Court: Police Not Authorized to Order ISPs to Block Access to Gambling Websites

In a landmark decision, the Court for Administrative Affairs in Tel-Aviv, Israel held that the police had no authority to order Internet service providers to block access to gambling websites (Internet Society - Israel Chapter (ISOC-IL) v. Chief of Police for the District of Tel Aviv, AA 45606-10-10 (Apr. 2, 2012). Hebrew PDF).

The Court refused to imply such authority from the Criminal Law since Internet censorship would amount to an infringement of the public’s constitutional right to freedom of expression, and its derivative right of access to information. Accordingly, the blocking orders issued by the Chief of Police for the District of Tel-Aviv were declared to be null and void. Haim Ravia, Dan-Or Hof, and Yossi Markovitz of Pearl Cohen Zedek Latzer represented the ISOC-IL.
The Israeli Criminal Law 5737-1977 provides that the act of organizing or conducting gambling is illegal and a criminal offence. Section 229 of the Law permits the District Chief of Police to order the closure of any illegal gaming, lottery, or gambling venue. In August 2010, the police ordered major Israeli ISPs to block access to eight gambling websites operating outside the State of Israel. The ISPs abided with the orders and ISOC-IL brought the petition against the District Chief, in the interests of Israeli web-users and the general public.

Judge Michal Rubenstein held that the free flow of information on the Internet and its accessibility to people worldwide is crucial to exercising the constitutional right of access to information, but acknowledged that certain information on the Internet may have no or negative social value.

The Court further acknowledged that content appearing on gambling websites (including rules, explanations, lists, pictures, and other multimedia tools) is of negative social value, being a purely commercial expression intended to encourage criminally proscribed activity. Notwithstanding, such information was held to be information within the ambit of protection of the freedom of expression. And although restricting access to gambling websites may be justified, such restrictions must pass constitutional muster.

At the outset, any restriction on a civil right can only be imposed pursuant to a power granted by the legislature. The District Chief of Police claimed that his authority to issue the blocking orders lies in Section 229 of the Criminal Law. The Court disagreed. It interpreted a venue as real property, not as a website, and interpreted the Section to authorize the District Chief to close a venue, not block access to it. Given the narrow scope of authority under the Criminal Law, the Court held that the legislature could not have intended to grant the District Chief of Police such far-reaching censorship powers.

The Court deferred to the legislature on issues involving restriction on the freedom of expression on the Internet, but held that any censorship legislation must identify the circumstances in which blocking authority could be exercised, the type of websites covered, the agency empowered to issue a blocking order, and the administrative or judicial procedures of issuing such order. In fact, the legislature had considered, and rejected, a proposal to grant the District Chief of Police the authority to block access to websites, which was met with strong opposition.

In addition to free speech violations, the Court held that blocking access to gambling websites contravened the principle of global Internet use enshrined in international conventions. Furthermore, the Court noted that since blocking orders would be issued against a third party ISP using expensive technology, the cost of compliance may invariably be borne by the public.