Thus, now that the request for approval has been clarified on its merits, the issue must be decided.
- The Applicant claims that in 2010 he opened a Facebook account called Ushio Bulb in connection with the business he sought to promote. The Applicant further claims that he has not used Facebook since then.
The Applicant addressed this issue more extensively in the affidavit that was attached to the response to the reply, after the Respondent's claim of lack of personal cause had already been raised. Thus in paragraphs 233-234 of the affidavit that was attached to the response to the reply:
"233. About a decade ago, I opened a Facebook page that didn't even include my name. The page is called by a username Ushio_bulb and Facebook has no idea who the physical person behind it is. And the fact that she knew how to link this to me is unequivocal proof that she follows people and cross-checks information and manages to identify the user's identity in this way even when he does not identify himself by name at all.
- As mentioned, the page I opened (not under my name) was opened in 2010 and since then not every post has been uploaded to that page. It's been a completely "inactive" account for a decade, barely three pages long."
The Applicant attached as Appendix 3 all the pages of that account, which, from a perusal of Appendix 3, expired in November 2010.
- The Respondent claims that the Applicant's Facebook account was never deleted and that he agreed to the Respondent's Terms of Use. The Respondent also claims that contrary to what he claimed, the Applicant made use of his Facebook account over the years.
- In this context, the Applicant stated in the application for approval as follows:
"6. It should be noted for the sake of full disclosure that a few years ago the Applicant opened a Facebook page for the purpose of marketing a product that he had thought of marketing, for a short period of time, but stopped using it for a long time. The applicant did not open or register in his own name and with his details as a Facebook user."
- The Respondent argued that according to the Terms of Use, it is not possible to open a non-personal profile on Facebook, and that acceptance of such a claim means that anyone who creates a profile on Facebook can exempt himself from his contractual obligations, by using a trade or fictitious name.
- In the course of his testimony, the Applicant was presented with documents that show, according to the Respondent, of the Applicant's personal use of Facebook over the years (marked M/3-M/5). The applicant denied this in his testimony and claimed that over the years he did not log in to his Facebook account and, as he said, did not login or enter a password. In his testimony, he noted that some of the characters to whom he allegedly responded in the documents presented to him were indeed familiar to him, and that it is possible that these were situations in which he browsed other websites and "liked" the photos he saw in a Google search, and his actions were linked to the Facebook account he opened at the time (see pp. 52-81 of the minutes of the hearing).
- It appears from the aforesaid that the Applicant opened a Facebook account in 2010. The applicant does not claim that he actively acted to close the Facebook account, but rather that he did not use it. The fact that the Applicant did not use his own name in opening the account does not detract from the fact that from the moment he was the one who opened the account, as far as the Respondent was concerned, he was a Facebook user. The applicant even provided his email address during the opening of the account.
- Moreover, the declarant on behalf of the Respondent testified that even if the Applicant did not provide his own name at the time of opening the Facebook account, when he made use of third-party websites and his data was transferred by those sites to Facebook, a match to the account was identified, since the match is not based on the name but on the matching of the cookie data (see p. 169 of the minutes of the hearing):
"It would be identified based off of the cookie value that corresponds to the account, and whatever name was used to create the account."