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Article Israel: Tel Aviv District Court Upholds but Shortens Duration of Temporary Shutdown of Al Jazeera

On June 4, 2024, the Tel Aviv District Court upheld orders issued on May 5, 2024, by the Ministry of Communications to shut down Al Jazeera’s broadcasts, close its Israel offices, block access to its websites, and seize equipment. The orders were issued based on authority provided under the Prevention of Foreign Broadcasting Entity Harm to State Security Law (Temporary Order–Iron Swords), 5774-2024 (Foreign Broadcasters Law). The court ruled that the channel’s broadcasts substantially harmed state security, thus meeting the requirements of the law. However, the court shortened the period of validity of the orders from 45 to 35 days. (DC TA 14866-05-24 State of Israel v. Al Jazeera Satellite Network.)

The court’s decision shortening the period resulted in the orders’ expiration on June 9. But on the same day the government unanimously approved the extension of the orders for an additional 45 days. Also on June 9, the High Court of Justice ordered that a petition filed by the Association for Civil Rights in Israel challenging the constitutionality of the Foreign Broadcasters Law merits judicial review by an expanded panel because of the law’s “precedent-setting nature.”  (HCJ 2859/24 Association for Civil Rights in Israel v. Prime Minister, State of Israel: The Judicial Authority.)

Background

The Foreign Broadcasters Law authorizes the government under specified conditions to prevent broadcasting by foreign media companies if their broadcasted content harms national security in a substantial manner.

The Foreign Broadcasters Law requires that before going into effect, orders must be presented to a district court judge within 24 hours. The court must review orders within three days of their entry into effect to determine whether they should be changed or shortened. Orders remain in effect unless such a court decision is issued.

Decision

In his decision, Tel Aviv District Court Vice President Shai Yaniv observed that it was under the exceptional circumstances of the war following the Hamas attack on October 7, 2023, that the Knesset enacted a temporary order granting the government the power to significantly infringe on freedom of the press. He noted that the harsh measures against Al Jazeera are for a limited time and were based on a determination that the network’s broadcasts substantially harmed state security.

Freedom of the Press and Its Limits

Judge Yaniv stated that freedom of the press and freedom of expression in the media have been recognized by Israel’s Supreme Court as central values in a democratic country, but that the right to freedom of expression, like other constitutional rights, is not absolute. He cited Supreme Court decisions providing that

[d]emocracy recognizes the right of expression . . . of every person; it will do everything to respect this right, but democracy will not allow the use of rights . . . to bring about its self-destruction. Democracy must also be tolerant of the intolerant, but democracy should not allow its tolerance to destroy itself. A constitution is not a prescription for suicide, and citizen rights are not a platform for national annihilation. (Para. 15, citations omitted.)

Judge Yaniv said that because orders issued under the Foreign Broadcasters Law impact the right to freedom of expression and freedom of the press, they must rely on “powerful evidence: convincing, clear and unequivocal that the contents that are broadcasted substantially harm state security.” (Para. 21.)

Judge Yaniv found, based on his examination of data from “high quality sources,” including recently gathered information, that Hamas and Al Jazeera have an ongoing close relationship. In addition to the role played by Al Jazeera in inciting Hamas, the channel describes “in real time” the location of Israel Defense Forces operations, thereby endangering IDF soldiers. Al Jazeera also broadcasted instructions on how to hit an Israeli tank, pointing to its weakness points, and explaining how rockets could penetrate the tank’s “three layers of defense.” (Paras. 22-23.)

Given the unique complexity of wartime, Judge Yaniv concluded that a significant harm to state security takes precedence over freedom of expression, because “civil rights are not a platform for national annihilation.” (Para. 36.)

Duty to Conduct a Hearing

Israeli law recognizes the duty of government authorities to provide a hearing to a party that may be directly harmed by a government action before a final decision is made. Al Jazeera was not given a preliminary hearing before the orders against it were issued. The hearing subsequent to the orders being issued did not cure this defect. Considering the “strength of the public interest” in preventing “actual harm to state security,” and to the extent that orders comply with the requirements of proportionality under Israeli law, Judge Yaniv decided not to hold the orders void. Instead, he ordered to shorten the duration of their validity to 35 days, applying the doctrine of “relative nullity,” which allows a court to consider the nature of the defect and the totality of the circumstances in determining a remedy. (Para. 26.)

As noted above, the government has now extended the orders, so they presently remain in effect.

Ruth Levush, Law Library of Congress
June 14, 2024

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Chicago citation style:

Levush, Ruth. Israel: Tel Aviv District Court Upholds but Shortens Duration of Temporary Shutdown of Al Jazeera. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-06-13/israel-tel-aviv-district-court-upholds-but-shortens-duration-of-temporary-shutdown-of-al-jazeera/.

APA citation style:

Levush, R. (2024) Israel: Tel Aviv District Court Upholds but Shortens Duration of Temporary Shutdown of Al Jazeera. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-06-13/israel-tel-aviv-district-court-upholds-but-shortens-duration-of-temporary-shutdown-of-al-jazeera/.

MLA citation style:

Levush, Ruth. Israel: Tel Aviv District Court Upholds but Shortens Duration of Temporary Shutdown of Al Jazeera. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-06-13/israel-tel-aviv-district-court-upholds-but-shortens-duration-of-temporary-shutdown-of-al-jazeera/>.