Background: Use of gag orders hits low in latest scandals

Situation may improve soon with new regulations that aim to balance security concerns and freedom of press.

By DAN IZENBERG
April 20, 2010 23:41
3 minute read.
ANAT KAM

ANAT KAM311. (photo credit: EDAN RING)

“Many judges do not think enough before they authorize a request for a court gag order,” former deputy Press Council chairwoman Nitza Shapira-Liba’i said in an interview on the controversial issue, which has reared its head again in the two latest national scandals – the Anat Kamm-Uri Blau affair and the Holyland case.

In the first, Israel became a laughingstock in some quarters of the world because it refused to allow the local media to report on an affair that was being described with unconcealed glee and in great detail abroad.

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In the second, which was of limited international interest, the local media did everything possible to let the public know that the “senior figure” whose name they could not divulge was former prime minister Ehud Olmert.

When the initials Aleph Aleph (Olmert’s Hebrew initials) appeared on the stub of a bank check allegedly paid to him by the state’s key witness (whose name is still under a court gag order, even though it appears daily in the newspapers), reporters had a field day suggesting who Aleph Aleph might be – mentioning every absurd possibility except Olmert, since the gag order on publishing his name in that context still applied.

“Interested parties exploit the situation and improperly influence the outcome of their request because they are given the opportunity to choose which court, and before which judge, they will present their gag order request,” Shapira-Liba’i said. “They go to the small-minded judges, who they know will readily grant it to them.”

The quote, truth be told, is not a recent one. Shapira-Liba’i made the charge in 2004, when Likud MK Michael Eitan served as chairman of the Knesset Law Committee and waged a ferocious campaign against what he charged was the authorities’ misuse of their censorship powers. His main targets were the police and state prosecution, rather than the military censor.

Although these issues continued to be problematic in the following years, only a handful of newspaper publishers and reporters on the one hand, and the police and state prosecution on the other, were aware of the day-to-day ramifications.



It is only when major scandals of extraordinary public interest, like the current ones, blow up in our faces, that the general public becomes aware of the issue.

According to Arik Bachar, the secretary-general of the Press Council, the police ask the courts for a gag order 100 times a year – roughly once every three days. With few exceptions, the gag orders apply to details of ongoing police investigations.

It is not clear how many are security-related, like the Kamm-Blau investigation – which was actually handled by the Shin Bet (Israel Security Agency) – and how many are gargantuan “regular” criminal cases like the Holyland affair.

The police justify their requests on the grounds that they are meant to facilitate or protect the investigation. Most people agree that the police ask for gag orders, and the judges grant them, all too easily and for too long a period.

But this situation may be coming to an end, Bachar told The Jerusalem Post on Tuesday.

Thanks to the pressure of those lobbying for greater freedom of the press, former police commissioner Moshe Karadi established a committee to examine the matter. It was chaired by Judge Sarah Sirota, who died during the committee’s work.

Nevertheless, the committee completed its assignment and prepared the draft of new regulations. According to Bachar, Press Council chairwoman Dalia Dorner recently met with the head of the police investigative branch, Cmdr. Yoav Segelovich, to finalize the terms.

Bachar added that Attorney-General Yehuda Weinstein had already approved the regulations.


According to one of the provisions, the police may apply to the court for a gag order without any other relevant party being present. However, by the end of seventh day after the gag order is issued, the court must hold another hearing, this time in the presence of a lawyer representing the Press Council.

The Young Attorneys Forum of the Israel Bar has agreed to supply lawyers on a pro bono basis at any time of day or night to defend the Press Council’s interests.

“In the Anat Kamm case, for example, we could have explained to the Shin Bet the consequences of maintaining the gag order,” said Bachar. “We could have helped it make wiser and more sophisticated use of this tool for protecting state security.”

It is still not clear when these regulations will go into effect and whether they will solve all the problems that have arisen over the years.


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