The Respondent argued that according to the case law (Civil Appeal Authority 6992/22 Agoda Company Pte v. Shai Tzvia [Nevo] (May 27, 2024), hereinafter: the Aguda case), it is necessary to examine, first, what law applies under the Conflict of Law Rules, and then to examine the validity of the Choice of Law Clause. According to the respondent, both according to the rules of choice of law and according to the choice of law clause, which has full effect according to the tests set out in the case law - the applicable law is American law.
With regard to the law that applies according to the rules of choice of law, the respondent argued that in the Aguda case, emphasis was placed on the efforts invested by the foreign corporation in order to penetrate the Israeli market, and in that case it was determined that the applicable law was Israeli law in light of the fact that the defendant there had an Israeli website, with a Hebrew interface, it took marketing actions aimed at Israelis, and allowed hotel reservations in Israel and payment in Israeli currency. On the other hand, according to the respondent, these or similar connections have not been proven in our case.
The Respondent argued that according to the law, the connections to Israel must be examined as of the date of submission of the application for approval, and at that time, as appears from the application for approval, LinkedIn's ties to Israel were limited, since the LinkedIn service and the relevant documents were not available in Hebrew, and there was no customer service in Hebrew and the components of LinkedIn's service do not involve the sale of a product or service that is physically located in Israel. In this context, the Respondent also emphasized that LinkedIn is a global social network, with the Terms of Use Agreement applying without difference to users around the world. It was also argued that the number of Israeli users out of all active users on the network is negligible.
The Ottoman Settlement [Old Version] 1916The Respondent further argued that even if it is determined that Israeli law applies according to the rules of choice of law, the choice of law clause set forth in clause 6 of the Terms of Use, which the users are required to sign as a condition for the use of the Network, which even the Applicants themselves admit in the application for approval is the binding agreement between the parties, and according to which the law that applies to the relationship of the parties and to any dispute that arises in connection with the agreement or the LinkedIn service is the law of the State of California, United States of America. The Respondent argued that contrary to the Applicants' claims, the Choice of Law Clause clearly and explicitly states that the application of American law is exclusive and binding. The Respondent argued that it has already been established in case law that California law is not discriminatory (Civil Appeal Authority 5860/16 Facebook Inc. v. Ben Hamo [Nevo] (May 31, 2018), hereinafter: the Ben Hamo case).