or which depict a person as a sex object or as subject to physical or sexual abuse.

…’

(Emphases supplied).

The current version, which amended the version of amendment 25, omitted the phrases ‘… by way of depicting sexual intercourse or by way of depicting acts intended to arouse sexual gratification…’, which previously were associated with the prohibition of depicting ‘a person as a sex object.’ It follows from this that in the view of the Knesset, there is content that depicts sexual intercourse or acts intended to arouse sexual gratification that does not fall within the scope of the prohibition of ‘objectification.’

And fourth, the Classification, Marking and Prohibition of Damaging Broadcasts Law, 5761-2001, expressly states in s. 3(a)(4) that it applies to pornographic broadcasts, and thereby it recognizes the existence of a lawful possibility of broadcasting them.

Constitutional considerations — do pornographic broadcasts fall within the scope of a constitutional right?

12. The aforesaid outcome, according to which the law does not prohibit every depiction of sexual intercourse or content that is intended to arouse sexual gratification is also necessitated by the basic constitutional principles according to which the law should be interpreted. In this respect, it appears that pornographic broadcasts fall within the scope of at least two basic rights: freedom of expression and freedom of occupation.

In examining the right of freedom of expression the point of origin in our legal system is that every expression, whatever its content may be, is ‘covered’ by the constitutional protection. Indeed, ‘freedom of expression, as a constitutional right, applies to every expression. “Expression” in this context is any activity that seeks to transmit a message or meaning. It extends to political, literary or commercial expression… with regard to the scope of freedom of expression, we do not examine whether the expression is true or false; we do not examine its content; we do not examine its consequences’ (per President Barak in HCJ 4804/94 Station Film Ltd v. Film and Play Review Board [3], at p. 676 {34-35}). Indeed, we should adopt a broad approach in interpreting the scope of application of the constitutional right to freedom of expression, which does not require an examination of the content or a value judgment with regard to the specific expression. ‘The totality of freedom of expression is necessitated by its character and its nature’ (HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [4], at p. 11).

Pornographic and erotic expression (which are hereafter, for the sake of convenience, referred to jointly as ‘pornography’) — including also any description of a sexual act, whether softcore or hardcore, is not different in this context. See Station Film Ltd v. Film and Play Review Board [3], at p. 677 {37-38}. It is part of human creativity in modern times, furthers public debate and influences the positions of those who participate therein. Indeed, the petitioners themselves, who without doubt reflect important parts of society, are fighting against the damaging consequences of those positions that the pornographic content represents, and thereby they recognize de facto the expression inherent therein. As Judge Easterbrook said:

‘... this simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation. Pornography affects how people see the world, their fellows, and social relations’ (American Booksellers Ass’n, Inc. v. Hudnut (1985) [25], at p. 329).

13. This broad approach to the scope of the freedom of expression is especially appropriate in Israeli law, where the protection of freedom of expression, like all other basic rights, is not absolute. The broad interpretation of freedom of expression does not determine the balance between it and other rights and interests, but merely allows such a balance so that the deliberation focuses on the degree of protection afforded to the right. This question is considered on the basis of the purposes underlying the freedom of expression, which mostly concern the self-realization of human beings, furthering democracy and enriching the marketplace of ideas that contributes to discovery of the truth. See HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [5], at p. 876 {95}. In so far as the expression realizes these purposes more completely, the degree to which it is protected will increase. Thus, for example, the protection of political expression is broader than the protection of commercial expression, which is reflected in the balancing formula between it and the competing values and interests, since ‘everyone agrees that the boundaries of freedom of commercial expression, to which not all the reasons for freedom of expression are applicable, are narrower than the boundaries of freedom of political or artistic expression’ (HCJ 4644/00 Jaffora Tavori Ltd v. Second Television and Radio Authority [6], at p. 182).

Indeed, the social value of the expression in a pornographic creation is low, and in general it is an inferior medium for transmitting its messages and positions. Pornography is also likely to cause harm and damage, and therefore it sometimes needs the restraint of the criminal law. In this it is similar to racial expression, which is also included, at least in the opinion of the majority in this court, in the freedom of expression. See CrimA 2831/95 Alba v. State of Israel [7], at pp. 296-297. But the harm inherent in the expression does not as a rule exclude it from the scope of freedom of expression. Thus even the criminal prohibition on the publication and depiction of pornography which amounts to prohibited ‘obscenity’ (ss. 214, 214A of the Penal Law) must be interpreted narrowly and comply with the terms of the limitation clause (cf. HCJ 4541/94 Miller v. Minister of Defence [8], at p. 138 {231}; HCJ 5016/96 Horev v. Minister of Transport [9], at p. 41 {193}; Alba v. State of Israel [7], at p. 294). My conclusion, therefore, is that even pornographic expression falls within the scope of the basic right of freedom of expression.

It need not be said that the question whether freedom of expression is included in the rights set out in the Basic Law: Human Dignity and Liberty, with regard to which various opinions have been expressed by the justices of the court, does not require a decision or consideration in this proceeding.

14. Similarly, even the constitutional protection of freedom of occupation, which is enshrined in the Basic Law: Freedom of Occupation, gives its protection to the pornography industry. Section 3 of the Basic Law: Freedom of Occupation, states that ‘every citizen or resident of the State is entitled to engage in any occupation, profession or work.’ Indeed, in the renowned words of Justice S.Z. Cheshin, ‘… every man has the natural right to engage in the work or profession that he chooses for himself… [this is a right that] derives from the natural right of every person to seek sources of livelihood and to find for himself work that supports him’ (HCJ 1/49 Bajerno v. Minister of Police [10], at pp. 82-83). Including an activity within the right of freedom of occupation does not involve, as a rule, any judgment as to its content or morality, and any occupation — including an occupation in pornography — is covered by the freedom of occupation.

Constitutional consideration — protection of feelings

15. Opposing the aforesaid basic rights are several considerations that may conflict with them. One prominent consideration is the public interest requiring protection against an injury to feelings. For this purpose, the question is whether the injury is ‘grave, severe and serious’ (Horev v. Minister of Transport [9], at p. 51 {204}; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [11], at p. 523; HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [12], at p. 40 {253}. In the words of my colleague, the President:

‘… Only serious injuries to feelings justify a restriction of the freedom of speech and the freedom of creative expression. Indeed, in a democracy it should be recognized that there is a “level of tolerance” of injury to feelings, which the citizens of a democratic society must suffer, and which is implied by the principles of tolerance themselves. Only when the injury to feelings exceeds this “level of tolerance” is it possible to justify, in a democracy, a restriction of freedom of speech and freedom of creative expression…

…

… This level of tolerance is positioned very high, when the injury to feelings seeks to deny protection to the freedom of speech and the freedom of creative expression’ (HCJ 6126/94 Szenes v. Broadcasting Authority [13], at pp. 836-839 {360-364}).

This level of tolerance is normative. In considering the extent of the injury, one must take into account the nature and source of the injury. The examination does not focus on the extent of the personal suffering of the injured persons, but it is derived from the normative outlooks of society.

Thus, for example, religious feelings are given the relatively broadest protection in view of the special status of the freedom of religion. See, for example, Horev v. Minister of Transport [9], at p. 58 {211-212}. By contrast, an injury to feelings, even if it is acute and painful, which derives from a distorted or even untruthful depiction of events that occurred, is not given strong protection, since the basic values of our legal system require the development of tolerance and being able to stand firm against opposing and even untruthful views. Cf. HCJ 2888/97 Novik v. Second Television and Radio Authority [14].

In our case, I am prepared to assume that the mere broadcast of the ‘Playboy’ channel causes an injury to feelings. However, as a rule those persons who are exposed to the content of the channel are not a ‘captive audience.’ There is no obligation or necessity to watch the broadcasts; rather the opposite is the case — a positive and deliberate action is required in order to do so. In this situation, the level of protection against the injury decreases. As President Barak said:

‘The injuries to feelings that justify injury to rights… these are injuries whose occurrence cannot be prevented; usually these are injuries to feelings of a “captive audience” ’ (Horev v. Minister of Transport [9], at pp. 49-50 {203}).

And as Justice Or said, ibid., at p. 97:

‘The injury to the orthodox Jewish public also reflects the fact that members of the orthodox Jewish public who live there are a kind of “captive audience,” which is exposed against its will to activity which desecrates the Sabbath. Therefore, in principle, the right of the members of the orthodox Jewish public not to be injured in the aforesaid manner deserves consideration.’

The conclusion is therefore that the injury to feelings with regard to the existence of the broadcasts of the ‘Playboy’ channel in itself cannot justify an injury to the freedom of expression and the freedom of occupation that is not required by the clear language of the law.

Constitutional considerations — dignity of women

16. The essence of the right to dignity is protection against degradation. See Miller v. Minister of Defence [8], at p. 132 {224}. Notwithstanding, the question whether the dignity of women is harmed as a result of the broadcasts of an erotic or pornographic channel on cable TV or satellite is not a simple one, since there is fierce debate also on the question of the harm caused by the pornography industry as a whole. Those who support the imposition of wide-ranging prohibitions on all branches of the pornography industry constitute a broad and unique coalition of conservative and radical feminist groups, which also finds expression in the combination of the Knesset members among the petitioners before us. Opposed to these are liberal groups and also feminist groups who oppose intervention. These debates concern the nature of the rights in dispute and the harm to them, and also the effect of the pornography industry and its marketing policies on society and the public interest. See, for example: C.A. MacKinnon, ‘Pornography, Civil Rights, and Speech,’ 20 Harv. Civ. Rights-Civ. Lib. L. Rev. (1985) 1; R. Dworkin, ‘Liberty and Pornography,’ The Problem of Pornography (Belmont, ed. by S. Dwyer, 1995) 112; I. Nemes, ‘The Relationship Between Pornography and Sex Crimes,’ 20 J. Psych. & Law (1992) 459; C. Gilligan, In a different voice: Psychological theory and women's development, Cambridge, Massachusetts: Harvard University Press, 1982; N. Strossen, ‘A Feminist Critique of “The” Feminist Critique of Pornography,’ 79 Virginia L. Rev. (1993) 1099; R. Rivlin (under the supervision of M. Kremnitzer), Pornography: Morality, Liberty, Equality — A proposal to Amend the Prohibition against the Publication and Display of Obscenity and Associated Offences (2003), at p. 56.

Notwithstanding this debate concerning the pornography industry, I am also prepared to assume that pornographic broadcasts, including the broadcasts of the ‘Playboy’ channel, do indeed harm the dignity of women. Nonetheless, like the previous two rights, the right to dignity is also not an absolute right, and in any event this assumption leads to an examination of the constitutional balance between the right of women to dignity and the rights of freedom of speech and freedom of occupation.

The background to the constitutional balance — the existing reality

17. The constitutional balance must be made against the background of the prevailing social reality, which embodies the outlook of society as to what is permitted and what is forbidden. It cannot be overlooked that pornography is legal and available in a variety of media apart from cable TV and satellite, such as books and magazines, as well as video cassettes, CDs and DVDs, which are available not only in lending libraries but also at vending machines situated ‘under every leafy tree.’ Compare the remarks of Justice M. Cheshin in Station Film Ltd v. Film and Play Review Board [3], at p. 694 {64-65}. The Internet, to which there is very wide access, is especially prominent, and it allows easy access to pornographic content that is much more hardcore than that on the ‘Playboy’ channel. It appears that it is only a question of time until the convenience and availability of Internet content exceeds every other medium. In such circumstances, the harm to the dignity of women from the addition on cable TV and satellite of a single erotic or pornographic channel with relatively softcore content (or even the addition of more than one such channel) cannot be particularly serious.

In addition, a broad interpretation of the prohibition provided in the law, which deviates substantially from accepted social norms, will open the floodgates for the disqualification of much sexual content that is broadcast on the various television, cable and satellite channels. We must be cautious not to return to past eras of intensive censorship, which it is hard to reconcile with a democratic and open society that respects human rights.

The background to the constitutional balance — comparative law

18. As stated, there are 175 countries that permit the broadcasts of the ‘Playboy’ channel. There is therefore almost an ‘international consensus’ against imposing a prohibition on the ‘erotic’ pornographic content that this channel presents.

Thus, in the United States, the current test for distinguishing between the protected pornographic expression and the unprotected obscenity is the three-stage test set out in Miller v. California [26], at p. 24:

‘The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct… (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

…

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct.’

In Canada, the Supreme Court held that:

‘Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing...

Some segments of society would consider that all three categories of pornography cause harm to society... Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading or dehumanizing... That arbiter is the community as a whole’ (R. v. Butler [28], at p. 484).

This was explained by the Court of Appeal in the State of Ontario:

‘The depiction of persons engaged in purely sexual activity through the medium of videotape films has been recognized by the Supreme Court of Canada as a form of expression whose freedom is guaranteed...

