The unbearable lightness of gag orders

Gag orders could in theory still work were the government to spend large amounts of time and money hunting down violators.

January 4, 2014 22:17
3 minute read.
Ben Zygier.

Ben Zygier 370. (photo credit: Courtesy ABC)


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A bill to be brought before the Ministerial Committee on Legislation today will seek to bring about what we see as a long overdue reform of the courts’ powers to drop gag orders in cases where the information protected by the order has been exposed.

As MK Nachman Shai (Labor) – who is sponsoring the bill along with MK Merav Michaeli (Labor) – said in an interview with The Jerusalem Post, we live today in a world where the Internet often renders gag orders irrelevant, with details of cases leaked on the World Wide Web far from the jurisdiction of Israeli authorities. “Our laws cannot ignore reality,” he said.

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In several recent high profile cases in which the courts issued gag orders – such as those of singer Eyal Golan, who stood accused of statutory rape; Anat Kamm, who was found guilty of leaking sensitive military documents to Haaretz journalist Uri Blau; and Ben Zygier, an Australian-Israeli citizen, who committed suicide in solitary confinement where he was held for unspecified security crimes – the identities of those involved were known to the public, and openly published online, even as the gag orders on their respective cases remained in place.

This phenomenon reached a farcical height in the case of Shmuel Duchner, the main witness in the Holyland real estate corruption trial against former prime minister Ehud Olmert and 15 other defendants, when the press was unable to reveal his identity even when reporting on Duchner’s funeral, where the need to protect his identity had clearly been rendered redundant.

Shai and Michaeli’s bill seeks to redress this anachronistic anomaly. It would require the courts to reconsider a gag order once it has been brought to their attention that the information intended for protection had been exposed and to weigh whether the order remained relevant.

It would also give a representative of the press formal standing to argue at hearings for the removal of the gag order and, moreover, require a hearing within seven days of certain gag orders going into effect.

As Shai noted to the Post, “laws are not meant to last eternally” and must reflect changing realities.

Today’s reality is that it is no longer possible to keep a lid on information just by preventing the major media outlets from publicizing it.

Having major media outlets reporting under gag order, while the relevant information is freely available online, may perhaps make the media lose face, but more important it makes the courts and police look ridiculous to the extent that it can start to eat away at their credibility. This is too great a danger and makes change in the law imperative. Indeed, the police and the attorney-general are backing the initiative.

Gag orders could in theory still work were the government to spend large amounts of time and money hunting down violators on social media and other informal media and were it then to bring criminal sanctions against them or hit them with heavy fines. Such draconian moves would of course not be tolerated by the Israeli public. When the cost in liberty becomes too high, the solution is inevitably going to be for the courts to give up some control and let more gag orders fail. Thus, again, the reform becomes imperative.

The bill will not eliminate gag orders and will not reduce protection of identity in cases involving rape victims, minors or other members of a protected class of persons. Gag orders will still be issued, but the courts will be asked to apply a realistic test – as opposed to philosophical-legalistic principles divorced from reality – to keep them in place once the Internet has brought down the screen.

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