Back to Index of Limits on Freedom of Expression

Israeli law recognizes protection of freedom of speech as a constitutional principle. Protection extends to all forms and content of expression including freedom of the press and freedom to make a political speech. Freedom of speech, however, is not absolute and may be restricted under limited circumstances where there is “near certainty” that an expression would cause “real harm” to public safety.

The right to freedom of speech may also be limited in circumstances where it conflicts with the right to human dignity protected under a basic law. Speech may also be restricted based on statutory law containing prohibitions on incitement for racism; terrorism and violence; denial of the Holocaust and praise for atrocities committed by the Nazis; as well as insult to a public servant and defamation; among others.

 In balancing freedom of speech against other principles recognized under the legal system, the courts have applied relevant balancing formulas. Recognizing the significance of protecting speech, the Supreme Court applied a narrow interpretation to restrictions that may limit it. The Supreme Court has further determined that freedom of political expression should enjoy a particularly broad protection as compared with other types of expression. Such protection, however, does not extend to false factual expressions made maliciously against a public figure, as they do not constitute protected expressions of opinion or criticism.

To extend broad protection to speech, the Court has also applied a narrow interpretation to the elements of the offense of insult to a public servant. The offense, the Court held, exists only in rare cases where the expression “harm[s] the core of human dignity and involve[s] a substantive and severe violation of the value-moral nucleus from which the public servant draws the source of his/her power and authority.“ Moreover, the prohibition will only apply where it is almost certain that the anticipated harm will harm the public employee as an individual as well as the public service system and the public trust in it.

Recognizing a “defense of responsible journalism” against defamation suits, the Court extended the defense to circumstances where the publication was made in good faith, even if the information it contained ultimately turned out false. This defense will apply when there was an obligation to publish, no malicious intent, and when the publication complied with standards of responsible, cautious and fair journalism, and the publisher took steps to prevent unnecessary harm to the object of the publication.

There appears to be no control of content disseminated by foreign broadcasters, including television, radio and social media, working on behalf of foreign governments. Television and radio broadcasting companies, however, are required to be registered in Israel. Broadcasters that receive funding directly or indirectly from foreign governments are subject to disclosure requirements.

I. Introduction

This report addresses limits to freedom of speech that may apply under Israeli law in situations where the speech is perceived to purposely undermine the right of a public servant or a politician for free speech. This includes circumstances where individuals, the press, including a blogger or group of individual bloggers, “harass” a speaker or “misinform” the public on issues of public interest.

The report further discusses the availability of a mechanism to control foreign broadcasters working on behalf of foreign governments, to enable dissemination of misinformation thereby impacting public opinion in Israel.

The terms “freedom of speech” and “freedom of expression” in this report are interchangeable.

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II. Scope of Protection of Freedom of Speech and the Right to Interrupt Public Speech

A. Normative Status of Protection of Freedom of Speech

Freedom of expression had been recognized by Israel’s Supreme Court as a basic constitutional right since the early days of the State. Judicial recognition of the constitutional protection of speech in Israel derived from the Declaration of Independence that provides for the democratic character of the state.[1]

Although freedom of speech has not been expressly guaranteed under a basic law, it has been opined that its normative status has been elevated following the adoption of Basic Law: Human Dignity and Liberty in 1992, as “freedom of speech is an essential component of human’s dignity and liberty.”[2] 

B. General Scope of Protection

Israeli courts have recognized the principle of freedom of speech as applying to all forms of expression as well as types of content. It therefore applies to freedom of the press and freedom to make a political speech.[3] The courts determined that freedom of speech includes the right to receive information and to react to it; the right to speak and to listen as well as to demonstrate. Freedom of expression, it was held, is not only the freedom to express accepted opinions, it is also the freedom to express divergent opinions that are disliked by the majority; the freedom to praise but also to criticize the government.[4]

Although freedom of expression extends to a wide range of contents and formats, Israeli courts have recognized that an expression may be restricted under circumstances where there is “near certainty” that it would cause “real harm” to public safety.[5] 

C. Balancing Freedom of Expression with Other Competing Principles

Israeli law recognizes additional protections that may conflict with the right to free speech. Basic Law: Human Dignity and Liberty, e.g., expressly prohibits harm to human dignity.[6] The Basic Law provides that

[t]here shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required. . . .[7]

