The Respondent also reiterated its arguments that the application of the tests set forth in the matter Agoda Leads to the application of the law of the State of California. In this regard, the respondent emphasized that with regard to the choice of law that applies to the proceeding, regardless of the choice of law stipulation, all the judges who sat on the matter Agoda They determined that the activity of a foreign corporation in Israel (which is required for the purpose of concluding that the alleged tort was committed in Israel) has an objective dimension and a subjective dimension, and emphasized the importance of the subjective dimension concerning the efforts to penetrate the Israeli market. The Respondent argued that the Applicants did not prove that at the time of submission of the application for approval, which is the determining date, the LinkedIn service was available in Hebrew, while from the representations and documents attached to the application for approval, it appears that, at least at that stage, the LinkedIn network did not include an "Israeli" user interface available in Hebrew. The Respondent argued that, contrary to the Applicants' claims, the data indicated by the Applicants do not indicate that the Respondent's activity is directed at the Israeli market, but on the contrary, that it is a global network, and it is precisely this characteristic of it that allows its users to get the most out of it.
In view of the aforesaid, and also taking into account the fact that the Applicants did not present any evidence with respect to the scope of the Respondent's activity in Israel (to establish the objective dimension of "activity in Israel"), the Respondent argued that it should be determined that according to the tests set out in the case law, the law applicable to the proceeding is American law, and accordingly it should also be determined that Israel is not the appropriate forum for deciding the proceeding.
It should be noted that both the request for heresy and the response submitted by the respondent to the applicants' response were not supported by the affidavit.
- On April 8, 2025, a hearing was held during which Applicant 1 was questioned about his affidavit. Subsequently, the summaries of the parties to the request for heresy were submitted, and now the time has come for a decision.
Discussion and Decision
- After considering the arguments of the parties, I found that the application for heresy should be rejected, and the following are my reasons.
As is well known, a litigant who wishes to produce a statement of claim outside the scope of the claim is required to overcome three main hurdles: he must prove that there is a cause of action (where the burden of proof required for it is at the level of the existence of a "claim worthy of argument"); He must prove that he has a cause of action (when the burden of proof required for this component is lower, and it is at the level of a "serious claim that is not a frivolous claim"); Finally, it must satisfy the court's opinion that the court in Israel is the proper forum to hear the claim (these are the requirements set out in the case law dealing with the Civil Procedure Regulations, 5744-1984, but the prevailing opinion in case law is that there has been no change in this matter even after the enactment of the 5779 Regulations, see, for example, Civil Appeal Authority 8854/22 The Dow Chemicals Company v. Jacobson Agencies in a Tax Appeal [Nevo] (March 27, 2023), in paragraph 26 of the judgment).