Court: IBA, Second Authority can ban 'controversial' political ads

Left-wing petition to cancel such advertisements rejected.

IBA 224.88 (photo credit: Ariel Jerozolimski)
IBA 224.88
(photo credit: Ariel Jerozolimski)
The High Court of Justice on Wednesday rejected a petition by a left-wing movement calling for the cancellation of broadcasting rules banning commercial ads promoting "controversial" political views. The petition was first submitted by the National Census, a nonparty movement that prepared a declaration of principles for achieving peace backed by prominent Palestinians led by Sari Nusseibeh, the president of Al-Quds University in Jerusalem. The movement prepared an ad outlining some of the provisions of the declaration and directing listeners to a phone number and e-mail address for further information. At first, the Israel Broadcasting Authority agreed to publish the paid ad and it was aired on radio between September 14 and September 28, 2003. The Second Broadcasting Authority, which regulates commercially-operated television and radio broadcasts, rejected it immediately on the grounds that it dealt with "a political subject that was controversial to the public." On September 29, then-attorney-general Elyakim Rubinstein ordered the IBA to stop broadcasting the ads. The National Consensus petitioned the High Court on November 16, 2003. At first it demanded that the broadcasting authorities allow it to broadcast the ad as well as cancel the IBA and Second Authority rules forbidding the airing of politically controversial ads. Later, it dropped the first demand and focused on the canceling the rules. The IBA rule states that "an ad may not be broadcast if, in the opinion of the director-general it includes party propaganda or involves an issue that is the subject of political or ideological controversy among the public, including calls to change the law regarding the issue." According to the Second Authority rule, "a franchise owner will not broadcast an advertisement that conveys a message regarding a political, social, public or economic matter that is the subject of public controversy." In both cases, the decision as to whether a specific ad violates the rule is based on a subjective decision made by the authorized IBA or Second Authority official. If either authority rejects an ad in accordance with the rules, the injured party may appeal to it to reconsider its decision. If the authority rejects the appeal, the party may petition the High Court of Justice. On February 1, 2005, the court decided to expand its panel hearing the case to seven justices. On Wednesday, the panel ruled by a majority of five to two to reject the petitions. The majority opinion was supported by Justices Ayala Procaccia, Edmond Levi, Asher Grunis, Miriam Naor and Salim Joubran. The dissenting voices belonged to Supreme Court President Dorit Beinisch and Justice Esther Hayut. The petitioners argued that the IBA and Second Authority rules violated the constitutional right of freedom of expression as guaranteed in the Basic Law: Human Freedom and Dignity. They claimed that the rules violated the "limitation article" of the law, which states that it can only be violated "by a law befitting the values of the State of Israel, enacted for a proper purpose and to a degree no greater than required." Naor, who wrote the main opinion, rejected these arguments. She said the rules were based on the Israel Broadcasting Law and the Second Authority Law, which expressly ordered them to set rules determining restrictions and prohibitions on commercial ads. She added that the rules had been drafted for a worthy purpose, to "guarantee fair and balanced broadcasts," and that they were proportional.