Licenses

ACUM v. EMI

Case/docket number: 
CA 5365/11
Date Decided: 
Tuesday, September 3, 2013
Decision Type: 
Appellate
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: 
Primary Author
majority opinion
majority opinion
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.

 

            (c)       Any matter outside the scope of ordinary management and use requires the consent of all the joint owners.

 

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 CopyrightReadings 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: 

Marbek Slaughter House v. Chief Rabbinical Council

Case/docket number: 
HCJ 195/64
Date Decided: 
Sunday, September 27, 1964
Decision Type: 
Original
Abstract: 

The kashrut of the petitioners' establishment was not disputed but the respondents imposed conditions on the grant of the license - in particular requiring the petitioners (l) not to market their kosher meat to butcher shops which did not hold a licence from the first respondent and (2) to market their non-kosher meat to non-Jewish butchers alone and on guarantee that the meat would not find its way into the Jewish market - which the petitioners claimed had nothing to do with the kashrut of their slaughterhouse and imposed a heavy financial burden on them, in addition to being discriminatory since the conditions were not imposed on other slaughterhouses. The licences of butcher shops selling the petitioners' meat were also withdrawn.

 

The first respondent, the body responsible for kashrut licences, did not appear but informally intimated that the High Court of Justice had no jurisdiction to interfere with its halachic decisions and considerations.

               

Held: The attitude of the first respondent suggested a claim to immunity from judicial process rather than a claim of lack of jurisdiction of the part of the High Court of Justice. The rule, however, was that all are equal before the law, unless the legislature has otherwise expressly provided, as in the case of the President of the State and, with qualifications, members of the Knesset. Whilst the legislature had assigned to the first respondent powers in certain areas of religious activity of an administrative nature,  together with the necessary funds out of the State's Budget, it had not found fit to grant it immunity from the operation of the Courts Law. Nor could the High Court, acting as it does under that Law, grant immunity and thereby bar access to aggrieved citizens. The first respondent also was not a judicial tribunal to which the High Court's jurisdiction did not extend. Accordingly the statutory powers of judicial review, vested in the High Court were exercisable vis-a-vis the first respondent to the extent that it derived its authority from secular law and not withstanding that it is subject to the religious law appertaining to the matters with which it deals. The High Court will not prevent the first respondent from applying religious law, or issue kashrut licences in its place, or even intervene in disputes as to the interpretation of religious law.

 

These matters did not arise in the present case and the sole issue was whether the first respondent had been discriminatory and acted ultra vires in denying the petitioners a licence unless they undertook to abide by the conditions sought to be imposed on them. In the absence of any defence,. the allegations of the petitioners were prima facie sustainable.

 

The first respondent's powers of ensuring kashrut for the observant did not include powers to enforce it against the non-observant. The two conditions mentioned above seemed to dictate to whom the petitioners might sell their meat, and failing any explanation it was difficult to discern any connection between these conditions and the kashrut of the meat. which was not in dispute. The imposition of these conditions was therefore ultra vires.

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

H.C.J. 195/64

 

           

THE SOUTHERN COMPANY LTD. AND MARBEK SLAUGHTER HOUSE LTD.

v.

CHIEF RABBINICAL COUNCIL AND TEL AVIV-YAFFO RELIGIOUS COUNCIL

 

           

In the Supreme Court sitting as the High Court of Justice

[September 27, 1964]

Before Olshan P., Agranat D.P., Landau J., Witkon J. and Manny J.

 

 

           

Administrative law - grant of Kashrut licence with extraneous conditions - status of Chief Rabbinical Council - enforcement of religious law - Courts Law, 1957, sec. 7(a) and (b)(2).

 

 

                The kashrut of the petitioners' establishment was not disputed but the respondents imposed conditions on the grant of the license - in particular requiring the petitioners (l) not to market their kosher meat to butcher shops which did not hold a licence from the first respondent and (2) to market their non-kosher meat to non-Jewish butchers alone and on guarantee that the meat would not find its way into the Jewish market - which the petitioners claimed had nothing to do with the kashrut of their slaughterhouse and imposed a heavy financial burden on them, in addition to being discriminatory since the conditions were not imposed on other slaughterhouses. The licences of butcher shops selling the petitioners' meat were also withdrawn.

               

                The first respondent. the body responsible for kashrut licences did not appear but informally intimated that the High Court of Justice had no jurisdiction to interfere with its halachic decisions and considerations.

               

                Held       The attitude of the first respondent suggested a claim to immunity from judicial process rather than a claim of lack of jurisdiction of the part of the High Court of Justice. The rule, however, was that all are equal before the law, unless the legislature has otherwise expressly provided, as in the case of the President of the State and, with qualifications, members of the Knesset. Whilst the legislature had assigned to the first respondent powers in certain areas of religious activity of an administrative nature,  together with the necessary funds out of the State's Budget, it had not found fit to grant it immunity from the operation of the Courts Law. Nor could the High Court, acting as it does under that Law, grant immunity and thereby bar access to aggrieved citizens. The first respondent also was not a judicial tribunal to which the High Court's jurisdiction did not extend. Accordingly the statutory powers of judicial review, vested in the High Court were exercisable vis-a-vis the first respondent to the extent that it derived its authority from secular law and not withstanding that it is subject to the religious law appertaining to the matters with which it deals. The High Court will not prevent the first respondent from applying religious law, or issue kashrut licences in its place, or even intervene in disputes as to the interpretation of religious law.

 

These matters did not arise in the present case and the sole issue was whether the first respondent had been discriminatory and acted ultra vires in denying the petitioners a licence unless they undertook to abide by the conditions sought to be imposed on them. In the absence of any defence,. the allegations of the petitioners were prima facie sustainable.

 

The first respondent's powers of ensuring kashrut for the observant did not include powers to enforce it against the non-observant. The two conditions mentioned above seemed to dictate to whom the petitioners might sell their meat, and failing any explanation it was difficult to discern any connection between these conditions and the kashrut of the meat. which was not in dispute. The imposition of these conditions was therefore ultra vires.

 

Israel case referred to:

 

(1) H.C. 65/51 - Jabotinsky and Cook v. Weizmann (1951) 5 P.D.

            801; I S.J. 75.

           

G. Hausner, H. Goshen and A. Shmaltz for the petitioners.

Y. Pribus for the second respondent.

Attorney-General (M. Ben Zeev), Z. Terlo and M. Cheshin for the Attorney-General.

 

The first respondent did not appear.

 

OLSHAN P.   On 11 August 1964 we announced out decision as follows:

 

"This court has jurisdiction to deal with the case. We accede to the request of the Attorney-General and postpone the hearing of the application to 1 September 1964:"

 

These are the reasons, publication of which was postponed because of the vacation.

 

            On 14 July 1964 an order nisi was issued directed to the Chief Rabbinical Council, the first respondent, and the Religious Council of Tel Aviv-Jaffa, the second respondent, ordering them to show cause "why the first respondent should not give instructions for the supervision of Kashrut (ritual lawfulness) in the slaughterhouse of the petitioner in Kiryat Malachi, subject only to the conditions connected to matters of Kashrut in the same slaughterhouse"; and against the second respondent, "why it should not market meat slaughtered in the said slaughterhouse in the Tel Aviv-Jaffa area on instructions only given to it by the first respondent aforesaid, and why the second respondent should not be prevented from withdrawing the licences and approvals from the butcher shops in the Tel Aviv-Jaffa area which sell kasher meat slaughtered in the above slaughterhouse in accordance with the instructions given to it by the first respondent aforesaid".

 

            The order nisi was granted on the basis of the petitioners' complaints contained in their application to some of which we will refer.

           

            It is by virtue of the "Jewish Community Rules", even before the establishment of the State, and by virtue of legislation of the Knesset (Budget Laws), and the Jewish Religious Services Budgets Law, 1949, and the regulations made thereunder, that the respondent institutions exist, and the control of Kashrut and the granting of Kashrut certificates come within their authority.

           

            The petitioners applied to the respondents for a Kashrut licence to enable them to market meat slaughtered by them in the said slaughterhouse as meat recognised by the Rabbinate as Kasher meat.

           

            In the negotiations with the respondents the petitioners were not confronted with any argument that the slaughtering in their slaughtering house was defective from the point of view of Kashrut.

           

            The respondents, however, put different conditions as conditions precedent to the issue of a Kashrut certificate as requested.

           

            The petitioners argue that these conditions have no connection whatsoever with matters of Halachah, that putting these requirements as a condition to the granting of the requested Kashrut licence is ultra vires and that the respondents refuse their application for peripheral considerations which have no relevance to the question whether the meat marketed by the second petitioner is Kasher or not; that is to say, because of considerations relating to matters not within the respondents' authority such as economic and monetary matters and the like.

 

            The second petitioner has declared that it cannot agree to some of the above conditions but is prepared to abide by all the conditions imposed by the Rabbinate on other slaughterhouses in Israel, and that all discrimination directed against it in this respect is invalid.

           

            Among the conditions indicated by the petitioners we will mention two:

           

(a) that meat slaughtered in the petitioners' slaughterhouse should be marketed only to Kosher butcher shops, that is, butcher shops whose owners have Kashrut certificates from the Rabbinate, and that it is forbidden to market it to the owner of a butcher shop who does not hold a Kashrut certificate from the Rabbinate;

 

(b) that the petitioners may not market those parts of the meat remaining after slaughtering, which are presumed to be trefah (forbidden), without the consent of the local representative of the Rabbinate, and that the petitioners must undertake not to deliver or market in any form whatsoever this trefah meat, except to non-Jewish merchants (or non-Jewish butcher shops), and then only upon receipt of secure financial guarantees from the buyers, such as bank guarantees, to back their undertaking that parts of such meat will not find their way, directly or indirectly, into the Jewish market.

 

            These two conditions are cited only by way of example, because the application spreads over twelve pages, to which many documents are attached, in which the above conditions and other conditions are to be found which might impose upon the petitioners a very heavy financial burden, and also conditions, compliance with which might bring the petitioners into conflict with various secular laws - so the petitioners argue.

