Summary of cases from the Israeli Supreme Court, 2019-2020

Judgments of Interest:

The Israeli Supreme Court published its annual list of the Court’s most important decisions delivered between September 2019 and December 2020. Below, we present abstracts of selected cases, and links to English translations where available.  The full Hebrew list can be viewed here. We also present a brief list of several recently published articles addressing or drawing upon Israeli law.

 

Articles of Interest:

Mohammed S. Wattad, The Nation State Law and the Arabic Language in Israel: Downgrading, Replicating or Upgrading? 54(2) Isr. L. Rev. 263 (https://doi.org/10.1017/S0021223721000078)

Alon Harel & Noam Kolt, Populist Rhetoric, False Mirroring, and the Courts, 18 Int. J. of Constitutional Law 746 (https://doi.org/10.1093/icon/moaa055)

Alon Margalit, Accounting for Those in the Hands of the Belligerent: Security Detainees, the Missing and the Dead in the Israeli–Hamas Conflict, 25 Journal of Conflict and Security Law 565 (https://doi.org/10.1093/jcsl/kraa019)

Shahaf Rabi & Avery Plaw, Israeli Compliance with Legal Guidelines for Targeted Killing, 53 Isr. L. Rev. 225 (https://doi.org/10.1017/S0021223720000059)

Yaniv Roznai, Who will save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy, 29 William & Mary Bill of Rights Journal 327 (https://www.idc.ac.il/en/_layouts/15/elad.sps.idc.sprint4/pages/handler.aspx?type=publication&publicationId=6989&userName=yroznai)

Elliot Setzer, Eighth Circuit Strikes Down Arkansas’s Anti-BDS Law, Lawfare (March 1, 2021) https://www.lawfareblog.com/eighth-circuit-strikes-down-arkansass-anti-bds-law

Rivka Weill, The Strategic Common Law Court of Aharon Barak and its Aftermath: On Judicially-led Constitutional Revolutions and Democratic Backsliding, 14 Law & Ethics of Human Rights 227(2020) (https://ssrn.com/abstract=3296578 or http://dx.doi.org/10.2139/ssrn.3296578)

Sharon Weill, Transitional Justice, Israel’s Escape Door from the ICC (https://www.justiceinfo.net/en/75114-transitional-justice-israel-escape-door-from-icc.html)

 

Selected Judgments from the 2019-2020 Supreme Court Term

 

Public Law:

 

1. HCJFH 10190/17 Military Commander v. Alian (Sept. 9, 2019): In a Further Hearing, the High Court of Justice held that the Military Commander of the Judea and Samaria Area may order the temporary burial of the corpses of terrorists for the purpose of negotiations, by virtue of reg. 133(3) of the Defence (Emergency) Regulations 1945. 

 

2. LAA 5040/18 A. v. Population and Immigration Authority (Feb. 9, 2020): The Court held that the threat of female genital mutilation in her country of origin could constitute grounds for granting asylum to a girl or woman (summary below).

 

3. HCJ 781/15 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (Feb. 27, 2020): The High Court of Justice held that excluding single men and same-sex couples who are genetically related to the embryo from the application of the Embryo Carrying Agreements Law disproportionately infringes the constitutional right to equality and the right to become a parent. However, the Court held that excluding persons who lack a genetic link to the embryo complies with the requirements of the Limitations Clause of Basic Law: Human Dignity and Liberty. 

 

4. HCJ 2144/20 Movement for Quality Government in Israel v. Speaker of the Knesset (March 23, 2020): The Court held that the refusal of the acting Knesset speaker to place the election of a permanent Speaker on the plenum’s agenda was one of the “special cases that threaten harm to the fabric of democratic life or to the fundamental structure of our parliamentary regime.” The Court granted an order absolute requiring the acting Speaker to convene the Knesset plenum as soon as possible, and no later than two days following the issuing of the order, for the purpose of electing a permanent Speaker of the 23rd Knesset. 

