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Governmental Regulation of the Press: A Study of Israel's Press Ordinance* Part II

Published online by Cambridge University Press:  12 February 2016

Pnina Lahav
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The British strategy to tame the Palestine press was to be implemented through a sophisticated masterplan. The Press Bureau was reorganized and explicitly directed to woo journalists and thereby achieve press cooperation. Simultaneously, the iron fist of the Press Ordinance was cast, to be used in case gentle handling failed to bear the desired cooperation.

The British analyzed the pitfalls on the road to cooperation correctly. As early as 1932 the Press Officer observed that the “deep-seated antipathy of Arabs and Jews as represented by their respective presses” and “the fundamental opposition of all Arab press to the Mandate” might undermine the entire plan. But even this sober analysis could not foresee the dimensions of the coming crisis.

As Jewish immigration to Palestine and the economic prosperity of the country increased, the Arabs anxiety about their political future in Palestine intensified. In 1936, Arab tensions exploded in the Arab rebellion. Widespread terror, arson and general strikes engulfed the country, and this time they were directed not only against the Jews but also against the British Government. Under these circumstances, the British came to the conclusion that they could no longer support the idea of a Jewish National Home in Palestine. In 1939, the White Paper, expressing a shift in policy, was issued. His Majesty's Government rejected the idea that Palestine should become a Jewish State and announced that hereinafter, Jewish immigration to Palestine would be limited and Jewish purchase of Arab lands prohibited.

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Israel Law Review , Volume 13 , Issue 4 , October 1978 , pp. 489 - 524
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1978

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References

1 Report to the High Commissioner by S. H. Perowne, then Press Officer, dated 22 Oct. 1932; Public Records Office, C.O. 733/221 file 97168 of 1932 (Palestine, Original Correspondence).

2 For a general description of these events see A Survey of Palestine, Prepared by the Anglo-American Committee of Inquiry 1945–1946 (Government Printer, Palestine) and Laqueur, W., A History of Zionism (N.Y., Holt, Rinehart & Winston, 1972) 511–527.Google Scholar

3 Cmnd. 3479 (1937): pp. 193–194: “In our opinion the penalties provided by this Ordinance and the action taken under it are insufficient to cope with an aggravated evil like the Palestine Press. Several newspapers were suspended during our residence in Palestine, yet inflammatory articles which would not have been tolerated in most other countries continued to appear. One witness declared that suspension was really a source of profit to the publishers. It saved them expense; gave the newspaper wide advertisement; and when in due course it reappeared, ensured them an increased circulation. We were told that if a newspaper were closed down it would reappear under another name, and it was not possible under the law to attach a defaulting press.

We would recommend the adoption of a Press Ordinance providing for a cash deposit which can be confiscated. We would include in the penalties imprisonment as well as fine and, in the case of a repetition of the offence, the forfeiture of the press and its material to Government. The risk of driving sedition underground or of allowing wild rumours to spread is, we consider, less in Palestine than the certainty of mischief caused by the daily output of intemperate incitement. ‘The trouble in the North, and in the Haifa area particularly’, we were told, ‘was on account of the fact that the Press was allowed so much rope … The strike in Haifa would have stopped, or would never have started, if the Press had not been allowed to criticize Haifa's actions’.”

4 Infra n. 40.

5 (1978) 13 Is.L.R. 230 (hereafter referred to as Part I).

6 With the exception of books and one-time pamphlets.

7 Blackstone, , Commentaries IV, 151Google Scholar, discussing the doctrine against prior restraint. For a discussion of British Colonial practice see Sommerland, E.L., The Press in Developing Countries (Sydney U. Press, 1966), 144.Google Scholar

8 See Peel Report, supra n. 3. Notice also Lord Snell's dissenting opinion in the Shaw Report, Cmnd. 3530 (1930) at 181: “In order to stop or to keep under control incitement… the Palestine Government should consider the desirability of making illegal the appointment of dummy “responsible editors” who suffer, if need be, for the indiscretions of the chief editors who are really responsible for the conduct of the papers”.

9 The newspapers were aware of this possibility. In their memoranda, the Arab editors and the Palestine Bulletin protested the plan to replace declaration with a permit, noting that the “imposition of licensing at present violates acquired property rights”.

