The Israeli Facebook bill is Unenforceable
Following today’s Knesset debate on the Facebook Bill, which would allow the government to use administrative means to remove content from social networking sites, the Israel Democracy Institute has published an opinion stating that this bill would both set a precedent and be ineffective.
Dr. Tehilla Shwartz Altshuler, the author of the opinion, writes that as opposed to what the state has said in the past, the bill would not apply exclusively to extreme cases of incitement to terrorism, and that it opens the door to the danger of censorship by the state. It is, in fact, a return to the days of the mandate era Press Ordinance, which was nullified last year. To make matters worse, this would be adapted for the digital age with a much broader scope and would allow the state to avoid prosecuting the offender (whoever posted the offensive content) and instead just remove the content from the social media platform. The use of administrative law ex parte, and with no admissible evidence to determine whether a criminal act has been committed, is an unprecedented juridical act.
Shwartz Altshuler notes in her opinion that in addition to the fact that there is no such precedent other democratic countries, the bill would also cause a collision between the laws of the State of Israel and the laws of other countries in which it is legal to upload such content. The question also arises as to whether ensuring that only Israelis do not see the offending content will prevent incitement to violence and terrorism, which in many cases does not come from Israel at all, and whether the act of removing the content will still have meaning by the time the attorney general and the court give their consent, since content is shared over the social networks in a relatively short time.
Shwartz Altshuler suggests developing different tools to address online incitement, such as post-facto deterrence-based enforcement and early childhood education with an emphasis on the right and wise consumption of social media content. If the state wishes to promote this bill, it should, at the very least, link the criteria for removing content to those that appear in the Terrorism Law and require that a criminal process, to be held in district court rather than in a court for administrative matters, be enacted.