 

5. HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister (April 7, 2020): The Court held that there were no grounds for intervening in the government’s decision declaring the city of Bnei Brak a “restricted zone” due to the Coronavirus pandemic.

 

6. HCJ 2293/17 Garsegeber v. Knesset (April 24, 2020): The Court overturned the “Deposit Law” that required that workers who had entered Israel illegally deposit one-fifth of their salary, which would be returned to them upon leaving the country. The Court further held that a deposit in regard to such workers could be required from employer’s (summary below).

 

7. HCJ 2109/20 Ben Meir v. Prime Minister (April 26, 2020): The petitions in this case challenged the Government’s decision to authorize the Israel Security Agency to collect, process and use “technological information” regarding persons who had tested positive for the novel coronavirus. The Court held that such authorization required primary legislation. 

 

8. HCJ 1550/18 Secular Forum Association v. Minister of Health (April 30, 2020): This petition challenged the policy that prohibits hospital visitors from bringing food into hospitals on Passover, other than fresh fruit and vegetables and packaged food certified as kosher for Passover. The Court held that the sweeping prohibition infringed the patients’ right to autonomy, dignity and freedom from religion. The Court further held that in view of the requirement for express authority for administrative actions, hospitals lacked the authority to enforce the policy, and hospital security personnel were not authorized to search visitors’ belongings for food items or issue any instructions in this regard (summary below).

 

9. HCJ 2592/20 Movement for Quality Government v. Attorney General (May 6, 2020): The Court dismissed petitions challenging the appointment of Benjamin Netanyahu to form a government and challenging the coalition agreement between the Likud and the Blue and White parties (summary below).

 

10. HCJ 8202/17 Center for the Blind v. Minister of Finance (May 27, 2020): The Court held that the policy by which persons entitled to monthly support due to severely impaired vision were provided significantly less support than that provided under the “Mobility Agreement” to persons with limited mobility was discriminatory. The Court ordered retroactive compensation equal to the support provided under the Mobility Agreement (summary below).

 

11. HCJ 1308/17 Silwad Municipality v. Knesset (June 9, 2020): The Court declared the Regulation of Settlement in Judea and Samaria Law, 5777-2017, unconstitutional due to its disproportionate infringement of the basic rights to property, equality and dignity of Palestinian residents of Judea and Samaria (summary below).

 

12. HCJ 5078/20 Fadida v. Israel Police – Jerusalem District Commander (Aug. 19, 2020): The Court dismissed a petition by residents of the neighborhoods adjoining the Prime Minister’s Residence to order the police to prevent demonstrations in the area of the Residence, or to restrict them, subject to instructions to the police in regard to limitations upon noise (summary below).

 

13. HCJ 4956/20 Movement for Quality Government v. Knesset (Aug. 20, 2020): The Court dismissed petitions challenging the Knesset’s decision to appoint two members of the coalition as its representatives of the Judicial Selection Committee. The Court held that the petitioners had not proven the existence of a constitutional custom in this regard that would require the appointment of a member of the opposition (summary below).

 

14. HCJ 1591/18 A. v. Minister of Justice (Sept. 17, 2020): The Court held that the offence of “commerce in human beings” under sec. 377A of the Penal Law could apply to a situation in which a woman was coerced to marry (summary below).

 

15. HCJ 3865/20 Shukrun v. Kiryat Arba Municipal Council (Oct. 7, 2020): The Court ordered that the municipal swimming pool must be made available for “mixed” swimming (as opposed to separate swimming for men and women) at least two hours every day, inasmuch as the pool is a public resource that must be made available in a reasonable, fair and equal manner for all of the residents of the municipality (summary below).

 

Criminal Law:

1. CrimA 2487/18 Rizkhan v. State of Israel (Sept. 16, 2020): Dismissal of an appeal on the conviction and sentence of a rabbi who was convicted of offences of rape by deception for presentations made to the complainant of a “heavenly decree” in regard to the acts (summary below).