10 However, no fee was required from existing newspapers: Press (Fees) Rules, 19 Jan. 1933, Drayton, , The Laws of Palestine (1933) vol. III, p. 2021, § 3.Google Scholar

11 Press Ordinance 1933, (Drayton, vol. II, p. 1214), § 4 provided that :“No newspaper shall be printed or published in Palestine unless the proprietor thereof shall have previously obtained a permit under the hand of the district commissioner in the form prescribed in the first Schedule to this Ordinance”.

§2 defined “newspaper” as: “any publication containing news, intelligence, reports of occurrences, or any remarks, observations or comments, in relation to such news, intelligence or occurrences, or to any other matter of public interest, printed in any language and published in Palestine for sale or free distribution at regular or irregular intervals, but does not include any publication published by or for the Government of Palestine”;

and “printing press” as: “every machine and apparatus adapted and apparently intended for reproducing words, pictures or signs on paper, cloth or other similar material, but does not include any apparatus intended and used for reproducing plans only or any purely photographic apparatus intended and used for reproducing photographs only, or any typewriter, or any other portable machine or apparatus, intended and used for the reproduction of words or signs, when such machine or apparatus is used exclusively for the reproduction of bona fide commercial or private documents”.

The obligation to exhibit the permit appears in §31. The control over newspapers was perfected by §20 which allowed the High Commissioner to censor the import of newspapers into Palestine.

12 §3 Pr. Ord.

13 Public Records Office, C.O. 733/220 Draft of Press Bill Ene. III (Palestine, Original Correspondence (hereafter cited as Enc. III).

14 §5(6) Pr. Ord.

15 §22 Pr. Ord.

16 Enc. III supra n. 13.

17 §5(1) (a) and (b) provided: “No permit shall be granted unless and until the person applying therefor —

(a) delivers to the district commissioner a declaration by him on oath … substantiating the following matters:—

(i) the name, age, place of residence, postal address and nationality of the applicant; (ii) his ownership of the newspaper; (iii) the name, place of residence and postal address of the editor; (iv) the title of the newspaper; (v) the place of editing and the place of printing of the newspaper; (vi) the subjects of which the newspaper will treat; (vii) the language or languages in which the newspaper will be printed; (viii) the frequency of publication of the newspaper; (ix) that he is not the proprietor or editor of a newspaper of which the publication is suspended under section 19 or prohibited absolutely or conditionally under section 23 (1) (a); (x) that he is not a person against whom an order under section 23 (1) (b) is in force; and (xi) that the printing press at which the newspaper is to be printed is not the subject of an order under section 23 (1) (c);

(6) delivers to the district commissioner a declaration by the editor on oath in the form and containing the evidence prescribed in the first Schedule to this Ordinance, substantiating the following matters:—

(i) his name, nationality, place of residence and postal address; (ii) that he has attained the age of twenty five years; (iii) that he has passed the examination known as the Palestine matriculation or such other examination as the Director of Education may recognise to be equivalent thereto; (iv) that he is able to speak, read and write the language in which the newspaper is to be printed; (v) that he is not under any legal incapacity; (vi) that he has never been convicted of an offence in respect of which he has been sentenced by a final judgment to a term of imprisonment of three months or more; (vii) that he is not the proprietor of a newspaper the publication of which is suspended under section 19 or prohibited absolutely or conditionally under section 23 (1) (a); (viii) that he is not a person against whom an order under section 23 (1) (b) is in force; and (ix) that he is not debarred from practising as a legal or medical practitioner by order of any competent authority”. Special arrangements were made when the publisher was a company.

18 §5(c): “delivers to the district commissioner a declaration by him on oath that to the best of his knowledge and belief the statements contained in the declaration referred to in the preceding paragraph are true”.

19 §5(d): “gives and executes a bond … in such an amount and in such form as is prescribed in the second Schedule to this Ordinance, with one or more sureties as may be required and approved by the district commissioner conditioned that the applicant shall pay to the Government of Palestine every penalty which may be imposed upon, or adjudged against, him or the editor of his newspaper upon any conviction for printing or publishing or causing or permitting to be printed or published any seditious or other libel at any time after the execution of such bond and all other penalties whatsoever which may be imposed upon, or adjudged by a court against, him or the editor of his newspaper under the provisions of this Ordinance.”

20 Supra n. 17. Notice that since suspension under §19 is an administrative sanction, the disqualification subsequent to it is tantamount to a thorough neutralization of the judiciary and a gross violation of due process. Notice also that a court conviction under §22 (failure to obtain a permit) could disqualify a person from becoming an editor. This could also be his fate if he had committed any of the other journalistic violations for which the punishment was imprisonment. In its memorandum the Arabic Al-Jamia Al-Islamiyah described these conditions as “a stain that mars legislation”. Press Bill for 1932, Text and Comments, State Archives.

