Israeli Supreme Court Authorizes the Self-Regulatory Content Takedown Arrangement between the Gov’t and Online Platforms

By‎ Adv. Haim Ravia

Partner, Chair of the Cyber, Privacy & Copyright Group at Pearl Cohen Zedek Latzer Baratz

By‎ Adv. Dotan Hammer

Partner at the Cyber, Privacy & Copyright Group, Pearl Cohen Zedek Latzer Baratz

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The Israeli Supreme Court has scrutinized and authorized the unofficial arrangement for the removal of harmful content published on online platforms. The arrangement was voluntarily established between the Israeli Ministry of Justice’s Cyber Unit and platforms such as Facebook but is not based on any statutory authority.

The Court’s judgment was delivered on a petition filed by the Association for Civil Rights in Israel (ACRI) and Adalah, the Legal Center for Arab Minority Rights in Israel who argued that the Cyber Unit operates an “Alternative Enforcement” mechanism which subverts the right to due process and unlawfully restricts freedom of expression on social networks. The Cyber Unit objected to the petition, arguing that the takedown requests submitted to the platforms focus mainly on egregious content such as incitement to terror, content endangering child safety, etc.

The court authorized Cyber Unit’s self-regulatory arrangement on several grounds. First, the petitioners laid insufficient evidence to establish the infringement of civil rights, particularly given that the content taken down was published by Artificial Intelligence bots (i.e., algorithms) which are not humans eligible for civil rights. Second, the Cyber Unit’s takedown requests are not official state action that encroaches on civil rights because the private digital platform actors are the ones that de facto decide to remove the content, even though some of the takedown requests are only marginally lawful The Israeli Supreme Court also found that the arrangement accomplishes important objectives of national security and public order.

The Supreme Court recognized the concerns raised regarding how the Cyber Unit influences the platforms’ judgment regarding content takedowns and the resulting risk that the digital platforms are the Cyber Unit’s long-arm due to their interests in maintaining proper relations with the government. The Court characterized the Cyber Unit’s activities as “Concealed Governmental Activities” and called on the legislature to consider enacting legislation that would regularize the self-regulatory arrangement.

CLICK HERE to read the Israeli Supreme Court’s decision in Adalah et al v. Israeli Ministry of Justice’s Cyber Unit et al (in Hebrew).