 

2. CrimA 3583/20 A. v. State of Israel (Sept. 11, 2020): The term “uncle” in the definition of “relative” under sec. 351(e) of the Penal Law, 5737-1977, for the purpose of a conviction of a sexual offence in regard to a minor within the family, cannot be construed to include a “functional uncle” who lacks any blood or marital tie to the victim’s family (summary below).

 

Civil Law:

1. LCA 1239/19 Shaul v. Nayadli Communications Ltd. (Jan. 8, 2020): “Sharing” on social media can serve as grounds for legal liability for defamation, whereas “likes” cannot serve as such grounds (summary below).

 

2. CA 7058/17 Melamed v. Leibowitz et al. (March 10, 2020): Recognition of the doctrine of the “innocent co-insured”, under which, in a case of multiple insured parties, the defense available to the insurer against an insured party for bad faith conduct does not necessarily apply to another insured party who acted in good faith (summary below).

 

3. LCA 1326/18 Smart Club Holdings Ltd. v. Cohen (Dec. 31, 2020): This case examined the issue of tortious liability when “spam” messages are sent in a party’s name by a contractor who provides advertising or marketing services (summary below).

Case Summaries

LAA 5040/18 A. v. Population and Immigration Authority (Feb. 9, 2020) (Justices Barak-Erez, Grosskopf, and Elron):

This judgment addressed recognition of refugee status on the basis of exposing a girl or woman to the threat of female genital mutilation (FGM) in her country of origin. The question arose in regard to a family from the Ivory Coast with two minor daughters. The State agreed that FGM could constitute grounds for refugee status but argued in favor of “internal relocation” in a different part of the country of origin. Justice Barak-Erez (Justice Grosskopf concurring, Justice Elron dissenting) explained that FGM could, indeed, ground a “well-founded fear of being persecuted” in accordance with its meaning in the Geneva Convention Relating to the Status of Refugees, and focused upon the controversial “internal relocation” exception under the UNCHR Guidelines on International Protection: “Internal Flight or Relocation Alternative” Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees.  Justice Barak-Erez held that the alternative must be relevant and reasonable, and addressed the questions that must be considered in that regard. It was further held that the burden of proof in regard to a relocation alternative rests upon the party arguing for it, i.e., the State.

Justice Elron agreed that the threat of FGM could ground refugee status in appropriate cases, but was of the opinion that the appeal should be dismissed in light of the State’s notice at the end of the proceedings that the appellants had been granted temporary resident status.

 

HCJ 2293/17 Garsegeber v. Knesset (April 24, 2020) (President Hayut, Deputy President Melcer, Justices Hendel, Vogelman, Amit, Sohlberg, and Karra):

            By an eight-to-one majority, the Court held that the provision of the Foreign Workers Law, 5751-1991, requiring that foreign workers who enter Israel illegally pay one-fifth of their salary as a deposit to be returned to them upon leaving Israel is unconstitutional and declared it void.

            The judgment focused upon sec. 4 of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014, that indirectly amended the Foreign Workers Law such that foreign workers who had infiltrated into Israel, and their employers, were required to deposit 36% of the worker’s wages into a dedicated account, which would be returned to the worker upon his leaving Israel. Under the arrangement, 16% of the worker’s wages would be paid by the employer (the employer’s part) and 20% of would be deducted from the employee’s wages (the worker’s part). The Court held that the provision requiring the deduction of the worker’s part, and it alone, was unconstitutional because, as opposed to the other elements of the arrangement, this provision clearly, concretely, and significantly infringed the right to property of the workers. As opposed to this, the Court was of the opinion that the provision requiring the deposit of the employer’s part could achieve the primary purpose of the deposit arrangement – creating a positive economic incentive for infiltrators to leave the country.

 

HCJ 1550/18 Secular Forum Association v. Minister of Health (April 30, 2020) (Justices Hendel, Vogelman, and Grosskopf):

            This petition challenged the prohibition instituted by hospitals on bringing food that was not certified as kosher for Passover into hospitals, and the enforcement of the prohibition by security staff. The Court (per Justice Vogelman, Justice Grosskopf concurring, Justice Hendel dissenting) granted the petitions, holding that the sweeping prohibition on bringing food (other than packaged food certified as kosher for Passover and fresh fruit and vegetables) during Passover infringed the basic right of patients and visitors to autonomy, dignity and freedom from religion.

