The Ministry of Justice recently published a draft bill on the removal of criminal content from the web, which has already been attributed the nickname “Facebook Law”. The bill’s declared objective is to provide enhanced measures for dealing with unlawful speech that raises a significant risk to the safety of an individual or the public, or to national security, by removing or limiting the access to it.
During the most recent wave of terrorism, Israeli Ministries of Justice and Public Security argued the existence of a direct correlation between online incitement and the “Terror of Individuals”. They argued that terror organizations and others misuse the Internet arena, and the new legislation is meant to provide a solution to these problems. The draft’s explanatory notes indicate that it is meant to provide an efficient and swift, yet proportional and reasonable solution for dealing with the unlawful content itself, in order to reduce the potential foreseen risk arising from it.
According to the draft, the state can file a motion with the district court, in its designation as the Court of Administrative Affairs, seeking an injunction ordering website operators (including those operating websites stored in servers outside Israel) to remove unlawful content that raises a significant risk to the safety of an individual or the public, or to national security. This mechanism would be different from existing legislation, which is directed against the publisher of the content is aimed at penalizing the person who published the unlawful content. Another first-of-a-kind provision in the draft bill is the authority granted to courts to issues an injunction against search engines, ordering them to remove search result linking to unlawful content.
The consequences and risks arising from the draft lie with the infringement of protected interests in online content removal procedures, mostly with respect to freedom of speech and due process. These consequences and risks arise from the draft bill’s exceptional rules of procedure. For instance, the court can issue an ex parte injunction under certain conditions. In addition, the court will not be bound to the ordinary rules of evidence and will be admit otherwise inadmissible evidence.
Another issue arises from the mechanism permitting a prosecutor to use admit privileged evidence ex parte. If the court finds that the interest of protecting national security, foreign affairs, public safety or any other public interest which outweighs the interests in revealing the evidence, the court may conduct the hearing in the absence of respondents and without revealing the evidence. Furthermore, the content removal procedure does not compel the state to indict the person who published the content. The draft bill attempts to counteract the infringement of the freedom of speech and the due process through a rehearing procedure and a right of appeal to the Supreme Court. Source (In Hebrew): Globes (by Hen Ma’anit).