Plea

Magistrate Court In Petah Tikva                                               Civil Case : 23862-03-13

Bnei Baruch Association R.A 58029753

 

PetahTikva Magistrate and Family Court 21-04-2013 RECEIVED/EXAMINED Signature: _____________ (14)

 

By representatives Zvi Gelman Adv. and/or Dafna Azulai – Regev of Ariel Shemer and Co. Lawyers
Of 3 Daniel Frish St. Tel Aviv 64731
Tel: 03-6091001; Fax: 03-6091002

Plaintiff

-VS-

 

Aaron Applebaum

 

by representative Yishai Shneydor, Adv.

of 45 Yehuda Ha’Levi st. Tel Aviv 65157

Tel: 077-5472001 Fax: 077-5472003

 

Defendant

 

 

LETTER OF DEFENSE

 

The Defendant, who will be represented throughout these proceedings by his representative, the undersigned, is hereby submitting his defense. All the defendant’s claims are in aggregation or alternatively, per their context.

 

Preface

 

This lawsuit was filed because of the defendant’s plea to the authorized officials regarding the integration of the curriculum of the Bnei Baruch group (formally through the organization “Ligdol BeKeif”) in the education system. The Defendant did not publish the complaint or any similar news in public, he did not approach the media, nor did he use the social media as customary. He only appealed to the authorities with a request to address the matter.

 

Nevertheless, after an aggressive warning letter sent by the plaintiff to the defendant did not yield the surrender of the later, this lawsuit was filed, while abusing the defamation laws and exploiting the disparity of forces between a powerful organization and an individual lone citizen, who dares to challenge it, in order to try and silence him, just because of a plea to the authorities concerning the organization.

 

This is how the defendant replied to the threatening letter that he had received from the plaintiff (his letter appendix C2 to the Complaint):

 

“Let’s hope that the authorities will do their job, and thoroughly examine the complaint [of the defendant Y.S] and his claims. In the event that they find the complaint to be unfounded, they will probably reject it, and in the event that they find it to be valid, they will act accordingly…

‘Bnei Baruch’ has enough power, tools and money to deal with Mr. Applebaum’s plea. All it should do is argue before the qualified authorities, which will surely make no decision without lawfully hearing it. In other words, instead of dispatching highly experienced and talented attorneys against ordinary citizens, they should instruct them to draft their response to the claims that will be sent to those authorities that received the complaint (and in general to act within the public arena – and not through threating letters – in order to prove their point).

 

Unfortunately nothing can prevent ‘Bnei Baruch’ – a rich and powerful organization – from filing a defamation lawsuit against Mr. Applebaum (and not against Haaretz newspaper for example), to try and drown him in debt of legal fees and the burden of a prolonged battle in court, and of course to balloon the lawsuit to groundless and legally unsubstantiated sums, in order for this to hover over him as a burdensome cloud day and night (see c.c. (Jerusalem) 06/8069 The Atomization Company vs. Arye Gur) and all this… simply in order to push him towards a settlement whose its sole purpose is to silence him“.

 

As it turned out, the defendant correctly predicted the future, and the plaintiff acted exactly in accordance with their threatening letter: the filing of a groundless lawsuit with inflated amount, with statements that each constitutes an independent cause of action,  and with the number of reliefs sought, and all in an attempt to threaten and apply a “chilling effect” against the defendant. However, the defendant has no plans to give in or to be silenced. The defendant shall vigorously handle his defense in order to protect the rights of the ordinary citizen to act in the matters of powerful and strong entities – and in his case his minimal right to appeal to the authorities with a letter of complaint (!) without fear of defamation lawsuits.

 

1. The Parties

 

1. In his personal life the defendant is a manager of a high-tech company, the resident of Kohav Yair, a married father of two, and the grandfather of three grandchildren.

 

2. The defendant was closely and personally exposed to the condemnable actions of “Bnei Baruch”, as a result of his son’s joining it. He closely witnessed, in a personal and unmediated manner, how Bnei Baruch acts using sophisticated means to gradually take over the consciousness, viewpoint, money, free will and in general the entire lives of those, who were inducted into it and joined the inner circles and hard core of the organization, and how the influence of the organization causes severe damage to their relationships with their parents, relatives and friends, up to a complete disconnect.