            In view of the circumstances generally leading to hospitalization and its character, a patient’s room is his only available personal living space, thus the infringement of his rights is significant. The alternative offered by the Ministry of Health that patients could eat food not supplied by the hospital outside of the hospital buildings did not blunt the said infringement of rights. Moreover, the alternative was not available to many patients whose medical condition does not allow them to move about or exit the hospital building.

            The Court further held that there was no statutory source that would grant the hospitals clear authority to infringe the rights of patients in this regard, and that the hospital’s security personnel were not authorized to search visitors’ belongings for food not certified as kosher for Passover.

            In his dissent, Justice Hendel expressed the opinion that social and cultural factors justified reaching a consensual resolution of the issue among the interested parties themselves, without the Court’s intervention. He therefore recommended dismissing the petitions without prejudice, such that if the parties could not arrive at an agreed solution by the end of 2021, a new petition could be filed.

 

HCJ 2592/20 Movement for Quality Government v. Attorney General (May 6, 2020) (May 6, 2020) (President Hayut, Deputy President Melcer, Justices Hendel, Vogelman, Amit, Sohlberg, Barak-Erez, Mazuz, Baron, Karra, and Mintz):

            In a unanimous decision, the Court held that a pending information filed against a member of Knesset does not prohibit appointing him to compose a government and to head that government. Moreover, in accordance with precedent in regard to appointments to public office, according to which the questions of fitness and the discretion of the appointing actor must be addressed separately, the Court held that the only actors exercising discretion in this regard are the members of Knesset who recommend appointing a particular Knesset member to form the government. In this regard, it was held that the decision to ask the President to appoint a particular Knesset member to form the government is one that involves exercising broad political discretion, which is at the heart of the democratic process. Therefore, intervention in that discretion is restricted to rare, exceptional situations and extreme circumstances. The current case does not fall within that category.

            The Court also addressed the validity of the coalition agreement between the Likud and Blue and White parties. Although the agreement raised legal problems that were not insignificant, a political agreement between parties cannot, itself, legalize an action performed pursuant to it, nor could an action taken on the basis of the agreement make the action illegal. Therefore, inasmuch as the petition is not a procedure between the parties to the agreement in regard to its validity or enforcement, but rather a petition to prevent carrying out provisions of the agreement on the grounds that carrying out those provisions would be illegal, the question was not yet ripe for decision.

 

HCJ 8202/17 Center for the Blind v. Minister of Finance (May 27, 2020) (Deputy President Melcer, Justices Karra and Stein):

            The Court (per Justice A. Stein) granted a petition requesting that persons suffering from severely impaired vision be paid assistance support equal to the mobility payments paid to persons due to lower-body impairments who do not have an automobile. The mobility payments are grounded in the “Mobility Agreement” between the National Insurance Institute and the Ministry of Finance under sec. 9 of the National Insurance Law.

            Justice Stein began with a review the principles of Israel’s disability laws, focusing upon the principle of equality, and particularly upon its application to the disbursement of budgetary resources. Justice Stein explained that the requirement of equality in the distribution of resources derives from the general prohibition upon discrimination grounded in administrative law. In the framework of distributing social welfare funds, persons who belong to a group who share a common denominator, like the need for mobility assistance, should be treated equally. The mobility problems faced by persons with lower-body impairments are not greater than the mobility problems faced by persons suffering from severe visual impairment. Therefore, the difference between the support given to the two groups constitutes discrimination.

            The Court therefore ordered that the respondents pay persons with severe visual impairment support identical to that provided to persons with lower-body impairments who lack an automobile.

