Israel’s Insult Law: Affront to Free Speech?

Prime Minister Stephen Harper has famously lauded Israel as an island of freedom and democracy in the Middle East. Yet Israelis do not enjoy the same democratic freedoms as Canadians and face restrictions on free speech just like their Arab neighbors.

Unless they choose their words carefully, Israelis who grumble about those in authority could get charged with “insulting a civil servant.”

Section 288 of the Israeli Penal Law, a vestige of the British Mandate of Palestine, which preceded the 1948 establishment of Israel, provides that anyone who by “gesture, word or deed” insults a civil servant in connection with his duties is liable to six months in jail and a fine of up to 14,400 shekels (about $4,600). “Civil servant” includes virtually anyone working for government.

Laws prohibiting insults against civil servants exist in more than a dozen other countries including Lebanon, Iraq, and Iran (where a conviction could net you 74 lashes), according to a 2012 report by Austria-based journalist Patti McCracken.

Insults against police

From January 2010, to June 2013, 143 charges of insulting a civil servant were laid throughout Israel, of which 37 resulted in convictions, according to statistics cited in the Knesset, Israel’s parliament. Most charges involved insults against police and low-ranking civil servants. Typically they complement other charges such as utter threats, assault police, obstruct police or obstruct civil servant.

Charges have been laid under the section against people calling police and soldiers “Nazis.” (The Israeli government is currently considering a law that would ban any “inappropriate” use of the word “Nazi.”)

Occasionally, however, charges are laid for insults against senior public figures.

In one such case, currently under appeal, Elitzur Segal was convicted of maligning a former chief rabbi of the Israel Defence Forces (IDF). Mr. Segal, a West Bank settler, wrote on a website that Rabbi Israel Weiss was “an accomplice” to the murder of Israeli soldiers because, while serving as the IDF chief rabbi, he had acquiesced in an army policy to avoid harming Arab civilians during military operations. The policy, said Segal, had resulted in troops’ deaths in the West Bank.

In finding Segal guilty in December 2012, the Jerusalem Magistrates Court said the insults could undermine the institution of the IDF chief rabbi. Segal was given a six-month suspended sentence, fined 3,000 shekels (about $960) and ordered to pay Rabbi Weiss 4,000 shekels (about $1,275).

Law “shields failures”

Commenting on the case, Israeli legal analyst Moshe Negbi complains that the insult law shields the failures of government officials and Knesset members from exposure by a free press. “How can one denounce their actions without insulting them?” he asks in a recent article in the Seventh Eye, an online publication of the Israel Institute for Democracy. “Is it even possible to write that one should fire or dismiss a public official for corruption or incompetence without insulting him?”

Negbi also grouses that Section 288 violates the principle of equality before the law. If you disparage a regular citizen, he notes, you can defend yourself in a libel suit by relying on the truth of your remarks. But heap scorn on a civil servant and you can be convicted for insults even if your comments are true.

Proving guilt not easy

Proving guilt, however, is not easy. The Israeli Supreme Court in 2011 held that to give effect to the right to free speech, the law must be narrowly construed. The offence is made out only in “extreme cases” of “serious injury” to the “dignity of the civil servant.” Further, the prosecution must prove with “near certainty” serious harm to the performance of a public duty. Verbal abuse alone does not constitute an offence, says the ruling.

Applying these criteria, the Supreme Court recently overturned the conviction of Zvi Cohen who on being requested to identify himself at a checkpoint near Haifa had called a police officer “a retard” and a “pisser.”

Knesset backs insult law

The insult law has no shortage of supporters. In a recent blog, one insisted that it’s needed because of the low level of respect that Israelis accord their civil servants – “at times beneath the level of the Dead Sea.”

Most Knesset members seem to agree the insult law is necessary: last July they defeated by a wide margin an opposition bill to repeal the law.