 

3. It shall be emphasized: the things written by the defendant in his letter about “Bnei Baruch”, as well as the public discourse concerning “Bnei Baruch” in general, relate to a Kabalistic group or organization, led by Michael Leitman, known in public as ‘Bnei Baruch’ (and also as ‘Kabalah La’Am’). This is necessarily an (amorphous) entity that is much wider than the defendant, and that was formed in order to promote and manage the affairs of this organization (alongside other established corporations), and specifically in such cases, where the required actions must or should be conducted through a legal entity.

 

4. The defendant believes ‘Bnei Baruch’ – and the reference is of course to those circles that are closer to “the leader” – has all the characteristics of a “cult”. This has been and still is his belief. The defendant is not alone. Many others think so as well. The Israeli center for cult victims, a nonprofit organization, which works on the subject of cult organizations, believes so as well. Renowned specialists are of the same opinion. ‘Bnei Baruch’s methods of operation faces harsh public criticism. See in this regard, (as an example only), the investigative article in Haaretz newspaper from August 2012 that was attached to the defendant’s plea, the subject of this lawsuit (n/1b below).

 

5. It shall be emphasized: the question of defining a group as a “cult” and the evaluation of the activities that take place in it, and the processes that occur under its sponsorship (the defendant’s statements in his letter, for which the lawsuit was filed) – like any other social science question – is not a problem in physics that holds one answer, and clearly there is no one absolute consensus regarding the definitions and characteristics. Although there is a wide consensus that ‘Bnei Baruch’ is a group with the characteristics of a cult, there may be other opinions, even if the defendant is not in agreement with them. In any event, beyond the professional/therapeutically/”academic” meaning of the term “Cult’, in this case the meaning within the public discourse is no less relevant than the way an ordinary person uses and understands it.
6. General reference to the events that are the subject of the lawsuit

 

The defendant’s plea to the authorities

6. During December 2012 the defendant was shocked to find out that ‘Bnei Baruch’ – through the organization “Ligdol BeKeif”, which is the plaintiff’s subsidiary organization of sorts, managed to insert their curriculum into the public education system of the local council of Tivon. It should be noted that the lawsuit was not filed as a result of these details in the defendant’s plea, i.e., it was never denied.
7. The defendant believed (and still does) that the direct or indirect integration of ‘Bnei Baruch’ in the public education system is outrageous. The defendant thought that perhaps the responsible officials within the authorities were not aware of the connection between ‘Ligdol BeKeif’ and ‘Bnei Baruch’, or were not aware of the existence of such a curriculum and its approval by lower level officials altogether, or did not consider the full meaning of the matter, hence he decided to approach them through a complaint letter that calls for their intervention (hereafter: “The Plea”) as he did. [Appendix A of the Complaint].

 

8. It should be noted: the defendant’s complaint was addressed to the qualified officials which had approved the inclusion of the curriculum of ‘Bnei Baruch’ in the public education system, and the purpose of the complaint was to encourage e such officials to investigate the matter and apply their jurisdiction over the specific official, who had approved the inclusion of the curriculum, and/or to revoke their initial decision, as applicable.

 

9. The defendant attached to his plea a number of documents that to his opinion support the belief that ‘Bnei Baruch’ should never be allowed to have a foothold, whether direct or indirect, inside the public education institutions. Since the Plaintiff attached to the Complaint the letter, without its appendixes [appendix A of the Complaint], they shall be attached hereto and marked as N/1A-D: “How cults operate” document (introduction to the theory) [attached hereby is a translation in Hebrew]; a comprehensive research regarding ‘Bnei Baruch’ in ‘Haaretz’; ‘Bnei Baruch’ regulations as discussed in that investigation; a document that indicates the connection between ‘Bnei Baruch’ and ‘Ligdol BeKeif’.

 

10. It should be noted: the defendant did not approach the media, he did not publish anything in social networks on the Internet, nor did he distribute the letter he had sent to the media “as customary”. He appealed to the authorities with the intention that they will examine the facts and act accordingly. Without retracting from his right to act within the public arena in the future as he sees fit, this is a responsible, proportional, reasonable and overly strict civic behavior.
11. The Plaintiff’s response to the defendant’s plea and the threatening letter:

 

11. Immediately after the submission of the above Plea, aggressive attempts to silence the defendant and to make him retract his above plea to the authorities were made.