            Deputy President Melcer added that the discriminatory policy could also be rejected as reflecting a refusal to grant a “public service” to the visually impaired, in violation of sec. 19F(a) of the Equal Rights of Persons with Disabilities Law, as well as “in the light of the principles of freedom, justice, equity and peace of Jewish law and Israel’s heritage" (sec. 1 of Foundations of Law, 5740-1980).

 

HCJ 1308/17 Silwad Municipality v. Knesset (June 9, 2020) (President Hayut, Deputy President Melcer, Justices Hendel, Vogelman, Amit, Sohlberg, Barak-Erez, Mazuz, and Baron):

In an eight-to-one decision, the Court declared the Regulation of Settlement in Judea and Samaria Law, 5777-2017 (“the Regulation Law”), which was intended to retroactively legitimize illegal settlements in Judea and Samaria, unconstitutional and void. The Court held that the Regulation Law infringed the basic rights to property, equality and dignity of Palestinian residents of Judea and Samaria, while granting clear preference to the interests of Israelis. This, without any individual examination of the circumstances in which the settlements were created or the involvement of the State in their establishment, and without giving appropriate weight to the special status of the Palestinian residents of the area as “protected persons” in an area under belligerent occupation.

            The Court further held that the infringement did not meet the conditions of the Limitations Clause under Basic Law: Human Dignity and Liberty, particularly in view of the comprehensive nature of the arrangements established by the Regulation Law that addressed the settlements collectively, without distinction among its constituent elements.

            Under these circumstances, the Court concluded that the infringement of rights was clear and severe, and that there was no alternative but to conclude that the infringement was disproportionate, and that the harm caused by the law exceeded its benefits.

 

HCJ 5078/20 Fadida v. Israel Police – Jerusalem District Commander (Aug. 19, 2020) (Justices Vogelman, Wilner, and Stein):

            Sixty residents of the neighborhoods adjoining the Prime Minister’s Residence asked the Court to order the police to move the demonstrations at the site to another place, or to impose tighter restrictions. The Court (per Justice Vogelman, Justices Willner and Stein concurring) held that there were no grounds for intervening in the discretion of the police in regard to the conditions that it established for the demonstrations, subject to the outline the police recommended in regard to noise.

            The Court emphasized that the starting point for the examination was that the police lacks authority to require a permit for demonstrations, but it could impose restrictions upon time and place and the manner of conducting demonstrations for the purpose of preserving public order and safety by virtue of its general powers, subject to the standards established in the case law in view of the importance of the right to demonstrate.

            The Court was of the view that there were no grounds for ordering a change of venue, due to the symbolic importance of the prime minister’s official residence, and that the other restrictions imposed by the police on the length and frequency of the demonstrations were sufficient.

            As for the noise nuisance, the Court held that the outline presented by the police struck a proper balance between the demonstrators’ right to demonstrate and protest and the residents’ freedom to conduct their daily lives. In any event, the laws governing noise constituted a starting point for addressing the issue from which there could be no deviation.

 

HCJ 4956/20 Movement for Quality Government v. Knesset (Aug. 20, 2020) (Justices Amit, Barak-Erez, and Baron):

            The petitioners challenged the Knesset’s decision to appoint two members of the coalition as its representatives to the Judicial Selection Committee, contrary to a provision of the coalition agreement that            predetermined the representatives. The Court dismissed the petitioners’ argument in regard to the existence of an obligatory constitutional custom requiring that the Knesset appoint at least one member of the opposition to the committee, although the Court emphasized that providing representation to the opposition reflected the lege frerenda.

            Justice Amit stressed that the question of whether the Israeli legal system recognizes a doctrine of obligatory constitutional custom has not yet been decided. In any case, the petitioners had not proven the existence of such a custom in regard to opposition representation on the committee, particularly in the case of a unity government (“grand coalition”) or a “parity” government. Justice Amit held that the prevailing laws governing the issue “do not leave a crevice in which the alleged custom could take root, develop and flourish”. It was further held that while predetermining the names of the Knesset’s representatives in a coalition agreement was problematic, the fact that the representatives are ultimately chosen by the members of the Knesset in a secret ballot weakens the argument that their discretion is bound by the coalition agreement.

