Against the background of everything detailed in the statement of claim, then on the face of it, this is a legitimate lawsuit by a kibbutz that has lost its life in harassment and defamation, incursions into its territory and the blocking of its gates. Indeed, there is no denying that the sum of the ILS 2.5 million claim may intimidate any person from the community, but this matter is one of the considerations that the court will have to consider at the end of the road when awarding compensation or expenses to one side or the other. As for myself, I am therefore of the opinion that there was no room to grant leave to appeal in the first place and that the present case was not at all worthy of serving as a host for a comprehensive discussion of the law of estoppel claiMs. Moreover, we have before us a mixed lawsuit both for the prohibition of defamation and for trespassing and creating nuisances. I will therefore emphasize that it should not be inferred from the discussion held by my colleague that the claim before us should be framed as a claim for estoppel or that the claim should be marked, in any way, as a claim that is tangential to a claim for estoppel. As stated, on the face of it, we are dealing with an ordinary lawsuit that must be clarified on the merits, and the Magistrate's Court that heard the claim is presumed to act in accordance with its wisdom and in accordance with the rulings on the laws of the prohibition of defamation, torts and property.
- Subject to this general reservation, and since my colleague has chosen to expand the scope, I will suffice with a few short remarks:
- A. I agree with the list of signs listed by my colleague, and by which it is possible to identify claims for silence (paragraph 21 of his judgment). However, it should be emphasized that this is not a closed list, and the power disparities between the parties must be carefully examined and sometimes not taken into account. Thus, it is possible to sue for the silencing of a private person against a private person or against a body with little budgets and means. For example, an investigative site that exposed sexual assault committed by a certain person, and the latter files a lawsuit against the site and the authors of the investigation. It is therefore possible that neither of the parties is a "strong" party, and this will not exclude the claim from the scope of a claim for estoppel.
- II. In my opinion, a ruling on real expenses And beyond that is the proper remedy, and the considerations listed by my colleague in paragraph 54 His judgment is beautiful and worthy. However, I do not agree with my colleague's suggestion, according to which the amount of expenses will be in direct proportion to the amount claimed. Indeed, there is no denying that this is a deterrent to the filing of large amounts of silencing lawsuits, but on the other hand, there is a concern of a "chilling effect" and even a "freeze" in light of the severity of the possible sanctions. In real life, a plaintiff can genuinely believe that he has been wronged, but at the end of the day, the court will reject his claim and even rule that it is a suit for silence. The remedy proposed by my colleague is, in my opinion, over-deterrence and a real punitive tone. I do not need to distance my testimony, and it is sufficient for me to turn to the suggestion of my colleague (paragraph 56 to its ruling) that the kibbutz will finance its actions already at this stage and decide whether to proceed with the lawsuit. Such a proposal, under the threat of expenses in the amount of the claim, creates a real threat to anyone who sues in good faith, and against the background detailed in the statement of claim, I will have reservations about my colleague's proposal. In view of the severe sanction proposed by my colleague, there is even a concern that the hearing of a defamation suit will focus on the question of whether it is a claim for estoppel rather than the hearing of the claims on the merits of the claim and defense (such as "I spoke the truth" or the defense of good faith).
III. In support of his opinion, my colleague refers to the verse "And you shall do to him as he plotted to do to his brothers", But as he noted, this is a complex halakhic issue. Therefore, I will add words from a number of parables in order to show that through the same verse it is possible to reach a different result.