Free speech or sexual services: Will Ashley Madison get to build its brand on TV, radio?

Issue set to go to High Court on August 3.

By
June 2, 2015 18:17
4 minute read.
Ashley Madison

Ashley Madison online advertisement. (photo credit: screenshot)

Should a website that facilitates affairs for married people be allowed to advertise on television and radio or does this constitute the soliciting of sexual services? The High Court of Justice is scheduled to deal with the issue on August 3, when it hears a petition filed by AshleyMadison.

com, a website that provides the above service.

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The company filed the petition May 21 after the Second Authority for Television and Radio blocked its television and radio commercials, saying they would violate a rule prohibiting advertising for “sex services.”

The hearing is expected to raise issues about the balance between free speech and what moral lines the state can enforce in broadcasting.

Ashley Madison CEO Noel Biderman says that his success in registering some 35 million active members worldwide and 320,000 in Israel since it launched in the country in May 2014 will speak for itself and win over the justices, even if they are initially skeptical.

The petition lays out the claim that in past court cases, commercials containing sexual innuendos and expressions have been approved for broadcast, whereas Ashley- Madison’s commercial does not contain sexual innuendos and was banned.

It also attacks the Second Authority for “moving the goalposts,” saying that it first approved AshleyMadison’s broadcast as long as there were changes in the wording, and only later placed a blanket prohibition on its advertising.



The petition claims that the regulator can at most require these word changes and limit the hours when the commercials can run to late at night.

Biderman expressed confidence regarding what he calls the company’s “40 for 40” record of successfully overcoming regulatory restrictions in any country it has seriously targeted since it opened for business in 2001.

The actual figure should be “40 for 41,” since Ashley- Madison’s site was blocked in Singapore.

Biderman says his broadcasts were blocked temporarily or involved in intense negotiations at some point in Canada, England, France, the US, Australia and Brazil, but that in every case the company overcame the obstacles put in its way.

He says “regulators like to test your mettle to see how serious you are, but when we return fire and note they have 13 complaints and we signed up” tens of thousands of people, they have to admit this is “something their society desires.”

He says he has been successful in legal fights by bursting what he calls social “myths” about “opposition to infidelity” by presenting objective data about how people act.

However, the regulator views the issue differently and says that the first broadcast on June 25, 2014, at 2:22 a.m. incurred an “outcry of dozens of complaints.”

It quoted viewers as saying “it cannot be that support is being given to this website, which encourages adultery” by allowing televised commercials.

In a March 29, 2015 letter, Second Authority CEO Nir Schwecki wrote AshleyMadison that its advertisement and services were “a platform to assist in developing sexual relations between married people that were not with their spouse” and that encouraging “adultery” can “destroy families.”

Hebrew University Prof.

Barak Medina claims that “more limits can be put on commercial speech than political speech.” He says it is 50/50 whether the High Court will intervene and gives the example of smoking, where the state cannot prohibit the practice or electronic advertising, but courts have upheld the ban on television and radio advertising.

He says the same is true in the US regarding broadcasts relating to gambling.

The court will have to decide whether the state has an interest in keeping marriages together sufficient to block the website’s advertising.

This is a far cry from disqualifying the advertising as promoting sexual services, Medina said, but acknowledged that the court may allow the ban to stand on grounds related to marriage.

At the same time, Medina says that AshleyMadison has a real chance, as he does not think the state’s Jewish character will play a role in the court’s decision.

Biderman is also relying on his message that the number of active members in Israel constitutes a democratic vote by Israelis who want his product, and thus the court should permit AshleyMadison to establish its brand.

In making this point he states that statistics show his penetration of the Israeli market was more rapid than in any other country besides Japan.

Israel’s religious establishment is not expected to remain silent on the issue.

Prominent national-religious leader Rabbi Yuval Cherlow responded to the petition, stating that “only in the most extreme circumstances” should speech be prohibited, but that this case is an extreme circumstance.

Cherlow said allowing the advertisements would “infect the public sphere” with encouragement to commit adultery, “which is one of the gravest sins in relations between human beings.”

Jeremy Sharon contributed to this story.


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