            Justice Barak-Erez surveyed the status of constitutional custom in comparative law, and expressed the opinion that it should be recognized in Israel. However, as elsewhere, such recognition does not go hand in hand with enforcement, particularly in regard to the legislature itself. Justice Baron suggested that as opposed to “constitutional custom”, there has been a “customary practice” in this regard since 1992, and the Knesset might do well to anchor that practice in appropriate legislation.

 

HCJ 1591/18 A. v. Minister of Justice (Sept. 17, 2020) (Justices Barak-Erez, Mazuz, and Willner):

            This judgment concerned a young woman who petitioned for recognition as a “victim of commerce in human beings” in accordance with government decisions on the subject (recognition that, in the case of an Israeli citizen like the petitioner, is primarily of importance in regard to social welfare benefits). When a minor, the petitioner was twice married to older men by her parents against her will. In the course of her first marriage, she attempted suicide several times. On the evening of her second wedding, her spouse forced himself upon her. She killed him the following day, was convicted of murder and served a prison term that ended with a pardon. The Court (per Justice Barak-Erez, Justices Mazuz and Willner concurring) granted the petition in part, ruling that the factual basis for the challenged decision was inadequate because it relied primarily upon the police file, and the authorities therefore had to reexamine the request on the basis of a more complete factual foundation, including a personal interview of the petitioner.

            On the general issue, the Court explained that the elements of the offence of commerce in human beings can also be met in the circumstances of a forced marriage. As for the procedure for examining the request, the Court held that in view of consequences of a decision in regard to a request for recognition on the rights of vulnerable populations, caution and care should be exercised in examining the administrative evidence. In his opinion, Justice Mazuz noted that the decision does not mean that all cases of forced marriage constitute an offence of commerce in human beings.

 

HCJ 3865/20 Shukrun v. Kiryat Arba Local Council (Oct. 7, 2020) (Justices Amit, Baron and Grosskopf):

            This petition challenged a decision by the Kiryat Arba municipal council that would only permit separate bathing for men and women in the town’s only swimming pool. The Court granted the petition, ordering that the pool be opened for mixed bathing two hours a day.

            Justice Amit noted that the Court does not tend to intervene in a municipal council’s discretion in allocating public resources. However, given that a large minority of the population desired mixed bathing, the council had breached its duty “to act in a reasonable, fair and equal manner in allocating the pool’s time as a public resource available to the residents of the municipality”.

            In his concurring opinion, Justice Grosskopf (Justices Amit and Baron concurring) added that the demand for gender separated swimming is one that inherently involves a gender-based distinction. Such a demand is contrary to the basic principle that a public service – particularly one provided by a public authority – must be provided on the basis of gender equality, without consideration of the sex of the person receiving the service. While in certain circumstances the law permits acceding to such a request in regard to swimming in public pools, it is a narrow exception and the rights of the public that wishes to receive the service without gender distinction must be preserved. Therefore, the decision to permit only separate swimming does not represent a choice between two equal alternatives in regard to the use of the pool, but rather the council’s surrender to a demand to apply the exception that permits gender separation, without preserving the petitioners’ right to application of the general rule according to which the public domain must be equal and free of gender distinctions.

            Justice Baron added that no one denies the right to the free exercise of religion of the residents who desire separate swimming. However, every person also enjoys the right to freedom from religion, and the right to decide how to live one’s life, to act in accordance with one’s conscience and worldview. The council’s decision not to allocate any hours for family bathing thus excluded the petitioners from the pool and infringed their right to dignity and freedom from religion.

