Arrests on charges of “incitement” on social media platforms and Israeli government policy: a Facebook case study

Since the end of 2014, a significant escalation has been witnessed in the Israeli arrest campaigns targeting Palestinians on charges related to content shared on social media platforms, in particular Facebook. In 2017, the number of Palestinians arrested on charges of “incitement” was around 300 detainees[1].

This paper highlights the escalating systematic and repeated arrests targeting Palestinians practicing their right to freedom of expression on social media platforms with Facebook as a case study within a legal, political, and factual frame of work. It analyzes the laws defining incitement in the Israeli penal code and the Israeli military orders imposed on Palestinians in the West Bank. The paper also analyzes the charge sheets of Palestinian detainees convicted of “incitement”, and similar cases of detainees subjected to administration detention.

In addition, the paper explores the main courses of action recently adopted by the Israeli government, focusing on two key axes: the proposed “Facebook Bill” in the Knesset, as well the cooperation between the Israeli government and Facebook in removing content and posts labelled as “incitement”.

First: Israeli legal grounds for arrests on charges related to content shared on social media platforms

• Arrests on Facebook-related charges in Jerusalem and territories occupied before 1948

The Israeli occupation establishes legal grounds for arresting Palestinian residents of Jerusalem and the occupied Palestinian territories before 1948 on Article 144.B and 144.D2 on Incitement to Violence or Terror of the Israeli Penal Code of 1977[2]. Article 144.D2 (a) states that “If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, then he is liable to five years imprisonment.”

• Article 144. D2 (b) defines “an act of violence or terror" as “an offense that causes a person bodily injury or places a person in danger of death or of severe injury.”

A closer look into this definition reveals broad parameters that carry multiple interpretations, offering the judges and the prosecution wide jurisdiction to interpret these terms, consequently placing various content under the incitement article. For instance, “praise, words of approval, encouragement, and support” can encompass thousands of posts. In fact, recent years have witnessed the Israeli courts interpreting historically-acclaimed Palestinian expressions of honorable pride like praising the martyrs, expressing dismay to the prejudiced occupation practices, as well asserting the right to return and self-determination as incitement content liable to legal prosecution according to the Israeli penal code.

In practice, since December of 2014, the Israeli occupation has adopted a conviction policy on charges of incitement under the pretext of pressing security matters. Through the legal case files represented by Addameer, it is noted that Israeli courts have begun issuing high jail sentences of 6-24 months of actual jail time, as well as hefty fines. The Israeli courts often regard each post as an offense; for example, if the defendant publishes 6 posts on his personal Facebook account, the court regards them as 6 separate offenses. Upon sentencing, the court takes into consideration the number of Facebook friends of the defendant, as well the number of likes, comments, and shares the posts garnered.

An example of that is the case of Nader Halahleh, 27, from Al-Sawana neighborhood in Jerusalem. Halahleh was arrested on November 25th, 2015, and charged with incitement. He had published 7 posts ranging from pictures to written posts on his personal Facebook account, and was charged with 7 offenses. Halahleh was sentenced to 7 months in prison. Other Palestinians received administrative detention orders. Fathi Najadeh, 18, was arrested on November 5th, 2015, and received an administrative detention order based on intelligence accusing him of incitement on his personal Facebook account. Kathem Sbeih, 17, from Jabel Mukaber in Jerusalem was arrested on October 17th, 2015 and received a three-month administrative detention order despite the fact the he was a minor at the time. The prosecution alleged that the Israeli intelligence was in possession of information that Sbeih incited “acts of violence” on Facebook.

Dareen Tatour, 33, from Al-Reineh town in the Palestinian territories occupied in 1948, is a prime example of the dangerous escalation in the Israeli court policy on what is referred to as charges of incitement. In an interview over the phone with Addameer legal scholar, Tatour detailed the interrogation, harassment, forcible transfer, house arrest, and actual jail time she had experienced[3].

Tatour was arrested on October 11th, 2015, and was initially interrogated in Nazareth police station. She was later transferred to Jalama interrogation center where she was detained for 21 days.

The interrogation sessions with Tatour were centered on a poem titled “Resist, my people; Resist” she had published on her Facebook account; the interrogators claimed that the poem incited terror. Tatour was shown only the Arabic version of the poem despite the fact that the interrogators solely referenced a Hebrew translation during interrogation. Consequently, Tatour was interrogated on expressions and phrases she herself did not include in the poem. She viewed the Hebrew translation for the first time during the court sessions and stated that most of the expressions translated from Arabic to Hebrew were wrong and inaccurate; for instance, the word ‘martyr’ was translated to ‘terrorist’. The main point of contention during interrogation and court sessions centered on adapting, clarifying, and tailoring the words and expressions in the poem. The poem spoke of the child martyrs Ali Dawabsheh and Mohmammad Abu Khdeir who were described as ‘innocent martyrs’. However, they were referred to as “terrorists” during interrogation and in court.