A number of laws include provisions that authorize restrictions on freedom of speech by criminalizing, among others, speech that constitutes incitement for racism, terrorism and violence; outrage to religious feelings; publication of false news causing fear and alarm; as well as expression of denial of the holocaust and praise for atrocities committed by the Nazis.[8]

When evaluating the right to freedom of expression against competing interests reflected under legislation authorizing limitations on such freedom, Israeli courts have applied various balancing formulas, including by limiting the scope of freedom of expression “by time, space, frequency, etc., to achieve proper balancing, without having one of the [protected] interests completely withdrawn.”[9]

Israel’s Supreme Court has balanced competing interests in a number of cases including when freedom of expression conflicted with public safety, judicial ethics, public morality, and a person’s right to a good name.[10]

D. Implementation of Statutory Limits on Freedom of Speech Relating to Public Servants, Journalists and Political Speech

Speech by a public servant or by a political figure may be limited under legislation prohibiting inflicting an insult to a public servant and under defamation law. The extent to which freedom of speech will be restricted in relevant cases has been defined by Israeli courts. The following is a discussion of the application of balancing formulas that apply when the legislative objective in prohibiting insult and defamation under the laws conflicts with the constitutional principle of freedom of speech.

1. Insult to Public Servant and Freedom of Speech

In accordance with the Penal Law, 5737-1977,

[a] person who by gestures, words or acts insults a public servant or a Judge or officer of a religious court or a member of a commission of inquiry under the Commissions of Inquiry Law, 5729-1968, whilst engaged in the discharge of his duties or in connection with the same is liable to imprisonment for six months.[11]

a. Balancing of Freedom of Speech and Proper Functioning of Government

A 2011 decision of the Supreme Court in the Ungarfeld case by an extended bench of nine justices analyzed the scope of the offense in view of its impact on the principle of freedom of expression.[12] The petitioner in the case was convicted of the offense of insult to public servant (insult offense) for hanging a poster across from the police station, stating that a named police officer should be fired “because [he had] cooperated with criminals against those who complained against them, [and that] the police did not need ’rotten apples’.”[13]

Rejecting the request for an additional hearing in the case, Justice Ayala Procaccia for the majority recognized the significance of freedom of expression in a democratic regime. The criminal prohibition on insulting a public servant, however, was intended to protect the proper functioning of public service in the state as an important foundation of a democratic government.  According to Procaccia, a proper balance should be identified to achieve the objective of the criminal offense while inflicting a minimal negative impact on the constitutional right to freedom of expression. This requires a narrow interpretation of the insult offense, she opined. To constitute an “insult” in the meaning of the offense, the expression must pass a high bar composed of a “qualitative test” as well as a “probability test.” According to the former, the expression must “harm the core of human dignity and involve a substantive and severe violation of the value-moral nucleus from which the public servant draws the source of his/her power and authority.”[14]

Commenting on the probability test, Procaccia stated,

“[i]nsulting” within the normative meaning of the prohibition will therefore be devoted to irregular and extreme cases in which it is almost certain that the anticipated harm derived from it will not only harm the public employee as an individual, but also cause serious and severe harm to the fulfillment of his public function, thereby harming the public service system and the public trust in it.[15]

The Court rejected the request for an additional hearing and confirmed the petitioner’s conviction in the offense of insulting a public servant.[16]

b. Political Expression

Further narrowing down the tests established in the Ungarfeld decision, the Supreme Court reached a different conclusion in a 2017 decision accepting an appeal of a conviction for the insult offense. The petitioner in that case was an editor of an internet site who had published an article criticizing the job performance of a former military rabbi, in view of the military’s alleged handling of issues including joint military service of women and men and violation of the Sabbath and the Jewish dietary laws in military bases.[17]

Restating the high bar set under the Ungarfeld decision, Justice Miriam Naor, writing the majority opinion, held that implementation of the insult offense must be restricted only to cases where the insult may result in a serious and severe injury to a public servant’s dignity. In cases involving a “political expression,” she opined, the bar will be even higher.[18] Accordingly,

[p]olitical expression is a means of realizing the individual’s liberty and virtues, and incorporates a significant social value. It allows, perhaps more than any other expression, to fulfill the democratic component of freedom of expression. Political expression is a necessary condition for the exchange of ideas, the flow of information and the existence of a free discourse without which it is not possible to formulate a position on issues that are on the public agenda and to take part in the democratic process. Without political expression it will not be possible to have an effective oversight over the government . . . Because of all these political expression may not please the government, and therefore it needs a special protection against harassment on its [government] part . . . .

