1 Educational Statistics, Aug. 1977 no. 80, published by the Central Statistics Agency and the Ministry of Education. The daily circulation of the major daily papers is: Haaretz — 50,900; Davar — 37,000; Maariv — 137,500. There is no checked data about the circulation of Yediot Aharonot, a very popular daily rivalling Maariv.

2 Cnaan, H., The War of the Press: The Struggle of the Hebrew Press in Eretz Israel Against the British Rule (Jerusalem, 1969, in Hebrew)Google Scholar; Kressel, G., History of the Hebrew Press in Eretz Israel (Jerusalem, 1964, in Hebrew).Google Scholar

3 The Committee is a registered association. Its objectives are as follows: “(a) to defend common interests of members in all matters concerning the daily press in Israel; (b) to promote and encourage cooperation between members in all matters concerning the daily press and; (c) to improve relations among members”: Goren, D., Secrecy, Security and Freedom of the Press (Jerusalem, 1976, in Hebrew) 155.Google Scholar Goren criticises the Committee for having been c'oopted by the Government, id. at 154. For a discussion of Israel's voluntary censorship arrangement see id. at 178–223. See also Medzini, M., “Censorship Problems in Israel: the Legal Aspects” (1971) 6 Is.L.R. 309Google Scholar and Lahav, P., “Political Censorship: Some Reflections on Its Validity in Israel's Constitutional Law” (1976) 11 Is.L.R. 339.Google Scholar Prior to 1948 a “reaction committee”, composed of the Chief Editors of the Hebrew dailies maintained a similar arrangement with the recognised political leadership of the Yishuv.

4 Ben-Gur, M., ed., Press Council Regulations (Tel Aviv, in Hebrew).Google Scholar

5 It was precipitated by the Government's decision to present to the Knesset a draft to amend the Defamation Law. The Government withdrew after a fierce battle with the press. In 1965, a much milder version of the Defamation Law was enacted, (see infra n. 12).

6 Kol Haam v. Minister of Interior (1953) 7 P.D. 871.

7 For a detailed analysis see Lahav, P., “Freedom of Expression in the Decisions of the Supreme Court” (1977) 7 Mishpatim 375.Google Scholar

8 The existence of a free and dynamic press does not necessarily imply a consistent commitment by the legal system to freedom of expression and freedom of the press. Surely, the basic principle of freedom of expression must be found in the legal system if the society which that system regulates is to have a free press at all. But the basic principle need not necessarily permeate the entire infrastructure of that system. In other words, it is not imperative that we find a consistent incorporation of the principle throughout the entire body of legal rules which regulate the press. And thus we find in Israel the basic commitment to freedom of expression alongside laws and regulations of various origins, not all attesting to a constitutional commitment to basic liberties.

9 Drayton, The Laws of Palestine, vol II, p. 1214.

10 Supp. No. 2, P.G. No. 1442, 27 Sept. 1945 Part. VIII e.g., Reg. 87 (1) “The Censor may … prohibit generally or specially the publishing … of matter … which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order”.

11 E.g., sec. 59: “(1) Any person who … (b) publishes any words, or prints or publishes or reproduces any publication, having a seditious intention … is guilty of a misdemeanour…” Sec. 60 defines seditious intention as “… an intention to bring into hatred or contempt or to excite disaffection against the … Government of Israel, as by Law established, or the administration of justice, or incite or excite the inhabitants of Israel to attempt to procure the alteration otherwise than by lawful means of any matter in Israel by law established; or to raise discontent or disaffection … or to promote feelings of ill-will and hostility between different sections of the population of Israel”.

12 19 L. S.I. 257.

13 E.g., Penal Law Revision (State Security) 1957, sec. 27, 11 L.S.I. 186; Basic Law: The Government, sec. 28, 1968, 22 L.S.I. 257 at 262. For a discussion see Lahav, “Political Censorship” (cit. supra n. 3).

14 Courts Law, 1957, sees. 40, 41, 11 L.S.I. 157, at 164–165 and see Harnon, E., “Free Speech in Matters which are Sub-Judice” (1966) 1 Is.L.R. 151.Google Scholar

15 Penal Law Revision (State Security) 1957, sec. 23 (supra n. 13).

16 (1973) H.H. no. 1085, p. 448 sec. 11: “(a) Every person has the right to express his opinions, to publish them, to distribute them to others, and also to publish, present and distribute information, research and scientific, literary and artistic creation, whether (in all these cases) orally, in writing, or by means of any of the communications media, (b) None of these rights shall be restricted except according to a law intended to ensure the existence of the de mocratic regime, to maintain the security of the state and the public peace, to preserve moral values, or to prevent religious desecration, to protect the rights of others or to ensure the proper operation of legal proceedings”.

