(May 6, 2021) On April 12, 2021, the Supreme Court of Israel rejected petitions for the court to declare unlawful the implementation of a voluntary procedure by the cyber unit of the State Attorney’s Office to alert online platform operators to suspected harmful content (“notice and take down” procedure). (HCJ 7846/19 Adalla – Legal Center for Rights of Minorities v. Cyber Unit of State Attorney’s Office; main decision by Justice Hanan Melcer, with Justice Alex Stein and Court President Justice Esther Hayut concurring.)
The procedure in question involves alerting online platform operators such as Facebook, Twitter, YouTube, Instagram, and Google to statements of intent to commit violence, harm to minors, support for terrorist organizations, incitement and hatred, or information that may infringe on the privacy of others (harmful content). Online platform operators may review the content in question and exercise their independent discretion on whether to restrict access to it, remove it, block it, remove it, suspend the user for violation of “community rules,” or do nothing.
Petition
According to the petitioners, the governmental implementation of the procedure constituted an infringement on constitutional rights to freedom of expression and to a fair process under Basic Law: Human Dignity and Liberty. In their view, the procedure provided the State Attorney’s Office extensive powers to delineate the boundaries of freedom of expression by effectively determining that certain content is illegal and should be removed, without judicial review and the right to be heard. They alleged that even if removal of content was not mandatory, the implementation of the procedure constituted a governmental activity that required explicit authorization by law and was void in the absence of such authorization.
Decision
Rejecting the petitioners’ claims, Melcer ruled that there was no evidence that the implementation of the procedure harmed any “person” within the meaning of the Basic Law. In his opinion, “avatars” and “bots” did not enjoy human rights, especially considering that some of them were not even activated by humans, but by artificial intelligence. Moreover, different entities operate in the internet arena in various configurations, including foreign state entities, networks of “bots,” fake accounts, and imposters.
There was no specific evidence that the petitioners suffered harm as a result of the entire scope of activities related to implementation of the procedure. There was similarly no indication as to which specific aspects of the units’ implementation activities required explicit authorization by law. Nor did the petitioners address the scope of application of the Basic Law to foreign users. Additionally, the absence of relevant online platform operators from the list of petitioners made it difficult to determine whether they acted as independent bodies, or whether their decisions on handling harmful content were influenced by either local or Israeli law or solely on the platforms’ terms of use.
Regardless, Melcer denied the respondents’ claim that the unit’s voluntary procedure did not constitute a governmental act. In his view, the state “has an undeniable position of influence” in its interactions with operators and end users. A voluntary act, which depends entirely on the exercise of independent discretion on behalf of an external party, might not require an explicit legal authorization, Melcer held. Instead, it may derive its legal basis from the residual authority conferred on the government on the basis on section 32 of Basic Law: The Government. In exercising its residual authority the government may not infringe on the fundamental rights conferred on individuals, which are enshrined in or implied by the Basic Laws.
In the absence of proof that implementing the cyber unit’s “notice and take down” procedure directly resulted in a violation of fundamental rights, and that the online platform operators did not exercise independent discretion, the procedure could not be held unlawful. The implementation of the procedure could be improved, however, by consideration of “an orderly and detailed legislative initiative with regard to the whole scope of voluntary enforcement, as was done in some Western countries.” The establishment of a review mechanism that would supervise the unit’s activities after the fact might also be helpful, Melcer noted.