On Monday, December 31st, the Ministerial Legislative Committee held the second debate over a bill that would ban publication of the names of suspects in a criminal case.* As noted in the explanatory section of the bill, there are rights and interests in favor of both courses of action - prohibiting and permitting publication of names - making it necessary to strike a balance between the competing factors. The problem is that the bill does not promote any sort of balance; instead, it sanctifies suspects' rights to privacy and the preservation of their good name, while striking a serious and disproportionate blow to such vital public interests as freedom of expression and the public's right to know. For this reason, the bill should be rejected.
Most police investigations involve ordinary citizens. The public's right to know in such instances is very weak, and is superseded by the right to privacy. But in such cases, there is no need for a law to protect suspects - the free market of the press does the job. Investigations of this type are not publicized simply because they are not deemed "newsworthy."
Police investigations (for the most part) receive media exposure only when they concern a suspect who is a well-known personality or a criminal act of particular interest. When the suspect is a public figure, the public's interest in knowing is always great - all the more so when an elected representative is involved. In such a case, publication of the name becomes a key part of the democratic process: it raises the question of whether the criminal suspect is worthy of the public's trust.
Moreover, in such cases, the public's interest in knowing is already substantial at the investigation stage, since we have higher expectations of our elected representatives than of "rank-and-file" citizens. It is in our interest that this public figure act in a completely honest and aboveboard manner, of a sort that will not arouse suspicions of improper behavior. Accordingly, when an investigation is launched that can signal such behavior (even if it does not end in an indictment), the public has a right to know.
From the moment a person enters the public arena, he must bear in mind that he is exposing himself to media attention, for better or for worse. Just as he can advance his cause through the media, he can also be hurt by publicity. Those are the rules of the game. For this reason, when we speak of public figures, it is advisable to use a more narrow definition of the right to privacy and reputation. In addition, banning the publication of a suspect's name will lead to generalized coverage of the details of the case, thereby casting a heavy shadow on a large group of people. Thus, weighed against the right of the individual to protect his reputation are the rights of all members of that group to their good name. What's more, the public figure is in a better position than the ordinary suspect, by virtue of both his very real ability to respond to the suspicion in the media, and the likelihood that the story will be widely reported if he is removed from the list of suspects at a future date. Furthermore, based on past experience in Israel, the publication of suspicions regarding public figures has not, as a rule, harmed their chances of being elected.
Apart from the above rights, there are other considerations that should enter into the equation. First, the very act of publication is extremely important both for keeping the formidable power of law enforcement agencies in check and for ensuring the proper application of the judicial process. Thus, the proposed amendment may cause more harm than good. Second, it is highly doubtful, in this age of Internet and talkbacks, that it is even possible to effectively prevent publication. As soon as the name of a suspect appears on the Internet, it will not take long before it is publicized in the broadcast and print media. The inability to enforce the law will turn the ban into a "dead letter," causing severe harm to the principle of the rule of law. Third, the media now plays a role in the fight against crime; for example, Israel's Channel 10 broke the story in a recent pedophile case, and the Yediot Aharonot newspaper was the first to expose the Aryeh Deri affair several years ago. The media has an interest in investigating cases by itself only because it is permitted to publicize them. The moment it is prohibited from airing such cases (or major details such as the name of the suspect), it will stop investigating them. As a result, individuals who now contact the media with information that, for various reasons, they are unwilling to give to the police, will stop turning to the media, thereby harming the public interest in seeing these criminal acts exposed. Investigative journalism is already seriously weakened, and the passage of this bill is liable to be the final nail in the coffin. Lastly, it is worth noting the deterrence factor. The knowledge that the media can publicize the name of a suspect serves as a deterrent against committing criminal acts. Granted, it will obviously not deter the head of a crime family from breaking the law, but it is likely to dissuade public figures. If the latter know that their names will not be publicly exposed if they are investigated for corruption or sexual harassment, the deterrent effect will be significantly reduced.
It should be noted that the proposed arrangement would be unique to Israel: it has no parallel in other democracies such as England, Australia, New Zealand, or the U.S.
Accordingly, in weighing the various rights and interests, the balance tips in favor of permitting publication of the names of suspects and against the arrangement proposed in the bill under discussion. This conclusion is also consistent with accepted practice in the democratic world.
What, then, is the answer? The issue demands a twofold solution: one, stepping up activity in the area of journalistic ethics, including seeing to it that when a person is cleared of suspicion, that fact is prominently publicized; and two, making suspects aware of their right to request a gag order from the courts - which is expected to happen once the new regulations proposed by the Justice Minister are approved.
The above solution is not perfect, but it is doubtful that we can arrive at a perfect arrangement on this issue. This fact, however, does not justify draconian legislation of the type proposed, whose harm would outweigh its benefits.
Roy Confino is a law student, and a research assistant at the Israel Democracy Institute.
*The bill was rejected.