A radically unprecedented and far-reaching proposal that would have given the government the ability to block Israeli web users’ access to parts or the entirety of any website was stopped in its tracks Wednesday morning, hours before it was set to be voted into law by Knesset members who had “no idea” of its far-reaching implications.
In a rare and potentially destabilizing move for his shaky coalition, Prime Minister Benjamin Netanyahu ordered the so-called “Facebook incitement bill” to be removed from Wednesday’s Knesset agenda after The Times of Israel found that the law went drastically further than was previously understood, even by the lawmakers pushing for it.
“Fearful of damaging freedom of speech, and in order to ensure the right of the citizens of Israel to freely express criticism on the internet, Prime Minister Benjamin Netanyahu requested to halt the advancement of the ‘Facebook Law’ and to return it to its original format and purpose — preventing incitement on the internet,” read a statement released by Netanyahu’s Likud party on Wednesday.
“The prime minister thinks that the current language of the law is open to a broad interpretation that could allow censorship of opinions and cause severe harm to freedom of speech in the state of Israel,” the statement said of the bill, which was put forward by Public Security Minister Gilad Erdan and Justice Minister Ayelet Shaked.
As Netanyahu made clear, the initial purpose of the bill was to help tackle incitement on Facebook, specifically incitement to commit terror attacks. But the version that was about to become law had more far-reaching implications. When The Times of Israel began questioning lawmakers and other experts about those provisions this week, the implications of the bill became clearer, and it was pulled shortly before it was to have been approved.
The Facebook intifada
A few weeks into the wave of terrorist stabbing attacks that spread across Israel from late 2015 to mid-2016, pundits and politicians had already begun calling it “The Facebook intifada.” The “lone wolf” terrorists who would go on to kill over 35 Israelis in attacks during that period were frequently found to have posted praise for previous attackers on their social media accounts, primarily Facebook.
Innumerable posts, videos and tweets extolled the virtues of attacking Israelis, with terror groups and private individuals posting incitement, songs hailing the terrorists, and instructional videos telling them how best to carry out attacks. In several cases, terrorists posted their own messages ahead of such attacks. Many of them mourned relatives killed while attacking Israelis, and peppered their feeds with posts hailing or yearning for “martyrdom.”
In response to the phenomenon, several bills were proposed to discourage or ban such incitement from appearing on Facebook.
The first was put forward in May 2016 by Zionist Union MK Revital Swid and sought to levy a NIS 300,000 ($77,000) fine against Facebook for every post that included incitement that the social media giant failed to immediately scrub. Swid’s bill — signed by both coalition and opposition lawmakers — put the onus on Facebook to actively track posts and delete them, something the company says it does not do, relying instead on users who “flag” problematic posts.
Swid said her bill was inspired by the son of a Jerusalem man killed in a terror attack during a wave of violence, who urged lawmakers to do more to quash social media incitement. Richard Lakin, a US-born teacher and peace activist, was shot and seriously wounded on October 13, and died of his injuries two weeks later. His son, Micah Avni, has been campaigning against social media incitement, and is named as the lead plaintiff in a 20,000-complainant-strong lawsuit against Facebook.
Building on Swid’s bill, Erdan and Shaked advanced their own version, which would allow the government to seek a court order to force the social media group to remove certain content based on police recommendations.
First proposing that version in July 2016, Erdan said Facebook was a “monster” that enables terrorism, and charged that its founder, Mark Zuckerberg, had the blood of 13-year-old Hallel Ariel, stabbed to death in one of the attacks, on his hands.
Erdan tweeted on Sunday that he was proud of the legislation, but cautioned that Israel must “strive to place full responsibility on internet companies to ‘clean’ their own platforms, and not wait for the police to monitor and then approach them.”
Both Erdan and Shaked declined to comment Wednesday on the decision to remove the bill from the Knesset’s agenda.
While the initial proposal was aimed at tackling terror incitement on social media, the bill authorized in committee on Sunday for final plenum votes would have allowed for censorship of “any website that the public or a section of the public has access to, even if that access requires a password or code, payment or no payment, or whether the site is based in Israel or abroad.”
Based on the discussions of the joint committee established to deal with the bill, made up of MKs from the Law, Constitution and Justice Committee and the Science and Technology Committee, The Times of Israel reported on Sunday that the law would not only apply to social media sites such as Twitter and Facebook as previously reported in the Israeli media, but would affect any website featuring user-generated content. That would have included content from private blogs and blog platforms on certain news websites, such as The Times of Israel’s The Blogs section.
The final version of the bill, however, would have gone even further than that, and given the government authority, with the permission of an administrative court, to block any content from any site deemed to violate any section of Israel’s penal code.
Section 2A of the bill, for example, states that, based on the request of the Justice Ministry, a court order may “force a content publisher, or the owners, directors or managers of an internet site that publishes content to remove the content from the internet if it is convinced that a criminal act has been committed via its publication on the internet site, and that there is a real possibility that its continued publication would harm the security of an individual, the security of the state or cause serious damage to the economy or the vital infrastructure of the state.”