The interrogators manipulated the interpretations of the poem, viewing Palestinian expressions of patriotic value from an Israeli perspective which exerted psychological pressure as Tatour was attributed with words she had not written. In addition to the psychological pressure, Tatour described the difficult conditions of the interrogation, especially with the interrogators intentionally turning on the AC to blast cold air for long periods of time, which left her feeling extremely cold. She was also subjected to positional torture on a regular chair as she was handcuffed and forced to sit in the chair for prolonged time. Moreover, the interrogators resorted to screaming during one interrogation session.

On November 2nd, 2015, the Nazareth Magistrate’s Court filed a charge sheet against Tatour that included two items; the first of which was ‘incitement to terror and violence’ after the court found the words and expressions of the poem an incitement to violence and a threat to state security and public safety. The second item was advocating and encouraging a hostile organization.

After the charge sheet was filed, Tatour was transferred to Sharon and Damon prisons. On January 13th, 2016, the court sentenced her to forcible transfer and house arrest under extreme conditions that included:

1. Forcibly transferred from her house in Al-Reineh town to Kiryat Ono near Tel Aviv where she stayed for 9 months.
2. Banned from accessing the internet
3. Placed under house arrest
4. Required to wear an ankle-monitor
5. Banned from any form of interaction (a visitation ban)

Tatour described her time under house arrest away from her family and cut off from the rest of the world as “the hardest time of her life”, and felt like she was “held in a solitary confinement cell”. It is interesting to note that the court order forced Tatour away from her house and family to relocate in a settlement near Tel Aviv, which is a contradiction in of itself. Tatour was charged with incitement and posing a threat to the safety and security of the public, so how is it possible for the court to place her under house arrest among Israeli settlers while simultaneously posing a threat to their safety in the eyes of the court?

In September 2016, the court decided to allow Tatour to move back to her own house in Al-Reineh town under the same conditions and restrictions until a ruling is issued on the incitement charge in 2018. While under house arrest in her house, she was allowed to receive visitors, which led to an outpour of media attention that made her case one of public opinion. As a result, the court allowed her to leave her house for 6 hours per week. Six months prior to the ruling, the court allowed her to leave her house accompanied by one of her legal sponsors (family members) from 9AM to 7PM.

On July 31st, 2018, the Nazareth Magistrate’s Court sentenced Tatour to suspended five months of actual jail time, of which she served two. She was released from Damon prison on September 21st, 2018.

Such measures, procedures, restrictions, and conditions aim to oppress and persecute as the sentence and the sentencing conditions do not commensurate the action. Tatour’s case is a prime example of the hyperpoly that takes place in incitement cases, as well the continuous attempts to repress Palestinians in the territories occupied in 1948. On the other hand, Israelis, from the top of the political pyramid, wage a mass-scale incitement campaign against Palestinians. The Arab Center for the Advancement of Social Media “7amleh” stated in its Index of Racism and Incitement in the Israeli Social Media of 2017 that every 71 seconds there is an inciting post uploaded against Palestinians[4]. Even though Israelis are subject to the same laws Tatour is, no Israeli has been arrested, forcibly transferred or relocated from their community, banned from communication, accused of incitement, or sentenced to actual time behind bars. Israeli court rulings on incitement in Jerusalem and the territories occupied in 1948 are the epitome of the double standards and selectivity in carrying out the law on nationalist grounds.

Arrests in the West Bank

The Israeli military prosecution base their decisions in incitement charges against Palestinians in the West Bank, which is subject to Israeli military orders, to articles 251 and 199 of chapter G of the order regarding Security Provisions (consolidated version) No. 1651 of 2009[5].

Under the incitement and support of hostile organization, the above mentioned articles detail the actions with which Palestinians are accused of incitement:

- Attempting, orally or otherwise, to influence public opinion in the Area in a manner which may harm public peace or public order.

- Carrying out any action or holding in his possession any object with the intention of executing or facilitating the execution of an attempt to influence public opinion in the Area in a manner which may harm public peace or public order.

- Publishing words of praise, sympathy or support for a hostile organization, its actions or objectives.

- Carrying out an action expressing identification with a hostile organization, with its actions or its objectives or sympathy for them. This is by flying a flag, displaying a symbol or slogan or playing an anthem or voicing a slogan, or any similar explicit action clearly expressing such identification or sympathy. Also, this should all in a public place or in a manner that persons in a public place are able to see or hear such expression of identification or sympathy.

