Case Summary and Outcome

Several Israeli human rights organizations filed a petition in the High Court to challenge the constitutionality of the Anti-Boycott Law claiming that the law was contrary to freedom of expression. The law allows civil 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. The Israeli High Court decided to uphold the majority of the Anti-Boycott Law as a proportionate limitation on the freedom of expression.

Columbia Global Freedom of Expression could not identify the official legal and government records on the case and that the information contained in this report was derived from secondary sources. It must be noted that media outlets may not provide complete information about this case. Additional information regarding this legal matter will be updated as an official source becomes available.

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Facts

Israeli human rights organization, Gush Shalom, along with several other human rights organizations (the “petitioners”) filed a petition to the Israel High Court challenging the constitutionality of the Law for the Prevention of Damage to the State of Israel through Boycott (the “Anti-Boycott Law”). The Israel Knesset enacted the Anti-Boycott Law in 2011 to prevent boycotts against Israel’s policies toward the Occupied Territories of Palestine.

The Anti-Boycott Law allows civil 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.” [1] The law also authorizes Israel’s Finance Ministry the imposition of financial penalties “on any organization receiving state funds that makes calls for boycott.” [2] Furthermore, the law establishes that “[b]idding on public tenders would be restricted to companies or organizations that do not participate in boycotts.” [3]

The petitioners asserted that the Anti-Boycott Law was contrary to the freedom of expression, respect and equality. Moreover, they submitted that the law “harms the public debate on the most burning and controversial issues.” [4]

 

[1] Revital Hovel, High Court Largely Upholds Controversial ‘Anti-Boycott Law’, Haaretz, April 16, 2015, http://www.haaretz.com/israel-news/.premium-1.652019

[2] Dalia Hatuqa, Israel’s anti-boycott law to ‘muzzle’ Palestinians, Al Jazeera, May 12, 2015, http://www.aljazeera.com/news/2015/05/150509080554926.html

[3] Israel: Anti-Boycott Law Stifles Expression, Human Rights Watch, July 13, 2011, https://www.hrw.org/news/2011/07/13/israel-anti-boycott-bill-stifles-expression

[4] Revital Hovel, High Court Largely Upholds Controversial ‘Anti-Boycott Law’, Haaretz, April 16, 2015, http://www.haaretz.com/israel-news/.premium-1.652019

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Decision Overview

Justice Hanan Melcer delivered the majority opinion of the High Court of Israel. The main issue before the Court was the constitutionality of the Anti-Boycott Law enacted by the Knesset in 2011. The majority confirmed the constitutionality of the Anti-Boycott Law. The High Court struck down a provision of the law that “allowed companies to sue those advocating a boycott for punitive damages without even showing any proof of harm.” [1]

Justice Melcer determined that, although the Anti-Boycott Law does affect the right to freedom of expression, “it advances a worthy cause and thus the harm done to freedom of expression is proportionate.” [2] Melcer added that boycotting was “not consistent with the true purpose of freedom of expression, and therefore is not protected speech.” [3] Furthermore, Judge Melcer established that the law does not impose criminal prohibition on the right to freedom of expression. Melcer asserted that a lawsuit against a boycott would face a “very high standard of proof in terms of showing direct causation between a specific boycott and economic losses, and that general proof or the mere announcement of a boycott would not suffice.” [4] Finally, Melcer favored the authorization conferred by the law to the Finance Ministry to impose financial restrictions and remove tax-exemptions to organizations that call for boycotts against Israel “on the principle that the state need not feed those who try to undermine it.”

The minority opinion established that the Anti-Boycott Law undermines the right to freedom of expression with regards to boycotts against Israeli settlements in the occupied territories of Palestine. Justice Danzinger, in his dissent, asserted that the “call for a boycott is consistent with the purposes of free expression.” [5] He added that a boycott “displays a lack of desire to support and finance behaviors that the boycotter feels are unworthy.” [6] He also submitted that declining to show support to Israel’s policy in the Occupied Territories “is a form of political expression that clearly falls under political free speech.” [7] Danzinger concluded that “those who call for a boycott of the settlements deserve the full protection embodied in the Israeli constitutional regime for political expression.” [8]

 

[1] Dispatches: Israeli Supreme Court Upholds ‘Anti-Boycott Law’, Human Rights Watch, April 18, 2015, https://www.hrw.org/news/2015/04/18/dispatches-israeli-supreme-court-upholds-anti-boycott-law

[2] Revital Hovel, High Court Largely Upholds Controversial ‘Anti-Boycott Law’, Haaretz, April 16, 2015, http://www.haaretz.com/israel-news/.premium-1.652019

[3] Michael Schaeffer Omer-Man, High Court upholds controversial ‘boycott law’, +972 Magazine, April 15, 2015, http://972mag.com/high-court-upholds-controversial-boycott-law/105528/

[4] Yonah Jeremy Bob, High Court upholds part of Anti-Boycott Law, strikes part and splits on ‘1967 Israel’, The Jerusalem Post, April 15, 2015, http://www.jpost.com/Israel-News/Politics-And-Diplomacy/High-Court-rules-on-boycott-law-398206

[5] Revital Hovel, High Court Largely Upholds Controversial ‘Anti-Boycott Law’, Haaretz, April 16, 2015, http://www.haaretz.com/israel-news/.premium-1.652019

[6] Revital Hovel, High Court Largely Upholds Controversial ‘Anti-Boycott Law’, Haaretz, April 16, 2015, http://www.haaretz.com/israel-news/.premium-1.652019

[7] Akiva Eldar, Israeli High Court Upholds anti-boycott law, Al Monitor, April 27, 2015, http://www.al-monitor.com/pulse/originals/2015/04/israel-law-high-court-boycott-west-bank-settlements-justice.html#

[8] Akiva Eldar, Israeli High Court Upholds anti-boycott law, Al Monitor, April 27, 2015, http://www.al-monitor.com/pulse/originals/2015/04/israel-law-high-court-boycott-west-bank-settlements-justice.html#

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