Under the Butler test, not all material depicting adults engaged in sexually explicit acts which are degrading or dehumanizing will be found to be obscene. The material must also create a substantial risk of harm to society’ (R. v. Hawkins [29], at p. 566).

Thus it can be seen that in democratic legal systems from which we derive inspiration there is a recognition that different pornographic expressions must be distinguished according to their gravity, and only a limited portion of these expressions should be restricted as prohibited ‘obscenities.’

The constitutional balance — the vertical balance (proportionality) and the horizontal balance

19. Where a constitutional right conflicts with an interest that is not in itself a constitutional right, a need arises for proportionality, i.e., for vertical balancing. Proportionality involves ensuring that the harmful action is consistent with the purpose of the harm, choosing the action that causes the right a minimum of harm and ascertaining that the benefit in achieving the proper purpose is proportional to the harm caused to the right. See, for example: HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [15], at p. 423, and Horev v. Minister of Transport [9], at p. 64 {218-219}.

Unlike the limitation clause, which aims to minimize the harm caused by the interest to the right, in a conflict between rights we should aim to reduce the harm to the conflicting rights by means of a reciprocal concession. This is the horizontal balance. I discussed the distinction between a vertical balance and a horizontal balance in HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [16], at p. 284:

‘… The fundamental distinction between the two types of balance does not lie in the outcome of the balance in the sense of a mutual concession as opposed to a preference of one value over the other, but in its purpose, from which the criteria for the balance are derived. The vertical balance — which is applied when there is a conflict between a human right and a public interest — is intended to minimize, as much as possible, the harm to the right even when the public interest overrides it, whereas the horizontal balance — which is applied when one human right conflicts with another — is intended to reduce, as much as possible, the harm to each of the two rights.’

20. The interpretation of the Council is, in my opinion, a correct interpretation, since it realizes the required constitutional balances. It realizes the vertical balance in that the protection against the harm to feelings, which is not a basic right in itself and which reflects a public interest of limited weight, is achieved by a proportional restriction of the rights of freedom of expression and freedom of occupation. Thus there is no absolute prohibition of the broadcasts; only extreme content is prohibited, and within the framework of its discretion the Council imposed restrictions on the times when the channel may be broadcasted, the manner in which it may be marketed and sold, and the way in which people may be exposed to it.

This interpretation also realizes the horizontal balance, according to which the opposing rights yield, since Playboy, as well as the cable TV and satellite companies, cannot realize their right of freedom of expression and occupation fully, and at the same time the right to dignity withdraws, because the channel is not banned and it is allowed to broadcast relatively ‘mild’ content subject to the restrictions that we have mentioned.

From the general to the specific — the ‘Playboy’ channel

21. As the Council stated in its decision, which was based on the opinion of its experts, the broadcasts of the ‘Playboy’ channel should be classified into four categories: feature films or series; instructional programs that depict techniques for improving relationships or improving sex; documentaries, chat shows and entertainment programs on sexual subjects; programs that depict naked women outside the framework of a film or a series. In all of these, women are depicted ‘fully naked (but without close-ups of the sexual organs and without any pictures at all of male sexual organs),’ and the sex depicted is simulated only. Even the content of the tapes filed by the parties, including the petitioners, does not fall within the scope of the prohibition in the law, according to the narrow interpretation set out above.

In the classification of pornographic content, this content is relatively mild, and it does not amount to the prohibition of obscenity in the Penal Law. Cf. United States v. Playboy Ent. Gp. [27]. It is only natural that this is the conclusion of the 175 countries that permit the channel’s broadcasts, including, as aforesaid, many democratic countries whose legal system is similar to our own.

The procedural arguments

22. In view of the fact that the decision in this petition has a legal basis, and is not a judicial review of the ‘subjective’ discretion of the Council and its members, there is not much importance to the procedural arguments of the petitioners against the holding of the reconsideration and against the procedures and involvement of Adv. Inbar, since an administrative authority may in certain circumstances change decisions that it has made, and examine unlawful decisions, and the principles of ‘finality’ do not apply to such decisions (except in cases of estoppel or similar circumstances, which are irrelevant to this case). See, for example, I. Zamir, Administrative Power, vol. 2, Nevo, 1996, at p. 1004; HCJ 701/81 Malach v. Chairman of District Planning and Building Committee [17], at p. 6. In any case, the decision on the question of lawfulness, now that the matter has reached the courts, is made by the court — in a proceeding in which all the parties have been heard in full — and not by the Council.

Although not really required, it may also be said that from the evidence it appears that the contentions of the petitioners were heard to the extent required for making the decision, and that there was no defect in the proceedings held by the Council.

I propose therefore that the two petitions should be denied, without making an order for costs.

Vice-President T. Or

I agree with the opinion of my colleague, Justice Dorner, that the decision of the Council for Cable TV and Satellite Broadcasting, which is the subject of this petition and which permitted the broadcasts of the ‘Playboy’ channel, was lawful and did not breach any prohibition prescribed by law.

Justice E. Mazza

I agree with the opinion of my colleague Justice Dorner.

Justice A. Procaccia

I too agree with the opinion of my colleague Justice Dorner.

Justice E.E. Levy

I am disgusted by the content of the broadcasting channel in dispute, but in view of the importance of basic rights that are enshrined in statute and case law, and since a way has been found to prevent the channel from being accessible to everyone but rather only to persons who choose to watch it for payment, I am of the opinion that the outcome reached by my colleague Justice Dorner is inevitable.

Justice A. Grunis

I agree with the opinion of my colleague Justice Dorner.

Justice M. Cheshin

The Council for Cable TV and Satellite Broadcasting decided to permit the broadcast of the ‘Playboy’ channel on cable TV and satellite, and we have not found any proper reason to intervene in that decision and to prohibit what it has permitted. I agree with the conclusion reached by my colleague Justice Dorner that it is right and proper to deny the two petitions before us.

2. We are concerned with the interpretation of s. 6Y(2) of the Communications (Telecommunications and Broadcasting) Law (hereafter — the Communications Law), which states (after its amendment in 2002) as follows:

‘Prohibited broadcasts	6Y. A licensee for cable TV broadcasts shall not transmit any broadcasts —
	(1) …
	(2) that contain any obscene material within the meaning thereof in the Penal Law, 5737-1977, including broadcasts involving one of the following:
	(1) A depiction of sexual intercourse that involves violence, abuse, humiliation, degradation or exploitation;
	(2) A depiction of sexual intercourse with a minor or with a person that appears to be a minor;
	(3) A depiction of a person or any part of a person as a sex object;
	all of which when the broadcasts listed in sub-paragraphs (1) to (3) do not have significant artistic, scientific, newsworthy, educational or explanatory value that justifies, in the circumstances of the case, their broadcast;
	…

We see that all of the aforesaid broadcasts are prohibited broadcasts, including broadcasts involving:

‘A depiction of a person or any part of a person as a sex object.’

This formula that the law prescribes extends a net of prohibition, and the question under discussion is whether the ‘Playboy’ broadcasts are caught in the net or whether they slip through the holes in the net. Prima facie, nothing is simpler than the solution to the problem. We watch the ‘Playboy’ broadcasts; we place the prohibition formula next to them; we bring the two together, and the solution will present itself to us automatically, plain and simple. Is this really so?

3. We are currently considering a special kind of pornography, and we have long known that pornography is a matter of geography. Moreover it is not only a matter of geography but also of time and period. Pornography is dependent on time and place. The outlooks of society from time to time will decide the matter. Vox populi vox dei. The voice of the people is like the voice of God. I think that we can guess what a court in England would have decided in England in the Victorian era, or what a court would decide in a country where the spirit of Queen Victoria reigns. Were I a judge in the time of our father Abraham, I can but guess what I would decide; the same in the time of Ezra and Nehemiah; the same in the time of Rabbi Judah, President of the Sanhedrin; the same in the period of the second Aliya; the same in the Jewish settlement in Hebron at the beginning of the twentieth century. I am not sure whether at the end of the nineteen-forties — before the State was founded and in the early years of the State — the court would have decided as we are deciding today. And I am not referring to the constitutional winds that blow through the camp nowadays. I am referring to the voice of the people, in the simple sense of the phrase. Indeed, we are not concerned mainly with the interpretation of a law in the narrow sense; with the explanation, meaning and interpretation of language. We are also not concerned mainly with doctrines or basic principles that run through the law. Not at all. The net of the prohibition that the law spreads puts before us an ‘open tapestry,’ and the text of the prohibition will be filled with content that is found mainly in materials that come from beyond the precincts of the judiciary. It is incumbent upon us, the judges, to go out into the street, to literature, to poetry, to the press, to the radio and television, to day-to-day conversation.

Let us recall that in our time, not so very long ago, D.H. Lawrence’s book Lady Chatterley’s Lover was literally regarded as obscene literature, whereas today — today we think this absurd. In this regard it was said in Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [4], at p. 30:

‘Times come and go, social arrangements are transformed, the ways of people change, fashions come and go, and our time is not like times past… we are not like our fathers, our children are not like us, and our grandchildren are not like our children. Each generation has its own teachers, each generation has its own customs.’

And as our Rabbis told us: ‘Go, see how the people conduct themselves’ (Babylonian Talmud, Tractate Berachot 48a [30]). It need not be said that understanding the voice and conduct of the people is not always an easy task, for conflicting winds blow among us. But there is a prevailing wind, and there are breezes that are not so strong.

4. Contrary to the remarks of my colleague, the statement that pornographic expression is protected by freedom of expression — namely that freedom of expression also includes pornographic expression — is not a statement that is self-evident. Moreover, not only is this statement not self-evident, but I do not know how this applies to our present case. In paragraph 12 of her opinion, my colleague cites the remarks of President Barak in Station Film Ltd v. Film and Play Review Board [3], at p. 676 {34-35}; her own remarks in Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [4], at p. 11; in paragraph 13 she goes on to cite additional remarks written by President Barak in Alba v. State of Israel [7], at pp. 296-297. Her conclusion is (at the end of paragraph 13) that ‘even pornographic expression falls within the scope of the basic right of freedom of expression.’

I know of the rulings made in foreign countries, but I have difficulty in transposing them, as they are, from one legal system to another. In Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [4] I wrote the following (ibid., at p. 28): ‘I think that everyone agrees that not every vibration of the vocal chords, nor every grumbling of the stomach is entitled to the protection of the freedom of speech. The protection is not given to a vibration that a person makes in the air, even if that vibration has acquired a meaning in the dictionary as having a certain content. This is the case with sounds emerging from the human mouth — in the literal sense — and with every other method of expression, like a written publication;’ see also Station Film Ltd v. Film and Play Review Board [3], at pp. 690-691 {59-60}; Szenes v. Broadcasting Authority [13], at p. 865 {398}. I have difficulty, for example, in classifying racism, incitement, mutiny or pornography of the XXX variety as being inherently protected — even prima facie — by the freedom of expression. I also have difficulty in understanding the real and substantive significance — beyond the legal technique — of classifying these publications one way or the other.

I should emphasize that I agree that every person has a right of expression, in the fullest sense, as long as we are referring to a right that is a freedom or liberty; a freedom like the freedom of occupation was in Bajerno v. Minister of Police [10], which prevailed before the Basic Law: Freedom of Occupation was enacted. I also agree that every person has an interest in expressing himself in any way that he sees fit, provided that we add and realize that this interest is a part of the marketplace of interests, and it may conflict with a more elevated interest. The legal system is a marketplace of interests that are continually struggling with one another; sometimes the interests combine with one another, sometimes they cut into each other, and sometimes they conflict directly with each other. The interest of freedom of expression is like any other interest in this struggle of interests. Knowing all this, I have difficulty in accepting, for example, that pornography — especially hardcore pornography — racism, incitement, mutiny and other similar evils enter the struggle with other social interests with the crown of freedom of speech on their heads. I have not denied — nor will I deny — the interpretation that freedom of expression has an exalted status, which gives freedom of expression a special, additional strength when it conflicts with other social interests. Indeed, the interest of freedom of expression has acquired special additional strength — an internal substantive strength — and in many cases it will easily overcome those who wish to subdue it or detract from it. But in the final analysis, the light and warmth that emanate from it are what will determine the status of freedom of expression in the Israeli legal system.

Justice J. Türkel

1. I agree with the outcome that my honourable colleague Justice Dorner reached in her opinion, namely that the petitions should be denied. I disagree with her reasoning, and the following are some of my doubts and my reasons for explaining my position.

2. No-one disputes that the right of freedom of expression is one of the most exalted of human rights. I spoke of this in one case:

‘In my opinion, according to the criterion that has absolute freedom of expression at one end and its prohibition at the other, the point of balance should be established very close to the first end. In other words, we should adopt an approach that holds freedom of expression to be almost absolute’ (Alba v. State of Israel [7], at p. 331. See also CrimFH 8613/96 Jabarin v. State of Israel [18], at p. 211).