17 Supra n. 9 at §2.

18 Cmnd. 5479 (Peel Report) p. 2.

19 Art. II, Mandate for Palestine, 1922: “The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine irrespective of race and religion”.

20 This was attributed chiefly to the lifting of the economic depression which prevailed in Palestine prior to 1928 and the rise in Jewish immigration. A Survey of Palestine, prepared in Dec. 1945 and Jan. 1946 for the Anglo-American Committee of Inquiry (Government Printer, Palestine) 23. See also Laqueur, W., A History of Zionism (Holt, Rinehart and Winston, N.Y. 1972) 255.Google Scholar

21 Pogroms took place mainly in Hebron and Safad but other communities were also attacked, ibid., at 24.

22 Report of the Commission On the Palestine Disturbances of Aug. 1929. Cmnd 3530, p. 3.

23 The concern over the behaviour of the press was not the centre of the Commission's activities: “Above all, the Commission suggested that His Majesty's government should issue a clear statement … of the meaning attached to the passages of the Mandate providing safeguards for the rights of Arabs. While the Zionists argued that the Palestine government had shown lack of sympathy towards the Jewish national home, and thus created conditions favourable to an Arab attack, the Commission absolved the Government of guilt”. Laqueur, supra n. 20 at 491.

24 Supra n. 22, at 90.

25 Ibid.

26 The Zionist Organisation (better known as the Jewish Agency) was the official representative of the Jewish Community (Yishuv) in Palestine (Art. 4, Mandate For Palestine, 1922). The Organisation hired a number of distinguished lawyers to represent it before the Shaw Commission, one of whom made this reference to the press.

27 Supra, n. 22 at 90.

28 Internal politicking in the Zionist Organisation might have influenced its position. The Hebrew paper at which most of the criticism had been directed was Doar-Hayom, which voiced the Revisionist Movement approach. At that time the Revisionists had been at odds with the leadership of the Zionist Organisation and government action against their newspaper might have been considered a desirable end. It should also be noticed that Doar-Hayom was the most inflammatory of the Hebrew dailies, supra n. 22, at 45.

29 Supra n. 22 at 90.

30 Ibid., at 167.

31 Public Record Office, CO. 733/204, file 87168, 1931, (Palestine, Original Correspondence) pp. 56–116.

32 The term “Palestine press” is misleading, since it was composed of two distinctive groups: the Arab and Hebrew presses. The reference to an inflammatory press directed at the uneducated masses pertained to the Arab press. Furness considered the Hebrew press as generally more sophisticated, since it was catering to a more educated constituency (supra n. 31).

33 Established in 1928.

34 One year later, Mr. Perowne, the newly appointed Press Officer observed: “… the knowledge that the press in now recognised as a link between the Government and people, particularly in a country where no constitutional link exists, has led to the beginnings of the growth of a sense of responsibility in the local press”. Public Record Office, CO. 733/221, file 97168 of 1932 (Palestine, Original Correspondence).

35 Among the privileges were: the issuance of press cards and the provision of telephone and public transportation services at special rates.

36 App. A and B, Furness Report, supra n. 31, at 99, 102 respectively.

37 The high degree of involvement of the Colonial Secretary with the minutiae of the Pr. Ord. is remarkable. Although we do not have comparative material, we tend to believe that this was not a general practice. Under Art. 17 (I) (a) of the Palestine Order-in-Council, the power to promulgate ordinances was vested in the High Commissioner, although the Crown reserved the power to do so “as may be necessary for the peace, order and good government of Palestine”, Drayton, supra n. 9, vol. III, p. 2591.

38 Cyprus Law. No. 23, 1930. In Part II we shall see the extent to which the Cyprus Press Law was, in fact, imported into Palestine.

39 P.G. 16 Aug. 1932, p. 662; supra n. 9.

40 Cnaan, supra n. 2, at 34; although Cnaan himself refers to the Ottoman law earlier (30–31).

41 Art. 46, Palestine Order-in-Gouncil, supra n. 37.

42 See generally Young, George, Corps de Droit Ottoman, (Oxford, Clarendon Press, 1966) and infra n. 47.Google Scholar

43 Author's translation. Charte Constitutionelle du 7 zilhidje 1293/1876 modifiée le 5 Chaban 1327–8 Août 1325/1909, Art. 12: “La presse est libre dans les limites de la loi. Elle ne peut être en aucune façon soumise à une surveillance ni à un contrôle avant l'impression”.