21 Supra n. 17. The voting age in Palestine at the time was 25. (Enc. III, supra n. 13).

22 In their memoranda, the Arab editors and the Palestine Bulletin protested vehemently against this condition. The Jewish orthodox newspapers also raised this point and asked that the alternative of advanced religious education be added. Press Bill for 1932, Text and Comments, State Archives.

23 Supra n. 17. §5(b) (v) (vi) (ix). The requirement of no “legal incapacity” aimed at excluding bankrupts from the position of editor (press memoranda, supra n. 22). Whether disbarred legal or medical practitioners were disqualified is not clear, although a linkage can be seen between law, medicine and journalism as “status professions”. The disqualifications pursuant to a sentence of 3 months imprisonment were harsher than the Cyprus Law and justified by the observation that: “there are certain offences such as obscene publications, grave cases of which ought to disqualify, for which the maximum penalty… is 3 months imprisonment” (Enc. III, supra n. 13). The Arab editors protested these conditions which, they said, treated them like “common criminals” (supra n. 22). The Arab-Israeli conflict was clearly manifest in the editors' reaction to the requirement of nationality. The Arabs urged a condition of Palestinian nationality or at least a requirement that the editor “stayed in the country not less than five years” be imposed, explaining that editors should get familiar with local conditions before they influence public opinion. Behind this suggestion stood the goal of obstructing the Yishuv, which was mostly composed of immigrants, from establishing a press of its own. The British rejected this suggestion but did require information about nationality. Notice also that the requirement of “good character” which appeared in the Cyprus version was omitted here.

24 §5(5): “(5) The High Commissioner may, at his discretion, dispense with any of the requirements of subsection (1) (b) and (d) and may vary or cancel any dispensation granted by him under this subsection in regard to the requirements of subsection (1) (d)”.

The Arab editors and the Palestine Bulletin fiercely criticized this provision. Al-Jamia Al-Islamiyah wrote: such broad discretion is “a thing which is unknown to countries with some respect to themselves” (supra n. 22). Notice however, that the discretion was given to the highest authority in Palestine — the High Commissioner — rather than to the District Commissioner who was in charge of issuing a permit, and that the discretion was withheld from requirements concerning the publisher.

25 E.g., Berl Katznelson, the well known labour leader and editor of Davar had no graduation certificate.

26 §8(2) provided for a fine of 2 pounds for “each … failure to comply”. §9 empowered the Chief Secretary to demand compliance with §8 by notice. Failure to comply after notice entailed a fine of 5 pounds for every day of violation.

27 “All proceedings relating to the making of any declaration referred to in this section shall be deemed to be judicial proceedings within the meaning of sections 116 to 131 of the Criminal Code Ordinance”.

28 §11 (1), (2), (3):

“(1) (i) If for any reason whatsoever the editor of a newspaper shall cease to act as the editor thereof, the proprietor of the newspaper or some person on his behalf shall within seven days of the editor so ceasing to act, deliver to the district commissioner —

(a) a declaration … [another] … has been appointed to act as editor;

(b) a declaration … by the person so appointed … containing the evidence prescribed by section 5(1)(b); and

(c) a declaration that to the best of his knowledge the statements contained in the declaration are true: provided that the district commissioner may … extend such period for further period as he may think fit if the proprietor satisfies him that the incapacitation of the editor is temporary.

(ii) An editor shall be deemed to cease to act as editor if by reason of absence, illness or other cause he is not able personally and effectively to supervise the publication of the newspaper.

(iii) A person acting in the place of an editor who has temporarily ceased to act shall, for all the purposes of this Ordinance, be deemed to be the editor …

(2) If the proprietor intends to leave Palestine either temporarily or permanently, he shall notify his intention in writing to the district commissioner…

(3) If any other change or if any inaccuracy is discovered … in either of the declarations… the proprietor… shall, within seven days of any such change or discovery, notify in writing to the district commissioner the full particulars of such change”;

or §12: “If any person who has made and subscribed the declaration prescribed in section 5 (1)

(a) ceases to be the proprietor of the newspaper named in such declaration, he shall within seven days of his ceasing to be the proprietor deliver to the district commissioner a declaration on oath in the form prescribed in the fourth Schedule to this Ordinance and shall, at the same time, deliver to the district commissioner the permit granted to him under section 5: the district commissioner shall thereupon cancel such permit:…

