(1) The action raises substantive questions of fact or law that are common to all the members of the class, and there is a reasonable possibility that they will be decided in the action in favor of the class;
(2) A class action is the efficient and fair way to resolve a dispute in the circumstances of the case;
(3) There is a reasonable basis to assume that the matter of all the members of the class will be represented and managed in an appropriate manner; the defendant is not entitled to appeal or request to appeal a decision in this matter;
(4) There is a reasonable basis to assume that the matter of all the members of the class will be represented and managed in good faith."
It is necessary to examine, therefore, whether the conditions of section 8 of the Class Actions Law are met.
Is there a reasonable possibility that he will determine that the respondent violated the privacy of the class members as detailed in the motion for approval?
- With regard to the first condition, which concerns the existence of a reasonable possibility that the substantive questions of fact and law will be decided in favor of the class, it was held that the burden imposed on the plaintiff at this stage is not the usual burden of proof on the balance of probabilities required in civil law. At the same time, the degree of proof should not be determined too lightly, since the rights of defendants who are exposed to high economic risk, and who are therefore liable to agree to a settlement agreement even in a lawsuit that does not involve substance, must also be proportionately protected. Therefore, it was held that at the approval stage, it is necessary to examine whether there is a sufficient evidentiary basis that establishes a reasonable chance of a decision in favor of the applicant, which can be said to reveal a good cause of action (see, for example: Civil Appeal Authority 2128/09 Phoenix Insurance Company inTax Appeal v. Amusi (published in the Databases, [Nevo], 5 July 2012), paras. 12 and 15; Civil Appeals Authority 729-04 State of Israel v. Kav Fisha B Tax Appeal (published in Ma'ari, [Nevo], April 26, 2010) para. 10); Appeal of Petition/Administrative Claim 980/08 Miniv v. State of Israel - Ministry of Finance (published in the Databases, [Nevo], 6 September 2011) para. 13).
- The court must be convinced that all the other conditions for approving the claim for the purpose of replacing a representative are met. However, as will be detailed below, I am of the opinion that this is not the case in our case. This is when I have not been persuaded, as stated, that the application for approval at all falls within the scope of Item 1 of the Second Appendix. Beyond what is required, as will be detailed below, I am of the opinion that there is also an evidentiary difficulty in terms of meeting the requirement to show the existence of prima facie cause.
- It is necessary to examine, therefore, whether there is a reasonable possibility that it will be determined that the respondent's conduct as detailed in the application for approval constitutes an infringement of privacy within the meaning of the Protection of Privacy Law.
- First of all, it should be noted that with regard to the question of whether the claim discloses prima facie cause, I am of the opinion that in particular in a motion to certify a claim for invasion of privacy, the existence of an applicant who is a member of the class is important.
If the applicant had been a member of a class, there could have been evidentiary value to the documents requested by him in the document discovery proceeding that took place. This is because, insofar as the applicant was not registered with Facebook, it was possible to learn from the scope of the material found in his case by the respondent regarding the claims raised in the application for approval.