 

Criminal Law:

CrimA 2487/18 Rizkhan v. State of Israel (Sept. 16, 2020) (Justices Hendel, Sohlberg and Willner):

            The appellant was a rabbi in the hareidi community in Bnei Brak, and was also known as a kabbalist. He was convicted in the Tel Aviv – Yafo District Court of three counts of rape by deceit under sec. 245(a)(2) of the Penal Law, 5737-1977, and four counts of indecent acts under sec. 348(a) in circumstances of deceit in regard to the nature of the act under sec. 345(a)(2). The appeal concerned only one of the counts, in regard to a seventeen-year-old victim. The appellant served as her family’s rabbi and spiritual counselor. He performed the acts after presenting them to the complainant as a Divine decree. The appellant argued that the complainant understood the nature of the acts and consented to them.

            The Court (per Justice Hendel, Justices Sohlberg and Willner concurring) dismissed the appeal, holding that the offense of rape focuses upon the question of freely given consent: Consent – not just a lack of resistance. Free – recognizing that consent obtained by deceit in regard to the identity of the person or the nature of the act is not freely given. The case law has recognized two types of deceit in regard to the nature of the act: when the victim does not understand that the act was sexual, and when the victim believes that the sexual acts were intended for a non-sexual purpose, e.g., a therapeutic/medical, religious or mystical purpose.

            In the instant case, the young woman did not resist the performance of the acts, or at least to the initial part, as she had no knowledge about sex due to the environment in which she was raised. Moreover, the appellant presented the acts as a “Divine decree” and explained that they would prevent her death. This was all performed by a man who was a rabbi who exploited his spiritual role and the complainant’s faith in him. The Court also addressed the position of Jewish law in regard to the performance of sexual acts in circumstances of deceit in regard to the nature of the act, and reviewed case law on the subject in Jewish law and foreign law.

 

CrimA 3583/20 A. v. State of Israel (Sept. 11, 2020) (Justices Vogelman, Willner and Stein):

            The Court addressed the meaning of the term “uncle” in the definition of “relative” in sec. 351(e) of the Penal Law, 5737-1977, for the purpose of a conviction for sexual relations with a family member who is a minor.

            The primary opinion, written by Justice Stein, granted the appeal. It was held that sec. 351(e) of the Penal Law, which is characterized by precise language and a high level of detail, cannot be construed to include a “functional uncle” who lacks any blood or marital connection with the victim’s family as a “relative”.

            Justice Stein stressed the importance of the principle of legality and of construing the wording of an offense in accordance with the regular, accepted meaning, the purpose of which is to restrain the power that the criminal law grants to law enforcement authorities. It was held that the term “uncle” must be understood in accordance with its regular, accepted meaning, as relating only to a person who is related to the victim of the offense through blood or marriage. The Court held that the appellant, who at the time of committing the offence was divorced from the victim’s aunt, is not a “relative” of the victim for the purposes of sec. 351(e) of the Penal Law. Therefore, he should be convicted of indecent acts in circumstances of rape of a minor who was not yet 16, rather than more serious offences based upon indecent acts in circumstances of the rape of a family member who is a minor.

            Justices Vogelman and Willner concurred in the result of Justice Stein’s opinion, but were of the opinion that the definition “relative” must be construed in accordance with the language and purpose of the norm, and in accordance with the accepted rules of construction, which also apply to the provisions of the criminal law. Under those rules, the preferred construction is that the law did not intend for the term “uncle” to include a person who was no longer married to the biological aunt. This construction better fits the logical, natural meaning of the definition of “relative”, and also reflects the purpose of the arrangement to delineate the borders of the family framework in which the said offences will lead to a conviction for more serious offenses.

 

Civil Law:

LCA 1239/19 Shaul v. Nayadli Communications Ltd. (Jan. 8, 2020) (Justices Barak-Erez, Mazuz and Willner):

            This judgment addressed the question whether publications in the form of “share” or “like” on Facebook (and mutatis mutandis on other social media) constitute “publication” under the Prohibition of Defamation Law, 5725-1965, that can serve as grounds for legal liability for libel.

            The Court (per Justice Barak-Erez, Justices Mazuz and Willner concurring) held that a distinction should be drawn in this regard between “share”, which involves further distribution of the material and can therefore serve as grounds for a suit, and “like”, which cannot serve as such grounds (inasmuch as it involves only indirect influence upon exposure to the publication). However, it was held that the defenses and leniencies established under the Prohibition of Defamation Law would apply in this context due to the fear of “silencing suits” and to prevent a significant, undesirable chilling effect upon free discourse on social media, alongside the necessary protection of the right to reputation.

