Publicizing proceedings

 

In the Supreme Court

 

Crim.App. 8225/12

MCA (Criminal) 8239/12

 

Before:                        Her Honor Justice E. Hayut

                        His Honor Justice U. Vogelman

                        His Honor Justice Y. Amit

 

The Appellants in Crim.App. 8225/12

 

                                    1.         Jane Doe Co. Ltd

                                    2.         Jane Doe

 

The Applicant in MCA (Criminal) 8239/12

 

                                    Jane Doe (a minor)

 

                                    versus

 

The Respondents:

 

                                    1.         John Doe

                                    2.         The State of Israel

 

                                    Appeal against the judgment of the Tel Aviv-Jaffa District Court (His Honor Judge Z. Kapach) in Other Appeal (OA) 46171-04-12 of November 6, 2012

 

Date of session:           25th Tevet 5773; January 7, 2013

 

                                    Adv. Shira Brick Haimovitz; Adv. Einat Berg-Segal

                                    on behalf of the Appellants in Crim.App. 8225/12

 

                                    Adv. Shira Dorfman-Algai

                                    on behalf of the Applicant in MCA (Criminal) 8239/12

 

                                    Adv. Avi Vacnich; Adv. Uri Shenhar

                                    on behalf of the First Respondent

 

                                    Adv. Itamar Gelbfish

                                    on behalf of the Second Respondent

 

 

Judgment

 

Judge U. Vogelman

1.The Respondent, a therapist by profession, was arrested on suspicion of committing an indecent act on the Applicant in MCA (Criminal) 8239/12 (hereinafter – the “Applicant”), a minor born in 2006, while he was treating her. The Magistrate Court extended his arrest by two days and granted an order prohibiting publication of any details of the case (hereinafter, “gag order”). Immediately after the arrest, a minor story was published on an Internet news site that reviewed the main suspicions without mentioning the Respondent’s name. The story was removed immediately after the gag order was granted. On completion of the investigation against the Respondent, the Prosecution decided not to prosecute due to lack of sufficient evidence. The Applicant filed an appeal against this decision with the State Attorney. At the same time, the Applicant filed a petition with the Magistrate Court to remove the blanket gag order so that details of the case would be published without the Respondent’s name or any other identifying detail. On April 4, 2012 the Magistrate Court (His Honor Judge T. Uziel) granted the Applicant’s application. The Respondent filed an appeal against this decision. On the filing of the appeal, the District Court (His Honor Judge Z. Kapach) decided to stay implementation of the Magistrate Court’s decision until otherwise decided, and from time to time granted continuances finding that the question whether or not the Respondent would be indicted was material to its decision. In the meantime, the Applicant’s appeal against the decision not to prosecute t was allowed, and the investigation was reopened; a supplemental investigation took place and the Respondent was questioned again. Ultimately the District Attorney once again decided to close the case due to lack of sufficient evidence. The Applicant’s appeal of the second decision is still pending before the State Attorney. On October 25, 2012 the Appellants in this case—a media company and a reporter who works for it—filed an application with the District Court to join the Respondent’s appeal against the decision to allow publication, and expressed their support for the Applicant’s position.

2.On November 6, 2011 the lower court heard the appeal by the Respondent (who was referred to as “appellant”). His appeal was heard together with the Appellants’ application to join the proceedings. The Court reiterated the considerations outlined in the case law for granting a gag on a suspect’s name or investigation detail pursuant to section 70(e1)(1) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, the “Courts Act” or the “Act”), and held that in the circumstances of this case the scale tips in favor of prohibiting publication of all the case’s details. The Court emphasized that since according to the investigation and prosecution authorities there was insufficient evidence to prosecute, there was no public interest in exposing an incident that might not even occurred. The lower court also held that publicizing the incident as an example in an article written to draw attention to signs of distress displayed by children undergoing therapy, such as the Applicant, does not justify publication since an article can be prepared without detailing a concrete incident; and that the argument that publication might result in the filing of additional complaints where the State has not applied to allow publication for such purpose must be rejected. The Court added that there was concern that the motive of the Applicant’s family was revenge against the Respondent and that, in view of the serious nature of the accusations against the Respondent, there was no doubt that grave and irreversible harm would be caused him if his identity was revealed. Finally the Court held as follows:

“We are living in the age of the Internet. The physical town square has long since disappeared, and has been replaced by a virtual square. If publication of the incident, the occurrence of which is itself in doubt, is permitted, connecting the Appellant to the incident would be easy, as the appellant works in a limited professional circle and because there are many ways to directly or indirectly circumvent the gag order prohibiting publication of a name. This can be done through anonymous comments (talkbacks), forums, Facebook, Twitter and more.

After hearing what the minor’s family has to say about the Appellant, as aforesaid, my concern, which I harbored from the outset, that his name will be linked to the incident in roundabout ways, has grown” (pages 7-8 of the judgment) [emphasis in the original].

The proceedings before us are about this decision.

The parties’ arguments

3.The Appellants argue that the District Court was not authorized to grant a gag order prohibiting publication of all the details relating to the incident. According to them, section 70(e1)(1) of the Courts Act authorizes the Court to prohibit publication of a suspect’s name or of another investigation detail, but not both together; and in any event it does not authorize the Court to impose a gag order on the details of the entire case. It was also argued that the Court erred in disregarding the potential harm to the Respondent that would result from publishing details of the incident without identifying details; and it erred in allowing all details to be published since the case was closed, as well as in determining that the public has no interest in publishing the incident’s details. The Appellants add that the gag order goes against the principle of public hearings and proceedings and the public’s right to know; that the motive for publication should not have been considered; and that even in the Internet age, publication of legitimate information should not be prevented solely because of the theoretical concern that privileged information would be exposed on-line.

The Applicant’s arguments mostly overlap with the Appellants’ arguments. The Applicant adds that the Court erred in determining there was concern that the family would expose the Respondent’s name on the Internet in a roundabout way. According to her, had her family wished to do this, it would have done so while the Respondent was under arrest since at that time the arrest was published as a story on the Internet, without his name.

The State—which was not a party to the proceedings in the lower courts—joined the proceedings before us, and it supports the position of the Appellants and the Applicant.

4.The Respondent objects to publication. First of all, he argues that the Appellants filed an appeal with this Court when they should have filed an application for leave to appeal; and that their appeal should be dismissed for this reason alone. With regard to the application for leave to appeal filed by the Applicant,, the Respondent argued that the appeal does not establish cause for granting leave to appeal to this Court as a “third round.” Substantively, the Respondent argued that the Appellants and the Applicant concealed from this Court the fact that the Applicant’s father serves in a managerial position in the First Appellant, and these proceedings are thus tainted by a lack of good faith; that the Applicant’s parents wish to misuse the investigation material, which was sent to them for their review solely for the purpose of filing an appeal, by publishing its contents in a newspaper; and that the motive of the Applicant’s parents for publication is an attempt to exert pressure on the Prosecution to allow the appeal and thereby prejudice the Respondent. The Respondent further argues that the harm he will suffer as a result of the publication is grave. According to him, the circles close to the case who have general knowledge will be able to identify him in publications about it. The publication would make the case the “talk of the town” amongst his professional community, which would want to know which male therapist is involved, and since there are few male therapists his name would shortly be leaked to the general public, or at the very least to the public interested in therapy such as he offers.

Discussion and Decision

5.We will first comment on the legislative framework relevant to our discussion. Though currently the District Attorney’s position is that there is insufficient evidence to substantiate reasonable prospects of a conviction and therefore the Respondent should not be indicted, an appeal is pending against this decision. The two courts before us, as well as the litigants and the State, have all assumed section 70(e1) of the Courts Act, which refers to a “suspect” as defined in section 70(e2) of the Act as “someone against whom a criminal investigation has been commenced” applies. I accept this assumption because in appeal proceedings there is  de novo review of the matter by the entity in charge of the administrative authority which made the decision. Within the boundary of this review, the entity hearing the appeal steps into the shoes of the entity which gave the decision subject to the appeal and exercises wide and independent discretion in its stead. Accordingly, even though we should keep in mind for the purpose of these proceedings that a decision by the District Attorney not to prosecute the Respondent because of insufficient evidence still stands, so long as the administrative proceedings have not reached a final decision; there is no impediment to seeing the Respondent as “someone against whom a criminal investigation has been commenced” and to trying his case according to the said legislative framework. I therefore do not address the conditions for a gag order regarding the details of an investigation against after  a decision not to prosecute and the objection proceedings against that decision exhausted.

The procedural level: the media’s appeal—by right or with leave?

6.The Appellants appealed against the District Court’s judgment. Were they entitled to do so, or does their appeal require application for leave? On January 18, 2012 the Courts Act (Amendment No. 69), 5772-2012, Book of Laws 122, came into force, which addressed gag orders on investigations and legal proceedings. The beginning of section 70(e1)(1), together with sections 70A(a) and (b) of the Act, provide that a Magistrate Court may prohibit publishing the name of a suspect that has yet to be indicted, or of any other investigation detail, as long as the conditions below are met. As a rule, the Court will impose a gag order under this section pursuant to a suspect’s application (hereinafter, “application for a gag order”). Once the Magistrate Court has imposed a gag order, anyone wishing it be revoked, including the media, may submit an application to the same Court (section 70C(a) of the Act) (hereinafter, “revocation application”). The Respondents in the revocation application will be the suspects, along with any person who was a party to the application for a gag order (section 70B(a)(2) of the Act). Section 70D of the Act regulates appeals against the Magistrate Court’s decision on an application for a gag order or revocation application: there is a right to appeal against either to the District Court, with one judge presiding (sections 70D(a)(1) and (3) of the Act); a judgment on appeal against such decisions may be appealed with leave to the Supreme court, which will hear it before a single judge (section 70D(b) of the Act). Section 70E of the Act authorizes the Minister of Justice, with the Knesset’s Constitution, Law and Justice Committee’s approval, to regulate applications for a gag order or publication, as well as the procedures for appeals and applications for leave to appeal against decisions on such applications. As of this judgment, the sub-legislature has yet to regulate. 

1.Thus, the proper way to revoke a gag order granted under section 70(e1)(1) of the Act is to submit an application with the Magistrats Court that granted the order. However, what is the proper procedure where the Magistrate Court has revoked the order, an appeal against the revocation is pending before the District Court, and a third party, including the media, which was not a party to the original revocation application wishes to argue regarding the order’s revocation? In my view, the third party should submit a joinder application with the District Court in the pending appeal against the Magistrate Court’s decision, as was done in this case. To be sure, the matter in the District Court is a first appeal. Another second appeal with this Court is a “third round” in the entire proceeding, and therefore leave [to appeal] must be granted (compare: MCA (Civil) 4511/05, Bat Yam Municipality v. Ganei Yafit Building & Investment Co. Ltd (July 17, 2005); ALA (Civil) 3385/08, Market Place Systems Ltd v. Teletel Communication Channels Ltd, paragraph 12 (September 25, 2008)). The same result is warranted under the framework that existed before the Amendment to the Act (see ALA (Criminal) 2741/96, Galanti v. State of Israel (April 17, 1996); MCA (Criminal) 424/06, Amar v. Channel 10 News Ltd (February 2, 2006)). Accordingly, contemplating whether the Amendment to the Act applies in our case (here, it should be noted that the first decision of the Magistrates Court,which placed a gag order on the details of the entire case, was given before the Amendment came into force) is unnecessary. 

2.It emerges then that the Appellants filed an appeal without having the right to do so. The question therefore arises how one should treat this appeal: can it be converted into an application for leave to appeal, or should it be dismissed for having been submitted without a right to do so? The answer to this question might be influenced by another: since no regulations have been promulgated with regard to the procedure, should this appeal be governed by the Civil Procedure Rules, 5744-1984, or by the provisions of the Criminal Procedure Act [Consolidated Version], 5742-1982? Insofar as the appeal is heard as a civil proceeding, the rule is that the appeal cannot be converted into an application for leave to appeal (see, for example, Civ.App. 8154/03, Altori v. Arieh Israel Car Insurance Co. Ltd, paragraph 8 (August 15, 2005); Civ. App. 4540/04, Matach – Educational Technology Center v. Orbuch (September 14, 2006); however, see Civ.App. 2201/07, Choninsky v. Atlantis Multimedia Ltd, paragraph 14 (February 2, 2009)). Insofar as the appeal is heard as a criminal proceeding, the question whether it may be converted into an application for leave to appeal has yet to be clearly answered in our case law.

Since in this case the Applicant filed an application for leave to appeal and since in any event we believe the matter’s importance justifies considering the application as though there was notice of appeal so that the issue will be determined on merits, we also saw no need to decide these questions, and we will leave them for future consideration. 

3.To conclude the procedural issues, we would emphasize that though the Applicant’s application for leave to appeal was considered by a panel of three, only one justice of this Court need rule on an appeal against a judgment of the District Court regarding the Magistrate Court’s decision to impose or revoke a gag order (section 70D(b) of the Courts Law)).

We now turn to discuss the appeal on its merits.

A gag order prohibiting publication of a suspect’s name or other investigation details

4.The issue of a gag order prohibiting publication of identifying details of crime suspects calls for balancing opposing basic principles and constitutional rights. On the one hand, there is the fundamental principle of public hearings and proceedings, a principle enshrined in section 3 of the Basic Law: The Judiciary, and in section 68 of the Courts Act. This principle dictates that as a rule, the details of judicial proceedings, as well as the identity of the litigants, shall be available to the public. This principle is consistent with the broad view that freedom of expression and the public’s right to know are basic principles in a democratic regime, designed to guarantee transparency and serving as a check on the integrity and adequacy of proceedings, so as to strengthen the public’s confidence in the judicial system (MCA (Criminal) 5759/04, Turgeman v. State of Israel, PD 58 (6) 658, 662-664 (2004) (hereinafter, “in re Turgeman”); MCA (Criminal)  5153/04, John Doe v. Yedioth Ahronoth, PD 58 (6) 933, 938 (2004); MCA (Criminal) 1071/10, John Doe v. State of Israel, paragraphs 6-9 (February 25, 2010); MCA (Criminal) 1770/10, John Doe v. State of Israel, paragraph 6 (March 5, 2010)). On the other hand, there are the rights to dignity, reputation and privacy; these too are basic rights in our system and are enshrined in sections 2, 4 and 7 of the Basic Law: Human Dignity and Freedom (MCA (Criminal) 1659/11, Stenger v. State of Israel, paragraph 6 (April 26, 2011); Civ.App. 1697/11, A. Gutman Architects Ltd v. Vardi, paragraph 12 (January 23, 2013) (hereinafter, “in re Vardi”); Civ.App. 751/10, John Doe v. Dayan-Orbach, paragraphs 75-79 of the judgment of Deputy President E. Rivlin, paragraphs 3-4 of the judgment of Justice Y. Amit (February 8, 2012) (hereinafter, “in re Dayan”)). A derivative of liberty rights is that unless prosecuted and convicted, everyone is presumed innocent (MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). There is no doubt that identifying a person as a crime suspect affects his reputation and privacy and might cause great and irreversible harm. “The publication of a suspect’s name during a criminal investigation, and before an indictment, might be extremely injurious, especially if at the end of the day the investigation concludes without an indictment. The negative image that sticks to a person once his name is published as a crime suspect might last a lifetime, even if at the end of the day the investigation did mature into prosecution” (the words of Justice Ayelet Procatzia in MCA (Criminal) 1071/10, paragraph 8; see also in re Turgeman, on page 670; Civ.App. 214/89, Avneri v. Shapira, PD 43 (3) 856-957 (1989); Yuval Karniel – “Publication of Suspects’ Names – Freedom of Expression versus a Person’s Reputation”, Human and Civil Rights in Israel – page 392 (Tali Ben-Gal et al Editors, 1992)).

5.The legislature instructed on the appropriate balance to strike between these opposing rights, holding that the principle of public hearings and proceedings and the public’s right to know are the rule, and that they shall yield to the need to protect a suspect’s reputation and privacy when exceptional circumstances exist (MCA (Criminal) 1071/10, paragraph 9; in re Turgeman, on page 663). Section 70(e1)(1) of the Courts Act, which details one of the circumstances, provides:

The court may prohibit publishing of the name of a suspect who has yet to be indicted or other investigation details if it believes that publication might cause the suspect grave harm and that preventing that harm is preferable to the public interest in publication; if the court imposes a gag order prohibiting publication of the name of a suspect who has yet to be indicted, the order shall expire upon the suspect’s indictment, unless the court has determined otherwise.

7.This section confers on the court discretion to prevent identification of a person who is suspected of criminal offences when the interest in protecting his reputation outweighs freedom of expression and the public interest in knowing. A court shall prohibit publication when two aggregate conditions are met. First, the suspect must show the publication might result in “grave harm” to the suspect. It should be emphasized that “ordinary harm” to the suspect is insufficient for the section’s protection to apply. “Publication that is not exceptionally harmful does not trigger the exception” (MCA (Criminal) 1071/10, paragraph 9; see also Civ.App. 2430/06, Yedioth Ahronoth Ltd v. Goldberg (June 4, 2006)). Regarding the question whether a publication might cause “grave harm,” a court will consider, inter alia, the following factors: the suspect’s personal circumstances, his physical and mental state, the nature of the suspect’s occupation and whether it involves contact with people, whether the suspect is a public figure (in which case the harm that publication would cause is greater), whether the suspect has small children who will be harmed by the publication, thereby increasing harm to the suspect, whether the suspect has a relevant criminal history (in which case the harm is diminished), the type and gravity of the offence, and the weight of the evidence gathered in the investigation (in re Turgeman, on pages 670-671).

