Israeli judgment against New Zealand activists for Lorde’s “boycott” of Israel

Posted on October 14, 2018 by Maria Hook

Last year the New Zealand singer Lorde cancelled a concert in Tel Aviv following an open letter by two New Zealand-based activists urging her to take a stand on Israel’s illegal occupation of Palestine. A few weeks later, the two activists – Justine Sachs and Nadia Abu-Shanab – found themselves the subject of a civil claim brought in the Israeli court. The claim was brought by the Israeli law group Shurat HaDin, on behalf of three minors who had bought tickets to the concert, pursuant to Israel’s so-called Anti-Boycott Law (the Law for the Prevention of Damage to the State of Israel through Boycott). The Anti-Boycott Law provides that a person who makes a public call to boycott Israel commits a civil wrong and may be sued for damages (s 1). According to newspaper reports, Shurat HaDin claimed that the defendants’ call for boycott harmed the teenagers’ “artistic welfare”.

A few days ago, the Magistrates Court in Tel Aviv released a judgment upholding the claim and ordering the activists to pay NZ$18,000 in damages (plus costs). Counsel for Shurat HaDin has announced that they “will enforce this ruling in New Zealand, and go after [the defendants’] bank accounts until it has been fully realized”. The judgment has attracted world-wide attention. But the defendants, Sachs and Abu-Shanab, are adamant that they will not pay up, saying that “Israel has no right to police the political opinions of people across the world”, and that the claim “is a stunt of which the sole intention is to intimidate Israel’s critics”.

In this post, I want to offer some preliminary thoughts on the conflict of laws issues raised by the Israeli judgment. In particular, the post addresses – from a perspective of the New Zealand conflict of laws – the concern that the judgment represents some kind of jurisdictional overreach, before discussing the enforceability of the judgment in New Zealand or elsewhere.

Jurisdiction of the Israeli court to determine claim against New Zealand-based activists, in accordance with Israeli law

New Zealanders were quick to criticise the Israeli judgment as an illegitimate arrogation of power to police political opinions worldwide. Professor Gillespie from Waikato University, for example, described the judgment as “political theatre”, designed to cause fear that “if you’re critical of Israel, no matter where you are in the world, you could be sued”. The Free Speech Coalition tweeted that “[i]t is important that overseas threats of prosecution don’t lead to a chilling effect on speech within New Zealand” and that “the New Zealand campaigners should disregard this attempt at political censorship”. And Sam Bookman, in The Spinoff, wrote that it was “bizarre that two kiwis have become the first successful application of a law that was designed to silence critics and satisfy the needs of an increasingly authoritarian politician”. Even the Israel Institute of New Zealand spoke out against the judgment.

It should be noted that the claim in question was a civil claim brought by a private party seeking compensatory damages. It was not a criminal action brought by the Israeli government seeking to impose a fine or penalty, as suggested in some of the reporting on the matter. This point is worth emphasising because it means that, for the Israeli court, the question of whether or not it had jurisdiction to grant judgment against the New Zealand-based activists was a question of Israeli private international law. Notably, the Act is silent as to its cross-border scope (although the original draft Bill expressly contemplated its application to various groups of defendants, including foreign nationals). So the Israeli Parliament had left this question to the Israeli courts to resolve, in accordance with general rules and principles of Israeli private international law (see Arie Peled “The Israeli Anti-Boycott Law: Should Artists be Worried?” (2014) 32 Cardozo Arts & Entertainment Law Journal 751 at 769ff).

I am not an expert in Israeli private international law, and I do not have access to the decision, so I cannot comment on the validity of the Court’s decision as a matter of Israeli law (although I wonder whether the result would have been the same if the claim had been defended). What I wish to do instead, in light of the suggestions that the judgment amounts to a jurisdictional overreach, is to ask whether Israeli private international law here produced an outcome that infringed New Zealand notions of international comity or conflicts justice. In other words, is the judgment inconsistent with what New Zealand private international law would consider an appropriate or legitimate exercise of cross-border jurisdiction? In answering this question, it is helpful to distinguish between the court’s personal jurisdiction over the defendants, on the one hand, and its application of the Israeli Act to the defendants’ conduct, on the other.

Personal jurisdiction: First, the fact that the Israeli court exercised personal jurisdiction over the defendants is not in itself problematic. By comparison, New Zealand courts readily assume personal jurisdiction over foreign-based defendants, provided there is a sufficient connection of the claim to New Zealand (rr 6.27 and 6.28, High Court Rules). If the defendant is outside of New Zealand at the time of service of the claim, the court will exercise restraint in assuming jurisdiction over the defendant (Wing Hung Printing Co v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 (CA) at [27]-[30]), but the exercise of jurisdiction over foreign defendants is no longer considered exorbitant as a matter of principle. The greater the connection of the action to New Zealand, the more appropriate it is for the court to assume jurisdiction. The claim in this case alleged harm to Israeli individuals, as a result of the defendants’ plea that Lorde cancel her concert in Israel. Hence, there was a meaningful link between the action and Israel; and so, from a New Zealand perspective, it would be difficult to characterise the extent of the Israeli’s exercise of personal jurisdiction as exorbitant.

