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Israel: Central Elections Committee Orders Ministry to Remove Misleading Content from Ministry’s Website

(Feb. 8, 2019) On January 20, 2019, the Central Elections Committee, headed by chairman Hanan Melcer, deputy president of the Supreme Court, accepted a petition filed by a private attorney against the Minister of Education, Naftali Benet, and the Ministry of Education. The petitioner requested an injunction to stop the dissemination of the Ministry’s allegedly misleading message that the Minister had been successful in reducing classroom size throughout Israel during his tenure. ( Election Case 3/21 Shahar Ben Meir v. Naftali Benet, Minister of Education et al. , The Central Elections Committee for the 21st Knesset, Central Elections Committee website (in Hebrew).)
Production and Dissemination of Election Propaganda
The broadcasting of election messages in Israel is governed by the Elections (Modes of Propaganda) Law, 5719-1959 (the Propaganda Law). Section 2A of the Propaganda Law prohibits the use of public assets in connection with election propaganda. (Elections (Modes of Propaganda) Law, 5719-1959, SEFER HAHUKIM (BOOK OF LAWS, official gazette) 5719 No. 284 p. 137, as amended .)
Melcer recognized that the message constituted election propaganda within the meaning of the Propaganda Law. ( Id . para. 20.) He based his decision on an examination of the message’s “dominant objective” as reflected not only by the external circumstances of its publication but also by its substance. He held that
[t]he accuracy of the information presented in the message, biased editing of material data, [and] the omission of details—which may affect the content presented in the message[—] may also testify to the propaganda purpose that lies at the basis of the message, and cast doubt on attempts to present it as useful [and] informative to the public. ( Id . para . 29 (all translations by author).)
The publication of such a message, according to Melcer, violates the constitutional foundation for equality among candidates that is required under election law as it gives undue advantage to the incumbent. This inequality, Melcer emphasized, was
[r]einforced by the phenomenon of “false news” (fake news), which has gained momentum in recent years. The need for messages to be accurate and devoid of any bias or political touch constitutes another reason for imposing a duty on the public authority to adhere to the truth and accuracy in every detail given on its behalf to the public. ( Id. para. 30.)
In Melcer’s opinion, the danger of disseminating false information justifies a sharpening of the guidelines and directives relating to government publications to ensure that the “competent authority will fulfill its function only within the framework of its authority and will not obstruct public officials [in their activities] in violation of … [election and government service laws].” ( Id. para. 32.)
Melcer held that any message intended for production or dissemination by a controlled body (generally state and local government and bodies receiving governmental funding) should always and particularly during election periods be examined by the body’s legal adviser to determine whether the message is accurate and complies with requirements under the Propaganda Law. Publications produced or disseminated without the approval of the legal adviser should be deemed in violation of the Propaganda Law’s prohibition on using public assets in connection with elections. ( Id. )
The petition was accepted and the respondents were ordered to refrain from publishing and to remove the broadcast from any internet sites under their control. The Ministry was also ordered to remove the name of the Minister from any references to the Ministry’s programs. ( Id. para. 39.)

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