The most recent elections for Prime Minister gave The Chairman of the Elections Committee, Supreme Court Judge Mishal Hashin, more than one opportunity to express his views about the Internet. His central decision, on the connection between the freedom of expression and the Internet, was reviewed at length in this column about two weeks ago. It now transpires that the day before the elections were held Judge Hashin managed to consider and decide another issue of indirect relevance to the Internet - the publication of election surveys on election day (TBM 23/2001, One Israel v. Ma'ariv Internet Ltd et al, not yet published).

Ma'ariv Internet (the Internet branch of a daily newspaper) was seeking to hold two surveys on election day: one, an internal survey amongst visitors to the Ma'ariv Internet site, who had registered at the site by 4th February 2001; and the other - a telephone survey conducted by the Rafi Smith Institute. This second survey would embrace between 800 and 3,000 people and be conducted on the basis of a representative statistical sample. The results of both surveys were to be published at 16:00 hours on election day - that is to say, whilst the polls were still open and voting was at its height - on electronic, outdoor screens in one of the centres of Ramat Gan (a crowded city near Tel-Aviv).

In the decision, Judge Hashin held that an Internet survey is unreliable by its very nature: "People who take part in it have sought in advance to participate in it and all agree that there neither was nor is any control over the identity of those people. It is further agreed that the participants in the survey do not constitute a proper representative sample. Moreover, there was no control by Ma'ariv to prevent impersonation or the same person seeking to participate in the survey several times by various means. In other words, an Internet survey does not give a genuine statistical picture, nor does it purport to do so. Indeed, the anonymity of the people taking part in the Internet survey, by its very nature, makes it impossible to predict the election results". Such being the case, Ma'ariv's assurance that it would note alongside the results that the survey was not representative did not dispel the Judge's concern that the survey would have an influence, if only on some of those seeing it.

The Judge held that the publication of election surveys during election day might have a destructive psychological effect on some voters and an extrinsic influence on the satisfactory election process: "The direct effect of publishing an election day survey on the minds of voters could give the party heads wayward ideas with regard to various possibilities of manipulation", held Judge Hashin. "Needless to say, the imagination of a party trouble-maker could blossom on finding this improper opportunity... We cannot ignore the concern that chaos would prevail".

In the Judge's opinion, an election survey is "election propaganda" within the meaning of the Elections Laws since the intention of the person publishing it is irrelevant to the nature of the propaganda. The question is how will the reasonable man construe the publication and what will be the effect of the publication on the ordinary viewer or listener. Having so held, he hesitates a moment in his opinion as to whether an outdoor, electronic screen in the heart of Ramat Gan is to be construed as a television, within the meaning of the Elections Law, but finds no difficulty answering in the affirmative. He therefore ordered that publishing the Internet survey on an outdoor screen constitutes prohibited propaganda on election day and also an interference with election propaganda.

The following statement is of particular interest and demonstrates that the mutual relationship between the Internet and the electronic media is apparent to the Court: "And if it is argued that the publication of surveys on the Internet is not per se to be viewed as election propaganda since it is not addressed to the public at large - unlike radio and television - we would answer that the Internet, in the circumstances hereof, does not merely serve itself but it also acts as a medium for advertising on radio, television and the other media... We can clearly see that Ma'ariv's Internet site is merely to serve as a route to the electronic screen in Ramat Gan and to the ordinary media of radio and television".

In the circumstances, an order was awarded prohibiting Ma'ariv Internet from publishing the results of its surveys on the screen in Ramat Gan or in any other medium before the close of the polls on election day.

Translated by Word Power