"290. In an era of the exploitation of information by the masses using the Internet, even in services that are sometimes provided for free, the definitions of a consumer, a customer, and a dealer, let alone in return, can take different forms. The trend is that issues of user information, its transfer and use, are a matter between a dealer and a customer."
It was argued that the taking of the information is a business action of Facebook; that according to the case law, there is no need for consideration, even though it is clear that the taking of the information constitutes consideration for Facebook, with reference to the decision inCivil Case 1328/05 Levin v. Cellcom Israel in Tax Appeal (published in Databases [Nevo], December 13, 2007).
The Applicant further referred to the Civil Appeals Authority 2598/08 Bank Yahav for State Employees in Tax Appeal v. Shapira (published in the Databases [Nevo], November 23, 2010 hereinafter: "The Bank Yahav case"), where it was ruled that there is no requirement for a contractual relationship between the bank and the plaintiff to be treated as a "customer" (paragraph 1 of the judgment of the Honorable Justice A. Fogelman).
The Applicant also referred to the decision in Class Action 26737-09-15 to Noel v. Yahoo inc (published in the Databases, [Nevo], January 19, 2017) (hereinafter: "the Yahoo Case"), which dealt with the Applicant's claim in the same action that Yahoo violated the Privacy Protection Law by scanning the Applicant's emails that were not its subscribers, sent to Yahoo subscribers, and also edited his digital profile and sold it to various advertisers. The request for approval was submitted on behalf of those who were not Yahoo subscribers. In the same matter, a motion for summary dismissal that was filed was rejected on the grounds that the claim did not fall within the scope of Item 1. It should be noted that an application for leave to appeal against that decision was rejected, but not for the same reason on which the decision was given, but because the Supreme Court ruled that the question of whether the claim falls within the scope of Item 1 should be discussed in the framework of the hearing of the motion for approval, and not as a threshold argument.
- The Respondent, for its part, claimed that there is no client-dealer relationship between the members of the group, who have never registered with Facebook, and Facebook. The request is based on the claim that these are people who chose not to register on Facebook (section 5 of the request for approval).
According to the Respondent, the courts dismiss motions for approval out of hand when the Applicant fails to show the existence of a dealer-customer relationship, even when the Respondents provided services in general but did not provide services to the Applicant and the members of the alleged class (Class Action 19886-07-12 Abu Ishaq v. Israel Postal Company in Tax Appeal (published in the Databases, [Nevo], June 25, 2013) and Class Action (Jerusalem) 11319-04-11 Google Inc. v. Brauner (published in the Databases, [Nevo], 23 November 2011, hereinafter: "the Brauner case").
- In his summary, the Applicant claimed that Facebook creates a forced dealer-customer relationship between it and any person it collects information about when he browses with other dealers, even though that customer did not ask to be its customer. It was further argued that in the decision of the Honorable Justice Stammer, Facebook's request for summary dismissal was rejected, while referring to the determination of Judge Stammer in this context regarding the claim regarding the applicability of Item 1, in a decision of July 29, 2021 (hereinafter: "the decision on the motion for summary dismissal"). According to the applicant, in the absence of an appeal against the said decision, it should be determined that this matter has already been decided.
- The Respondent noted in its summaries that this issue was not decided in the framework of the decision given in the motion for summary dismissal. She also noted that this decision is in line with the rule that as a rule, these issues are discussed in the framework of the hearing of the application for approval, and not as a threshold argument.
- The Respondent also referred to recent rulings, including the judgment in Class Action 23262-09-21 Mengistu v. NPO Software Systems Development and Real Estate in a Tax Appeal (published in the Databases, [Nevo], June 28, 2022, hereinafter: "the Mengistu Case").
What are the implications of the decision to dismiss in limine?
- From a review of the decision given by the Honorable Justice Stammer in the framework of which the motion for summary dismissal was discussed, I am of the opinion that it does not constitute a decision on the question of whether the motion for approval falls within the scope of Item 1 of the Second Addendum, and all as will be detailed below.
- The motion for summary dismissal reads as follows:
"29. The second issue raised by Facebook related to the applicant's lack of a personal cause of action. This is an issue that must be factually clarified. The applicant claimed that he did not operate the Facebook page except for the business, while his claims here are related to the private use of those who did not register. Although a claim regarding suitability to serve as a class plaintiff can be a basis for a threshold argument in appropriate cases (Class Action (Tel Aviv District) 56441-05-20 Alexander Rabinovich v. Shenhav Industries inTax Appeal [Nevo] (March 8, 2021)), in our case it requires factual clarification, which is not suitable for the preliminary proceeding.