44 “Any person who, by speech or writing or any other means of publication, disseminates any false news which is calculated to disturb the public peace is guilty of an offence and is liable … to imprisonment for six months or a fine of fifty pounds or both such penalties”. Drayton, supra n. 9, chap. 31, p. 432 (Art. 42).

45 This Ordinance, enacted right after the 1929 disturbances, is too long to be reproduced here. Its prohibition of seditious libel is almost literally identical to the present prohibition (supra n. 11). The Ordinance also prohibited the dissemination of false news: “Any person who publishes or reproduces any statement rumour or report which he knows or has reason to believe to be false with intent to cause, or which is likely to cause, fear or alarm to the public, or which is calculated to disturb the public peace, is punishable with imprisonment for three years”. P.G. 1929, p. 1046.

46 Drayton, (supra n. 9) Vol. II, Chap. 100, p. 1023. Art. 3 provided that “(I) any person who for any purpose prejudicial to the safety or interests of the State… (c) publishes … any … article, note or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy is guilty of a felony”.

47 The version used here appears in Biliotti, A. and Sedad, Ahmed, Législation Ottoman (Paris, 1912, in French).Google Scholar The chapters in French are: “Des Publications”, “Dispositions pénales” and “De la Diffamation et des Injures” and “Dispositions diverses”.

48 “Journal ou écrit quotidien ou périodique”, Art. 1.

49 We chose the term chief editor although “responsible editor” is the literal translation of the original “gérant responsable”.

50 And repetition of the offence subjected the defendant to a stricter punishment. Also, the court had discretion to impose a graver punishment if the contents of the journal called for it (Art. 4).

51 E.g., his death, incapacity or a change in any of the requirements of Art. 3.

52 However, if the courts acquitted the chief editor, he was entitled to sue the Government for the damages caused by the suspension (Art. 23).

53 Art. 25 defined defamation as an allegation which included a specific reference to facts, and insult as an allegation which made no specific reference to facts.

54 Arts. 26 27, 28, 29, and 30, respectively.

55 Although the British perception, as it appears from the official documents reviewed here, was that they could be more repressive had they not been bound by their liberal tradition.

56 As evidenced from the definition of “press” (supra p. 234).

57 The principle against prior restraint appears in the Ottoman Constitution and is implemented by the Press Law with the exception of Art. 23 (supra n. 43).

58 In practice, no difference may exist between the two approaches since it is doubtful whether the Mandatory Government had discretion to deny a licence once all the requirements were fulfilled; under the Ottoman Law, a failure to submit the declaration constituted a criminal offence. Still, both from the theoretical conception of liberty and from the psychological point of view, there is a significant difference between a licence and the one-sided declaration. The practical implications are more noticeable when we come to consider the types of communication which needed a licence. The Pr. Ord. required a licence for most printed material.

59 Furness Report (supra n. 31 at 102).

60 Ibid., “… with regard to the Ottoman Press Law … local conditions have greatly altered since it was enacted, and … whereas it was designed to fit in with a French legal system it is now being applied under a system which is mainly English”.

61 Letter from the Colonial Secretary to the High Commissioner, 22 June 1931 (supra n. 31 at 119): “In framing new legislation in Palestine it is important to keep in view the desirability of replacing Ottoman Law entirely by a clear, complete and self-contained Code appropriate to the needs of the country”.

62 Supra n. 31 at 102.

63 One way to overcome this problem had been the prosecution of newspapers on grounds of contempt of court, see e.g., H.C. 10/30 A.G. v. Shalom Schwartz, Editor of the Palestine Bulletin, C. O. J. (1919–1933) p. 1355; H.C. 59/34, A. G. v. Mordechai Avmieli, C. O. J. (1934–1936) p. 116. The problem of the reputation and integrity of the courts was not solved and even somewhat aggravated under the Mandatory régime. The high esteem which the Israeli judiciary enjoys today is certainly a post-Independence phenomenon. See Etzioni, A., “The Decline of Neo-Feudalism: The Case of Israel” in Heady, and Stokes, , Papers in Comparative Public Administration (Mich. U.P.) 229–243.Google Scholar

64 Furness Report, supra n. 31, at 102. These rumours about the partiality of the Palestinian judges is substantiated by the Courts (Amendment) Ordinance of 1929 (No. 31) which provided that in cases arising from the riots the Courts will consist of British judges only. (1929) P.G. 958.

