Attorney General’s recommendation to change rules as B’Tselem’s radio spot awaits approval raises concern of improper discrimination
On Wednesday, 6 August 2014, Attorneys Hagai Kalai and Gilad Barnea submitted the response by Israeli human rights organization B’Tselem to the attorney general’s position as presented to Israel’s High Court of Justice (HCJ) earlier this week as part of the state’s response to the organization’s petition. B’Tselem’s response emphasizes that the existing rule clearly establishes that it is permissible “to broadcast a political advertisement provided that it concentrate solely on a factual message.” B’Tselem’s proposed radio spot meets these conditions. B’Tselem adds that the Israel Broadcasting Authority (IBA) is not permitted to consider the advertiser’s identity, as it did, nor consider whether the facts presented may be interpreted differently by different listeners. Neither is the IBA permitted to assess the facts presented in reference to what it perceives as the government’s position. Such conduct contradicts the IBA’s obligation to act independently and raises grave doubts regarding its ability to foster effective criticism of the regime.
The attorney general’s response to the HCJ seeks to overturn an existing rule, despite the absence of any new circumstances justifying such a change. He proposes a new test including a series of questions to be applied in determining whether or not to approve the broadcasting of advertisements. For example, the IBA will be required to consider whether an ad may be construed as political or as provoking ideological controversy; whether alternative media exist for the publication of the information; the timing of publication; and the advertiser’s identity. B’Tselem notes that these considerations have no basis in case law, contradict the existing rule, and are unlawful and unconstitutional. The IBA is not permitted to consider the advertiser’s identity: this constitutes improper discrimination and violation of freedom of speech. The upshot of the attorney general’s position is that the IBA can prohibit the broadcasting of any spot, even a factual spot, presenting information it believes might support a controversial position, even if only implicitly.
The attorney general’s new “policy” in its entirety was formulated only after B’Tselem filed the current petition and in reaction thereto. Instead of examining the petitioner’s radio spot on the basis of IBA policy, the above-mentioned policy was crafted in the course of the response to the petition for the purpose of preventing the broadcasting of the proposed radio spot. Changing the tests to be applied in order to reject B’Tselem’s radio spot heightens concern regarding lack of proper administration. The Court has previously recognized that changing rules according to a request by a specific body raises grave suspicion of administrative discrimination.
B’Tselem further notes that the new norm the IBA and the attorney general seek to establish lacks any documentary support and is not based on the IBA’s internal rules and guidelines. This new policy could be amended at will and is not publicly transparent. Once the current proceeding is completed, there is no reason why the policy might not be amended again in order to permit the broadcasting of a political ad by a body that is more popular with IBA management.
The current rule was established in the People’s Voice petition and was accepted after a hearing before an expanded HCJ panel. B’Tselem emphasizes that if the HCJ sees fit to consider changing this rule, this will entail the continuation of the hearing before an expanded panel in order to clarify the constitutional issues raised by the petition.