Google and YouTube do not have to block access in Israel to the anti-Muslim
video the Innocence of Muslims, the Jerusalem District Court ruled on
MK Taleb a-Sanaa (United Arab List-Ta’al) and others had filed a
petition to block the film that offensively portrays the prophet
The petitioners on September 20 sought an initial ruling
temporarily blocking access to the video, but the court then only postponed the
issue until Monday’s hearing.
Judge Miriam Mizrahi rejected the petition
on Monday on several grounds. Procedurally, Mizrahi noted that Google and
YouTube are separate entities, and the fact that the petitioners did not name
YouTube in the petition was legally fatal to the petition.
petitioners argued that the difference between the them is essentially a legal
fiction because Google owns YouTube and has forced YouTube to remove the video
in a number of countries, but the court disagreed.
Just because Google
and YouTube might have blocked access in certain countries, does not mean that
they have to in Israel and that the legal relationships or applicable laws are
the same in each country, Mizrahi said.
In any event, the law does not
permit ignoring the difference between the two legal entities, the court said,
noting that the petitioners were put on notice about this issue in September and
did nothing to add YouTube to the lawsuit during the time that
The court also said that it was not inclined to order YouTube to
block access since Israelis could just find the video on other
Mizrahi said that courts do not issue orders that will have no
Notably, the court struck down the petition on technical
grounds, rather than on the merits of the legal arguments.
This means the
petitioners could refile their case, naming YouTube as a defendant, in the
However, the court’s reference to what it might have done even if
YouTube had been named as a defendant may give the petitioners pause.
court, however, did not discuss any arguments about the balance and fight
between the competing values of free speech of the individual and the injured
feelings of a community, which does have some defense under Israeli law. It also
did not discuss Google’s objections to the mixing of civil and criminal law and
the impossibility of suing someone for defamation on behalf of someone who died
centuries ago. The court did not address the petitioners’ claims of the film’s
incitement to racism, either.
The court did endorse Google’s argument in
September that viewers had to take action to see the offensive video, unlike a
billboard or other publication in the public sphere.
“Someone who doesn’t
look for the video won’t find it, so the public that could be offended by the
video can avoid watching the clip for now,” Mizrahi said at the September
Also at the September hearing, Sanaa frequently compared the
Innocence of Muslims trailer to a movie making fun of the Holocaust, claiming
that the courts would be quick to force YouTube and Google to take down any
movie deemed offensive to Jews.
After the court’s September ruling, Sanaa
said, “They are forcing people to go out and have violent
Freedom of expression is not expression without limits,
and it is not that whoever doesn’t want to hear it won’t pay attention. The fact
is that people were actively hurt by this. It can’t be that because [the courts]
are not Muslim [they] won’t worry about the feelings of Muslims.”