An analysis of more than 30 charge sheets issued by Ofer and Salem military courts in 2016 and 2017 shows that the military prosecution filed the charges in accordance to the articles and included examples from the prisoners’ private social media accounts.

Prisoner Nour Mohammad, 26, from Beit Jala was charged with incitement by Ofer military court in accordance to articles 251 and 199 from chapter G of the military order. Notably, under the incitement charge, the charge sheet detailed 15 posts published by the prisoner between 2013 and 2016. The sheet detailed the pictures and videos shared by the prisoner, his accompanying comments, as well the number of shares and likes garnered by each post. In addition, the charge sheet clearly noted that Mohammad had 2,334 friends on his Facebook account. The referenced posts included pictures of martyrs, speeches by members of Palestinian resistance movements, as well comments on these posts. Mohammad received a 24-month sentence of actual jail time, a suspended 36-month jail sentence, and a 4000 NIS fine.[6]

Charge sheets against journalists: Sanabel Radio Staff - Case Study

On August 31st, 2016, Sanabel Radio in Dora city in Hebron was raided. The Israeli forces confiscated all the radio property and broadcast equipment, closed the station for 60 days, as well arrested the entire staff: Mohammad Omran (the midday news presenter), Hamed Nammura (the sound engineer), Ahmad Darawish (the station manager), Nidal Amro, and Montaser Nassar.

The staff members were served with charge sheets that included incitement, support of a hostile organization, and publishing information of military value. The charge sheets detailed accusations that the radio station broadcast songs of inciting nature and comments inciting violence, as well covered the Israeli army movement during city raids. The charge sheets also detailed every post shared on the radio station’s Facebook page, including dates and followers’ engagement. Each item of the charge sheets specified the nature of the posts, whether reports, news, or songs, as well the number of likes, comments, and shares they garnered.  

On October 6th, 2016, the judge of Ofer first-instance military court ordered their release on bail and third-party guarantee, stating that their actions fall under their right to freedom of expression. The judge justified his ruling saying, “Even though some of the posts include material that can be considered inciting, there were no aggravating circumstances and their posts did not call on the public to carry out actions in real life. Taking into account their right to freedom of expression, alternatives to incarceration are sufficient.” Nonetheless, the military prosecution successfully appealed the ruling, keeping the staff members under arrest in line with the policy that attributes the recent wave of violence to incitement rather than the Israeli practices against Palestinians. Ahmad Omran was sentenced to sixteen months of actual jail time and a 1000 NIS fine. Nidal Amro and Montaser Nassar were each sentenced to 22 months in prison and a 5000 NIS fine, while Hamed Nammura and Ahmad Darawish were released on May 25th, 2018.

Moreover, a large number of Palestinians are held under administrative detention because of their Facebook posts, without clarifying the nature of the posts under the pretext of confidential material.

Case study: Abdel Salam Al-Masri, 23 years old

Al-Masri was arrested on August 1st, 2017 and was charged with two items: first, incitement and support of a hostile organization on Facebook in violation of Articles 251(B) 1, 3, and 4, as well publishing posts inciting terror and disrupting public security and safety. This charge detailed Facebook posts Al-Masri shared since the start of the year, including ones mourning martyrs. The prosecution detailed the number of likes, comments, and shares on every post as an indicator of his Facebook friends’ engagement on the platform. The second charge was entering Israel without a permit.

Salem military court sentenced Al-Masri to three months of actual jail time and a 2000 NIS fine.  After fully serving his sentence, and on the day of his release from Naqab prison on October 18th 2017, the military judge handed Al-Masri a four-month administrative detention order. He was not interrogated on new charges, but rather received an administrative detention order based on confidential material which A-Masri nor his representatives from Addameer were allowed to view. The arbitrary nature of Al-Masri’s case highlights the dangers of the Israeli policy and practices in regard to charges of incitement, and the use of incitement as a pretext of the unjustified detention of Palestinians. The Israeli occupation could have immediately handed Al-Masri an administrative detention order; however, they intentionally sentenced him and waited until he served his sentence before he was placed under administrative detention without any new charges. The lack of new charges is further proven with the fact that he did not undergo new interrogation after he served his sentence. It was alleged that Al-Masri posed a threat to the public safety and security, which is a flimsy allegation that has been exhausted in administrative detention cases.

