The Law Prohibiting Terror Advertising – Questions and Answers
Today (November 8, 2023), the Knesset approved a law stipulating that systematic and continuous advertising of Hamas and Islamic Jihad, in certain circumstances, will constitute a criminal offense punishable by up to one year of imprisonment.
Following public criticism of the original wording of the proposed law, changes were introduced that slightly mitigate its impact: the approved law mandates additional external circumstances for prosecution, indicating an association with Daesh (ISIS) or Hamas, not solely the passive consumption of such advertisements. However, given the ambiguity surrounding the elements of the offense, subject to interpretation by the authorities, it is unclear whether this addition will reduce the inherent damage in the law and prevent innocent citizens from being suspected of terror offenses.
Despite the modifications, the law remains unprecedented in democratic countries and may have a chilling effect on freedom of expression. There is a gap between the extreme cases that concern the security service (Shin Bet), which the law aims to prevent, and the language of the law, which might also affect innocent citizens who have no intention of committing acts of terror.
What does the law stipulate?
The law states that continuous and systematic publication of advertisements by Hamas and Islamic Jihad, in circumstances indicating an affiliation with a terrorist organization, is a criminal offense punishable by one year of imprisonment. Advertisements that fall under the category of systematic and continuous dissemination are those containing a direct call to commit a terrorist act, expressions of praise, support, or encouragement of terrorist acts, and documentation of the execution of terrorist acts.
Publication of such advertisements made randomly, unintentionally, or for a legitimate purpose will not be considered an offense.
Due to the challenges posed by the law, it is established as an interim measure (a temporary law) so that the manner of its implementation can be evaluated.
What is the purpose of the law?
According to the Shin Bet (Israel Security Agency), the law is intended to deal with potential terrorists who undergo indoctrination, brainwashing, and practical training by organizations like Daesh (ISIS) or Hamas, leading them to carry out individual terrorist attacks.
What difficulties does the law raise?
1. The law allows for imposing punishment on an individual without them taking active steps, but merely passively viewing images, publications, and videos, solely based on the concern that the viewing might incite action. Therefore, it's a penalty for thoughts, contrary to the fundamental principles of criminal punishment, which dictate that punishment should be for actions, not thoughts.
2. As many elements of the offense are ambiguously phrased and subject to interpretation, the law could lead to innocent citizens being suspected of terrorist offenses.
3. The law creates a chilling effect on freedom of expression, as citizens might be afraid to consume such materials for legitimate purposes due to the fear that it might result in an investigation against them. For instance, a journalist might be concerned about accessing Hamas propaganda channels for their work.
Is there a similar law in other democratic countries?
No. In the UK, there is a provision prohibiting the consumption of terrorist publications that instruct individuals on how to commit acts of terror. In France, a law similar to the Israeli law was twice annulled by the Constitutional Court.
I watch Telegram channels documenting the atrocities of Hamas in the Gaza Strip. Am I at risk?
In principle, passive viewing of Hamas atrocities will not be considered an offense if it is not done in circumstances indicating identification with Hamas. In any case, solely viewing documentation of Hamas atrocities will not be deemed illegal unless it is accompanied by the consumption of materials directly calling for acts of terror or expressing praise and encouragement for such actions.
Lately, Instagram's algorithm has been suggesting videos of Hamas supporters to me. Am I at risk?
Random consumption of content is not prohibited and does not indicate identification with a terrorist organization.
An influencer I follow on social media posts numerous images of severe damage in Gaza accompanied by Palestinian flags. Should I stop following them?
On the surface, sharing posts about the situation of Gaza's citizens, posts concerning the outcomes of the conflict in the Gaza Strip, or expressing sympathy for the conflict's victims is not prohibited. The prohibition lies in the sharing of posts that directly call for acts of terror or contain praise and support for acts of terror.
I regularly enter Hamas propaganda channels for research or journalistic reporting purposes. Am I at risk?
Consumption of publications that fall under the law but are done randomly, out of pure curiosity, or for a legitimate purpose should not be considered an offense. For instance, the consumption of such publications for the purpose of public information, prevention of terrorist offenses, or research.