The second condition is that preventing grave harm to the suspect should outweigh the public interest in publication. There are two levels to this public interest: the general and the particular. The general level concerns the fundamental principles of freedom of expression, public hearings and proceedings and the public’s right to know. According to (former) Justice M. Cheshin: “This aspect of public interest in publication requires neither proof nor argument. It is self-evident, a starting point for the journey of interpretation. It is a conclusive presumption—let us say, an axiom—that the public has an interest in the publication of court proceedings; court proceedings are in and of themselves interesting to the public and this interest exists in all proceedings” (in re Turgeman, on page 667). In order to determine the extent of the public interest in publication on the particular level – the Court will consider, inter alia, the nature of the acts that the suspect is suspected of committing; the extent to which the publication of the suspect’s name or details of the case might put the public on guard and influence its conduct (and satisfaction of a mere need for gossip does not fall within the scope thereof); whether a public figure is implicated, in which case the public has a greater interest in the case, if the publication can advance the investigation and uncover the truth (for example, if the publication might encourage other victims to come forward), the weight of the evidence gathered against the suspect, the anticipated date of indictment, and the extent to which details of the case were published prior to submitting an application for a gag order (ibid, on pages 667-668).

In my view, the two conditions listed in section 70(e1)(1) are inter-related and there is a reciprocal between them: the greater the public interest in publication, the more the applicant-suspect will be required to prove that the harm to him, both in terms of likelihood and in terms of extent, is greater. Once a likelihood of “grave harm” and its extent are proven to be very great, a greater public interest is necessary to dismiss the application for a gag order.

Preventing the suspect’s identification

6.As discussed above, the purpose of section 70(e1) of the Act is to prevent the result of grave harm to a person identified as a crime suspect. The section authorizes a Court to reach this purpose in two alternative ways: one is by imposing a gag order prohibiting publication of the suspect’s name. This prevents identification if, as a result, a reasonable person is unable to connect the published information to a specific person (in re Vardi, paragraph 18). However, this will not prevent identification if the publication includes other details that make it possible to identify the suspect (ibid, paragraph 21; Civ.App. 8345/08, Ben Natan v. Bakhri, paragraph 34 (July 27,2011)). Accordingly, the legislature expressly defined: “a suspect’s name . . .  including any other detail that might identify the suspect” (section 70(e2) of the Act). Hence, insofar as a court finds that the suspect’s identification can only be prevented by imposing a gag order on publishing details of the whole case, it may do so. The second way to reach the section’s purpose is to impose a gag order against publishing other investigation details, without prohibiting publication of the suspect’s name. This is intended for situations in which publication of the suspect’s name together with certain investigation details would not cause the suspect grave harm, but the publication of a specific detail—for example, suspicion of committing a particular offence among several offences—might cause the suspect grave harm.

7.“Another detail that might identify the suspect” is a detail that passes the “de-anonymization” test. According to this test, “if anyone has key details enabling them to perform ‘reverse engineering’, i.e. to attribute the published information to a particular person, these details must be considered to be identifying information” (in re Vardi, paragraph 22). The information that might lead to identification of a suspect can be divided into two types. One is information that could enable identifying an anonymous suspect. This means information that includes public, distinguishable and unique characteristics that make it possible for a reasonable person made aware of the case’s details for the first time through the publication to identify the suspect involved. The publication of such information might have similar consequences to publishing the actual name. A second type is information that could enable identification of a well-known suspect. This means information that enables a specific person, who has prior knowledge of the suspect or the case, to connect the publication to that information, and identify the suspect. The type of identifying detail, the first or second type, has implications for the extent of the harm the publication could cause the suspect. The premise is that publication that enables any person to identify the suspect (publication of the first type) might cause greater harm than publication that enables identification of the suspect by a more limited number of people (publication of the second type). However, this is only a starting point.

A gag order, the Internet and everything in between

8.The Internet has generated extensive changes in our world. Alongside its many advantages, the Internet poses significant legal challenges. There is no denying that the anonymity characterizing cyberspace somewhat facilitates the commission of torts, and sometimes the commission of criminal offences as well. Against this background, there are those who argue that the digital age has eroded the efficacy of gag orders; after all, the ways to violate it are many and simple. According to this approach, the reason for granting gag orders that permit publication of cases’ details without publishing the suspect’s name has weakened, because the order may be easily violated and the suspect’s identity would become common knowledge. This position must be rejected. The premise is that a court order is not merely a recommendation. Every person is obligated to strictly comply with an order—any order. Public order requires that court orders be complied with, and public interest mandates that the public should know that a court order is followed effectively and that court proceedings were not in vain (ALA (Civil) 3888/04, Sharvat v. Sharvat, PD 59 (4) 49, 58 (2005); the words of His Honor Judge S. Joubran in HCJ 8707/10, Hess v. Minister of Defense (February 3, 2011)).

9.We are not blind to virtual reality and the difficulties of enforcing the law in cyberspace. As is known, there are sometimes real technological challenges to identifying a wrongdoer operating in the shadow of the Internet, especially when that same wrongdoer makes intentional efforts to avoid detection (ALA (Civil) 4447/07, Mor v. Barak E.T.C. (1995) International Telecommunication Services Ltd, paragraph 10 of the opinion of Deputy President E. Rivlin (March 25, 2010) (hereinafter, “in re Mor”)). However, even given this, the concern that gag orders will be routinely violated should not be exaggerated. Contrary to widespread opinion, freedom of expression on the Internet is not absolute. Although the cyber community engages in many and varied activities, such as chat rooms and forums, blogs and content sites, users’ attention is focused primarily on central content providers. As a rule, these providers supervise the content published on their platforms. Moreover, communities that operate under the auspices of official content providers have trained managers who actually serve as regulators and make sure, inter alia, that the content complies with legal requirements. In fact, members of the community themselves might also act as regulators for the purpose of maintaining order. These are all important self-regulatory mechanisms, which might help ensure gag orders are followed on the Internet (see and compare: Karine Barzilai-Nahon and Gad Barzilai, “Actual and Imagined Freedom of Expression on the Internet: On the Abolishment and Rebirth of Censorship”, Quiet, Speaking! 483, 485, 491-497 (Michael Birnhack, Editor, 2006)).

One should not overlook that when a case is earth-shattering or expected to have a particularly wide impact that extends beyond the borders of the State, it is possible that in the Internet age an order will not prevent information about the affair from quickly becoming common knowledge. Accordingly, in those exceptional cases a different position might be necessary. Since, and as detailed below, this case is not one of those cases there is no need for me to lay down hard and fast rules about this category. The discussion below will not refer to it, and it shall remain open for future consideration. 

10.In addition to the self-regulatory mechanisms on the Internet detailed above, there are State law enforcement mechanisms. Law enforcement authorities must make a constant effort to keep up with technological developments so that offenders can be brought to justice, for which purpose they may use the tools the legislature has put at their disposal. We live in a law-abiding country and violating a court order has consequences in the real world. Thus, violating a gag order might carry various sanctions: anyone harmed by the violation may recover from the wrongdoer for breach of a statutory duty under section 63 of the Torts Ordinance [New Version]; the order’s violation might constitute a criminal offence under section 70(f) of the Courts Act; and violation can be considered contempt of court under section 6 of the Contempt of Court Ordinance, a section that authorizes a court to compel one to comply with an order through a fine or arrest. 

11.Indeed, one should not overlook the fact that publication of the details of an investigation in which there is public interest, even in general terms and without noting the suspect’s name, will garner greater and faster exposure than in the past. Deputy President E. Rivlin addressed this as follows:

“The Internet is the new “town square” where everything is shared. The new medium – cyberspace – is everywhere and is open to all. The tools it offers, including ‘chat rooms’, e-mail, surfing the World Wide Web (browsing) and social networks – make it possible to obtain and pass on information, ‘listen in’ on others’ opinions and voice one’s own. It is therefore a quintessential democratic means to advance the principle of equality and protect against government intrusion on freedom of speech through legislation. The keyboard is available to every writer, and tapping a ‘mouse’ takes the written word to all four corners of the Earth. The public does not need, as it did in the past, a platform provided by others . . . [a]ny member of the public may and can create a ‘newspaper’ of his or her own and say his or her piece in a blog” (in re Mor, paragraph 14; see also Asaf Harduf, “Online Crime” 134-135 (2010)).

The more interesting a case is and theof more individuals’ interests that may be impacted, the more reasonable it is to assume that a wider public will discuss it online. In the case of a publication that attributes to a person an offence that involves particular revulsion and disgust, the publication might rumors about the identity of those involved and raise suspicions against specific people.

12.We would again mention that an important and central characteristic of publication on the Internet is the possibility of anonymity. “The distinctiveness of talkbacks is in their anonymity, in the fact that they are posted in response to articles written by others and in the use of available platforms for voicing individual opinions. Involved therefore is an accessible and instant way [of communicating] that is free of geographical borders and frequently free of filtering and editing, not to mention—also anonymous” (in re Mor, ibid). It is undisputed that in today’s reality a person wishing to publish something online and remain anonymous may do so without any real difficulty, and that there are many people who exploit this anonymity and break the law under the assumption that it will be impossible to identify them and bring them to justice (See and compare: in re Mor, paragraphs 10-17; Civ.App. 9183/09, The Football Association Premier League Limited v. Peloni (May 13, 2012); the explanatory notes on the Draft Exposing the Identity of a Publisher of Online Content Act, 5772-2012, Government Bills 1376; Michael Birnhack “Exposure of Anonymous Online Browsers”, “Laws” on 51 (2010); Michael Birnhack, “Private Space – The Right to Privacy between Law and Technology” 299-300 (5771); Amal Jabarin and Yitzhak Cohen, “Importance of the Identity of Anonymous Internet Users – Institutional Viewpoint,” Law Research 28 7, 8-10 (2012)). Although the premise is that the online press in Israel, as well as anyone notified of a gag order, will comply with the order, one should not overlook the fact that there are many Internet sites—including   blogs, social networks and forums—that do not employ routine supervision, in real time, of everything published on them. Given this reality, it indeed is impossible to guarantee that a suspect’s identity will not be exposed on the Internet. Although it is possible to retroactively remove a prohibited publication published in Israel on the application of the suspect to the site after the fact, until the publication is removed from the site it might garner varying degrees of exposure.  

13.In sum, the exposure of an investigation with potential for public interest, together with the possibility of anonymously publishing information on the Internet, increases the concern that the suspect’s identity will be revealed despite a gag order. The greater the interest to the public, the greater the likelihood of the suspect’s identity being revealed and that the suspect will be caused “grave harm” as a result. That said, assessing this likelihood involves a great degree of uncertainty. Inter alia, it is difficult to assess whether the suspect’s name would indeed be leaked on the Internet and, as discussed, the presumption is that this would not necessarily happen. Factors to be considered are the period of time that would be required for a name to be removed,  the extent and pace of exposure until removal, and the expected harm to the suspect (i.e. the likelihood that the suspect’s identity is exposed coupled with the harm that might be caused if the identity is exposed).

14.When considering whether or not to prohibit publication of additional details, should a court take into account, inter alia, the possibility that a gag order will be violated, to the extent of imposing a gag order on the details of the entire case? In my view, this question should be answered in the affirmative. The object of section 70(e1)(1) of the Act is to enable a court to properly balance opposing interests—freedom of expression and the public’s right to know, and protecting the suspects’ reputation, privacy and presumption of innocence. An a priori finding that one should not include in the balancing equation the possibility that a gag order will be infringed—even when proved that this is a real possibility—will undermine the purpose of the section and the court’s role in its realization. In my opinion, it is incumbent on the Court to also consider the likelihood that publishing the details of a case under investigation even without mentioning the suspect’s name would lead to the suspect’s identification and cause “grave harm.” This likelihood and the consequent harm expectancy will in any event be considered on the merits and according to the circumstances, although one can point to, without exhaustion, the following guiding considerations: the extent of the interest the case might generate, the extent of the impact and exposure resulting from this interest, possible motivations of those who know the suspect’s identity to reveal it and whether the suspect has specified a concrete person with such motivation, and possible motivations of those who do not know the suspect’s identity to learn it.

15.To be sure, in the circumstances described above, it cannot be presumed that the identity of the person whose name and any identifying detail has been prohibited for publication will be exposed. Vague arguments regarding possible future violation of a gag order are not a good reason for refusing to grant the order to begin with. As emphasized, the argument that possible future violation of a gag order makes granting it superfluous must fail because the practical implications of accepting such an argument are that granting the order is futile, and that those applying for orders must cease making applications to the court—even if there their application is with merit. Possibility of infringement does not justify rejecting applications for orders where prohibition is warranted. If this is done in a democracy— “freedom and anarchy will become synonymous” (compare: Crim.App. 126/62, Dissenchick v. The Attorney-General, PD 17 169, 179 (1963)).

The premise is therefore that an order will be followed and that it is sufficient to prevent identification. A suspect applying to prevent publication of additional details to the point of a blanket gag order covering the details of the entire case must show that in their specific circumstances, there is a real concern—that is, not a vague concern—that the order will be infringed, that the publication will result in identification, that the identification will cause “grave harm”, and that the public interest in preventing this harm outweighs the public interest in publication.

From the general to the particular

16.The Magistrate Court set aside the blanket gag order that was initially imposed on the entire case, and instead granted a gag order prohibiting publication of the suspect’s name, place of residence, the location of his clinic, and any other detail that might result in his identification. In doing so the Magistrate Court assumed that publication of any of these details might result in identification of the Respondent, that he would be caused grave harm as a result, and that preventing the harm outweighs the public interest in publication. The Applicant and the Appellants did not object to this decision, and rightly so. In my opinion, the circumstances of the case fulfill the conditions tipping the scale in favor of prohibiting the Respondent’s identification. With regard to the first condition, there is no doubt that publishing the Respondent’s name would have caused him “grave harm.” “The disgrace that follows sexual offences against minors is very powerful, and it is one of the lowest offences that carry such disgrace” (in re Turgeman, on page 672). The potential harm to the Respondent’s reputation and to his privacy should he be identified is significant and obvious. This harm is intensified in light of the Respondent’s occupation and the harm that publication would cause to his livelihood. The Respondent has children who are not aware of the suspicions against him and the publication would also harm them thus increase the harm to him. The Respondent has no criminal history. Currently, the District Attorney believes there is insufficient evidence to establish reasonable prospects of a conviction and that the Respondent should not be prosecuted, even though this decision is subject to appeal before the State Attorney and thus is not final (and it should be emphasized that we are not expressing any position regarding the appeal’s prospects).

As to the second condition, concerning the public interest in publication, here too, the scales tip in favor of preventing the revealing of Respondent’s identity, as opposed to imposing a blanket gag order on the entire case. Although the act that the Respondent is suspected of committing is indeed serious, at this stage, the Prosecution believes that the weight of the evidence against him is not sufficient to warrant prosecution. The State did not argue that the publication of his name might encourage additional complaints against him. It did not try to suspend his license and he is continuing to work in his field. Nor was it argued that the publication of the Respondent’s name would advance the investigation and discovery of the truth. The Respondent is not a public figure. In these circumstances, the main argument for publishing details of the case is freedom of expression, public hearings and proceedings and the public’s right to know, as well as the public as a check on the investigating authority and the Prosecution. For such purposes, publishing the name is not essential.

17.Should a blanket gag order have been imposed on the details of the entire case? The premise is that the Respondent’s identity should not be exposed. In order to prohibit publishing additional details—to the point of imposing a blanket gag order (as ordered by the District Court)—the Respondent should have shown that had publication of other details not been prohibited, he would be occasioned “grave harm”; and that the interest in protecting his reputation and privacy in the circumstances of the case takes precedence over the public interest in knowing the details of the affair. I will now turn to review these conditions.

Did the Respondent meet his burden to show he would be caused “grave harm”? It is undisputed that since publishing the Respondent’s name (including any identifying detail) falls under the gag order, the likelihood that a reasonable person who is not acquainted with the Respondent would link him to the crimes of which he is suspected and identify him is inherently diminished. The likelihood that he will be caused “grave harm” is therefore considerably low. However, the Magistrate Court’s gag order does not eliminate the possibility of identifying the Respondent. The Respondent argues there is a real concern his name would be leaked on the Internet or that the rumor mill would point to him and cause him “grave harm.” As noted above, there is an inherent difficulty in predicting how matters will develop and one cannot avoid an assessment that is based on life experience, logic and common sense, with assistance from the guiding considerations delineated above.

18.Given the nature of the case—suspicion that a therapist who treats young children committed sexual offenses on a patient—it is reasonable to assume that its publication will generate interest among parents whose children are treated by a male therapist. It is possible that parents who learn of the case will try and find out who is involved and to make sure that the person treating their child is not the Respondent. It is also possible that therapists—who are not necessarily aware that a gag order has been granted—will be interested in who is involved; and hence the publication will garner exposure and create an impact. This discourse will somewhat increase the likelihood Respondent will be identified or suspected. It should also be noted that the District Court expressed concern that the Applicant’s family will expose the Respondent’s identity “in roundabout ways.”

