UKLFI: Supporting Israel with legal skills

Review Sought of Ofcom Decision to Allow Al Hiwar TV to call terrorist a Martyr

UK Lawyers for Israel (UKLFI) has requested a review of Ofcom’s assessment allowing Al Hiwar television to brand a terrorist murderer a “martyr”. Ofcom decided that it was acceptable for a media outlet to call the Hamas affiliated murderer of tour guide Eli Kay a ‘martyr’ on TV because the channel presented events from a ‘Palestinian perspective’.

The day after the murder of Eli Kay, an Israeli tour guide in Jerusalem, which took place on 21 November 2021, there was a discussion about it on Al Hiwar. The programme’s strapline included “A Palestinian’s martyrdom” and the presenter referred to the murderer as a “martyr”. Al Hiwar is an Arabic Language satellite TV channel based in London. Eli Kay’s killer was a member of Hamas, which called the incident “a heroic operation”.

At the date of the broadcast, the Hamas Armed Wing (Izz al-Din al-Qassem Brigades) was proscribed in the UK. The proscription has since been extended to the whole of Hamas, which is also designated as a terrorist organisation in many countries around the world.

UKLFI sent a complaint to Ofcom in December 2021, pointing out that Al Hiwar had breached section 3.1 of the Ofcom Code, which prohibits broadcasting of material “likely to encourage or incite the commission of crime or to lead to disorder”. However, UKLFI heard nothing back from Ofcom. The complaint was “assessed but not pursued” and UKLFI was not notified of any outcome.

Months after the complaint, in mid June 2022, an Ofcom spokesperson told the Jewish Chronicle the reason for its decision regarding the Al Hiwar programme: “This programme dealt with a range of ongoing topics related to tensions in the West Bank. In our view the statements made within it did not encourage terrorism. While we understand the use of the Arabic term ‘Shaheed’, meaning ‘martyr’, had the potential to offend, we took into account that viewers of this channel would expect programmes to be presented from a Palestinian perspective.”

UKLFI has requested that this decision be reviewed on the basis the Code was improperly applied.
According to Ofcom’s decision in this case, rules are not to be universally applied but must be varied according to an arbitrary perception of what the audience may be. In this case Ofcom applies a separate rule for a channel with viewers who had a “Palestinian perspective”. UKLFI argued that this cannot be the basis upon which Ofcom was founded nor the basis no which parliament intends that it should operate.

Sam Green, director of UKLFI who submitted the complaint said: “I consider that the decision-making process in this complaint was an improper application of the Ofcom Code. It was an application of the Code that was so unreasonable that no reasonable person acting reasonably could have made it. That is the principle derived from the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 which set the base line for Judicial Review of the decisions of public bodies.”

The Saudi Gazette defines a martyr as follows: “To die a martyr in the Islamic faith is one of the greatest honours. The rewards granted to the martyr are so sublime & are superior to the rewards for performing almost any other righteous act.”

The Collins Dictionary defines Shaeed in Islam as 1. A deceased person who has lived a life in accordance with the will of Allah and 2. A martyr to the Islamic faith. Both definitions are incendiary in this context and both in breach of the Ofcom code.

The fact it may be viewed predominantly by an audience with a ‘Palestinian perspective’ makes it even worse; they are exactly the people the words had most potential to incite.

UKLFI’s appeal to Ofcom asked “How does Ofcom know in any case that ‘viewers of this channel would expect programmes to be presented from a Palestinian perspective’? It is an extraordinary statement. What is a ‘Palestinian perspective’? Why is it considered to be singular and uniform? The phrase is condescending and sinister. It carries an expectation that an audience will think in a particular way rather than as individuals. If someone put out a programme called ‘how to commit benefit fraud’ and there were complaints about it, would Ofcom reject them on the basis that the audience was one likely to be accepting of benefit fraud?”

UKLFI has asked that the decision be reviewed on the basis the Code was improperly applied.