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Law professor's warnings should Israel pursue NZers over canned Lorde gig

17 October 2018 - By Craig Stephen

A legal academic says any moves to chase two New Zealanders ordered by an Israeli court to pay damages over the campaign to encourage the singer Lorde to cancel a gig in the Middle East would set a dangerous precendent.

The star had planned to play in Tel Aviv in June 2018 but cancelled the concert last December following intervention from Palestinian rights campaigners.

It is being widely reported in New Zealand media that two New Zealanders – named as Justine Sachs and Nadia Abu-Shanab - were pivotal in explaining to the singer of hits such as Royals and Green Light about the Palestinian plight.

The Jerusalem Magistrate's Court has ordered the activists to pay the equivalent of NZ$12,000 in damages for allegedly convincing Lorde to cancel the show.

A lawsuit against them cited the 2011 Israeli Anti-Boycott Law, which allows for civil suits against groups who call for a boycott of Israel, The Jerusalem Post reported.

"This decision makes it clear that anyone who calls for a boycott against the State of Israel could find themselves liable for damages and need to pay compensation to those hurt by the boycott call, if they're in Israel or outside it," attorney Nitsana Darshan-Leitner, who filed the lawsuit, is quoted in the newspaper.

Freedom of speech argument

But Professor Alexander Gillespie of the University of Waikato Law School feels that would be a long shot.

“I really cannot see how Israel can enforce this,” he told the New Zealand Law Society. “They are not, as far as I can see, within our obligations under the 1934 Reciprocal Enforcement of Judgments Act.  This being so, they could try at common law. But doing this would run into a very strong freedom of speech argument via the Bill of Rights.” 

Professor Gillespie says that aspect is covered by article 14, on freedom of speech.

“If Israel was allowed to prosecute Kiwis for words they said in New Zealand that were offensive in Israel, then a very dangerous precedent would be set.”

Another legal academic says while Israel could chase the pair in New Zealand, it could open up a can of worms.

“The courts are certainly able to enforce the judgment and I think MFAT has said it is up to the courts to decide, but there are a few issues that the courts might want to take a closer look at,” says Professor Alberto Costi of the Victoria University of Wellington Law School.  

“Although I do not disagree with Al Gillespie about the threat to freedom of expression, my main concern relates to the extraterritorial reach of the Israeli legislation and how it aims to affect the conduct of persons who are not located in Israel and who do not seem to have a genuine link with the country.

“If they are based here, would they have been expected to travel or seek representation in Israel to defend the claim? It seems to me to be an issue of natural justice in a generic sense.”

Last updated on the 16th September 2019