19.Even though one cannot rule out the possibility that the Respondent’s identity will be revealed despite a gag order prohibiting the publication of his identity, it appears that the expectancy of grave harm that might be caused to the Respondent is low. I will clarify. Firstly, I am aware that the District Court believed that the statements of the Applicant’s family vis-à-vis the Respondent increase the concern “that his name will, in roundabout ways, be linked to the event.” However, I believe that this finding is insufficient to establish a real concern that the order would be violated. The reality is that until now the family has not violated the order, directly or indirectly. Secondly, the Respondent’s arrest and the nature of the suspicions against him were published in mainstream media for a short period of time until they were removed, but his identity, he agrees, remained confidential, and the publication did not result in the “violating” publications he fears. This shows that this case is not one of those “special and exceptional” cases I discussed above, and attests to the proper weight that should be given to concerns regarding violations of the order and harm expectancy. Thirdly and primarily, while a gag order prohibiting publication of any identifying detail stands, without identifying publication by any credible media outlet these publications would amount to nothing more than rumors or suspicions, even if there were violating “leaks.” It goes without saying that the harm that might be caused as a result is infinitely less than the harm caused by an identifying publication in the central media in the absence of a gag order.

20.Against the expectancy of grave harm, which is not high, one should weigh the public interest in publication. This balance leads to the conclusion that publication of the case’s details should be permitted, without the Respondent’s name or any detail that could lead to his identification. We discussed above the importance of public hearings and proceedings and the public’s right to know generally, and there is no need to repeat this. On the level of the particular, the following should be considered:

Firstly, publishing the suspicions against the Respondent and the symptoms that the Applicant displayed might increase parents’ awareness and vigilance about the type of harm that the Respondent is suspected of causing, draw parents’ and other therapeutic bodies’ attention to signs of distress minors display, and encourage parents to take reasonable precautions. Such publication might even facilitate public discussion on the issue. It is important and appropriate to respect the public’s right to know and to give the public the power to choose whether and how to respond.

Secondly, there is no need to elaborate on the fact that media scrutiny is a cornerstones of any democracy and that enforcement authorities are not immune to this, including in this case. In such context and as a matter of principle, timing should also factor. As a rule, one should aspire to enable the press to publish in real time concrete information about newsworthy cases on the public agenda, since “the democratic system of governance is sustained, and even dependent on a free flow of information about the central subjects influencing public life and private life” (HCJ 1/81, Shiran v. The Broadcasting Authority, PD 35 (3) 365, 378 (1981)).

8.To be sure, when considering the weight of the public interest one must consider that a decision to prosecute has yet to be made and that the District Attorney’s position is that there is insufficient evidence to do so. This information somewhat reduces public interest in publication, although it does not eliminate it (compare: Crim.App. (Tel Aviv District) 989/79, Borochov v. Yafet, DJ 5743 (B) 521 (1983); Uri Shenhar, The Law of Defamation 243 (1997); Eitan Levontin “The Authority to Limit the Publication of Suspects’ Names”, “Mishpatim” 30 249, 253-255 (5760); Raphael Bashan “The Journalist and the Public, Interview with the President of the Israel Press Council, Mr. Yitzhak Olshan”, Journalists’ Yearbook 7, 11 (5726)). One should also take into account that a decision on the State Attorney’s appeal is still pending, such that this result might change (of course without taking a stand). Accordingly, though the public interest is intertwined, inter alia, with the question whether the Respondent did in fact commit the acts of which he is suspected, the status of decisions regarding possible prosecution does not lead to the conclusion that at this time this case is of no interest to the public.

Before closing it should be emphasized that all this does not amount to taking any stand on the question of the proper balance should the Applicant’s appeal be dismissed, and the decision not to prosecute the Respondent becomes final.

Conclusion

21.From all the above, I believe that when balancing between the expectancy of “grave harm” that might be caused to the Respondent from a limited publication, which is, as clarified, not high, and the public interest in publication, publication of the case should be permitted, while omitting the name of the Respondent and any identifying detail. I therefore propose to my colleagues that the appeal be upheld and that the Magistrate Court’s order be reinstated.

___________________

 

Judge Y. Amit

I agree with the judgment of my colleague Justice U. Vogelman, and would briefly add and remark as follows.

1.As noted by my colleague at the beginning of his remarks (paragraph 5 of his judgment), the parties assumed that the Respondent qualifies as a “suspect” under section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “the Courts Act”) as “someone against whom a criminal investigation has been commenced.” Ex facie, it seems that section 70(e) refers to a “suspect” before a decision regarding prosecution is made, as emerges from the provision that a gag order will expire “on the filing of charges.” However, the Respondent in this case is not the usual “suspect” to whom the section refers; his status is that of a “former suspect” in that the investigation into his actions has been completed, a decision not to prosecute has been made, an appeal against the decision has been dismissed, and an appeal before the State Attorney against that decision is still pending. Nonetheless, since the parties referred to the Respondent as a “suspect” and since section 70(e) is the section most applicable to this case, I see no impediment to treating that section as the relevant statutory framework. In any event, and as noted by my colleague, this decision does not relate to the state of affairs after exhaustion of appeal proceedings against the decision to end the investigation without prosecution.

2.Section 68(b)(5) of the Courts Act authorizes a court to hold a closed and confidential hearing “in order to protect the interest of someone complaining or who has been accused of a sexual offence ” and section 70(a) of the Act provides that “a person shall not publish any information about a discussion that took place in a closed hearing without the court’s permission.” Hence, the Respondent is wondering how it is possible that had he been prosecuted and his status was that of “defendant,” the court would have been authorized to hold a closed hearing and grant a gag order, but the court has no authority to grant such order to protect a suspect, let alone a “former suspect.”

To this I would reply that the question is not one of authority but one of discretion. A closed hearing is not the final word and cannot be considered an “automatic” gag order; rather, a court must find that the conditions for a full or partial gag order exist (Civ.App. 2800/97, Lifson v. Gahel, PD 43 (3) 714 (1999); HCJ 6005/93, Eliash v Judge Shmuel Tzur, PD 49 (1) 159 (1995); ALA (Civil) 3007/02, Yoav Yitzhak V. Moses, PD 56 (6) 592 (2002); MCA (Criminal) 8698/05, Azulai v. State of Israel (October 19, 2005)).

3.I do not deny that the likelihood the Respondent’s identity will be exposed is considerable. His family and close friends are aware of the case and, as argued, it should be assumed that the publication would create a “buzz” about his work in therapy. Neither do I make light of the Respondent’s argument that the investigation and brief arrest were traumatic for him, and that the mere fact of publication will exacerbate his emotional injuries.

Additionally, I found it hard to see the great public interest in the case (the use of the word “case” relates to the proceedings in their entirety and does not derogate from the Respondent’s argument that so far as he is concerned there was no offence to create a case to begin with). Regrettably, sexual offences garner almost daily reports in the media, sometimes even sensationalist coverage at the beginning of news edition and in bold newspaper headings, such that I doubt publication of this case would increase public awareness and vigilance. I also wonder how the public might be disadvantaged if publication is delayed until the State Attorney’s decision on the Applicant’s appeal, if only to alleviate the Respondent’s concern that the publication is designed to pressure the Prosecution.  

4.Nonetheless, I believe publication should be permitted within the limits the Magistrate Court has established, such as being motivated by the following.

Firstly, the Respondent’s case has already been reviewed and considered by two mechanisms, and both decided there was no room to prosecute. Actually, given his current status of “former suspect,” someone who enjoys a somewhat “greater” presumption of innocence, the harm that might be caused because of the publication is less than that which would be caused to an ordinary “suspect,” whose case has only been brought before a court, for example, in the process of requesting an arrest warrant.

Secondly, the argument that as long as the appeal is pending with the State Attorney there is no case, and in any event there is no public interest, should be rejected. The public has an interest in reviewing reasons for the investigation and prosecution authorities’ decisions, and the public’s right to know does not necessarily depend on the result these authorities reach.

In essence, non-publication of identifying or other details should be distinguished from non-publication of the case’s existence itself. The Respondent referred to the matter of The News Company (Crim.App. 11793/05, The Israeli News Company Ltd v. State of Israel (April 5, 2006)), but that case also involved the blurring of identifying details only, and not a gag order on the entire matter, despite the concern that blurring would be ineffective in the complainant’s close circle. The legislation and the case law primarily deal with publishing identifying details of a suspect, an accused or complainant of sexual offences. Thus, section 70A of the Courts Act deals with an “application regarding publication of a suspect’s name” and section 70B deals with “parties to an application regarding publication of a suspect’s name.” The Draft Courts Act (Amendment No. 31) (Prohibition of Publication), 5761-2001, DL 496, states it aims to expand the Court’s authority [and] “. . . prohibit publication of a suspect’s name, even where [the court] found the publication could cause the suspect grave harm, while balancing the suspect’s interest against the public interest in publication [.]”

To be sure, the emphasis is on publishing identifying details about the suspect, as opposed to publishing the existence of the case or the proceedings. Thus, in In re Turgeman, in the context of a gag order prohibiting publication of a suspect’s name, Justice Cheshin left the question “what is the fate of a gag order where it has been decided not to prosecute John Doe” undecided. A blanket gag order prohibiting publication of the fact that the events even occurred constitutes a case in the shadows. This result is difficult to accept both considering normative outcomes for the public’s right to know and considering the practical possibility of losing information in the bustling Internet world.

And from another angle: ordinarily, when the police and the courts are not involved, there is no impediment to the media in publishing news about one’s claim that they or their relative was a victim of a sexual offence. It is difficult to accept that the Respondent should find himself in a “better” position than any other person merely because investigation and arrest proceedings were instituted against him, by a gag order prohibiting publication of news about the very existence of the proceedings.

5.Against this background, I concur with the outcome of my colleague.

 

___________________

Justice E. Hayut

I concur with the opinion of my colleague Justice U. Vogelman and her outcome. Nonetheless, I wish to make several comments.

1.As noted by my colleagues, the parties’ premise was that the Respondent is still presumed a “suspect” as defined in section 70(e2) of the Courts Act [Consolidated Version], 5744-1984 (hereinafter, “Courts Act” or the “Act”) and that section 70(e1)(1), which authorizes the court to grant a gag order against publishing the name of a suspect who has yet to be prosecuted, or of another investigation detail applies. This was indeed the focus of the decisions in the appeal and consequently of the parties’ arguments. And rightfully so, as my colleague Justice U. Vogelman clarifies, since at this stage an appeal is still pending. Nonetheless, the Respondent’s status is closer to that of a “former suspect” (subject to the decision on the pending appeal). Hence, the question: what is the fate of someone who was presumed a “suspect” after a decision not to prosecute was made and the appeal proceedings were exhausted? In such a case, is a court still authorized, under section 70(e1)(1), to issue a gag order in respect to the Respondent and, under such circumstances, what is the status of a gag order granted while he was still a suspect? This issue was not raised and thus was not clarified in the decisions and submissions before us. Hence, I will not elaborate on this and will settle for mere preliminary thoughts.

2.The end of section 70(e1)(1) of the Courts Act provides that if a court grants a gag order against publishing the name of a suspect who has yet to be prosecuted “the gag order will expire upon the suspect’s prosecution.” A possible interpretation of this provision is that “from the positive follows the negative” and therefore when a decision is made not to prosecute a suspect and the investigation is closed, the gag order remains in force. This approach is consistent prima facie with the view that once a decision not to prosecute is made, the former suspect’s interest in protecting his reputation grows stronger, because, unlike a suspect who enjoys a strong presumption of innocence during the investigation stage, we are now dealing with someone whom law enforcement authorities have already decided should not be prosecuted. Accordingly, it can be said that once the investigation into a suspect has been closed, the balance between the public interest in public hearings and proceedings and the private interest of the former suspect whose details shall not be published shifts toward the private interest (for comparison regarding shifting the balance where there was prosecution: MCA (Criminal) 10731/08, Mitzkin v. State of Israel, paragraph 17 (January 4, 2009)). And indeed, in this context one cannot dismiss the approach that retroactive publication of a criminal investigation that ended might also harm the reputation of the former suspect and establish his negative reputation in the eyes of those who believe that “where there is smoke there is fire” (see and compare: MCA (Criminal) 1071/10, Moshe v. State of Israel, paragraph 8 (February 25, 2010); MCA (Criminal) 5759/04, Turgeman v. State of Israel, Piskei Din [Judgments] 58 (6) 658, 570 (2004)).

3.On the other hand, a gag order prohibiting publication is the exception to the rule regarding public hearings and proceedings and precedent instructs that  exceptions are only permitted under circumstances expressly listed in the Act (see MCA (Criminal) 8698/05, Azulai v. State of Israel, PD 60 (3) 168, 174 (2005)). Accordingly, and in the absence of express authorization to the Court under the Act to prohibit publication of the name or investigation details concerning a former suspect, there is merit to the argument that a gag order granted during investigation under section 70(e1)(1) of the Act expires not only upon prosecution (according to the end of the section), but also when a decision not to prosecute is made and the investigation closed. Then the general rule is restored and the principle of public hearings and proceedings applies in full. That publication after a decision not to prosecute alleviates harm to the former suspect’s reputation because it is accompanied, naturally, by publishing the decision against prosecution supports this view (see Eitan Levontin “On the Authority to Limit Publication of Suspects’ Names”, Mishpatim 30, 249, 313-314 (5760)). In other words, contrary to publishing details about a suspect in the course of a criminal investigation where the suspect generally has limited tools to combat published suspicions, the mere decision not to prosecute provides the former suspect with a significant tool to protect his reputation from negative impact resulting from publication of an investigation that has ended. Since the gravity of potential harm to a former suspect’s reputation diminishes as a result of publication, the balance shifts toward the public interest in maintaining pubic hearings and proceedings and publication about an investigation and its details once closed should not be prevented. It goes without saying that according to this approach, the former suspect is still able to object by bringing defamation suits against any publication of distorted, partial, or misleading information about the investigation (see ibid).

Thus, this issue cuts both ways and though my opinion sways in favor of the second approach, I am not required to decide here and the statements that I have made in a nutshell do not exhaust the issue.

 

___________________

 

Decided in accordance with the judgment of Justice U. Vogelman.

 

Given today, February 24, 2013.

 

HCJ 258/07

 

MK Zahava Galon

v.

Government Commission of Investigation for Examining the Events of the 2006 War in Lebanon

 

 

The Supreme Court sitting as the High Court of Justice

[6 February 2007]

Before President D. Beinisch, Vice-President E. Rivlin

and Justice A. Procaccia

 

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

 

Facts: The government set up a commission of investigation to examine what happened in the war in Lebanon in 2006. The commission decided to hold all of its proceedings in camera and not to publish any transcripts of the proceedings, on the ground that they were privileged for the reason of state security. This decision was challenged by the petitioner, who argued that the proceedings should only be held in camera if holding them in public would give rise to a near certainty of serious harm to state security, and that transcripts of those parts of the proceedings that did not satisfy this test should be published. The commission argued that it could not know in advance whether testimonies would contain privileged matters or not. It also argued that publishing the transcripts would require considerable work given the need to exclude matters that were privileged and proposed to do so only after presenting its final report, since to do so earlier would delay the preparation of the report.

 

Held: Most of the testimonies had already been heard by the commission when the petition was filed. Therefore, the question of hearing those testimonies in public was no longer relevant. The commission did not dispute that it was subject to the rule of publicity, according to which holding proceedings in public is the rule whereas holding them in camera is the exception. The presumption should therefore be that the commission would conduct itself accordingly, and would examine whether all or some of the testimonies that might be heard at a later stage could be heard in public. With regard to the publication of the transcripts of the commission’s hearings, the court held that the commission should publish those parts of the transcripts that were not privileged within a reasonable time, before the final report was presented to the government. Subject to these guidelines, the petition was denied.

 

Petition denied.

 

Legislation cited:

Administrative Courts Law, 5752-1992, s. 25, 25(b)(1).

Basic Law: Administration of Justice, s. 3.

Courts Law [Consolidated Version], 5744-1984, ss. 68, 68(a), 68(d)(1), 68(d)(2).

Commissions of Inquiry Law, 5729-1968, ss. 1, 9-11, 14, 15, 18, 18(a), 20, 20(a), 20(c), 22, 23, 27(a), 27(b).

Freedom of Information Law, 5758-1998, ss. 1, 9(a)(1).

Government Law, 5761-2001, ss. 8A, 8A(a), 8A(c).

 

Israeli Supreme Court cases cited:

[1]      HCJ 6728/06 Omets v. Prime Minister [2006] (4) TakSC 2797.

[2]      HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister (not yet reported).

[3]      CrimA 152/51 Tripos v. Attorney-General [1952] IsrSC 6(1) 17.

[4]      HCJ 11793/05 Israel News Company Ltd v. State of Israel (not yet reported).

[5]      LCrimA 5877/99 Yanos v. State of Israel [2005] IsrSC 59(2) 97.

[6]      AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [2006] (1) IsrLR 1.

[7]      AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd (not yet reported).

[8]      HCJ 680/88 Schnitzer v. Chief Military Censor [1988] IsrSC 42(4) 617; IsrSJ 9 77.

[9]      HCJ 243/62 Israel Film Studios Ltd v. Geri [1962] IsrSC 16(4) 2407; IsrSJ 4 208.

[10]    HCJ 1/81 Shiran v. Broadcasting Authority [1981] IsrSC 35(3) 365.

[11]    HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

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

[13]    HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [2003] IsrSC 57(2) 62.

