Commentary: The two women who wrote an open letter on the Spinoff are being pursued under an Israeli law designed to prevent ‘damage to the state of Israel through boycott’. But is it a serious threat, and could it really impact people living in another country? Law professor Andrew Geddis writes.

For “a small, publicly-funded, Auckland-based millennial website specialising in television listicles, ‘pop-culture’, and fake news”, The Spinoff sure does seem to stir up a lot of trouble. In particular, its publication of an open letter to Lorde from two young women opposed to Israel’s occupation of Palestinian territories not only appears to have influenced the cancellation of her Tel Aviv concert, but now has sparked an international legal incident.

For as the Washington Post – you know, that famous newspaper that’s in movie theatres at the moment – explains:

“On Wednesday, Shurat HaDin, the Israel Law Center, announced it had filed a lawsuit on behalf of three Israeli teenagers — fans of the Grammy Award winner who had purchased tickets to her Tel Aviv concert — against two New Zealand-based activists linked to the BDS (Boycott Divestment and Sanctions) Movement who it says persuaded Lorde to reconsider performing in Tel Aviv.”

A spokesperson for Shurat HaDin then told RNZ’s Morning Report that the action was being brought by three 17-year-old girls who will be joining the army in a year and “who were extremely disappointed” when they heard Lorde had cancelled her show. She indicated that damages of US$15,000 would be sought by way of compensation.

Let’s pause to note that the once-fearsome Israeli Defence Forces now appear to be relying on poor snowflakes so, so very much disappointed they didn’t get to see a music concert that they now need lots of money to feel better. That fact seems to me to pose a greater threat to Israel than does the BDS movement.

However, these three teenagers and their bruised expectations aren’t really the point. They’re simply convenient foot soldiers in a broader act of lawfare against the BDS movement. Here’s the legal (and unavoidably political) background to it.

Back in 2011, the Israeli knesset (parliament) passed legislation – “Law for the Prevention of Damage to the State of Israel Through Boycott (2011)” – that permitted individuals or companies impacted by the BDS movement to sue for damages in Israeli courts. As the Shurat HaDin spokesperson freely admitted to RNZ, the point of this law was to enable Israel to counter that movement by imposing a potential cost on those participating in it.

Nevertheless, it appears that this legislation has not yet actually resulted in any judgments against anyone. That may be because in 2015 the Israel Supreme Court, while upholding the wider law, required anyone suing under it to prove actual damage caused by someone’s BDS participation. Showing a direct causative effect between a call to boycott and some particular loss, as well as quantifying the resulting loss in money terms, is not easy.

(For this reason, the Knesset currently is considering – and looks likely to pass – an amendment law allowing “damages” to be imposed without such proof of loss, but this amendment doesn’t seem to be in force yet.)

We might therefore take Shurat HaDin’s claim that it’s intending to bring an action in Israel’s courts with a grain of salt. As any frequent observer of Winston Peters can tell you, a threat that “I’m going to sue!” does not always result in an actual trial taking place. The headline attention gained by the claimed lawsuit often can be enough of a result.

And even if Shurat HaDin does follow through on its threatened action, the US$15,000 damages claim looks to be … somewhat optimistic. I mean, maybe Israeli teens really are super, super sensitive to emotional distress, but given that pre-sale tickets to the Tel Aviv show reportedly cost US$82 there’s a hell of a difference between the price paid for the pleasure of seeing Lorde and the now claimed pain of not getting to see her.

But let’s move away from the Israeli law and look back here in Aotearoa New Zealand. Let’s say that Shurat HaDin and its three foot soldiers do follow through on this case, do somehow succeed in an Israeli court and are given some amount of damages (up to the US$15,000 they are claiming). What, if anything, then follows for the defendants as residents of Aotearoa New Zealand?

As you may have noticed, Israel and Aotearoa New Zealand are different countries, and so Israeli judicial decisions have no direct or immediate effect within our borders. The Washington Post, however, suggests that this small fact isn’t that important: “Although the case will be heard in a Jerusalem court, the law applies to foreign citizens and the ruling is binding abroad, according to international legal treaties.”

With all due respect to Ruth Eglash, that article’s author, and her esteemed news organ, I call bullshit. We have no such treaty with Israel; it is not one of the countries to which our Reciprocal Enforcement of Judgments Act 1934 applies. As such, before any Israeli award of damages could have any effect here in Aotearoa New Zealand, Shurat HaDin would have to bring a specific action to enforce that judgment in the New Zealand High Court.

As this process is one I also am not an expert on, I turned to my colleague here at Otago University’s law faculty, Dr Maria Hook, who does know a lot about the topic. Here’s what she told me:

“Before granting enforcement of an Israeli judgment, the New Zealand courts would apply a common law test that requires Shurat HaDin to show the Israeli courts had personal jurisdiction over the defendants [the open letters’ authors]. In essence, this means the defendants were personally present in Israel at the time the case was initiated or that they submitted to the Court’s jurisdiction by taking a step in the proceeding.”

So, it is not enough that under Israeli law the Israeli courts can hear a case against foreign residents and deliver judgment on it. Before our courts here in Aotearoa New Zealand will enforce any judgment from the Israeli courts, it must meet our common law rules. This then has important implications, as Maria points out:

“The key is for the defendants not to do something silly like accidentally submit to the Israeli Court’s jurisdiction by taking a substantive step in the proceeding. If they do so, they may inadvertently provide grounds for a New Zealand court to enforce any resulting judgment.”

What about the fact that any judgment from the Israeli court would, in effect, involve imposing a monetary sanction on the defendants for expressing their opinions about what Lorde should do? Doesn’t that then involve a breach of their right to freedom of expression, as guaranteed under the New Zealand Bill of Rights Act 1990?

Maria had some thoughts on that matter, too:

“New Zealand courts can also refuse to enforce a foreign judgment on public policy grounds. However, the standard to succeed in a defence of public policy is incredibly high; the Court of Appeal has said that the test is whether the judgment would ‘shock the conscience of a reasonable New Zealander, be contrary to a New Zealander’s view of basic morality or violate an essential principle of justice or moral interests.’”

Maria then notes that a New Zealand court has not yet directly considered whether a foreign judgment that “unjustifiably limits” the right to freedom of expression in breach of our NZBORA meets this high threshold.

So, what is the take away from all of this? First, I think the threatened lawsuit is more political theatre than a realistic effort to recover any real purported “loss” from the open letter’s authors. Second, if the case is ever brought before an Israeli court, those authors should simply ignore it, because if they do try to participate then they run the risk of enabling any judgment to be enforced here in New Zealand. And third, no one should ever write anything for The Spinoff … there be dragons.