A review of the recent Israeli “Porno Bill”
By Amir Cooper Esq.*
How to pass State-mandated censorship in two simple steps?
First, award any such legislation proposal a catchy name. Second, state that the governmental restrictions are grounded in the need to protect the public, preferably children. If implemented correctly, this simple two-step program may be the difference between having your bill labeled as “disproportionate censorship” or “necessary protection of public interests.”
A catchy name is important. The title should target a clear and present danger so when you hear about the bill for the first time it immediately gets your support. For instance, a government would be wise to name a proposed restriction of online content by law the “Porno Bill.” After all, nobody wants to be the person who cheers for easy access to porn for 8-year olds. After the catchy name is set in place, it would be even wiser to add an explanatory note to the Bill stipulating that the object and purpose of it is to protect children. To be sure, the protection of children is a good and worthy cause and a valid rationale for many acts of legislation. However one must be mindful that not every legislation professedly aiming at the protection of children, in fact seeks to achieve that purpose.
So what if the Bill uses wide open-ended terminology, which potentially encompasses a wide array of content having nothing to do with child pornography, pornography more generally, or even children. As long as children are potentially protected from something and the proposed law is properly marketed to the public, the harm may go unnoticed.
This is in fact the strategy adopted by some Western Countries when introducing new censorship proposals.
Before passing the UK Audiovisual Media Services Regulations in 2014, which requires online porn to adhere to the same guidelines laid out for DVD sex shop-type porn by the British Board of Film Censors (BBFC), the UK Government considered a State-mandated restriction on online pornography. Under the considered (but not adopted) route, certain online contents would be restricted, by default, by Internet Service Providers (ISP). Put differently, it would have been up to customers to opt out from Internet filtering to receive access to adult content.
When this option was considered, then PM David Cameron met with ISPs to explore possible State-mandated restrictions on online content, and opened the issue for public consultation and discussion. He explained that the Government’s aim is to “fully explore every option that might help make children safer – including whether Internet filters should be switched on as the default, so that adult content is blocked unless you decide otherwise.” Then shadow culture secretary, Harriet Harman, also went on to say that “keeping children safe online is a real problem and a concern for millions of parents.”
Similarly, from late 2007 until early November 2012, the Australian Federal Labor Government pushed for a highly controversial State-mandated scheme whereby ISPs would be obliged to block adults’ access to online content. Any such blocked content would have been stipulated in list compiled by a governmental instrumentality, and according to what the Australian Government deems unsuitable. Here too, a mandatory compulsory filtering was proposed, and described as merely “an added step that can help protect children.” This proposal was softened and mostly withdrawn.
Most recently, on 30 October 2016, the Israeli Government’s Committee on Legislation passed a resolution to support the legislation of the “Porno Bill.” Much like the earlier failed attempts worldwide, the explanatory note of the Porno Bill, inter alia, elucidated that, aside from the positive aspect of the Internet, it also contains materials “which may hurt and jeopardize the public and mostly children.” Accordingly, the Bill proposed a content filtering mechanism to shield children. Further, the Bill was sponsored by Parliament Member (MK) Moalem-Refaeli, who stressed, “the average age that children are exposed to pornographic sites is 8,” and she does not “think it is right to leave things like that.” Indeed, at least professedly, these arguments merit positive consideration.
But MK Moalem-Refaeli also justified the Bill and its predicating rationale by stating that: “as parliamentarians and public leaders, we must put up road signs that say ‘this is how we think society should behave.” And this is a far more problematic statement, which emphasizes much of the concern this type of bills raise.
What is the “Porno Bill” and how did it propose to protect children?
The Porno Bill reflects the most recent attempt by Israeli politicians to limit access to the Internet; six such attempts were foiled and/or withdrawn in the past few years. By and large, a decision of the Committee on Legislation, usually, ensures a bill with an automatic majority support in the Knesset, the Israeli Parliament, making this legislative iteration somewhat unique.
Under its catchy moniker, the proposed Porno Bill placed responsibility upon the Minister of Communication (currently Prime Minister Benjamin Netanyahu) to provide guidelines that define ‘pornographic’ and other ‘offensive’ content. The ISPs, in turn, were required, under the proposed Porno Bill, to limit access to such pornographic and offensive content as a default. Further, under the original Bill, an Internet user who would be interested in accessing any such prohibited content will be required to explicitly request to opt-out of this arrangement (i.e., restriction) by formally informing its ISP of its interest in accessing prohibited content.
Ostensibly, the Porno Bill enjoyed a relatively wide support from both the left and the right wings. Amongst the supporters of the Bill, one would find secular and religious representatives, Arab and Jewish KMs, men and women, and Coalition and Opposition members.