 

12. Several days after the submission of the letter the family of the defendant’s son approached the defendant, and his wife “opened a door” to the “rehabilitation” of the family relationship, after a long period of deterioration and distance. However, the very first condition made by the son was that the defendant issue an official retraction of the letter he wrote to the authorities to whom the letter was submitted through notifying them that he retracts everything he wrote.

 

13. After this attempt failed a “warning letter” was sent, attached as exhibit B to the Complaint. This warning letter constitutes an abuse of the law, and is an extremely aggressive attempt of a powerful organization to threaten a citizen by using something that can only be described as “legal violence”. At this stage the defendant shall point out the following aspects: the presentation of the matter in an enhanced and excessive manner, the extensive use of frightening and impressive language and implied threats, the setting of a 48 hours surrender ‘ultimatum’ (a purposefully short time period intended to generate stress and make it difficult to solicit legal advice). On the other hand, the letter does not detail what the wrath was about and which of the statements that were included in the letter constitute defamation – i.e., it is impossible to understand from the letter what exactly the allegations are against the defendant, and therefore it is impossible to examine them objectively, and to respond to them. In addition, the letter contains threatening statements regarding severe damages that “were already done” – however, when the defendant requested a clarification as to what exactly those damages were, the plaintiff did not reply to his request [appendix C1 to the Complaint].

 

14. The defendant will argue, that such threatening letters such as the letter sent by the plaintiff have serious consequences over normal public discourse, and in this case, over a citizen’s ability to merely complain to the authorities. Such threatening letters are an efficient tool (at a minimal cost) to silence opponents and to deter them, with little or no risk. When the threatened party decides, as happened in this case, not to give up, the threatening letter becomes a part of the lawsuit, and the court should require, with all due respect, to take it under account, including in the context of the ruling of expenses.
15. Defendant’s protections – general

The defendant shall argue that with regard to the arguments in the complaint concerning statements that were marked in the complaint as such that constitute a cause of action he has the following protections:

15. The defendant shall argue that the highlighted words in the Complaint that constitute the cause of action, do not constitute, and surely not all of them, defamation.

 

16. The defendant shall argue that he has the protection of appealing to an authorized authority – section 15(8) of the Prohibition of Defamation Law 5725-1965 [hereafter: “The Law”]

 

1. The defendant’s letter is an appeal to the qualified authorities in order for them to investigate the complaint’s issue and act. The citizen’s right to turn to the authorities with a complaint is a basic civil right, and a clear public interest. Clearly, if the authorities investigate and find the complaint to be groundless, no action will be taken and no damage will be done.
2. The defendant shall argue that all of the above protection’s fundamentals clearly exist.
3. The defendant truly believed everything that he wrote in the plea letter above. He acted in good faith according to the criteria in connection with the protection of section 15(8) of the law, and the special circumstances that negate the above protection are not met.
4. The defendant acted responsibly and proportionally and did not distribute the above plea or any similar publication to the public.
5. Even the letter’s list of recipients is limited, and is compiled of authorized officials that are responsible for the school managerially and pedagogically, and who are directly concerned with the matter (few officials in the Ministry of Education: the Minister, and the manager of the psychological counseling service (SFI); the district manager; the local council’s department of education’s manager; the school principal; the relevant official in the Ministry of Social Affairs; the manager of the center for cults victims) and could have legitimately been much wider (for example: the head of the Ministry of Social Affairs, the State Comptroller, The head council of Tivon, other selected officials, the school’s supervisor etc).
6. The protection rational as clarified through case law – the encouragement of informing the authorities and the protection of informers – takes place in its full force, and also obligates, in any marginal issue should it be determined that such exists, an interpretation in favor of the defendant.
7. It shall be noted, that the submission of the letter to the manager of the center for cults victims does not hinder the protection of the section for several reasons, their main ones: the center for cults victims is an non-governmental organization (NGO) with a public status in all relevant matters; the formal officials themselves refer to the publications of the center for list of cults; reasons of judicial policy obligate that the inclusion of such recipient shall not harm the protection: the center was in connection with the defendant, the defendant approached the center on this matter, it advised him to plea to the authorized officials, and the defendant updated the center regarding the submission of the plea, without the later distributing or publishing the above plea to any other additional source; the position of the center for cult victims regarding the nature of the Bnei Baruch organization is known and familiar regardless of the defendant. His letter made no difference.
8. Regarding this matter it shall be clarified, that in the last report issued by the Ministry of Social Affairs concerning cults in Israel, there was no detail regarding the list of cults, but a referral to the website of the center for cult victims. Moreover, throughout, the report relies on the publications of the center for cult victims and refers to them. Therefore, even in other and less significant circumstances, it is only natural that a person, who wishes to complain to the authorities regarding a matter that to his opinion relates to a cult, will also approach the center for cult victims , as it is a central source from the perspective of the qualified authorities in all matters related to the issue, including the very determination of the list of entities that should be seen as cults. A copy of the relevant section from the report ‘Cults in Israel’ by the Ministry of public affairs and social services is attached hereto and marked as N/2 [the complete version is published on the ministry’s website].