[14]    CA 2800/97 Lipson v. Gahal [1999] IsrSC 53(3) 714.

[15]    HCJ 6005/93 Eliash v. Israel Bar Association [1995] IsrSC 49(1) 159.

[16]    CrimApp 5153/04 A v. Yediot Aharonot Ltd [2004] IsrSC 58(6) 933.

[17]    LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [1999] IsrSC 53(1) 26.

[18]    CrimA 11793/05 Israel News Co. Ltd v. State of Israel [2006] (2) TakSC 62.

[19]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[20]    CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [1994] IsrSC 48(3) 749.

[21]    LCA 1412/94 Hadassah Medical Organization v. Gilad [1995] IsrSC 49(2) 516.

[22]    HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[23]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[24]    CA 5185/93 Attorney-General v. Marom [1995] IsrSC 49(1) 318.

[25]    CrimA 353/88 Vilner v. State of Israel [1991] IsrSC 45(2) 444.

[26]    LA 176/86 A v. B [1986] IsrSC 40(2) 497.

[27]    CrimApp 2794/00 Aloni v. State of Israel [2000] IsrSC 54(3) 363.

 

For the petitioner — D. Holz-Lechner.

For the respondent — A. Helman.

 

JUDGMENT

 

 

President D. Beinisch

The Government Commission of Investigation for Examining the Events surrounding the 2006 Lebanon War has until now conducted its proceedings and heard all the testimonies in camera. The transcripts of the Commission’s proceedings have not been published. The Commission’s position is that only after the final report is presented to the government will it decide whether to publish those parts of the transcript that may be disclosed without harming the security of the state or other protected interests. The petition before us is directed at the commission’s position.

The main facts and the sequence of events

1.    On 12 July 2006, following terrorist operations carried out by the Hezbollah organization, in which eight IDF soldiers were killed and two others were kidnapped to Lebanon, fighting began in the north and this continued until 14 August 2006 when a ceasefire came into effect in accordance with decision no. 1701 of the Security Council of the United Nations (hereafter: ‘the Second Lebanon War’ or ‘the war’).

On 17 September 2006 the Government of Israel decided to authorize the Prime Minister and the Minister of Defence to appoint a government commission of investigation under s. 8A of the Government Law, 5761-2001 (hereafter: ‘the Government Law’), to examine the conduct of the political and defence establishments during the war. It was decided that the president emeritus of the Tel-Aviv-Jaffa District Court, Judge E. Winograd, would chair the commission (hereafter: ‘the Winograd Commission’ or ‘the Commission’). In the letter of appointment the Commission was authorized to determine findings and reach conclusions as to the readiness and conduct of the political and security establishment ‘with regard to all the aspects of the war in the north.’ The Commission was also authorized to recommended, in so far as it saw fit, ‘any improvement for the future decision-making processes of the political echelon and the heads of the security establishment, including the materials and advice given to the aforesaid authorities.’ The letter of appointment further determined that the Prime Minister and members of the cabinet, civil servants, IDF and security establishment personnel would appear before the Commission at its request and would provide any information and documents that they would be asked to present. The Commission was given powers of a commission of inquiry under ss. 9 to 11 and 27(a) of the Commissions of Inquiry Law, 5729-1968 (hereafter: ‘the Commissions of Inquiry Law’ or ‘the law’). With regard to the publicity of the Commission’s work, the government determined in its decision — and an identical stipulation was also included in the commission’s letter of appointment — the following:

‘F.          The commission shall present its report or reports to the prime minister and the Minister of Defence and they will bring them before the government. The report or reports of the commission shall be published; the commission may determine guidelines with regard to publication of the reports in accordance with the principles in section 20 of the Commissions of Inquiry Law, 5729-1968.

G.           The commission shall determine its procedure and its work schedule. The commission’s sessions shall be public or closed to the public as the commission shall decide.

No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

 

2.    On 30 November 2006 an expanded panel of this Court denied by a majority two petitions directed in principle against the Government’s decision to establish a government commission of investigation rather than to order the establishment of a state commission of inquiry in order to examine the conduct of the political and security establishments during the war (HCJ 6728/06 Omets v. Prime Minister [1]). An application to hold a further hearing on the subject of the aforesaid petitions was also denied (HCJFH 10030/06 Movement for Quality Government in Israel v. Prime Minister [2]).

The Winograd Commission began to hear testimony on 4 October 2006 and since then has heard dozens of witnesses. All the witnesses were heard in camera. On 29 November 2006 — approximately two months after the Commission began to hear the testimonies — the petitioner, MK Zahava Gal-On, submitted a request to Judge Winograd that the Commission should open its sessions to media coverage and publish the transcripts of the testimonies, with the exception of the parts whose publication would almost certainly cause serious harm to the security of the state. On 30 November 2006 Judge Winograd replied to the petitioner’s request as follows:

‘You are doubtless aware of the fact that most of the subjects in the commission’s deliberations include state secrets. Until now, although the testimonies of the witnesses also included matters that are not classified, the vast majority was classified, and therefore the disclosure of the testimonies to the general public has not been possible.

We are aware of the issue of “the public’s right to know,” and we consider this right in every case against the security of the state and the need to protect its secrets, which in our opinion — and I am convinced that this is your opinion also — should take precedence.

In the government decision that appointed the commission it is stated that the sessions of the commission shall be public or closed to the public, as the commission shall decide. In any case where it is possible, the session will be public…’

It should be noted that on 3 December 2006 — several days after judgment was given denying the petitions against the establishment of the Winograd Commission (Omets v. Prime Minister [1]) — the commission made a statement to the media. This statement said, inter alia, that —

‘The commission will continue its work in an attempt to examine what it had been asked to examine and to provide a quick, thorough and appropriate response to the many issues before it. Naturally most of the testimonies and sessions will be classified. In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’

3.    On 9 January 2007 — more than five weeks after Judge Winograd’s reply — the petitioner filed the petition before us. In the petition, the petitioner requested this Court to order the Winograd Commission (1) to hold its sessions and the hearing of the testimonies before it in public and, (2) to publish the transcripts of its deliberations at the end of each session, except when ‘there is a near certainty of real, serious and grave harm to the security of the state.’ On 17 January 2007 this Court, per Justice Levy, issued an order nisi to the respondent to reply to the petition, and the application for an interim order was denied. Justice Levy added in his decision that —

‘It seems to me that the commission would do well if, until this court decides the petition, it limits itself to hearing testimonies that need to be heard in camera for reasons of state security or that may be privileged by virtue of an order prohibiting publication, in accordance with the principles that have been laid down and explained in case law…’

When the petition was filed, the Winograd Commission was close to completing the stage of hearing the preliminary testimonies before publishing an interim report. After it finishes hearing these testimonies, the Commission intends to present an interim report to the government that will contain an open part that will be published and a privileged part that will not be. Counsel for the state told us that the Commission cannot definitively say the date on which the interim report will be presented but emphasized that we are not speaking of many months, but rather of a relatively early date.

The arguments of the parties

4.    In the petition and also in her pleadings before us, counsel for the petitioner, Advocate D. Holz-Lechner, discussed the centrality of the public’s right to know and  the importance of this principle in the democratic process and in safeguarding basic rights. According to her, the proceedings before the Winograd Commission concerning the conduct of the political and defence establishments during the Second Lebanon War is of great public importance since the matter concerns human lives and public security. She argued that the public is entitled to as much information as possible with regard to the acts, omissions, achievements, and failures that accompanied fighting in which the public suffered injuries and losses on both the battlefront and on the home front. The petitioner further argued that the public’s right to know is only overridden when  there is an almost certain likelihood that a disclosure of the information will cause severe, grave, and serious damage to the security of the state. According to the petitioner, from Judge Winograd’s reply on 30 November 2006 and from the statement to the media published on 3 December 2006, it can be seen that the Commission is of the opinion that the security of the state takes precedence over the public’s right to know.  According to the petitioner in forming this opinion the Commission did not give proper consideration to  the degree of probability that a security risk will occur and did not specifically examinethe extent of the harm involved in publishing the proceedings for each individual testimony. According to her argument, the fact that all the testimonies until now have been heard by the Commission in camera undermines the force of the principle of the publicity of hearings and the public’s right to know, and makes this violation a sweeping, arbitrary, and disproportionate one.

According to the petitioner’s approach, the Commission is not entitled to decide that its proceedings will be held in camera whenever there is any concern relating to state security. Rather,  in each session and with respect to each testimony  the Commission should examine the extent of the harm to state security while also considering the likelihood that such harm will occur. The argument is that a proper implementation of these rules will lead to the conclusion that most of the Commission’s proceedings will be open to the public and that the transcripts of the Commission’s sessions and of the testimonies given before it will be published as close as possible to the date on which they were given. The petitioner further argued that in matters concerning the publicity of the Commission’s proceedings and the publication of the transcripts of its proceedings, the powers of the Commission that were determined in the government decision and the letter of appointment should be interpreted in the spirit of ss. 18 and 20 of the Commissions of Inquiry Law. It was also argued that the anticipated publication of the non-classified parts in the interim report and the final report of the Winograd Commission does not compensate for the disproportionate violation of the public’s right to know, since the report presents a processed version of the information and the conclusions draw from it. By contrast, publication of the testimonies that are heard by the Commission before it presents its report to the government will allow the public to form its own impression, with a maximum degree of transparency, of the way in which the commission came to its conclusions. Publication as aforesaid will also encourage public debate and reveal additional information that was not brought before the Commission and that may be relevant to the matters being examined by it.

In reply, counsel for the state, Advocate A. Helman, argued that the order nisi should be cancelled and that the petition should be denied. In his reply, he said that ‘the respondent accepts that in this case the criteria for the publicity of the respondent’s proceedings are similar, in principle, to those of a state commission of inquiry.’ In the hearing before us, counsel for the state agreed that the general norm that is applicable in this matter is derived from the principle of publicity of proceedings and the public’s right to know. But he argued that this norm is not absolute and should be balanced against competing interests. In this regard, counsel for the state indicated two main reasons why the proceedings of the Winograd Commission have until now been held in camera and the transcripts of its sessions have not been published. The main reason is the public interest of protecting the security of the state. According to this argument —

‘… the commission became aware at the beginning of its work that all the testimonies that are being heard by it also include very classified and sensitive material — to a greater or lesser degree — which is a consequence of the subject being examined by the commission, the identities of the persons and officials who are summoned to testify before it and the matters that the commission is seeking to investigate and on which it wishes to confront the witnesses. In these circumstances, the commission is of the opinion that there is no practical possibility of determining ab initio that a certain testimony will not include classified material, whether in the course of the witness’s statement or in his reply to questions that the witness will be asked during his testimony’ (para. 12 of the state’s reply).

Counsel for the state confirmed in his pleadings that the testimony of witnesses who appear before the commission ‘also includes matters that are not of a classified nature.’ He However, he claimed that there is an inherent difficulty in distinguishing in advance between the parts whose disclosure is permitted and the parts whose disclosure is prohibited, and therefore it is necessary to hear the testimonies in their entirety in camera. For this reason, the Commission has until now not held a session that was open to the public.

With regard to the balancing test between the public’s right to know and the security of the state, counsel for the state argued that where it concerns  the question of the publicity of the Winograd Commission hearings, the strict test of ‘near certainty’ to which counsel for the petitioner referred in her pleadings does not apply. The proper test is one of publicity ‘that may endanger the security of the state’ as stated in the Commission’s letter of appointment. Notwithstanding, it was argued that even if the strict test as claimed by the petitioner does apply in the matter before us, there is an almost certain danger that publication of ‘the vast majority of the testimonies’ will result in serious harm to the security of the state.  This is because of the nature of the matters being investigated by the Commission and the identity of the persons being interrogated by it, and because of the sensitivity inherent in the fact that the Commission is supposed to address in its recommendations the lessons that should be learned for the future. Counsel for the state emphasized in his arguments that the way in which Israel conducted the war and the lessons that should be learned for the future as a result of the manner in which the fighting was carried out, are matters that if disclosed to the public, will very seriously harm the ability of the State of Israel to fight the next war in the best possible manner, and will thus seriously endanger the security of the state.

The second reason for holding the proceedings of the Commission in camera concerns the public interest in having the work of the Winograd Commission carried out efficiently, quickly, and properly, so that the Commission can recommend to the government as soon as possible the lessons and improvements that should be implemented. This issue was raised by counsel for the state, as he put it, ‘beyond what is strictly necessary.’ According to him, the hearing of the testimonies in public will significantly prejudice the ability of the witnesses to testify freely, openly, and frankly before the Commission with regard to the conduct of their superior officers and comrades-at-arms. Moreover, hearing the testimonies in public will significantly harm the proper management of the investigation since the witnesses will be able to prepare themselves for the testimony in a manner that will make it difficult for the Commission to arrive at the truth. Counsel for the state further argued that opening the proceedings to the public would make it necessary to stop the investigation whenever the reply of a witness to a question, or the question itself, concerns a classified matter, and that this would disrupt and prolong the investigations. With regard to the publication of the transcripts of the Commission’s sessions at the end of each day of the proceedings, it was argued that if the Commission needs to consider which parts of the transcript may be published on a daily basis, it would slow down the Commission’s work and impair its efficiency. It was also argued that publication of the transcripts of the testimony before the Commission would require the relevant security personnel to review them, and that these people may be subordinate to some of persons being investigated by the Commission. For these reasons, it was argued that the proper time for making the security examination of the transcripts of the testimonies that the Commission is considering is only after the Commission presents its final report to the government.

In view of all the reasons set out above, counsel for the state argued that we should not intervene in the Commission’s position that, as a rule, its proceedings take place in camera, and that the transcripts of these sessions are not to be at this time According to counsel for the state, this position is reasonable in view of the manner in which two former state commissions of inquiry conducted themselves when they investigated events that occurred during a time of war. These were the Agranat Commission of Inquiry regarding the Yom Kippur War, where all of the proceedings were held in camera in accordance with a government decision, and the Kahn Commission of Inquiry regarding the Beirut Refugee Camps, where most of the sessions were also conducted in camera. According to the state’s approach, the harm to the public’s right to know in this case is proportional in view of the fact that the Commission will make parts of the interim report available to the public, and the fact that the final report will be presented to the government, and in view of the fact that after the final report is presented to the government the Commission will decide whether to publish those parts of the transcripts that do not involve any harm to the security of the state, its foreign relations, or other protected interests. Counsel for the state further stated that publication of parts of testimonies before the Commission’s report is published will not significantly further the public’s right to know since such testimonies alone are likely to present a partial and distorted picture. In view of all this, counsel for the state argued that the Commission’s position is reasonable and the court should not intervene in it.

Deliberation

The principle of the publicity of proceedings and its application to the Winograd Commission

5.    Section 8A of the Government Law, by virtue of which the Winograd Commission was appointed, determines the powers of the government commission of investigation. This section does not address the question of the publicity of the proceedings before such a commission of investigation. Notwithstanding, the issue was expressly addressed in the letter of appointment that the Winograd Commission received from the Prime Minister and the Minister of Defence in accordance with the government’s decision of 17 September 2006. As I said above, paragraph G of the letter of appointment provides that:

‘The commission’s session shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

It follows from this that the Government left the question of the publicity of the Winograd Commission’s proceedings to the discretion of the Commission, although it saw fit to emphasize that no public proceedings should take place when doing so might endanger the security of the state or another protected interest.

Defining the character of the Winograd Commission as a body is complex. It is a public authority that was set up by law by the executive branch and it exercises quasi-judicial powers; the Commission’s character as an administrative body and its quasi-judicial powers are characteristics that affect the norms that apply to it. There is no doubt that the discretion given to the Commission on the subject of the publicity of its proceedings is not absolute. None of the parties before us disputes that the Commission as a public authority is liable to exercise its discretion reasonably, after considering all of the relevant factors and giving proper weight to each of them in accordance with the basic principles of our legal system. As we shall clarify later, since the Commission is a body that has been given quasi-judicial powers, the commission should give considerable weight to the principle of the publicity of proceedings when it decides whether to hold the sessions at which it hears evidence in camera. As a public authority it should also give considerable weight to the general norm of the duty of disclosing information in its possession, when there is no legal reason to prevent its disclosure.

6.    This Court has on many occasions in the past discussed the elevated status and the great importance of the principle of the publicity of proceedings that take place before it. What has been said in case law with regard to the publicity of proceedings is also pertinent with regard to proceedings that are taking place before a body with quasi-judicial powers, such as the Winograd Commission. The premise is that the publicity of the proceedings contributes to improving the quality of the decision that is made at the end of the process. The assumption is that the critical eye of the public may ‘eliminate any possibility that the judicial process may be influenced by bias and prejudice’ (CrimA 152/51 Tripos v. Attorney-General [3], at p. 23). In addition, the publicity of proceedings in a judicial proceeding or a quasi-judicial proceeding contributes to a strengthening of public confidence in public authorities, in general, and in the body that is hearing the matter, in particular. By means of the publicity of the proceedings, justice is not only done but is also seen to be done, and this prevents the impression that the law is administered in secret and according to hidden criteria (see the remarks of Justice Arbel in HCJ 11793/05 Israel News Co. Ltd v. State of Israel [4], at paras. 13-15 of her opinion and all of the references cited there; see also LCrimA 5877/99 Yanos v. State of Israel [5], at pp. 109-112).

