Thus, the punishment that the Torah prescribes for one who is dealt with by a libel, is not fixed, but depends on the question of the content of the false testimony, and in particular, the nature of the risk that the false testimony poses to its object (and compare to the distinction he makes, in this context, Section 237(a) to the Penal Law, 5737-1977, as well as to the injustice of accessibility, which is enshrined in In section 60 to the Torts Ordinance [New Version]). The Torah's instruction therefore seems simple: "And you shall do to him as he plotted to do to his brothers"In other words, one must act in favor of the lie "measure for measure," and respond to it exactly as its reward; In accordance with the risk of punishment to which he exposed his fellow. The logic of this approach is not similar, for example, to someone who admits a financial debt, and attests to it, to someone who attributes acts to his friend that may lead to severe criminal punishment - the degree of wrongfulness of the acts is different, as is the degree of punishment that is appropriate for striving to deter them. It is also interesting, for us, the reason that the Torah brings, shortly after the presentation of the sentence of the conspiratorial witness: "And you shall burn the evil from among you", it is also explicitly mentioned that "Those who remain will hear and see and will no longer do such an evil thing" - In other words, the law of "and you shall do to him as he plotted" is intended, inter alia, to deter the public, and to prevent false proceedings in the first place.
- "More than what I have read before you is written here" (Mishna, Yoma 7:1) - The issue of the attitude toward conspiratorial witnesses is a complex halakhic issue, and on top of the verses mentioned above, an entire building has been built in the Oral Torah (as far as Chazal's sources are concerned, the main discussion of the issue is found in the first chapter of Tractate Makot); What has been said so far, on this issue, is therefore "the study of the entire Torah on one foot" (according to Bavli, Shabbat 31a). In addition, by the nature of the matter, many of the details and subtleties of the halakhic sugya are not necessarily appropriate for the subject at hand. In any event, what is important for our purposes is that I am of the opinion that the "spirit" of the sanction described is also appropriate for the issue before us, namely: that when, at the conclusion of a proceeding, it is found that the claim that was made in it is a suit for silence, the amount of expenses to which the plaintiff-silencing will be charged will be particularly significant, and will stand, as a rule, in direct proportion to the amount claimed by him; sometimes it will even be identical - "to give to a man according to his ways and as a reward for his deeds" (Yirmiyahu 32, 19).
- An incentive analysis will teach us that estoppel lawsuits are in fact a private expression of a general phenomenon of asymmetric litigation risks - situations in which the results of one party's loss to the proceeding, in money or in kind, substantially outweigh the results of the loss of the other (expanding the scope of the phenomenon, as well as possible ways of dealing with it, as mentioned above, Parchomovsky & Stein). Thus, today, the 'expectation of damage' that a plaintiff sees before his eyes when he comes to file a suit for estoppel is almost nil; This is when the 'expectation of benefit' available to the defendant from insisting on a decision is also very low. As for the plaintiff, when he files his claim, he must pay his representatives their fees, and if he loses, he will have to pay his opponent's legal expenses, when these are, as a rule, not real expenses, but rather lower than that (Keren Weinschel and Yifat Trabulus, "Ruling on Legal Expenses in Civil Proceedings," Mishpatim 46, 784-788 (2018); in this context, see also Regulations 152-153 to the regulations). The defendant, on the other hand, has a negative incentive to conduct the proceeding - he is exposed to high risk, suffers from stress and anxiety, and consumes his time and money. Even if the defendant wins in the end, and even if it is an absolute victory, all he will win is the payment of legal expenses (which are not realistic, as stated). This explains why many defendants are willing to sign settlement agreements with plaintiffs-silencers, even when the chances of success of the latter are not improved (see, in general: The Anonymous case, para. 25; Owen M. Fiss, Against Settlements, 93 Yale L.J. 1073, 1076 (1984) (hereinafter: Fiss); Parchomovsky & Stein, pp. 1325-1328, which point to these problems and even worse ones, with respect to situations of asymmetrical litigation risks). It can therefore be said that these are compromises that take shape in the shadow of the legal process, with its costs and consequences, as opposed to saving the legal outcome, as it should be (according to the term coined in the article Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979)). In the subject at hand, these compromises are liable to give rise to a particular difficulty, since they may include agreements that could not be obtained within the framework of a legal proceeding, such as a commitment to withdraw from a struggle and the like (see, for example, the case mentioned by Tal, p. 541).