(b) dies, then his personal representatives or heirs shall, within seven days of his death, deliver to the district commissioner the declaration on oath for which provision is made in paragraph (a) and the deceased's permit; the district commissioner shall thereupon cancel such permit”;

and §16: “If the editor of a newspaper shall cease to be possessed of any of the qualifications required under the provisions of section 5 (1) (b), the permit to issue the newspaper of which he is the editor shall be deemed to be cancelled unless, within fourteen days of such editor ceasing to be so possessed, the proprietor of such newspaper shall appoint a new editor thereof and shall deliver to the district commissioner a declaration under section 5 (1) (b) made by such new editor”.

29 §6: “(1) If any person who has obtained a permit to publish a newspaper shall fail to publish the newspaper within three months from the date of such permit, the permit shall be deemed to be cancelled”.

“(2) The district commissioner shall have power to cancel a permit to publish a newspaper if the proprietor thereof shall fail (otherwise than as a result of an order of the High Commissioner or of a court) to publish —

(a) at least twelve consecutive daily issues (one day of rest each week ordinarily observed by the proprietor and any legal holiday being excepted) in each calendar month, in the case of a daily newspaper;

(b) at least six issues in every two calendar months, in the case of a newspaper (other than a daily newspaper) for which a permit to publish once or more than once weekly has been given;

(c) at least two issues in every four calendar months, in the case of a newspaper (other than a daily newspaper or one falling within paragraph (b) thereof) for which a permit to publish once or more than once monthly has been given;

(d) for a continuous period of more than twelve calendar months, in the case of any other newspaper”.

30 See memorandum from W.J. Fitzgerald dated 25 May 1939 in File, Press Ordinance (1933) State Archives. There the desirability of amending the Pr. Ord. when the tougher Defence (Emergency) Regulations were in power was also explained: “Power to prevent the above abuses is already contained under the Emergency Regulations, but as these may not always be in force, it is considered desirable permanently to amend the substantive law in this respect”.

31 Supra n. 29. This requirement should be appraised in the context of wartime conditions, when paper was rationed and publication would have been made difficult in any case.

32 §5(5) gave the High Commissioner discretion to “vary or cancel” any of these requirements. §13, §14 and §15 regulated the proceedings for execution and custody of the bond, the procedure in case a surety was withdrawn, and the circumstances under which a new bond could be required, respectively.

33 Originally the 150 pounds requirement was very high. This we learn from the fact that in Palestine the British thought they could not adopt the requirement of 200 pounds which appeared in the Cyprus Law since this sum “seemed rather high for a country where journalism cannot be a very remunerative profession”. (Enc. III supra n. 13).

34 The Ord. neither gives discretion to withhold licence once the requirements are met, nor explicitly provides for automatic issuance of permit under such circumstances.

35 Supp. No. 2, P.G. Extraordinary No. 603, 12 June 1936.

36 Cnaan, H., The War of the Press: The Struggle of the Press in Eretz-Israel Against the British Rule (Jerusalem, 1969, in Hebrew) 46.Google Scholar

37 Note by Press Officer to the Chief Secretary dated 10 Oct. 1932 about his conversation with the editor of Al-Jamia Al-Islamiyah: “I said that from time to time certain rather poor stuff, more suitable, I thought, for the Suk than for the leading newspaper had appeared; and that I felt sure that, as one who showed so great an interest in education, he would agree that the standard by which to judge material for publication was whether or not a schoolmaster could without shame read it out to his pupils” (supra n. 1, at 31).

38 § 10 provided that: “(1) The editor shall publish free of charge and textually in the first issue of the newspaper after receipt thereof all official communications sent to him for publication by or on behalf of the High Commissioner.

(2) For the purpose of this section “official communication” means any communication of which the publication is, in the opinion of the High Commissioner, necessary in the public interest and which shall be so certified under his hand.”

§17 provided that: “When the Chief Secretary has reason to believe that any statement containing an allegation of fact, appearing in a newspaper, is incorrect he may request the editor of such newspaper to insert, and the editor shall insert free of charge in the next issue of the newspaper after the receipt of such request, such denial as the Chief Secretary may, in the public interest, deem necessary to publish.”

39 §18 provided that: “The editor of a newspaper who fails to publish any official communication or any denial which he is required to publish under section 10 or section 17 is guilty of an offence and is liable to a fine of twenty five pounds.”