The principle of the publicity of proceedings is also based on the public’s right to know and the duty of disclosure that governs a public authority. The public’s right to receive information concerning the manner in which public authorities operate allows them to be subjected to public scrutiny.— a scrutiny that is one of the cornerstones of democracy. This reasoning has found expression in the Freedom of Information Law, 5758-1998 (hereafter: ‘the Freedom of Information Law’), which gives every citizen and resident a right to receive information from a public authority, subject to the exceptions and reservations listed in the law. To this, we should add that the realization of the public’s right to know by disclosing to the public the manner in which the public authority operates allows the public to determine its agenda and helps individuals in society decide their positions by means of an open discussion of the problems and by a free exchange of opinions on the basis of the information that is published (on the public’s right to know, see AAA 9135/03 Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of the opinion of Justice Hayut; AAA 6013/04 Ministry of Transport v. Israel News Co. Ltd [7], at para. 12 of the opinion of Justice Rivlin).

It has been said in the case law of this Court that the principle of the publicity of proceedings has two aspects: one is that the hearing is held in open court, so that every member of the public is entitled to be present; the other is the permission to publish the content of the proceedings as part of the public’s right to know. It has also been said that today the main importance of the principle of the publicity of proceedings lies in the second aspect which concerns the possibility of publishing the fact that the proceedings are being held and the content of the proceedings, and thereby bring these to the attention of the public as a whole (see Yanos v. State of Israel [5], at p. 112).

7.    The centrality of the principle of the publicity of proceedings in our legal system has received express recognition in legislation and has even been enshrined in a Basic Law. Section 3 of the Basic Law: Judiciary and s. 68(a) of the Courts Law [Consolidated Version], 5744-1984 (hereafter: the Courts Law) provide the rule that ‘The court shall hear cases publicly.’ This principle has also been determined with regard to commissions of inquiry. Thus s. 18(a) of the Commissions of Inquiry Law provides that ‘A commission of inquiry shall hold public hearings…’.  It should immediately be said that this is not a strict rule, and that the provisions of the aforesaid laws contain exceptions to the principle of the publicity of proceedings, which we shall address later.

As we have said, the Government Law, by virtue of which the Winograd Commission was established, is silent  with regard to the publicity of the proceedings before a government commission of investigation. Prima facie a question may arise as to whether the rule concerning the publicity of proceedings applies to the proceedings of every commission of investigation that is appointed under the Government Law, or whether we should not speak of a strict rule since the matter requires the consideration of each individual commission in accordance with its circumstances. We do not need to decide this question in the circumstances of the case before us because the Winograd Commission is not an ‘ordinary’ government commission of investigation. In Omets v. Prime Minister [1] this court discussed how, in view of the character and scope of the issues that the Winograd Commission was authorized to examine, the government saw fit in the letter of appointment to give the commission additional mandates and powers that are not listed in the Government Law. This was done in order to allow the commission to investigate in depth an issue of national significance and importance, namely the fighting that took place in Lebanon. The commission was given, inter alia given some of the main powers of a state commission of inquiry under ss. 9-11 of the Commissions of Inquiry Law — the powers to summon witnesses and to compel them to testify or to produce documents. The Commission is also governed by ss. 14 and 22 of the Commissions of Inquiry Law by virtue of the provisions of s. 8A(c) of the Government Law, with regard to the status of those testimonies. In Omets v. Prime Minister [1] the state also agreed that the Winograd Commission should be subject to a similar arrangement to the one provided in s. 15 of the Commission of Inquiry Law that gives anyone who may be harmed by the Commission’s conclusions the right to state their case.  and in practice the representative of the state declared that the Commission was competent to issue ‘warning letters’ and to make recommendations with regard to specific persons like a state commission of inquiry. In practice, it is possible to interpret the position of the state in Omets v. Prime Minister [1] as that the Winograd Commission is similar in character to a state commission of inquiry, differing only in terms of  the party that appointed it.

Section 18 of the Commissions of Inquiry Law, which provides the rule that the proceedings of a state commission of inquiry should be held in public, does not apply directly to the Winograd Commission. But in its pleadings before us, the government agreed that the criteria concerning the publicity of the proceedings of the Winograd Commission are essentially similar to those of a state commission of inquiry, in view of the special character and the scope of powers of commission under discussion (see para. 31 of the respondent’s reply). Indeed, the Winograd Commission is considering issues of paramount public importance and interest. All of these factors affect the weight of the principle that the proceedings should be held in public and that the public has a right to know about the commission’s proceedings. Therefore, it is proper that the general principle concerning the publicity of the proceedings, which is also enshrined in s. 18 of the Commissions of Inquiry Law, should govern the Winograd Commission. It would appear that the Commission has indeed taken the aforesaid principle into account. In Judge Winograd’s letter to the petitioner of 30 November 2006, he says that ‘In any case where it is possible, the session will be public.’ The statement to the media on 3 December 2006 also says that ‘In so far as it will be possible without harming the security of the state, sessions and testimonies will be held in public.’ Therefore the premise for the continuation of our deliberations is that, in so far as possible and in the absence of any impediment for reasons of the security of the state, the proceedings of the Winograd Commission should be held in public.

The principle of the publicity of proceedings versus the security of the state

8.    The principle that proceedings should be held in public, like the basic rights that underlie it, is not absolute. There are cases where it needs to yield to conflicting rights and interests. Under s. 3 of the Basic Law: Judiciary, it is possible to violate the principle that judicial proceedings should be conducted in public only by virtue of an express provision of statute or by means of an order of the court that is made in accordance with statute. Section 68 of the Courts Law and ss. 18, 20 and 23 of the Commissions of Inquiry Law list the exceptions that allow all or some of the proceedings in a certain matter to be held in camera or subject to a prohibition against publication. Inter alia, it is provided that an order may be made to this effect if it is required ‘in order to protect the security of the state.’ It should be stated that even s. 9(a)(1) of the Freedom of Information Law provides that a public authority shall not provide information ‘whose disclosure gives rise to a concern that the security of the state will be harmed…’. As we have said, these provisions of statute do not apply directly to the Winograd Commission. But even the petitioner does not dispute that the exception with regard to protecting the security of the state applies to the Commission’s proceedings, and that in appropriate circumstances it is capable of justifying the holding of sessions in camera and of justifying the prohibition against publication of the content of the matters brought before the commission.

The two values under discussion — state security on the one hand and the publicity of proceedings and the public’s right to know on the other — are basic values in our legal system. ‘Without security the state cannot survive, and the social consensus on which it is built cannot exist. Thus the freedoms of the individual which the state is supposed to uphold will cease to exist. This shows the centrality of the value of security among all the values of the legal system’ (per Justice Barak in HCJ 680/88 Schnitzer v. Chief Military Censor [8], at p. 629 {92). But without holding proceedings in public and realizing the public’s right to know, the character of our democratic system, which is based on a free exchange of ideas and on public confidence in the state authorities and the propriety of their actions, may be undermined (see para. 6 above). A proper balance, therefore, needs to be struck between the aforesaid two values when they clash ‘head on.’ The balancing formula should realize the value of state security, but at the same time minimize, as much as possible, the violation of the principle of holding proceedings in public and the freedom of information, which are important values in our legal system.

The dispute between the parties before us concerns the proper formula for balancing the values under discussion. According to the petitioner, only when there is a concern that amounts to a near certainty of serious and grave harm to state security are there grounds for violating the principle of the publicity of proceedings by holding the commission’s proceedings in camera. By contrast, counsel for the state argued that the balancing test proposed by counsel for the petitioner is too strict. According to him, the test of ‘near certainty of serious and grave harm to state security’ was determined in the case law of this court in circumstances of a possible conflict between protecting the freedom of speech and safeguarding the security of the state, and that this test does not apply when we are dealing with the publicity of proceedings. The question whether the case law balancing formula between the freedom of speech and state security also applies in the context of a conflict between the publicity of proceedings and state security has not yet been decided in our case law and it has no easy answer. On the one hand, the freedom of speech is one of the reasons underlying the publicity of proceedings and the public’s right to know, as discussed earlier. On the other hand, the freedom of speech is not the only reason for the principle of publicity of proceedings. There are other values that underlie it, and we should consider how these are to be balanced against state security. Moreover, there are circumstances in which holding proceedings in camera serves additional public interests that are not merely matters of state security but also ensure the fairness of judicial proceedings and the possibility that in them we will arrive at the truth. In such circumstances, it is possible that there is a basis for a different fundamental balance than the one indicated by counsel for the petitioner. These questions do not require a decision in the circumstances of this case since counsel for the state was prepared to assume, for the purposes of the proceedings before us, that because of the character of the issues being examined by the Winograd Commission, the fundamental balancing formula argued by counsel for the petitioner does apply.

Whatever the balancing formula may be, there is no doubt that the outcome of the balance between the publicity of proceedings and state security cannot be decided in advance since it depends upon an assessment of the extent of the harm to security and of the likelihood that such harm will occur. Therefore, the result of the proper balancing point is determined by the circumstances and merits of each case. It should be emphasized that in view of the importance of the principle that proceedings should be held in public, a general and sweeping assessment of the danger to the security of the state based on the general nature of the issues under discussion will not suffice. In this context, a concrete and specific examination of the circumstances of the case should be made in order to decide whether there is a justification for departing from the rule that proceedings should be held in public.

From general principles to the specific case — the proceedings of the Winograd Commission

9.    The petition before us was filed after a considerable delay, which influences the application  of the criteria in the circumstances of this case. Originally, the petitioner applied to Judge Winograd with a request to open the proceedings of the Commission to the public and to publish the transcripts of the sessions almost two months after the testimonies began to be heard. The petition to this court was filed more than five weeks after Judge Winograd’s reply was received. These delays have resulted in the vast majority of the testimonies have already been heard by the Commission. At this stage, the hearing of testimonies has ended, that is unless the committee sees fit to allow another round of testimonies before examining recommendations concerning specific individuals.

The relief that the petitioner sought in the petition was of two kinds: first, to order that the proceedings of the Winograd Commission and its hearing of the testimonies to be held in public; and second, to order the publication of the transcripts of the commission’s proceedings at the end of each session. With regard to the first relief, since the petition was filed after the vast majority of the testimonies were heard by the Commission, the question of hearing them in public is no longer relevant. As we have said, it is possible that there remain additional testimonies that will be heard at the next stage of the Commission’s proceedings. From Judge Winograd’s letter to the petitioner of 30 November 2006, it appears that ‘in every case’ the Commission considers the publicity of the proceedings and the public’s right to know, as opposed to  state security and the need to protect its secrets. According to the position presented by the chairman of the Commission in this letter, we assume that the Commission will be mindful of the criteria set out above, and that it will make its decisions concerning the holding of proceedings in camera on an individual basis with regard to each of the testimonies that it may hear.

It should be noted that in his pleadings before us, counsel for the state discussed the inherent difficulty in distinguishing ab initio between parts of testimony that are expected to be heard by the Commission that may be disclosed and parts that must be heard in camera. In this context, I think it right to point out that if there are circumstances in which the vast majority of the testimony may be disclosed, there is no basis for holding the whole testimony in camera. In view of the great importance of the principle of holding proceedings in public, a distinction should be made ab initio between the part that may be disclosed, which should be heard in public, and the classified part, which is the only part that should be heard in camera. The more complex cases — which apparently characterize most of the testimonies being heard by the Commission — are those in which the main testimony is expected to be classified but is interspersed with parts that may be disclosed. In such circumstances, the Commission should make an effort to distinguish ab initio between the various parts, and to hold proceedings in public on the parts of the testimony that may be disclosed. But when the parts that may be disclosed are few and incidental to the classified parts of testimony, the advantage in separating the different parts of the testimony for the purpose of holding proceedings in public may be marginal, and the whole testimony may be heard in camera.

Counsel for the state went on to point out that the Winograd Commission is not prepared to allow persons who testify before it to make a ‘statement to the media’ at the beginning of their testimony in a hearing which then continues in camera. Two reasons are given for this position. First, the person testifying before the Commission has the possibility of giving interviews to the media and to say whatever they wish to say. Second, allowing the possibility of such ‘statements’ conflicts with the desire to conduct the proceedings of the Commission professionally and efficiently and to complete its work as quickly as possible. We see no reason to intervene in the Commission’s reasoning in this matter. We assume that the Commission will be mindful of the rule concerning the publicity of the proceedings and will allow the hearing of testimonies — or at least parts of them — in public, in circumstances where there is no legal impediment according to the criteria set out above.

It should be noted that in support of his arguments counsel for the state sought to rely on the manner in which state commissions of inquiry operated in the past when considering similar issues to those being considered by the Winograd Commission, including when the proceedings before them were alleged to be classified. In this respect, it should be stated that in the case of the Agranat Commission a blanket order prohibiting any publicity regarding its proceedings was imposed by a government decision that was originally made in accordance with s. 23 of the Commissions of Inquiry Law.  By contrast, in the case before us the Winograd Commission was given complete discretion. With regard to the proceedings of the Kahn Commission, these were mostly classified, but proceedings that were open to the public, at the commission’s discretion, also took place. Indeed, the manner in which the commissions operated in the past shows that an investigation of military operations that involves making recommendations naturally does not allow full disclosure of the evidence before the commission for reasons of state security. But no conclusion should be drawn from the examples in the past that the Commission is exempt from the application of the principle that proceedings should be held in public, and, as we have said, the Commission is obliged to hold proceedings in public if there is no impediment to this on grounds of state security.

10. The second relief that is sought in the petition concerns the publication of the transcripts of the Commission’s hearings. In his written pleadings, and also before us, counsel for the state confirmed that the testimonies that were heard by the Winograd Commission include parts that are not classified and that may be published under the law. The essence of the dispute between the parties concerned two matters. First, he parties disagree with regard to the scope of the material that may be disclosed to the public: whereas counsel for the petitioner is of the opinion that there is no reason why most of the material heard before the commission should not be published, the state argues that most of the testimonies may not be published. Prima facie the state’s position appears reasonable. The nature of the subjects being considered by the Winograd Commission, the identity of the persons appearing before it, and the sensitivity of the information being considered by it may lead in most cases to the existence of an almost certain danger of harm to the security of the state if the information that is revealed in the Commission’s hearings is published. Notwithstanding, this does not exempt the Commission from the need to examine the transcripts in detail in order to publish those parts that may be disclosed under the law. In this regard, a general assessment made at the outset is insufficient; it is necessary to make a detailed examination. As we have said, an examination should be made for each testimony to see whether there is a justification for prohibiting publication of what was said in it. In this context, there may be a difference between an examination made before the event and an examination made after the event.  With regard to testimony before it has been heard by the Commission, there is in many cases an inherent difficulty in distinguishing between the parts that may be disclosed and the parts that are classified.  When the examination is made after the event — after the testimony is given — distinguishing between the aforesaid parts may be done more easily.

The main disagreement between the parties concerns the date of publication of the parts of the Winograd Commission transcripts that may be disclosed. Section 8A of the Government Law and the letter appointing the Winograd Commission do not address this issue, apart from the statement in paragraph H of the letter of appointment, which says: ‘When its work is completed, the commission shall deposit all the transcripts of its proceedings and all the material that was brought before it in the state archives.’ It should be noted that paragraph F of the letter of appointment, which discusses the publication of the commission’s reports, refers to ‘the principles in section 20 of the Commissions of Inquiry Law.’ Section 20(c) of the aforesaid law provides that ‘The commission may, if it sees fit to do so, publish the transcript of its proceedings, or any other material relating to its work, in whole or in part.’ From this we see that the Commission was given discretion with regard to the question of the publication of the transcripts of hearings that took place before it and also with regard to their date of publication. As we clarified above, the Commission should exercise its discretion reasonably and give proper weight to all of the relevant factors.

In the hearing before us, counsel for the petitioner requested that the transcripts should be published as soon as possible after they are made. Counsel for the state, however, argued that in the Commission’s opinion the proper time for making a security examination of the testimony transcripts is only after the Commission presents its final report to the government. Two reasons were given for this. First, it was argued that if the Commission is compelled now to examine the parts of the transcript proceedings that may be publishe that this would hold up the Commission’s work and undermine its efficiency. Second, it was argued that publication of the transcripts at this time would require the matter being referred to security personnel who may be subordinate to some of the persons being investigated.

We should say immediately that the aforesaid reasons raised by counsel for the state are not convincing. In our remarks above, we discussed the great importance of holding proceedings in public and of the public’s right to know. We said that the flow of information is a condition without which people cannot form their opinions and that it is an essential condition for upholding democracy. ‘Only in this was can he [the citizen] adopt for himself as independent an opinion as possible on those questions that are at the top of the social and political agenda, which must ultimately be decided by him, by virtue of his right to elect the organs of the state’ (per Justice Landau in HCJ 243/62 Israel Film Studios Ltd v. Geri [9], at p. 2415 {217}). ‘The democratic system of government is nourished by — and also depends upon — a free flow of information to and from the public with regard to the main issues that affect society and the individual’ (per Justice Shamgar in HCJ 1/81 Shiran v. Broadcasting Authority [10], at p. 378). This is certainly applicable in this case given the national importance and great public interest raised by the issues being considered by the Winograd Commission. Moreover, our case law holds that the duty of an authority to make available to the public the information in its possession, when there is nothing in the law that prevents this, allows public scrutiny and that this principle derives from the status of the authority as a trustee that holds the information in trust for and on behalf of the public as a whole (see the remarks of Justice Rivlin in Ministry of Transport v. Israel News Co. Ltd [7], at paras. 11-13 of his opinion; see also the remarks of Justice Hayut in Council for Higher Education v. HaAretz Newspaper Publishing [6], at paras. 8-9 of her opinion and the references cited there). In view of all this, if the transcripts of the Winograd Commission hearings contain parts with regard to which there is no legal impediment that prevents their disclosure to the public, it is not reasonable to delay the publication of the material until the final report is presented. It may be assumed that it is possible to find reliable and experienced persons who will be made available to the Commission for the purpose of carrying out the security check required in order to identify the material that may be disclosed.

