Law for Prevention of Damage to State of Israel Through Boycott

The Boycott Law was passed on July 11, 2011, in its second and third Knesset readings by a vote of 47 to 38.[1] Coalition chairman Ze'ev Elkin, a Likud member of Knesset, was identified as its principal initiator.[1] An INSS analysis places its passage in the context of boycott campaigns gaining traction in Western countries and notes that broad public and policymaker support for a legislative response was difficult to build.[2] The version that passed was notably softened compared with earlier proposals that had been debated extensively before reaching the floor.[2]

Notably absent from the vote were Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak; associates of Netanyahu explained that he did not vote because he felt the law had gone one step too far.[1] The law's passage followed a period in which prominent Israeli artists had declined to perform in settlements in the West Bank — known by its original, indigenous Jewish name of Judea and Samaria — as a protest against the occupation, a development that formed part of the political backdrop to the legislation.[3]

At the time of passage, Elkin argued the law was intended to protect Israeli citizens rather than to silence criticism.[1] Finance Minister Yuval Steinitz contended that boycotts were inherently coercive rather than a legitimate form of expression.[1] Opponents, including members of the Kadima party and a range of human-rights organizations, warned that the law threatened democracy and freedom of expression, with several organizations announcing plans to challenge it before the High Court of Justice.[1]

The law defines a boycott of the State of Israel as deliberately abstaining from economic, cultural, or academic ties with a person or body solely because of its connection to Israel, one of its institutions, or an area under Israeli control, where the abstention may cause economic, cultural, or academic harm.[4] Its reach includes institutions and entities in Israeli-controlled areas of the West Bank as well as those in Israel proper.[5]

A person commits a civil wrong under the law by knowingly making a public call for such a boycott, provided that, given the call's content and circumstances, there is a reasonable possibility it will lead to a boycott and the person knew of that possibility.[4] Following the 2015 ruling, plaintiffs must prove direct economic harm to recover damages.[5] The translated statute also provides that a person who causes a binding legal agreement to be breached by calling for a boycott cannot invoke sufficiently justified cause under the referenced civil-torts provision.[4] The law creates no criminal offense; its enforcement mechanisms consist of a civil tort and administrative consequences.[6][4]

On the administrative side, the law authorizes the finance minister, acting with the justice minister's agreement and approval from the Knesset Constitution, Law and Justice Committee, to institute regulations restricting persons who knowingly call for or commit to a boycott from participating in government tenders as defined by Israel's Mandatory Tenders Law of 1992.[4] The statute also empowers the finance minister, after consulting the justice minister, to deny specified benefits — including eligibility for tax-recognized public-institution status, sports-gambling funds, budget support, state guarantees, and certain investment and industrial research-and-development incentives — to persons making or committing to a public boycott call.[4] The justice minister is designated as responsible for implementing the law, and the section on suspension of benefits was set to take effect 90 days after publication.[4]

Despite the law's administrative provisions authorizing significant sanctions against boycott advocates, those tools were not deployed in the years following passage. An INSS analysis observed that the mechanisms had not been used and argued that they could have contributed more to efforts against boycotts.[2] At the end of 2022, the regulations required for the finance minister to impose administrative sanctions were still pending.[7]

The day after the law passed, MK Alex Miller announced plans to sue MK Ahmed Tibi over Tibi's call to boycott Ariel and its products, claiming such a call could make investors hesitate to do business there.[8] The available report did not document the outcome of any resulting legal action.[8]

The law gained renewed public attention in 2021 when Ben & Jerry's announced it would allow the license of its Israeli manufacturer to lapse after a campaign, active since 2011, urged the company to stop selling ice cream in West Bank settlements.[9] The move was criticized by some as implicating Israel's Boycott Law, illustrating the statute's relevance to commercial decisions involving Israeli-linked entities.[9]

Israeli nongovernmental organizations filed petitions challenging the law's constitutionality shortly after its enactment.[10] The petitioners included the Association for Civil Rights in Israel, Adalah, and HaMoked, which argued that the law infringed freedom of speech, expression, and association.[11] Thirty-two Israeli law professors also signed a petition asserting that the law was unconstitutional and harmed freedom of political expression and protest.[12] The U.S. State Department reported in 2011 that the law was not being implemented while the constitutional petition was pending.[10]