Moreover, the political expression is important not only as a right of an independent value, but also as a means of securing additional basic rights. Against this background, a series of judgments determined that freedom of political expression should enjoy a particularly broad protection as compared with other types of expressions.[19]

The decision whether a particular statement constitutes “a political expression” should be made according to the relevant circumstances and context. The distinction between a political expression and a commercial one, according to Naor, depends primarily on the content of the expression, but also on the identity of its maker, and objectives.[20] The more the expression deals with a public matter, such as a political or social issue, or with a public figure, the higher the tendency to classify it as a political expression. The Court has previously held in other cases that criticism of public officials, for example, criticism of the police commissioner due to the conduct of the police, will be considered a political expression.[21]

Naor determined that,

[s]ince political expression stands at the top of the pyramid of expressions and fulfills the objectives of freedom of expression to the highest degree, it should be provided with the maximum possible protection . . . Accordingly, I believe that expressions should almost always be protected from the application of the insult offense . . . This means that in the vast majority of cases, if not in all of them, protection of political expression will be preferred over the protected value at the basis of the insult offense. At the same time, and for the sake of caution, I am prepared to leave a very narrow opening for the application of the offense in the rarest of cases, in which there is a disproportional and exceptional harm to the dignity of the public servant and at the moral nucleus from which  . . . [the public servant] draws his/her power and authority . . . .[22]

Addressing the “probability test” established in the Ungarfeld decision, Naor made some additional determinations. In her view the higher the position of the public servant the higher the level of tolerance expected from him/her for offensive expressions.[23] Other considerations for recognizing liability for the insult offense include the extent of public exposure enjoyed by the offensive publication.[24]

2. Defamation Law and the ”Defense of Responsible Journalism”

Freedom of expression may be restricted when a publication constitutes defamation. A defamatory publication is one that may

(1)  Humiliate a person or make that person a target of hatred, contempt or ridicule;
(2)  Degrade a person for acts, behavior or traits attributed to that person;
(3)  Harms a person’s position, whether public office or other position, business, occupation, or profession; [or]
(4)  Degrade a person because of race, origin, religion, place of residence, age, sex, sexual orientation or disability, including permanent or temporary physical or mental impairment.[25]

Under section 15 of the Defamation Law, 5725-1965 (Defamation Law) it would be a good defense from criminal prosecution or a civil suit if the defendant or respondent made the publication in good faith circumstances including that

(1) . . . what was published was true and that the publication was of public interest . . . ; [or when]

(2) [t]he relationship between him/her and the person to whom the advertisement is directed has placed upon him/her a legal, moral or social duty to make such publication.[26]

a. Defense of Responsible Journalism

A 2014 decision by nine justices of the Supreme Court centered on the application defenses under the Defamation Law to a journalist for a report regarding the responsibility of a commander of a unit that manned an Israel Defense Force post for the death of a girl from shooting. The petitioner sued the journalist and the broadcaster for defamation after he had been exonerated. The petition centers on the determination that the report dealt with an issue of significant public interest, and that the conditions of good faith were fulfilled, including meeting the criteria of responsible and cautious journalism.[27]

The main decision was given by Court President Asher Grunis. Rejecting the petition, Grunis determined that the publication was defamatory and did not reflect truth based on the evidence presented. Based on section 15(2) of the Law, however, Grunis recognized a defense of “protection of responsible journalism.” This protection will only apply to publications made in good faith, based on an obligation to publish, without malicious intent, and in accordance with the standard of responsible, cautious and fair journalism. In order to meet this standard, Grunis determined, the publisher will be required to take steps to prevent unnecessary harm to the publication object.[28]

The defense of protection of responsible journalism, according to Grunis, is not limited to professional journalists. He notes as follows:

From a practical point of view, it is difficult to define the term ”journalist“ in a sweeping and exhaustive manner, especially in the present era, in which the characteristics and the spheres of activity of journalism have expanded beyond the traditional media. As stated, it is doubtful whether it is desirable to do so in the context before us.[29]

b. Journalism Silencing Law Defense

A 2018 decision by the Tel Aviv District Court rejected a lower court decision in a defamation suit filed by Prime Minister Netanyahu and his wife against the appellant, a journalist and novelist, in connection with publication of two posts on his Facebook page. In the first post the appellant described as “an event that happened” an event where the prime minister’s convoy which included “four black vehicles and more and more security guards and vehicles” stopped and the Prime Minister supposedly exited shouting because of his wife’s demands. The second post contained a demeaning caricature of the Prime Minister in the middle of the road.[30]

