Case Summary and Outcome

In April 2021, the Supreme Court of Israel denied a petition regarding the allegedly unlawful voluntary enforcement procedure of the Cyber Department in the State Attorney’s Office. The petitioners contended that the procedure through which the Department notified online platform operators of suspected harmful content violated constitutional rights to freedom of expression and due process under Basic Law. The Court held that the Department’s voluntary enforcement procedure constituted a governmental act since the state influenced its interactions with operators and end users. The Court concluded that, in the absence of specific authority for its activity in primary legislation, the Department’s voluntary method could rely upon the residual power granted to the government under Section 32 of Basic Law, if its activities did not breach fundamental rights.

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Facts

The petitioners were the Adalah Legal Center for Arab Minority Rights in Israel and the Association for Civil Rights in Israel. The State Attorney’s Office (Cyber Department) and the Attorney General were the respondents.

In September 2015, Israel’s Ministry of Justice created a cyber-enforcement unit. According to the State Attorney’s Office, the purpose of the Cyber Department was to confront crime and terror in response to a sharply rising trend in cybercrime. The unit consisted of two separate enforcement tracks – the statutory enforcement track and the voluntary enforcement track.

The former track focused on preventing online offenses through judicial orders. Consistent with the classic view of criminal enforcement, the Cyber Department’s prosecutor would apply to a district court’s judge and request an order instructing the Internet access provider to remove or restrict access to content under the authority established in the Prevention of Crimes Law.

The latter track, enacted by the State Attorney’s Office on July 26, 2017, stemmed from the “absence of general, explicit legal provisions granting authority to a judicial instance to order the removal of a publication that amount[ed] to a prima facie criminal offense” [para. 7]. The track concentrated its efforts on network platform operators, including various civil bodies, such as online social networks, search engines, and hosting service providers. Under the Work Procedure, the Cyber Department operated on a “notice and take down mechanism” [para. 9], which was carried out in a manner agreed upon between the Department and the relevant Internet platform operators.

The voluntary enforcement track would begin with the Department taking notice of publications that, prima facie, violated Israeli law. Then, the Department would refer the matter to Internet platform operators via a structured mechanism for reporting harmful publications. In turn, Internet platform operators would need to address the report and decide, at their independent discretion, how to act and what to do under their “user rules.”

The Cyber Department referred an issue to Internet platform operators under three cumulative conditions: 1) the content constituted a prima facie offense under Israeli law; 2) the content violated the platform’s terms of use, and there were additional considerations for reporting or referring it to Internet platforms; 3) “the balancing conducted by the Cyber Department between the values of freedom of expression and access to information on the net as opposed to the values of the constitutional right to privacy, dignity and the reputation of the subject of the publication, as well as the public interest, justified issuing the report so that the online platform operators [would] consider whether to remove the publication rather than leave it on the net” [para. 11].

In their petition to the Court, the Adalah Legal Center for Arab Minority Rights in Israel and the Association for Civil Rights in Israel requested the issuance of an order nisi against the State Attorney’s Office and the Attorney General. The petitioners called for the order to oblige the respondents to demonstrate why the Cyber Department “should not immediately desist from requesting that operators “voluntarily” remove content from the network” [para. 2].

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Decision Overview

The main issue before the Court was whether the Cyber Department of the State Attorney’s Office had the authority to conduct voluntary enforcement actions to remove harmful content from the Internet. Hanan Melcer was the presiding Justice in the case.

In their claim, the petitioners submitted that the voluntary enforcement track granted the State Attorney’s Office extensive powers to delineate the boundaries of freedom of expression. The petitioners maintained the State Attorney’s Office determined what content was illegal and had to be removed without a judicial review or the right to be heard. The petitioners argued the voluntary enforcement mechanism indicated a violation of the separation of powers: the “last word” regarding a publication’s lawfulness was in the hands of an administrative agency or an Internet platform operator rather than a court of law.

The respondents stressed that, due to the Cyber Department’s nature, it was essential to maintain the voluntary enforcement mechanism as a means for which there was no alternative – to report acts of impersonation, fraud, and other criminal offenses perpetrated on the Internet. They noted the location of such criminal acts was generally beyond the state’s borders. They emphasized that, with the limited international judicial authority and in the absence of the voluntary enforcement track, “bad actors” would continue to succeed, and their acts would not be subject to enforcement.

After examining the parties’ claims, Justice Melcer began the analysis of the case by explaining two grave defects that justified the dismissal of the petition in limine, in advance of the trial.

First, Justice Melcer stated that the petitioners’ claim had insufficient factual grounds for the argument that the Department acted without authority. He stressed that the petitioners failed to testify to the scope of the harm the Department brought to freedom of speech and access to information. Justice Melcer noted that, while he did not consider the Department’s voluntary enforcement actions as spared from potentially generating violations of fundamental rights, the absence of specific examples of how the petitioners had been affected made it challenging to identify which aspects of the Department’s many activities would require express statutory authority.

In the same vein, Justice Melcer reasoned that “in the absence of contradictory evidence, it may well be the case that a large part of the Cyber Department’s activity concern[ed] publications that [were] not produced by any human subject but rather a computerized object (robot) or a widespread system of hostile users who sought to promote various unlawful messages” [para. 33]. Justice Melcer further raised another uncertainty in the petitioners’ claim – “the scope of the applicability of Basic Law: Human Dignity and Liberty to expression concerning Israel by users who are not citizens or residents of Israel” [para. 34].