           

            Copies of the application with the documents attached were served on the respondents. The second respondent submitted an answer on the merits, indicating that it is not concerned with the issue of Kashrut certificates and that in this respect it is subordinate to the District Rabbinate of Tel Aviv; whilst the respected Chief Rabbinical Council submitted no answer but Rabbi A. Gottlieb, its secretary, sent a letter in which he notified the Court that the Chief Rabbinate had adopted three resolutions, of which the third is, "It is not within the competence of the High Court of Justice to interfere with halachic considerations or in halachic judgments issued by the Chief Rabbinate Council."

 

            The first resolution said that in all matters relating to halachic judgment "the considerations of the Chief Rabbinical Council are only halachic and in this respect subordinate to the laws of the Torah and other instructions as to what and how to decide cannot be accepted."

           

            The second resolution said, "The Chief Rabbinical Council rules according to halachic considerations when and how a Kashrut certificate will be granted on its instructions, and from these considerations it cannot budge".

           

            It should be made clear that in the mere failure by the first respondent to file an affidavit in answer to the application and in its non-appearance no contempt of court has occurred. In all cases of mandamus, the respondent is free to reply or not to reply to the application. At the conclusion of every order nisi it is expressly stated, "The respondents must submit their replies, if they so desire, within ... days ...". Furthermore, when the respondent does not reply and does not appear (as a party) the order nisi does not automatically become an order absolute. But a respondent who does not react does not, thereby, refute the factual and legal arguments of the petitioner. The respondent takes a very serious risk as to the facts proved by the petitioner without contradiction or refutation.

           

            Furthermore, it is the right of every respondent to raise preliminary objections to the jurisdiction of the High Court of Justice claiming that the subject matter of the petitioner's application is not within the competence of this Court, and he may raise the point that the High Court must refrain from exercising its authority. It can also happen that such a respondent, in raising this kind of plea, is doing a service to the Court and the judicial system.

           

            Just as this Court would fail in its duty to the State and its citizens, were it to refuse to exercise its jurisdiction, when the matter is according to law within its jurisdiction and justice demands its intervention, so the Court will not be eager and will fear assuming powers which the law has not granted it, since otherwise it would prejudice the principle of the rule of law. From this point of view, a respondent who raises a convincing argument that the Court actually has no jurisdiction in a given matter also fulfils a civic duty.

 

            As to the above mentioned letter of the secretary (even if we regard it as an answer), it should be noted that it does not deal with the petitioners' complaints that in this matter there was no refusal from the Chief Rabbinical Council as a result of halachic considerations, complaints, according to the petitioners, supported by evidence relating to certain conditions (amongst others) imposed on them. In the first and second resolutions, only "halachic judgments" of the Chief Rabbinical Council generally were mentioned relating to the manner in which it reaches these and nothing whatsoever was said about the petitioners' argument that in the present matter it diverged from this path and therefore acted outside its authority. In this argument of the petitioners we cannot find any denial of the jurisdiction of the first respondent to act according to the Halachah. The complaint, as we have said, is that it acted outside its jurisdiction.

           

            In other words, this letter means, at the most, that the first respondent always bases itself on the Halachah and that as far as concerns the petitioners' complaint is not even obliged to deny it nor are the petitioners entitled to require this court to go into the matter. It follows from the third resolution of the first respondent, therefore, that the High Court has no jurisdiction either to interfere in halachic rules or to deal with any petitioner who charges that it acted not in accordance with halachic considerations, and that it has no jurisdiction to ask the first respondent whether the charge is true and request explanations, because in its view it is enough that it, the first respondent, states publicly that it always directs its steps solely according to the halachic rules.

           

            All this means that the petitioners may not apply to this Court, despite section 7 of the Courts Law, since the first respondent is above that Law, and therefore is not obliged to reply either to the citizen or to the High Court before which the petitioners' complaint was brought and that the first respondent has the power to determine the scope of jurisdiction of the High Court in this respect.

           

            Such an argument is in effect not an argument of lack of jurisdiction but a quasi argument of immunity from the authority of the courts of this country.

           

            The rule in this country is that all are equal before the law, except where the legislator expressly provides otherwise.

           

            The only institution which is immune from the courts is the President of the State and this is regulated by law. (As to the immunity of Members of the Knesset, that is limited and is also regulated by law.)

           

            Before the said Law was enacted, including the provision as to the immunity of the President of the State, the question arose whether it is possible to issue an order nisi (of mandamus) against the President of the State. In Jabotinsky and Cook v Weizmann (1), this Court refused an order nisi after intervention by the Attorney-General who claimed lack of jurisdiction. The question was whether, in the light of section 11 of the Law and Administration Ordinance, the status of the President of the State is to be regarded like the status of the British Crown against which no orders issue. This Court did not accept the argument of the Attorney-General and held that as regards the immunity of the President of the State, the situation here is similar to that in the U.S.A. and not England.

           

            An order nisi was refused not because of the immunity of the President but because the object of the petitioners' complaint there was purely political, relating to the executive and parliamentary authorities. In any event there the matter was not connected with a citizen who complained that the respondent was violating his rights or denying them. The matter was, as I have said, political and in point of the principle, then prevailing and now found in section 7(a) of the Courts Law, the Court did not find that justice demanded its interference.

           

            It is true that the Rabbinical Council was given a certain area of activity by the State regarding religious services relating to Jews, and in this area it was granted certain powers. But the legislator did not think it right to grant immunity to this respected institution, exempting it from the applicability of the Courts Law, and certainly the High Court which is also subordinate to the Law cannot assume jurisdiction (which was never given to it) to grant it such immunity and bolt the doors of this Court to a citizen.

    

            In order to remove what was called by the learned Attorney-General a misunderstanding, one must pause to consider the terms "judgments" and "halachic judgments" mentioned in the letter of the first respondent's secretary.

           

            The source of the jurisdiction of the High Court is found in the various subsections of section 7 of the Courts Law, 1957. The jurisdiction of the High Court relating especially to religious tribunals springs from section 7(b)(4) which speaks of religious tribunals, recognised as such by the law, including the rabbinical courts, the decisions of which are called and are also regarded as "judgments". Institutions to which the Law has not granted a status of courts are not included in section 7(b)(4), for instance, the Chief Rabbinical Council, is not a tribunal in this sense, even if in dealing with the matters under its jurisdiction, it acts according to halachic principles and calls its decision "halachic judgments". From the point of view of the Courts Law the Chief Rabbinical Council is a body recognised by the law of the State "as exercising public functions by virtue of law" (section 7(b)(2) of the Courts Law).

           

            Just as a rabbinical court whose jurisdiction is determined by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 comes within section 7(b)(4), so also the Chief Rabbinical Council - an authority recognised by the State in that certain administrative powers relating to different religious services are vested in it - comes as such within section 7(b)(2) of the Courts Law. The fact that the matters are dealt with by the Chief Rabbinical Council on the basis of "halachic judgments" can be of great importance regarding the merits of a dispute brought before the High Court but it has no bearing at all on the jurisdiction of the High Court to hear and examine a citizen's complaint against a public authority on the ground that it discriminates between him and others without legal basis or that it has acted outside the scope of its jurisdiction and other like grounds.

           

            In such a case the High Court must open its doors to the citizen who complains, give ear to his complaint and grant him relief if he proves that his complaint is well-founded in law. It is that which the High Court has been ordered to do by the legislator in section 7(a) of the Courts Law:

           

"The Supreme Court sitting as a High Court of Justice shall deal with matters in which it deems it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal" (emphasis added).

 

And the beginning of section 7(b) reads as follows:

 

"Without prejudice to the generality of the provisions of subsection (a), the Supreme Court sitting as a High Court of Justice shall be competent...

 

(2) to order State authorities, local authorities and officials of State authorities or local authorities, and such other bodies and individuals as exercise any public functions by virtue of law, to do or refrain from doing any act in the lawful exercise of their functions...".

 

            By virtue of this provision the High Court has issued and continues to issue orders against every institution or person who exercises a function recognised by the law, such as Government Ministers, including the Prime Minister, various State institutions and even the Chief Rabbis.

           

            In order to avoid another misunderstanding it should be noted that the High Court reacts and demands explanations only from a body that acts as a body recognised by the (secular) law in using the powers or authority granted to it by law, from a body which in its actions relies on its recognition by the secular legislator for the purpose thereof. As has been said, the fact that such a body also generally relies on "halachic judgments" does not detract from the jurisdiction of the High Court.

           

            The supremacy of section 7(a) and section 7(b)(2) of the Courts Law governs every public officer or public authority or public body recognised by the State, and to the extent that they derive their powers or authority from the legislator (here called the secular legislator). To the extent that the Chief Rabbinical Council exercises such powers and authority - notwithstanding that it applies the halachic rules to the merits of the matters brought before it - the section rules so long as the secular legislator has not provided otherwise.

           

            This does not mean that this Court will conclude that the first respondent must not act according to the halachic rules in a matter within its jurisdiction, or that this Court wilI assume jurisdiction to issue Kashrut certificates in place of the respondents, or one of them - we were not requested to do that even by the petitioners.

 

            Furthermore, had the petitioners' application been based on the argument that there are serious differences of opinion between the parties as to the interpretation of a certain Halachah and had the petitioners wanted to impose their own interpretation on the respondents - it is doubtful if they would have even obtained an order nisi.

           

            But this is not the case here. The petitioners' complaint is that the respondents have exceeded their jurisdiction in using considerations which have no connection to the Halachah relating to the granting of Kashrut certificates for meat slaughtered in their slaughterhouse. (The petitioners have never denied the need that the slaughtering should be under rabbinical control.)

           

            Let it be clear that in dealing with the question of our jurisdiction we must look at the matter from the point of view of the secular legislator. We must deal with it on the presumption that under the Jewish Community Rules the first respondent has the power and authority to control Kashrut in order to issue Kashrut certificates as petitioners' counsel proved at least prima facie. At this stage we do not have to take any position on this subject, because it will have to be dealt with when the merits of the case are considered, if at all.

