A Media Advisor-Client Privilege Would Be Inimical to Anticorruption in Israel

The ongoing corruption trial of Israel’s Opposition Leader Benjamin Netanyahu (who stepped down as Israel’s Prime Minister in mid-June 2021 after 12 consecutive years of service, replaced by Naftali Bennett), as well as the investigations that took place before it, have triggered a wide variety of legislative reform proposals. Members of the Knesset (Israel’s parliament) who oppose Netanyahu have proposed bills that would prevent individuals with sufficiently serious prior criminal convictions from serving as the Prime Minister (which Netanyahu is planning on trying to do again), or bar certain criminal defendants from running for Israel’s Presidency (which some had formerly speculated Netanyahu may do). Knesset members from Netanyahu’s Likud Party, on the other hand, have pushed to bolster protections for criminal suspects and defendants, especially elected officials. For example, Likud members have proposed bills that would prohibit some forms of recording of public servants, or make it more difficult for the prosecution to appeal acquittals.

The fact that the criminal proceeding against Netanyahu has relied in substantial part on the incriminating key testimony of Netanyahu’s former media advisor (who became a “state’s witness” in 2018) is the likely (though not explicit) motivation for another recently proposed bill that would establish a “media advisor-client privilege,” according to which “matters and documents exchanged between a media advisor or a spokesperson and his [or her] client [] and which have a material relation to the services provided” could not be submitted as evidence unless the client waived this privilege. In other words, media advisors or spokespersons would generally be barred from testifying against their clients. The bill’s drafters argue that a media advisor-client privilege is justified for reasons similar to that of an attorney-client privilege—the need for “complete openness” between clients and their media advisors or spokespersons.

The impulse to resist the proposed media advisor-client privilege is understandable, given its seemingly blatant relationship to Netanyahu’s trial and the fact that its protection would be afforded to a very narrow class of powerful and wealthy criminal defendants. However, even though we should sometimes resist the impulse to oppose criminal justice reforms whose proponents have questionable motives, in this case even when considered independently from its problematic context, the proposal for media advisor-client privilege raises at least three strong anticorruption concerns that warrant its rejection:

  • First, and most important, there is no good reason for the law to afford special protection to the relationship between media advisors or spokespersons and their clients. The other privileges recognized by Israeli law, such as the attorney-client privilege, doctor-patient privilege, or psychologist-patient privilege, may hinder the ability to reach the factual truth in a case, but these privileges promote sufficiently important countervailing public interests, such as the provision of effective legal representation that serves the administration of justice, or better medical or mental treatment. But there is no strong public interest served by a media advisor-client privilege. Even if one agrees that “complete openness” between media advisors or spokespersons and their clients would improve the quality of services those professionals provide, this does not justify giving this relationship special legal protection. There is a strong public interest in a more direct and honest communication between government officials and the public, to be sure, but this interest is not obviously improved by helping media advisors and spokespersons “spin” for their clients more effectively.
  • Second, media advisors and spokespersons are most active during political campaigns for elections, which are widely considered to be “fountainhead[s] of corruption.” The testimony of media advisors or spokespersons surrounding the politicians during these periods – who, as the bill’s drafters argue, are “often the closest person[s] to [their] client” – can be key in learning about corruption involved in these campaigns. Indeed, it may not be possible for a corrupt politician to effectively conceal wrongdoing from his or her closest media advisors. But politicians who know that their communications with these advisors are privileged would feel freer to engage in corrupt acts that further their campaigns.
  • Third, unlike attorneys, doctors, psychologists, or most other professionals whose relationship with their clients/patients is legally privileged, there is no uniform legal or professional definition of “media advisors” or “spokespersons,” nor are there licensure, training, or other formal qualifications for these positions. There are also no legal standards for determining how the relationships between these professionals and their clients are established. As a practical matter, it would be nearly impossible to determine whether certain communications have a “material relation” to the services that media advisors or spokespersons provide. If communications with “media advisors” were privileged, then corrupt politicians who desire to protect their communications with their associates could do so easily by hiring all of them as “media advisors.”

There is very little reason to believe that the Knesset would adopt a media advisor-client privilege any time soon, due to the new government sworn in, together with the fast-paced progression of the trial against Netanyahu. However, the resistance to the bill should not be based solely on its drafters’ (allegedly) bad motives; instead, it should be outright rejected because it would make a bad law..

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