Section 2B adds that a similar order could be issued to block a search engine, such as Google, from allowing content to show up as even existing on the internet.
Furthermore, according to the bill, if authorities want to block access to content on any website, including local and foreign news sites, they have no requirement to prove their case against a defendant and instead need only to face a closed administrative hearing before a judge. In addition, they will be able to obtain a gag order on any information about the decision, preventing the public from knowing that any censorship even took place.
And as opposed to most other court intervention orders, both the order to remove content and the gag order about that removal would have no time limit and therefore last for perpetuity.
‘No one knew’
The nine committee discussions on the bills that took place from January 30, 2017 until Sunday this week, July 15, 2018, omitted any substantive mention of the wide purview of the bill.
A statement released by the Knesset spokesman’s department following the most recent committee debate clearly stated, “The proposed directive will apply to content that appears on social networks such as Facebook, YouTube, Twitter, etc., as well as to search engine providers like Google, concerning which the directive instructs not to enable localization of offensive content in search results.”
Both backers of the bill who fought for a more robust application of the censorship provisions, and those MKs who sought to limit its reach, admitted to The Times of Israel that they had not understood that the law could apply to the entire internet.
Asked if committee chairman Nissan Slomiansky (Jewish Home) was aware that the the bill provided for the ability to sanction news sources and other non-social-media sites, a spokesperson for the Jewish Home MK said the committee discussion has focused on Facebook
The spokesman for Slomiansky said committee discussions had focused on social media sites “because that is what the bill was created for.”
During debates, Slomiansky repeatedly referred to “social media sites” as the primary targets of the bill, omitting any mention of other sites, such as online newspapers or blogging platforms. On Sunday, arguing that the court order must take effect immediately after it is issued, he said, “I don’t want Facebook and Google to determine the limits of freedom of expression.”
His spokesman said that while it was obvious to everyone that the bill did not only focus on Facebook, “it wasn’t clear at all” that it could affect all internet sites.
Swid, who sponsored the original bill, said she abstained from the committee vote as she believed the updated version went “far beyond” her proposal, but conceded that she hadn’t considered it could refer to all internet sites.
“No one knew this was the meaning of the bill,” she told The Times of Israel this week before Netanyahu’s announcement. “We didn’t discuss it. The law was supposed to apply to Facebook and Google and other social networks and that’s what we believed it to be.”
Swid said, “the law should have been applied only to incitement to terrorism as formulated in the original bill I initiated, or at least on a closed list of offenses, as I proposed in the committee.”
Also admitting that the broad reach of the law was not understood by members of the committee, Ronit Gal, the Knesset spokesperson for the committee, said that the language was initially changed from referring only to social media sites so as to include video hosting sites such as YouTube or pornography sites, where “crimes could be committed by posting videos of sex acts without permission of those participating.”
She said the intention of the language was not to widen the scope to the entire internet, “even if that’s what it effectively did.”
Dr. Tehilla Shwartz-Altshuler of The Israel Democracy Institute said that despite following the law from its inception and sitting in many of the committee debates, she too had missed its true meaning.
But after talking with The Times of Israel, Shwartz-Altshuler said she did a “full review” of the law with another legal aide at the IDI and “came to the same conclusion.”
Even before the revelation, Shwartz-Altshuler described the bill as “one of the most severe infringements of freedom of expression passed by the current Knesset.”
She warned on Sunday that the bill allows for wide censorship against “almost anything you can imagine.” That could include “calling for a rebellion, incitement to racism, telling people not to join the army, inciting people not to pay taxes, incitement against public officials.”
“That is the most extreme application of such a law in the whole of the democratic world,” Shwartz-Altshuler said, calling it “a serious threat to freedom of information and freedom of speech in Israel.”
On Wednesday, she called it “a monstrosity.”
“Should the current bill pass, the Start-Up Nation could be set back decades in terms of freedom of speech,” she said. “Today, many countries are debating how to regulate social media content, however none have come close to the extreme legislation proposed in this bill… Should the law pass, the state will become social media’s chief censor.”
After reviewing the bill and understanding how far-reaching it really was, Shwartz-Altshuler, together with Swid, turned to Att. Gur Blai, the legal adviser for the Law, Constitution and Justice committee in a last-ditch effort to have the bill change or removed from the Knesset agenda before a final vote.
Members of the Knesset legal department are unauthorized to comment on legislation but three separate sources told The Times of Israel that the appeal to Blai and his subsequent actions led directly to Netanyahu’s decision.
“The attorney general’s office was involved,” said one source with direct knowledge of the process. “It moved pretty fast once people understood what was happening.”
Following Netanyahu’s announcement Wednesday, Slomiansky nonetheless said he stood by the version of the bill passed by his committee, and slammed the prime minister for preventing a plenary vote.
“The committee worked on the bill over a long period of time and found the appropriate balance between state security and freedom of expression,” he said in a press statement. “Unfortunately, there are powerful forces here with their own interests who will not pass this bill. I am sorry that the prime minister does not see the bigger picture.”
The Prime Minister’s Office declined to comment.