           

            Suppose that the Chief Rabbinate did not exist as a recognised institution, financing itself out of the budget of the State and receiving official State approval for its activity in a certain area of life - either by grant of jurisdiction or by recognition of its jurisdiction - but that the situation is that it exists as a result of internal organisation and that each Rabbi can issue Kashrut certificates for meat. Suppose that the petitioners are interested in receiving a certificate precisely from the Chief Rabbinate which refuses to grant it except on the two above conditions: not to sell Kasher meat to a Jew who does not eat Kasher or to an owner of a butcher shop who does not hold a Kashrut certificate, and not to sell the trefah parts even to a non-Jew, unless he gives a sure guarantee that they will not reach Jews, either directly or indirectly. In such a case even the Chief Rabbinate would have openly stated the reasons for its refusal, that it is interested that all Jews in the country without exception should eat Kasher meat and that it thinks that to avoid the possibility of Jewish owners of butcher shops, who do not hold Kashrut certificates, buying Kasher meat (when there is a shortage of meat) would exert pressure and be an efficient means for imposing the system of Kashrut on the entire Jewish public in the country. In such an event one would have thought that it would be permitted so to act, because the petitioners' application to the Chief Rabbinate would have been regarded as if made to an institution, under the status and moral and religious standard of which they sought protection. 1 think that the Chief Rabbinate would have then said to the petitioners, "if you wish, in order to market your Kasher meat to enjoy our protection and religious and moral influence, you must accept the above conditions in order to help us enforce Kashrut on the Jewish public". In such a hypothetical case it would not have been possible to complain about the non-official Chief Rabbinate, because in its intention to enforce a regime of Kashrut it uses pressure unrelated to the jurisdiction granted to it by the State. Certainly in such a case, it would not have been a matter for the High Court. But the situation here is different. Why was an order nisi issued? The petitioners pointed out that in pursuance of secular law they need a Kashrut certificate from the Chief Rabbinate and the local Religious Council, because jurisdiction in matters of Kashrut have been granted by the State to these and not to others. Because petitioners' counsel in his application referred to various enactments, one would have presumed that it was so unless the argument is refuted by the respondents when the matter is dealt with on the merits.

 

            When the petitioners complained in their application about the various conditions that the first respondent intended to force on them, among them the two conditions abovementioned, then at least prima facie - so long as the complaint has not been refuted - it seems that the petitioners' complaint is well-founded, at least to an extent which entitles the petitioners - and imposes on this Court the obligation - to ask for an explanation from the respondents and to test the petitioners' complaint by the legal principles and rules which the (secular) law requires, and of course in the light of the respondents' explanations, if submitted.

           

            What is prima facie the substance of the petitioners' complaint which obliged this court to hear the petitioners' application?

           

            The Rabbinate was given authority by the State to control Kashrut for Jews interested in Kashrut, so that those who observe Kashrut at home or in living generally will know that the meat sold to them at a butcher shop of which the owner holds a Kashrut certificate from the Rabbinate is really Kasher. But this authority is not aimed at enforcing a regime of Kashrut of Jews who are not interested in it.

 

            Prima facie, at least, the two abovementioned conditions seem to be necessary in order to dictate to the petitioners to whom they should sell their product and to whom they should not. And in the absence of any explanation it is difficult co see the connection between this and the question whether the petitioners' meat is Kasher.

           

            No argument was heard that the conditions, about which the petitioners complained, have any connection with the carrying out of Kasher slaughtering in the petitioners' slaughterhouse or to their marketing of Kasher meat; that is to say that if the petitioners will sell Kasher meat to non-Jews or to a Jew who wants to buy it because its quality is better and not because it is Kasher, then all the meat of the petitioners will be turned into Trefah meat.

           

            It seems therefore that at least prima facie, what emerges from the petitioners' complaint is that it is not because of any defect in the Kashrut of their meat that they are refused a Kashrut certificate, but in order to use the petitioners as a means to enforce Kashrut on Jews who do not observe Kashrut or so that all owners of Jewish butcher shops will be forced to have Kashrut certificates from the Rabbinate. So long as it was not argued and shown that according to the Halachah, without imposing the conditions, the petitioners' meat cannot be regarded as Kasher, there is no doubt that the petitioners' demand to test their complaint that the respondents acted beyond their powers, is based in law. Such an argument was not heard or even hinted at.

           

            It is clear from the foregoing that our decision as aforesaid takes up no position on the merits of the case; neither as to the respondents' jurisdiction nor as to excess of jurisdiction, as the petitioners argue.

           

            The foregoing reasons serve only to explain this Court's approach to a hearing of the petitioners' application on its merits.

           

            Judgment given on September 27, 1964.

Majority Camp v. Israel Police

Case/docket number: 
HCJ 2557/05
Date Decided: 
Tuesday, December 12, 2006
Decision Type: 
Original
Abstract: 

Facts: The petitioners applied to the first respondent to hold a demonstration in Tel-Aviv supporting the government’s disengagement plan. The first respondent imposed various conditions upon the holding of the demonstration, including demands that the petitioners should arrange to have security, first aid and fire extinguishing services present at the demonstration. The second and third respondents demanded payment from the petitioners for providing the first aid and fire extinguishing services. The petitioners challenged the legality of the demands made by the first, second and third respondents, arguing, inter, alia, that the fourth respondent should be liable to pay the third respondent, since the demonstration was held on municipal property.

 

Held: The first respondent was not authorized to require the petitioners to provide security services at their demonstration. The police have the duty to provide security and maintain order at demonstrations, and they may not impose this responsibility on the persons organizing the demonstration.

 

The responsible ministers had not exercised their power to enact regulations authorizing the second respondent to charge fees for providing first aid services at public events. Therefore the second respondent had no authority to demand payment for providing first aid services at the demonstration.

 

The third respondent is authorized by regulations to demand payment for services. The party liable to pay for the third respondent’s services is the ‘recipient of the service.’ According to the regulations the recipient of the service is the owner of the land where the service was provided. Therefore the fourth respondent was found liable to pay for the third respondent’s services at the demonstration.

Voting Justices: 
Primary Author
majority opinion
majority opinion
Author
concurrence
Full text of the opinion: 

HCJ 2557/05

1.         Majority Camp

2.         SHA’AL Educational Projects

v.

1.         Israel Police

2.         Magen David Adom in Israel

3.         Fire Extinguishing Authorities

4.         Tel-Aviv-Jaffa Municipality

 

 

The Supreme Court sitting as the High Court of Justice

[12 December 2006]

Before President Emeritus A. Barak and Justices M. Naor, E. Rubinstein

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The petitioners applied to the first respondent to hold a demonstration in Tel-Aviv supporting the government’s disengagement plan. The first respondent imposed various conditions upon the holding of the demonstration, including demands that the petitioners should arrange to have security, first aid and fire extinguishing services present at the demonstration. The second and third respondents demanded payment from the petitioners for providing the first aid and fire extinguishing services. The petitioners challenged the legality of the demands made by the first, second and third respondents, arguing, inter, alia, that the fourth respondent should be liable to pay the third respondent, since the demonstration was held on municipal property.

 

Held: The first respondent was not authorized to require the petitioners to provide security services at their demonstration. The police have the duty to provide security and maintain order at demonstrations, and they may not impose this responsibility on the persons organizing the demonstration.

The responsible ministers had not exercised their power to enact regulations authorizing the second respondent to charge fees for providing first aid services at public events. Therefore the second respondent had no authority to demand payment for providing first aid services at the demonstration.

The third respondent is authorized by regulations to demand payment for services. The party liable to pay for the third respondent’s services is the ‘recipient of the service.’ According to the regulations the recipient of the service is the owner of the land where the service was provided. Therefore the fourth respondent was found liable to pay for the third respondent’s services at the demonstration.

 

Petition granted.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 2, 4.

Basic Law: the Knesset, s. 7A.

Fire Extinguishing Services (Payments for Services) Regulations, 5735-1975, rr. 1, 2.

Fire Extinguishing Services Law, 5719-1959.

Magen David Adom (Fees for Emergency Ambulance Transport) Regulations, 5766-2006.

Magen David Adom Law, 5710-1950, ss. 5, 7A.

Police Ordinance [New Version], 5731-1971, ss. 3, 84, 85, 86.

Public Places Safety (Assemblies) Regulations, 5749-1989, r. 9(a).

Public Places Safety Law, 5723-1962.

State Economy Arrangements (Legislative Amendments for Achieving Budgetary Targets and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002, s. 56.

 

Israeli Supreme Court cases cited:

[1]        HCJ 148/79 Saar v. Minister of Interior [1980] IsrSC 34(2) 169.

[2]        HCJ 2740/96 Chancy v. Diamond Supervisor [1997] IsrSC 51(4) 491.

[3]        HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[4]        HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

[5]        HCJ 4804/94 Station Film Ltd v. Film and Play Review Board [1996] IsrSC 50(5) 661; [1997] IsrLR 23.

[6]        HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421.

[7]        HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[8]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[9]        CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[10]     LCA 10520/03 Ben-Gvir v. Dankner (not yet reported).

[11]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported).

[12]     HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[13]     HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

[14]     HCJ 402/89 Israel Football Association v. Minister of Education [1989] IsrSC 43(2) 179.

[15]     HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [1998] IsrSC 52(3) 679.

[16]     HCJ 399/85 Kahane v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[17]     HCJ 1928/96 YESHA Council v. Jerusalem District Commissioner of Police [1996] IsrSC 50(1) 541.

[18]     HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[19]     HCJ 7081/93 Botzer v. Maccabim-Reut Local Council [1996] IsrSC 50(1) 19.

[20]     HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[21]     HCJ 6658/93 Am Kelavi v. Jerusalem Police Commissioner [1994] IsrSC 48(4) 793.

[22]     HCJ 28/94 Zarfati v. Minister of Health [1995] IsrSC 49(3) 804.

[23]     LCA 10962/03 Harar v. State of Israel (not yet reported).

[24]     HCJ 2725/03 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 366.

[25]     HCJ 6897/95 Kahane v. Brigadier-General Kroizer [1995] IsrSC 49(4) 853.

[26]     HCJ 2979/05 YESHA Council v. Minister of Public Security (not yet reported).

[27]     AAA 3829/04 Twito v. Jerusalem Municipality (not yet reported).

 

American cases cited:

[28]     Forsyth County, Georgia v. Nationalist Movement, 505 U.S. 123 (1992).

[29]     Jones v. City of Opelika, 319 U.S. 103 (1943).