40 In his correspondence with the High Commissioner, the Colonial Secretary indicated that the Governor of Cyprus definitely contemplated using §10 for propaganda, a plan which he had to veto. He was also sensitive to public opinion: “(§10) might lead to the criticism that it was taking powers to compel the free communication of propaganda by an unwilling press”. Elsewhere in the same memorandum he was prepared to authorize compulsory publication only if it pertained to 1) denial of mis-statements or points of fact; 2) orders for suspension of other newspapers or exclusion of foreign newspapers from Palestine; 3) warnings under §19(1) and 4) other like matters. He also opined that official communications should be defined “with a view to excluding certain official matter, such as invitations for tenders, ordinary informative notices from the Press Bureau etc.”. Enc. III, supra n. 13.

41 Under §22 of the Interpretation Ordinance, Drayton, supra n. 9.

42 P.G., No. 1504, 4 July 1946.

43 Letter from the Chief Secretary to the Att. Gen. 29 May 1936, supra n. 30. In the case of the Palestine Post the paper objected to publish verbatim a communiqué which stated the rights of wives of Polish soldiers to naturalization in Palestine.

44 Enc. III, supra n. 13. The connection with Egypt is explained by the fact that Furness stayed in Egypt before coming to Palestine.

45 Enc. III, supra n. 13.

46 The British inability to cope with “false rumours” despite the criminal prohibition against them, and the power to order the publication of official denials expose the abyss which lay between the public and the press on the one hand and the Government on the other hand. The credibility gap, apparently, had been formidable. The precipitating chain of political events, secrecy in government, the deliberate policy of divide and rule which deepened the alienation between the Jewish and the Arab communities, and above all, the fact that major decisions were arrived at elsewhere, far away from Palestine, constantly irritated the already raw nerves of the public and the press and provided fertile ground for wild suspicions and rumours.

47 §19 (2) provided that: “The High Commissioner, either with or without having caused the proprietor or editor of a newspaper to be warned under subsection (1), may, if any matter appearing in a newspaper is, in the opinion of the High Commissioner in Council, likely to endanger the public peace, by order, suspend the publication of the newspaper for such period as he may think fit and shall state in the said order the period of such suspension”.

48 “… a seditious intention is an intention to … incite or excite inhabitants of Palestine to attempt to procure otherwise than by lawful means of any matter … by law established…”

49 Secs. 52–53 Criminal Law Amendment 1932, Drayton, , The Laws of Palestine vol. I pp. 439–440.Google Scholar

50 One way, used by the Hebrew press, to bypass these prohibitions was to discuss in detail and with enthusiasm the Irish struggle for liberation from British rule.

51 P.G. Extraordinary, no. 584, 19 April 1936, pp. 259, 262. Regulation 11 delineates a detailed and complex scheme for censorship which will not be presented here. It should be mentioned however, that a reference to the censoring of specific information was also prohibited.

52 Cnaan, supra n. 36, at 181.

53 Of the 23 sections dealing with the press, 10 called for judicial involvement, 3 imposed an automatic sanction and 3 invested discretion in the Executive Branch.

54 Sec. 7(2) providing that the name and address of the publisher and editor be published in every issue (5 pounds); sec. 8(2) providing that 2 copies of each issue be supplied to the Government (2 pounds) and sec. 9(2) dealing with the non-deliverance of issues after notice (5 pounds). Notice, however, that the fines were for each separate violation and might therefore amount to a substantive sum if violations occurred over a long period of time.

55 Violation of the following provisions invoked those sanctions: sec. 15, requiring a bond or surety; sec. 19 providing for the executive suspension of newspapers which published prohibited information; sec. 19A providing for the closing down of a printing press by executive order; sec. 20 providing for the executive prohibition of the importation of foreign journals; sec. 21 establishing the publisher's property right in the name of the paper; sec. 22 punishing publication without a permit: and sec. 23 punishing sedition. There is also an intermedairy level: sec. 18 punishing for failure to publish official communiques or denials, imposes a 25 pounds fine.