Rejecting the appeal District Court Judge Avigail Cohen held that Israeli law did not recognize the term “silencing suit.” Previous attempts to pass legislation in this regard, she noted, have failed (one bill’s explanatory notes stated that it was inspired by the US ANTI SLAPP [Strategic Lawsuit against Public Participation] legislation adopted in 25 states). The circumstances of the case, however, she noted, would not qualify for a silencing suit defense, even if such a defense were recognized. This is because it centered on a publication that purported to be factual, not an expression of criticism or an opinion.

Under the Defamation Law, proving that a publication was true or that it was made in good faith may serve as a defense against liability. In this case, however, the truthfulness of the publication had not been proved. As the content that was the subject of the suit was factual rather than an expression of opinion or criticism, the judge determined, the appellant could not enjoy a defense of good faith.[31]

The Court held as follows:

In the notice of appeal, the Appellant stated that he wishes to end the tenure of the Plaintiff as Prime Minister of Israel and that this wish cannot be an "intent to harm" . . .. Except that for the purpose of awarding compensation . . . , we are definitely dealing with a wish that shows that there is a desire to harm the plaintiff - in his public office . . .

It is a democratic country and one can criticize a prime minister. It is also possible to want to change the government and the court does not serve as a thoughts police.

However, when we deal with defamation, we examine for the purpose of determining compensation whether the publication was intended to harm the subject of the publication, and indeed, on the basis of the language of the publication and the testimonies of the parties, the factual conclusion that there is intent to harm is the correct conclusion.[32]

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III. Availability of Mechanism to Control Foreign Broadcasters Working on Behalf of Foreign Governments

Israeli law requires television and radio broadcasting companies to be registered in Israel and subjects their operations to licensing requirements. Israeli television and radio broadcasters working on behalf of or who receive funding from foreign governments are subject to disclosure requirements.

There appear to be no restrictions on content disseminated by social media such as Yahoo, Facebook, Twitter, etc.

A. Registration Requirements for Television and Radio Broadcasting Corporations

In accordance with the Law for the Second Authority for TV and Radio (Authority), 5790-1990, broadcasters are required to obtain a license.[33] The Authority is a corporate body that is subject to audit by the State Comptroller.[34]  A license will be granted in a public tender published by the Authority.[35] Applicants must, among other requirements, be a corporation registered in Israel. The Law requires that the ability to direct the corporation’s operation and at least twenty-six percent of all the means of its control should be with Israeli citizens and residents of Israel or by registered corporations in Israel.[36]

The Authority may disqualify an applicant if, in its opinion, granting the applicant a license may be contrary to the public interest or constitute a risk to state security. An applicant may also be disqualified if, in the Authority’s opinion, the applicant is a party or a representative of a party or of another body that may use the broadcasts to promote the special objectives of such a party or body.[37]

B. Duty to Disclose Support by a Foreign Political Entity

Under the Duty of Disclosure [for a Body] Supported by a Foreign Political Entity 5771-2011 Law (Disclosure Law), foreign political entities (FPEs) are subject to disclosure requirements. FPEs consist of the Palestinian Authority and foreign countries and organizations.[38]

The Disclosure requirements also apply to a corporation established by an FPEs law or one in which an FPE has more than half of a certain type of control in the corporation or which was appointed by the FPE to act on its behalf. A foreign corporation whose financial report for the last fiscal year indicates it was funded mainly by bodies specified above is also subject to disclosure requirements.[39]

Any media company receiving funding directly from FPEs, or indirectly from amutot (nonprofit organizations) paid by FPEs, will be subject to quarterly financial reporting requirements as to the identity of donors, the amount and objectives of the donations, and the conditions for their receipt.[40] The information submitted to the registrar of amutot will be published on the website of the Ministry of Justice and by the funded body if it has a website, and in any other way selected by the Registrar. Additionally, an amuta that received a donation from a foreign entity for the purpose of funding a special advertising campaign must publish, as part of its campaign, the fact that it has received the donation.[41]

Violation of the disclosure requirements provided under the Disclosure Law carry a fine of ILS 29,200 (about US$8,067).[42]

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Prepared by
Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020