 

17. The defendant shall argue that the protection of expressing one’s opinion under section 15(4) of the law applies to him.

 

Everything stated in the letter represents the defendant’s opinion, which he believes in, regarding a matter of public importance, based on information that he had, his familiarity with the ‘Bnei Baruch’ group, and its activities. Everything stated in the letter is an opinion or a factual fact that is also an opinion. The defendant acted in good faith according to the criteria set by law, and the special circumstances that negate good faith according to section 16 of the law are not met.

 

18. The defendant shall argue that the protection of the social obligation (civil) according to section 15(2) of the law applies.

 

The defendant acted pursuant to his civic obligation (social). As someone, who knew ‘Bnei Baruch’, and was personally injured by its methods of operations and possible influence, he felt it was his civil obligation to warn the authorized officials, and perhaps to protect other parents from his personal destiny. The defendant acted in good faith according to the criteria set by law, and the special circumstances that negate good faith under section 16 of the law are not met. policy considerations compel the encouragement of citizens to appeal to the authorities due to public interests.

 

19. The defendant shall argue for the protection of ‘I spoke the truth’ under section 14 of the law.

 

The defendant shall argue that his conclusion that ‘Bnei Baruch’ should be seen as a “cult” and to interpret its activity and the processes that take place in it as described in his letter is the correct conclusion, both from the professional/therapeutically/”academic” meaning of the term “cult”, as well as the meaning of this term, and other terms within the letter, within the public discourse, hence he has spoken the truth.

 

1. Detailed reference to the articles of the complaint

 

Beyond the general reference as detailed above and without detracting from the generality of the aforesaid concerning all the statements included in the complaint, the defendant shall refer to the articles of the complaint as follows.

 

20. Article 4 – The defendant shall argue as noted, that ‘Bnei Baruch’ has the characteristics of a cult, both in the professional sense (as defined by researchers and counselors) as well as in the “public” sense of the term. ‘Bnei Baruch’ exploits the resources of the members that were captured in its net, and uses them (both time and money) to its benefit. The result to Beni Baruch is financial wealth. ‘Bnei Baruch’ does not need the state’s support.

 

21. Everything said in articles 6-10 is denied. It shall be emphasized: the defendant appealed to the authorized officials in the letter of complaint, in order for them to examine and investigate. In the event that the authorized officials find the complaint to be groundless, they will obviously not act hence no damage can be caused. This is also the rational of the protection arrangement of the complainer/informer as established in section 15(8) of The Law.

 

The arguments that the defendant acted in order to damage the plaintiff as much as possible are both ridiculous and absurd. Had he wanted to damage ‘Bnei Baruch’ as much as possible he would have published his accusations in public, came out to the media etc. and not send a complaint to the authorized officials, who, in any case, would not act if they find it to be without merit..