The argument of counsel for the state that publication of the material before the final report is presented will disclose to the public partial and distorted information is likewise rejected. If the transcripts contain material that may be disclosed under the law, the information should be published, and we should not say that it is better for the public that the publication should be postponed to such a remote date. In this regard we emphasize that if and when the Commission decides in the future to summon witnesses under caution, the relevant information will in any case be disclosed to them. At this stage, the ‘judicial’ aspect of the Commission’s work takes precedence over the ‘investigative’ aspect. In such circumstances, there is no concern that the publication of parts of the transcripts before the Commission’s final report is presented will disrupt testimonies or seriously undermine the proper work procedures of the Commission. We, therefore, assume that the Winograd Commission will exercise its discretion in accordance with what we have said above, and in accordance with its professed position in the letter of the Chairman of the Commission and its statement to the media, and that the Commission will take steps to publish the parts of the transcripts whose disclosure is permitted within a reasonable time, before the final report is presented to the government.

11. In summary, since the petition was filed after the vast majority of the testimonies had already been heard by the Commission, the question of the hearing of those testimonies in public is no longer relevant. It is possible that there are more testimonies that will be heard at a later stage of the commission’s deliberations. The pleadings of counsel for the state show that the Commission does not dispute that the rule that proceedings should be held in public applies to it. The Commission can be presumed to be conducting  itself in accordance with the criteria set out above and to examine the question whether all or parts of the testimonies may be given in public. With regard to the publication of the transcripts of the Commission’s hearings, the Commission will take into account the principles discussed above, and it is presumed that it will take steps to publish the parts of the transcripts that may be disclosed within a reasonable time and before the final report is presented to the government.

In view of all of the aforesaid and subject to what is stated in para. 11, the order nisi should be cancelled.

 

 

 

Vice-President E. Rivlin

I agree.

 

Justice A. Procaccia

I agree with the opinion of my colleague President D. Beinisch. If I see a need to add some remarks, it is in order to support, strengthen and emphasize what I think needs to be emphasized and highlighted.

1.    According to the constitutional outlook that prevails in the Israeli legal system the principle that proceedings should be held in public has a supreme status. The publicity of proceedings is a part of the duty of disclosure that lies at the heart of democracy. The aim of disclosure is to guarantee a free flow of information on subjects of public importance that affect the individual and society as a whole. A free flow of information, opinions and outlooks is an essential condition for a healthy democracy. Only in this way is it possible to ensure, on the one hand, the ability of the individual to influence the government’s actions by means of data and information that are required for this, and only in this way is the public given a means of scrutiny whereby he may examine the propriety of the actions of government bodies (HCJ 1601/90 Shalit v. Peres [11], at p. 364 {219-220}). A free flow of information on matters that concern the public is one aspect of the value of freedom of speech that lies at the heart of a free society, which includes not only the right to express oneself and make oneself heard and seen, but also the right to know, hear and see (HCJ 14/86 Laor v. Film and Play Review Board [12], at p. 433; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Committee for Sixteenth Knesset [13], at pp. 71-72). Alongside the freedom to express oneself and utter opinions, beliefs and ideas there is the right of the public to know about the complex actions of the government and the activity of public authorities; this is the other facet of freedom of speech, without which we cannot have a proper constitutional system that protects human rights and ensures the propriety of the activities of the government. The exposure and disclosure of information that is important to the public are prerequisites for the existence of public scrutiny and examination, whereas concealing and covering up such information screens and obscures deviations from public norms and makes it difficult to expose them and to recommend corrections where they are needed. The principle that proceedings should be held in public derives its force from the public’s right to know about the actions of the government and its agencies; holding discussions and judicial proceedings in the public eye also guarantees the fairness of the investigation and the quality, standard and seriousness of the decision made at the end of the proceeding. Openness increases public confidence in government authorities and the bodies who examine and scrutinize their actions. The principle that proceedings are held in public achieved statutory constitutional status in s. 3 of the Basic Law: The Judiciary  (see CA 2800/97 Lipson v. Gahal [14], at p. 718; HCJ 6005/93 Eliash v. Israel Bar Association [15], at p. 161; CrimApp 5153/04 A v. Yediot Aharonot Ltd [16], at p. 938; LCA 3614/97 Avi-Isaac v. Israel News Co. Ltd [17], at pp. 45-47; and recently CrimA 11793/05 Israel News Co. Ltd v. State of Israel [18], at paras. 13-16 (per Justice E. Arbel)). The principle that proceedings should be held in public is a basis element of judicial activity in the Israeli courts. It is an established principle in the Administrative Courts that try disputes in which a public authority is involved (s. 25 of the Administrative Courts Law, 5752-1992). The principle that proceedings should be held in public also applies as a basic principle of the legal system to quasi-judicial bodies. The principle of administrative disclosure and publicity also applies in general to the activity of government authorities that have an executive function, even though the principle of disclosure in the executive and administrative spheres may take a different form to the one that is found in the judicial or quasi-judicial sphere; ‘Indeed, administrative publicity is a basic principle in a democracy. It allows the public not only to plan its course of action, but also to develop a dialogue with the administration, which includes the scrutiny of its actions’ (I. Zamir, Administrative Power (1996), at p. 924). Indeed —

‘Proper government acts in the light of day, in the open, and thus it exposes itself to constant scrutiny and therefore also to the correction of corrupt courses of action’ (LCrimA 1127/93 State of Israel v. Klein [19], at p. 516 (per Justice M. Cheshin)).

An expression of the outlook of administrative publicity and the duty of disclosure that governs public authorities can be found in the Freedom of Information Law, 5758-1998, which gives every Israeli citizen or resident a right to receive information from a public authority in accordance with the provisions of the law (s. 1). Even before the Freedom of Information Law there existed a principle that documents of public authorities are available to anyone who has an interest in the matter. A refusal to disclose them imposed on the public authority a burden of explaining and justifying its refusal (CA 6926/93 Israel Dockyards Ltd v. Israel Electric Co. Ltd [20], at p. 796). The principle of disclosure was extended in the past, before the enactment of the law, to administrative bodies such as internal professional audit bodies; even though their deliberations are usually not open to the public, their conclusions are likely to be subject to disclosure (LCA 1412/94 Hadassah Medical Organization v. Gilad [21]).

2.    The principle of disclosure and publicity is not absolute. Like every constitutional norm, the degree of protection afforded to it is not unlimited. Thus there may be restrictions upon the realization of the norm and the scope of the ability to realize it. The scope of protection given to the constitutional norm is limited by the principles that determine the proper balance between it and important conflicting interests to which the law gives a special status. The principle of the publicity of proceedings, as a part of the value of the freedom of speech, is subject to restrictions in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty (HCJ 3434/96 Hoffnung v. Knesset Speaker [22]; EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [23]). The principles of the limitations clause demand that in order for a violation of a constitutional norm to be recognized as legitimate, it should originate in a statute that befits the values of the state, it should be intended for a proper purpose and it should satisfy the requirement of proportionality.

3.    Case law has held that where there is a clash between the principle of publicity and conflicting interests, ‘the principle of the publicity of proceedings retains a preferential status of a supreme right’ (Lipson v. Gahal [14], at p. 719). A clear and unambiguous provision of statute is required in order to restrict or qualify the publicity of proceedings rule (Eliash v. Israel Bar Association [15], at pp. 168-169, 170; CA 5185/93 Attorney-General v. Marom [24], at p. 342; Lipson v. Gahal [14], at p. 719). Even when there is such a provision of statute, it should be interpreted in accordance with the principles of the limitations clause, and especially in accordance with the principle of proportionality therein. This means that the principle of publicity will prevail unless the restriction of publicity satisfies the limitations tests, and especially that it should be of an extent no greater than what is required,  (CrimA 353/88 Vilner v. State of Israel [25], at pp. 450, 451; Lipson v. Gahal [14], at p. 719; Avi-Isaac v. Israel News Co. Ltd [17], at p. 66). The restrictions upon the publicity of proceedings are always interpreted narrowly (LA 176/86 A v. B [26], at p. 499; CrimApp 2794/00 Aloni v. State of Israel [27], at p. 369).

Publicity and disclosure are therefore the rule. Privilege and secrecy are the exception. Since the exception constitutes a restriction upon a constitutional norm, its application in a manner that violates the norm is conditional upon preconditions that mainly concern a proper purpose and proportionality.

4.    In various contexts legislation contains restrictions upon the publicity of proceedings. These qualifications include the protection of the security and foreign affairs of the state (s. 68(d)(1) and (2) of the Courts Law [Consolidated Version], 5744-1984; s. 25(b)(1) of the Administrative Courts Law, 5752-1992).

5.    A state commission of enquiry that acts by virtue of the Commissions of Inquiry Law, 5729-1968, is required to hold its proceedings in public and to publish its report (ss. 18(a) and 20(a) of the law). Alongside the publicity of proceedings principle and the duty of disclosure that govern the commission, the law lists exceptions to the publicity and disclosure rule, which include matters of state security. But according to the principles of the legal system, since the principle of publicity is the rule and secrecy is the exception, the commission of inquiry is required to make its proceedings open to the public and to publish the details of its activities unless, for weighty reasons that satisfy the constitutional requirement of proportionality, one of the exceptions listed in the law should be applied. The principle of publicity in a state commission of inquiry is particularly important, because a state commission of inquiry is charged with inquiring into a matter ‘of essential public importance’ that requires investigation (s. 1 of the Commissions of Inquiry Law). Such a commission is usually established where there is a crucial public need to investigate a matter of particular importance that is subject to disagreement, which not infrequently gives rise to deep public emotion and distress. The purpose of a commission of inquiry is to restore public confidence in the government and the persons running it. Re-establishing public confidence in society — which is one of the main purposes of a state commission — depends upon there being openness, disclosure and publicity in the proceedings of the commission to the greatest extent possible. Openness helps the public trust the fairness of the proceedings of the commission and accept its conclusions out of a belief in the integrity of its criteria and the objectivity of its motives. Publicity in the work of a commission of inquiry removes any concern of political bias or favouritism in the commission’s work and leads to greater public confidence in its activity (A. Klagsbald, State Commissions of Inquiry (2001), at pp. 23, 213; A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol.2, ‘Government Authorities and Citizenship,’ 2005), at pp. 1028, 1040-1041).

6.    Naturally commissions of inquiry are sometimes appointed to examine particularly sensitive security matters t or special matters of state, and these require secrecy. In circumstances such as these, when we are speaking of an essential public need of great significance that satisfies the proper purpose and the requirement of proportionality, a commission of inquiry is authorized to decide to apply the exception to the rule of publicity and to restrict opening the proceedings of the commission to the public and disclosing the information and the material submitted to it and the transcripts prepared by it where necessary and to the required degree.

7.    It is important to emphasize that even where there may be an exception to the publicity of the proceedings of a commission of inquiry, whether for security or other reasons, the balance between applying the principle of publicity and the need for resorting to the exception thereto should be made very carefully, and its implementation is required with regard to each element and each stage of the commission’s proceedings: the guiding principle is publicity, disclosure and exposure, and the exception is confidentiality and secrecy, which will apply only where it is necessary — where it is a ‘necessary evil.’ A sweeping preliminary decision that all the proceedings of the commission will be secret and that all the material that arises in its sessions will be classified seriously undermines the principle of publicity and is inconsistent with the requirements of the law. The commission should therefore examine, in so far as it can before the event, every testimony and every procedural stage that takes place before it on an independent basis, in order to decide whether it may be disclosed to the public or whether there is no alternative to making it privileged. Only in this way will the principle of publicity be properly realized, while upholding the proper balance between it and other essential public interests (Klagsbald, State Commissions of Inquiry, supra, at p. 215).

8.    The commission of investigation under s. 8A of the Government Law, 5761-2001, namely the Winograd Commission, was appointed to investigate the events of the war in the north with regard to a very broad range of issues, as can be seen from government decision no. 525. The letter of appointment that defines its powers authorized it to examine the conduct of the political echelon with regard to the war from political, military and civilian perspectives; it also requested an examination of the preparations  of the defence establishment, including questions of readiness for war, preparation of intelligence, conduct of the war, activation  of forces, etc.. The commission was given interrogation powers under ss. 9 to 11 and 27(b) of the Commissions of Inquiry Law, which concern powers to interrogate witnesses. These powers were given to the commission by virtue of s. 8A(a) of the Government Law. In view of the breadth and depth required when examining the subject of the war, the government supplemented what was lacking in the powers of the commission of investigation under s. 8A of the Government Law by giving the commission additional powers and authority, which it set out in the letter of appointment; thus, for example, it ordered the publication of the commission’s reports (para. F of the letter of appointment), it authorized persons to collect material (para. J of the letter of appointment) and following an opinion of the attorney-general it adopted the mechanism of sending warnings under s. 15 of the Commissions of Inquiry Law, which constitutes a condition for making personal recommendations. This opinion was given against a background of the similarity between a state commission of inquiry and a commission of investigation, and according to the state —

‘As a rule, in the absence of a special reason to deviate from this, a similar arrangement to the one set out in section 15 of the Commissions of Inquiry Law should be adopted in this case, with the  scope of the right to state one’s case in each specific instance being determined by the commission, according to the circumstances of the case’ (para. 49 of the state’s reply in HCJ 6728/06 Omets v. Prime Minister [1].

With regard to the aspect of the publicity of proceedings, the letter of appointment determined that ‘The commission’s sessions shall be public or closed to the public as the commission shall decide.’ It was also determined that ‘No public proceedings will take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

9.    In the wording of the letter of appointment, the government therefore regarded the commission of investigation as a body of a similar nature to a state commission of inquiry, and it acted to make the powers and authority of the commission of investigation as similar as possible to those given to a commission of inquiry acting in accordance with the Commissions of Inquiry Law. This purpose of equating the two types of commission is not surprising in view of the fact that the commission of investigation for examining the war in the north was set up to examine a matter ‘of essential public importance’ that requires clarification, in the sense that this expression is used in s. 1 of the Commissions of Inquiry Law, and it is only natural that the government sought to equip such a commission with the powers given to a commission of inquiry in order to enable it to carry out the complex task with which it was charged. The similarity between the powers of the Winograd Commission and the powers of a commission of inquiry is what was used by the state as its main justification in reply to the argument raised against it in Omets v. Prime Minister [1], according to which the government erred when it appointed a commission of investigation to examine the war in the north, when it had the power to appoint a commission of inquiry, with the characteristics and powers given to it in the law.

10. The close similarity between the Winograd Commission and a state commission of inquiry from the viewpoint of the character and scope of the matters requiring examination and their public significance and from the viewpoint of the scope of investigative powers given to it leads to the conclusion that even though the publicity of proceedings provision in the Commissions of Inquiry Law does not apply directly to the Winograd Commission, the publicity of proceedings principle applies to its proceedings to a similar degree as it applies to a state commission of inquiry. This is the necessary conclusion from the general application of the principle of publicity to quasi-judicial bodies as one of the basic principles of the legal system, and in view of the subject of the investigation and its broad public significance, together with the broad scope of the powers given to the commission of investigation and its status as a quasi-judicial body. The nature of the matters being considered by the commission of inquiry and their broad public scope, as well as the need to ensure public confidence in the way in which the commission conducts its investigations and reached its decisions, make it necessary to apply the rule of publicity, with its exceptions, to its proceedings in the usual manner that this is done with regard to a state commission of inquiry. Any other result would be inconsistent with the basic principles of the legal system and might even frustrate the main purpose for which the commission was set up — restoring public confidence in the army, the defence establishment and the government. Once the rule of publicity applies to the commission of investigation, the exceptions to the rule will also apply, in the same vein as those set out in the Commissions of Inquiry Law.

11. I should also point out that the application of the principle of publicity to the commission of investigation does not conflict, in my opinion, with the wording of paragraph G of the letter of appointment, according to which:

‘The commission’s sessions shall be public or closed to the public as the commission shall decide. No public proceedings shall take place when this may endanger the security of the state or its foreign relations or when there is any other lawful reason that prohibits this.’

Against the background of the principle of publicity which is one of the foundations of the legal system, it is possible to interpret what is stated in the letter of appointment as giving the commission of investigation discretion as to when to depart from the principle of publicity in its proceedings and to order them to held in camera, but this discretion is supposed to be exercised subject to the accepted principles of the legal system. There is no inherent contradiction between the wording of the letter of appointment in this regard and general principles, and the aforesaid provision should be interpreted in a way that is consistent with basic concepts as aforesaid.

12. The conclusion that arises from the aforesaid is that the Winograd Commission is subject to the principle of publicity, with its exceptions, and everything that derives from them, in the same way as the principle applies to a state commission of inquiry. In a commission of investigation publicity is therefore the rule; state security, or any other recognized reason for secrecy that reflects a weighty public interest is the exception. The principle of publicity has broad application. The exception only applies when circumstances require, it is for a proper purpose and it is not excessive.