But the devil is in the details. The decision on what constitutes ‘pornographic’ and/or ‘offensive’ content, and the identity of the person that gets to make that decision, threatens to turn the Bill, originally meant to protect children from exposure to harmful content, into a tool for government-sanctioned censorship. In the Israeli society, a split society with exceedingly strong support for conservative ideas, the answers to these questions can be terrifying for some.
Among the KMs that have explicitly attached their support to the Porno Bill one may find two members of ultra-orthodox Parties. The two subscribe to the relatively new extreme religious interpretation that men are not allowed to hear women singing. One of these KMs is known for imploring men to refuse military service, for soldiers face the risk of hearing women singing in ceremonies. Thus, for him, the mere sound of a woman qualifies as offensive content. The Porno Bill was also embraced by KMs who have declared in the past that same-sex marriages lead to the “destruction” the world and the integrity of our society. Another KM who pushed for the Bill, had, prior to his parliamentary position, paraded livestock and dogs in Jerusalem, equating them to the marchers in the Israeli gay pride parade. It stands to reason that for those who hold similar views, the mere sight of a same-sex couple holding hands is offensive.
As religious and conservative – and some would say bigoted – views gain traction in Israel many Israelis fear that providing their Government with the power to define obscenity and limit access to offensive contents will result in excessive limitation on speech in the Internet. A power that was given to the government, as reality has it, could rarely be taken back, especially when future politicians that will attempt to reverse censorship laws risk being labeled as threatening the wellbeing and safety of children.
The Porno Bill, as described above, left Internet users with the option to opt-out of the Bill’s restrictions. The opt-out mechanism should presumably mitigate the fear from government censorship by providing a more balanced approach. It was designated to offer a softer alternative to pure filtering of pornographic materials or strict prohibitions, as those adopted in certain countries (see the OpenNet Initiative for a global Internet survey).
Under the Bill, any person that would contact its ISP and requests to opt-out will be allowed unrestricted access to the interest. To comply with the Bill, the ISP would presumably be required to maintain a list of customers that formally requested access to unfiltered content, and make sure that them, and only them, are provided with such content; so far so good. But one must wonder: what would become of this list?
Just like the explanatory note of the Bill provides, “during the last decades the Internet turned the world into a global village, granting the public easy access to different kinds of information.” Thus, and precisely for the reasons underscoring the Bill, in today’s reality it seems that the question is not “would the opt-out list be provided to third parties?” nor is it a question of “would the list be leaked?” It is rather a question of “when.” And when this “Porno List” – it seems only logical to refer to the list as such, after all a catchy name is important – finds its way to the Internet, how would you explain the inclusion of your name in the list in, say, a job interview? The very threat that an ISP’s “black list” would leak would potentially deter people from waiving the default Internet screening, even if Government eventually defines “pornography” way too broadly.
For this reason, to some the opt-out mechanism seemed to be nothing more than an attempt to cloak government censorship with undue legitimacy.
The outcome and what remains to be seen
The public backlash was extensive and immediate, and before long the Porno Bill was the subject of extensive criticism in the on-line media and social networks. Like the UK and Australian proposal, the Porno Bill, notwithstanding its catchy name, was altered at an astonishing speed. Under the revised Bill, which was passed on 2 November 2016 in a preliminary reading (50:16:0), in lieu of the default censorship of offensive content and the opt-out mechanism, ISPs are obliged to contact their consumers and inform them via text message and email of an option to filter (free of charge) offensive content and offensive sites. This is not a significant change from current law that requires ISPs to notify Internet users of filtering options via mail.
Liberal proponents of free speech have joyfully announced the Internet to be yet again safe from governmental control; at least until the next time a politician is disturbed by offensive content. Indeed, MK Moalem-Refaeli rejected the criticisms against it saying that she “will continue fighting as the web is filled with content that we would all like to shield our children and youth from. Today it is easier to be consume porn than to by a Popsicle in a store.” Similarly MK Eitan Cabel, an outspoken member of the Opposition, another co-signor of the original Porno Bill, continued to express support for the proposed censorship. He explained that “as someone who was exposed to the issue in the educational system, I stand totally behind the bill.” As for the possible infringement of right and invasion of privacy by the Porno Bill, he deemed it “proportionate considering the risks to children, not to mention the exploitation of women.”
As ISPs and Internet companies, such as Facebook, struggle to self-regulate, governments seem to be increasingly eager to step in to fill the void by assuming more power. And while the rhetoric of protecting children is employed in the service of censorship, similar bills will resurface, as put it MK Karin Elharrar, a member of an Opposition party, who signed the original Porno Bill: “The truth is that when I signed it, it was out of a desire to protect children. But I must admit that upon reading it in depth, there were a lot of problems with it.”
* The views presented herein are exclusively those of the author and do not reflect the views of the affiliated law firm and/or its clients.