Class Action (Center) 32237-06-18 Matan Eliyahu Greenblatt v. Meta Platforms, Inc

Judgment

I have before me a motion to certify a class action filed by Mr. Matan Eliyahu Greenblatt (hereinafter: the "Applicant") against Facebook Inc.  (Today Meta Platforms Inc.hereinafter: the "Respondent" and/or "Facebook").  The lawsuit concerns the claim that the Respondent collects personal information about surfers throughout the Internet who are not registered as Facebook users, mainly from non-Facebook sites that have installed Facebook tools (such as pixels, cookies and buttons such as "Like or Share").

Background

1. On June 13, 2018, the Applicant filed a statement of claim and a motion to certify a class action against the Respondent. In the application for approval, it was claimed that the Respondent monitors Internet surfers who are not registered to Facebook, without their consent, and keeps information about those people with it, and even created an unregistered database, all in violation of the Protection of Privacy Law.  In addition, it was argued that the Respondent is a monopoly that abuses its market power.
2. The group on whose behalf the approval request was submitted is: "Any person and entity that is not registered as a Facebook user or has ceased to be registered as a Facebook user, that Facebook (and the consolidated companies or included in its reports) has made and is making use of and collects and/or collecting information about them in relation to the sites they visit, or other usage habits that such person or entity has not given [from] prior and informed consent to Facebook to collect and use." According to the application for approval, the number of members of the group is one million, based on the assumption that there are about 6 million people in Israel who surf the Internet, and about 5 million of them have a Facebook account (who are not members of the group). Attached to the application was an affidavit of the applicant and an expert opinion of Mr. Hanan Sharon on the question of Facebook's monopoly in the market for the provision of social networking services.
3. On May 16, 2019, a response to the request for approval was submitted. The answer was accompanied by an affidavit by Ms. Narvaez, who works at Facebook, and an expert opinion by Prof.  Guy Even in the context of technology and Internet surfing, as well as an expert opinion by Mr. Menachem Perlman on the aspect of competition economics.
4. On June 20, 2019, the Applicant submitted a response to the Respondent's response to the Motion for Approval.
5. After the first pre-trial hearing was held, the Applicant requested to attach an expert opinion in the context of Internet surfing technology. In a decision dated July 29, 2021, the Honorable Judge (retired) Esther Stammer rejected the motion, ruling that the application did not meet the criteria set forth in the case law regarding the addition of additional evidence, and that the Applicant should have attached the opinion at an earlier stage.
6. On June 8, 2022, the case was transferred to my care.
7. On February 10, 2023, after a pre-trial hearing was held in which the court's comments were heard, the Applicant announced that he would not stand by this motion for confirmation of his claims against the Respondent in the field of antitrust law.
8. On December 2, 2023 and February 28, 2024, evidentiary hearings were held. In the first hearing, the Applicant was cross-examined, and in the second hearing, the witnesses on behalf of the Respondent, Ms. Narvaez and Prof.  Even, were examined.
9. The parties submitted written summaries.

Summary of the parties' arguments

10. It should be noted that since the claim of antitrust law is no longer up for discussion, the parties' arguments in this matter will not be detailed beyond the general arguments in this matter.

Main Points of the Request

11. According to the Applicant, Facebook conducts a business of collecting and selling personal and private information under the guise of a social network. Facebook's revenue from advertising alone in 2016 was over $26 billion.  The information is collected from non-Facebook sites that have installed Facebook tools (such as pixels, and "like" and "share" buttons), all without the informed consent of the users themselves.  It was also claimed that the website owners do not have legal permission to transfer personal information to Facebook, since those sites did not receive consent from the group members.
12. The Ottoman Settlement [Old Version] 1916In the application for approval, it was claimed that the status of the matter regarding the surveillance of non-Facebook customers arises from the testimony of Facebook President Mark Zuckerberg, before a committee of the US Congress on April 11, 2018. According to the claim, the same testimony of the president of Facebook constitutes an admission that the respondent is monitoring and collecting data on people who visit various websites and who are not registered with Facebook.

12-34-56-78 Chekhov v.  State of Israel, P.D.  51 (2)According to the Applicant, she is doing so in order to add them to Facebook, and this is an invasion of privacy for the purpose of creating profits.

13. The president of Facebook even appeared before a committee of the European Parliament on May 22, 2018, and in a document answering questions that Facebook subsequently provided, it was explicitly stated that Facebook creates "shadow profiles" for those people, and that it uses the information to show them ads to join Facebook, while collecting personal information about them such as geographic location, interests, browsing habits, purchase actions, and technological data (such as IP addresses and device identifiers).

1. Facebook is subject to Israeli privacy law and has violated it.
2. Facebook has entered into agreements with various websites, according to which the sites transfer private information collected from visitors to those sites, without their consent that the information will be transferred to Facebook.  This is information that may not be stored and transferred to a third party, and this practice amounts to a violation of privacy, since tracking and tracing websites that a person visits is a violation of privacy in accordance with the subsections of section 2 ofthe Protection of Privacy Law (and in particular subsections 1, 5, 6, 7, 8, 9, 10, and 11).

