Capital question for press regulator

By Trevor Asserson, August 24, 2012

For too long Israel's detractors have sought to use the legal process to broadcast the case against Israel. But recently, Asserson Law Offices, acting for media watchdog HonestReporting, showed that the legal process can and indeed should be used to make the case for Israel.

A free press is a fundamental element of any democratic society and this freedom is enshrined in law, in Article 10 of the European Convention on Human Rights. However, there must be limits to freedom. The law restricts the press from publishing defamatory material or statements which could incite racial hatred. In the UK, mainstream newspapers submit to a system of self-regulation operated by the Press Complaints Commission (PCC) that restricts newspapers from publishing information which is "inaccurate, misleading or distorted".

In the event that a newspaper publishes something which falls into this category, members of the public can lodge a complaint with the PCC and the PCC will then decide whether the newspaper has acted in breach of the Editors' Code of Practice and whether to order appropriate remedial action.

The Guardian newspaper has long painted a picture of Israel that is at best distorted and sometimes slips into pure invention. For example, earlier this year, the newspaper claimed "Jerusalem is not the capital of Israel, Tel Aviv is". In response, HonestReporting lodged a complaint to the PCC claiming that the newspaper's statement regarding Tel Aviv was inaccurate and therefore in breach of the Editors' Code of Practice. The complaint was clearly correct.

In an extraordinary move, on May 21, the PCC decided not to uphold the complaint and stated that the Guardian "was entitled to refer to Tel Aviv as the capital of Israel".

The reasons that the PCC gave for its astounding ruling were that "Jerusalem is not recognised by many countries" as Israel's capital and that "those nations enjoying diplomatic relations with Israel have their embassies in Tel Aviv".

The PCC is a public body and is therefore subject to judicial review. Likewise, it is obliged to act reasonably. All decisions must be made in a reasonable fashion, in accordance with the Code of Practice, taking into account only those considerations that are relevant. The PCC's decision regarding Tel Aviv was unreasonable, taking account of irrelevant considerations and was also in breach of the Code.

The fact is that it is plainly inaccurate to refer to Tel Aviv as the capital city of Israel. The Oxford English Dictionary defines capital city as: "The city or town that functions as the seat of government and administrative centre of a country or region".

All three branches of Israel's central government (its legislature, primary executive offices and Supreme Court) are located in Jerusalem and not Tel Aviv, as are the residences of both the Prime Minister and the President. On this basis alone it is clear that Jerusalem is the capital of Israel and, by a process of elimination, that Tel Aviv is not. To put the matter beyond doubt, Israel's legislature passed a law in 1980 that provides that "Jerusalem… is the capital of Israel".

While it is true that as a matter of international law, the borders of the state of Israel are not settled and the status of East Jerusalem is contentious, this does not alter the fact that Jerusalem is de facto the capital. Furthermore, the existence of controversy over Jerusalem has no bearing on the status of Tel Aviv. The contentious status of Jerusalem in international law, cannot mean that it is accurate to state that "Tel Aviv is the capital of Israel".

A sovereign state has the right to designate the location of its capital city. It is an internal domestic question, in relation to which international law does not concern itself. A sovereign state may for example decide to relocate its capital city as did Brazil (from Rio de Janeiro to Brasilia in 1960), Pakistan (from Karachi to Islamabad in 1959), Nigeria (from Lagos to Abuja in 1975) and Germany (from Bonn to Berlin in 1990). It can even divide its capital. South Africa simultaneously places its capital in three different places. The foreign embassies are located principally in only one of the three.

Statements in the British media that deny that Jerusalem is Israel's capital and that seek to designate Tel Aviv as its capital are not just innocuous falsehoods. These statements betray an attempt to undermine Israel's right to act as a sovereign state. These statements imply that Israel, unlike any other sovereign state in the global community of nations, does not have the right to designate the location of its capital city. It would be equally ridiculous to suggest that a country's domestic decision as to its currency and official language is a question for international law. It is clearly not.

HonestReporting decided that it could not let such a statement stand. Accordingly they instructed our firm to write a preliminary letter to the PCC threatening judicial review, in the event that the PCC did not rescind its clearly flawed decision. The threat of judicial review caused the PCC to rescind its decision, which in turn prompted the editor of the Guardian to address the original complaint.

As a result of threatened legal action against the PCC the Guardian printed a correction that stated "we accept that it is wrong to state that Tel Aviv - the country's financial and diplomatic centre - is the capital". This is a rare concession from the Guardian.

It will not surprise people to see how far a newspaper is prepared to restate reality when writing about Israel. It should be of concern that a public body such as the PCC should make such a clearly wrong decision. It is at least refreshing that the prospect of Judicial Review wonderfully concentrated the PCC mind.

This piece was co-written by Baruch Baigel. The authors are solicitors at Asserson Law Offices, an English law firm based in Jerusalem, Tel Aviv and London

Last updated: 3:45pm, August 24 2012