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Israel Supreme Court Issues Landmark Decision on Freedom of Expression on Social Media Platforms

Are public officials entitled to remove and block users from their social media accounts? What are the boundaries of the freedom of expression in the digital space and who has the responsibility to define and enforce them? These are questions with important repercussions for any democratic society that values the right to freedom of expression and open public discourse.  In Israel, these questions were recently addressed by the Supreme Court in a landmark case, 7659/22 Rubinstein vs. Kunik, which considered a substantive appeal filed by the Clinic on Human Rights in Cyberspace at Hebrew University and the Israel Internet Association on November 13, 2022.

On December 21, 2023, the Supreme Court rendered its precedential decision in response to the appeal, establishing the public status of public officials’ social media accounts and their unique role as a platform for communication and public discourse (as opposed to static websites). The decision provides a novel constitutional framework for evaluating the degree to which the blocking of private individuals by public officials infringes upon freedom of expression, and acknowledges the fact that blocking or removing content effectively shapes public discourse by setting boundaries on freedom of expression and defining what is permissible and what is forbidden – without necessarily adhering to the defined boundaries of the law.

Supreme Court Decision 7659/22 Rubinstein vs. Kunik – Official full text (Hebrew)

Supreme Court Decision 7659/22 Rubinstein vs. KunikEnglish full text by ISOC-IL

Case Background and the Public Issues Involved

Ran Kunik, the Mayor of Givatayim, has been operating a Twitter account in recent years where he shares information about municipal matters concerning education, culture, health, housing, and more. The account clearly presents Kunik as the Mayor of Givatayim and features a photograph of him standing in his office with the Israeli flag and the city flag proudly displayed behind him. Kunik makes himself available to city residents and responds quickly to questions and requests directed at him through his Twitter account.

On May 8, 2020, Almog Rubinstein, a resident of Givatayim, tweeted about a traffic accident that had taken place in the city. In his tweet, he wrote, “A pedestrian was killed when a car drove onto the sidewalk in Givatayim… It is not uncommon for Ran Kunik and the Israel Police to encourage this daily…”, and tagged the Twitter account of Givatayim’s mayor, Kunik. The mayor replied to the tweet, after which he chose to block Rubinstein’s account.

As a consequence, Rubinstein filed an appeal with the district court, petitioning for a court order requiring Mayor Kunik to rescind the block. The court was also asked to establish reasonable terms of use for social media accounts used by public officials, even if they are not official government accounts or funded using public resources. In his appeal, Rubinstein argued that Kunik’s Twitter account is the public account of a city mayor, and Kunik’s behavior is therefore subject to the principles of public law. Rubinstein further claimed that Kunik’s actions constituted an affront to human rights,  including the rights to freedom of expression and information.

Given the case’s public significance, the Attorney General was called upon to state his opinion on the matter. The Attorney General stated that when public officials use accounts for the fulfillment of their public duty, in the broad sense of the term, their actions should be viewed as subject to the principles of public law. The Attorney General was of the opinion that even if a public official shares personal content on the account, and not exclusively material related to his or her broadly defined public duty, there are still situations where principles of public law would be applicable.

Despite the above, the District Court ruled that a public official has the right to block users’ responses when the account in question is a private one. Though the Court explicitly acknowledged that an account could be considered public even if it does not receive funding from official authorities, it determined that the Givatayim mayor’s account is considered private, without supplying adequate justification. Nevertheless, the court recognized that the existing law is unclear and urged the legislature to establish a legal framework to regulate this matter, acknowledging its “significant and broad ramifications.” The District Court’s final ruling was that Mr. Kunik’s account is private, he is free to manage it at his discretion, and therefore the court did not order him to rescind the block on Rubinstein. The court also concluded that Rubinstein has at his disposal various other digital platforms on which he can express himself, apart from Twitter.

Failure to overturn the District Court’s ruling could have carried dramatic implications for how public discourse is conducted on social media platforms, affecting not only the parties involved but the public at large. It would have allowed elected officials to essentially ignore the rules of public law where blocking commenters and removing comments is concerned, as long as the account is not funded by a governmental authority. This would leave the general public without legal tools to protect the rights they are entitled to, and would fatally injure the ability to carry on healthy public discourse on public and local affairs.

The Supreme Court’s ruling is therefore welcome news, and sets important legal precedent for the protection of users’ rights to freedom of information and expression on social media, while pointing to the immediate need for organized regulation on this matter.