The fact that these third-party sites have agreed to implement Facebook's technology on their websites does not detract from Facebook's liability for violating the privacy of the group members.

1. It was also argued that the Respondent established a database and should have complied with the requirements of the law and registered it lawfully, in accordance with the provisions of the Protection of Privacy Law.  In addition, it was argued that the very transfer of information outside of Israel is contrary to the law.
2. This is a large-scale violation of the privacy of an entire public.  According to case law, as part of the right to privacy, a person's control over the information collected about him is included.

18. The Applicant assessed the damage to each person about whom the Respondent collected information in the sum of ILS 1,000. According to the Applicant, the damage stems from an invasion of privacy and includes mental anguish, an infringement of autonomy, and damage from personal harassment.  As an additional or alternative remedy, it was argued that Facebook should compensate the members of the group by virtue of the laws of enrichment and not by law, since the profit from the personal information was created while violating privacy, unlawfully.  The total damage was estimated at about ILS 1 billion.
19. In addition, the Applicant requested an injunction against the Respondent instructing her to cease tracking the class members and an injunction instructing her to delete all the data she had collected about the class members.
20. It was also claimed that the conditions required for the certification of the class action are met.

The main points of the answer

1. According to the Respondent, the lawsuit is against the customary use of common web technologies that are an integral part of the Internet and are used by most of the websites, such as "browser cookies", "plugins" and "pixels".  The Respondent referred the matter of the manner in which the Internet operates to the opinion of Prof.  Even, which was submitted by her.
2. The Respondent objects to the Applicant's claim that it creates "shadow profiles" or databases of personal identifiers of persons who are not registered users.  The data collected is not stored in a format that allows the identification of unregistered users.  Therefore, there is no violation of privacy under the Protection of Privacy Law, since the identification requirement is not met - that is, a reasonable person cannot link the information collected to a specific person.
3. Most of the information collected by the applicant stems from the combination of plugins (such as the "Like" or "Share" button) on third-party websites.  Facebook automatically receives and records the same standard data on the web browser regarding the visit, as well as additional information that a third-party website chooses to share with the Respondent about the activity on that site (such as the fact that a purchase was made on the site).  It is these sites that choose to implement the plugins, while agreeing to the Respondent's terms of use.  These Terms of Use require those Sites to disclose to their users that these Plugins are installed on the Website, and to obtain informed consent as to whether those Plugins will be activated and that the data will be transferred to the Respondent.
4. The Respondent argued that the request for approval does not fall within the scope of Item 1 of the Second Addendum to the Class Actions Law, which deals with claims against a dealer in connection with a matter between him and a customer, since there is no client-dealer relationship between the members of the class, who have never registered with Facebook, and Facebook.
5. In addition, it was argued that the Applicant has no personal cause of action and cannot represent the members of the alleged class, because he is not a member of the class.
6. The Respondent argues that there is a great deal of variation between the members of the class, which requires individual inquiries that will overcome common issues and require individual proof.  For example, there are differences between the types of information that websites choose to share with Facebook, differences in the consent given by each individual visitor to that third-party site, and differences in the privacy settings of the different group members.

The Applicant's Response to the Respondent's Response

1. There is no substance to Facebook's claims that the fault lies with the Internet and not with the Respondent.  This is a matter of the Respondent's takeover of the Internet and surveillance of the entire world.
2. There is no substance to Facebook's claim that it cannot link the information to the surfer himself.  Browser identification is monovalent.  There's nothing real in Facebook's denial that it builds a profile for non-Facebook users.  The respondent knows about the non-user data such as location, hours of use of the sites, what he purchases, and more, and on average 1,500 pieces of information.
3. In response to the claim that he had no personal cause of action, the Applicant claimed that he had opened the Facebook account without providing his real name or any identifying details, and therefore Facebook did not link and could not link the account to him.  He can therefore represent the group.
4. The very fact that Facebook requires websites to provide information about everyone is a violation and coercion that causes harm to the members of the group.
5. There is no substance to the arguments in the opinion submitted on behalf of the Respondent that all the "cookies" are for the purpose of using the Internet.  The experts claim that this is required for "security" purposes and ignore the use for advertising purposes.  Facebook itself admits to being used for advertising purposes.  Therefore, the opinion is misleading.
6. There is no substance to the claim that the class members cannot be identified, especially since the claim is not only for monetary relief.
7. In response to the argument that the claim does not fall within the scope of Item 1, the Applicant argued that there is no need to enter into a transaction for the purpose of creating a client-dealer relationship and for the purpose of filing a class action.  In an era of information exploitation by the masses who use the Internet, even in services provided free of charge, the definitions of a consumer, a customer, and a dealer can take different forms.  The trend is that issues relating to users' information, its transfer and use, are a matter between a dealer and a customer.  In our case, the taking of the information is a business act of the Respondent.  The applicant referred to case law.
8. With regard to obtaining consent through third-party websites from which the information was obtained, the Applicant argued that there is no significance to subjecting the sites to obtaining so-called consent from those who use the Sites.  The Respondent did not even present its agreements with the Sites, neither at all nor in relation to the Applicant.  Even if it had presented the agreements, it would not have changed it, since the sites acceded to it because it was a monopoly.

Discussion and Decision