Case of the Day: Steinbach v. Sachs

Lorde singing

The case of the day is Steinbach v. Sachs (Jerusalem Mag. Ct. 2018). I only have a news article about the decision, and so I’m not sure if I’ve styled the case correctly or even about all the details of the decision. But it’s an interesting case worth writing about even without all the details.

The New Zealand singer, Lorde, canceled a June 2018 concert in Israel after pressure from activists from the BDS movement. A 2011 Israeli statute creates a cause of action for plaintiffs claiming injury because of such a boycott. In Avneri v. Knesset (2015), the Israeli Supreme Court upheld most of the provisions of the law. Three Israelis, Shoshana Steinbach, Ayelet Wertzel and Ahuva Frogel, sued Justine Sachs and Nadia Abu-Shanab under the law. The claim was that Sachs and Abu-Shanab had written an open letter, published on a New Zealand website, that had called on Lorde to cancel the concert. Steinbach et al. received refunds for the price of the tickets they had bought. The article doesn’t say where Sachs and Abu-Shanab lived, though other reports say they are both New Zealanders themselves. The claim was that the plaintiffs’ “‘artistic welfare’ was harmed as was their leisure time, ‘and above all damage to their good name as Israelis and Jews.’” The court awarded damages of NIS 45,000, plus legal fees. It’s unclear whether the defendants appeared in the case.

Let’s stipulate that the plaintiffs could prove that the open letter caused the cancellation, and let’s leave to the side the measure of damages. And let’s stipulate that the writers were either misguided or malicious. Could the court permissibly exercise jurisdiction over them? And what are the prospects for recognition of the judgment outside Israel?

I can only address the jurisdictional question from the perspective of international law, not from the perspective of internal Israeli law. The Restatement (Fourth) approach is that “with the significant exception of sovereign immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (Restatement (Fourth), Part III, Intro. Note). Even the Restatement (Third) (§ 421(2)(j)) approves of jurisdiction when the defendant “has carried on outside the state an activity having a substantial, direct, and foreseeable effect within the state, but only in respect of such activity.” So it seems that there is no jurisdictional barrier in international law.

Now, what about the likelihood of recognition and enforcement in New Zealand? Although the article references agreements between the two countries, I find no relevant treaty on the New Zealand government’s website, and guidance from a New Zealand law firm suggests that Israeli judgments, like American judgments, receive recognition at common law rather than under any statute.

I have to think that the chance of recognition is very low on public policy grounds. The speech here was political speech, and while I don’t claim to know anything about New Zealand law, most likely even foolish or wicked political speech gets robust protection. And to the extent the judgment included damages for defamation of the Jewish people, I question whether it is would be or should be recognized anywhere outside of Israel. (On the other hand, New Zealand has a hate speech statute: I can’t tell whether there is some argument that the writers’ speech here could come within its scope, but it seems unlikely). This, by the way, isn’t a criticism of New Zealand law. If it’s a criticism of anything, it’s a criticism of the Israeli statute. Israel is in the unenviable position of having to fight cultural boycotts and lawfare around the world. I don’t think that engaging in low-stakes, small-scale lawfare like this is the right way to go about it, or that it’s right to impose civil liability on wrongheaded political speech.

2 responses to “Case of the Day: Steinbach v. Sachs”

  1. Asa Markel

    Dear Mr. Folkman,

    I do not know if you have had the chance to read Maria Hook’s October 14 post on Conflict of concerning the prospects for the recognition in New Zealand of the Israeli judgment under the anti-boycott law. Personally, I think Israel’s anti-boycott legislation is unfortunate. It is not really in the same vein as the positions taken in the past by Mazuz (former AG) and Aaron Barak (former president of the Supreme Court). Israel, for all of its faults, has a Supreme Court which has historically been inspiring in its ability to stand up to the executive and uphold the law in a fashion necessary for a democratic society. The Barak Court’s opinion on torture in a democratic society, particularly one that has dealt with terrorism for so long, should be read by every law student in the free world. But, I digress. I did expect you to post this morning (10/19) regarding the recent decision of the Israeli Supreme Court to allow Lara Alqasem, a student of Palestinian extraction who was involved in boycotting actions in her past and who was detained and subject to deportation, to remain in Israel to study at the Hebrew University in Jerusalem. It strikes me that this opinion comes full circle and demonstrates that there continues to be a free, liberal bench and bar in Israel committed to higher principles than the platform of the current government or local bigotry (of those both inside and outside Israel), and people (and lawyers) elsewhere should be encouraging them to continue their work to foster real democracy in that part of the world.

    1. Asa, thanks for the comment! Yes, I did see Maria’s very informative post.

      I have mixed feelings about the wisdom of the anti-boycott law. On the one hand, the US itself has anti-boycott laws, and it would be very strange to say that we can legislate against the Arab boycott of Israel but Israel should not legislate against BDS. On the other hand, the distinction between expressions of thought and opinion and actual boycotts must be preserved, particularly in liberal societies like ours and like Israel’s. I agree with you that the Supreme Court’s decision is a good development.

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