 

Jewish law sources cited:

[30]     Rabbi Y. Zilberstein, ‘The Duty to Demonstrate Against Desecration of the Sabbath,’ 7 Tehumin 117 (1986).

[31]     Isaiah 33, 15.

[32]     Mishnah, Tractate Avot (Ethics of the Fathers), 2, 16.

 

For the petitioners — T. Reshef.

For the first respondent — D. Chorin.

For the second respondent — Dr J. Weinroth, Dr G. Gontovnik.

For the third respondent — Y. Simon.

For the fourth respondent — R. Avid.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

The petitioners wished to hold a demonstration. The police commissioner made the granting of the licence for the demonstration conditional upon the presence of cordons, security personnel and organizers on behalf of the organizers of the demonstration and at their expense. He also made the granting of the licence conditional upon the presence of fire engines and ambulances. The fire extinguishing authority and Magen David Adom made the provision of services conditional upon payment by the organizers of the demonstration. The petition before us challenges the legality of these demands by the police commissioner, the fire extinguishing authority and Magen David Adom.

The background to the petition

1.    The petitioners wished to hold a march from Rabin Square to Dizengoff Square and to hold a demonstration there. The demonstration was intended to express support for the government’s plan of disengagement from the Gaza Strip. Initially the first respondent refused the petitioners’ request. After negotiations, the first respondent agreed to give a licence to hold the demonstration, but made the granting of the licence subject to many conditions, including building a front command room for the use of the police at Dizengoff Square and connecting it to a telephone line and electricity; erecting a loudspeaker system throughout the procession route and connecting it to the police front command room; erecting three close-circuit screens; cordoning off various areas by means of many dozens of cordon fences; deploying dozens of security personnel from a security company and dozens of organizers for ensuring security and public order; announcing the event in the media with details of traffic arrangements and the prohibition of bringing weapons; erecting signs prohibiting the parking of cars in the area of the demonstration; distributing pamphlets to the residents of the area about the traffic and parking arrangements; having towing vehicles present to remove cars from the area, and making arrangements with a parking lot for the towed cars; and having ambulances and fire engines present in case of emergency.

2.    The financial outlay for the purpose of complying with these demands was estimated by the petitioners as approximately NIS 300,000. The petitioners opposed these demands. After further negotiations, the first respondent waived some of the demands. Thus, for example, the first respondent waived the demand that the petitioner would build a police front command room and the demand to announce the event in the media. The first respondent did not waive the demands concerning the deployment of security personnel and organizers. Likewise the first respondent did not waive the demands concerning having ambulances and fire engines present. Even after the demands were reduced, the petitioners estimate the cost of the first respondent’s demands at more than one hundred thousand sheqels.

3.    The petitioners finally agreed to comply with the demands made by the police, and the demonstration has already taken place. Notwithstanding, in view of the fundamental questions that arise from the petition, we asked the parties to submit supplementary arguments on the questions in dispute. In view of the fact that the petitioners raise arguments concerning the financial obligation involved in having ambulances and fire engines present on standby during the demonstration, we ordered Magen David Adom and the fire extinguishing authorities to be joined as additional respondents in the petition. In view of the petitioners’ argument that the Tel-Aviv Municipality should be the one to pay the costs of the fire extinguishing services, we ordered the Tel-Aviv Municipality to be joined as a respondent in the petition.

The arguments of the parties

4.    The petitioners claim that the respondents are not entitled to impose on them demands that fall within the scope of the natural duties of the police and which have a considerable cost. They argue that this court has held in the past that the Israel Police is not entitled to demand the employment of policemen for remuneration, and it should only employ policemen in the course of their duties for events that constitute the realization of basic rights. The petitioners’ position is that the police demands are merely an attempt to circumvent the court’s ruling. Instead of a direct payment, the police are demanding that the petitioners provide ‘private policing’ by means of security personnel and organizers of their own and at their expense. According to the petitioners, there is no difference between a demand to pay for the deployment of policemen and a demand to provide security personnel, organizers and cordons. The petitioners claim that the demands of the police, the fire extinguishing services and Magen David Adom constitute a serious violation of the constitutional right of the petitioners and their supporters to demonstrate and their right to freedom of speech. Imposing a financial burden on someone who wishes to demonstrate is tantamount to restricting the very realization of the right. It makes the freedom of speech a privilege reserved only for the rich, and it discriminates between rich and poor. Thus the right to freedom of speech is violated and the democratic character of the state is undermined.

5.    The Israel Police request that we deny the petition. Its position is that it has the authority to demand that the organizers of a demonstration comply with certain conditions, including conditions involving a cost, in view of the size of the demonstration, the degree of disturbance that the demonstration causes to the public and additional considerations. The first respondent seeks to distinguish between tasks that are related to the internal organization of a demonstration, such as maintaining public order among the demonstrators and tasks that are related to security measures for the ‘periphery’ of the demonstration, such as closing roads along the demonstration’s path and security against any hostile elements. The first respondent’s position is that tasks that are related to maintaining public order among the demonstrators are not tasks that constitute a part of police duties. According to the police, this concerns the internal organization of an event, and as such the organizers of the event should be responsible for it. The police may make the granting of a licence for a demonstration dependent upon conditions that are intended to ensure that the organizers of the demonstration discharge this responsibility of theirs, even if complying with these conditions involves a financial cost. These conditions may include demands to cordon off the area of the demonstration and to arrange for organizers and security personnel to be present, in order to ensure public order. The police further argue that accepting the petitioners’ position will lead to an intolerable result in which every organization will be able to demand that the police allocate considerable resources to every demonstration or public event that they wish to hold, without these organizations having any responsibility or being liable for any expense as the organizers of the event. Therefore, according to the police, there is nothing wrong in requiring the organizers of the event to bear some of the responsibility and the expense arising from the event that they wish to hold, provided that this responsibility relates to the internal organization of the event, and not the natural functions of the police. This should be the case particularly in view of the limited resources of the police in its budget and workforce.

6.    The second respondent, Magen David Adom, requests that we deny the petition. Its position is that regulation 9(a) of the Public Places Safety (Assemblies) Regulations, 5749-1989, gives Magen David Adom the authority to determine the appropriate first aid arrangements for every event in a public place. The criteria according to which Magen David Adom determines the necessary arrangements for medical personnel for demonstrations and assemblies are objective and treat everyone equally, and they take into account the expected number of participants at the event, the character of the event, its location, etc.. Therefore, in view of the provisions of the law and the professionalism of the Magen David Adom in this sphere, there is no defect in the prevailing custom whereby the police defer to the professional judgment of Magen David Adom with regard to the arrangements for medical personnel at demonstrations and assemblies. When these arrangements are determined, the person in charge of the event is entitled to hire the medical services from any company that provides these services, and it is not liable to acquire these services specifically from Magen David Adom. There are private organizations that provide similar services, and the person in charge of the event may request services from them. When the person in charge of the event chooses to request the services from Magen David Adom, he cannot expect that these services will be provided without charge. Moreover, Magen David Adom is competent to collect payments for its services in accordance with what is stated in Magen David Adom’s bylaws of 1992. The second respondent’s position is that its authority to collect payments by virtue of its bylaws is valid despite the enactment of s. 7A of the Magen David Adom Law, 5710-1950, as amended in 2003. The reason for this is that appropriate regulations for the purposes of this section have not yet been enacted, and section 7A should not be interpreted as intending to take away Magen David Adom’s authority to collect payments. The second respondent’s position is that its charges are reasonable and proportionate. According to the figures presented by the second respondent, the cost of the services that were provided to the petitioners with regard to the demonstration was only NIS 9,740, and not NIS 25,000 as the petitioners claim.

7.    The third respondent, the fire extinguishing authority, requests that we deny the petition. Its argument is that the authority of the various fire extinguishing authorities to collect payment for fire extinguishing services is enshrined in r. 2 of the Fire Extinguishing Services (Payments for Services) Regulations, 5735-1975. This payment is for a service that was provided to the petitioners, and it should not be regarded as a violation of their right of the freedom to demonstrate. In addition, the amount of the payment itself was low — approximately only one thousand sheqels — and this is a reasonable and proportionate amount.

8.    The fourth respondent, the Tel-Aviv Municipality, supports the arguments of the third respondent. Its position is that the charge for the cost of the fire extinguishing services should be paid by the persons who wish to hold a demonstration, since they are the ‘recipients of the service’ for this purpose. The position of the fourth respondent is that the municipality cannot be considered the recipient of the service since it has no interest in the holding of the demonstration, and in any case the municipality has no need for or interest in receiving the fire extinguishing services that constitute a condition for holding the demonstration.

The normative framework

9.    The authority of the police commissioner to make the holding of a demonstration dependent upon conditions is enshrined in the provisions of ss. 84 and 85 of the Police Ordinance [New Version], 5731-1971 (hereafter: ‘the Police Ordinance’). Section 84 of the Police Ordinance provides that the district police commissioner may determine — whether in a general proclamation or a special proclamation — that the holding of a meeting or procession shall be conditional upon a licence. This determination depends upon the district police commissioner being of the opinion that this is required in order to ‘maintain public security or public order.’ On the basis of this provision, district police commissioners have issued general proclamations, according to which anyone who wishes to organize or hold a procession or a meeting in an open place must obtain a permit (see HCJ 148/79 Saar v. Minister of Interior [1], at p. 173). By virtue of this provision, anyone who wishes to organize or hold a meeting (which, according to the definition in the Police Ordinance, means an assembly of fifty or more persons for the purpose of hearing a speech or a lecture) or a procession (which, according to the definition in the Police Ordinance, means a march, or an assembly for the purpose of marching together, of fifty or more persons) is liable to submit an application to the district police commissioner for a licence. Sections 85 and 86 of the Police Ordinance provide that the district commissioner may give the licence, refuse to give it or give it conditionally:

‘Licensing

85. If an application is submitted for a licence, pursuant to a proclamation that was published under section 84, the commissioner may —

 

(1) grant the licence;

 

(2) grant the licence subject to a guarantee or on conditions or with other restrictions that he thinks fit to require, and the conditions and restrictions shall be stated on the licence;

 

(3) refuse to grant the licence.

