"Notwithstanding the above, I cannot accept the respondents' position in its entirety at this point. In my opinion, the Department's inquiries to the operators of online platforms should be regarded as governmental acts. ... In my view, in this state of affairs, in which there is a possibility that the Cyber Department's voluntary inquiries are a trigger for the 'enforcement' actions on behalf of the operators of the online platforms (which, as stated, we do not have any data about them), and that the Department's inquiries may have an impact on the judgment of the operators of the online platforms, there is a need for some kind of statutory authorization for the said cooperation."
Later, after a detailed study, we find (in paragraph 56):
"Thus, its actions within the framework of the voluntary enforcement track may constitute an administrative act of operational significance. Therefore, in accordance with the basic concepts of administrative law, in order to determine that the actions of the Cyber Department are lawful, they must be authorized by law, even if generally."
A similar position was also taken by the Honorable Justice Esther Hayut in her opinion (ibid., paragraph 4).
- The Supreme Court found that in the case before it, the residual power of the government by virtue of section 32 of the Basic Law: The Government (paragraph 59) was sufficient. The Court pointed to the case law according to which "the government cannot act by virtue of its residual authority in order to infringe upon the fundamental rights of individuals, which are enshrined in or implied by the Basic Laws" (ibid., paragraph 60), referring to the precedent established inthe High Court of Justice 5100/94 The Public Committee Against Torture in Israel v. Government of Israel (1999), in the words of the Honorable Justice Aharon Barak, that "the 'residual' authority of the government is not a source of authority that violates the liberty of the individual." However, in the case at hand, and on the basis of the evidentiary basis that was brought before it, the Supreme Court found that no violation of basic rights had been proven, in view of a number of characteristics, the main of which were the main ones.
First, it was held that "robots and actors have no human rights, and therefore there is no point in talking about infringement of their rights to freedom of expression," and in any case, the concern of infringement of the basic rights of the individual does not arise in that case. However, "when there is doubt as to whether the action is likely to lead to a real infringement of basic rights, extreme caution must be exercised..."