56 Secs. 15, 21, 22. See preceding note.

57 “23. (1) Whenever any person is convicted of printing or publishing, or causing or permitting to be printed or published, in any newspaper any seditious or other libel, the court before whom such person is tried may, if it thinks fit, either in lieu of or in addition to any other punishment, make orders as to all or any of the following matters, that is to say:

(a) prohibiting either absolutely or except on conditions to be specified in the order, for such period not exceeding three years as is mentioned in the order, the future publication of the newspaper;

(b) prohibiting either absolutely or except on conditions to be specified in the order, for such period not exceeding three years as is mentioned in the order, the proprietor or editor from publishing, editing or writing for any newspaper, or from assisting, whether with money or money's worth, material or personal service, or otherwise, in the publication, editing or production of any newspaper;

(c) that for the period aforesaid any printing press used in the production of the newspaper be used only on conditions to be specified in the order or that it be seized by the police and closed by them for the period aforesaid;

(d) that a copy of such conviction as aforesaid shall at the expense of the person so convicted, be published in such newspaper, if the publication thereof has not been prohibited hereunder, and in such other newspapers as are specified in the order.

(2) The court may, under subsection (1), impose as a condition the increase of the amount of the bond required by section 5 to an amount not exceeding five hundred pounds.

(3) If any person contravenes an order made under this section, he is guilty of an offence and is liable to imprisonment for six months or a fine of one hundred pounds or both such penalties.”

58 Notice however, that publication of court decisions was haphazard and therefore not reliable. The Peel Report, Cmnd. 5479 (1937) reports 3 prosecutions of Hebrew papers in 1934, at 193.

59 Enc. III, supra n. 13, memo of 8 February, 1932. The Colonial Secretary opposed the tendency to extend “unduly” the power of the executive. In one case, the High Commissioner withdrew his proposal to give authority to require the forfeiture of copies since London insisted the forfeiture only be done pursuant to a court order.

60 §4(1) Contempt of Court Ordinance, Drayton, vol. 1, p. 356. In H.C. 59/34, A.G. v. Avmieli C.O.J. (1934–1936) p. 116, such procedure was involved. The principal trial was a prosecution of a member of the revisionist party for having allegedly murdered Arlosorof, the well-known socialist leader. The court said: “… we cannot close our eyes to the fact that no less than three Jewish newspapers have been simultaneously cited before us as being in contempt in connection with the same case. We wish clearly to warn newspaper editors that in the event of any continuance of such conduct we shall not hesitate to inflict stern sentences of imprisonment in addition to fines.” See also A.G. v. Shwartz, Editor of the “Palestine Bulletin”, C.O.J. (1919–1933) p. 1355, and A.G. v. Gershon Agronsky, Editor of the Palestine Post, (1941) 1 Ct. L.R. 160.

61 As in the case of Avmieli, where HaYarden, the revisionist party newspaper was both suspended under § 19 for one month and sued for contempt of. court for having published an article criticizing the proceedings of the Arlosorof murder trial.

62 Cnaan, supra n. 36 at 69. See also the Furness Report, C.O. 733/204 file 87168 of 1931 (Palestine Original Correspondence) p. 5: “… there were a number of prosecutions and owing to their unsuccess the custom grew up of invoking rather freely the administrative power of suspension…”.

63 Sec. 23 of the Ottoman Press Law authorized suspension only when a grave criminal charge was pending and only until court proceedings started: “Outre les poursuites légales qui seront intentées contre les journaux ou écrits qui feraient des publications contenant provocation aux délits dont il est question à l'article 17, le Gouvernement pourra, s'il l'estime nécessaire pour le maintien de l'ordre, les suspendre jusqu'à l'usue du procès. Toutefois si le tribunal reconnaît la non-culpabilité du gérant responsable, celui-ci aura le droit de demander des dommages-intérêts du fait de la suspension”. Législation Ottomane, A. Biliotti & A. Sedad (Paris, 1912) 246.

64 Enc. III, supra n. 13 at 6–8.

65 Part I, see supra n. 6.

66 Under the Ottoman rule newspapers were accustomed to frequent suspension, see in general, Yardeni, G., The Hebrew Press in Eretz Israel (Tel Aviv, Hakibbutz Hameuchad, 1969, in Hebrew).Google Scholar

67 In his comments on the memoranda the Attorney General rejected the demand for a hearing but agreed that the editor should be notified of the reasons for the suspension (supra n. 33). However, such requirement does not appear in the statutory text.

68 In 1933 a number of warnings were addressed to newspapers but no newspaper was actually suspended. In 1934 4 Arabic papers were suspended for periods varying from 1 week to 3 months. In 1935, 1 Hebrew and 3 Arabic papers were suspended, Peel Report, supra n. 58, at 83,193.