 

Licence exempt from fee

86. No fee is payable for a licence under section 85.’

A reading of the language of s. 85 of the Police Ordinance shows that the authority given therein to the district commissioner to make the granting of a licence for a demonstration subject to conditions is general and vague. The section does not specify, even in general terms, what conditions the police commissioner may impose, and for what considerations he is entitled to impose such conditions. There is no guidance at all for the administrative discretion. This is vague legislation. Vague legislation is undesirable. It is capable of violating the principle of the separation of powers and the principle of the rule of law (see HCJ 2740/96 Chancy v. Diamond Supervisor [2], at p. 520). How does it violate the principle of the separation of powers? This principle requires the Knesset, and not the executive, to determine the general criteria for the exercising of administrative power. A broad and vague authority violates the Knesset’s power of legislation. How does it violate the principle of the rule of law? The substantive rule of law requires the law to be ‘clear, certain and understandable so that members of the public can manage their affairs accordingly’ (ibid. [2]). A general and vague authority impairs the ability of members of the public to have a proper knowledge of their rights and duties. This, for example, is what happened in this case, when the petitioners were surprised by the demands that the police imposed on them. Vague legislation violates the provisions of the constitution (see for example: L. Tribe, American Constitutional Law (second edition, 1988), at pp. 1033-1035; P.W. Hogg, Constitutional Law of Canada (student edition, 2005), at pp. 1063-1068). This approach applies in our legal system as well, with regard to legislation that is not ‘protected’ from constitutional scrutiny by means of ‘saving of laws’ provisions. This approach also applies with regard to the legality of subordinate legislation (see the opinion of Justice M. Cheshin in Chancy v. Diamond Supervisor [2], at pp. 514-519).

10. Is it possible to regard s. 85 of the Police Ordinance as a source that authorizes the police to make a licence for a demonstration conditional upon providing security personnel, security cordons and security checks, loudspeaker and announcement systems, and other similar conditions concerning the security of the demonstration that involve significant costs for its organizers? My opinion is that the answer to this question is no. This is because of the importance and status of the right of freedom of speech and the right to demonstrate, on the one hand, and the role of the state as a whole, and of the Israel Police in particular, in protecting this right and the possibility of realizing it, on the other. I shall discuss these two reasons below.

The constitutional right to demonstrate and the right of freedom of speech

11. The freedom of speech is the ‘essence’ of democracy — a basic right that is also a supreme principle in every democratic system of government (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [3]; HCJ 153/83 Levy v. Southern District Commissioner of Police [4], at p. 398 {114}; HCJ 4804/94 Station Film Ltd v. Film and Play Review Board [5], at p. 675 {33}). The freedom of speech is numbered among the basic human freedoms in Israel. Its place is on the highest echelon of basic rights, since ‘without democracy there is no freedom of speech, and without freedom of speech there is no democracy’ (HCJ 14/86 Laor v. Film and Play Review Board [1987] IsrSC 41(1) 421). The right to demonstrate and hold processions is an inseparable component of the right to freedom of speech. It constitutes one of the main ways of expression opinions and raising social issues on the public agenda. Indeed —

‘The right to demonstrate and hold processions is one of the basic human rights in Israel. It is recognized, alongside the freedom of speech or as deriving therefrom, as being one of those freedoms that shape the character of the system of government in Israel as a democratic system of government. There are some who think that the ideological basis for this freedom is the desire to ensure the freedom of speech, which in turn contributes to the discovery of the truth. Others think that the essence of the right is the existence and functioning of the democratic system of government, which in turn is based on the freedom of information and the freedom of protest. There are also some who claim that the freedom to demonstrate and hold processions is an essential component of the general human freedom of self-expression and independent thought… It seems that the freedom of demonstration and assembly has a broad ideological basis, at the centre of which is the recognition of the worth of the human being, his dignity, the freedom given to him to develop his personality and the desire to maintain a democratic form of government. By virtue of this freedom, means of expressing themselves are given to those people who do not have access to national and commercial channels of expression. Therefore it is accepted in our legal system, as well as in the legal systems of other enlightened democratic countries, that the right of demonstration and assembly is given a place of honour in the sanctuary of basic human rights’ (Levy v. Southern District Commissioner of Police [4], at p. 398 {114}; see also Saar v. Minister of Interior [1]; HCJ 2481/93 Dayan v. Wilk [7]).

12. In 1992 the Knesset enacted the Basic Law: Human Dignity and Liberty. The principle of the freedom of speech was not enshrined expressly in the language of the law. But in a host of judgments this court has held that the Basic Law also includes the freedom of speech, within the framework of the rights and liberties protected by it, and it thereby gives the freedom of speech the status of a constitutional right. This was discussed by Justice Mazza:

‘Admittedly, the Basic Law: Human Dignity and Liberty does not mention freedom of speech, nor does it define it expressly as a basic right. But this is immaterial: even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?’ (PPA 4463/94 Golan v. Prisons Service [8], at p. 157 {507}).

I too discussed this in Dayan v. Wilk [7], which concerned the right to hold demonstrations and processions:

‘In the past, this right was recognized in case-law, and it was one of those basic rights that are “unwritten”, but which derive directly from the character of the State as a freedom-loving democracy. It appears that now this right can be derived from the Basic Law: Human Dignity and Liberty, which provides a statutory constitutional basis for the human right to dignity and liberty. The freedom to express oneself — in words alone or by expressive actions — is a major expression of human dignity and liberty. Indeed, the freedom of demonstration and assembly has a broad ideological basis, at the centre of which is the recognition of the worth of the human being, his dignity, the freedom given to him to develop his personality, and the desire to maintain a democratic form of government’ (ibid. [7], at p. 468 {335-336}, references omitted; see also CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [9], at p. 201).

Indeed, ‘today freedom of speech exists no longer as a basic right that is “unwritten”… It is a protected constitutional right’ (per Justice E. Rivlin in LCA 10520/03 Ben-Gvir v. Dankner [10], at para. 10 of his opinion).

            13. Notwithstanding, not all the aspects of the right of freedom of speech are included in the constitutional right to human dignity, but only those aspects that are derived from human dignity and are closely related to ‘those rights and values that lie at the heart of human dignity as expressing a recognition of the autonomy of the individual will, the freedom of choice and the freedom of action of the individual as a free agent’ (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [11], at para. 41 of my opinion), or those aspects that are ‘found in the heart of the right to human dignity’ (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [12], at para. 32 of my opinion). Indeed —

‘… one should not “read” into the right to dignity more than it can support. Not all rights can be derived from an interpretation of the Basic Law: Human Dignity and Liberty… when deriving rights that are not mentioned expressly in the Basic Laws dealing with human rights but are included in the concept of human dignity, it is not always possible to incorporate the whole scope that the “derived” rights would have had if they had been included separately as “named rights” ’ (HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [13], at para. 15 of my opinion; HCJ 4128/02 Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503, at p. 518; Movement for Quality Government in Israel v. Knesset [11], at para. 34 of my opinion; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [12], at para. 31 of my opinion).

Determining the scope of the right to freedom of speech as a constitutional right derived from human dignity should be done in accordance with the meaning that should be given to the concept of human dignity. We do not need, in this case, to discuss in detail the aspects of the right of freedom of speech that are included in the concept of human dignity. It seems to me that a demonstration that has a political or social background is an expression of the autonomy of the individual will, freedom of choice and freedom of action that are included within the scope of human dignity as a constitutional right.

Freedom of speech and demonstration: a ‘negative’ and ‘positive’ right

14. The duty of the state to protect the constitutional right of freedom of speech and demonstration has two aspects. First, the state has a duty not to violate a person’s right of freedom of speech and demonstration, such as by imposing a prohibition on his ability to realize his right. This is the negative aspect (the status negativus) of the right. It is enshrined in s. 2 of the Basic Law: Human Dignity and Liberty (‘One may not harm the life, body or dignity of a person’). Second, the state has a duty to protect the right of freedom of speech and demonstration. This is the positive aspect (the status positivus) of the right. It is enshrined in s. 4 of the Basic Law: Human Dignity and Liberty (‘Every person is entitled to protection of his life, body and dignity’). In our case, the significance of the positive duty is reflected in the duty of the state, within the limits of reason and taking into account the means available to it and the order of priorities determined by it, to allocate the resources that are required in order to allow the realization of the right of freedom of speech and demonstration. What I said with regard to the constitutional right to dignity in Commitment to Peace and Social Justice Society v. Minister of Finance [13] is apposite in this context:

‘The two aspects, the negative (passive) aspect and the positive (active) aspect are different parts of the whole, which is the constitutional right to dignity. They both derive from the interpretation of the right to dignity, as enshrined in the Basic Law. Neither aspect takes precedence over the other… The prohibition against violating dignity and the duty to protect dignity both impose significant duties on the state and the individuals living in it’ (ibid. [13], at para. 12 of my opinion).

15. The duty of the state according to the ‘positive’ aspect of the right of freedom of speech and demonstration means, inter alia, its duty to allow the realization of the right to demonstrate by providing security and maintaining public order during the demonstration. The Israel Police is the body that is responsible for this aspect. The task of maintaining public order during a demonstration and protecting the possibility of realizing the constitutional right of freedom of expression, procession and demonstration is one of the main, patent and vital functions of the Israel Police. This conclusion is required both from the viewpoint of the functions of the police under the law and also in view of the importance of the protection of basic constitutional rights in a democracy. Section 3 of the Police Ordinance, which defines the functions of the police, tells us that: ‘The Israel Police shall engage… in maintaining public order and security for persons and property.’ The Israel Police is responsible for maintaining public order and protecting the safety and security of Israeli citizens from criminal acts and breaches of the law, as well as during public events, and especially public events that constitute the realization of basic rights, such as assemblies, processions and demonstrations. Admittedly, sometimes the question whether a certain act falls within the scope of the natural functions of the police may be a complex one. Thus, for example, questions have arisen as to whether security at football games falls within the scope of the police’s functions (see HCJ 402/89 Israel Football Association v. Minister of Education [14], at pp. 182-183); or whether security at commercial-private festivals, such as the Jazz Festival in Eilat, falls within the scope of the natural functions of the police (HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [15]). But no doubt of this kind arises in our case. It is clear and certain that maintaining order at public events which involve a realization of constitutional rights, such as demonstrations, falls within the very heart of the police’s functions. This was discussed by Justice E. Mazza in Israel Football Association v. Minister of Education [14]:

‘The occupation of maintaining public order and protecting the safety and security of the public, whether during and as a result of events that involve a breach of the law or on the occasion of national or mass public events, whose occurrence gives rise to concerns of breaches of the law and infringements of public order or public security, are clearly functions of the police, under s. 3 of the ordinance. The same is true of the duty of the police to take reasonable measures to maintain order and peace, when this is required to realize basic freedoms, such as the freedom of assembly and demonstration’ (ibid. [14], at pp. 182-183).