            The Court addressed the challenges involved in adapting traditional defamation law to the age of social media. On the one hand, the Court emphasized the advantages of the open, accessible, free discourse that characterizes the Internet environment. On the other hand, the Court pointed out the inherent disadvantages, such as the possibility for quick, wide dissemination of incitement and hate speech, “fake news”, and harmful and defamatory publications.

            In her concurring opinion, Justice Willner addressed the special importance of protecting the right to one’s good name in the framework of social media, and the potential harm to a person’s reputation inherent in sharing a tortious publication on social media, which can exceed the harm caused by defamatory publications by traditional means.

 

CA 7058/17 Melamed v. Leibowitz et al. (March 10, 2020) (Justices Amit, Karra and Grosskopf):

This judgement (per Justice Grosskopf, Justices Amit and Karra concurring) held that the doctine of the “innocent co-insured” should be recognized in Israeli law. Under the doctrine, in the case of multiple insured parties, the defense available to the insurer against an insured party for bad-faith conduct does not necessarily apply to another insured party who acted in good faith. Justice Grosskopf was of the opinion that three parameters in regard to three different levels can be established for the application of the doctrine. The first level concerns the relationship among the insured interests, i.e., do A and B have a shared interest in the object of the insurance? The second level concerns the date when the claimed defense arose, i.e., did it refer to matters that occurred at the time of the formation of the insurance contract or did they occur at the time of its execution? The third level concerns the nature of the defense claimed by the insurer, i.e., is the defense contingent upon fault or not?

In Justice Grosskopf’s opinion, these three principles can serve to assign every case in which the applicability of the doctrine arises to one of eight situations that yield different, unequivocal results in terms of the desirability of applying it to the case at bar. Justices Amit and Karra concurred with the result in regard to the adoption of the doctrine, but were of the opinion that the Court should not take an unequivocal stand in regard to the different situations in which the doctrine may or may not apply.

In the instant case, the Court held that the doctrine did not apply because although the parties (director, broker and investors) had different interests, and although the director’s failure to disclose certain material facts prior to the issuance of the policy did not constitute “fault”, nevertheless, a reasonable insurer would not have issued the policy had the omitted information been disclosed.

 

LCA 1326/18 Smart Club Holdings Ltd. v. Cohen (Dec. 31, 2020) (Justices Baron, Elron and Willner):

            The judgment addressed the question of when tortious liability would be imposed upon a party for whom prohibited “spam” messages were sent, where it was not that party who sent the messages, but rather a contractor who provides advertising and marketing services. The issue arose in the course of proceedings for the certification of a class action, but could also arise in “regular” proceedings concerning spam.

            The focus of the proceedings was the applicability of the exception to sec. 15(3) of the Civil Wrongs Ordinance, which treats of the relationship between an individual ordering a service and the provider of that service, and permits imposing liability on the party ordering the service who “authorized of ratified” the act that caused the harm.

            The Court (per Justice Baron, Justices Elron and Willner concurring) noted that, in general, the consent of the ordering party must be express and clear. However, in appropriate cases, there would be justification for imposing a higher level of liability upon the ordering party, broadly construing the terms “authorized or ratified”, and sufficing with implied consent to the harmful act performed by the contractor. Such would be the case in regard to the relationship between an ordering party who seeks to advertise its business by means of broad distribution of messages and the advertising agency that carries that out. This is the necessary conclusion from the deterrent purpose of the spam law and the desire to eradicate the phenomenon, and constitutes a response to the fear that ordering parties might seek to evade the prohibition by hiring advertising agencies. It was further held that silence may be deemed consent when the ordering party is aware that spam will be sent on its behalf and fails to act to prevent it. Willful disregard of the possibility that spam will be sent would also constitute awareness.