And in another case I added that:

‘Freedom of expression… is an integral part of our legal ethos, it stands in the vanguard of the freedoms on which our democracy is based, and it has a “place of honour in the sanctuary of basic human rights” (per President Barak in HCJ 153/83 Levy v. Southern District Commissioner of Police, at p. 398 {114})’ (HCJ 2753/03 Kirsch v. Chief of Staff, IDF [19], at p. 376).

I am not certain whether the scope of the right’s application is ‘universal,’ in the sense that it is ‘like water covering the sea’ (Isaiah 11, 9 [31]), or whether there are ‘islands’ that it does not cover (but cf. my remarks in Alba v. State of Israel [7], at pp. 334-335). There is also a basis for saying that pornographic expression — in words, hints or pictures — is such an ‘island’ that is not covered by that right, but even if pornographic expression is covered by the right of freedom of expression, it can be restricted (see the remarks of President Barak in Station Film Ltd v. Film and Play Review Board [3], at pp. 677-678 {37-38}). The question whether the conditions for such a restriction are fulfilled, and how they should be applied, should be considered separately.

3. One way or the other, deciding the question before us does not require this deliberation and the other clarifications and considerations that my colleague took into account. The Council for Cable TV and Satellite Broadcasting (hereafter — ‘the Council’) interpreted the wording of s. 6Y(2)(3) of the Communications (Telecommunications and Broadcasting) Law — ‘a depiction of a person or any part of a person as a sex object’ (hereafter — ‘the provision’) — as ‘applying to situations where a person is treated as an object or as a tool without a personality or will of its own, and not in every case in which a person is depicted in a way intended to arouse sexual gratification or a person is depicted in a sexual context.’ I have grave doubts as to whether this is the proper interpretation, but even if we interpret the provision as applicable to every case where a person is depicted in a sexual context, the Council has discretion as to how the provision is to be implemented, and according to its decision, ‘nothing in the broadcasts of the “Playboy” channel… amounts to broadcasts that are included within the framework of the prohibited broadcasts in section 6Y(2) of the Communications Law.’ There is no basis for intervening in this discretion for the reason that, according to the accepted rules of this court, the court will not replace the discretion of the administrative authority that has the duty of deciding the matter with its own discretion (see, inter alia: HCJ 92/56 Weiss v. Chairman and Members of the Legal Council [20]; CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [21]; FH 16/61 Registrar of Companies v. Kardosh [22]; HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [23]; HCJFH 4128/00 Director-General of Prime Minister’s Office v. Hoffman [24]; Kirsch v. Chief of Staff, IDF [19]; R. Har-Zahav, Israeli Administrative Law (1997), at p. 436).

Indeed, I also have doubts with regard to the Council’s decision in so far as the implementation of the provision is concerned. There is a basis for saying that ‘programs that depict naked women outside the framework of a film or a series’ as well as photographs that depict women ‘fully naked (but without close-ups of the sexual organs and without any pictures at all of male sexual organs)’ — as the Council described the broadcasts of the ‘Playboy’ channel — fall within the scope of ‘a depiction of a person or any part of a person as a sex object.’ Such programs and photographs involve an injury to the feelings of many women and men among the public and also to the dignity of women and even to the dignity of men, and this can be seen from the petitions and the personalities of those men and women who backed them. As stated above, this is insufficient for intervention in the decision of the Council, and there is even less basis for intervention when in its decision the Council imposed restrictions on the broadcasts of the ‘Playboy’ channel that make the channel’s broadcasts a private matter (‘The channel will broadcast only from 10:00 p.m. until 5:00 a.m. each day; the channel will be offered and sold within the framework of a separate channel…; for the purpose of purchasing the channel, a positive notice or consent of the subscriber will be required…; the licensee will adopt reasonable measures in order to ensure that the age of the subscriber purchasing the channel is over 18; the channel will be sold as a channel requiring payment…; the channel will be encoded and encrypted…’).

4. Therefore I too have decided that the petitions should be denied.

Justice D. Beinisch

Like my colleague Justice Dorner, I too agree with the determination that pornographic expression is protected by the freedom of expression. In her opinion, Justice Dorner assumed that the right of women to dignity is harmed by the pornography industry and various expressions of pornography, but she came to the conclusion, in which I join, that in so far as the matter before us is concerned — the broadcasts of the ‘Playboy’ channel — the proper balance between the rights is maintained. I join also in the determination that the interpretation given by the Council for Cable TV and Satellite Broadcasting to the provisions of the law and the restrictions that the Council determined for the purpose of implementing it are correct and comply with the interpretive tests in the constitutional spirit required by the nature of the rights placed on the two pans of the balance.

I will point out only that the question of the scope of the protection that should be given to pornographic expression is a complex question that does not require a decision in the case before us. The degree of legitimacy or protection that should be given to pornographic expression and the question what is pornographic expression have engaged the courts in various countries whose legal systems are similar to ours, and they have provided material for many academic articles, and this too was discussed by my colleague in her comprehensive opinion. It may be assumed that this question will return to engage us in the future, and it will be decided in each case according to the specific circumstances.

Justice E. Rivlin

I agree with the opinion of my colleague Justice Dorner and all its reasoning. I disagree with the remarks of my colleague Justice M. Cheshin, who has difficulty in classifying certain publications within the scope of freedom of expression. In this sense I disagree also with the reservation expressed by my colleague Justice Türkel. In this matter it has been held by this court, more than once, that freedom of expression, as a constitutional right, extends to every expression, whatever its content, whatever its effect, and however it is expressed (per Justice Barak in Universal City Studios Inc. v. Film and Play Review Board [12]. and in Station Film Ltd v. Film and Play Review Board [3], at p. 676 {35-36}). The freedom of expression extends also to expression whose content is pornography (ibid., at p. 677 {36-38}). Indeed, recognizing the fact that every expression is protected by the freedom of expression does not guarantee absolute protection for every expression. The scope of the protection of freedom of expression in each case is the result of an ethical balance. In the case before us, the interpretation given by Justice Dorner to the law reflects the proper ethical balances.

President A. Barak

I agree with the opinion of my colleague, Justice Dorner, and the remarks of my colleagues Justices Rivlin and Beinisch.

Petitions denied.

10 Adar 5764.

3 March 2004.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/03/320/054/L14/03054320.l14.pdf

Schnitzer v. Chief Military Censor

Case/docket number:

HCJ 680/88

Date Decided:

Tuesday, January 10, 1989

Decision Type:

Original

Topics:

Abstract:

The Petitioners sought to publish a newspaper article that was critical of the outgoing head of the Mossad, the Agency for Intelligence and Special Duties, on the occasion of the forthcoming appointment of a new Mossad head. The article did not mention his name or otherwise identify him. After several versions of the article were submitted for approval to the first Respondent, the Chief Military Censor, and after the Petitioners agreed not to publish certain parts of the article, the Censor forbade the publication of two matters: criticism of the head of the Mossad's effectiveness, on the ground that such criticism would affect adversely the Mossad's ability to function in general in the field of security policy; and disclosure of the impending change in leadership of the Mossad, on the ground that this could focus attention on the head of the Mossad and endanger his safety. The Chief Military Censor purported to act pursuant to authority vested in him by the Defence (Emergency) Regulations, 1945. The Petitioners sought the issuance of a rule nisi, directing the Respondents to show cause why they should not be restrained from interfering with the publication of the article, including the forbidden matter. The High Court considered the substantive issues raised by the case as if an order nisi had been granted and issued an order permitting publication of the article in the above respects, holding:

1. Although the Defence Regulations were promulgated by the Mandatory regime, they are now part of Israeli legislation and should be interpreted in harmony with Israeli democratic values. Such values give prominence to freedom of expression and freedom of the press.

2. The scope of judicial review of "subjective discretion" does not differ from the review of any other discretion. All administrative discretion must be exercised lawfully, that is: within the authority granted by the law granting discretion, for the purpose envisioned by the grant, reasonably, in good faith, on the basis of evidence reasonably evaluated, after giving due consideration of and balancing the other values involved.

3. The values to be balanced in this matter are state security and freedom of the press. There can be no effective exercise of freedom of expression without security. But free expression and public debate contribute to state security as part of the system of checks and balances.

4. Free expression may not be curtailed unless there is a near certainty that the publication will cause substantial and grave harm to security. This is especially so in the case of a prior restraint on the publication.

5. The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

Voting Justices:

Schnitzer v. Chief Military Censor.pdf

Primary Author

majority opinion

Malz, Yaakov

majority opinion

Wallenstein, Shulamit

majority opinion

Full text of the opinion:

HCJ 680/88

1. Meir Schnitzer

2. Aluf Ben, a Journalist

3. Itonut Mekomit Ltd.

1. The Chief Military Censor, Mr. Yitzchak Shani

2. The Minister of Defense

The Supreme Court sitting as the High Court of Justice

[January 10, 1989]

Before Barak J., Maltz J., and Wallenstein J.

Editor's Synopsis:

5. The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

Supreme Court Cases Cited:

[1] H.C. 5/48 Leon v. The Acting Supervisor of the Tel Aviv Municipal Area, 1 P.D. 58.

[2] H.C. 222/68 Nationalist Groups, A Registered Association v. The Minister of the Police, 24 (2) P.D. 141.

[3] H.C. 107/52 Assad v. The Chief of Staff of the Armed Forces, 6 P.D. 339.

[4] F.H. 29/84 Kossoi v. Feuchtwanger Bank, 38 (4) P.D. 505.

[5] Cr. A. 667/83 Borochov v. Yeffet, 39 (3) P.D. 205.

[6] H.C. 953/87 Poraz v. The Mayor of Tel Aviv-Jaffa, 42 (2) P.D. 309.

[7] H.C. 73/53 "Kol Ha-Am" Company Ltd. v. The Minister of the Interior, 7 P.D. 871.

[8] H.C. 58/68 Shalit v. The Minister of the Interiorr, 23 (2) P.D. 477.

[9] C.A. 165/82 Kibbutz Hazor v. Revenue Agent Rehovot, 39 (2) P.D. 70.

[10] E1. A. 2/84 Neiman v. The Chairman of the Elections Committee for the Eleventh Knesset, 39 (2) P.D. 225 (also reported in 8 Selected Judgments xxx).

[11] C.A. 65/57 HaEtsni v. Ben Gurion, 11 P.D. 403.

[12] C.A. 81/55 Kochavi v. Baker, 11 P.D. 225.

[13] Cr. A. 108/66 "Dan" Cooperative for Public Transportation Ltd. v. The Attorney General, 20 (4) P.D. 253.

[14]H.C. 262/62 Peretz. v. The Kfar shmaryahu Local Council, 16 P.D. 2101.

[15] H.C. 301/63 Shitreet v. The Chief Rabbi of Israel, 18 P.D. 598.

[16] H.C. 243/62 Israel Movie Studios Ltd. v. Greg, 16 P.D. 2407.

[17]H.C. 39/64 EI-Ard Company Ltd. v. The Supervisor of the Northern Region, Nazareth, 18 P.D. 340.

[18] H.C. 153/83 Levy v. The Police Commander of the Southern District, 38 (2) P.D. 393.

[19] H.C. 14/86 Laor v. The Council for Review of Movies and Plays, 41 (1) P.D. 421.

[20] H.C. 644/81 Omer International Inc. New York v. The Minister of the Interior, 36 (1) P.D. 227.

[21] H.C. 355/79 Katalan v. The Prisons Service, 34 (3) P.D. 294.

[22] H.C. 234/84 "Chadashot" Ltd. v. The Minister of Defense, 38 (2)

P.D. 477.

[23] Cr. A. 126/62 Dissenchik v. The Attorney General, 17 P.D. 169.

[24] Cr. A. 696/80 Azulai v. The State of Israel, 37 (2) P.D. 565.

[25] H.C. 253/64 Jerris v. The Supervisor of the Haifa District, 18 (4)

P.D. 673.

[26] H.C. 448/85 Daher v. The Minister of the Interior, 40 (2) P.D. 701.

[27] H.C. 399/85 Kahane v. The Managing Board of the Broadcasting Authority, 41 (3) P.D. 255.

[28] Cr. A. 255/68 The State of Israel. v. Ben Moshe, 22 (2) P.D. 427.

[29] H.C. 372/84 Klopper-Naveh v. The Minister of Education and Culture, 38 (3) P.D. 233.

[30] C.A. 723/74 "Ha'aretz" Newspaper Publication Ltd. v. The Israel Electric Company Ltd., 31 (2) P.D. 281.

[31] H.C. 1/81 Shiran v. The Broadcasting Authority, 35 (3) P.D.365. [32] H.C. 243/82 Zichroni v. The Managing Board of the Broadcasting Authority, 37 (1) P.D. 757.

[33] H.C. 554/81 Bransa v. The Military Commander of the Central District, 36 (4) P.D. 247.

[34] H.C. 292/83 Temple Mount Loyalists, A Company v. The Police Commander of the Jerusalem Region, 38 (2) P.D. 449.