The subject was also discussed by Justice M. Cheshin in Multimedia Co. Ltd v. Israel Police [15], where he held that the ‘classical functions’ of the police include protecting the safety of citizens and their property, and also maintaining order at ‘events that can be characterized as public events, such as events that involve rights of the individual, such as the rights of assembly, demonstration, election events, etc.’ (ibid. [15], at p. 693; see also the remarks of Justice I. Zamir at p. 715-717).

16. In Multimedia Co. Ltd v. Israel Police [15], Justice M. Cheshin said that the question of which functions are included within the natural functions of the police will ultimately be decided according to the ‘ethical criterion’ (ibid. [15], at p. 693). This is indeed the case. These remarks are also apposite with regard to the function of the police in maintaining public order at demonstrations, assemblies, elections events and other similar events that involve a realization of the basic political freedoms. Indeed, just as it is inconceivable that the police should impose a financial burden on someone requesting its protection against a burglar (see Multimedia Co. Ltd v. Israel Police [15], at p. 692), so too it is inconceivable that the police should impose a financial burden on someone wishing to realize his right to freedom of speech and demonstration. Property rights and the right to physical safety are important rights. Protecting these is a part of police functions. But the freedom of speech and the right to demonstrate are also basic rights. The police are also charged with protecting them. They are not entitled to pass the responsibility for security and maintaining public order at demonstrations, in whole or in part, to the persons who wish to realize their right to demonstrate. Thereby the police fail in their public duty. Thereby a financial burden is also imposed on the persons wishing to realize their right, and their right to freedom of speech and demonstration is violated. Indeed, fixing a ‘price tag’ for the realization of a right means a violation of the right of those persons who cannot pay the price. Moreover, imposing a financial burden on persons who wish to realize their right to freedom of speech may harm in particular those persons who wish to express ideas that give rise to considerable opposition. This is because it may be assumed that the expense of maintaining security in such circumstances will be higher than the norm. The protection of the freedom of speech is important precisely in circumstances of this kind (see HCJ 399/85 Kahane v. Broadcasting Authority Management Board [16]). We are speaking therefore of a serious violation of the freedom of speech and the right of demonstration and procession, on the basis of financial ability or on the basis of the content of the speech and the degree of opposition that it arouses. The result of this violation, beyond the direct violation of the constitutional rights of the persons who wish to demonstrate, is that the public debate is harmed. The marketplace of opinions and ideas is weakened. The democratic nature of the system of government is prejudiced. Indeed, as Justice Blackmun said in the United States Supreme Court: ‘Speech cannot be financially burdened, any more than it can be punished or banned’ (Forsyth County, Georgia v. Nationalist Movement [28], at p. 135). And in another case the United States Supreme Court stressed that ‘Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way’ (Jones v. City of Opelika [29], at p. 111). The conclusion is that providing security at events that involve the realization of basic freedoms is one of the most basic and obvious duties of the police. They are not entitled to impose this responsibility, in whole or in part, on the persons who wish to realize their right. This approach reflects the recognition of the centrality of the police as the body that has exclusive responsibility for maintaining public law and order and protecting the character of our system of government. This approach reflects the recognition of the centrality of constitutional human rights. It is capable of ensuring a broad, professional and equal protection of the realization of citizens’ rights. It is capable of ensuring the safeguarding of the democratic character of the State of Israel.

17. My conclusion is that the police are not authorized to impose on those persons that wish to realize their right to demonstrate the responsibility, in whole or in part, to provide security for the event and to maintain public order during it. The respondents argue against this position that it will lead to a serious outcome whereby every organization will be able to demand that the police will allocate considerable resources for every demonstration or public event that they wish to hold, and thereby an intolerable burden will be imposed on the Israel Police. This argument cannot be accepted. My position is that the Israel Police has the duty to provide security at demonstrations and to main public order during them, and it may not impose this responsibility, in whole or in part, on the persons wishing to demonstrate. It does not follow from my position that the Israel Police is liable to provide security at every demonstration that is requested. The right to freedom of expression and demonstration, like all rights, is not an absolute right. It is possible to impose restrictions on its realization. When he makes a decision with regard to an application to hold a demonstration, the police commissioner is entitled to take into account, inter alia, the question of the forces and resources that are available to the police for the purpose of providing security at the event, the other operations that the police are liable to carry out at that time, and the police’s order of priorities in carrying out its duties. Indeed, when giving a licence for a demonstration:

‘Consideration should be given, inter alia, to the forces available to the police, their skill and equipment, and the size of the crowd of demonstrators and spectators. Consideration should also be given to the other tasks for which the police are liable. Even if providing proper protection for demonstrators is a duty of the police, it is not its only duty, and it should deploy its forces in a manner that it can carry out, in a reasonable manner, the other tasks that it is liable to carry out’ (Levy v. Southern District Commissioner of Police [4], at p. 405 {121}).

Thus, for example, in HCJ 1928/96 YESHA Council v. Jerusalem District Commissioner of Police [17], this court accepted the position of the police commissioner who refused to give YESHA Council a licence to demonstrate in Jerusalem, after other options that were proposed by the police commissioner were rejected by the petitioner. We held that:

‘The basic premise is not in dispute. Everyone in Israel has the constitutional right to demonstrate and hold an assembly… If a hostile group creates a risk to those taking part in the procession, the police should deal first and foremost with that group, and not with those persons who wish to march peacefully. Ruffians and persons who wish to prevent a demonstration or assembly should not be allowed a right of “veto.” The function of the police is to prevent the hostile group from achieving its desire. This is of course conditional upon the forces available to the police. These are not unlimited… When examining the police resources, consideration should be given to the manpower available to the police, the other tasks that it has to carry out at that time, and the nature of the risks… After weighing the considerations for and against, we are satisfied that in the circumstances of the case before us the respondent acted within the margin of reasonableness… The case before us is a very exceptional one. The police were simultaneously required to carry out general security tasks relating to the suicide attacks in Israel in general and in Jerusalem in particular (while taking account of warnings of potential attacks), individual security tasks with regard to a considerable number of important guests who are visiting Israel, and the need to provide security for the petitioner’s assembly or demonstration. In these circumstances, the respondent acted within the scope of the margin of reasonableness, when he requested that the procession should be brought forward to a date before the president of the United States came to Jerusalem or deferred until after he left the city’ (ibid. [17], at p. 542).

 Therefore, if the police commissioner if of the opinion that in view of the police’s additional operations, or in view of the size of the forces that are required for providing security at a given event, it is unable to allocate the forces required to maintain public order, he may make the demonstration conditional upon restrictions of time, place and manner. In extreme circumstances, in the absence of a less harmful possibility, he may even refuse to give a licence for the demonstration (see Levy v. Southern District Commissioner of Police [4], at pp. 407-409 {122-124}). Notwithstanding, we should reiterate in this context that the saving of resources is not a consideration that will in itself justify a refusal to provide security at a demonstration. Indeed, ‘the protection of human rights costs money, and a society that respects human rights should be prepared to bear the financial burden’ (Barak, Legal Interpretation (vol. 3, ‘Constitutional Interpretation,’ 1994), at p. 528). ‘… when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great’ (per Justice E. Mazza in HCJ 4541/94 Miller v. Minister of Defence [18], at p. 113 {197}; see also the remarks of Justice D. Dorner in that case, at p. 144 {240}; HCJ 7081/93 Botzer v. Maccabim-Reut Local Council [19]; HCJ 6055/95 Tzemah v. Minister of Defence [20], at p. 281 {683-684}; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [12], at para. 94 of my opinion). There is no doubt that the police’s duty to allow the realization of the constitutional right to freedom of speech and demonstration will not be easy. It may impose on it considerable responsibility and a financial burden. But this is the price of democracy. This is also the source of its strength. Indeed —

‘We are aware that the police at this time bear a heavy burden. They are acting out of a genuine desire to allow the realization of the demonstrators’ constitutional rights, while maintaining the peace. They are operating under difficult conditions. But it is the strength of democracy that it allows an expression of the different opinions that prevail in society, and it is the strength of the police force that it does all that it can, within the framework of the resources available to it, to allow members of the public to express their opinion on public affairs’ (HCJ 6658/93 Am Kelavi v. Jerusalem Police Commissioner [21], at p. 797).

The demand to provide ambulances and fire engines

18. Does the police commissioner have the authority to make the granting of a licence for a demonstration conditional upon the presence of emergency services such as ambulances and fire engines? The answer to this is yes. It cannot be said that providing emergency medical services and fire extinguishing services are included among the natural functions of the police. These are tasks that fall within the expertise of other bodies — Magen David Adom and the fire extinguishing authorities. In practice, even had the police not demanded the presence of the fire extinguishing services and the emergency medical services, the organizers of the demonstration would have needed to ensure the presence of these services, by virtue of an independent statutory duty. Thus, the authority of Magen David Adom and the fire extinguishing authority to supervise safety arrangements, in their respective fields, with regard to assemblies and processions is provided in the Public Places Safety (Assemblies) Regulations, 5749-1989, which were enacted by virtue of the Public Places Safety Law, 5723-1962. Regulation 9(a) of the aforesaid regulations provides the following:

‘The person responsible shall ensure for each meeting appropriate arrangements for first aid and for preventing fires, by arrangement with the Magen David Adom station and the fire extinguishing authority and in accordance with their instructions, and he shall also ensure appropriate entry and exit arrangements for persons coming to the assembly.’