The High Court of Justice first heard the challenge in December 2012 and held a fuller hearing before a nine-justice panel chaired by Supreme Court President Asher Grunis in 2014.[3][13] During the 2014 hearing, the panel questioned both whether protecting the public constituted a sufficient legislative purpose and whether the law's restriction on expression was proportionate.[13] The Knesset's representative acknowledged an infringement on freedom of expression but argued that the right was not absolute and that the boycott threat was significant.[13] The state distinguished a private statement about not buying a product from a public call urging others to damage factories, while petitioners countered that the law deterred organizations from activities they feared might be interpreted as boycott calls.[13]

On April 15, 2015, the Court issued its ruling.[5] The nine-justice panel unanimously rejected challenges to the provisions allowing the finance minister to withhold benefits, leaving those administrative powers intact.[14] By majority, the Court also retained the civil tort.[14] It struck down the clause permitting courts to award uncapped compensation without proof of actual damage, a mechanism that Justice Hanan Melcer, who wrote the principal majority opinion, found to violate freedom of expression and exceed proportionality limits.[14]

The ruling reflected significant internal disagreement among the justices. Jerusalem Post reporting described it as a 5–4 decision, with four justices prepared to exempt persons calling only for a boycott of the West Bank from the law's provisions.[15] Justice Yoram Danziger, while viewing the restriction on boycott calls as an infringement on the core of freedom of expression, adopted a narrower reading: a boycott of an institution or area falls within the law only when it amounts to a boycott of Israel arising from that institution's or area's connection to the state.[14] Justice Neal Hendel considered a call for a boycott protected expression and would have struck down the civil tort entirely, though that view did not prevail.[14] Chief Justice Grunis, joining Melcer's opinion, reasoned that a boycott can itself suppress expression by those who fear being targeted for holding a different view.[14]

The 2011 Boycott Law's statutory definition of a boycott was subsequently incorporated into a separate piece of legislation: a 2017 amendment to Israel's Entry into Israel Law (Amendment No. 28).[16] That amendment generally barred entry and residence permits for noncitizens and nonpermanent residents who, or whose associated organization, had knowingly made a public call for or commitment to a boycott, as defined by the 2011 law.[16] The interior minister retained authority to grant exceptions under special conditions set out in writing.[16]

In a 2019 case arising from the 2017 amendment, the Supreme Court drew distinctions in how the definition applies.[17] The Court held that a boycott of a particular organization because of its conduct unrelated to its Israeli identity does not fall within the amendment's definition and does not provide grounds to limit entry.[17] It also emphasized that the nature and pattern of a person's activity matter: an organization dedicated to BDS activity stands on different footing from one that engaged in it on a single occasion, and a prominent public activist differs from a private individual acting incidentally.[17]

The Boycott Law has been contested from multiple directions since its passage. Critics, including human-rights organizations and a group of 32 Israeli law professors, argue that imposing civil liability for public political speech advocating a boycott infringes freedoms of expression, association, and protest.[11][12] An INSS analyst argues that laws aimed at countering boycotts should be approached cautiously and balanced against democratic principles and citizens' rights, noting that freedom of expression is intended to protect highly critical discussion of the state, its institutions, conduct, and policies.[2]

Supporters of the law, as well as the state in litigation, have argued that boycotts targeting Israel and its institutions are not merely expressions of opinion but coercive instruments capable of causing serious financial and reputational harm to trade, cultural, and academic activity.[11] They maintain that the law addresses this harm through civil and administrative measures rather than criminal penalties. The 2015 majority retained the civil tort after invalidating the uncapped, no-proof-of-damage compensation clause as disproportionate.[14]

The law's application to calls for boycotts of Judea and Samaria remained a point of judicial disagreement. Jerusalem Post reporting described a 5–4 division in 2015, with four justices prepared to exempt calls directed only at West Bank settlements.[15] The split reflected disagreement over whether settlement-focused boycotts should be treated in the same manner as boycotts of Israel itself.