Freedom of expression and opinion is an integral principle of the international law, with Article 19.1 and 19.2 of the International Covenant on Civil and Political Rights stating that “everyone shall have the right to hold opinions without interference”, and “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”[7] in accordance with the Universal Declaration of Human Rights. In addition, the right to freedom of expression and opinion is guaranteed in Article 9 of the African Charter on Human and Peoples' Rights, Article 13 of the American Convention on Human Rights, and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On August 28th, 2018, in the case of SavvaTerentyev v. Russia (application no. 10692/09), the European Court of Human Rights found that MrTerentyev’s online comments against the police were within his right to freedom of expression. The court also ruled that the domestic court’s conviction of MrTerentyev is a violation of Article 10 (freedom of expression) of the European Convention on Human Rights[8]. MrTerentyev had commented on a blog post on police oppression expressing his disdain for the corrupt police force, and calling on the Russian society to “burn” the cops as a first step to “cleanse society” of them. An investigation was opened in March of 2007 under legislation prohibiting incitement to hatred. He later on apologized for his comments, stating that he made a distinction between honest police officers and dishonest “cops” and that his calls to cleanse society of them had been an exaggerated emotional response to what he perceived as police abusive conduct. After calling witnesses and analyzing his comments, a court of first instance found him guilty in July of 2008 of “incitement to hatred and violent acts against police officers”. He received a one-year suspended prison sentence. After exhausting all domestic appeal avenues, MrTerentyev complained to the European Court of Human Rights that his conviction violated his civil rights in accordance to Article 10 on freedom of expression.

In its ruling following a thorough examination of MrTerentyev’s comments, the court found that while his language was offensive and shocking, the Court observed that his comments calling for the cleansing of the Russian society of cops had not been an actual call for killing police officers nor that he called for such violence against a particular officer or officers. The court also observed that there had been no clashes, disturbances, anti-police riots, or atmosphere of hostility and hatred that meant his statements could have caused a real threat of physical violence against officers. Moreover, the court found it difficult to regard the police force as a “vulnerable group” that requires a “heightened level of protection” against online commentary. The court went on to say, “In fact, the police had to show a particular tolerance to criticism unless they were faced with inflammatory speech that could lead to immediate violence against them.”

The European Court of Human rights stated that the domestic courts had “concentrated on the form and tenor” of MrTerentyev’s words and failed to look at the overall context, adding that the courts failed to present “any explanation for finding that his actions had been a danger to national security.” Commenting on the decision of the domestic court of first instance to imprison him and infringe on his freedom, the European Court of Human Rights said that a prison sentence should only be used in “exceptional circumstances when it came to debates on issues of legitimate public interest.” In its entirety, this ruling shows that the majority of online content does not exceed an emotional response that can not reasonably be interpreted as threats of imminent danger unless in exceptional circumstances. Thus the Israeli mass arbitrary arrests targeting Palestinians for online posts is considered a form of collective punishment, as well an arbitrary oppressive policy that aims to violate the Palestinian people’s right to freedom of expression and opinion.

Second: Bill for the Removal From the Internet of Content Whose Publication Constitutes an Offense of 2016 (Facebook Bill)

On January 3rd, 2017, the Knesset passed in first reading the Facebook Bill allowing for the removal of terror-inciting online content. The bill has been initiated by Justice Minister Ayelet Shaked and Public Security Minister Gilad Erdan[9].

The bill allows a state representative or any other public employee to file a request in the Administrative Affairs Court to delete inciting content for constituting a criminal offense. The court judge will be allowed to issue an order instructing social networking companies such as Facebook, Twitter and Google to remove inflammatory content from their sites if the judge believes that publishing the content constitutes a criminal offense that may pose an actual threat to the safety and security of a person or the public if not deleted. The judge is authorized to issue a ruling with only a government representative present thus depriving the party who published the content of their right to a defense. Article 10/A allows the prosecution to submit confidential material to the court without the presence of the defendant and his representatives and without disclosing the nature of the material. In addition, Article 10/B grants the court the right to review the material and request additional details if deemed necessary without the presence of the defendant or his legal representatives.

On July 18th, 2018, the Israeli Prime Minister Benjamin Netanyahu halted the passage of the Facebook Bill into a law by postponing the second and third readings of the bill and removing it from the Knesset agenda. Yeidot Ahronot newspaper reported a statement from Netanyahu's Likud Party stating that “For fear of harming the freedom of expression and in order to ensure Israeli citizens' right to freely express criticism online, the prime minister has asked to stop the legislative process for the 'Facebook bill' and return it to its original version and purpose—preventing incitement to terrorism online.” The statement added that Netanyahu believes that the “current version of the bill enables a broad interpretation that may allow the censorship of opinions and cause serious harm to the freedom of expression in the State of Israel”[10]. Therefore Netanyahu’s decision not to pass the legislation was to review the law to prevent infringing on the rights of the Israeli citizens and solely include the occupation’s definition of incitement to primarily target the Palestinians, infringing on their freedom of expression and facilitate their legal pursuit.

