In the legal brief we filed with Attorney-General Avichai Mandelblit regarding the allegations against Prime Minister Benjamin Netanyahu, we argued that a media owner does not bribe a public official if he promises or provides favorable publicity. No modern civilized jurisdiction has ever – or would ever – convict an official of a crime for requesting favorable publicity, or deem a decision by such an official in exchange for publicity to be acceptance of a criminal bribe. If Israel now prosecutes its prime minister on such a novel legal theory, it will stand in isolation among modern civilized societies that revere free speech and a free press.
As we noted in our brief, a 2012 report by Britain’s then-lord justice of appeal Brian Leveson addressed the topic of politicians’ relations with the media. Justice Leveson found that “it is the prerogative of a free and partisan press in a democracy to campaign, lobby and seek to influence both public opinion and public policy,” and that “in these relationships, there is what I have described as an inevitable ‘trading’ element.”
He added, “In press/political relationships [between policy makers and those who stand to benefit directly from those policies], the boundaries between government, party and private business in relation to a politician’s dealings with the press are particularly fluid and blurred, and inevitably so.”
Leveson examined evidence and testimony about relations between Rupert Murdoch and British politicians like prime ministers Margaret Thatcher and Tony Blair. The Murdoch-Blair relationship produced what British lawyers today call the “Murdoch clause” of the 2003 Communications Act. The “Murdoch clause” lifted cross-media ownership restrictions, thereby permitting Murdoch to purchase Channel 5 while he owned a national newspaper.
As Leveson wrote, Blair’s Labour Party had been “positively averse” to engaging with Murdoch about a decade earlier. At that time, Labour sought to restrict media consolidation, thereby threatening Murdoch’s aggressive acquisition strategies. After Labour was defeated in the 1992 elections, and party leaders attributed the loss partly to hostility from Murdoch’s papers, Blair changed his attitude to Murdoch. Leveson acknowledged that “Mr Blair’s approach to the 2003 Act... was congruent with, but not necessarily a product of, his strategy to foster better relations with some sections of the media than his predecessors had enjoyed.” Leveson noted that “even within the Cabinet there was suspicion that an arrangement might have been reached.”
The report nevertheless stated that it had not uncovered evidence of explicit agreements between Murdoch and the British prime ministers.
THE REPORT explained, “There is, of course, no evidence at all of explicit, covert deals between senior politicians and newspaper proprietors or editors; no-one should seriously have expected that there would be. These very powerful relationships are more subtle than that, the extent to which interests coincide or diverge is more complicated, and the dialogue more sophisticated. But there can be no doubt that within these relationships, some of them having the quality of personal friendships (and some of active hostility), there have been exchanges of influence on matters of public policy which have given rise to legitimate questions about the trust and confidence the public can have that they have been conducted scrupulously in the public interest.”
Leveson’s did not doubt that “trading” was part of Blair’s relationship with Murdoch (as, indeed, it was in every relationship between senior politicians and the major media). His expressed doubts concerned only direct evidence of an explicit deal (and it should be noted that no direct evidence of an explicit deal has emerged in the case of Prime Minister Netanyahu either). Leveson’s committee did not have the investigative tools that enable police to gather further evidence, but if Leveson had viewed such “trading” as a crime, he could certainly have requested a police investigation to gather evidence of explicit agreements.
Leveson made no such request, and there was no police investigation into these media-politician relationships, because English law recognizes that such relationships cannot be subjected to the criminal process. Criminalizing the inevitable trading aspects of such relationships would cripple freedom of press and democracy. As Leveson said, “political/press relationships tend to have a focused bilateral quality, in which each party has something the other wants,” and politicians are motivated “to get a quantifiable outcome from their investment in relationships with journalists... in terms of... political and policy support, or the enhancement of personal reputation and profile.”
The Leveson Report explained that “free communication at a personal level between press and politicians is vital for healthy democracy.” Neither Leveson nor the police felt the need to pursue more evidence because, even had more evidence been gathered, it would still not be evidence of a crime.
In Britain, as in Israel, criminal law is too indiscriminate to regulate the complex relationship between media and officeholders. The threat of investigation or incarceration chills freedom of speech and the press. Police and prosecutors have personal incentives to investigate; their careers can benefit merely from participation in a high-profile investigation. Democracy and the public interest are damaged when prosecutors may interrogate the press about its motives in covering public affairs.
The Israeli public would be better served if the attorney-general adopted Leveson’s approach of emphasizing transparency and self-regulation, and avoiding criminal charges. As the Leveson Report concludes, “If there have been failures of public interest in the relationship between press and politicians, then our democracy provides ways in which politicians can account for that directly to the public.”
Even on the background of fierce political battles over Netanyahu’s future as prime minister, there is no realistic possibility that the Knesset would ever adopt a law criminalizing discussions between public officials and media representatives. If the Knesset or the government believed that examination of the relationship between Israeli politicians and the press was in order, they could commission a study like the Leveson Report into media influence on politics. Subjecting all Knesset ministers, present and future, to the same clearly articulated transparency requirements would bolster public trust.
But advancing criminal charges against a single elected leader, on a dubious legal theory first advanced after the criminal investigation started, necessarily harms Israel’s democratic standing and the rule of law. The criminal probe against Netanyahu has already thrust Israeli legal authorities into the heart of purely political matters like coalition negotiations and editorial decision-making. Continuing with the criminal process will only increase the damage.