Citing free press, High Court rejects anti-Israel Hayom petition

The High Court of Justice essentially threw out a petition to ban the publication of Israel Hayom, saying its free distribution and its coverage are not a violation of Israel's election laws.

Attorney Shachar Ben-Meir had petitioned the High Court and asked for an injunction to prevent the paper's publication, saying it was essentially part of the Likud's campaign apparatus because its coverage was biased in favor of Prime Minister Benjamin Netanyahu. A three-judge panel urged Ben-Meir to reconsider his suit, hinting that they were likely to reject his request. He eventually agreed to withdraw the petition, in what is known as dismissal without prejudice. This procedure enables a plaintiff to resubmit the petition at a later date if they so choose.

In late February, Ben-Meir asked the Central Elections Committee -- which regulates election procedures and campaign advertising -- to prohibit Israel Hayom's publication, citing alleged violations of election rules. Committee Chairman Justice Salim Joubran rejected his request, saying he had failed to provide credible evidence that could establish an organizational or financial link between the paper, the prime minister and the Likud party.

"Decisions regarding which and how news items should be covered should be left to the chief editor of a newspaper. ... Unauthorized, 'backdoor' regulation over the content of newspapers should not be tolerated," Joubran wrote. He slapped Ben-Meir with a 20,000 shekel ($5,000) fine to pay for Israel Hayom's legal fees.

Ben-Meir then petitioned the High Court, but on Wednesday the judges made it clear that they would not overrule Joubran. As soon as the court was called into session, Chief Justice Miriam Naor tried to throw some hints as to where the justices stood.

"The mere fact that the court had refused to issue any injunction in the run-up to the hearing speaks for itself," Naor said.

But Ben-Meir insisted on making his case. "My colleague here says the prime minister does not have an office at the paper and does not write for the paper. But I never alleged this. I never said he was directly in charge of the paper. Our petition shows that the prime minister has ties to the very people that run the paper. He has publicly acknowledged that he has friendly relations with the owner of the paper," Ben-Meir said.

Justice Isaac Amit interjected, saying, "Sir, you have asked the court to remedy a situation where there is unsanctioned election campaigning. Let's assume your request is granted. We would then have to ask ourselves what exactly in that paper constituted unsanctioned propaganda. There is nothing specific that you have asked as to examine. Since when does the court grant an injunction that reiterates a general prohibition already in the law books-"

Ben-Meir responded by saying that the injunction he was seeking was indeed too general, but he would not relent.

"I am convinced that this paper, at least in its coverage of a specific candidate, serves as a propaganda tool," he said. Amit shot back: "Are you in favor of the court screening every news story? You are trying to look into the future. You want us to remedy an amorphous situation that is already addressed in the law books. My point is that the law already addresses situations where there is unsanctioned propaganda."

Ben-Meir answered that he did not expect the justices or the elections committee to go over every newspaper edition. But Amit challenged him again: "I didn't read the paper today, but are you of the opinion that if it declared Netanyahu's speech on Tuesday [before the U.S. Congress] a success, that would constitute unsanctioned propaganda-"

"This is a tough question to answer," Ben-Meir conceded. He noted that the headline for stories on V15 (an organization trying to unseat Netanyahu) were portrayed as facts rather than opinions.

Justice Hanan Melcer criticized Ben-Meir for his answer, saying, "This is what freedom of the press is all about. A paper can print whatever it wants. Anyone who thinks they were unfairly maligned may file a libel suit. The law says radio and television stations cannot broadcast campaign propaganda during the 60 days before an election [except for pre-approved advertisements aired in specific time slots]. It does not prohibit propaganda in the print media."

"A paper can indeed write anything it so chooses," Ben-Meir said. Melcer replied, "Let's say the paper has evidence relating to a trial, it can write about things even if they were not presented at court. It can also write stories that reject the verdict in that trial."

Naor also rejected Ben-Meir's arguments, saying that "if we accept your thesis, the Central Elections Committee chairman would have to monitor the press on a daily basis to verify that the news it reports is accurate. This could take us into uncharted waters."

Amit added, "Sir, you want balance. But there is no such thing as balance. This paper has an agenda. State-owned media should be balanced and give voice to other views, but we are talking about a different media outlet here." Naor agreed, saying, "Many papers have an agenda." Melcer then attacked Ben-Meir for seeking to turn back the clock on the freedom of the press.

"It took hundreds of years to get rid of media censorship and now you want to have it restored-" he asked.

Ben-Meir said he was not in favor of "telling newspapers what to write and what not to write, but the papers are duty-bound to scrutinize the government. A paper that keeps glorifying the government cannot investigate it properly."

Naor responded that "it is not our job to grade the performance of this or that paper. Our job is to determine whether the journalism is a campaign ad in disguise. This is where we step in." Melcer added that "having an advertisement in disguise as a story is highly unusual; the petitioner must be cognizant of this. Even if a paper seeks to glorify the government, it can still be legitimate. Papers, the vast majority of them, used to affiliate with specific political causes. Some lambasted the government, some glorified it."

Naor agreed, saying, "The country is full of newspapers that promote specific entities." When Ben-Meir attempted to shift the discussion to what he called "the control tycoons have over candidates," Naor became angry, and said: "I don't see how this is relevant to this case."

Ben-Meir replied that the "phenomenon hurts equality, although it may not be directly related to the propaganda rules." But Naor said, "If this is not directly related to the law, what are we doing here? We convened to talk about propaganda laws and campaign ads and you are diverting the discussion to a different place altogether." Ben-Meir insisted that the funding of Israel Hayom suggested it was a form of propaganda. Naor disagreed, saying, "Hypothetically, let's assume someone decides to waste money, knowing full well he will not make a profit, because he has a vested interest in promoting his agenda. Is that unlawful-" She also made it clear the Ben-Meir had failed to sway the judges in his favor.

"We occasionally ask lawyers to take their client aside for further consultations, but in this case, with the plaintiff representing himself, it may be time for him to thinks things over," she said. Ben-Meir asked for a five-minute recess, after which he announced his decision to withdraw the petition.

Avigdor Klagsbald, who represented Israel Hayom at the hearing along with partner Amir Shraga, said Ben-Meir had a vested interest in seeing Israel Hayom shut down, and "the petition had no legal merit, is not backed by precedent, and lacks any evidentiary basis and other essential requisites."

The court did not ask Ben-Meir to pay Israel Hayom's legal fees.

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