 

22. The stated in articles 11 and 12 is true. Regarding the comment in article 12 it shall be clarified that Mrs. Sharaby signed and still signs her official letters with the title “national supervisor for the treatment of cult victims”

 

23. Articles 13-14:

 

The defendant admits to the submission of the letter quoted in article 13, and denies the statements at the preface to the quote.

 

Per the stated in article 14 of the complaint, the complaint is filed due to each and every one of the publications… quoted and emphasized [in article 13]”. That means that the complaint was filed for – according to our count – eight different statements, that in fact, each constitute a separate cause of action.

 

Nevertheless, the plaintiff does not mark in a clear manner where, from its standpoint, one “defamatory” statement ends, and another “defamatory” statement begins. Under these circumstances it is hard to understand the plaintiff’s arguments, and it is clearly difficult to defend against them. In case the defendant made a mistake counting the statements that each constitutes a cause of action, it will surely be clarified in the answer.

 

24. The stated in articles 15 and 16 is denied. Despite the emotional and excessive description of the plaintiff, the defendant’s letter is simply an appeal to the authorities. If they find that the complaint has grounds – they will act. If they find it to be groundless, they will not act, and no damage was done or will be done to the plaintiff.

 

25. The defendant shall argue, that the warning letter issued by the plaintiff to the defendant, as mentioned in section 17, is a clear example of abuse of the law, when the prohibition of defamation law is used to intimidate the citizen, while using excessive and inflammatory words and descriptions, setting up impossible ultimatums, and lacking any concrete details that allow for any logical response to undefined arguments and complaints. We referred to the matter of the aforementioned warning letter above.

 

26. Article 18: In the above warning letter the plaintiff included statements such as “damages that have already occurred” as a result of the defendant’s plea to the authorities. The first letter by the defendant’s representative [appendix C1 to the Complaint] was a request to receive additional details regarding such harsh statements of “damages that have already occurred “. The plaintiff did not reply to the letter, and its threatening statement regarding ““damages that have already occurred” remained hanging in the air, hence their only specific intention to intimidate the plaintiff was made obvious.

 

27. The stated in article 19 is denied and odd. This is a pertinent reply letter that was not addressed to anyone else other than the plaintiff’s representative, and its style is reserved many times over in comparison to the warning letter that the defendant was honored to receive.

 

28. Regarding the stated in article 20 concerning the defamation lawsuit that was filed by the plaintiff against the ‘Center for Cults Victims’:

 

This is a clear example of abusing the prohibition of defamation Law simply for the sake of deterring civic participation in public matters. The defamation lawsuit was not filed as a result of the statement that ‘Bnei Baruch’ is a cult by the center for cult victims. Regarding this statement that specifically appeared in the publications of the ‘center for cult victims” no lawsuit was filed. It was filed due to an incorrect statement regarding another matter that has nothing to do with characterizing ‘Bnei Baruch’ as a “cult” (but rather the question of whether there are criminal characteristics in its activities). The plaintiff used this statement as  leverage in order to achieve wider achievements against the center for cult victims, but the settlement that was reached did not include a waiver of the center’s claim that ‘Bnei Baruch’ has clear characteristics of a cult (the settlement was, that the center agreed to remove the publication at that point, and undertook to notify the plaintiff before a new publication would be made). The defendant knew in an unmediated manner that the substantial position of the center for cult victims regarding Beni Baruch had not changed.

 

29. The plaintiff’s intention in article 21 is not clear. The defendant knew and was familiar with the position of the center for cult victims regarding Beni Baruch, which has not changed. Perhaps the plaintiff’s intention was that the defendant should have “learned the lesson” from the defamation lawsuit that was forced upon the center for cult victems, and avoided taking action in matters concerning ‘Bnei Baruch’, so that his outcome will not be the same as the center for cult victims. The defendant shall argue that the plaintiff’s strategy is clear, but that he has no intentions to surrender to it, and that his refusal to surrender is also a clear public interest.

 

30. Everything stated in articles 22-28 that is not the quote of section 1 of The Law, is denied. Beyond the referral to the general reference above, it shall be clarified that: the defendant believed full heartedly in the truthfulness of the content of his plea; the defendant knew the work of ‘Bnei Baruch’, and in any event the law does not in these circumstances require an “early investigation” prior to appealing to the qualified authorities. The defendant did not intend to “antagonize the plaintiff in the eyes of the public”, since he did not approach the public. If he wanted to cause damage in public he would have published his words in public; the defendant has appealed only to the qualified authorities. In any event if they find his complaint to be groundless they would not act, and no damage would be caused to the plaintiff.

