On April 4, 2024, we petitioned the High Court of Justice (Hebrew) to cancel the temporary order allowing sanctions to be imposed on foreign broadcasting channels from Israel. The law authorizes the Minister of Communication, with the consent of the Prime Minister and the Ministerial Committee on National Security, to stop the channel's broadcasts by Israeli content providers, restrict access to its website, shut down the channel's transmitters in Israel, and seize devices used to provide the channel's content, including mobile phones. The law prevents the court from overturning the decision, even if it believes it should be overturned.
Principled Arguments Against the Law
ACRI argued that the law violates freedom of expression, the right to information and freedom of the press, and blocks citizens and residents from receiving a variety of information that does not fit the Israeli narrative or is not broadcast on Israeli media channels. It was also argued that the law tramples on the principles of the rule of law and the independence of the judiciary, since it includes an "override clause" that prevents the court from overturning an illegal decision.
In the petition, ACRI also insisted that the real purpose of the temporary order is to label and punish foreign media due to the content of their broadcasts. It was also emphasized that throughout the Knesset debates on the temporary order it was clear that the political echelon seeks to block are those broadcasting in Arabic, which is consumed mainly by the Arab public in Israel – and its legislation tarnishes an entire population, implying that its viewing habits are liable to endanger state security.
The individual proceedings against Al-Jazeera TV
In the petition, ACRI referred to Al-Jazeera TV, which the law was named after, after political officials, including the Prime Minister, declared that they would use the law against Al Jazeera itself. ACRI stressed that the conduct of the state and its institutions shows that the main reason the law has now been passed is to exert pressure on the Qatari government, which owns Al-Jazeera TV; moreover, for political rather than security reasons. ACRI additionally noted that during the entire six months of the war thus far, the state could have imposed sanctions on the channel under existing law, if there was indeed concern that it harmed state security, but it chose not to do so.
On May 2, 2024, we filed a request for an interim injunction, following reports that the government intends to discuss imposing sanctions on Al-Jazeera that evening, after approval by the Attorney General, without prior right of plea and without effective judicial review of these orders. We asked the court to issue an interim injunction instructing the government to refrain from issuing orders to a foreign broadcaster under the law until the petition is decided, and at least until another decision is made. The court denied the request.
On May 5, 2024, the government decided to impose sanctions on Al-Jazeera TV in Israel. That same day, we filed another request for an interim injunction. We wrote that the government's decision was made and the orders to close the channel were issued even before the state submitted its response to the petition, and before a discussion of the constitutionality of the law was held. We asked the court to issue an interim injunction that would delay the implementation of the orders and the imposition of sanctions on the channel until the petition is decided, and at least until another decision is made. The court denied the request.
On May 6, 2024, we filed a request to join a separate proceeding in the Tel Aviv District Court, which deals with the sanctions imposed on Al-Jazeera TV. The aforementioned temporary order states that if the Minister of Communications orders sanctions against a foreign media channel, he will have to bring the instructions for judicial review before the president of the district court or his deputy within 24 hours. They in turn are required to decide the matter within three days, and according to the language of the temporary order, they have no authority to cancel the sanctions. Accordingly, the state appealed to the District Court after the sanctions were imposed on Al-Jazeera, and we filed a request to join the proceedings. They argued that since the temporary order is unconstitutional, any provision issued pursuant to it is illegal. We also raised arguments regarding the propriety of the administrative procedure taken, in light of the NSC's opinion that raises a question regarding the existence of a real security risk, which exceeds the threshold set by law.
On June 4, 2024, the District Court approved the orders issued against Al-Jazeera TV. Although the temporary order permits the issuance of orders for a period of 45 days, the District Court shortened the period to 35 days, therefore the orders are expected to expire on June 8, 2024.
On June 6, 2024, the channel received an official announcement from the Ministry of Communications of its intention to extend the validity of the orders. In light of this, we sent legal correspondence to the Attorney General and discussed a number of fundamental aspects regarding the imposition of continuation orders pursuant to the temporary order. Among other things, we noted that the extension of the sanctions requires showing that the harm to security continues, and cannot be based on speculative concern that the harm will continue; and that extending the orders requires repeating the full procedural process, including obtaining up-to-date opinions from security officials, a discussion in the ministerial committee or the government, and granting the right to a hearing.
On June 9, 2024, the government approved the extension of the orders by another 45 days, and the Minister of Communications issued the orders accordingly. A hearing on the orders, in the District Court, is set for June 11, 2024. The day before, we submitted a detailed response explaining why the request to approve the orders should be denied, in which we made claims similar to those made in our original legal correspondence to the attorney general.
On June 13, 2024, the District Court approved extending the validity of the orders.
On June 20, 2024, we filed an appeal against the decision with the Supreme Court. The appeal argued that the district court erred when it ruled that a meager, evidentiary threshold for imposing sanctions was sufficient when it agreed to accept secret evidence. We also claimed that the hearing held for the channel, before the orders were extended, was for appearance only. We noted that the decision to extend the orders was based on only 5 items and general arguments. It was determined that the items were broadcast without the intention of harming state security and that they had news value, while ignoring thousands of hours of broadcast and hundreds of items that broadcast announcements, interviews and press conferences with Israeli government and security officials. We argued that there are tools for dealing with specific harm to state security, and that the evidentiary basis presented proves that the purpose of the sanctions is not to protect state security, but to cynically use the security purpose to silence opinions.
HCJ 2859/24 Association for Civil Rights in Israel v. Prime Minister
Attorney: Hagar Shechter, Gil Gan-Mor