13. The practical application of these principles leads to the conclusion that the Winograd Commission has a duty to allow the content of its proceedings and the material presented to it to be disclosed to the maximum degree possible without harming the security purpose or any other national interest of the highest importance. Only a real concern of harm to a public interest of special importance will justify a departure from publicity and the duty of disclosure and will allow proceedings in camera or a prohibition against publishing material and reports that were brought before the commission or will be issued by it.

14. Investigating matters concerning the War may naturally make it necessary to make some or even most of the proceedings and the material before the commission privileged for security reasons. But the commission has a duty to examine the need for making its proceedings classified for each testimony and for each hearing that is going to take place before it. The commission is not supposed to decide in advance that its proceedings will be subject to a blanket prohibition against disclosure. When determining the framework of the prohibition against disclosure, it should act on the basis of a premise of disclosure and publicity, and regard a prohibition against holding proceedings in public or disclosing information as an exception that should be applied narrowly and sparingly, and only in cases where it is necessary.

15. As the President of the court explained in her opinion, upholding the principle of publicity in the proceedings of the commission will realize the principle of the freedom of information and disclosure in the proceedings of the commission within the framework of the permitted limits. Applying the aforesaid principle will expose the proceedings of the commission to important public scrutiny and will ensure public confidence in its proceedings, as well as its decisions and conclusions. This is consistent with the nature of the subject that the commission was asked to examine as a matter of paramount public importance. It is also consistent with the broad scope of the powers given to the commission, which makes it very similar in this respect to a state commission of inquiry.

16. Since the state agreed, in principle, with the aforesaid analysis, I agree with the president’s conclusion that it is not required to make the order absolute in the current circumstances, since it can be presumed that the commission of investigation will act in accordance with the principles set out in this judgment, and that it will exercise its discretion in accordance with the criteria set out herein, which are based on the fundamental principles of our legal system.

 

 

Petition denied.

18 Shevat 5767.

6 February 2007.

 

Crim.A. 126/62

 

           

ARYEH DISSENCHICK AND SHAUL HON

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal  Appeal

[February 20, 1963]

Before Sussman J., Landau J. and Berinson J.

 

 

Courts - Contempt of court - newspaper report on pending criminal trial - Courts Law, 1957, sec. 41(a)

 

The trial of one Rafael Blitz for murder stretched over a number of days. On the second day. a newspaper (of which the first appellant was the editor and the second appellant the responsible journalist) published a report which indicated that in answer to the charge defence counsel had pleaded not guilty before the accused could say anything. In the body of the article it was reported that before trial the accused had in fact admitted his guilt to a journalist, although it was noted that such admission not having been made in court was not binding. The appellants were charged with contempt of court and were convicted and fined. The appeal was against both conviction and sentence.

 

Held. Although the jury system does not exist in Israel, no one may try to prejudice the court, composed of professional judges, in a matter being heard by it. It was not necessary that the court should in fact have been influenced by a publication but enough that it or witnesses in the case might be. Freedom of expression is not absolute. It may not offend against the right to a fair trial and certainly not introduce matter not actually before the court. During the trial itself, only the bona fide publication of what was said or transpired in open court is permitted.

 

Israel cases referred to:

 

1.         H.C. 14/51 : Attorney-General v Z. Rotam and others (1951) 5 P.D. 1017.

2.     H.C. 73/53 : "Kol Ha'am" Co. Ltd. v Minister of the Interior (1953) 7 P.D. 871; S.J., vol I, 90.

3.     H.C. 243/62 : Israel Film Studios Ltd. v Levi Geri and others (1962) 16 P.D. 2407: S.J. vol IV, 208.

4.         Cr.A. 24/50 : Avraham Gorali v Attorney-General (1951) 5 P.D. 1145.

5.         C.A. 36/62 : Israel Ozri v Y. Galed and others (1962) 16 P.D. 1553; S.J., vol IV, 347.

 

English cases referred to:

 

6.         Hunt v Clarke (1889) 61 L.T. 343.

7.         R. v Duffy (1960) 2 Q.B. 188; (1960) 2 All.E.R. 891.

8.         Delbert-Evans v Davies & Watson (1945) 2 All.E.R. 167.

9.         R. v Clarke (1910) 103 L.T. 636.

10.       Re D.O. Dyce Sombre (1849) 41 E.R. 1207.

11.       R. v Gray (1900) 2 Q.B. 36.

12.       R. v Davies (1945) 1 K.B. 435.

 

Australian case referred tb:

 

13.       Ex parte Senkovitch (1910) S.R.N.S.W. 738.

 

Canadian case referred to:

 

14.       R. v Willis & Pople (1913) 23 W.L.R. 702.

 

American cases referred to:

 

15.       Pennekamp and others v State of Florida 328 U.S. 331 (1946).

16.       Bridges v State of California 159 A.L.R. 1346 (1941).

17.       Patterson v State of Colorado 205 U.S. 454 (1907).

18.       Schenk v U.S. 249 U.S. 47 (1919).

19.       Cantwell and others v State of Connecticut 310 U.S. 296 (1940).

20.       Abrams and others v U.S. 250 U.S. 616 (1919).

21.       Schaefer v U.S. 251 U.S. 466 (1920).

 

S. Levin for the appellants.

G. Bach, Deputy State Attorney, for the respondent.

 

SUSSMAN J.             The trial of Rafael Blitz, charged with murder under sec. 214(d) of the Criminal Code Ordinance, 1936, opened in the District Court on 5 November 1958. The hearing was adjourned to the following day but was not then concluded. The case continued to be heard on 9 November, 1 December and 3 December 1958. Judgment was given on 12 January 1959. When on 5 November 1958 Blitz was asked whether he admitted or denied the charge, he replied (according to the judge's notes) "I deny the charge."

 

2. On 6 November, 1958, the second day of the trial, the newspaper Ma'ariv carried a report by the second appellant, together with a picture of Blitz. The report bore the following caption: "BLITZ (TOMMY) ASKED - DEFENCE COUNSEL REPLIES" and beneath it "I DON'T ADMIT IT." The report began

 

"Rafael ("Tommy") Blitz had only to say three words yesterday when asked by the judges whether he admitted murdering Engineer Fiatelli near to the Zafon Cinema. Blitz stood tensely upright, open-mouthed - but before he could reply to the question, his counsel answered for him 'I don't admit it'."

 

This passage was emphasised by being printed in bold type. The report went on to say (in ordinary type)

 

"Blitz's gaze quickly turned from the judge to counsel. For a moment heavy silence reigned. Apart from Blitz himself, no one could know whether the negative answer was the one he had prepared to utter. Earlier, before the case began, he had given another answer to a question from a journalist. But that answer was not binding because it had not been given to the judges who judge a person on the evidence put to them. Since counsel's answer was decisive, the trial of Blitz therefore began."

 

3. The two appellants were charged under sec. 41 of the Courts Law, 1957, for writing and publishing this report, the second appellant as the writer and the first appellant as editor of the newspaper. They were convicted and fined IL. 200 each. They now appeal by leave of the District Court against judgment and sentence.

 

4. Sec. 41(a) of the Courts Law provides:

 

"A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial; however, this prohibition shall not apply to the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court."

 

            The District Court (per Judge Harpazi) found that the description of Blitz's behaviour in court along with the wonder of the writer as to what Blitz would have replied had counsel not intervened and said "I don't admit it", were protected by the end of see. 41(b), being a bona fide description of what occurred in an open session of the court. But the District Court found the two appellants guilty of an offence under see. 41 for that part of the report which stated that before trial Blitz had given a journalist an answer other than "I don't admit it." The court held that this information was calculated to influence the outcome of the trial both because of its effect on the judges who sat and heard the case against Blitz, and more seriously because of its effect on witnesses who had been summoned in the trial.

           

5. Mr. Levin for the appellants argued before us that the different answer of which the report spoke need not necessarily have been "I admit it". There was a variety of possible answers by a person standing criminal trial when asked whether he denies or admits the offence, such as "I admit the facts but not the offence".

 

            In my view this argument is groundless. The words in the report "Blitz had only to say three words yesterday," against the background of the headline of four words "I don't admit it", by themselves indicate that the three word answer Blitz "should" have given was "I admit it". Even if that is not so, the writer goes on to say that the trial began as a result of the fact that counsel's reply is decisive ("the trial ... therefore began") and "that answer (of Blitz himself to a journalist) was not binding." The emphasis on the causal connection between counsel's reply and commencement of the trial, in contrast to Blitz's own answer which would have made the trial superfluous had it been binding, shows clearly to the reader that the non-binding answer was "I admit it."

           

6. The second argument of appellants' counsel was that nothing in the report was calculated to affect the outcome of the trial. Mr. Levin directed us to the leading judgment of Witkon J. in Attorney-General v Rotam, (1) particularly to the observation in paragraph 16, and he

 emphasised the fact on which Witkon J. (in paragraph 13) and Agranat J. (at p. 1052) dwelt, that in this country where trial is before professional judges, the possible influence of newspaper publication is far less than it is in other countries where the facts are determined by a jury. Since I have reached the conclusion that the District Court was right in its decision that the report was likely to influence the witnesses, and thus also the outcome of the trial, 1 shall only derate brief words to this argument.

 

            I also think that our mode of trial which generally does not involve lay participation - I am not concerned with exceptional procedures such as in the municipal courts or rent tribunals - warrants a more liberal approach to publications touching pending court cases. The professional judge is accustomed to sift the grain in accordance with the law of evidence and to set out his reasons in writing. He is not likely to be affected by a publication to the same extent as a juryman who returns to the court room with the general answer of "guilty" or "not guilty", the reasons for which remain locked within his breast. Although the public may properly presume that a professional judge can largely rid himself of the influence of what he reads in the newspapers, it is not free, even as regards the judge, from the obligation not to try and create prejudice about a matter pending in court. There is no justification for the illusion that the judiciary is a precision machine which will produce the right factual conclusion in exchange for and required by the admissible evidence supplied to it. It is important to recall here what Justice Frankfurter said in Pennekamp v Florida (15) at p. 1042:

           

"Judges are also human, and we know better than did our forebears how powerful is the pull of the unconscious and how treacherous the rational process."

 

To weigh the evidence, to determine the credibility of witnesses, their powers of observation and their memory are among the most difficult of judicial tasks. They are more difficult than deciding the law, with our law faculties and teachers to instruct a person in the wisdom of the law before he becomes a judge. No one can teach the work of elucidating and establishing the facts. Each one of us learns that from his experience during his lifetime.

 

7. I shall therefore assume that the appellants are right in saying that the report was unlikely to influence the judges who sat in the case, that reading it the judges could avert their minds from it as they normally do from inadmissible evidence. Before I pass to the matter of the possible influence on witnesses, I must deal with a preliminary argument put by appellants' counsel. The hearing of Blitz's case began, as I have said, on 5 November 1958 and continued on the morning of 6 November, before the newspaper came out. Blitz had already admitted to the police ... that he had been at the scene of the crime and had even fired shots. At the trial, however, his counsel urged that also the police had fired shots when pursuing Blitz; it is possible therefore that Fiatelli was killed not by Blitz's shots but by one fired by the police. The question was, whose shot caused Fiatelli's death. In this regard, Mr. Levin argues the evidence of the prosecution was completely in by the time the paper came out at noon on 6 November.

 

            I cannot accept this argument. Blitz's trial did not end until 12 January 1959. Even after 6 November 1958 evidence was being taken. Whether or not the publication amounts to an offence does not depend whether it in fact influenced the outcome of the trial. Under see. 41 it is sufficient that it "is calculated to influence", that it could influence. That is the law not only in England: Hunt v Clarke (6), but also in the U.S.A. where the courts, in consequence of the First and Fourteenth Amendments (free speech and due process), tend to construe restrictively the rules of contempt of court: see Frankfurter J. in Bridges v California (16) at p. 1371.

           

            Generally it cannot even be said whether a publication has really influenced matters, and for this reason alone the guilt of the publisher is not to be made dependent on the outcome of the trial. The possibility of such influence is enough to cause injury to the integrity of judicial hearings and render doubtful whether justice has been done. The decision in a trial must rest on the foundation of the evidence adduced and taken openly. A trial influenced by invalid "external" hidden factors is not a judicial trial.

           

            In Patterson v Colorado (17) Justice Holmes dealt with the question of whether a newspaper publication proclaiming a witness a liar should be treated as contempt of court. I will return to the observations of the Justice in another connection. Here I am content to quote one sentence of his which explains the idea of the prohibition embodied in our see. 41:

           

            "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court; and not by any outside influence, whether by public talk or public print."

 

            Furthermore, even after the appearance of the newspaper evidence was taken to prove that it was Blitz's bullet which caused Fiatelli's death, after Counsel had previously suggested the possibility of Fiatelli having been shot by a policeman. Inspector Zelinger who happened to be at the scene of the murder testified at the trial that he heard "about six shots" ... He was cross-examined by counsel for the defence and asked whether he was armed. He answered, no. He also denied that on leaving the cinema he fired warning shots. On 9 November 1958 the prosecution called three witnesses ... to controvert the argument of the defence, as above. Blitz admitted in the box to firing five shots. According to Zelinger's evidence there was only one other shot that might have killed. Defence counsel based his argument in summation on this fact: "Is there another possibility that one of the policemen who was on the spot wanted to harm Blitz." Hence the danger of adverse influence had not yet passed when the newspaper came out on 6 November.

           

8. As regards the question whether publication of the report was "calculated to influence the outcome of the trial" as provided in see. 41, Mr. Levin suggested putting the matter to the "clear and present danger" test, first adopted by this court in the "Kol Ha'am" case (2). His argument was that it is not enough that publication is likely to influence the outcome of the trial but that what is required is the probability that immediate damage will be caused.

 

            I find no foundation in the argument. In "Kol Ha'am" the question before the Court was in what circumstances the Minister of the Interior may exercise his powers under sec. 19(2)(a) of the Press Ordinance to suspend the publication of a newspaper. Sec. 19(2)(a) conditions that power on the publication of matter "likely to endanger the public peace." Agranat J. speaking for the Court, set a number of different grounds. One of them was the term "likely" used by the legislator, which is synonymous with "probable" or "that may reasonably be expected" (at p. 188). Another was the need to balance freedom of speech - and freedom of the press which is only a projection of that - as a fundamental right in a democratic regime against the duty of the government to safeguard public security, in face of which the right of the citizen may retreat only in exceptional cases; such exceptional cases are those in which "a clear and present danger" of a breach of the peace is manifested, according to Justice Holmes in the well-known case of Schenck v U.S. (18). Employing the same test, this Court recently decided whether the Film Censorship Board had lawfully used its power to forbid the exhibition of a film (Israel Film Studios Ltd. v Geri (3)).

 

9. I would think that this test is not appropriate in the case before us. There what was involved was the restriction of a right in the interest of public necessity, here it is the reconciliation of an interest which the public is concerned in preserving with another with which it is equally concerned. The invasion of freedom of speech because of the danger of a breach of public order, which is a sore evil only to be effected to the extent that it is essential, is unlike delimiting that freedom in order to do justice. The public interest in justice being done is no less a value than its interest in maintaining freedom of speech. In balancing the two, it is no less wrong to repress the one than it is to repress the other. In the one case future publication is prevented because of a "faulty" report published in the past, when future publication may well be faultless. In the other case, punishment is imposed for an offence committed by a past publication. In Attorney-General v Rotam (1) Agranat J. (at p. 1054) and Witkon J.(at p. 1029) drew attention to the fact that the U.S. Supreme Court applies the said test also to contempt of court, and in view of such authority the question calls for more basic examination.

 

10. The leading case in which the Court laid down "the clear and present danger" principle as a guide in determining whether a publication amounts to contempt of court was Bridges v California (16). Justice Black at the beginning of his judgment (speaking for the majority of five justices) stressed that the offence charged against the appellant was undefined by enacted law and that he was found guilty on the basis of a common law rule which in view of the trial court remained over from the time of British rule. Justice Black continued (at p. 1355):

 

"It is to be noted at once that we have no direction by the legislature of California that publications outside the court room which comment upon a pending case in a specified manner should be punishable. As we said in Cantwell v Connecticut (19), such 'declaration of the State's policy would weigh heavily in any challenge of the law as infringing constitutional limitations.' But as we also said there, the problem is different where 'the judgment is based on a common law concept of the most general and undefined nature'."

 

            I am not stating anything new in observing that freedom of expression is not an absolute right but is likely to come into conflict with other rights, and in such a conflict, there are occasions when the latter will prevail. As was said in Gorali v Attorney-General (4): "Everyone has the right of freedom of speech and freedom of expression, but exercise of the right is subject to restriction by law."

           

            Freedom of expression is not freedom to ridicule or licence to defame a person and commit an offence under sec. 202 of the Criminal Code Ordinance, 1936, or to do the injurious acts mentioned in see. 16 of the Civil Wrongs Ordinance, 1944: Ozri v Galed (5), neither can it justify the commission of any other wrong. In the present case, we are dealing with the charge of an offence against a Law recently enacted by the Knesset, that is, the matter has come before us, as Justice Black put it in Bridges (16) "encased in the armor wrought by prior legislative deliberation."

