The case against Netanyahu hinges on whether he attempted as a ‘businessman’ to prevent or minimize competition in the communications market.
By SHANI BROWNBenjamin Netanyahu(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
At the core of the allegations that form the basis for investigating Prime Minister Benjamin Netanyahu is the attempt to prevent, or at the very least minimize, competition in the communications market.Despite this, it seems Antitrust Authority Commissioner Michal Halperin – who has been accused in the past of heading the “Monopoly Protection Authority” – prefers to stay silent and not do the dirty work of investigating the person who appointed her: the prime minister.It has been a few weeks since speculation first surfaced over the relationship between Netanyahu and Arnon Mozes, publisher of Yedioth Ahronoth. The two men allegedly tried to cut a deal to promote their mutual interests.According to reports, during the course of their relationship, Netanyahu initiated conversations with Mozes in which he promised to promote legislation that would require Yedioth’s competitor, Yisrael Hayom, to charge for its freebie daily edition, and that he would cut the distribution of Yisrael Hayom’s weekend edition, in return for favorable coverage of the prime minister.The contacts between Netanyahu and Mozes are the reason for the criminal investigation against the prime minister, but it appears that the investigation has so far totally ignored the possibility that the allegations against the prime minister and the publisher could constitute an attempt to form an anticompetitive agreement – which is also a criminal offense.The antitrust law defines an anticompetitive agreement as “an agreement between people managing businesses, in which at least one of the parties takes steps that can prevent, or minimize, competition in a business.”It is true that Netanyahu is not a businessman, as defined by the law, but his central role in formulating the agreement necessitates applying the law to him, or at least requires the Antitrust Authority to examine whether the law applies to him in this case. Netanyahu is the guiding hand in the deal; he is its beneficiary, and it is he who has a significant personal interest.Netanyahu is, prima facie, a mediator in an anticompetitive agreement. Furthermore, he is not just a mediator between Yisrael Hayom and Yedioth, but is associated with Yisrael Hayom and has close ties with its owner, Sheldon Adelson.Yisrael Hayom is considered to be a newspaper that supports the prime minister, and it has been claimed that he has influence on what is published in the paper. Therefore, it would be reasonable to assume that when Mozes negotiated with Netanyahu, he understood Yisrael Hayom would be bound by any agreement they reached.The rationale of the law that in order to constitute a cartel the participating parties must be “businessmen” is that an anticompetitive agreement produces a certain profit for these businessmen. This rationale applies in this case, too.Netanyahu is one of the main beneficiaries of the agreement. He is not a neutral force, and has great personal interest in a deal being reached. Netanyahu was in fact a central part of the agreement, when he tried, together with Mozes, to consolidate a deal which is centered on positive and favorable coverage of the prime minister by Yedioth. If Netanyahu has something to gain from the deal, then it is clear that the law should apply to him as well.There is much criticism of this legal constellation. Certain lawyers are of the opinion that the law does not necessarily consider a case like this a cartel, and to a certain degree they are right. The law in this case is not clear.But before we hurry to exempt the Antitrust Commissioner from conducting an investigation, and before we acquit Netanyahu of violating the anti-trust law, we need to check the facts. This is exactly the objective of the investigation: to examine Netanyahu’s involvement, the benefits involved, and the nature of the agreement.In spite of the severe allegations that the prime minister and communications minister tried to actively intervene to weaken the media market for his personal gain, the Antitrust Authority is not involved in the investigation. The police did not ask for the Authority’s cooperation, and the Authority is staying quiet. The Authority, it seems, prefers not getting its hands dirty.As a result, the police are missing out on potential avenues. While the police specialize in classic offenses such as breach of trust and bribery, they are not as familiar with the world of antitrust laws. It is exactly for this purpose that the Knesset created the possibility that special investigators from the Antitrust Authority could conduct a criminal investigation.A criminal investigation conducted both by the police and the Antitrust Authority does complicate matters, but a joint investigation by two professional law enforcement bodies, each in their field, can highlight legal angles that the police will likely miss, thus creating a more complete legal picture.Precisely because of this, The Movement for Quality Government has asked that the Antitrust Authority conduct an investigation. The Authority, however, remains silent. This is most unfortunate.Since we are talking about an attempt to grossly intervene in and weaken the communications market by no other than the prime minister and communications minister, it is disappointing that the Antitrust Authority is choosing to disregard its duty.When law enforcement officials refuse to fulfill their duty, the grave damage to the communications market and to the public interest continues to intensify. That damage is amplified all the more by Netanyahu continuing to serve as communications minister, despite the serious accusations against him.Therefore, in view of the breach of public trust and multiple conflicts of interests which Netanyahu is involved in, and the allegations against him, The Movement for Quality Government has filed a petition to the High Court of Justice asking that he be removed from his position as communications minister.Furthermore, Netanyahu must stop acting as communications minister in view of the conflicting interests preventing him from executing his duties. Netanyahu was recognized by the attorney general as someone who has many and complex conflicts of interest.As such, he cannot be involved with any activity pertaining to the Bezeq Group on account of his ties with Shaul Elovich, who controls the Group. For this reason, he cannot be involved with any activity connected with Bezeq’s competitors, such as HOT, because any decision pertaining to HOT can influence the profit and status of Bezeq.In light of recent suspicions, it is clear that Netanyahu has lost the mandate to make decisions regarding Yisrael Hayom or Yedioth Ahronoth.These conflicts of interest have discounted a substantial part of Netanyahu’s activity as communications minister, and forced him to transfer authority on many issues to different bodies in the ministry and elsewhere.Thus, Netanyahu has become a communications minister missing an arm and a leg, and the ministry has become scattered and decentralized. Shani Brown is a lawyer at The Movement for Quality Government in Israel and specializes in Antitrust and Tenders law
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