On the other hand, the applicants did not prove that at the time of filing the application for approval, LinkedIn had an Israeli website or a website in an Israeli configuration, and from the evidence placed before me, it appears that as of the date of filing the application for approval, LinkedIn did not have an interface in Hebrew (this is evident from the examples and screenshots that were brought in the framework of the application for approval, and at least no infrastructure was laid that would establish a different conclusion); There is no clear indication as to the volume of Internet users in Israel in relation to the entire world, and no evidence has been brought in relation to the marketing efforts made by the Respondent in Israel; The various relevant documents (including the Terms of Use Agreement and Privacy Policy) were not adapted to Israel or available in Hebrew, and there was no customer service in Hebrew; and in contrast to the case discussed in the case Agoda The product or service marketed by the Respondent had no connection to Israel. There is also substance to the Respondent's claim that the service provided by the network is a global service, which is not specifically tailored or intended specifically for Israel, and to a considerable extent, the advantage of the network lies precisely in the fact that it enables global business and professional relations and in the fact that it is not directed and limited to the audience in a particular geographical area (although there are certainly advantages to the possibility of focusing the search according to needs).
- In this situation, in view of the procedural stage in which we find ourselves - in which the applicants are required to prove a cause of action only at the level of a claim worthy of clarification; Where there is no dispute that a cause of action has been proven at this minimal level under Israeli law; And there is at least a reasonable possibility that in light of the above, it will be determined that Israeli law applies to the proceeding - I found that there is no room to make a final decision, already at this stage, on the question of the applicable law, and that the issue can be left to clarify and decide in the main proceeding (see: Class Action (Center) 14590-12-22 Melody N. KIA CORPORATION [Nevo] (March 15, 2024), paragraphs 15-18; See also: Matter Agoda, paragraph 52; Interest Snapchat, paragraphs 49-50, on references therein).
- I will note that LinkedIn did argue, based on the Ben Hamo, that even if according to the rules of choice of law Israeli law is supposed to apply, then the choice of law clause set forth in section 6 of the Terms of Use must be given effect, since it has been ruled that the law of the State of California is not discriminatory. However, this argument contradicts the precedent that was ruled in the case Agoda Therefore, I found it to be rejected.
The proper forum question
- There is no dispute that the Applicants have the burden of proving that the court in Israel is the proper forum to hear the proceeding. In the case law, three tests were established that are used for the purpose of examining the appropriate forum for the hearing of the claim: (1) which forum has the most connections to the dispute; (2) what are the reasonable expectations of the parties with respect to the place of litigation in the dispute; (3) What are the public considerations at hand, and in particular which forum has a "real interest" to discuss the claim. At the same time, it was held that only when the balance between the affiliations to the Israeli forum and the affiliations to the foreign forum clearly leans significantly toward the foreign forum, will the Israeli court decide that, although it is authorized to hear the claim, it is not the appropriate forum to hear it (see, for example, Civil Appeal Authority 928/18 De Neef Construction Chemicals BVBA v. Gilar in Tax Appeal [Nevo] (May 15, 2018), in paragraph 17 of the judgment, on the case law cited therein). It was also ruled that over the years, there has been a decline in the status of the improper forum doctrine following the development of international media and means of transportation in the era of globalization (Civil Appeal Authority 2705/97 Gypsy A. Sinai (1989) in Tax Appeal v. The Lockformer Co, IsrSC 52(1), 109 (1998)), however, it cannot be said that this is a doctrine that has become obsolete ( Office Textile). The improper forum doctrine does not negate the court's authority, but rather determines when the court will refrain from hearing the proceeding, even though it is authorized to hear it.
In our case, the main argument that the court in Israel is not the proper forum to hear the proceeding, was based by the respondent on the argument that the applicable law is foreign law, an issue that indeed has significance and weight in the examination of the proper forum. As I have determined above, there are considerations here and there in the matter of the applicable law, and there is certainly a reasonable possibility that it will be decided that the applicable law is actually Israeli law. Moreover, there are quite a few affiliations with the Israeli forum, given that it is a social network with millions of users in Israel, and as mentioned, it even has offices and employees in Israel. On the other hand, the weight of the ties that tip the scales in favor of American law (excluding the issue of applicable law) is low, given that these are considerations that the existing technological means make it possible to easily overcome. Taking into account the extent of the use of the Internet by the Israeli public, and the existence of offices and employees in Israel, it appears that the Respondent also has a reasonable expectation that disputes between it and the Israeli public will be clarified in an Israeli court, and there is even a public interest in this forum to discuss the proceeding (compare: Matter Snapchatparagraphs 83 onwards). At the very least, it cannot be said that the balance is clearly tilted in favor of the foreign forum.