           

            The first question which presents itself when treating of a contemporary enactment is what is the situation involved. I cannot attach decisive importance to the fact that the offence of contempt of court emerged under absolute monarchy under which contempt of court is considered to be equivalent to contempt of the monarch himself. (See Nelles & King, "Contempt by Publication in the United States", (1928) 28 Col.L.R. 401, 525). We are not concerned here with a charge of offending the honour of the judges who heard the case and for this reason I shall not dwell on the question in what circumstances a publication of such a kind should be punishable. We are concerned with the publication of the admission of a crime uttered in the presence of a journalist, concealed by a denial in court of the charge. That constitutes interference with a case pending in court, an equivalent to passing the hearing of the charge from the court properly dealing with it to the public at large, invited to adjudicate on it according to information presented in a newspaper. A free democratic regime is also entitled to safeguard the integrity of judicial hearings, otherwise freedom and anarchy become synonymous. By literally prohibiting publication which "is calculated to influence the course or outcome of the trial", the Knesset has said that no one shall publish anything capable of influencing the course of a pending case. The term "calculated to " means only that the publication becomes "a special publication", as stated in the marginal title of see. 41, if it is of sufficiency to influence the case.

 

11. The course normally taken to establish the significance of some legal prohibition is to ask what is the mischief which it is sought to suppress. That is the key to correct interpretation. In the present case the answer is that the Law is intended to avoid, inter alia, the presentation of matters touching upon a case then being conducted which were not raised before the court dealing with it.

 

            Justice Holmes who coined the phrase "clear and present danger" in Schenck (18) died in 1935 and was not a member of the court that sat in Bridges (16) in 1941. But what he himself said in Patterson v Colorado (17) in 1907 can here be cited in support:

           

"A publication likely to reach the eyes of the jury, declaring a witness in a pending case a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained ... What is true with reference to a jury is true also with reference to a court."

 

12.       The notion of freedom of expression or "free trade in ideas" as was said in Abrams v U.S. (20) is based on the consideration that in the course of expressing views without limit or restriction "the power of the thought" will eventually succeed "to get itself accepted in the competition of the market." Hence, to circumscribe competition is only justified in exceptional instances.

 

            Yet the doing of justice is no less important than freedom of expression and, as has already been explained, a fair judicial hearing necessitates that one should disregard the thoughts that have currency in the street. The facts are determined in court not by the competition in the market of views but by the evidence adduced in court in accordance with the law. Where the notion of "free trade in ideas" itself does not obtain with reference to a matter being judicially heard, why should the right of freedom of expression be honoured to the extent of it becoming a clear and present danger as it trespasses on to an area not its own and concerns itself with matters in which silence is best? (See Frankfurter). in Bridges (16) at p. 1367).

 

            Publicly to mention things concerning a case is restricted neither before the case opens nor after it is closed. Only during the hearing itself is a kind of moratorium placed upon public debate. The public may know what was said and what occurred in the court room, again without restriction under see. 41. But what public interest is served by publication of information that some defendant admitted a crime to a journalist? That is only liable to increase tension and satisfy sensation-seeking. Freedom of the press does not exist for this purpose. I have said that freedom of expression is not freedom to ridicule a person. I now add that neither is it freedom to trespass on the courts and deal with a person's guilt.

           

13. It is not superfluous to note that Agranat J. raised the question of the American test in Attorney-General v Rocam (1) in the special context of sec. 4 of the Contempt of Court Ordinance, and he emphasised the fact that notwithstanding the criminal nature of the act, the court did not deal with it under normal criminal procedure. The hearing was "summary". Being required "to show cause" the accused did not have the traditional right to remain silent and the court itself, and not only the Attorney-General, could commence proceedings. The said sec. 4 has been repealed and replaced by sec. 41 of the Courts Law, 1957, under which the proceedings follow the normal pattern; the accused is not required to show cause and the court does not act of its own motion. Even the term "contempt of Court" has been entirely abandoned.

 

14. Mr. Levin for the appellants relied on R. v Duffy (7) where Lord Parker posed the question whether a real risk had been created and not only a remote possibility of prejudicing a fair trial. I also agree that "a remote possibility" is not enough, since if the possibility of prejudice is too remote, then the publication is not "calculated to influence", it does not possess a sufficiency of influence on the trial. In Duffy a newspaper published an article about a man who was sentenced to five years' imprisonment on a charge of assault. Notwithstanding conviction, the case was still pending on account of an appeal having been lodged. Apart from the fact that the appearance of the defendant did not please the writer, the article itself only mentioned one thing, that a year before a detective had pointed a finger at him in a public house and had said that he would end up in the dock. What influence could that have had on the judgment of the Court of Appeal?

 

            Appellants' counsel here stressed the reservations of the court in Duffy as to the observations in Delbert-Evans v Davies (8) about the need to avoid publications which embarrassed the judge. I see no need to enter into the dispute between the judges in these cases, since I have already said that I shall deal with the matter before us on the basis that the judges were not influenced here but I take liberty to point out that Delbert-Evans was approved by Justice Frankfurter in Pennekamp. (15).

           

15. What difference is there between "clear and present danger" and "sufficiency" of influence as to the outcome of a trial? To clarify the difference, only some points of difference need be noted. The test of "clear and present danger", it was said in "Kol Ha'am" (2), is that of "probability". In Abrams (20) Justice Holmes spoke of "imminent threat", and in Schaefer (21) Justice Brandeis said (at 266) that "the test to be applied ... is not the remote or possible effect." For sec. 41 as well "remote effect" is not enough but "possible effect" is, since it is one whether the publication operated to influence the trial or only could so influence. The influence on the outcome of the trial need only be a reasonable possibility and not "probable" or "imminent."

 

16. Was the article which was published calculated to influence the outcome of the trial? I agree with the District Court that it involved a reasonable possibility of influencing witnesses. The central question in Blitz's trial, as will be recalled, was whether some person in addition to Blitz had fired a shot, and if so, whose shot killed Fiatelli? All are agreed that the. identification of a person is an inexhaustible source of error, error which has led to tragic instances of perversion of justice: see Wigmore, The Principles of Judicial Proof, (2nd ed.) paragraph 206, and the examples at paragraph 209. The appellants added to the difficulty. For a witness who was not certain whether Blitz had hit the victim, the latter's admission was likely to strengthen his belief that Blitz had done so. A witness who thought otherwise might be deterred from giving evidence in favour of Blitz, after reading that the latter was ready to confess the crime. I said that the appellants added to the difficulty of giving evidence since a person appearing as a witness can only testify to what he believed he saw or heard and the process of impressions which create in a man's mind the belief that he saw or heard something is at times very complex. In this regard, Wigmore says at paragraph 206

 

"Belief is purely mental ... thence the approximation of our belief to a correct representation of the actual fact will depend upon how fully the data for that fact have entered into the mental formation of our belief."

 

And a little later, in paragraph 207:

 

"Suppose that a man has lost a valuable scarf pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say that he remembers that this particular servant did steal the pin."

 

            In R. v Clarke (9) the court decided that publication of the confession of a murderer in prison before trial was a contempt of court. A fortiori is it so in the case before us. Blitz had denied the charge and the publication only served to add unnecessary tension to the trial and to show that his denial was not true. It is the right of an accused person to deny the charge. He is presumed to be innocent until his guilt is proved. The publication by the appellants tended to prejudice that right and it was only made to reduce the force of the denial of the charge, thereby affecting the defence adversely.

           

            In conclusion, I would like to add one thing. I am astonished why the police in this as in other instances allowed a journalist to interview the defendant. When a case is pending, nothing that may influence it is to be published. What reason is there for the police to enable the defendant at this stage to have contact with someone whose job is to gather and publish news? A journalist has no interest in news that may not be published. Conversation with a person charged with a serious crime can arouse a feeling of sensation, but there is no benefit to the public in such an interview and it is better that it should not take place.

           

            I have found no basis for the appeal against sentence. I would dismiss the appeal.

           

BERINSON J.            I concur with everything said in the judgment of my learned colleague. I only wish to add something to the brief remarks about the possible influence upon judges of the newspaper publication of matters affecting a trial being heard by them.

 

I agree entirely with the District Court judges that what the appellants published was calculated to influence the course of the trial going on at the time against the defendant Blitz, not only as regards the witnesses but also as regards the judges who sat.           

 

Every defendant has a right to an unimputably fair trial. unaffected whilst it is pending in court by anything not lawfully part of the trial, It is vital that the trial of a person should be conducted and decided on the foundation solely of evidence and argument presented in court in the manner laid down by the law and not influenced by matter from without which has not passed through the crucible of the tests current in the courts and directed to ensuring a fair trial of the defendant, including full capacity to defend himself. In Patterson v Colorado Justice Holmes said:

           

"...if our system of trial is to be maintained. The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. What is true with reference to a jury is true also with reference to a court."

 

            As my learned friend explained, the information published by the appellants cannot be understood otherwise than that the defendant here admitted his guilt to the journalist before standing trial. It is difficult to imagine anything more serious than the publication in the course of a trial that a person has confessed his guilt outside court. I accept the view of the District Court judges that publication of such information, even if only by clear hint, is always calculated to influence the course or outcome of the trial. Even if done without evil intent to influence the judges or witnesses, the character of the publication and its possible harm of the defendant's interests is unchanged. What is decisive is not the intent but the act and its possible consequence.

           

            Sec. 41(a) of the Courts Law defines the limit of publication with regard to a matter pending in court. It is formulated as a general prohibition of any publication which "is calculated to influence the course or outcome of the trial" and it only excludes "the bona fide publication of a report of anything that has been said, or has occurred, in an open session of the court." Accordingly, anything said or occurring outside court, calculated to influence the trial, is prohibited from publication. Journalists and newspaper proprietors who presume to publish such things cannot plead that it was done in the public interest. The Law lays down what is prohibited and what is allowed in publication from the viewpoint of the public interest, and once the legislature has spoken every plea that the public interest requires otherwise is debarred.

           

            Should a person penetrate the private domain of a judge in order to whisper to him things affecting the guilt or innocence of a person standing criminal trial before him, is that person free of wrong doing? Will he not be punished for an attempt to influence unproperly the judge and the outcome of the trial? I would think-so, as emerges clearly from the remarks of Lord Cottenham over a century ago in Dyne Sombre (10):

           

"Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a cause calculated, if tolerated, to diverb the course of justice, and is considered, and ought more frequently than it is to be treated as, what it really is, a high contempt of court."

 

            In this respect, the right of a newspaper is no greater than that of any other person in the country (R. v Gray (11)). On the contrary. A newspaper fulfils a public task and information published in it is normally entitled to the trust of the public which usually attaches importance to newspaper publications. A newspaper which publishes a report that a person has in it more conferred is a crime outside court inculcates belief in that person's guilt in the mind of every reader, including a judge. Willingly or not, he can be influenced consciously or subconsciously. The words of Humphreys J. in R. v Davies (12) at p. 443, that "It is a fallacy to say or to assume that the ... judge is a person who cannot be affected by outside information", express a simple and well-known truth. A judge is but a human being and we cannot penetrate the recesses of his soul and affirm that he has indeed succeeded in freeing himself entirely from things he has come across which have penetrated his mind even unknowingly. The judge's task of conducting a just trial is a difficult and delicate matter even when everything is as it should be. Be the judge as cautious and as strong as he can, things should not be made even more difficult for him by irresponsible publication of matters which it is not his concern to know.  In this regard, the observations of the District Court Judges, themselves judges of long standing, capacity and experience, are worthy to be recalled:

 

"An effort is required of a judge, even when he is used and trained to do so, to rid his mind of outside information which reaches him not in the course of the regular trial, and that is likely to be felt at least when the judge has to decide his stand regarding the credibility of witnesses."

 

Further on in their judgment they go on to say:

 

"And if it be asked, what about those instances in which a judge reads (as often occurs...) of the confession of the accused which is subsequently disqualified as evidence, or in which, after admitting the charge in open court, the accused applies for and obtains leave to withdraw his admission - indeed such instances are not to be welcomed: they are liable to exert an undesirable influence but there is no possibility of avoiding them since these possibilities exist only to prevent new serious dangers.

 

            Freedom of expression does not embrace the right to set at naught the usual assurances for the conduct of an unimputably fair trial. The press is free to deal generally with everything touching the judges and the courts, even to level criticism at them so as to enlighten the public about the problems involved in judicial matters in this country. Judges as human beings, said Justice Frankfurter, or courts as institutions are not entitled to great immunity from criticism than are other persons or institutions: Bridges (16) at p. 259. That refers to criticism of a general nature that does not impinge upon a particular case as long as it is going on in court. This limitation was repeatedly emphasised by Justice Frankfurter in his judgment. Interference in the course of a trial by publication of matter which may impress its mark on those who take part in the trial as judges, witnesses, experts and the like is liable to destroy the character of our legal system, requiring as it does that a defendant's fate shall be decided solely upon the evidence properly adduced in court in the manner fixed by the law and not by any outside influence.

 

            Justice Frankfurter in Bridges (16), after referring to the notion advanced by Justice Holmes in Abrams (20) that a trial is not "free trade in ideas" and that the best test to adopt in court is not "the power of the thought to get itself accepted in the competition of the market", goes on to explain it at greater length (at 203):

           

"A court is a forum with strictly defined limits for discussion. It is circumscribed in the range of its inquiry and in its methods by the Constitution, by laws, and by age-old traditions. Its judges are restrained in their freedom of expression by historic compulsions resting on no other officials of government. They are so circumscribed precisely because judges have in their keeping the enforcement of rights and the protection of liberties which, according to the wisdom of the ages, can only be enforced and protected by observing such methods and traditions."

 

            The problem here is how to achieve a proper balance between protection of freedom of expression on the one side and the maintenance of a just trial on the other. In other words, what is the right place of each in the hierarchy of primary social and public values vital for the existence of true and free democracy. The District Court Judges put their mind to the problem and I think we can be satisfied by citing the incisive observations of Judge Harpazi with which the other two judges who sat agreed and which also reflect my own view of the matter:

           

"The problem with which we are dealing here is not a new problem nor peculiar to this century. It occurs wherever there are courts, wherever people seek to ensure fair and just trial on the one hand and newspapers exist on the other. The problem arises and has at times been considered by the courts of the two great countries where a democratic political regime exists and where the legal system is similar to our own: Great Britain and the United States of America. I see no need to cite here precedents from these two countries but it is common knowledge that in Britain jealous watch is kept against publications concerning matters sub judice, whilst in America the press is far freer in publishing such matters. Were it for me to decide which is desirable, I would choose the British approach and avoid loosening the rein, the end of which is "trial by the press" before a person is adjudged by the court.

 

            Our approach, however, has been laid down by the Israeli legislature, having regard to the fact that severity was prescribed (in Britain) at a time when most cases were decided by a jury. Thus I think that in sec. 41 of the Courts Law the Israeli legislature followed the British approach.

           

            I do not overlook the fact that freedom of the press is affected, which is not only the right of individuals and public groups to free expression but also embraces a vital concern of the public generally. But I think that no one in this country, including pressmen themselves, would urge the right of the press to influence the course and outcome of a trial. When a person stands trial, his fate must be decreed by the court in the courtroom closed to any voice or influence from outside. The right and the task of the press is to inform the public what has occurred in court and it may thereafter also criticize what the Court has done, but it may not interfere in the course of the trial."

           

            The case of R. v Clarke (9) is similar to the one before us. There also information was published in a newspaper of the confession of a person suspected of murder, after being detained in Canada under a warrant of arrest issued in England. The editor of the London "Daily Chronicle", in which the information was published, was charged with contempt of court and convicted. Darling J. speaking for Court had the following to say (at p. 637):

           

"It is most important that the administration of justice in this country should not be hampered as it is hampered in some other countries, and it is not enlarging the jurisdiction of this court - it is refusing to narrow the jurisdiction of this court - when we say that we are determined while we are here to do nothing to substitute in this country trial by newspaper for trial by jury; and those who attempt to introduce that system in this country, even in its first beginnings, must be prepared to suffer for it."

 

See also the like judgments in Canada, R. v Willis and Pople (14) and in Australia, Ex parte Senkovitch (13) set out in the English and Empire Digest, vol. 16, p. 20, nos. 169 p. & q.

 

            To the credit of Israeli newspapers it may be said that in general they proceed with restraint and moderation with regard to anything concerning pending cases and with respect and esteem for the judge. But precisely for this reason it is proper that in the present case, the first of its kind to come before this Court under sec. 41 of the Courts Law, 1957, we should make patent our views and say clearly that the courts of this country will not tolerate the interference of newspapers in pending cases, which may stultify the doing of justice. So that newspapers should know what to expect when an attempt is made to reproduce among us trial by newspaper; the courts must repress any tendency in that direction in its infancy, before it acquires any place or hold in our judicial and social life.

           

LANDAU J.               I concur in the judgment of my friend Sussman J., as well as in the additional observations of Berinson J. as to the dangers which lurk in trial by newspaper. I take liberty to repeat what I said in the same spirit in Ozri v Galed (5):

 

"The advice to be given to newspapers is to abstain from running after sensations in the preliminary publication of court proceedings which are to be conducted in the future and to be satisfied with exact and "dry" reports of these proceedings themselves when taken, without adding details not mentioned in court. Newspapers will thereby safeguard themselves from mishap in this connection as well as take an important step towards raising their professional standard and clear the atmosphere darkened by a multiplicity of publications which tend to injure the good repute of the individual" (at p. 1560).

 

These observations apply even more cogently to anything published about a pending trial which is calculated to prejudice its fair conduct.

 

            Appeal dismissed.

            Judgment given on February 20, 1963.