district commissioner to order the closure of a gambling site does not extend to internet providers
in regard to an online gambling website that violated sec. 229(a)(1) of the Penal Law (as it then
stood), inasmuch as the provision of the said law does not expressly grant statutory authority to
the District Commissioner to order third parties (providers of access who are not the website
operators) to block an online gambling website.
The second is LCA 4447/07 Mor v. Barak I.T.T. [1995] International Telecommunications
Services Corporation [4] (hereinafter: the Mor case), which held that in the absence of a legislative
framework that creates a possibility for ordering a provider of internet access to expose the identity
of an anonymous user, it should not be pursued by “judicial legislation” (see, ibid., at p. 688).
19.
As for the possibility that the Cyber Departments authority to act in a “voluntary” manner
is granted by virtue of the government’s residual power under sec. 32 of Basic Law: The
Government, the Petitioners’ take the view that such authority does not apply to cases in which
the exercise of the authority results in a violation of basic rights. In this regard, they referred to
HCJ 8600/04 Shimoni v. Prime Minister [5], 687, and HCJ 6824/07 Manaa v. Tax Authority [6]
(hereinafter: the Manaa case) (regarding the enforcement authority). In addition, the Petitioners
also rejected the possibility that the Cyber Department’s authority is granted by virtue of the
auxiliary powers set out in sec. 17(b) of the Interpretation Law, 5741-1981 (hereinafter: the
Interpretation Law), which provides: “Any empowerment to do or enforce the doing of something
implies the conferment of auxiliary powers reasonably required therefor”. In the opinion of the
Petitioners, that provision cannot support the Respondents, inasmuch as in the framework of the
reports that the Department sends, it, in practice, trespasses the boundaries of the courts, which
alone, according to the Petitioners, hold the authority to decide, after hearing the parties, whether
or not a particular publication constitutes a crime.
20.
In addition to the above, the Petitioners also argue extensively in regard to the manner in
which, in their opinion, the voluntary enforcement mechanism violates constitutional basic rights,
first and foremost, the right to freedom of expression, which they believe, under the case law of
this Court, is broad enough to encompass even harmful expression that rises to the level of
incitement to violence or racism. In this regard, they cited HCJ 399/85 Kahana v. Broadcasting
Authority Management Board [7]. In this regard, it is argued that removing and restricting the said
publications not only prevents the publisher from expressing his opinion freely, but also harms the
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