[35] S.S.A. 5/86 Spiro v. State Services Commissioner, 40 (4) P.D. 227.

[36] H.C. 259/84 Israeli Institute for the Selected Business and Product v. The Broadcasting Authority, 38 (2) P.D. 673.

[37] H.C. 562/86 Al Hatib v. The Ministry of the Interior Supervisor of the Jerusalem District, 40 (3) P.D. 657.

[38] Cr. A. 495/69 Omer v. The State of Israel, 24 (1) P. D. 408.

[39] F.H. 16/61 The Registrar of Companies v. Cardush, 16 P.D.1209.

[40] H.C. 241/60 Cardush v.The Registrar of Companies, 15 P.D. 1151.

[41] H.C. 742/84 Kahane v. The Speaker of the Knesset, 39 (4) P.D. 85.

[42] H.C. 389/80 Yellow Pages Ltd. v. The Broadcasting Authority, 35 (l) P.D. 421.

[43] H.C. 910/86 Ressler v. The Minister of Defense, 42 (2) P.D. 441.

[44] H.C. 442/71 Lanski, v. The Minister of the Interior, 26 (2) P.D. 337.

[45] H.C. 361/82 Hamry v. The Military Commander of the Judea and Samaria Area, 36 (3) P.D. 439.

[46] H.C. 56/76 Berman v. The Commissioner of Police, 31 (2) P.D. 587.

[47] H.C. 159/84 Shahin v. The Commander of the I.D.F. Forces in the Gaza Strip Area, 39 (1) P.D. 309.

[48] H.C. 46/50 Alayubi v. The Minister of Defense, 4 P.D. 222.

[49] H.C. 731/86 Micro Daf v. The Israel Electric Company Ltd., 41 (2) P.D. 449.

[50] H.C. 393/82 G'amaut Aschan Alm'almun Alta'unia Almahaduda Almasaulia, A Cooperative Association Legally Registered in the Command Headquarters for the Judea and Samaria Area v. The Commander of the I.D.F. Forces in the Judea and Samaria Area, 37 (4) P.D. 785.

[51] H.C. 329/81 Nof v; The Attorney General, 37 (4) P.D. 326.

[52] H.C. 292/86 HaEtsni v. The State of Israel, 42 (4) P.D. 406.

[53] H.C. 541/83 Asli v. The Supervisor of the Jerusalem District, 37 (4) P.D. 837.

[54] H.C. 2/79 Al Assad v. The Minister of the Interior, 34 (1) P.D. 505.

[55] H.C. 488/83 Bransy v. The Director of the Department for Visas and Citizenship, 37 (3) P.D. 722.

[56] H.C. 306/81 Sharon v. The Knesset Committee, 35 (4) P.D. 118.

[57] H.C. 731/85 The "Kach" Part v. The Speaker of the Knesset, 39 (3) P.D. 141.

American Cases Cited:

[58] United States v. Progressive, Inc., 467 F. Supp. 990 (1973).

[59] New York Times Co. v.. United States, 403 U.S. 713 (1971).

[60] Near v. Minnesota, 283 U.S. 697 (1931).

English Cases Cited:

[61] Liversidge v. Anderson [1941] 3 A11 E.R. 338 (H.L.).

[62] Nakkuda v. M.F. De S. Jayaratne [1951] A.C. 66 (P.C.).

[63] Ridge v. Baldwin [1964] A.C. 40.

[64] Reg. v. I.R.C. Ex p. Rossminister Ltd. [1980] A.C. 952.

JUDGMENT

Barak, J.:

What is the authority of the "Military Censor", acting pursuant to the Defence (Emergency) Regulations, 1945, to bar publication of a newspaper article that criticizes the functioning of the head of the Agency for Intelligence and Special Duties (the Mossad), while noting that the occasion for such criticism is his impending replacement - that is the question which is at the center of the petition before us.

The Petition

1. A daily newspaper called "Ha-Ir" is published in Tel Aviv by the third Petitioner. Mr. Shnitzer, the first Petitioner, is its editor. Aluf Ben (the second Petitioner) is a journalist employed by this newspaper. He prepared an article about the forthcoming changes in the leadership of the Mossad. The article was sent to the Chief Military Censor (the first Respondent) and was disqualified by him (on 3.8.88). The reason given for prohibiting publication of the article was that its publication would prejudice the security of the State. Several days later (11.8.88) the editor submitted to the Censor a different version of the article. This new version was also disqualified on the same grounds of state security. The Censor asked the newspaper to resubmit the article, and this was done (on 14.8.88), this time containing references to persons by name. This version was disapproved for publication (on 15.8.88). Several days later (on 23.8.88), the article was submitted to the Censor in its final form. The Censor approved its publication, save for 32 paragraphs whose publication was prohibited. The petition was brought against this decision.

2. The selections whose publication was prohibited deal with three

matters: First, a description of the head of the Mossad. In the Censor's opinion, these portions could lead to his identification and thus prejudice his personal safety. Second, adverse criticism of the functioning of the head of the Mossad, including on grounds of inefficiency, which did not disclose events which had not previously been revealed. In the Censor's opinion, this criticism of the head of the Mossad would injure the Mossad's ability to function at all levels. In particular, it could harm state security insofar as contacts with parallel agencies in other countries are concerned, as well as with local field operatives. Third, publication of the expected change in the head of the Mossad. In the Censor's opinion, this would focus the attention of those interested in such matters on his person, his movements and his activities, and thereby lead to his identification, particularly abroad, which could cause substantial risk to his safety.

3. Mr. Lieblich, the Petitioners' representative, agreed that all references to the identity of the head of the Mossad should be deleted, and this is no longer an issue before us. On the other hand, it is his opinion that the two other matters - criticism of the functioning of the head of the Mossad and the date of his replacement - should be published and were unlawfully disqualified. Mr. Lieblich emphasized the importance of freedom of expression and the public's right to be informed in a democratic regime. In his opinion, only when there exists a near certainty of prejudice to the security of the State may the Military Censor prohibit publication, and even then he must act reasonably. According to Mr. Lieblich, the publication of criticism of the head of the Mossad and the date of his replacement do not create a near certainty that state security will be prejudiced and the ban on their publication was not reasonable. In his arguments before us Mr. Lieblich stressed the public importance of the position of head of the Mossad - particularly after the Yom Kippur War - and the vital necessity that the most suitable man be appointed to this task. It was, therefore, (according to him) the Petitioners' duty to admonish and arouse those responsible so that the appointment of a new head of the Mossad would be properly weighed, and that it would not be influenced by politics, or by partisan conflicts or by an attempt to compromise by -appointing a mediocre person. Mr. Lieblich emphasized before us that the Petitioners did not mention any names in the article and did not recommend any candidates. Their intention is only to stress the duty to appoint suitable persons so that previous instances of negligence would not be repeated. Mr. Lieblich agrees that the operations of the intelligence services should be secret and protected against publication, but there is no justification, in his opinion, to prohibit publication of criticism of the head of the Mossad. Such public criticism could even result in extra vigilance on his part. Finally, Mr. Lieblich emphasized that it is permissible to publish information concerning the expected appointment of the head of the General Security Services, and there are no grounds to distinguish between him and the head of the Mossad. He also drew attention to an article published in September 1987, which the first respondent had allowed, in which reference was made to the growing agitation in Mossad circles over the appointment of the next head of the Mossad. Mr. Lieblich also pointed out that the Military Censor does not ban publications criticizing the head of the General Security Services, the head of Military Intelligence and the Chief of Staff. In his opinion, there should be one criterion, insofar as public criticism is concerned, for all heads of security organizations.

4. In her reply, Mrs. Arad, who appeared for the respondents, noted that the Military Censor agrees that the right of expression and freedom of expression are basic principles of our system of law which should be honored. This premise has always guided his considerations. Furthermore, the Military Censor accepts the fact that the proper test to be applied in reviewing his powers is that of the near certainty that the publication would prejudice the security of the State. He also agrees that he must act reasonably. However, Mrs. Arad argued, the publication of criticism of the head of the Mossad and of his impending replacement create a near certainty that the security of the State will be harmed, and the prohibition of such publication was reasonable. We have already noted the Military Censor's reasons for his decision to forbid the publication. Mrs. Arad noted that the Military Censor did not prohibit publication of those parts of the article which criticized the Mossad and its functioning in general. He only censored criticism of the outgoing head of the Mossad. The reason for this was, as already noted, that, as long as the head of the Mossad remains in office, any references to the performance of his functions could prejudice the security of the State. She argued that there is a difference between criticism of the head of the Mossad and criticism of the heads of other security services, in light of the exceptional nature of the Mossad's work. Thus, for example, according to present practice, announcement by the Government of the appointment of a new head of the Mossad is not accompanied by announcement of his name, while publication of his retirement is permitted together with publication of his identity for the first time. This practice is not followed in the case of the heads of other security services. Mrs. Arad added that there is public control over the appointment of the head of the Mossad, as he is appointed by the Prime Minister and functions under the control of the Prime Minister, the Government, the Foreign Affairs and Security Committee of the Knesset, the Knesset and the State Comptroller.

5. During the course of the proceedings, the "battle lines" between the parties were narrowed. The Censor withdrew his ban with respect to eight of the thirty-two paragraphs which he had previously censored; and the Petitioners agreed, of their own accord, to remove six of the remaining paragraphs. The dispute concerns, then, the remaining eighteen paragraphs, which concentrate on criticism of the functioning of the outgoing head of the Mossad and on his forthcoming replacement. The question before us is, therefore, whether the Censor's approach in these matters is lawful.

The Normative Framework

6. The "military censorship" exists by virtue of the Defence (Emergency) Regulations - henceforth the Defence Regulations. Chapter 8 of these Regulations deals with censorship. Regulation 87 (1) provides that:

"The Censor may by order prohibit generally or specially the publishing of matters the publishing of which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order."

The Censor is also empowered to demand that material be submitted for censorship before publication (Regulation 97). Publication of material whose publication was banned is an offense against the Defence Regulations. The Censor was appointed by the High Commissioner whose powers have now been assigned to the Minister of Defence. The Censor is an Army officer, and censorship pursuant to Chapter 8 of the Defence Regulations is performed within the framework of the Army. Hence the term "Military Censor". It should be noted that in actual fact the Military Censor's powers are not exercised with respect to those newspapers which are parties to the agreement between the Editors' Committee and the Minister of Defence (for particulars of that agreement, see Z. Chafets, "Press and Government in Israel", 14 Israel Yearbook on Human Rights (1984) 134; P. Lahav, "Press Law in Modem Democracies" (New York 1985) 265, 275). The newspaper "Ha-Ir" is not a member of the Editors' Committee and is not a party to the agreement with the Military Censor. The legality of the Censor's actions will therefore be examined directly on the basis of the Defence Regulations without any reference to the agreement with the Editors' Committee.

7. In the context of the petition before us, the provisions of the Defence Regulations which deal with military censorship give rise to four questions: first, in what circumstances may the Military Censor prohibit publications in newspapers on the grounds of prejudice to the defense of the State or to the public safety or order; second, what are the limitations imposed on the Military Censor's exercise of his discretion; third, what is the scope of judicial review of the Military Censor's decisions; and fourth, does the Military Censor's decision in this case satisfy the appropriate tests and is there room for our intervention in his decision. I shall deal with these questions one by one.

The first question: Circumstances in which publication may be prohibited

8. The Defence Regulations were enacted by the High Commissioner pursuant to the powers vested in him by Article 6 of the Palestine Order-in-Council (Defence), of 1937. These Regulations are, therefore, part of the Mandatory legislation. However, pursuant to section 11 of the Law and Administration Ordinance, 1948, they became part of Israeli law. This change from Mandatory law to Israeli law was not a purely technical matter. A change in the framework brings in its wake, by the nature of things, a change in content. Section 11 of the Law and Administration Ordinance provides that the law which existed in Palestine on May 15, 1948, remains in force subject to "such modifications as may result from the establishment of the State and its authorities". Initially, this court held that such modifications were of a technical nature only (H.C. 5/48 [1], at p. 69). Later, it was held that such "modifications" are not of a technical nature only but also substantive (H.C. 222/68 [2]). Justice Silberg held, at pages 157-158 of the latter judgment, with reference to the technical approach of H.C. 5/48:

"With all due respect to the learned Justices, I am not convinced that the formal interpretation which they gave to these words is correct. I think there would be something of a "capitis diminutio" (diminution in value) of the great historical event - the creation of a Jewish State in Eretz Israel, if we were to say that the legislative change, after 2000 years of exile and after the establishment of our independent State, was for us, for example, merely that change in borders, in 1948, because of which the Allenby Bridge had to be removed from the list of 'lawful' points of entry into the country, published in 1943.... I admit without any shame that I am unable to grasp this idea. My heart is with those 'maximalists' who regard our national independence as the longed-for redemption, the third Temple, the rehabilitation of the nation's existence. And if this is the nature of our independence then it is possible, in principle, to examine the heartbeat of every Mandatory law in order to discover whether it complies with the spirit imbuing the laws of our independent and free state."