 

31. Regarding the reliefs sought by the plaintiff – article 29 of the Complaint.

 

1. The defendant shall argue that the plaintiff is not entitled to any compensation. Other than arguing that ‘Bnei Baruch’ has no ‘good reputation’, anyways, if the qualified authorities find his complaint to be groundless they will not act against the curriculum in the public education system, the subject of the appeal, and no damage will be caused to it. Things were understood as to the spiritual group of ‘Bnei Baruch’ and not to the suing organization. Moreover, if any damage was to be made, it would have been to ‘Ligdol BeKeif’ and not to ‘Bnei Baruch’. Regarding the center for cults victims, in all due respect ‘Bnei Baruch’ has no ‘good reputation’, the defendant did not reveal anything new to the center regarding ‘Bnei Baruch’, the position of the center concerning ‘Bnei Baruch’ was known to the defendant, the letter was submitted to the center for cult victims for coordination purposes only, and the center for cult victims has taken no action concerning it – it did not publish nor did it transfer it to any other source.
2. With all due respect the honorable court has no material jurisdiction to obligate the publication of amendment and retraction to the recipients of the plea, and in any event it is not warranted.
3. With all due respect the honorable court has no material jurisdiction to obligate the publication of amendment and retraction in the media. Moreover, since the letter was not published in the media, the mere request is odd, and proves the attempt to “leverage” the lawsuit in order to gain unrelated achievements.
4. The plaintiff is not entitled to demand additional damages, whatever their definition may be, that were not included in the lawsuit sum, and for which no fee was paid.
5. The defendant shall argue that policy considerations should obligate, with all due respect, beyond the dismissal of the lawsuit, the ruling of high expenses to his favor – see E below.

 

 

 

1. Policy Considerations for the Ruling of High Expenses against The Plaintiff

 

32. This lawsuit is a perfect example of an increasing phenomenon of using the prohibition of defamation law to apply a “chilling effect” over citizens who dare to act against the interests of powerful entities, while abusing the disparity of force and the heavy burden that falls on an ordinary citizen due to the need to defend against the lawsuit regardless of its outcome (tens of thousands of shekels in legal fees, hours of preparation, inconvenience and aggravation, the sword of the lawsuit sum that hovers over his head for years, etc). Defamation lawsuits of this kind do not only force a severe chilling effect upon the defendant, but on wider circles of citizens and organizations, that internalize that a public action against a powerful entity, and a public action against a generally powerful entity, may hold a high personal price tag.

 

33. This phenomenon constitutes a severe threat to the citizen’s freedom of speech – to act, to express, to try to impact, to face the interests of those who are more powerful than him. In our case, the mere ability of the citizen to even complain to the authorized authorities – even without any public action in the public arena.

 

34. With all due respect the courts should apply the tools at their disposal in order to deal with the phenomenon. The expenses tool is the first and foremost among those – especially when the lawsuit is dismissed. An appropriate legislative policy obligates, with all due respect, that the plaintiff of the defamation lawsuit, which has a real potential to impose a “chilling effect” and to damage free discourse (in our case, also the mere ability of the citizen to complain) that is essential to the existence of a democratic society, shall at least carry some significant risk.

 

35. Moreover, according to the case law expenses should be set for each statement that the lawsuit refers to and for which litigation took place, and to take under account the number of reliefs that were sought. All these come, alongside the inflated lawsuit sum, “to inflate” the proceeding and thus to weigh the litigation burden upon the defendant and to increase the “chilling effect” upon him and others.

 

Thus the honorable court is asked to dismiss  the lawsuit in its entirely and to charge the plaintiff with heavy expenses, including legal fees, that reflect the direct and indirect expenses of the defendant due to the process which was forced upon him, and that expresses the policy considerations as detailed in the above paragraph.

 

[signature]                  

Tel Aviv, April 19, 2013                     Yishai Shneydor, Adv.

Attorney for Defendant