Why it’s best to ignore Israeli lawsuit over Lorde’s canceled show

“Israel’s unapologetic disregard for freedom of speech won’t wash with New Zealanders,” say activists reportedly sued by Mossad-linked group for writing open letter calling on Lorde to cancel her Tel Aviv show. (Kathryn Parson)

Ali Abunimah Activism and BDS Beat 1 February 2018

Two New Zealand activists have responded to reports they are being sued by an Israeli group linked to the Mossad spy agency over an open letter they wrote in December calling on pop singer Lorde to cancel a gig in Tel Aviv.

Justine Sachs and Nadia Abu-Shanab say that they have only heard about the lawsuit through media. “We have not received any summons or other formal notice,” they state. “On this basis, as far as we are concerned, this ‘case’ has no legitimacy.”

The lawsuit is supposedly being filed in Israel under a 2011 law that allows people to sue those who call for a boycott of Israel or its illegal settlements on occupied Palestinian land.

It is reportedly being filed on behalf of three Israeli teenagers who claim they suffered emotional injury because Lorde canceled her concert, and are asking for $13,000 in damages.

“We all loved Melodrama, but really?” Abu-Shanab and Sachs write, referencing Lorde’s Grammy-nominated album.

“Despite how ridiculous this all seems, it’s an important time to reflect” on how “Israel is attempting to suppress those who dare criticize their human rights abuses,” the activists say.

They point out that Shurat HaDin – the group behind the lawsuit – has a history of unsuccessful litigation around the world.

“These lawsuits went nowhere because they have no legal means nor jurisdiction to control what people can and cannot say about Israel abroad,” Abu-Shanab and Sachs state. “Israel’s unapologetic disregard for freedom of speech won’t wash with New Zealanders either.”

“With our open letter to Lorde we joined a chorus of millions of people across the world who are calling for justice and peace in Israel/Palestine,” the pair write, “people [who] know the boycott, divestment and sanctions campaign is a legitimate, nonviolent strategy to pressure Israel into ending its occupation and apartheid regime. No intimidation tactics can or will stifle this growing movement.”

Days after Abu-Shanab and Sachs published their 21 December open letter in New Zealand’s The Spinoff, Lorde canceled her show in Tel Aviv, calling it “the right decision.”

Legally dubious

Now a commentary by a law professor, also in The Spinoff, casts further doubt on the viability of the Israeli legal assault on Sachs and Abu-Shanab.

The University of Otago’s Andrew Geddis notes that even under the Israeli law, it will be very difficult for the plaintiffs to demonstrate damages, let alone the thousands of dollars claimed.

“I mean, maybe Israeli teens really are super, super sensitive to emotional distress, but given that pre-sale tickets to the Tel Aviv show reportedly cost $82 there’s a hell of a difference between the price paid for the pleasure of seeing Lorde and the now claimed pain of not getting to see her,” he writes.

But even if an Israeli court were to agree to Shurat HaDin’s claims, it is extremely unlikely that any judgment would be enforceable in New Zealand.

Geddis points out that there is no treaty between Israel and New Zealand for the automatic enforcement of legal judgments, so the plaintiffs would have to come to New Zealand and effectively sue all over again there.

Ignore it

According to Maria Hook, an international law expert consulted by Geddis, the Israeli plaintiffs would have to demonstrate that “the Israeli courts had personal jurisdiction over the defendants [the open letters’ authors]. In essence, this means the defendants were personally present in Israel at the time the case was initiated or that they submitted to the court’s jurisdiction by taking a step in the proceeding.”

And then Shurat HaDin would face the tall order of trying to get New Zealand’s high court to agree to enforce a foreign judgment that effectively condemns two New Zealand citizens for exercising freedom of expression guaranteed under their country’s bill of rights.

Geddis’ conclusion is that the threat of the lawsuit “is more political theater than a realistic effort to recover any real purported ‘loss’ from the open letter’s authors.”

“If the case is ever brought before an Israeli court, those authors should simply ignore it,” he advises, “because if they do try to participate then they run the risk of enabling any judgment to be enforced here in New Zealand.”

In short, as long as Abu-Shanab and Sachs do nothing – and they have already said they see the case as having no legitimacy – then Geddis says they are beyond the reach of Israel’s legal bullying.

And if Shurat HaDin really does come after the activists, there is no doubt they will be able to count on the backing of New Zealand’s strong Palestine solidarity community and supporters all over the world.