A colonial regime was replaced by political independence. Autocratic rule was replaced by democracy, which is the government of the people, based on representation, operating according to the will of the majority, but upholding the rights of the individual. This change, in the natural course of events, brings in its wake a new approach to law and to judicature. The results of this change vary with the circumstances. Sometimes, the change is purely technical (see H.C. 107/52 [3]). On other occasions it is of considerable substance, resulting in the exclusion of Mandatory legislation from Israeli law (see H.C. 228/68 [2]). This would happen only on rare occasions, and has become even rarer with the passage of time (see H.C. 228/68 [2], at p. 209).

9. One of the changes that may result from the establishment of the State and its authorities is the manner of interpreting Mandatory legislation.

"... [T]he last part of section 11 emphasizes principally the fact that political independence also brings in its wake changes in the scope of law and its interpretation. Wherever it was necessary, therefore, the basis for independent interpretation of the law and the independent crystallization of rules was created by statute." (President Shamgar in F.H. 29/84 [4], at p. 511.)

This change in the interpretation of Mandatory law is twofold. First, Mandatory legislation is not interpreted according to the rules of interpretation current during Mandatory times, but according to the rules of interpretation followed in Israel. Second, legislation is interpreted against the background of the basic principles of the legal system (see Cr. A. 667/83 [5] and H.C. 953/87 [6]). Mandatory legislation will not be interpreted against the background of the basic principles of the system of law that prevailed during the Mandate, but against the background of the basic principles of the system of law that operates in Israel. Justice Agranat noted this point in H.C. 73/53 [7], at p. 884, when he said:

"The system of laws on which the political institutions in Israel were established and now operate testifies to the fact that this is a country whose foundations are democratic. Likewise, the statements contained in the Declaration of Independence - in particular concerning the fact that the State is based on 'the foundations of freedom' and the guarantee of freedom of conscience - indicate that Israel is a freedom-loving country. It is true that the Declaration of Independence 'is not a constitutive law which lays down norms concerning the validity or invalidity of other legislation' ... but to the extent to which it 'expresses the people's aspirations and their beliefs' it is our duty to give heed to its contents when seeking to interpret and give meaning to the laws of the State, including laws enacted during the Mandate and which were adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948. It is a well-known axiom that a people's laws are mirrored in their national way of life."

A legal norm - whether enacted or created by the judiciary - does not stand on its own. It is a "creation which lives in its environment" (Justice Sussman, in H.C. 58/68 [8], at p. 513). It fits into its environment, influences it and is influenced by it. The "legal environment" which influences every legal norm "includes not only the immediate legislative context but also wider circles of accepted principles, basic aims and fundamental criteria which derive, in the words of President Landau, from 'the sources of social consciousness of the nation within which the judges live'.... It is not necessary to repeat these principles in every law; they constitute a kind of 'normative umbrella' over all legislation" (C.A. 165/82 [9], at p. 75).

"A legislative act ... is not a one-time act cut off from the general way of life. The law takes on substance within the framework of a given legal and political system. It is one brick in an entire edifice, built on the basis of criteria of government and law which constitute the 'primary concepts of that society'...." ( E1. A. 32/84 [10], at p. 307).

Therefore, a judicial norm which constituted part of the Mandatory law is absorbed into our law if it is not inconsistent with "the principles of the legal structure of our country" (Justice Landau in C.A. 65/57 [1l], at p. 409), and it continues to develop within the Israeli law against the background of the principles of that law. Its image is determined by its new environment (see C.A.81/85 [12], at p. 236). The same holds for a legislative norm which constituted part of Mandatory legislation. This nom] was absorbed into our law and if it proves to be consistent with the basic principles of our legal structure it continues to develop within Israeli law against the background of those basic principles. This is the source of the striving for "legislative harmony" (in Justice Sussman's words in Cr. A. 108/66 [13], at p. 261). Different acts of legislation, whether their historical source be Mandatory or our own independent legislation, must be interpreted together and operate as a comprehensive system (H.C. 953/87 [6], at p. 328). The nature of the basic principles can be learned from different sources, one of the most important of which is the Declaration of Independence, "which constitutes a legal charter that expresses the nation's values" (H.C. 953/87 [6], at p. 330). Justice Sussman emphasized this when he pointed out that "the way of life of the citizens of the state and the principles which every authority in the state must take as their guiding light are laid down" in the Declaration of independence (H.C. 262/62 [14], at p. 2116).

The Declaration of Independence is not the only source from which one can learn about the basic values of the state. For example, the Supreme Court refers from time to time to the "basic principles of equality, freedom and justice, which are the legacy of all advanced and enlightened states" (Justice Cohen in H.C. 301/63 [15], at p. 612) and to "basic rights which are not recorded in texts, but emanate directly from the character of our state as democratic and freedom-loving" (Justice Landau in H.C. 243/62 [16], at p. 2414).

10. The Defence Regulations were enacted by a colonial legislature and not by a democratic one. It was contended, after the establishment of the State of Israel, that their continued enforcement was not consistent with the changes resulting from the establishment of a democratic state. This argument was rejected by the Supreme Court (in H.C. 5/48 [l] and H.C. 39/64 [17]). Several unsuccessful attempts were made in the Knesset to abrogate them entirely (see A. Rubinstein, The Constitutional Law of Israel (3d ed. 1981) 219). But the Israeli legislature saw fit to repeal certain sections of the Regulations and to replace them with original Israeli provisions (see, for example, the Emergency Powers (Arrests) Law, 1979). These legislative changes did not affect the powers of the Military Censor. Chapter 8 of the Emergency Regulations, which deals with military censorship, has therefore remained in force in Israel. However, the interpretation of the Defence Regulations must perforce differ in Israel from that given to them during the Mandate. The Defence Regulations are today part of the legislation of a democratic state. They must be interpreted against the background of the basic principles of Israeli law. The Supreme Court has acted in this manner with respect to a long list of Mandatory laws, such as the Police Ordinance [New version] 1971, (see H.C.153/83 [18]), the Cinema Ordinance (H.C. 243/62 [19]), the Public Entertainments (Censorship) Ordinance (H.C. 14/86 [19]), the Newspaper Ordinance (H.C. 73/53 [7]; H.C. 644/81 [20]), the Prisons Ordinance [New Version] 1971 (H.C. 355/79 [21]).

The same applies to the interpretation of the Defence Regulations. Justice Elon so remarked (in H.C. 234/84 [22], at p. 483):

"The Mandatory Defence Regulations of 1945 do not always meet with our approval and we are of the opinion that they should be interpreted narrowly, as long as this is compatible with their wording, so as to make them consistent with the democratic principles on which the State of Israel is founded."

It is true that the Defence Regulations deal with the security of the State, which influences the manner in which the basic principles of our system of law are applied to them. But this has no influence on the question whether these principles should be applied or not. Every legislative act - whether it originated during the Mandate or is purely Israeli, whether it deals with the security of the State or otherwise - must be interpreted against the background of the general principles of our system of law. State security and public order do not supplant and negate the application of basic values. They are interwoven with them, influence their nature and are balanced within their framework.

11. What are the basic values which shape the interpretation of the Defence Regulations? First and foremost come security considerations, which spread their influence across the entire scope of the Regulations. The realization of this interest concerning the defense of the State and public safety and order is the main purpose of the Regulations and they must be interpreted against the background of this purpose (compare Article 6 of the Palestine Order-in-Council (Defence)). Alongside considerations of security (in their broad sense) there are other values, in the light of which every enactment in a democratic society must be interpreted, and which the Defence Regulations affect. Thus, for example, the Defence Regulations deal with the military courts. It is only natural, in this context, that the value of judicial integrity must be taken into account (see Cr. A. 126/92 [23]; Cr. A. 696/81 [24]). The Defence Regulations contain provisions pertaining to crimes, punishments and detention prior to conviction. In this context, account must be taken, among other things, of the individual's right to personal freedom and the presumption of innocence. Another chapter of the Defence Regulations deals with Unlawful Associations. In this context account must be taken, of course, of the basic right to freedom of association (see H.C. 253/64 [25]). Yet another chapter of the Defence Regulations deals with orders restricting the freedom of movement. In this context it is only natural that the right to freedom of movement will be taken into account (see H.C. 448/85 [26]). Defence Regulations which provide for military censorship prejudice, first and foremost, the right to freedom of expression. Censorship of publications prejudices privacy. The broad authority to search ("censorship of travelers") prejudices privacy, the dignity of man and the integrity of property and person. This list of basic values which are adversely affected by the Defence Regulations is by no means complete or comprehensive. It only serves to show how broad a range of values are promoted by the Defence Regulations (defense, public safety and order) and are prejudiced by them (judicial integrity, personal freedom, freedom of association, freedom of movement, freedom of expression, privacy, dignity of man and integrity of property and person.)

12. In interpreting the Defence Regulations account must be taken, on the one hand, of the basic values which are their raison d'etre and, on the other hand, of the basic values which every legislative act in a democratic country must be assumed to intend to promote (see H.C. 953/87 [6]). Sometimes all these values lead to the same result. But sometimes they may clash with one another. So, for example, the values concerning the security of the State and public safety and order may clash with the values of freedom of movement (see H.C.448/85 [26]), freedom of expression (H.C. 73/53 [7]), the dignity of man (see H.C. 355/79 [21]). In all such cases the court must strike a balance between the conflicting values. In the course of discussing the need to strike a balance between the right to security and the right to freedom of expression, insofar as the powers of the Military Censor under the Defence Regulations are concerned, Justice Elon said, in H.C. 234/84 [22], at p. 483:

"The existence of censorship and the prohibition of publication sometimes gnaw away at the basic right to freedom of expression, the right to inform and to be informed, which is one of the 'basic rights which are not recorded in texts, but emanate directly from the character of our State as democratic and freedom-loving'... One of the important missions of democracy is to find the proper balance between the existence and preservation of this right and the need to protect legitimate secrecy, in defense of the security of the State and the proper functioning of public safety and order, which also is an essential condition for the very existence of a democratic regime...".

13. In the petition before us the value of state security clashes with the values of freedom of expression and the public's right to be informed. These conflicting values are basic to our legal system. The state cannot exist without security. Nor can the social consensus upon which the state is built. So, too, individual freedoms which the state is supposed to promote cannot exist. Hence the centrality of security in the general complex of values in the legal system. Without freedom of expression, truth cannot be disclosed, the individual cannot fulfil himself and the democratic regime, which is based on the exchange of opinions, cannot continue to exist. The free exchange of information, opinions and points of view is essential to the existence of a democratic regime, which is based on the rule of the people, by the people, for the people. Without freedom of expression democracy loses its soul (H.C. 399/85 [27], at p. 274). On more than one occasion this court has noted "the close connection that exists between the principle of freedom of expression and debate and the proper functioning of the democratic process" (Justice Agranat in Cr. A. 255/68 [28], at p. 435). It noted therefore that "freedom of expression is a condition precedent for the existence of democracy and its proper functioning" (President Shamgar in H.C. 372/84 [29], at p. 238). Freedom of expression thus has a special status. It secures the existence of a democratic regime which, in turn, secures the existence of other basic rights (see H.C. 73/53 [7] supra, at p. 878; C.A. 723/74 [30], at p. 295).

14. How is the clash between the security of the State and freedom of expression to be resolved? It seems to me that if the clash between the two values is "head-on", so that there is no possibility of co-existence between them, then the security of the State must be preferred, for two reasons: First, because the security of the State is the substantive objective of the Defence Regulations and a judge-interpreter must, first and foremost, achieve this objective. Second, because a democracy must exist in order to realize itself:

"A democratic regime is prepared to protect freedom of expression so long as such freedom protects democracy. But when freedom of expression becomes a tool with which to injure democracy, then there is no reason for democracy to put its head on the block for the axeman ..." (H.C. 399/85 [27] supra, at p. 287).

"A constitution is not a formula for suicide and individual rights are not a platform for national destruction" (El. A. 2/84 [10], at p. 310). "A democracy does not have to commit suicide in order to prove its vitality" (Id., at p. 315). A person cannot enjoy freedom of expression if he does not have the freedom to live in the society in which he chooses to live. The right to live in a society is prior to the right to express one's opinions therein (see United States v. Progressive, Inc. (1973) [58], at 995).

