The declarant on behalf of Facebook testified, as stated above, that she is entrusted with the Respondent with all matters relating to the processing of information that the Respondent receives from websites that make use of the said tools (see pp. 152-153of the minutes of the hearing). As stated, her testimony was not contradicted and the applicant did not bring any opinion or testimony that teaches otherwise.
- The Applicant's arguments suffer from weakness on the evidentiary level in other contexts as well. An infringement of privacy is committed when the actions specified in Section 2 of the Protection of Privacy Law are carried out without the consent of the person (Section 1 of the Protection of Privacy Law).
- The Respondent argues that third-party websites that make use of its tools are obligated by the rules of use of the business tools and within the framework of them to obtain the required consent from the surfers (the terms of the business tools were attached as Appendix 5 to the response to the request for approval). Section 1 of the Terms of Use for Business Tools reads as follows:
"1. Sharing Personal Data with Facebook
"...
(e) you represent and warrant that you (and any data provider you use) have a lawful basis (in accordance with all applicable laws, regulations and industry guidelines) for the disclosure and use of Customer Data. If you have not collected Customer Data directly from the person to whom it belongs, you represent and warrant, without limitation anything in these Business Tools Terms, that you have all necessary rights and permissions and the legal basis for disclosing and using Customer Data." (Emphasis added - A.R.B.).
- The Applicant argues that the Respondent should have attached its individual agreements with the various third-party websites. However, the Respondent replied that these rules obligate all websites that make use of its business tools. The declarant on behalf of the respondent was questioned about obtaining consent, referred to these rules and testified that the sites that use them are bound by them (see p. 177 of the minutes of the hearing).
- The Applicant argues that the burden is on the Respondent to show that it has received consent. The Applicant relied on the statements of the representatives of Facebook regarding the transfer of the information itself, including with respect to the members of the group, from third-party websites to the Respondent, and that even the declarant on behalf of the Respondent confirmed in her testimony the transfer of the information itself.
However, with regard to the lack of consent, the applicant did not lay an evidentiary foundation. The applicant himself, as stated, is not a member of a group. He did not even declare, and in any event, did not provide evidence that he browsed a certain third-party website that installed the Respondent's tools and did not obtain the required consent from him to send data to the Respondent. As stated above, even if he had done so, it would not have been of any use when he was not a member of a group.