- Admittedly, many times, the flexibility that a compromise allows is an advantage (regarding the importance of the compromise, see, for example, Civil Appeals Authority 6557/20 The New Channel 10 in a Tax Appeal v. Minister of Culture and Sport MK Miri Regev, paragraph 78 and the references there [Nevo] (March 13, 2024) (hereinafter: the Channel 10 case); but sometimes, it seems, especially in cases such as the Channel 10 case, it will also have a disadvantage (for a frontal attack on settlement agreements, See in general: Fiss; see also Parchomovsky & Stein, pp. 1363-1364). From a systemic perspective, too, it seems that sometimes the approval of such compromises may be a "short and long road" (Bavli, Eruvin 35b); while it will bring about an end to the concrete process in which we find ourselves, it will end with a multitude of futile, silencing lawsuits, which would have been good for them - and for the public at large - if they had not come into the world.
- In view of the above, I am of the opinion that in order to deal with the phenomenon of silencing claims, we must 'straighten the incentive map' - create a negative incentive for the plaintiff-silencing to file his claim, and at the same time, create a positive incentive for the silent defendant to conduct the proceeding until a decision, where this is justified and appropriate. It seems to me that the outline of the expenses ruling proposed here will have the power to do so. Thus, a potential plaintiff is expected to be doubly cautious about filing a suit for silence, in view of the great risk to which he will be exposed as a result of filing such a lawsuit; This is when this risk is directly proportional to the risk by which he sought to intimidate the defendant. As for the defendant, he will receive an incentive to continue conducting the proceeding, and not to give in to a compromise that is far removed from the legal situation of each of the parties (see: Parchomovsky & Stein, pp. 1368-1369). I will emphasize that this does not create an excessive incentive for the defendant to continue the proceeding at any cost, rather than reaching an agreed settlement; Rather, it is only to change the content of that compromise, by changing the bargaining power. Thus, to the extent that dialogue takes place in order to reach a settlement agreement, it will no longer be done when the defendant is exposed to a much higher financial risk than the plaintiff is exposed to, as is the case today, but when both parties are exposed to imminent risks and hold similar bargaining power.
- Another benefit that may arise from adopting the approach proposed by me is the reduction and accuracy of the amounts claimed under estoppel suits, and defamation suits in general (since, by definition, escalation lawsuits will almost always be filed by 'powerful actors' who finance their actions in accordance with the law). As noted above, one of the evils of silencing lawsuits (but also in many other lawsuits) is the claim of extremely exaggerated, baseless, and unjustified sums of money (see Tal's elaboration, p. 537). Indeed, with the exception of fee considerations (which, as a rule, stands at 2.5% of the amount claimed - Details 1 and 8 of the Addendum to the Courts Regulations (Fees), 5767-2007), today the plaintiff has almost no incentive to state a real claim amount; On the contrary, in the case at hand, the higher the amount of the claim, the more the claim for silencing is likely to act on the defendant (and this is also true in other contexts, where even a large sum of money, which allows the plaintiff to intimidate a defendant, may improve the plaintiff's position in the negotiations, perhaps even before the court). On the other hand, under my proposal, plaintiffs would be required to finance their steps well, even in terms of the amount claimed by them, since "in the cauldron in which they wish to cook - in which they may cook" (according to Bavli, Sotah 11:1).
- Finally, I would like to point out that a ruling on legal expenses at a rate that is indisputably exceptional and exceptional also expresses the severity of the phenomenon of silencing lawsuits, and the social aversion to them (for more on this possible role of financial charge, see: Omri Goldwin, Eyal Glazer, and Inbal Tamir, "Money and the Law: How the Perception of Money Affects Legal Theory," Iyunei Mishpat 48:40-41 (forthcoming, 2024). Indeed, sometimes there is no choice but to investigate silencing claims, since only at the end of the process can it be determined that they were ordered in sin and that they were conducted unjustly. However, the very fact that in such a situation the sum by which the plaintiff sought to intimidate the defendant will become a 'double-edged sword' that harms the plaintiff himself, conveys a sharp and clear message regarding the plaintiff who abuses his good name, and seeks to take advantage of the protection granted to him by the law, and the legal process, in order to deter and silence his legitimate critics; "Do not be afraid of the Pharisees, nor of those who are not Pharisees, but of the hypocrites who resemble the Pharisees, whose deeds are like the deeds of Zimri and who seek reward like Pinchas" (Bavli, Sotah 22:2).
