Case Summary and Outcome
The Supreme Court of Israel held that the Israel Film Council unlawfully infringed upon a producer’s freedom of expression by prohibiting the commercial screening of his documentary. This Israel Film Council prohibited the screening of Muhammad Bakri’s “Jenin Jenin,” concerning the infamous military operation of Israel in Jenin Refugee Camp in 2002. The council alleged that the documentary presented a distorted version of events, capable of inciting others to act against the Israeli government. The Court reasoned that the absolute prohibition on the commercial screening of the film did not meet the requirements set out by the “limitation clause” under Section 8 of the Basic Law: Human Rights and Dignity. Namely, the Council exceeded its authority by assessing whether the content of the documentary was true or false and that the prohibition did not meet the proportionality requirements of suitability, minimal violation, and relativity.
Israel’s “Operation Defensive Wall” of 2002 began in response to an attack in Netanya city that killed dozens of Israeli citizens with more than a hundred people injured. The military forces raided the Jenin Refugee Camp in West Bank in order to uproot a network of Palestinian fighters behind the terror attack.
As the operation came to an end, Mohammad Bakri, a Palestinian citizen of Israel, entered the refugee camp to produce a documentary. His objective was to present the Palestinians’ side of story as to what actually occurred during the military operation. He specifically declared that he did not attempt to present the Israeli position or present a balanced portrayal of the events.
The film, titled “Jenin Jenin,” was initially screened in Tel Aviv, Jerusalem, and a number of foreign countries. But for its commercial sale, Bakri submitted an application to the Israel Film Council (Council), as required by the Film Ordinance of 1927.
In late 2002, a majority of Council members decided that the film should not be approved for screening. Among other reasons, the council members found the film to present a distorted version of the events that took place in Jenin Refugee Camp. They described it as a “propaganda film,” capable of severely offending “the feelings of the public which may mistakenly think that IDF [Israeli Defense Forces] soldiers regularly and systematically commit war crimes, and this is completely at odds with the truth and the facts uncovered by investigations of the IDF and international bodies.” ((HCJ 316/03 Bakri v. Israel, para. 4 (Nov. 2013).))
The dissenting members, on the other hand, agreed to issue a permission on the condition that the film either be accompanied by slides presented by Israel’s military spokesman, or that it be permitted exclusively for viewers at of at least 18 year of age.
Subsequently, the Forum of Documentary Producers joined Bakri (Petitioners) in filing a petition before the Supreme Court of Israel, alleging that the denial decision violated their constitutional right to freedom of expression.
Section 4(1) of the Film Ordinance of 1927 provides: “No projection film may be presented unless it has been approved for presentation and marked by the Council.” The government argued before the Supreme Court that its denial decision was lawful because the documentary posed danger to public order and the security of Israel. It also claimed that the film was deceitful and could weaken Israel’s international standing and even delegitimize its existence.
The petitioners, on the other hand, argued that the Council “cannot base its decisions upon political considerations or upon its belief that the film [was] based on untruths.” ((HCJ 316/03 Bakri v. Israel, para. 4 (Nov. 2013).)) They further claimed that the monitoring body’s decision violated their constitutional right to freedom of expression and that the Ordinance upon which the denial was issued should be annulled.
Without much analysis, the Supreme Court concluded that the Council’s decision to deny permission to screen the film infringed “the freedom of expression of its producer, and of others whose opinions the film gives voice to.” ((Id. at para. 9.)) But the question remained as to whether the decision was constitutional. Before undertaking this analysis, the Court recalled its stance on the right to freedom of expression: “The meaning of freedom of expression is, first and foremost, that the government may not restrict the voicing and hearing of opinions in public, and it must prevent others from infringing the right.” ((Id.)) And [t]he mere fact that an expression is false does not constitute a cause for the removal of protection” ((Id.)) because the suppression of false information “would allow the authorities the power to distinguish between the true and the false, to decide what is appropriate to be voiced and what is not, and the power to substitute its own decisions for the decisions of the free market of ideas.” ((Id.))
To assess the constitutionality of the decision, the Court applied the legal scrutiny standard in accordance with the limitations clause of Section 8 of the Basic Law: Human Rights and Dignity. According to the Court:
“The limitations clause permits the violation of a right only where the authority to violate that right is granted by statute, if the violation is consistent with the values of the State of Israel, and if the violation has an appropriate purpose and is not disproportionate. Proportionality is measured by three tests. The “suitability test” ensures that the measure, which violates the right is suited to the purpose of the violation. The “minimal violation” test confirms that the measures taken are those, which violate the right least. The “relativity test” ensures that the benefits of the violation bear a reasonable relation to its costs.” ((Id. at para. 10.))
Accordingly, the first issue was whether the Council’s decision was pursuant to a lawful authority. The denial decision met this first test as the prohibition was based on Section 4(1) of the Ordinance. But the Court declined to render a ruling on the constitutionality of the section or whether the values of Israeli society are violated because the Council’s decision did not meet all other requirements set out by the limitations clause.
The second issue was whether the Council’s denial decision was for an appropriate purpose. As evidenced by Council itself, the purpose was to expose the truth and to protect the public from the film’s alleged false expression. The Court, however, was of the opinion that “like every other government body, [the Council] has no monopoly over the truth.” ((Id. at para. 12)) Instead, “[the] revelation of the truth in a free and open society, [in general], is a prerogative given to the public, which is exposed to a spectrum of opinions and expression, even false expression.” ((Id.)) The Court also held that the Council because of its composition and framework is not a suitable organ to decide on factual matters. As such, it held that the Council exceeded its authority in this case by acting upon “inappropriate considerations.”
Lastly, the Supreme Court assessed whether the decision met the proportionality requirements of the limitations clause, namely “suitability,” “minimal violation,” and “relativity” tests.
The suitability test simply asks if the restrictive measure at issue was suited for achieving the underlying purpose. In the Court’s opinion, the complete prohibition on the commercial screening of the film “did not promote the goal that it was intended to achieve, and may even have achieved the opposite.” The denial, instead, would attract public attention and discourse about the content of the film and even its veracity.
The Council’s decision also failed the minimal violation standard. According to the Court, the absolute prohibition on commercial screening of the film was “the most drastic action which the Council is authorized to take.” ((Id. at para. 15.)) As to the relativity requirement, the Court found the damage caused by the Council’s decision was greater that its benefits:
“[T]here is no doubt that the film injures the feelings of many members of the public, including the feelings of the soldiers who participated in the battle and their families, especially the parents, spouses and siblings of the fallen, including respondents. However, it should not be said that this injury, with all of its pain and anguish, is not within the bounds of that which is tolerated in our democratic society. An open, democratic society, which upholds the freedom of expression, certain in the feeling that this advances society and does not threaten it, is willing to bear offense, even substantial offense to the feelings of the public, in the name of the freedom of expression.” ((Id. at para. 16.))