Second, Justice Melcer stated the petition had to be dismissed in limine also due to the absence of relevant respondents. He noted that, had the online platform operators been included as respondents, their arguments could have shed light on some of the petitioners’ central arguments. Nevertheless, Justice Melcer stressed that, owning to the material arguments on the Cyber Department’s activities, the importance of the matters raised, and their possible consequences, it was imperative “to address the petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in midair” [para. 38].

Starting with the issue of authority, Justice Melcer noted the petitioners argued the Cyber Department acted without express statutory authorization, considering the rule-of-law principle and the principle of administrative legality. He emphasized that, according to the respondents, the activity of the Cyber Department – regarding the submissions of reports of prima facie offenses that breached the terms of use established by online platforms – did not involve the exercise of governmental authority. Thus, in the respondents’ view, there was no need for specific legislative authority and publication of the agency’s rules.

Justice Melcer reasoned the instant case “represent[ed] a new model in which law enforcement and regulation of the relationship among the various market players – the state, the social network participants (the authors of the various publications and the web surfers), and the online platform operators themselves – [were] carried out with the state acting as a reporter that refer[red] the apparent breach for the examination and decision of the online platform operators.” [para. 49].

Justice Melcer suggested such a framework be called “inverse regulation” as the final decision rested in the hands of the online platform operators. In his view, the Cyber Department’s framework had the potential to influence and direct players’ actions in the marketplace since a referral by a private individual to an online platform operator could not be compared to a referral by a governmental agency. “[T]he very possibility that the ‘sword of coercive regulation,’ which the government, or someone on its behalf can draw against the online platforms if their operators frequently fail to accede to the referrals is sufficient to show that we are concerned with a governmental act that requires some legislative authorization,” [para. 51] Justice Melcer stated.

Justice Melcer also stressed that the voluntary enforcement track constituted an administrative act of operative effect. “Therefore, in accordance with the fundamental principles of administrative law, in order to establish that the activities of the Cyber Department are lawful, authority, even if only general, must be found in the law,” [para. 56] he noted.

Regarding the possible infringement upon the right to freedom of expression, Justice Melcer maintained that since bots and avatars produced some harmful publications yet “[did] not enjoy human rights” [para. 65], analyzing a breach of their rights was irrelevant. He likewise stressed that Internet platform operators – not the government – held power to decide whether to remove content.

Additionally, Justice Melcer emphasized that the decentralized nature of the production and distribution of content on the Internet made it very difficult to carry out enforcement by the traditional means of bringing the offenders to trial. He also highlighted another challenge for enforcement – the global nature of the network, where an expression could be deemed a criminal offense in one legal system but not constitute prohibited speech in another. Therefore, he concluded that the voluntary enforcement mechanism had been created to address those problems.

In Justice Melcer’s opinion, with the lack of proof that the Cyber Department violated fundamental rights and the absence of evidence that online platforms were not independent in their discretion, “a voluntary referral from the Department to the online platform operators [was] not prohibited” [para. 69], and it was “difficult to view the authority’s actions as a form of intentional infringement of fundamental rights in a manner that would negate the authority of the Cyber Department to act to frustrate publications that amount to a prima facie criminal offense,” [para. 69]. Justice Melcer also noted that the enforcement carried out by the Cyber Department was different from the criminal process since it sought to prevent the publication of material that required speedy action for its removal to minimize harm.

Justice Melcer concluded that the Cyber Department was vital for the protection of national security and social order. He held that, in the absence of specific authority for its activity in primary legislation, the Department’s voluntary method could rely upon the residual power granted to the government under Section 32 of Basic Law if its activities did not violate fundamental rights. He emphasized that, until the enactment of detailed legislation on the matter, the voluntary enforcement track could operate under residual power or auxiliary authority.

Justice Melcer stated the Cyber Department should address the following issues: missing documentation of the content that it seeks to remove, inadequate details in its transparency reports, and the absence of the Work Procedure publishing. Justice Melcer reasoned the Cyber Department should consider, among other things, clarifying the role of online platform operators and its agreements with them, making its referrals to the online platform operators under the case law of the court, which supersedes residual authority, promoting a legislative initiative to provide a detailed arrangement of the voluntary enforcement mechanism, and establishing a post facto oversight and supervision mechanism for the Department’s activities.

Justice Melcer ordered to dismiss the petition in all its parts, subject to the recommendations and observations made to the Cyber Department.

Justice Alex Stein concurred with the decision; he did not elaborate on the reasoning behind his opinion.

President Esther Hayut concurred with Justice Melcer’s finding that the Cyber Department’s activity was a governmental act that required a conferral of authority and agreed with Melcer’s recommendations to the Department, including the call to publish the Cyber Department’s Work Procedure. Yet, President Hayut noted that the two material defects addressed by Justice Melcer frustrated any possibility of deciding the petition on the merits. She deemed that, in the partial picture of the necessary facts and the absence of online platform operators as parties, it was impossible to examine the questions of whether the Cyber Department’s activity violated freedom of expression, the right to be heard, or the right to due process. She thus considered that there was no alternative but to dismiss the petition in limine.

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