- To summarize the discussion of this possibility: Indeed, more than once interim cases will arise, in which it will be difficult to decide at the beginning of the proceeding that this is a claim for estoppel, which deserves to be dismissed. For this reason, there will be no choice but to make progress in the investigation of the claim, with all that this entails. Under the current law, the state of affairs as aforesaid is very dangerous for the defendant, but certainly not for the plaintiff. Therefore, my opinion is that we must change this problematic situation, and bring closer the risks to which the litigants are exposed, as well as provide an appropriate judicial response to the serious wrongdoing of the plaintiff-silencing conduct, even if it was not possible to identify the wrongdoing in advance. The way to do this, in my opinion, is to charge the plaintiff with high legal expenses, which have a strong correlation with the amount claimed, and may even reach it. Admittedly, these are expenses at an exceptional and unique rate, but in view of their important purpose, there should be no deterrence from using them; Through them, it can be hoped and appreciated, the 'attractiveness' of the estoppel lawsuits will be dramatically reduced, since they will include the risk of turning against the applicant and removing him from the proceeding with his hands on his head, in the sense of "the flame of the sword turning over" (Bereishit 3:24).
The manner in which things are actually conducted and the relationship between the two sanctions
- After discussing the two main sanctions which, in my view, should be used against silencing claims, the question remains how things will be conducted in practice; I will address this, and in these words I will also clarify the relationship between the two sanctions. If so, when a defendant believes that the lawsuit filed against him is a claim for estoppel, he can file a motion to erase it in limine, on the grounds that it amounts to an abuse of court proceedings. In that case, the court hearing the motion will examine the request, and decide as one of the following options: One possibility is that this is a clear case of a silencing claim, or that it is possible to decide this matter without complex inquiries - in such a case, it would be correct to delete the claim in limine (after or without such inquiries, as necessary), while charging the plaintiff with appropriate expenses. A second possibility, opposite to the previous one, is that the court will find that the request is baseless, and that there is no indication that it has before it a suit for silence. In such a situation, the court will reject the application (while there may of course be room to charge the defendant for its expenses - Regulation 53 of the Regulations). The third option is the intermediate option, in which the court finds that there are indeed indications that it has a suit for silence, but it is unable to formulate a final decision on this matter at the stage in which the proceeding is located, since this requires inquiries that cannot be carried out easily and quickly. In this case, the court will make it clear to the parties that this is the case, while pointing out the clarifications that are likely to be required for the decision of the claim, and waiver the plaintiff regarding the possible termination of the proceeding - a charge for legal expenses, which may increase up to the amount claimed in the lawsuit. After this clarification, the plaintiff - who is well acquainted with his claim, its strength and the evidence in his possession - will be required to examine his claims, examine his claim, and decide whether he wants to continue it or not. This, I am of the opinion, will create an effective mechanism for blocking the progress of silencing claims, perhaps even to prevent their submission in the first place.
- As for the considerations that need to be considered in order to determine the rate of expenses - in principle, my opinion is that it is appropriate to leave it to the answer to formulate from proceeding to proceeding, heel to thumb; "Command to command, command to command, line to line, line to line, line to tiny line, there is a tiny name" (Yeshayahu 28:10). At the same time, I am of the opinion that it is already possible to point to a number of considerations that those who sit on Midian will have to take into account, as a list that is not exhaustive. First, naturally, there will be room to examine how many of the characteristics of the silencing claim are fulfilled in a lawsuit that is on the brink; In other words, to what extent is this a clear case of silencing, and what is the degree of severity embodied in it? In particular, there will be room to consider, as part of this, whether we are dealing with a claim that is entirely a 'flower crow', lacking a legal anchor, or whether we are dealing with a claim that is proper, with its core, but the plaintiff has taken this core and inflated it to silencing proportions. There will also be room to determine the financial strength of the plaintiff-silencing plaintiff, in order to ensure that expenses are awarded in an amount that will be meaningful and implications for him (for the opposite picture, see and compare: Civil Appeal 89/04 Nudelman v. Sharansky, paragraphs 62-77 [Nevo] (August 4, 2008)). It would also be appropriate to examine the nature of the defendant's conduct (both in the proceeding and before it), when in cases where he too is not a "tallit that is all blue" - there will be room to reduce the amount of expenses that will be awarded to him, or perhaps to order the transfer of the expenses, or part thereof, to the State Treasury (in accordance with the possibilities enshrined in Regulation 151(c) of the Regulations).
