woman on laptop.
(photo credit: REUTERS/Desmond Boylan)
Are our courts too quick to issue gag orders, particularly in the age of
Internet with the flow of information nearly impossible to control? That
question is increasingly being asked in the wake of confused and seemingly
contradictory decisions by a Tel Aviv judge regarding the use of a gag order in
the Bar Noar murder case.
Ostensibly, the Tel Aviv Magistrate’s Court
originally issued the gag order to prevent disruption of a police investigation.
Apparently, the police were concerned that publication of details might tip off
additional suspects or help those suspected of being involved in the murder to
cover their tracks or construct a false alibi.
Details of the case –
including the names of the suspects and their motives for the murders – began,
however, to be made available on various Internet forums, including Facebook and
Many in the LGBT community in Tel Aviv were intimately familiar
with all aspects of the Bar Noar shootings. Despite the gag order, anyone who
wanted to learn more about the case could do so quite easily.
absurdity of the situation was made worse when a Tel Aviv judge seemingly
removed the gag order, then reinstated it. Around 4 p.m. Monday, police held a
press conference divulging all the details of the case. Police were apparently
acting on their understanding of the Tel Aviv judge’s decision.
p.m., in news flashes on TV, radio and Internet, the information was publicized.
But less than an hour later the full gag order was reinstated.
sites scrambled to remove the prohibited content. On Tuesday, the gag order on
most of the details was once again removed.
The court’s zigzag on the gag
order raises questions about its necessity in the first place. Israel Press
Council President Dalia Dorner, a former Supreme Court justice, argued Tuesday
that our courts are too quick to issue gag orders. Unlike instructions from the
Military Censor’s Office, which is under the purview of the Supreme Court, gag
orders can be issued in criminal cases without any oversight. Often these gag
orders are issued at police request without taking into consideration wider
TRUE, THERE are cases that justify the use of gag orders –
whether to prevent disruption of a police investigation or to protect the
identity of a suspect.
And this is true even in the Internet age when
chances are good that many details of the case will nevertheless be leaked
online. Indeed, the Supreme Court ruled in February that even if it is likely
that a gag order will be violated on the Internet, courts should not for this
reason refrain from issuing it.
Still, due to the nearly insurmountable
enforcement difficulties that confront anyone who seeks to impose the law’s
authority in cyberspace, gag orders should be used selectively and only when
needed. And in these cases, all efforts should be made to bring to justice those
who violate the gag order online.
Admittedly, distinctions should be made
between online activity such as posts on Facebook or blogs and content published
on Internet news sites.
Bloggers, Facebook postings and other forms of
online activity such as Twitter can be likened to more informal forms of
communication such as a conversation overheard at a bar. They carry a relatively
lower level of reliability.
In contrast, Internet news sites should be
treated no differently from other forms of news media.
But once these
distinctions are made, violators should be prosecuted. This is not always
Often it is impossible to pinpoint the geographic location of
offenders. But where possible, the law should be enforced.
Even if just a
few offenders are punished, others will likely abandon the false belief that
cyberspace is beyond the reach of the law.