Application of Israeli law: The second issue, however, is not as clear-cut. Did the application of the Israeli Act to the defendants’ conduct go against New Zealand notions of comity or conflicts justice? A good starting point for this inquiry may be to look to public international law, and to ask whether Israel exceeded its prescriptive jurisdiction in applying domestic law (ie the Act) to foreign facts (ie the conduct of the New Zealand-based activists). But public international law merely defines the very outer limits of Israel’s prescriptive jurisdiction. It is private international law that helps us determine the proper reach of domestic law, using principles of subject-matter jurisdiction and choice of law. Is it unusual then, by reference to such principles commonly applicable in New Zealand (and elsewhere), that Israeli private international law led to the Act being applicable in this case?

At first sight, the answer may appear to be ‘no’. According to Israeli substantive law, claims under the Act are treated as civil wrongs (ie torts). If the same characterisation was applied for the purposes of private international law, a court might simply apply ordinary choice of law rules governing torts (see Peled “The Israeli Anti-Boycott Law”). The content of these rules differs from country to country, although the most common connecting factors are the locus delicti and the locus damni. Based on such choice of law rules, it would not be far-fetched to argue that Israeli law was the law applicable to the alleged wrong, given that the relevant harm here occurred in Israel. Thus, if the matter was characterised as tortious, it is difficult to see how New Zealanders could feel put out by the Israeli court’s application of Israeli law to the activities of New Zealand-based defendants.

But it is doubtful that claims under the Act should be characterised as ordinary civil wrongs for the purposes of private international law. Common law principles of characterisation require the court to consider the function of the substantive law in question, and to look beyond domestic forms or categorisations (see L Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (15th ed, Sweet & Maxwell, 2014) at para 2-039). The purpose of the process of characterisation is to identify the law that can most appropriately govern the issue, in light of the foreign connections of the claim (see Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [36]).

The key function of the Israeli Act is to proscribe conduct calling for the boycott of Israel. Claims under the Act thus differ from ordinary civil wrongs, such as the general economic torts, in that they are intrinsically linked to Israel. They are concerned with economic, cultural and academic damage caused by a boycott of Israel, rather than the boycott of any country. Forum laws that are specifically dedicated to the protection of domestic interests are not ordinarily suited to multilateralism (ie the application of a multilateral choice of law rule such as the lex loci delicti rule). This means that their scope is determined unilaterally. In the eyes of New Zealand private international law, what would be an appropriate unilateral delimitation of a statute in the nature of the Israeli Act?

This is not an easy question (not least because it involves an unlikely hypothetical scenario of New Zealand facing calls for political boycott). What is clear is that countries ordinarily avoid giving universal effect to their domestic laws: domestic laws do not apply to the entire world. So it would be necessary to impose some limitations on the court’s subject-matter jurisdiction. That is because it would be contrary to the interests of foreign states and parties to apply domestic law to conduct that lacks sufficient connection to the forum, in order to uphold distinctly domestic policies. The more forum-centred the policy, and the greater the interference with the defendant’s freedoms, the closer should be the connection to the forum before its law can be applied. (Compare, for example, the critical response to the broad application of US competition law by US courts on the basis of the so-called “effects doctrine”)

In my view, from a perspective of the New Zealand conflict of laws, application of the Israeli Act to the New Zealand activists raises legitimate concerns. The defendants’ call for boycott appeared in The Spinoff, a New Zealand publication. It was targeted at Lorde, a New Zealand singer. The Act imposes liability for an expression of political opinion, amounting to a significant interference with the defendants’ basic freedoms. The interference goes beyond the kind of interference ordinarily associated with civil wrongs (compare, for example, the torts of defamation or inducing breach of contract). Presumably the justification for extending liability to the New Zealand activists was that the harm was suffered in Israel. But the actionable harm, too, appears to be of a highly political nature (the teenagers apparently claimed that they suffered “damage to their good name as Israelis and Jews”). In these circumstances, when measured against New Zealand principles of subject-matter jurisdiction, the fact that the harm was suffered in Israel should not be sufficient to justify the application of the Israeli Act to New Zealand-based defendants.

