other users of the internet online platforms due to restricting their access to the information that
has been restricted or removed. They also argue that the voluntary enforcement mechanism is also
indicative of a violation of the separation of powers inasmuch as it represents a situation in which
the “last word” in all that regards the lawfulness of any publication rests in the hands of an
administrative agency or the internet platform operators, and not the court, which is normally
supposed to decide such matters. It is further argued that removal of the publication by the internet
platform operators (pursuant to a request by the Cyber Department) constitutes a violation of the
right of users to due process. Moreover, the Petitioners argue that there are additional defects in
the Respondents’ activities, such as: not maintaining an appropriate record in regard to
publications for which reports were sent by the Department to internet platform operators.
21.
As opposed to what is argued in the petition, the Respondents are of the opinion that the
enforcement procedure that is the subject of the petition is a completely voluntary procedure that
should not be seen as a governmental act, per se, and that the discretion in regard to removal or
other steps pursuant to the report is entirely in the hands of the internet platform operators alone
(inter alia, the Respondents rely in this regard upon HCJ 5185/13 A. v. Great Rabbinical Court
[8], which treats of the “Rabbeinu Tam sanctions”1 (hereinafter: the Rabbeinu Tam Sanctions
Affair)). This argument was expanded upon elsewhere by the founder and head of the Cyber
Department, Dr. Haim Vismonski, who said as follows:
In practice, an act on the voluntary-consensual level is not an exercise of
authority in the sense of an order or an obligatory demand. In practice, it
is a request based upon the understanding that the service provider will
examine it in accordance with its own terms of use and criteria. (Haim
Vismonski, Alternative Enforcement of Expression Offenses in
Cyberspace, LAW, SOCIETY & CULTURE 691, 725 (2018) (Hebrew).
The Respondents further point to the unique advantages of the Cyber Department over
persons (harmed individuals) or other bodies that might serve as reporters of offenses of the type
under discussion in cybernetic space, and the great benefit of the Department’s actions for the
public interest. It is argued in this regard that in view of the fact that the Department is a “repeating
player” that is proficient in the terms of use of the online platforms, and keeps abreast of changes
Sanctions established in the 12th century by Rabbi Jacob ben Meir “Tam”, which may be imposed upon a
“recalcitrant husband” who refuses to grant a divorce.
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