15. The "balancing formula" in the case of a clash between state security and freedom of expression assumes, therefore, fulfillment of the value of state security. However, because of the centrality of the basic right to freedom of expression, it seeks to limit the harm to this value as much as possible. Such harm will be allowed only if it is absolutely necessary in order to preserve the value of security. In this connection, the Supreme Court decisions stressed two main questions: first, what is the extent of the injury to state security which justifies restricting freedom of expression; second, what is the probability that state security will be injured if freedom of expression is not curbed. The approach that guides the decisions is that "the question always is, whether the extent of the injury, discounted by the possibility that it will not occur, justifies restricting the individual's right in order to prevent the danger..." (El. A. 2/84 [10] supra, at p. 311). It has been held that in a clash between state security and public safety and order, on the one hand, and freedom of expression, on the other, "freedom of expression must yield only when the injury to the public order is severe, serious and grave" (H.C. 14/86 [19], at p. 435). Hence, only when the injury to the public order is severe and substantial will it justify curbing freedom of expression. Likewise, it has been held that the probability of injury which would justify limiting freedom of speech must amount to a "near certainty". "For this court to prohibit a person in charge of public broadcasting from publishing a particular matter, such extreme circumstances must exist as to constitute a real and nearly certain danger to the safety of the public at large..." (President Shamgar in H.C. 1/81 [31], at p. 378); "According to Justice Agranat (as his title then was), the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a particular instance would endanger the public or the security of the State..." (Justice D. Levin in H.C. 243/82 [32], at p. 766). Such a probability does not exist when it is possible to take other measures - apart from restricting personal freedom and freedom of expression - in order to minimize the danger. Curbing freedom of expression should not be the first means; it should be the last means (see H.C. 153/83 [18] supra, at p. 407; H.C. 14/86 [19] supra, at p. 437; H.C. 554/81 [33], at p. 252). "I consider censorship a measure to be used only in the rarest of cases when there is no alternative". (Justice Witkon in H.C. 243/62 [16] supra, at p. 2425).

16. We have seen that in different statutory contexts (such as the Police Ordinance [New Version], the Newspaper Ordinance, the Broadcasting Authority Law, 1965, the Public Entertainments Ordinance (Censorship)) this Court adopted an interpretive approach in accordance with which freedom of expression may be restricted in order to protect the security of the state and public order only when there is a near certainty that substantial injury will occur to such state security and public order if freedom of expression is not curbed. Does this approach apply to the interpretation of the Defence Regulations? Counsel for both sides answered this question affirmatively, and I agree with them, for four reasons. First, from the semantic point of view, the Military Censor's authority is conditioned on belief that the publication is likely to prejudice security. This term, "likely", is the same term which was the basis for the "near certainty" formula in H.C. 73/53 [7]. Second, the interpretive approach referred to above is not based only on the word "likely" in the Defence Regulations. It reflects a principled approach to the comparative weight of the values of state security and public order, on the one hand, and freedom of expression, on the other hand, and to the proper balance between them. Justice Landau emphasized this in H.C. 243/62 [16], at p. 2418:

"In the 'Kol Ha-Am' case, the court interpreted the specific statutory provision in section 219(2)(a) of the Newspaper Ordinance, whereas here we are dealing with administrative discretion which is not further defined in section 6(2) of the Cinema Ordinance. But the decision in 'Kol Ha-Am' was reached on a broad conceptual basis which is just as applicable to the matter before us".

In quoting Justice Agranat in H.C. 73/53 [7], in connection with the test of near certainty, Justice D. Levin pointed out, in H.C. 243/82 [32], at p. 765:

"These penetrating and instructive words have become a corner-stone in our judicial system, and the principles contained in them are accepted by everyone, without any reservations".

This court adopted this approach in additional cases (see H.C. 292/83 [34], at p. 456; S.S.A. 5/86 [35], at p. 237; H.C. 448/85 [26] supra; H.C. 1/81 [31] supra; H.C. 259/84 [36]; see also P. Lahav, "Freedom of Expression in Supreme Court Judgments", 7 Mishpatim (1976-77) 375).

Third, there is nothing special about the Defence Regulations and therefore no reason to deviate from the general conception accepted in Israel in similar matters. There is no substantive difference between "military" censorship and "civil" censorship, and the same weight should be given to state security, on the one hand, and freedom of expression, on the other, in both. There is no real difference between a "military" officer and a "police" officer in matters concerning the security of the state and public safety vis-a-vis freedom of expression. It is true that the dangers to security which the Defence Regulations seek to prevent may sometimes - but not always - be more severe than the danger to the public order which other laws seek to prevent. This relative difference will be expressed in the fact that it will be easier to show that the danger of injury to state security is substantial and severe and that the probability of its occurrence is nearly certain (see, for example, H.C.562/86 [37]). There is no reason, however, why this difference in the gravity of the danger that exists in some cases should result in the application of different fundamental tests. Therefore, when the question arose as to what test should be applied in deciding what information should not be published by the Broadcasting Authority in connection with interviews with a representative of the P.L.O., this court applied the test of "near certainty". Justice D. Levin pointed out that "the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a specific instance is likely to endanger public safety or the security of the state..." (H.C. 243/82 [32], at p. 766). President Shamgar reiterated the same approach when he pointed out that "no right should be denied in advance save when there is a near and inevitable certainty that a crime will be committed or that security or public safety will be injured..." (El. A. 2/84 [l0] supra, at p. 266). Fourth, on its merits, it seems to me that the test of near certainty of substantial damage to the security of the state is the desirable one. It expresses correctly the comparative social importance of the conflicting principles, according to the standards of the "enlightened public" - the standard we use in similar circumstances (H.C.58/68 [8] supra, at p. 520). "The court must determine the borderline between what is permitted and what is forbidden in every case according to its judgment, guided by the enlightened concepts that prevail in modern society, while remembering that every limitation of freedom of expression exudes an odor of censorship, and in borderline cases the tendency should therefore be to permit rather than to prohibit" (Justice Landau in Cr. A. 495/69 [38], at p. 41l). This test protects the security of the state and public safety, on the one hand, since it prevents a publication that entails a near certainty of substantial damage to these values. At the same time, this test protects freedom of expression in broad and comprehensive areas, and allows thereby the achievement of the aims which freedom of expression seeks to achieve. Any attempt to apply a test that is more restrictive of freedom of expression could have harsh results both for freedom of expression and for democracy. It should not be forgotten that we are dealing with censorship which prevents publication in advance, and thereby not only "chills" freedom of expression but "freezes" it (see A.M. Bickel, The Morality of Consent (New Haven, 1975) 61). This freezing effect is done without any judicial process or judicial decision. It is, therefore, especially important that the denial of information to the public should occur only in exceptional and unusual circumstances. The near certainty test expresses this approach. It is not superfluous to note that the test in cases of prior restraint is much more stringent in the United States. The rule there is that prior restraint is forbidden, except when the publication affects the security of the state directly, immediately and unavoidably, as for example, the physical safety of participants in a military operation (New York Times Co. v. United States (1971) [59]; Near v. Minnesota (1931) [60]). We have not adopted this test in Israel. But we have pointed out that the distinction on which it was based - between prior restraint of publication and punishing the publisher after the fact - justifies adopting the "near certainty" test in Israel rather than a more lenient one. Justice Agranat noted this consideration in H.C. 73/53 [7], at p. 886:

"We have dwelt on this Anglo-American approach to the use of prior restraint because it demonstrates very well that - insofar as the tendency to protect the interest of freedom of expression is concerned - this is a very strong and extreme measure. If the Israeli legislator nevertheless saw fit to leave intact the powers defined in section 19(2) (a), it must be understood that it did so because of the state of emergency the country has known ever since its establishment. But, on the other hand, the Israeli legislator should not be assumed to have intended to give the authority in charge of implementing these powers - particularly since they are so severe and drastic - the right to cease publication of any newspaper merely because the matters published therein appear to it to tend to endanger the public safety but do not constitute direct incitement to this end, or at least encouragement, as could bring that result substantially closer in the circumstances. It would be out of the question to attribute such an intention to the Israeli legislator since, on the one hand, as we have already said, Israel is founded on principles of democracy and freedom, and, on the other hand, adopting such an abstract and obscure test as 'a bad tendency' would inevitably open the door wide to the influence of the personal opinions of the person entrusted with the above powers - however noble his aspirations might be - when evaluating the danger feared, as it were, to the public safety as a result of the publication concerned".

Consequently, Israeli society of today, which sees the need to protect security and public safety on the one hand and freedom of expression on the other hand, cannot find a better balance between them than in the formula of a "near certainty". President Shamgar discussed this in El. A. 2/84 [10] supra, at p. 265:

"If there be a near certainty that the exercise of a particular right in a concrete case will injure public safety and order, then the statutory authority so empowered may restrain the exercise of the right in the said circumstances".

Absent a near certainty of real danger, it is important that there be a free exchange of opinions and ideas. This is important in matters of security no less than in other matters. Precisely because security matters affect the very existence of society, it is important that the public be informed concerning the various problems, so that it may reach intelligent decisions on problems which concern it.

"On matters affecting the national interests, the people must be provided with all the pertinent information so that they can reach intelligent, responsible decisions. The first constitutional principle is that a self-governing people must have a thorough knowledge and understanding of the problems of their government in order to participate effectively in their solution... In the absence of strong and effective governmental checks and balances in the areas of national defense and international affairs, the only effective restraint on executive power lies in a well-informed citizenry. Without an alert, free and diligent press there cannot be a well-informed citizenry. Only if the government is vigorously and constantly cross-examined and exposed by the press can the public stay informed and thereby control their government" (R.F. Flinn, "The National Security Exception to the Doctrine of Prior Restraint", 13 Wm. & Mary L. Rev. (1971-72) 214, 223).

Precisely because of the implications for the life of the nation contained in decisions of a security nature, the door should be opened to a free exchange of opinions on matters of security. In this connection it is particularly important that the press be free to serve as a forum for the exchange of opinions and for criticism in matters of vital interest to the public and the individual. It appears to me, therefore, that the near certainty test is the proper test to be applied when examining the Military Censor's powers under the Defence Regulations.

17. To summarize: the Mandatory Defence Regulations must be interpreted against the background of Israel's values. In interpreting them one must balance state security and public safety and order, on the one hand, and freedom of expression, on the other. This balance means that freedom of expression can be restrained, as a last resort, only when there is a near certainty of substantial danger to state security and public order.

The second question: Restrictions on the exercise of discretion

The Military Censor's discretion is subjective. He may prohibit publication of material which "in his opinion, would be, or be likely to be or become, prejudicial" to the public safety or order. Does this discretion render the examination of criteria for the determination of the existence of danger superfluous? Could it not be said that all that is required is that this discretion be exercised in good faith? The answer to these questions is in the negative. Subjective discretion is not absolute. It does not empower the holder of the discretion to choose whatever alternative is in his opinion correct. Subjective discretion is limited (see F.H. 16/61 [39]). Just as any other discretionary power, it must comply with the following demands: first, it must be exercised within the limits of the enabling law that grants the discretion; second, the person who has the discretion must act subjectively to fulfil the objective criteria which fix the conditions for the exercise of the discretion; third, the person who has the discretion must choose one of the various legal options available to him in good faith, without caprice, after weighing only the relevant considerations, and reasonably; fourth, the selection from among the various possibilities must be based on reasonable evaluations and on facts established on the basis of convincing and credible findings, which do not leave room for doubts. I shall deal briefly with each of these requirements.

19. Subjective discretion must be exercised within the limits of the : enabling law. So said President Agranat in H.C. 241/60 [40], at p. 1162:

"The general principle is that every administrative authority must act within the limits of the purpose for which the law has granted it the particular power; and this rule also applies to a power which it may exercise according to its 'absolute discretion'".

Justice Sussman repeated the same idea in F.H. 16/61 [39], at p. 1216:

"Discretion which is granted to an administrative authority - even if it be absolute - is always linked to a duty which the authority must fulfil - that is, to the administrative tasks for the purpose of which the authority was empowered to act in its discretion. However extensive the freedom of choice may be, it is never unlimited".

"Statutory discretion can be broad or narrow, but it is always limited. The number of possible choices available to the decision-maker may be many or few, but it is never unlimited. In this way the law protects the freedom of the individual... Even the most absolute of discretion must confine itself to the framework of the law which gave it life" (H.C. 742/84) [41], at p. 92).

Therefore, whoever is vested with discretion by the Defence Regulations may exercise this power in order to realize the aims that underlie the Regulations, but not to realize any extraneous aims (see H.W.R. Wade, Administrative Law (Oxford, 5th ed., 1982) 394).

20. Every administrative power is subject to certain conditions and demands. The legal application of the authority requires that these conditions and demands be observed in practice. The subjectivity of the person in authority must be aimed at implementing these conditions and no others. Therefore, if the correct interpretation of section 87 of the Defence Regulations is that a newspaper publication may be prohibited only if the Censor believes that there is a near certainty that the publication will cause substantial injury to security, then the Censor's thoughts must be directed toward the issue whether such a near certainty exists. If, therefore, the Censor prohibits a publication without being satisfied that it creates a near certainty of danger to security, he has not exercised his discretion lawfully.

