The current law states that calling for a boycott against a person or body because of his ties to the State of Israel or to its institutions will constitute a tort and will also allow various administrative restrictions on those calling for the boycott.
The bill approved this morning in first reading adds the possibility of filing a compensation claim without proof for damages of up to NIS 100,000, as well as a compensation claim for example, for punitive damages of up to NIS 500,000.
The committee legal advisor's opinion that was published prior to discussion of the bill stated that "due to the nature of the restriction on freedom of expression, the court ruled in Avnery's judgment that the tort provision approaches the constitutional boundary and can be approved only if the plaintiff proves he suffered damage, and proves a causal connection between the call to boycott and the damage.
"In addition, the court also rejected the provisions of section 2(c) of the law, which allows imposing damages for example on the offender that do not require proof of damage and the existence of a causal link between the wrongful behavior and the damage," the opinion says. "In view of the above, we believe the addition of a compensation provision without proof of damage, as well as a punitive damage provision, even if they include a 'ceiling' limit, raises significant constitutional difficulties."
Knesset Constitution Committee Chairman MK Nissan Slomiansky (Jewish House), insisted "the bill is correct, and it means that those who boycott Israel will be fined. I'm not going to sue for specific damage but to impose a punishment so the body won't do it again. The Supreme Court's ruling is inconsistent with the bill and the question of who is the legislator here.
"Should we adapt ourselves to the Supreme Court, or should the Supreme Court adapt itself to the laws we legislate in the Knesset? My opinion is clear that if democracy is based on the Three Pillars, the ball returns to the legislative body to decide and determine, and the rest of the authorities will adjust themselves in accordance with its decision," stressed Slomiansky.
MK Yoav Kish (Likud), the law's initiator, said at the hearing, "How symbolic that today we discuss an amendment to the Boycott Law. Against BDS we must be united and make a clear call that the State of Israel cannot be boycotted. Unfortunately following the Supreme Court ruling the law was emptied of content and not used for seven years. In the game with Argentina there's no doubt that Jibril Rajoub's activity was significant in canceling the game.
"This tool is meant to hurt those who harm us, against all those who are happy they canceled the game with Argentina. Rajoub is doing it systematically and we'll work against him. A boycott of Israel must carry a painful price, especially if it comes from within us."
Referring to the committee legal advisor's opinion, he said it would be necessary to promote the law with the Overrule Clause. "In Israel it's good that there's broad freedom of expression, but a boycott is not freedom of expression. The Knesset said that seven years ago and it's time for us to act against those who act against us systematically and maliciously."
The Constitution Committee Legal Advisor Attorney Gur Blay argued the law raises significant constitutional difficulties: "It's clear that the call for a boycott has offensive elements, but it still comes under freedom of expression and is widely used in the country when calling for boycotting this or that singer, or a factory that doesn't observe labor or Shabbat laws. From a practical point of view, the law will be applied mainly in domestic Israeli suits and less vis-à-vis BDS organizations abroad.
"In the Avnery Supreme Court case that dealt with the Boycott Law, the section on punitive damages was annulled, and the Court further ruled that for the basic offense to meet constitutional requirements, a causal connection must be established. Therefore, there's great tension between the judgment and the law as it's formulated today, because in both proposed provisions, the requirement for a causal link to the damage is waived. With regard to the claim that the law as it is today doesn't apply - how do we know that? It would have been possible to examine had there actually been claims that would have failed, but in practice there were hardly any claims," the Legal Advisor said.
MK Dov Boris Khenin (Joint Arab List) expressed anger at the law, saying, "What stands behind this approach is cancelling the Court's authority to interpret laws. You want to cancel the courts and replace them. In the end, the Supreme Court will reject the bill because it has already rejected this amendment. Opposition to the boycott is widely accepted, with the exception of a boycott of settlements. I think that the settlements are a disaster and a real danger to the future of the State, and therefore I'll do everything as an Israeli patriot to stop them.
"A law that ties bans of the State with bans of settlements together creates great confusion and has another serious consequence of it itself encouraging a boycott of Israel. You're taking the State of Israel to such a place that it's actually encouraging a boycott against itself. Therefore, if we read the original law as such, it would have to act against Culture Minister Regev, who caused a boycott of Israel. MK Kish must initiate such an investigation against her, because on the practical level she promoted a boycott," claimed Khenin.
MK Yael German (Yesh Atid) said "Abroad, they don't distinguish between Israel and Judea and Samaria, and therefore I oppose the boycott both in Judea and Samaria and in Tel Aviv. Israel failed in the struggle and the proof is what happened this morning when the game was canceled. When we must fight for something absolutely fundamental to us, we must maintain the balance with basic rights and take care beyond all else not to become, out of fear of a boycott or terror and wars, a totalitarian regime that forgot that human rights exist. In this balance, I accept the ruling of the Supreme Court that says we have the right to fight a boycott but with limits."
MK Merav Michaeli (Zionist Union) said sarcastically, "It's great if we can pass a law that the Supreme Court invalidated and weakened. Double the profit stands before us when we stick another finger in the Supreme Court's eye. Israel chose not to recognize the territories of Judea and Samaria as part of it and you are entangling the State with these territories.
"Over and over we discuss the Regulation Law, the law of applying Israeli law to a military court in the territories, and you don't distinguish between Judea and Samaria and Israel, and that's exactly what BDS does. The concept of compensation without proof of damage refers to harm to a person that is difficult to prove and quantify. You take this term and turn it against human rights," said Michaeli.
Deputy Attorney General Erez Kaminitz said, "We expressed our position in the Ministerial Committee that this proposal poses significant constitutional difficulties that cast doubt on the ability to advance this legislation both in the Supreme Court and for us. The Ministerial Committee's decision was that it would be promoted with agreement of the Justice Minister, the Strategic Affairs Minister, and the Jerusalem and Diaspora Affairs Minister, and this hasn't yet been done.
"It was also decided that the proposal would be returned to the Ministerial Committee before voting in a first reading. Insofar as there's no such Ministerial Committee discussion, it means the government opposes the bill. The Supreme Court recognized this injustice solely because it's conducted in the usual manner with damages in which the nature of the damage and the causal connection to the damage done must be proven. When there is an injustice of defamation, the harm is the very injurious statement and the person is harmed by the injurious statement. The wrongdoing is also the damage. We haven't been impressed to this day that there's difficulty either in proving the damage or in proving the causal relationship.
"In the very unfortunate event of today (cancellation of Argentina's team arrival), if the producer suffers economic damage due to the cancellation he'll be able to quantify the damage quite easily. The causal connection was not seen as difficult to prove, so it's not clear why we should jump in such a situation to an exceptional law of torts, while standing in front of us is a constitutional violation of the first order.
"There's also difficulty in skipping the causal link and the damage. What remains is that any expression calling for boycott is liable to be answered immediately with a lawsuit, regardless of whether damage was caused and whether it was related to the expression, when the opposite situation may occur that the boycott call increases consumption of the boycotted product. This can lead to absurd results," the Deputy Attorney General said.
Nine MKs supported the proposal: Committee Chairman MK Nissan Slomiansky, MKs Yoav Kisch, David Bitan, Miki Makhluf Zohar (Likud), Tali Ploskov (Kulanu), Michael Malkieli (Shas), Uri Maklev (United Torah Judaism), Shuli Mualem Rafaeli (Jewish Home), Hamad Amar (Yisrael Beiteinu).
Opposition members attended the committee but did not vote on the bill.