65 “I do not think that most journalists in Palestine have much independence of mind, and they are more reasonable in what they say to you than in what they write: a timely conversation is likely to reflect itself in an article, and an editor's pen may gradually become subject to the influences which move his tongue in the Controller's Office”. Furness Report, supra n. 31, at 91.

66 Ibid., at 68.

67 Perowne Report, supra n. 34 (file 97168). Perowne was the first Press Officer of the re-organised Press Bureau. He does not specify the names of those dailies, but they presumably were: Davar, Haaretz, Doar-Hayom, and the Palestine Bulletin (a neutral English language paper which catered to the Jewish community). Falastine, A-Dija and Al-Jamia-Al-Islamiyah were the Arab dailies.

68 But see supra n. 32.

69 Supra n. 31.

70 Ibid., at 26. “Furness also said that he thought it would be very desirable that … the new Press Law could be brought into force before the setting up of the reorganised Press Bureau, as the Law would be unpopular and that it would be a good thing if local resentment had died down a bit before the new Press Bureau was set up”. In hindsight, the prior establishment of the Press Bureau paved the way to acceptance of the Pr. Ord.

71 “The new Press Bill is based on the Press Law of countries which revolted in the face of their government, but Palestine has never revolted against the government… [therefore there is] no justification whatsoever for this strict and oppressive legislation”: memo, Al-Jamia-Al-Islamiyah. “It is presumed that journalists are of the intelligensia and therefore they should not be treated like rebels and rioters”, memo, Arab Editors, Press Bill For 1932, Text and Comments, State Archives, Jerusalem.

72 Only two memoranda were presented by the Hebrew press. The Palestine Bulletin submitted a memo signed by its legal counsel, which praised the Ottoman Press Law and warned that the Bill “will be detrimental…to the existence of an independent press in Palestine”. The second memo, submitted by the Editors of the Orthodox Hebrew papers, contained only trivial references to two specific sections of the new Bill.

73 We do not here overlook the fact that neither the Jewish nor the Arab camp was homogeneous in its political aims, but we will not here discuss the subtleties of their positions.

74 There are many indications that the new Bill was primarily designed to control the Arab press. For instance, one of the Furness recommendations had been that the term “Controller of the Press Bureau” be used in reference to the Press Officer. “He thought that the latter term described his [the Press Officer's] functions more correctly and would be easier to turn into Arabic in such a way as to produce the proper impression”. His recommendation was rejected precisely because of the “offensive connotations” of the term in Arabic. But notice that nowhere in this correspondence can one find reference to the Hebrew connotations of this or another term although there is no doubt that they were well aware of them. Supra n. 31, at 25.

75 But notice that the political motivation of the Arab press was sometimes questioned by the Mandatory administration: these are “…newspapers whose one aim is to make money by playing upon the uneducated passions of the native Arabs …a ‘free press’ is one entirely given over to unscrupulous money makers … the new Law errs, if at all, on the side of leniency”: memo of 25 Oct. 1932 (supra n. 34).

76 We cannot overlook the internal politics of the Hebrew press. The conflict between the leadership of the Zionist Organisation and the Revisionist Party could have led two of the dailies (Davor and Haaretz) to support a Press Bill which would lead to curtailment of the intemperate and Revisionist daily Doar-Hayom. But we have no proof to support this hypothesis and it fails to explain the silence of Doar-Hayom in that matter.

77 See statement concerning the necessity to uproot the foreign press in Palestine, Journalists' Yearbook (1948, in Hebrew) 155; and the recommendation of the governmental committee (in cooperation with the press) to cut down the ration of paper to the German press in Palestine. Journalists' Yearbook (1943, in Hebrew) 122.

78 Supra n. 34. He added: “There seems to be a feeling among editors that they are no longer a negligible and neglected quantity in the life of the country, and the knowledge that what they write is brought to the notice of the Government on the day of publication is much appreciated … Now that the Government has decided to bow down its ear and to hear them, they feel perhaps that they need not shout so loud”. Perowne also dismissed the actual protest against the Bill as lip service: “Had the press remained silent, particularly when a Bill which so closely concern their own interests was under consideration they would have been accused of cowardice and disloyalty”. Ibid.