Background: Are the courts too willing to impose gag orders?

Bans on publication are meant to protect national security or the investigation - but this may not always be the case.

By DAN IZENBERG
There are two laws giving the courts the right to issue gag orders. According to the Courts Law (1984, Article 70 (a)), "a person may not publish anything about a hearing that was held behind closed doors without the court's permission." Article 70 (d) states that "the court may prohibit any publication regarding deliberations in court if it sees the need for it in order to protect the safety of the litigant, witness or anyone else whose name is mentioned in the hearing." The second provision, which is included in the Penal Law, does not pertain to the case of the soldier who photographed the "senior officer's" credit card, since he has not yet gone on trial. Nevertheless, this article allows the court to ban publication of evidence or testimony presented during the trial if state security is at risk. For many years now, a debate has been raging as to whether or not the court is too amenable to the military, police and prosecution and too quick to use its power to issue gag orders at the cost of the hallowed democratic principle of freedom of speech. Much of the debate has to do with matters related to, or purported by the defense establishment to be related to, national security. The issue became more acute after the High Court of Justice handed down a landmark ruling in the Shnitzer petition in 1989, strictly defining and restricting the powers of the Military Censor. According to the ruling, the censor could restrict publication of security information only in cases of near certainty that national security would be threatened. The security establishment had difficulty accepting the court ruling. Since it could no longer rely on the censor to ban what it thought, for whatever reason, should be banned, it began to turn to the courts for gag orders in accordance with the legal provisions mentioned above. In 1999, the attorney-general issued a guideline stating that the censor could not approve publication of information that had been prohibited by the court. Thus, the courts essentially replaced the Military Censor as the final arbiter of what the public could know about matters of public interest. But the right of the court to restrict dissemination of information also involved criminal and other cases that came to court. In other words, the question of the court's power deals with more than just security matters. As the number of requests for gag orders increased, the media - as well as human rights organizations and liberals of all kinds - began to criticize the courts for being too free and easy in granting them. In August 2004, the Knesset Law Committee held a discussion on the problem. During the debate, the Press Council, headed at the time by deputy chairwoman Nitza Shapira-Liba'i, proposed a bill aimed at restricting the court's powers to issue gag orders. For example, it recommended that only the presidents of the four major district courts would be empowered to issue such orders. Little came of the bill or the subsequent proposal to appoint a committee to consider the problem. Today, several of the people involved in the discussions five years ago do not remember what was said at the time. The matter did not die there. Members of the media have fought often to lift gag orders over the past five years, with some degree of success. But the latest dispute has caused a sensation because of the involvement of the IDF chief of General Staff and the suspicions that have been raised that the gag order, which was requested by the army, the police and the state prosecution, was not meant to protect the investigation or state security, but the reputation of Gabi Ashkenazi.