21. The exercise of discretion assumes freedom to choose between lawful options. The exercise of subjective discretion assumes that the choice between options will be based on the authority's evaluation of the options. This evaluation must be conducted in accordance with the rules of administrative law. It must therefore be made in good faith, without being arbitrary or discriminatory and on the basis of all the relevant considerations, and these alone. Furthermore, evaluation of the options and the selection of the preferred option must be done reasonably (H.C. 389/80 [42]). Subjective discretion and the objective test of reasonableness are not incompatible, but are complementary. Establishing the lawful option must be done according to the test of reasonableness. The power of discretion does not authorize an administrative authority to fashion an unreasonable option. Sometimes there are several options, all of which are reasonable. A range of reasonableness is created. Discretion allows the administrative authority to choose one of these options. Therefore, the Military Censor must consider whether there exists a near certainty that a newspaper publication will cause substantial injury to security. This must be done reasonably, taking into account the needs of security, on the one hand, and freedom of expression on the other, achieving a balance between them in accordance with the test of "near certainty" (see H.C. 910/86 [43], at p. 48l). This process may raise a number of possibilities, all of which satisfy this test. A "range" of lawful possibilities is then created. The discretion to choose the correct option in this range is given to the Military Censor. He has the power to choose whatever option appears best to him from the options in this range. He has no discretion to select an option that is outside of the range.

22. Regulation 87 of the Defence Regulations provides that the Military Censor may prevent publication if in his opinion the publication is likely to prejudice - that is, if there is a near certainty of substantial damage to - the security of the State. What does it mean to say that the decision concerning the existence of prejudice - that is of a near certainty of substantial damage - is in the discretion of the Chief Censor? It means that the Censor - and only the Censor - has authority in this matter, and if there be several legal choices, only he may make the selection. This provision does not mean that the Chief Censor may reach his decision in any manner which he chooses. The Censor's decision must be reasonable. In other words, it must be assumed that a reasonable censor would have made such a decision in the circumstances of the case. I elaborated on this point in another case:

"Discretion concerning the existence of near certainty and the gravity of the danger is vested in the Council. It must exercise this discretion reasonably. There are often several reasonable options, which all accord with the said test. A range of reasonableness is created, within which the court will not interfere... But it will interfere if the Council chooses an option which is not within this range. The Council does not have the discretion to choose an option which does not constitute a near certainty and does not contain an element of grave danger. The mere fact that the Council subjectively believes that the danger is grave and that the likelihood of its occurrence is nearly certain is not decisive. The test whether there exists a near certainty of grave danger is objective. The court must be satisfied that a reasonable council could have reached the conclusion that the danger was grave and that its occurrence was a near certainty on the basis of the facts available to it" (H.C. 14/86 [19], at p. 438).

In determining the reasonableness of the Military Censor's decision, account must be taken of the complex of facts, on the one hand, and of their evaluation in accordance with the test of near certainty of substantial harm to security, on the other. In every case the question is whether a reasonable Military Censor could conclude, on the basis of the given facts, that the publication was likely to cause - in other words, that there exists a near certainty that it would cause - grave or substantial damage to the security of the State.

23. The Military Censor's decision concerning the existence of danger to the security of the State must be based on facts and on evaluations. As to the facts, they are determined by the Chief Censor on the basis of the evidence before him. The determination of the facts must be done according to the usual criteria of administrative law. The test is whether a reasonable governmental authority would have regarded the material before it as having sufficient probative value (H.C. 442/71 [44]; H.C. 361/82 [45], at p. 442). The reasonableness of the decision is a function of the values involved in the decision. Therefore, if the exercise of administrative discretion would prejudice human rights, then persuasive and credible evidence, which leaves no doubt, would be required. Justice Shamgar noted this in H.C. 56/76 [46], at p. 692:

"It is true that evaluation of the evidence is, first and foremost, within the prerogative of the authority... But if the authority seeks to deny recognized rights, then while the authority need not base its decision on previous court judgments, still, convincing evidence, which leaves no room for reasonable doubts, is required".

President Shamgar repeated the same idea in H.C. 159/84 [47], at p. 327:

"H.C. 56/76... dealt with the question of denial of existing rights, and it was held there that to reach a decision the authority had to have before it convincing and credible evidence, which leaves no room for doubt. I agree with this test. When dealing with the denial of recognized rights or of basic rights ... the evidence required in order to satisfy a statutory authority that it is just to grant a deportation order must, generally, be clear, unequivocal and convincing".

Therefore, the finding that if the publication will not be prohibited there will be a near certainty of substantial injury to the security of the State must be based on clear, unequivocal and convincing evidence. Still, one must not forget that the finding that there exists a near certainty of substantial damage to security must, by its very nature, be based not only on facts but also on the evaluation of future developments. While this evaluation must be based on clear, unequivocal and convincing evidence, nevertheless it must, by its very nature, look to the future and it must necessarily deal with both risks of danger and favorable possibilities. All that can be required in this connection is that the examination of the matter be reasonable. One cannot demand that the Military Censor be imbued with the gift of prophesy.

The third question: the Scope of judicial review

24. After the establishment of the State it was held that the scope of judicial review of the powers of authorities that operate under the Defence Regulations is extremely limited. Justice Agranat noted this in H.C. 46/50 [48], at pp. 227-228:

"This court's jurisdiction, when reviewing the acts of the competent authority under the Defence (Emergency) Regulations, 1945, is extremely limited. When the regulation in question empowers the authority to act against an individual whenever that authority is "of the opinion", or "it appears to it", that conditions exist which

so require, then the competent authority itself generally has the last word concerning the question whether those conditions exist. In such cases, this court can only examine whether the said authority exceeded the powers vested in it by the regulation under which it presumed to act, whether it took account of all the factors fixed by law, and whether it acted in good faith. As it is subject to this limited power, the court cannot review the reasons which induced the competent authority to issue the order in question."

This approach was based on the subjective nature of the authority, on its "security" nature and on the English precedents which were current at the time and which took a similar position (primarily Liversidge v. Anderson (1941) [61]).

25. With time there came a gradual broadening of the scope of judicial review. This was the result of developments concerning the nature of subjective discretion and the understanding of judicial review. Considerable judicial experience also accumulated, which enabled expansion of the scope of judicial review of administrative discretion in security matters. Similar developments occurred in England itself where, in the course of time, it became clear that subjective discretion is not essentially different from any other discretion. Justice Sussman noted this in F.H. 16/61 [39] supra, at p. 1218:

"I doubt whether there be any difference in principle between 'ordinary' discretion and absolute or 'subjective' discretion. Several objective tests have been established for subjective discretion as well, such as that the absence of good faith, arbitrariness or deviation from the purpose entrusted to the authority would lead to annulment of the administrative act."

Hence, even when exercising subjective discretion, the government authority has the "objective" duty to observe the provisions of the law. Moreover, subjective discretion is flawed not only by "subjective" defects in the authority's acts, such as lack of good faith or arbitrariness. Subjective discretion must be exercised reasonably. Thus, the subjective factor in discretion, too, is measured by objective criteria (H.C. 389/80 [42] supra). There is, therefore, no basis to restrict judicial review or to examine only "subjective" defects such as malice or lack of good faith. This approach is reinforced in the light of our understanding of the essence of judicial review, which draws its force from the principle of separation of powers and the need to ensure governmental legality (see H.C. 910/86 [43] supra). There is no reason why an administrative court should not examine the full scope of administrative discretion according to the test of legality, for otherwise certain areas of discretion would be immune to judicial review. This immunity would ultimately lead to infringement of the law, since where there is no judge there is no law. Therefore, administrative discretion should be examined from the perspective of the laws which determine its legality. If the jurisprudence of administrative discretion (both substantive and procedural) determines that there is a defect in a particular exercise of discretion, then the administrative court should be prepared to review the legality of that exercise of discretion. There is no reason why certain fields of administrative discretion should not be subject to judicial review (subject, of course, to claims of lack of standing, or lack of jurisdiction or other such preliminary claims). Hence there is no basis for the view that the subjectivity of administrative discretion limits the scope of judicial review to certain defined issues. The proper conception is that it is the jurisprudence of discretion which fixes the conditions which determine when the exercise of discretion is legal and judicial jurisprudence establishes that the court has the power to examine whether these conditions are met. It is not the scope of judicial review which determines the legality of administrative discretion but, rather, the legality of the administrative discretion determines the scope of the judicial review (compare H.C. 731/86[49], at p. 458). Judicial review of administrative discretion has been expanded hand in hand with the development of administrative law concerning subjective discretion and the broadening of the legal demands upon administrative discretion. It is interesting to note that as early as H.C. 73/53 [7], which held that the exercise of subjective discretion by the Minister of the Interior had to pass the test of near certainty, Justice Agranat pointed out that:

"The expression 'in the opinion of the Minister of the Interior', referred to in section 19(2)(a), requires that we hold that evaluation of the publication's influence on public safety in the circumstances is always the exclusive prerogative of the Minister and, therefore, the High Court of Justice will not interfere with his exercise of discretion unless, in making his evaluation, he deviated from the test of 'near certainty', in the light of the meaning of 'danger to the public safety'; or he paid no attention - or at best only a modicum of attention - to the important interest of freedom of the press; or he erred in the exercise of his discretion in some other way because he was carried away by trivial, untenable or absurd considerations".

This formula accorded well with the law of administrative discretion as it was developed more than thirty years ago. In the meantime the jurisprudence of discretion has been developed. It has been held, inter alia, that an unreasonable decision is unlawful, even if it is not untenable or absurd. Parallel to this development has come the development of the law of judicial review, and it has been held that judicial review may also be invoked when administrative discretion has been exercised unreasonably. The subjectivity of the Military Censor's discretion cannot, therefore, limit the scope of judicial review. Such review must attend to every one of the elements which govern the legality of the Military Censor's exercise of his discretion. There is no room for any "dead space".

26. Considerations of security have deterred judicial review of administrative discretion in the past. It was thought that judges should not interfere since they are not experts in security matters. But in the course of time it has become clear that there is nothing unique about security considerations, in so far as judicial review is concerned. Judges are also not administrative experts, but the principle of separation of powers requires that they review the legality of the decisions of administrative officials. In this connection, security considerations have no special status. They, too, must be exercised lawfully and they, too, are subject to judicial review. Just as judges can examine the reasonableness of professional discretion in every other field and are required to do so, so can they examine the reasonableness of discretion in security matters and must do so. From this it follows that there are no special restrictions on the judicial review of administrative discretion in matters of state security. I so held in another case in which I said that:

"There is a great deal of power concentrated in the hands of the military government and, for the rule of law to hold sway, judicial review must be applied in accordance with the usual tests" (H.C. 393/82 [50]).

The court does not hold itself out as a security expert and it does not replace the security discretion of the competent authority with that of a judge. The court examines only the lawfulness of the security discretion, including its reasonableness. In this connection, there is no difference between the scope of review of security discretion and the scope of review of any other administrative discretion. The court never becomes a supra-governmental authority, but only reviews the lawfulness of the exercise of governmental discretion. In this sense, security considerations are not special. The scope of judicial review should be uniform for all government authorities. In the absence of any express provision of law it is not desirable that certain government authorities should enjoy immunity from judicial review. Similarly, it is not desirable, for example, to limit the scope of judicial review of the Attorney General's discretion to the question whether he acted in good faith. I pointed out that:

"With regard to the scope of the court's intervention, there is no difference between the Attorney General and any other public functionary. The one, like the other, must exercise discretion fairly, honestly, reasonably, without arbitrariness or discrimination, after weighing relevant considerations only. All are subject to judicial review, and just as there is no special law for the Attorney General concerning the court's jurisdiction, there is no special law for him concerning the scope of judicial review..." (H.C. 329/81 [51], at p. 334; see also H.C. 292/86 [52]).

The same rule applies to a government authority that has security powers. There is only one rule for all with respect to the scope of our intervention. All are subject to the rule of law and to judicial review, in accordance with the usual and accepted grounds for review which reflect the legal demands of administrative law. Thus, when we reviewed the scope of the District Commissioner's powers under the Defence Regulations to cancel a permit to publish a newspaper, we held in H.C. 541/83 [53], at p. 840:

"... Once the Commissioner has given the reasons for his decision, these reasons are subject to judicial review as any other exercise of administrative discretion...".

This same approach applies to the present matter as well. Once the Military Censor has given the reasons for his decision, these reasons are subject to judicial review the same as any other exercise of administrative discretion (compare also H.C. 2/79 [54]; H.C. 488/83 [55], at p. 725).

27. It should be noted that the limitation of the scope of judicial review over the exercise of discretion in matters of security, within the framework of the Defence Regulations, was based in the past largely on the majority decision in the House of Lords in the Liversidge [61] case. The Supreme Court relied on that decision when it held that "the power of this court, when called upon to review acts of the competent authority acting under the Defence (Emergency) Regulations, 1945, is extremely limited" (H.C. 46/50 [48], at p. 227). Since then, however, there has been an important development in England itself. The majority decision in the Livelrsidge case no longer reflects the current rule. This was stated in a series of judgments (see, for example, Nakkuda v. M.F. De S. Jayaratne (1951) [62]; Ridge v. Baldwin (1964) [63]). Lord Diplock's words in this connection are characteristic:

"For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right" (Reg v. I.R.C., Ex. p. Rossminister Ltd. (1980) [64], at 10/l).