69 “It is desirable that the powers of the executive should be widened particularly at the present time when an atmosphere of apprehension is prevalent and when the publication of false rumours … whether for the sake of sensationalism or from political motives, might lead to disturbances or a further run on the banks” memorandum of the Attorney General (supra n. 30). Could “true rumours” be safely published? In any event, it would not suffice that one would argue before the High Commissioner that the publication consisted of “true rumours”. and a case would be brought before the Court. The task could be made hard on the suspended newspaper since §62 of the Criminal Code Ordinance, which prohibited the dissemination of false rumours provided that: “It shall be no defence to a charge under the last preceding sub-section that he did not know or did not have reason to believe that the statement, rumour or report was false unless he proves that, prior to publication, he took reasonable measures to verify the accuracy of such statement, rumour or report”.

70 §19 A: “(1) Whenever the publication of a newspaper is suspended under the provisions of sec. 19, the High Commissioner in Council may, by notice in writing to the person who keeps or has in his possession any printing press used for the purpose of printing or publishing such newspaper, order that such printing press

(a) shall be suspended from operation for such period, which shall be stated in the said notice, as the High Commissioner in Council may think fit; or

(b) shall not, during the period of suspension of the publication of such newspaper as aforesaid, be used for the purpose of printing or publishing such other newspaper as may be specified in the said notice.

(2) if any printing press is operated or used in contravention of a notice issued under this section, the person who keeps or has in his possession, such printing press shall be guilty of an offence and shall be liable to imprisonment for six months or a fine of one hundred pounds or both such penalties, and the printing press shall be forfeited to the Government of Palestine”.

71 P.G. Extraordinary No. 584, Supp. No. 2 p. 259.

72 The correspondence between the High Commissioner and the Colonial Secretary reveals that it had been expected that “normally suspension would be only for a few weeks although discretion of the High Commissioner was not limited” (Enc. III supra n. 13, at 6). See also paper of the Attorney General from 15 October 1936 recommending that the Government refrain from frequent suspensions for short periods since these are “likely to cause great irritation and antagonism to Government” and that when “really objectionable articles” appear suspension should apply for longer periods (supra n. 30).

73 Cnaan, supra n. 36, at 37. In addition 5 Arabic magazines were suspended for 12 months and 1 Hebrew magazine for 4 months.

74 Cnaan, supra n. 36 at 72, 181, 192 and Haaretz, 16 Dec. 1945.

75 See generally Goren, D., Secrecy, Security and Freedom of the Press, (Jerusalem 1976, in Hebrew) 117–129.Google Scholar

76 In 1936, when Hayarden was suspended for 1 month, it seized the occasion of the coming Jewish New Year to publish a 60 page “book”. Cnaan, supra n. 36 at 70.

77 Cnaan, supra n. 36, at 128–130. Cnaan also reports that the Government's efforts to circulate official leaflets during the strike failed as these were publicly burnt.

78 Proclamation, 14 May 1948, 1 L.S.I. 6.

79 See Goren, supra n. 75 at 256.

80 (1949) Journalists Yearbook 82.

81 Supra at nn. 29–31.

82 M. Stein, Publisher of the Democratic Newspaper v. Minister of Interior (1952) 6 P.D. 867, 870–871. Apprehension about the foreign language (particularly German and Yiddish) Press stemmed from two sources: (a) the ideological commitment of Zionism to revitalize the Hebrew language and (b) the efforts to precipitate the creation of a nation from the various communities of immigrants. The foreign language press delayed the spread of Hebrew and encouraged ethnic pluralism.

83 Part of the blame should lie with the parties and their counsel who, accustomed to an authoritarian system, were not conscious of basic constitutional principles.

84 Bloy v. Minister of Interior (1949) 2 P.D. 136. §2 defines “proprietor”: “…as well the sole proprietor of any newspaper as also the persons who, as partners or otherwise, represent and are responsible for any share or interest in the newspaper as between themselves and the persons in like manner representing or responsible for the other shares or interests therein, and no other person.”

85 H.N. Kahooji v. A.G. (1960) (III) 14 P.D. 1929. They were also charged with violation of Reg. 94 (1) and 96 of the Defence (Emergency) Regulations 1945, supra n. 42 but were acquitted pursuant to an agreement with the prosecution.

86 The Pr. Ord. applies to newspapers appearing at “regular or irregular intervals”; therefore one-time pamphlets could still be held as outside its jurisdiction.

