Therefore, they are not subject to the doctrine of administrative legality and do not require any statutory conferral of authority.
However, due to the material arguments raised in regard to the Cyber Department’s activities, the importance of matters raised and their possible consequences, and in view of the subject being a matter of first impression, Deputy President Melcer decided to address the Petitioners’ arguments on the merits so as not to leave the constitutional and administrative law issues hanging in the air.Īccording to the State Attorney’s Office, because the Department’s activity is limited to sending voluntary referrals to the online platform operators, which leave the issue of enforcement to the discretion of the platform operators, the Cyber Department’s activity should be viewed as lacking any governmental force. The question of exercising independent discretion by those entities could have material consequences for the primary questions addressed by the proceedings. A failure to join the online platform operators as respondents to the petition. This, inter alia, due to a lack of evidence as to the scope of the violation of freedom of expression and access to information uncertainty as to whether the publishers who are the subjects of the referrals are human or “bots” whether they are located in the State of Israel or abroad and whether the online platform operators independently decide whether or not to remove content or whether their decisions are influenced by the fact that the referring body is the State Attorney’s Office.ī. An insufficient factual foundation for the argument that the Department acts without authority. The petition suffered from two serious defects that could justify dismissal in limine, as follows:Ī. Hayut that the petition should be denied in limine), subject to a number of observations for the future, for the following reasons: Stein concurring, over the dissenting opinion of President E. The High Court of Justice denied the petition ( per Deputy President H. Referrals are also sent in regard to content that threatens harm to minors, certain public servants, or to the integrity of Knesset elections. In practice, the Department concentrates primarily upon publications that relate to terrorism and extreme violence, and incitement to violence and terrorism. According to the Department’s preliminary response to the petition, such referrals are sent to online platform operators only when there are additional considerations to justify the referral, among them the severity of the content, the scope of its distribution and its “viral” potential. The petition addressed the question of the authority to conduct “voluntary enforcement” activity for the removal of harmful content from the internet, the manner and configuration of the activity of the Cyber Department of the State Attorney’s Office, and the lack of express statutory authority for the activity.īackground: In accordance with the Work Procedure established by the State Attorney’s Office, the Cyber Department initiates referrals to online platform operators, content providers, and other internet platforms (like Facebook and Google), reporting publications that the State Attorney’s Office deems as constituting an offense under Israeli criminal law, and that also breach the Terms of Use of the platform itself.
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