Enforceability of the Israeli judgment in New Zealand

Counsel for Shurat HaDin apparently intends to enforce the Israeli judgment in New Zealand, pointing to reciprocal arrangements between New Zealand and Israel for the enforcement of foreign judgments. To the best of my knowledge, there is no such arrangement in place between the two states, which means that Shurat HaDin will have to rely on New Zealand’s common law rules on the enforcement of foreign judgments. These rules require Shurat HaDin to bring separate proceedings against the activists in New Zealand seeking enforcement of the Israeli judgment. In other words, the Israeli judgment has no direct effect in New Zealand.

A claim for enforcement will only succeed if it satisfies New Zealand rules on the enforcement of foreign judgments. These rules require that the Israeli court must have had personal jurisdiction over the defendants. Crucially, whether or not the Israeli court had personal jurisdiction over the defendants must be determined in accordance with New Zealand – not Israeli – rules of jurisdiction (Von Wyl v Engeler [1998] 3 NZLR 416 (CA)). However, New Zealand rules of personal jurisdiction apply much stricter standards when determining the jurisdiction of foreign courts (as opposed to the jurisdiction of the New Zealand court). They require that the defendants were present in the foreign country (ie Israel) at the time of being served with the original (is Israeli) proceedings, or that they submitted to the foreign (ie Israeli) court’s jurisdiction by taking a step in the proceeding (Von Wyl). It is not sufficient, as it would have been for the purposes of a claim in the New Zealand court (see above), that the claim had a real and substantial connection with Israel.

I am not familiar with the background to the case, but it appears that neither of these requirements – presence or submission – is satisfied here. In short, based on New Zealand law, the Israeli court probably lacked personal jurisdiction over the defendants, with the result that the judgment will not be enforceable here.

Even if the Israeli court was found to have had personal jurisdiction over the defendants (for example, because the defendants somehow submitted to the Israeli court’s jurisdiction), there is a good argument that the defendants would have a defence to enforcement on the basis that the Israeli judgment is contrary to public policy.

It is true that the defence of public policy imposes a high threshold. According to the Court of Appeal, enforcement would have to “shock the conscience” of a reasonable New Zealander, or “be contrary to New Zealand’s view of basic morality or a violation of essential principles of justice or moral interests in New Zealand” (Reeves v One World Challenge [2006] 2 NZLR 184 (CA) at [67], [104]). In Basing v Brown [2016] NZCA 525, [2017] 2 NZLR 93, the Court of Appeal seemed to require a breach of an “absolute” value, holding that application of Hong Kong law to determine the enforceability of a mandatory retirement age was not contrary to public policy – even though, based on the Human Rights Act 1883 (NZ), forced retirement would have breached the plaintiffs’ right to be free from age discrimination. (The decision was overturned by the Supreme Court on different grounds)

But, as I have argued before, New Zealand courts should take account of relevant connections to New Zealand when determining whether the defence of public policy can be invoked (Maria Hook and Jack Wass “The Employment Relations Act and its effect on contracts governed by foreign law” [2017] New Zealand Law Journal 80). Here, the judgment implicated conduct by New Zealand-based activists that was closely connected to New Zealand, in the form of the publication of an open letter by The Spinoff. The target of the letter, too, was a New Zealander. Based on New Zealand standards, publication of the letter amounted to an exercise of the right to freedom of expression, and it may be doubted whether the damages imposed were truly “compensatory” in nature. In these circumstances, the defence of public policy should be available. In fact, it has been argued that enforcement of a foreign judgment in such a case could amount to an interference by the New Zealand courts with the defendants’ right to freedom of expression, engaging the New Zealand Bill of Rights Act (see William Young J in Reeves at [90]).

Enforceability of the Israeli judgment in countries other than New Zealand

If the judgment is not enforceable in New Zealand, it is likely that its practical implications for the defendants will be limited. Of course, if the defendants were to travel to Israel or acquire assets there, Shurat HaDin could take steps to enforce the judgment locally. Counsel for Shurat HaDin has also indicated that they may seek to enforce the judgment in a third country, like the United States.

It is possible that US rules for the enforcement of foreign judgments would be easier to satisfy than those of New Zealand. In particular, in order to determine whether the Israeli court had personal jurisdiction over the defendants, some US courts would ask whether the defendants had sufficient “minimum contacts” with Israel. This inquiry is focused on American requirements of due process and may prove to be a relatively flexible tool (thus, it may be sufficient that the defendants intended to harm the plaintiffs in the forum state: Calder v Jones 465 US 783 (1984)). A defence of public policy, too, may be more difficult to satisfy, given that US lawmakers are currently considering their own Israel Anti-Boycott legislation. But even so, if the defendants do not have assets in the United States, and if any travel to the country involves only a temporary stay, it would prove challenging for Shurat HaDin to take effective enforcement action against the defendants there.

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