Third: The Israeli occupation in all branches wages a war against so called “incitement”

According to Al Jazeera English report titled “Censored, surveilled: The Digital Occupation of Palestinians,” the Israeli occupation policy targeting Palestinians in regard to their posts on social media platforms exceeds “censorship.” The Israeli government launched an Arabic cyber unit in 2015 that developed algorithms to monitor social media platforms for certain keywords to uncover posts they claim might predict the possibility of carrying out activities against the occupation[11]. Nadim Nashif, the Executive Director of 7amleh, said “the general assumption nowadays is that all Palestinian social media users are under Israeli surveillance.” He said that the occupation later began to use a preventative profiling method known as “predictive policing”[12]. Nashif noted that the poet Dareen Tatour was arrested for saying “resist, my people, resist” rendering the word “resistance” as “forbidden”- an example of monitored words and phrases that can arguably indicate that their users will possibly carry out activities against the occupation[13].

Facebook administration: a duality in implementing standards and policies

Israeli Justice Minister Ayelet Shaked and Public Security Minister Gilad Erdan met with Facebook executives in 2016 and agreed to set up joint teams working to facilitate cooperation against what they referred to as “online incitement.” The meeting was attended by Joel Kaplan, vice president of Global Public Policy and Monika Bickert, Facebook’s head of product policy and counterterrorism[14]. Erdan stated, “Facebook and internet companies have a responsibility regarding the content they allow on their sites that encourages incitement and terror, and they should actively operate to monitor it”[15].

In a speech before the 16th World Summit of the International Institute for Counter Terrorism, Shaked said that between May and August of 2016, the Israeli government submitted 158 requests to Facebook  to remove content it deemed “incitement.” Facebook had obliged in 95% of the requests and deleted the posts. The government also requested Google-owned YouTube to delete published content; Youtube complied with 80% of the requests[16].

Facebook turns a blind eye to the systematic incitement against Palestinians on its platform. There are roughly 50,000 Israeli Facebook users, each of whom has shared at least one post inciting against Palestinians in 2017[17]. Examples of inciting posts calling for the killing of Palestinians and prompting Israelis to exercise violence against them are beyond count. Nonetheless, these examples fall under hate speech stipulated in Article 12 of Facebook community standards[18].

Conclusions and Recommendations:

• The arrest and legal pursuit of Palestinian activists on social media platforms has become a deliberate tactic of the occupation that developed new policies and approaches to carry out arrests aimed at oppressing and infringing on the Palestinians’ right to freedom of expression. These practices leave the Palestinians feeling overwhelmed, confined, and under surveillance at all times. The occupation deliberately criminalizes all speech and criticism aimed against it and its policies in an attempt at hyperbole to link an opposing argument or criticism to acts of terror.
• Facebook and other social media platforms operate within a cyberspace that does not necessarily reflect reality or the true emotional state of its users, and thus cannot be used as a justification for infringements of rights. Equating online content to real-life action in Israeli courts is a purely arbitrary procedure; a comparison between actions on the ground and words on a screen is a false and unjust comparison.
• The Facebook Bill, if amended and passed in the Knesset, poses a grave threat and mirrors the racist Jewish nation-state law. The bill primarily undermines the principles of the right to a fair trial by expanding the executive authority’s power to monitor Palestinian individuals’ posts, deprive them of their right to legal representation, and provide a legal cover of these practices under the pretext of confidential material. The bill coincides with the mass arrests targeting Palestinians on charges of incitement relating to posts shared on social media platforms.
• Facebook must adhere to the criteria of objectivity, as well must not prioritize political interests over the principles of equal treatment of its users. Facebook should adhere to the principles of impartiality and legality, should not exercise prejudice in its dealings with users, as well should work within the United Nations Guiding Principles for Business and Human Rights of 2011.
• Addameer recommends the international community, in particular Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, to hold the Israeli government accountable for its rights-infringing policies practiced against the Palestinian people, especially since Israel ratified the International Covenant on Civil and Political Rights of 1966.
• The Palestinian local community, its civil society institutions, human rights activists, and lawyers should stand against this phenomenon and battle it in court, particularly with precedents of high and suspended sentences, and hefty fines. The community should also reiterate that arrests in relation to freedom of opinion and expression are unjustified and arbitrary.