Case of the Day: Steinbach v. Sachs
Posted on October 12, 2018
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.