The authority of Magen David Adom and the fire extinguishing authorities to charge payment for their services

19. Are Magen David Adom and the fire extinguishing authorities entitled to demand payment for providing ambulances and fire engines? As we have said, the Public Places Safety (Assemblies) Regulations authorize Magen David Adom to give instructions with regard to the first aid arrangements that are required for the holding of assemblies and demonstrations. In the circumstances before us, Magen David Adom decided that at the event that was planned, two intensive care vehicles, two ambulances and first aid units should be present. This decision was based on a procedure for determining the amount of medical assistance at public events (procedure no. 06.20.04 of 1 May 2002). It takes into account, inter alia, the expected number of participants at the event, the location of the event and the distance between it and nearby Magen David Adom stations, etc.. The petitioners have no complaint against the procedure in general and against the first aid arrangements that Magen David Adom determined for the demonstration under discussion in particular. Their complaints are directed only against the demand to pay for them. Their argument is that this demand has no basis in law. The authority of Magen David Adom to collect payment for its services is provided in s. 7A of the Magen David Adom Law, 5710-1950:

‘Fees

7A. The association shall charge whoever received from it services that are provided under this law or his insurer a fee in an amount that shall be determined by the Minister of Health and the Minister of Finance; the ministers are entitled to determine a liability to pay interest and linkage differentials and the imposition of a fine for arrears in a case of a failure to pay all or a part of the fee on time.

 

     The fee, the interest, the linkage differentials and the fine will be collected under the Taxes (Collection) Ordinance, as if they were a tax within the meaning of that Ordinance.’

This section was added to the Magen David Adom Law in 2002, within the framework of the State Economy Arrangements (Legislative Amendments for Achieving Budgetary Targets and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter: ‘the Arrangements Law’). The transition provision with regard to this amendment is provided in s. 56 of the Arrangements Law, which states the following:

‘Magen David Adom Law — commence-ment and transition provisions

56. The commencement of section 7A of the Magen David Adom Law… is on 28 Adar I 5763 (1 March 2003); until the aforesaid date, the association shall collect… for the services that it provides payments in the amounts that it collected lawfully before the commencement of this law.’

Before the enactment of the aforesaid section 7A, the authority of Magen David Adom to collect payments for services was provided in the Magen David Adom bylaws of 1992, which were enacted by virtue of s. 5 of the Magen David Adom Law, 5710-1950. Bylaw 50 of these bylaws provided:

‘Ancillary powers

50. The association shall have ancillary powers as set out below:

 

(1) To fund the activities of the association by collecting payments for services in amounts that shall be approved from time to time by the Ministry of Health and for providing anything ancillary to the services;

 

(2) To receive donations, gifts, aid and grants from anyone in Israel and abroad;

 

(3) To collect a payment for the lease of properties and a fee for the use and sale of worn-out equipment;

 

…’

Thus we see that until 1 March 2003, the Magen David Adom association was competent to collect payment for its services under bylaw 50 of Magen David Adom’s bylaws. From that date onward, the authority to collect payments is enshrined in s. 7A of the Magen David Adom Law. But from the date on which s. 7A was enacted until today, no regulations have been enacted under this section. Magen David Adom’s position is that in these circumstances it should be allowed to continue to collect payments under the law that preceded the enactment of s. 7A, i.e., in accordance with bylaw 50 of Magen David Adom’s bylaws. I cannot accept this position. Section 7A of the Magen David Adom Law was intended to replace bylaw 50. Section 56 of the Arrangements Law provides expressly that the commencement of s. 7A is on 1 March 2003. From this date onwards Magen David Adom is competent to collect payments for services only in accordance with the provisions of s. 7A. Bylaw 50 was admittedly not formally repealed, but Magen David Adom cannot continue to operate thereunder (see and cf. HCJ 28/94 Zarfati v. Minister of Health [22]). According to the prevailing legal position, s. 7A is the section that authorizes Magen David Adom to collect payments for its services. This section provides that the amounts of the fees shall be determined by the Minister of Health and the Minister of Finance. The ministers exercised this power when they enacted the Magen David Adom (Fees for Emergency Ambulance Transport) Regulations, 5766-2006. The regulations provide that they commence on 1 January 2003.   But these regulations concern emergency transport in an ambulance, and there is no authority in them to collect a fee for the type of service that was provided to the petitioners before us. My conclusion is that there is no authority to demand the payment under consideration in this petition in s. 7A of the Magen David Adom Law or in the regulations that were enacted thereunder.

20. The power of the fire extinguishing authorities to collect payments for their services is provided in r. 2 of the Fire Extinguishing Services (Payments for Services) Regulations, 5735-1975, which were enacted under the Fire Extinguishing Law, 5719-1959. The following is the language of r. 2:

‘For a service provided by a fire extinguishing authority as set out in column 1 of the schedule, the recipient of the service shall pay the fire extinguishing authority a payment in the amount provided in column 2 alongside that service.’

The schedule to the regulations sets out the services for which it is permitted to demand payment, and providing security services for an event is contained in the list. The schedule also stipulates the price of the service. As we have said, in the circumstances of the demonstration before us, the cost of the security service amounted to NIS 970. The petitioners do not contest the legality of the demand for payment, or its reasonableness. The parties differ on the question of who is the ‘recipient of the service’ within the meaning of this expression in the aforesaid r. 2. The definition of ‘recipient of the service’ is provided in r. 1 of the Fire Extinguishing Services (Payments for Services) Regulations, which states:

‘ “Recipient of a service” — the owner or occupier of a property in which, or for whose protection, the fire extinguishing operation was carried out, or who received a lifesaving service for himself or for a family member.’

The petitioners argue that they do not fall within the definition of ‘recipient of a service,’ since they are not the owners of the land or the property in which the demonstration took place. The owner of the land is the Tel-Aviv Municipality, the fourth respondent, and therefore the third respondent should have sent the demand for payment to it. The third and fourth respondents oppose this interpretation. According to them, the expression ‘recipient of a service’ should be interpreted in accordance with the purpose of r. 2. This purpose, according to the respondents, is that payment for fire extinguishing services should be collected from those persons who benefit from them. The respondents are aware of the difficulty of reconciling this position with the language of the regulation, and they suggest methods of interpretation that will overcome this difficulty. The fourth respondent suggests that the word ‘property’ should be given a broad interpretation, and it should also include the right to hold an event or demonstration. According to the third respondent, since the right to hold a demonstration is a property, it is possible to regard the organizers of the demonstration as the owners of the property, and therefore to impose on them the payment for the fire extinguishing services that were provided. The fourth respondent suggests making a distinction between the first half of the definition of ‘recipient of a service’ and the second half. According to it, the first half concerns fire extinguishing services relating to land, with regard to which the payment should be imposed on the owners of the land. By contrast, the second half should be interpreted in a manner that will make it possible to impose the payment for fire extinguishing services that do not relate to land on the persons who benefited from receipt of the service. My opinion is that these positions should not be accepted, and in any case it is questionable whether they can help the third and fourth respondents.

21. The ‘right to hold a demonstration’ is not a property in the context before us. The third respondent also did not suggest any general consideration of principle that is capable of supporting this interpretation, beyond the fact that this interpretation will lead to the outcome that the respondent is interested in reaching in this case. The fourth respondent’s position should also be rejected. Admittedly it does have some logic of its own. It is possible that there is logic in distinguishing, for the purpose of paying for fire extinguishing services, between fire extinguishing services that relate to land (such as extinguishing a fire in a building) and fire extinguishing services that are provided for a certain event (such as services for a demonstration), so that the payment for fire extinguishing services that relate to land should be imposed on the owner of the land, whereas the payment for fire extinguishing services for events should be imposed on the organizers of the events. But the language of the law does not allow this interpretation. It can be seen from the clear language of the law that the liability for the fire extinguishing services is payable by the owner of the property in which the fire extinguishing services were provided or by the person who received the service to save his life. An interpretation that is inconsistent with the language of the law should not be adopted unless every other interpretation leads to absurd and illogical conclusions. It cannot be said that the interpretation proposed by the petitioners, which is consistent with the language of the law, is illogical. No one denies, for example, that the Tel-Aviv Municipality would be liable for the cost of extinguishing a fire if it broke out in Rabin Square in Tel-Aviv. This conclusion derives from the fact that the local authority is responsible for maintaining the public areas within its boundaries. Inter alia it is liable to make these areas fit for the use of the public and ensure their repair and safety. There is nothing illogical, therefore, in the conclusion that this duty should be imposed on the local authority even if the fire broke out when a demonstration or procession took place in the same public area. Of course, an outcome in which this liability would be payable by the organizers of the demonstration is also not illogical. But that is not the outcome that is implied by the language of r. 1 of the Fire Extinguishing Services (Payments for Services) Regulations. This regulation provides that the recipient of the service is the owner or occupier of the property in which (or for whose protection) the fire extinguishing operation was carried out. My conclusion therefore is that the fourth respondent is the party that should pay the cost of the fire extinguishing services that were provided in this case.

22. Moreover, even were I to accept the position of the third and fourth respondents that the liability for the fire extinguishing services should be imposed on the persons who benefited from receiving them, this would not necessarily lead to the conclusion that the organizers of the demonstration are the persons who should pay the cost of the fire extinguishing services. This is because the beneficiaries of the fire extinguishing services that are provided for the safety of processions and demonstrations are the whole group of people who participate in the procession or demonstration. It is not self-evident, therefore, that it is possible to impose this payment on the organizers of the demonstration. But in view of my aforesaid conclusion, I do not need to decide this question.

If my opinion is accepted, we will grant the petitions and make the order nisi absolute against all the respondents.

 

 

Justice M. Naor

I agree.

