The High Court of Justice on Wednesday upheld the so-called Anti-Boycott Law, which allows for damage suits to be filed against any person or entity that calls for an economic, cultural or academic boycott of Israel or “areas under its control,” a reference to the West Bank settlements.
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By a vote of 5-4, the court rejected petitions arguing that the law, which is aimed at facilitating civil suits against anyone calling for a boycott of products produced in the settlements or for an end to economic ties with Israel, unreasonably limits freedom of political expression by establishing a tort liability for encouraging a boycott.
But the court did unanimously strike down a section of the law that permits courts to impose unlimited compensation payments on those calling for a boycott even if no damages are proven. This section was liable to have “a chilling effect on political expression and lively social debate,” the court ruled.
This means that compensation can be imposed on boycotters only if damage or losses are established.
The petitioners, who argued that the law would have a chilling effect that would deter people from expressing a political position by calling for a boycott, objected to the ruling, saying it was silencing what a minority opinion called “one side of the political map” — namely, the left.
“Boycotts and encouraging divestment are recognized throughout the world as legitimate, nonviolent tools,” said the Women’s Coalition for Peace, which is one of the petitioners and had previously promoted boycotts and divestment. “In its decision today, the High Court is approving the silencing and restriction of legitimate protest aimed at criticizing and working to change Israeli policy.”
Justice Hanan Melcer, who wrote the ruling for the majority, said that while the Anti-Boycott Law indeed impinges on freedom of expression, overall it advances a worthy cause and thus the harm done to freedom of expression is proportionate.
“The law does not impose any criminal prohibition on political expressions as such, and the tort it establishes in the law relates solely to calling for a boycott, but does not impose tort liability on those who express the political position that underlies the call for a boycott,” he wrote. “Moreover, the harm done to the caller for a boycott is, as noted, limited. To establish grounds to sue for tort liability requires many elements — proof of damage, a causal link between the tort and the damage, and awareness of the reasonable possibility of damage. What’s more, even if tort liability is imposed on the caller of a boycott, the compensation to be imposed on him cannot exceed the actual damage caused.”
The Law for Prevention of Damage to the State of Israel through Boycott, which was passed in July 2011, authorizes the finance minister to impose financial penalties, including the removal of tax-exempt status, on nongovernmental organizations that call for a boycott or commit to participate in one. The petition was filed by the Association of Civil Rights in Israel, Adalah, the Legal Center for Arab Minority Rights in Israel, Gush Shalom, Uri Avnery, MK Ahmad Tibi (Joint Arab List) and others. The petitioners claimed the law harms the rights to freedom of expression, respect and equality; and “places a ‘price tag’ on legitimate political expression. It harms the public debate on the most burning and controversial issues.” The judicial panel upheld this part of the law.
The ruling was made by an expanded panel of nine justices, among them former Supreme Court President Asher Grunis. This was Grunis’ final ruling as chief justice.
Melcer, Grunis and his successor, current Supreme Court President Miriam Naor, voted to uphold the Anti-Boycott Law, along with fellow justices Elyakim Rubinstein and Issac Amit. Justices Salim Joubran, Yoram Danziger, Uzi Vogelman and Neal Hendel made up the minority.
In his minority opinion, Danziger wrote that the law undermines free expression to an unreasonable extent.
“I believe that the call for a boycott is consistent with the purposes of free expression,” he wrote. “A boycott expresses disgust with the boycotted behavior. It displays a lack of desire to support and finance behaviors that the boycotter feels are unworthy and in the Israeli political reality, calls for boycotts of the State of Israel are heard from only one side of the political map. The law thus creates discrimination based on one’s position.”
The petitions against the law were filed by several human rights and minority rights organizations, including the Association for Civil Rights in Israel. “The law imposes a ‘price tag’ on legitimate political expression and harms public debate, on those very issues that are most urgent and controversial,” the petitioners have said.
Gaby Lasky, a lawyer who represented petitioner Gush Shalom in the case, also said the court was silencing the left.
“This is a regrettable decision with far-reaching ramifications; the High Court justices are changing Israeli constitutional law as we have known it to date and put the interests of perpetuating the settlement enterprise over all the state’s citizens’ basic right to freedom of expression,” said Lasky. “In essence, the Supreme Court has been swept up by the concept of the anti-democratic right, and has approved legislation that silences one side of the political map.”