Are gag orders obsolete?

Due to the enforcement difficulties of imposing law’s authority in cyberspace, gag orders should be used selectively and only when needed.

June 11, 2013 23:27
3 minute read.
Yoani Sanchez works on her laptop at her home

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 Twitter.

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.

The 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.

By 5 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.

Internet 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 ramifications.

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 easy.

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.

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