87 The opinions of the lower courts split. The Justice of the Peace thought that contents were irrelevant whereas the Dist. Ct. held that the fact these were seditious publications should be taken into account. The Supreme Court, Landau J. speaking for the bench, upheld the District Court but decided that in the case before him it was not clear that the publication was criminally seditious and that therefore the fines were too heavy and should be halved.

88 Al-Ard v. Dist. Commissioner, Northern District (1964) (II) 18 P.D. 340. The High Court (Olshan, Berinson and Mani JJ.) also ruled that the burden of proving malice rested on the petitioner; that the value-judgment concerning the desirability of such laws rested with the legislature and that the court would not probe into the allegedly secret national security considerations which guided the Commissioner.

89 A satirical weekly by the name of Zipora Nephesh appeared a number of times without a permit and so did Davka, a weekly published by a radical student group. Both incidents occurred in the sixties.

90 The “responsible editor”. Mr. Jo Nasser, had disappeared (he was later found murdered) and Mr. Seniora took over.

91 Later, the Ministry of Interior attempted to deny the new editor, Mr. Seniora, a permit, on the ground that he had a pending prison sentence and thus was disqualified under §5(1) (b) (vi) of the Pr. Ord. (supra n. 17). The conviction was totally unrelated to journalistic activities. After public pressure, the Minister of Interior exercised his discretion and granted the permit. This incident exemplifies the efficiency of dual control over both publisher and editor. Conditioning the licence on the fulfillment by both, of certain requirements, substantively widens the government's grip over press freedom. See supra p. 493.

92 See unpublished decision by the High Court of Justice dated 11 Dec. 1974; also Rubinstein, D., “The Arab Press in the Administered Territories” (1975) Journalists Yearbook 181, 184Google Scholar (Hebrew) and supra n. 29. In yet another incident, the editor of El-Shaab, another pro-P.L.O. daily in East Jerusalem was exiled to Lebanon. The power to exile persons, found in the Defence (Emergency) Regulation, was exercised on the grounds that in his articles the editor “advocated civil disobedience, continuously scorned the military government and recently called for establishing a Palestinian State to replace the State of Israel” Maariu, 4 November 1974, p. 1.

93 In the Tel Aviv district, a woman under 25 was recently denied a permit to replace her father in a local paper named Hadashot-Holon (Holon News).

94 With Israeli inflation, the bond now is less then $10 and therefore cannot be considered an effective threat to the newspaper business.

95 One reason why the law is not enforced is the broad definition of a newspaper, supra n. 11.

96 Supra n. 38.

97 Goren, D., The Press in a State under Siege (a Ph.D. dissertation submitted to the Hebrew University, 1971) 485Google Scholar n. 2. I thank Dr. Goren for referring me to this fact.

98 Part I, at 231. The voluntary arrangement applies only to the Hebrew Press, not to the Arab newspapers of East-Jerusalem which are subjected to an extensive censorship unknown to Israeli newspapers.

99 The one recorded prosecution was in the matter of Kohoji, supra n. 85.

100 In July 1948 the left-wing Al-Hamishmar was closed down pursuant to the Defence (Emergency) Regulations of 1945 for having published pictures without prior submission to the censor, Haaretz, 26 July 1948. In September 1948 the paper Mivrak was closed down, pursuant to the same regulations, Haaretz, 15 Sept. 1948. In March 1952, Herut, the right wing paper was warned that if it continued to publish inciting material it would be suspended, Haaretz, 12 March 1952. Kol-Haam, the Communist party paper was suspended twice during 1953, but during both periods it continued to appear, each day under a different name and with a different publisher and editor.

101 Kol-Haam v. Minister of the Interior (1953) 7 P.D. 871, 873. Kol-Haam, the Hebrew newspaper was suspended for 10 days. Al-Itihad, the Arabic newspaper, was suspended for 15 days.

102 The background was the cold war and the war in Korea. The Eban statement appeared first in the respectable daily, Haaretz and was officially denied.

103 Here it seems to us that Justice Agranat, who wrote the opinion, adopted the Vinson-Hand formula of the clear and present danger test as announced in Dennis v. United States, 341 U.S. 494 (1951). It should also be added that the Kol-Haam court specifically rejected the bad tendency test as unfit for a democracy.

104 E.g., on 19 February 1976 A-Shaab was suspended for 8 days, Yediot-Aharonot 20 February, 1976. For a report on the Government's position concerning the suspension of the Arab newspapers in East Jerusalem see Litany, Y., “Despite its support of the P.L.O. A-Shaab should be published”. Haaretz 6 August, 1975.Google Scholar