Proposed online censorship bill more intrusive than in any other democracy — expert

So-called ‘Facebook Bill,’ meant to block harmful content on social media, is far too broad, opens door to harm freedom of speech, says IDI’s Dr. Tehilla Shwartz Altshuler

Ricky Ben-David

Ricky Ben-David is The Times of Israel’s Tech Israel editor and reporter.

Justice Minister Gideon Sa'ar arrives at the President's Residence in Jerusalem, for a group photo of the newly sworn in Israeli government, on June 14, 2021. (Yonatan Sindel/Flash90)
Justice Minister Gideon Sa'ar arrives at the President's Residence in Jerusalem, for a group photo of the newly sworn in Israeli government, on June 14, 2021. (Yonatan Sindel/Flash90)

The Israel Democracy Institute and the Israel Internet Association filed an urgent request on Tuesday with the Knesset’s Ministerial Committee for Legislation to review a bill seeking to curtail “incitement” online that, they say, goes far beyond what any democratic country has allowed.

The bill, dubbed the “Facebook Bill,” has been circulating since at least 2017 and on Monday night passed a key hurdle by receiving the required approval of the committee. The bill will now advance to a second and third reading in the plenum.

Under the proposed bill, a judge would be able to issue an order requiring a content publisher to remove posts from its website, if law enforcement agencies are convinced that a criminal offense has been committed through the publication of the content. It essentially allows Israeli authorities to block posts from any website featuring user-generated content, including Google, Twitter and Facebook, as well as news sites from being seen by Israeli viewers, including those with a paywall and those that require user registration.

The proposed legislation almost passed in 2018 when, at the last moment, (and following inquiries by The Times of Israel) then-prime minister Benjamin Netanyahu stepped in to remove it from the Knesset docket. He said at the time that it could be interpreted to grant powers so broad as to threaten freedom of speech.

The bill is now being promoted by Justice Minister Gideon Sa’ar who welcomed the okay of the Ministerial Committee for Legislation.

In their letter to the committee, Dr. Tehilla Shwartz Altshuler, a senior fellow at the Israel Democracy Institute and head of its Democracy in the Information Age program, and Dr. Asaf Wiener, head of regulation and policy at the Israel Internet Association, outline several main problems with the Facebook Bill.

“The bill is broader than necessary and offers a substantial and procedural opening for government censorship,” the authors wrote. “Moreover, the bill also makes it possible to remove content from institutional content sites, like Israeli and foreign newspapers, at a level of intrusion that does not exist in any other country in the democratic world.”

In this illustrative photo taken in Los Angeles on October 28, 2021, a person watches on a smartphone as Facebook CEO Mark Zuckerberg unveils the Meta logo. (Chris Delmas/AFP)

Shwartz Altshuler told The Times of Israel on Tuesday that “the law applies to any website, with a paywall, or without, with registration or without. This means that one could go to court and ask for content removal even from news sites, which is unheard of.”

She explained that the bill was far too wide-reaching, and would apply to sites of any size — those with thousands of visitors and those with millions — and those hosted on servers in Israel and abroad, “which means that they can actually approach a place like The Washington Post and ask for content removal from Israeli IP addresses.”

Germany’s content removal legislation, for example, deals only with social media networks and excludes those with fewer than two million registered users in Germany.

“It’s very wide and there are no limits. There’s no reason to do it like that,” she said.

The bill was first conceived in late 2016 following a wave of deadly stabbing and car-ramming terror attacks perpetrated mainly by individual Palestinian attackers in the preceding two years.

According to security authorities, incitement to violence or terror on social media platforms played a role in fueling these attacks and the initial legislation sought to provide authorities with tools to handle inciting content on the internet in Israel, specifically on social media, and especially in cases where the identity of the writer or poster was unknown or they were located outside of Israel and beyond its jurisdiction, Shwartz Altshuler explained on the Lawfare blog in 2018 with Rachel Aridor-Hershkovitz, a researcher in the Democracy in the Information Age Program at the Israel Democracy Institute.

But the final version that almost passed was much broader and contained key references to the Israeli penal code under which content could potentially be removed if it pertains to any criminal offense under Israeli law, including those related to political discourse.

Now, it’s back again with only “minor changes.”

“The legislation contains references to all offenses in the Israeli penal code, and in this sense, it includes what we call ‘the political clauses.’ For example, defaming a political figure or incitement to racism. All these are criminal offenses with enforcement that could be considered very political,” Shwartz Altshuler said.

Dr. Tehilla Shwartz Altshuler, a research fellow at the Israel Democracy Institute. (Israel Democracy Institute)

By contrast, in Australia and Germany for example, “where they have legislation for content removal from social media, they’ve narrowed it to specific offenses from the penal codes, or to specific subjects… like offenses against minors, or nudity, or sexual violence, and actual harm” to individuals, as well as terror, she explained.

In Israel, the bill would apply to any criminal offense that might harm public safety, not specifically a person’s safety or national security. “Public safety can be interpreted as public trust in the government and things like that, and I wouldn’t want the government to approach a court with the demand to remove content,” Shwartz Altshuler said.

An additional problem is the process by which authorities can move to block content, as stated in the bill.

“First, someone can report content to [the authorities]. Then they go and ask permission from the attorney-general, and then they go back to court and get an order within 48 hours. So the whole procedure will take 2-3 days. Three days is an eternity on the internet. This is not how you do content removal when you really need to do it. Not when it’s incitement to terror and not when it’s revenge porn,” Shwartz Altshuler.

Gideon Sa’ar, head of the New Hope political party speaks during the conference of the Israeli Television News Company in Jerusalem, on March 7, 2021. (Yonatan Sindel/Flash90)

The suggestions put forth by Shwartz Altshuler and Wiener, of the Israel Internet Association, include limiting the legislation only to social media platforms, and to very severe life-or-death issues, as well as moving to have it removed within three hours.

The proposed legislation not only “opens the door for government censorship,” but it is also “inefficient in the purpose, in removing real harmful content quickly,” said Shwartz Altshuler.

As an example, she referenced an incident she was personally involved with relating to a Bedouin preteen from a conservative family in southern Israel whose brother had taken a photo of her without her hijab (head covering) and uploaded it, as a joke, to a social media platform where it was circulating.

“They realized that once her dad finds out that her photo without her hijab was on Twitter, he was going to kill her, or beat her. You need to remove this photo immediately. I don’t have three days,” Shwartz Altshuler described.

The legislation is “justified in the sense that there are pieces of content that need to be removed immediately from the internet,” but the definition of what type of content this applies to need to be very narrow and to be handled efficiently,’ she added.

Shwartz Altshuler also said she was baffled by the decision to move forward with such a broad bill.

“It’s weird to introduce it now. In 2018, it was obvious to everyone that the bill needed to be corrected. Sa’ar could have done that and he hasn’t. I don’t understand why they haven’t changed it,” she said, adding that she doubts it will have the support of the coalition as it stands.

The timing was also off, she added. Sa’ar recently appointed a special committee under the Justice Ministry tasked with formulating regulatory recommendations vis-à-vis social media networks, and emerging technologies in Israel and abroad.

“This committee had maybe two meetings until now and they haven’t come up with anything yet. On top of that, he’s now introducing this bill. Why aren’t you waiting for this committee? That’s their job,” said Shwartz Altshuler.

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