- I will also note that conducting the hearing in the manner aforementioned is, in my opinion, a contribution to the attempt to direct the conduct of litigants, also for an additional reason. One of the problems that was raised, with regard to the attempt to direct the behavior of litigants, through the use of a tool of abuse in legal proceedings, is related to the problem of a representative between the lawyer and his client, and the gap that exists between the person who absorbs the sanction (the client) and the person who actually decides to take the procedural steps (the lawyer) (Rabinowitz-Eini and Dorfman, pp. 277-279). Depending on the nature of the problem, one of the solutions proposed to it is "to make a demand for the presence of the parties at various stages of the proceeding" - a process by which "the court will succeed in dissipating the smoke screen that is facing the client regarding what is happening within the walls of the court, and informing the client of the actions and moves of his counsel that amount to abuse of legal proceedings" (ibid., p. 290; Regarding the need to address the parties directly in certain contexts, Regulation 37(i) of the Regulations is also reflected , according to which parties must appear in person for a meeting of the Regulations). It seems to me that the need for an active decision regarding the continuation of the lawsuit, against the background of a signal provided by the court, requires that the lawyer turn to his client; In any event, if the court deems it necessary, it can always demand that the plaintiff appear at the hearing, in order to clarify the picture that appears against the background of the motion to dismiss the claim in limine. It seems to me that this involvement of the litigant himself, in the decision regarding the continuation of the lawsuit, may help to deal with the aforementioned representative problem.
From the general to the individual
- We are dealing with, as will be recalled, an application for leave to appeal based on the decision of the Magistrate's Court, according to which there is no reason to dismiss out of hand the libel suit filed by the kibbutz against Vaknin, because it is a suit for estoppel; This, as noted above, since it was found that at the present point in time, it is not possible to determine that this is necessarily the nature of the claim. This is especially so, because it was determined that in order to make such a decision, several additional factual inquiries are required, which can be made only upstream (see paragraph 9 above). To use the triple division that I proposed above, this means that the case was classified as belonging to the intermediate group, in which the claims of silencing are not completely rejected, and it was only found that it is not possible to decide them already on the threshold of the proceeding. Vaknin came before us in an attempt to overturn this decision, when the arguments he raised regarding the necessity and justification for doing so are closely connected to the various termination options of the kibbutz's claim, as they were interpreted on the eve of the decision in this application: As detailed above, Vaknin believed, and rightly so, that he had before him a bumpy, high-priced road, at the end of which - at most - he would end the proceeding with the upper hand, which defended, and received expenses at an unrealistic rate. This state of affairs - I asked to change my opinion; According to my approach, in view of the described classification of the kibbutz's claim, if the proceedings in question reach a conclusion, and it is found that Vaknin was correct in his claims, and that we are indeed dealing with a suit for silence, there will be room to award him very high legal costs. Against the background of this change regarding the possibilities of ending the proceeding, the kibbutz will be required to reconsider its steps, already now, and decide whether it wants to continue its lawsuit or not. As part of this, and since the significance of my approach is a change in the law that the kibbutz is required to deal with 'on the fly', I am of the opinion that it would be appropriate to allow it to also choose to reduce the amount of the claim, if it so wishes (see: Regulation 46(a) of the Regulations).
- As things stand, my position is that there is no justification for our deviation from the rule, according to which the appellate court is not inclined to "intervene in the decisions of the appellate court, which means the continuation of the investigation of the proceeding on its merits, except in exceptional cases, such as when a material mistake has been made or there is a concern of conducting a futile proceeding that involves an extraordinary investment of resources" (Civil Appeals Authority 6938/19 Ilani v. Baruch, para. 23 and the many references therein [Nevo] (20.8.2020)); There is, therefore, no good reason for us to dive into the details of the proceeding at hand, and to decide whether or not there was room to dismiss the claim in limine. When he submitted the request, Vaknin was indeed "between the hammer and the anvil," but what has been said so far is sufficient to extricate him from this; At the present point, further examination of the decision to continue the investigation of the claim is not required for the purpose of preventing this situation. From a broader perspective, these words are an expression of the fact that in my approach, the importance of a decision on a motion to dismiss a claim in limine, since it is a suit for silence - even when the court finds that such a request should not be granted, the plaintiff still has a real incentive to refrain from continuing to manage the claim, while the defendant is actually likely to derive a considerable profit from the continuation of the investigation.