Since then the English courts do review security acts of authorities with powers based on defence regulations or emergency legislation (see Wade, supra, at 394). In Israel it has been held that the Supreme Court no longer follows the majority decision in the Liversidge case. President Shamgar noted this in H.C. 554/81 [33], at p. 251:

"There is no doubt that the above Regulation 110 grants far-reaching powers, which must be used with proper caution, while taking scrupulous care to observe the preconditions which justify their use. Therefore, the court will examine the exercise of these powers with proper vigilance and will not follow those restraints and limitations which previously characterized the English judgments dealing with the exercise of similar powers in England (Liversidge v. Anderson and another (1941)), which also found an echo in H.C. 46/50 supra".

The very far-reaching character of government security power and the harm which the exercise of this power can cause to basic human rights require - as Justice Shamgar noted - that this court examine the exercise of the power "with proper vigilance".

The fourth question: Review of the Censor's decision

28. The Military Censor is empowered to prohibit publication of an article if there is a near certainty that its publication will cause substantial injury to the security of the State. It is within the Censor's discretion to decide whether such a near certainty exists and he must exercise this discretion reasonably. The question before us is whether the Military Censor's decision with respect to the subject matter of the petition before us complies with these tests. In order to answer this question we must distinguish between the Censor's decision to prohibit publication of criticism of the head of the Mossad and his decision concerning the timing of his replacement. We shall deal with each of these decisions separately. It should be noted that the parties now agree that publication of facts which could lead to identification of the head of the Mossad is forbidden, since such publication meets the required test.

Criticism of the head of the Mossad

29. The Military Censor's position is that "criticism of the head of the Mossad, as such, as well as criticism of the efficiency of his performance and the legitimation of such criticism which would derive from permitting its publication in Israel (as distinguished from its publication abroad) injures the functioning of the Mossad at all levels, including but not limited to, the field of state security and its connections with parallel organizations in other parts of the world and with its own field operatives". He stresses that "by way of contrast, those parts of the article containing expressions of the author's opinion and criticism of the Mossad and its functioning in general were not disqualified". He summarizes his stand on this matter by noting that "the essence of the matter is not in the prohibition of a publication because of any personal prejudice to the person referred to in the publication, but rather because, so long as the person concerned serves in his position, any factual reference to him as such, to his functioning or to the results thereof in the field - amount to prejudicing the security of the State, because of substantial relevant considerations".

30. Examination of the Military Censor's reasoning shows that he does not complain that the newspaper article contains references to Mossad activities, or those of its head, whose publication could harm the security of the State. The Censor's explanation is directed at prejudice to the effectiveness of the head of the Mossad's functioning if such criticism may be published. In this connection, the Military Censor distinguishes between criticism of the head of the Mossad which, in his opinion, prejudices the security of the State and is therefore not permitted, and criticism of the Mossad itself, which would not be prohibited. In my opinion this reasoning does not stand up. Publication of criticism of the functioning of the head of the Mossad does not create a near certainty of substantial harm to the security of the State. We have here a remote possibility - "a bad tendency" in the words of Justice Agranat in H.C. 73/53 [7] – which has no place in our system of law. On the contrary: in a democratic society it is only right to allow criticism of persons fulfilling public functions. Of course, criticism is not pleasant, and sometimes it can even cause harm. That is true of criticism of the head of the Mossad or of the Prime Minister or of any other office holder. But this unpleasantness is not reason to silence criticism in a democratic society, which is built on the exchange of opinions and public debate. It may be assumed that criticism of the Prime Minister, for example, creates some possibility of causing damage to his functioning, to public confidence in him and to his ability to conduct negotiations with heads of other countries. This possibility does not provide a sufficient basis for prohibiting publication of the criticism. Freedom of expression is also freedom to criticize and and the freedom to harass public functionaries with bothersome questions. Occasionally the criticism is not justified. It is sometimes petty. Sometimes it injures. That does not justify prohibiting its publication. It is worth repeating and and emphasizing Justice Landau's penetrating words in H.C. 243/62 [16] supra, at p. 2416:

"A governing authority which takes unto itself the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater contradiction to true democracy, which is not 'guided' from above".

Justice Witkon repeated a similar idea when he said that:

"All serious and relevant criticism is entitled to be protected against government intervention (unless it reveals vital secrets)..." (A. Witkon, "Thoughts and Memories From Childhood Concerning Freedom of the Press", in Law and Judging; Collected Articles (Schocken Press, A. Barak, M. Landau, Y. Neeman, eds., 5748) 168, 180).

In deciding to prohibit publication of criticism of the head of the Mossad's performance, the Military Censor did not give sufficient weight to the principle of freedom of expression. True, the Censor repeatedly declared before us that "on no account does he dispute the fact that the right of expression and freedom of expression must be honored - in our case, in the press - as they lie at the foundation of our system, and that he was guided by this in his considerations". But rhetoric is not enough. The basic principle must shape the actual decision. It is not enough to say that freedom of expression is a basic principle in our system. Practical significance must be given to this statement. Justice Bach rightly noted, in referring to freedom of expression, that :

"The principles upon which this court has insisted in the past ... may not be used merely as an ideological flag to be waved externally, but must also actually guide us in fact in our day-to-day decisions" (H.C. 243/82 [32] supra, at p. 784).

And I added, in another case, that if we do not do so, then

"everything that we established on the normative level will disappear in the world of practical reality. The court must examine not only the law but its implementation as well, not merely rhetoric, but also practice..." (H.C. 14/86 [19] supra, at p. 439).

31. A democratic regime is a regime of checks and balances. These checks and balances are, first and foremost, the product of the mutual relations between the governing authorities - the legislative, the executive and the judicial - among themselves (see H.C. 73/85 [57]). In a democratic society there are other checks as well. The State Comptroller is in charge of oversight. But such checks are not exclusively those of the governmental authorities. There are other checks, outside of the ruling framework itself. Among these, the press performs a vital function. Its task is to expose failings and to protest against them. A free regime cannot exist without a free press. The press must therefore be allowed to fulfil its function, and only in exceptional and special cases, in which there exists a near certainty that substantial harm will be caused to the security of the State, is there room to prohibit publication of information in the press. In principle, it is difficult to imagine a case in which criticism - as distinguished from the disclosure of facts - could provide a basis for the existence of near certainty of substantial harm to the security of the State. The burden of proof in this connection must rest on the Censor. He has failed to satisfy it. On the contrary, we are persuaded that the probability of harm to the security of the State is remote and the harm is not substantial. Indeed, it is, difficult to accept the position that criticism of the Mossad itself does not create a near certainty of substantial harm to the security of the State, but criticism of the head of the Mossad does create such a risk. This distinction appears to me to be artificial; just as criticism of the Mossad itself does not create the near certainty required to allow prior restraint on freedom of expression, so too, criticism of the head of the Mossad does not meet the test required for justifying restriction of freedom of expression. In the New York Times Co. case [59], at 714, the United States Supreme Court noted, in quoting a previous decision, that:

"Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity".

The same holds true in this case. Every prior restraint of freedom of expression carries a heavy presumption that it is unlawful. One who seeks to show that the prior restraint of freedom of expression is lawful carries a heavy burden. The Military Censor did not sustain this burden.

Publication of the timing of the replacement of the head of the Mossad

32. The Military Censor forbade the Petitioners from publishing details concerning the timing of the replacement of the head of the Mossad. The reason given was that -

"there are those who concern themselves with such matters who could more easily focus on the person [the head of the Mossad], his movements and his activities and put this information to practical use to identify the head of the Mossad, particularly abroad. This poses a real danger to his security".

In my opinion this reason, too, cannot stand up to review. The possibility that publication of the date of the forthcoming replacement of the head of the Mossad would increase the danger to his security appears to me to be purely speculative. No data whatever were brought before us - save for the above evaluation - which support this claim. Is it argued that hostile elements could identify the head of the Mossad because there would be an increase in overseas flights? This is a baseless argument in my opinion. But even if we assume that there is some merit to this argument, is it not possible to take precautions so as to reduce the risks? It appears to me, therefore, that in this case, too, the Military Censor did not give sufficient weight to the value of freedom of expression. The exchange of opinions concerning the desired qualities of the head of the Mossad is particularly important when a new appointment is imminent. It sharpens the public perception of the vital nature of the office and of the qualities which the holder of the office should have. By this means - and by public debate - it may influence the decision of those in charge of making the said appointment. The very knowledge that the appointment will be the subject of the public exchange of opinions and pubic criticism affects the considerations of those empowered to decide and can prevent an undesirable appointment. Such debate will be effective if it is conducted before the appointment, not after it. It is, therefore, important that the public know of the forthcoming appointment. This is one manifestation of the importance of freedom of expression and the public's right to know. Of course, if there is a near certainty of substantial harm to the security of the State, there is no escape from prohibiting publishing the fact of the forthcoming appointment. But, as already said, I am not at all satisfied that such a near certainty in fact exists. Indeed, the Censor himself allowed publication of the following article in one periodical:

"Generally, as the termination of the office of head of the Mossad draws near, there is a growing amount of agitation concerning the appointment of the next head of the Mossad. A group of ex-Mossad members sought a meeting, at their own initiative, with people at the political level in order to prevent the appointment of a candidate they considered unsuitable."

When the Military Censor was asked about this publication he replied that the article in question "dealt with what happens before termination of the office' in general'". Also, that article does not contain any concrete reference to the timing of the termination of the office, as in our case. The Censor's explanation is not convincing. Examination of the article reveals clearly that a group of ex-Mossad members asked for a meeting at a specific time in the present, and it is difficult to distinguish between that article and the one in our case. The difference between the two articles is so slight that one cannot justify any distinction between them, either from the point of view of security of the State or from that of the interest of freedom of expression.

33. It might be argued: the Military Censor believes that there is a near certainty of harm to state security if criticism of the head of the Mossad and the fact of his impending replacement are published. That is sufficient to justify prohibition of the publication, even if the court thinks that a near certainty does not exist. This argument is unacceptable, as we have already seen. The Censor's position that there exists a near certainty of real damage to state security must be reasonable. His evaluations - based on strong evidence - must be reasonable. In our opinion, the Censor's position and his evaluation are not reasonable. In adopting this approach we are not turning ourselves into a super-censor. We are merely holding that a reasonable censor, functioning in a democratic regime and required to strike a balance between security and freedom of expression, would not arrive at the same conclusion as the first Respondent.

Conclusion

34. Before concluding I would like to state that I do not wish to cast any doubt whatever concerning the Military Censor's good faith. He has a difficult task, which he has to discharge under difficult conditions. Still, it is important to reiterate that the Defence Regulations - even though their source is Mandatory-autocratic - are applied in a democratic country. In these circumstances, their character must be fashioned against the background of their new democratic environment. Of course, democracy is entitled and obliged to defend itself. The democratic state cannot be established without security. But it should not be forgotten that security is not only the Army. Democracy, too, is security. Our power lies in our moral strength and our adherence to democratic principles, precisely when we are surrounded by great danger. Security is not an end in itself, but a means to an end. The end is the democratic regime, which is the rule of the people and which respects the rights of the individual, among which freedom of expression occupies an honored place. Everything must be done, therefore, to minimize the possibility that security considerations will restrict freedom of expression, which is one of the principal values which security is supposed to protect. The way to achieve this balance between security and freedom of expression is to maintain freedom of expression and restrict it only when there is a near certainty of substantial harm to security and there is no other way to prevent the danger while preventing the injury to freedom of expression. The Military Censor must reach his difficult decisions against the background of this basic understanding.

The result is that we make the order nisi absolute to the effect that publication of those parts of the article containing criticism of the head of the Mossad or references to his forthcoming replacement may not be prohibited. We reiterate that publication of any matter that could lead to the identification of the head of the Mossad is forbidden. We also assume that those parts of the article, the publication of which the Petitioners agreed not to publish, during the course of the proceedings before us, will not be published, while those portions, whose publication the Respondents permitted in these proceedings will be published.

The Respondents will bear the Petitioners' costs in the amount of NIS 3,000, including advocates' fees. This amount will bear interest and be linked until payment.

Maltz J.: I concur.

Wallenstein J.: I concur.

Decided as stated in Justice Barak's judgment.

Judgment given on January 10, 1989.

Full opinion:

Saif v. Government Press Office

Case/docket number:

HCJ 5627/02

HCJ 8813/02

Date Decided:

Sunday, April 25, 2004

Decision Type:

Original

Topics:

Administrative Law

Foreigners