The Knesset Constitution, Law, and Justice Committee approved on Wednesday, June 6, its first reading of an amended Boycott Law sponsored by MK Yoav Kish (Likud). The current law states that calling for a boycott against a person or body because of his ties to the State of Israel, the occupied Palestinian territories or to its institutions constitutes a tort and allows various administrative restrictions on those calling for the boycott. The proposed amendment would add to the current law the possibility of filing a compensation claim without proof for damages of up to NIS 100,000, as well as a compensation claim for punitive damages of up to NIS 500,000.
Nine far-right coalition MKs supported the proposed ammendment: Committee Chairman MK Nissan Slomiansky, MKs Yoav Kisch, David Bitan, Miki Makhluf Zohar (Likud), Tali Ploskov (Kulanu), Michael Malkieli (Shas), Uri Maklev (United Torah Judaism), Shuli Mualem Rafaeli (HaBayit HaYehudi) , Hamad Amar (Yisrael Beiteinu).
The opinion of the committee’s legal advisor published prior to discussion of the amendment stated that “due to the nature of the restriction on freedom of expression, the court ruled in the Avnery judgment [a Supreme Court case decision of 2015 related to the Boycott Law] that the tort provision approaches the constitutional boundary and can be approved only if the plaintiff proves he suffered damage, and proves a causal connection between the call to boycott and the damage.”
“In addition, the court also rejected the provisions of section 2(c) of the law, which allows imposing damages, for example, on the offender that do not require proof of damage and the existence of a causal link between the wrongful behavior and the damage,” the opinion says. “In view of the above, we believe the addition of a compensation provision without proof of damage, as well as a punitive damage provision, even if they include a ‘ceiling’ limit, raises significant constitutional difficulties.”
Far-right Knesset Constitution Committee Chairman MK Nissan Slomiansky (HaBayit HaYehudi) insisted, “The bill is correct, and it means that those who boycott Israel will be fined. I am not going to sue for specific damage but to impose a punishment so the body will not do it again. The Supreme Court’s ruling is inconsistent with the bill and the question of who is the legislator here.”
The Constitution Committee Legal Advisor Attorney Gur Blay argued the law raises significant constitutional difficulties: “It’s clear that the call for a boycott has offensive elements, but it still comes under freedom of expression and is widely used in the country when calling for boycotting this or that singer, or a factory that doesn’t observe labor or Shabbat laws. From a practical point of view, the law will be applied mainly in domestic Israeli suits and less vis-à-vis BDS organizations abroad.
“In the Avnery Supreme Court case that dealt with the Boycott Law, the section on punitive damages was annulled, and the Court further ruled that for the basic offense to meet constitutional requirements, a causal connection must be established. Therefore, there is great tension between the judgment and the law as it is formulated today, because in both proposed provisions, the requirement for a causal link to the damage is waived. With regard to the claim that the law as it is today does not apply – how do we know that? It would have been possible to examine had there actually been claims that would have failed, but in practice there were hardly any claims,” the Legal Advisor said.
Hadash MK Dov Khenin (Joint List) expressed anger at the law, saying, “What stands behind this approach is [the government’s intent of] cancelling the Court’s authority to interpret laws. You want to cancel the courts and replace them. In the end, the Supreme Court will reject the bill because it has already rejected this amendment. Opposition to the boycott is widely accepted, with the exception of a boycott of settlements. I think that the settlements are a disaster and a real danger to the future of the State, and therefore I will do everything as an Israeli patriot to stop them.”
“A law that conflates bans of the State with bans of settlements creates great confusion and has another serious consequence by in itself encouraging a boycott of Israel. You are taking the State of Israel to a place where it is actually encouraging boycotts against itself. Therefore, if we read the original law as such, it would have to be applied against Culture Minister [Miri] Regev, who caused a boycott of Israel [by initiating the exhibition match between Argentina and Israel]. MK Kish must initiate such an investigation against her because, on the practical level, she promoted a boycott,” claimed Khenin.
Similarly, Meretz MK Mossi Raz said, “If you want to implement the law, put Miri Regev on trial…. The whole purpose of this bill is to limit freedom of speech. I am against boycotts of Israel and for boycotts of illegal settlements, which are immoral…. Boycotting is a legitimate tool in Judaism. A man who refuses to give his wife a divorce can be boycotted [or excommunicated], so why not for other reasons?”
Deputy Attorney General Erez Kaminitz said, “We expressed our position in the Ministerial Committee that this proposal poses significant constitutional difficulties that cast doubt on the ability to advance this legislation both in the Supreme Court and for us. The Ministerial Committee’s decision was that it would be promoted with agreement of the Justice Minister, the Strategic Affairs Minister, and the Jerusalem and Diaspora Affairs Minister, and this has not yet been done.
“It was also decided that the proposal would be returned to the Ministerial Committee before voting in a first reading. Insofar as there is no such Ministerial Committee discussion, it means the government opposes the bill. The Supreme Court recognized this injustice solely because it is conducted in the usual manner with damages in which the nature of the damage and the causal connection to the damage done must be proven. When there is an injustice of defamation, the harm is the very injurious statement and the injurious statement harms the person. The wrongdoing is also the damage. We have not been impressed to this day that there is difficulty either in proving the damage or in proving the causal relationship.”
“There’s also difficulty in skipping the causal link and the damage. What remains is that any expression calling for boycott is liable to be answered immediately with a lawsuit, regardless of whether damage was caused and whether it was related to the expression, when the opposite situation may occur that the boycott call increases consumption of the boycotted product. This can lead to absurd results,” the Deputy Attorney General said.