In recent years, the central stage on which lively, public discussions are taking place is the virtual stage, particularly social media. Many public officials and bodies are making extensive use of social networks to convey messages, share information relating to their public function and "chat" with the public about their activities in the fulfilment of their duties.
Freedom of expression on the internet has therefore received special standing, inter alia because of the status of the internet, the importance attributed by the public to the items posted on it and the simplicity of their publication.
A social media account like Facebook, Twitter etc. is a platform on which public officials can notify the public about their public activities and share opinions on various issues. This platform enables any person, who has an account in the social media, to comment on the post of a public official and interact with other users regarding the post.
In 2016, the Office of the State Comptroller and Ombudsman (hereafter: the Ombudsman) began to receive complaints about different public officials deleting comments containing complaints or criticisms from their Facebook pages or blocking the access of the users who posted them.
In order to investigate these complaints, the Ombudsman checks if the Facebook page has the characteristics of a "public forum", including:
- funding of the page - is use made of public resources, including public employees, to manage the page;
- management of the page - is the page managed by public employees on behalf of the public official or privately by the public official himself;
- content of the page - does the page serve the public official in the fulfillment of his public duty or does it contain mainly private and personal matters.
If the page contains many public characteristics, the Ombudsman will consider it a public forum page; as such, the rules of administrative and constitutional law will generally apply to the management of the page by the public official or by someone on his behalf. Therefore, if it becomes apparent that a comment has been deleted from the page, or the user has been blocked, the Ombudsman will examine whether the act amounts to a violation of the constitutional right to freedom of expression of the user.
According to Israeli law, the protection of freedom of expression is a broad right, even if not absolute, and its violation is permissible only in accordance with the "limitation clause" in Section 8 of Basic Law - Human Dignity and Liberty. The Ombudsman thus examines whether preventing the complainant from posting comments on the Facebook page of the public figure or deleting them was done for a proper purpose and to an extent no greater than is required for achieving this purpose.
When the public official claims that the comment posted was blocked because it was offensive, inciting, harassing or it "flooded" the page (it pushed the comments of other people further down the page where they are less viewed), the Ombudsman will check the nature of the comment and the reason for blocking it. For example, the Ombudsman examines if the comment damages the reputation of the public official, if it incites or expresses prejudice forbidden by law, if it "floods" the page and violates the freedom of expression of the rest of the public wishing to take part in the discussion on the page, or if it is obscene. In all of the above situations, the blocking of the posts is considered to be for a proper purpose.
Preventing uncomfortable criticism of a public official or body is not considered to be for a proper purpose.
Even if prima facie the comments posted in the social media justify their deletion, the Ombudsman examines whether the violation of freedom of speech is proportionate; that is to say, whether the means are appropriate for achieving the purpose, whether they violate as minimally as possible the constitutional right and whether there are no other adequate means which violate the right to a lesser extent. Thus, for example, blocking access to a page and thereby preventing in advance all expressive activity is a harsh measure as it relates to the posting of all future comments. Alternatively, it is possible to take measures that violate less the freedom of expression, such as warning the writer of the post about his action, deleting the post without blocking the writer or temporarily blocking him.
Source: Office of the State Comptroller and Ombudsman, Israel