A note before finishing
- I am aware that my approach is liable to deter litigants from defending their good name - a very important basic right, which I would like to take lightly (see, for example, my words in the Channel 10 case, paragraphs 31-32; for a map of the jurisprudential positions regarding the relationship between the right to good name and the right to freedom of expression, see: Ron S. Kleiman, "A Good Name is Better Than Freedom of Expression - Defamation Law in Israel Inspired by Jewish Law in the Ruling of Justice Elyakim Rubinstein" (Elyakim Rubinstein's book) 548-559 (Aharon Barak, Miriam Markovitz-Biton, Ayala Procaccia and Rinat Sofer eds. 2020)). At the same time, I am of the opinion that the proper application of the conditions for classifying a claim as a claim for estoppel, together with the procedural outline that I have outlined here, is capable of providing an appropriate response to the fear of judicial errors of this kind, and therefore also the refusal of litigants to file proper claims (for dealing with the concerns of relatives, see: Parchomovsky & Stein, pp. 1370-1371). Moreover, it is precisely because of the recognition of the great importance of the good name, and of the laws of defamation that are intended to serve as its defense, that I view with great severity attempts to "carry the good name in vain," and to make it a prelude to silencing speakers from expressing legitimate positions, in the sense of "hanging a tree in its garment and saying it is blue" (Bavli, Bava Metzia 61:2; see also: Yalkut Shimoni, Psalms 80:14).
After these things
- Now, before me is the opinion of my colleague, Acting President Amit, in which he touched on a number of points. I will focus on the beginning of his remarks, where he argued that the lawsuit we are dealing with does not "justify an extensive discussion of the phenomenon of silencing suits, for the reason that on the face of it, in the case at hand it is not such a claim." My colleague based his position on defamation and harsh accusations from the group's discourse, as well as on the fact that in the current proceeding, the kibbutz also clings to causes of action that do not originate in the Prohibition of Defamation Law.
- At the outset, I will note that my willingness to hear the present application, while granting leave to appeal, is not based on the perception that it is indeed a suit for estoppel; my colleague even states this himself, in clear language: "It should not be concluded from the discussion held by my colleague that the claim before us should be framed as a suit for estoppel or that the claim should be marked, in any way, as a claim that is tangential to a suit for estoppel." For the purpose of the hearing of the application, it is sufficient in my opinion that this is a proceeding in which the Magistrate's Court found that at the present stage of the litigation it is unable to decide the question of whether it is a suit for silence, without it also being determined that it is not a claim as aforesaid (the intermediate option that I have pointed out above, in paragraph 53) - a matter that is an expression of a broad phenomenon. Against this background, and in recognition of the difficulty of adjudicating lawsuits already on the threshold of the legal proceeding, I sought to create a mechanism within which the feasibility of silencing claims would be reduced, even when the court is unable to identify them and dismiss them immediately.
- As for the publications presented by my colleagues from the group discourse, these are indeed harsh publications, and it is not impossible that the law does not accept their statement with equanimity. However, the very fact that any publication amounts to defamation, does not yet follow that the defendant - who is not the publisher of the direct publication - is liable for it, and that this is not a suit for silence. As I noted above, in paragraph 21, one of the considerations that must be considered, in order to decide whether a certain claim is a claim for silencing, concerns the question of whether the claim reflects a "problematic and unjustified choice of defendants", a phenomenon whose possible expression may be - without planting rivets - a choice to sue a group manager (let alone one of its managers, if there are several of them) for publications from the group, instead of the claim of the direct advertisers. without sufficient justification (see and compare: the Naydley case, paragraphs 48, 54). Thus, in particular, taking into account the fact that the manager is the one who is likely to lead to the closure of the group, as opposed to a 'casual guest' who published what he published in the group, but has no possibility of influencing its future - a matter that may indicate the motivation underlying the lawsuit.
- Finally, I will say that indeed, as my colleague noted, the kibbutz clings to both causes of action based on the Prohibition of Defamation Law, as well as causes of action that arise from other sources. However, it is clear that this cannot be inferred that this is not a suit for estoppel. Although in most cases silencing lawsuits are based on the Prohibition of Defamation Law, reality shows that this is not the sole and exclusive source of this 'wild growth'; In practice, attempts to silence are also carried out through legal proceedings that are also (or only) based on other sources of law (Tal, p. 536; Aridor Hershkovitz and Schwartz Altshuler, pp. 21, 48).
Conclusion
- If my opinion is heard, we will order the dismissal of the appeal (and in any event, the delay in the proceeding that I ordered in the decision of June 10, 2024 will be canceled); At the same time, however, we will clarify that if the kibbutz does indeed choose to continue its lawsuit, while at the end of the investigation it finds that it was right in its claims, and that we are dealing with a silencing lawsuit, there will be room to charge the kibbutz with expenses at a high rate, which may reach up to the sum claimed by it.
Given the outcome I have reached, I would suggest that each side bear its own expenses.