 

 

Justice E. Rubinstein

1.    I agree with the opinion of my colleague the president emeritus in this case. The principle underlying his opinion is the freedom of demonstration, as one of the facets of the freedom of speech. There is, of course, no dispute as to the importance of this principle. My colleague, in his usual way, paints a broad legal and ethical picture of the importance of the freedom of demonstration in a democracy; on this approach, in the many years of case law on this subject, see E. Salzberger and F. Oz-Saltzberger, ‘The Tradition of Freedom of Speech in Israel,’ Be Quiet, They’re Talking: the Legal Culture of Freedom of Speech in Israel (M. Birnhack, ed., 2006) 27, at p. 52 et seq.. Naturally I accept his fundamental approach. When I considered it, I was not thinking specifically of the huge demonstrations of political organizations of one kind or another, which, were we to take a strict approach, would be able to finance what was required by the police. I was thinking of a demonstration of disabled persons, most of whom earn little but whose needs and difficulties are many; see also Report of the Public Commission for Examining Matters concerning Disabled People and for Promoting their Integration in the Community (2005), chaired by the late President E. Laron, at p. 9. As President Barak says, determining a ‘price tag’ for them will prejudice their right to demonstrate, since they will not be able to cover the cost. Therefore I very much support my colleague’s approach when he says that democracy has a price, including for the realization of its basic rights, and I accept his analysis and conclusion with regard to the duty of the police to ensure the safety of demonstrations. The authorities are also bound by the guidelines of the attorney-general concerning the freedom to demonstrate (guideline 3.1200 of 1983, which was revised in 2003), which ends with the following words:

‘The freedom to hold demonstrations and processions is a central human right in Israel. The demonstration, within the framework of the law, is a main method of formulating and expressing public opinion, and as such it is also a basic institution of democracy, which should be guarded vigorously by public authorities.’

These guidelines, which were not mentioned in the respondents’ reply, also deal specifically with a case like this one, and they state that the need to deploy forces and the difficulties caused by this are insufficient grounds, in themselves, for refusing a licence for a demonstration, unless there are special circumstances that give rise to more urgent needs, and even then from the viewpoint that the right to demonstrate is a major consideration. See also HCJ 6658/93 Am Kelavi v. Jerusalem Police Commissioner [21] (Vice-President Barak). I would add that even in the world of Jewish law the right to demonstrate is discussed. Rabbi Y. Zilberstein, in his article ‘The Duty to Demonstrate Against Desecration of the Sabbath,’ 7 Tehumin (1986) 117 [30], entitles one of the chapters of his article ‘A person is not liable to waive his rights in order not to transgress the commandment “Before a blind person (you shall not place a stumbling block)” (Leviticus 19, 14),’ which is the case even it leads to desecration of the Sabbath, from the viewpoint that the duty to demonstrate is a need of the person demonstrating, so that he does not ‘close his eyes to seeing evil’ (Isaiah 33, 15 [31]); see also the remarks of Rabbi Y.S. Eliashiv, ibid., at p. 120.

2.    My colleague the president admittedly states that —

‘The right to freedom of expression and demonstration, like all rights, is not an absolute right. It is possible to impose restrictions on its realization. When he makes a decision with regard to an application to hold a demonstration, the police commission is entitled to take into account, inter alia, the question of the forces and resources that are available to the police for the purpose of providing security at the event, the other operations that the police are liable to carry out at that time, and the police’s order of priorities in carrying out its duties.’

Later he also says that ‘In extreme circumstances, in the absence of a less harmful possibility,’ it is even possible to refuse to give a licence for a demonstration. But my colleague did not refer this time to the circumstances in which a restriction may be imposed on the freedom of speech, which, like every right, and even a constitutional right, is not an absolute right, nor did he give details of reasons that may lead in certain cases either to refuse a licence or to make it conditional. Since we are not dealing with a theoretical matter but with a recurring phenomenon, it should be remembered that since the right to demonstrate is a right derived from the freedom of expression, and the latter is derived in many respects from the constitutional right of human dignity, there will be cases in which the freedom to demonstrate will yield, like the freedom of speech. This may happen not only for ‘technical’ reasons, such as an unusual burden on the police, but also when a demonstration may involve criminal offences, or one that may conflict with values such as the security of the state by almost certainly endangering public safety, or a demonstration that is intended to promote racism or support terrorism (cf. s. 7A of the Basic Law: the Knesset), or one that very seriously injures public feelings, etc.. The freedom to demonstrate is intended of course for opinions that are not widely accepted, including harsh criticism of the policy of public authorities or protests against them. But it has its limits. Indeed, my colleague said — and no one disputes this — that ‘Determining the scope of the right to freedom of speech as a constitutional right derived from human dignity should be done in accordance with the meaning that should be given to the concept of human dignity’ (and see HCJ 153/83 Levy v. Southern District Commissioner of Police [4], at pp. 408-412 {123-127} (Justice Barak)). The restrictions should also be measured; but values such as those listed above may in certain cases override even the freedom to demonstrate, just as in the ranking of human dignity in its ‘pure’ sense, i.e., the reputation of a person and the prohibition against humiliating him and ruining his life, against the freedom of speech, the former should, in my opinion, usually override the latter (see the recent case of LCA 10520/03 Ben-Gvir v. Dankner [10]; LCA 10962/03 Harar v. State of Israel [23]). This court has also approved in the past a prohibition against going up to the Temple Mount, for reasons of public security (see HCJ 2725/03 Salomon v. Jerusalem District Commissioner of Police [24] (in the majority opinion of President Barak and Justice Or, against the minority opinion of Justice E. Goldberg); in that case there was a danger to public safety, because of ‘the fierce opposition and very great sensitivity of the Moslem public to the petitioner and his movement.’ In HCJ 6897/95 Kahane v. Brigadier-General Kroizer [25], the issue was the right of assembly, which concerned a memorial assembly which the petitioner wished to hold in memory of his father Rabbi Meir Kahane, who was murdered by an assassin in the United States (later the petitioner was himself murdered in a terrorist attack). The court approved the refusal to allow the assembly to be held on the ground that it was associated with a terrorist organization. In that case Justice Zamir said that ‘defensive democracy opposes the government, if it seeks to violate human rights unlawfully, but at the same time it also supports the government when it seeks to protect human rights against subversive and violent groups that do not respect the basic rules of democracy’ (at p. 860). In HCJ 1928/96 YESHA Council v. Jerusalem District Commissioner of Police [17], the court (per President Barak) reiterated the importance of the right to demonstrate, while saying that ‘it is possible to limit it when there is an almost certain likelihood of danger that will lead to serious harm’; in that case the court approved the refusal to allow a certain demonstration when the president of the United States was in Israel, because of the difficulty of deploying sufficient forces in view of the threats. It was said there that ‘consideration should be given to the manpower available to the police, the other tasks that it has to carry out at that time and the nature of the risks’ (at p. 544). In HCJ 2979/05 YESHA Council v. Minister of Public Security [26] it was said that the freedom to demonstrate as a basic right with a constitutional status was opposed by interests such as the freedom of movement, property rights, the right of privacy, public order, public safety and security (and see the references cited there), and therefore a petition to hold a prolonged demonstration against the disengagement plan was denied. Thus we see that these examples indicate that the court will not intervene in the decisions of the police, if it is presented with weighty considerations of danger to public security and even a serious injury to public feelings that may lead to violent confrontations, and these may constitute a ground for refusing to grant a licence for a demonstration. But the principle is the right and its realization, from which exceptions are derived, and not, of course, the other way round.

3.    In view of all of the aforesaid, there is a basis in my opinion for the attorney-general and the state attorney’s office to communicate to the police, on a frequent basis and with greater emphasis, both the principle of the freedom to demonstrate and the circumstances in which the police commander may impose restrictions on the freedom to demonstration, including the conditions that they may determine. In my opinion, relatively detailed criteria can be found in the attorney-general’s aforementioned guidelines. These guidelines consider the various balances set out above, by subjecting them to the near certainty test. Moreover, I think that the dimensions of place and time have great importance (see HCJ 2481/93 Dayan v. Wilk [7], at p. 482 {355-356}, per Vice-President Barak). The place of the demonstration has significance with regard to the forces that need to be deployed, and in this respect a demonstration that takes place in an open area cannot be compared to one that takes place in a closed place; a demonstration in the city centre, with the traffic disruptions that it entails, cannot be compared to a demonstration in a suburban area; a demonstration opposite the office of a public official cannot be compared to a demonstration next to his private home (see Dayan v. Wilk [7]); a demonstration opposite the official residence of a public official cannot be compared to a demonstration opposite his private residence, and even at his official residence this freedom should be balanced against the rights of the neighbours (see Am Kelavi v. Jerusalem Police Commissioner [21]). A demonstration against an elected official cannot be compared to a demonstration against a civil servant; a demonstration outside the home of a senior public official cannot be compared to a demonstration outside the home of a mid-level or junior public official, for which the criterion should be very strict, etc.. The dimension of time also has importance, with regard to the days and time when a demonstration is held, with regard to other events that are taking place at the same time and that affect the capabilities of the police, and with regard to the duration, which should be taken into account when a demonstration continues for days, weeks and even longer (see AAA 3829/04 Twito v. Jerusalem Municipality [27], and the criticism of the late Y. Twito in the book Be Quiet, They’re Talking: the Legal Culture of Freedom of Speech in Israel, supra, at pp. 479-482). I should add that in my opinion the aforesaid guidelines of the attorney-general should, first, be communicated on a regular basis to police officials and, second, they should be examined every few years in order to consider developments in the realities of life and case law that may affect them.

4.    With regard to the services of Magen David Adom, as the president said, there is a legal difficulty, namely the lack of authorization in the law to collect the payment under dispute. This difficulty does indeed prevent the possibility of allowing the demand for payment in this petition; but the authorities do, of course, have the power to enact the necessary regulations in order to ensure that cases of this kind do not recur.

5.    Even with regard to the fire extinguishing services I agree with my colleague’s conclusion. And if this result is unsatisfactory, it too should be addressed by enacting regulations.

6.    In conclusion, my colleague the president is retiring after he has most beneficially laid important foundations in the struggle for freedom of speech, including the freedom to demonstrate. I am sure that he too is aware that the implementation of the principle is not simple and has not always been consistent, even in case law. But perhaps this is the nature of a democracy, that its internal paths are paved with difficulties, obstacles, strivings and actions, according to the extent of the social divide and the diversity of the public. The court is a part of the people. The principle is a compass and a north star in the skies; its implementation is like clearing a path through the rocky mountains of Judaea, but even if the work is hard, it will be done. As the first century Mishnaic scholar Rabbi Tarfon said (Mishnah, Avot (Ethics of the Fathers), 2, 16 [32]): ‘It is not for you to complete the task, but you are not at liberty to abandon it.’

 

 

Petition granted.

21 Kislev 5767.

12 December 2006.

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