At the end of the day, no evidence was presented to the court that the parties pointed to by Meta and Google were the ones behind the ads. Therefore, even filing a lawsuit against them, in the absence of prima facie evidence at least, might have been contrary to the procedural duty of good faith set forth in Regulation 4 of the Civil Procedure Regulations, 5779-2018 .
- In conclusion, I will add that Google and Meta claimed that the fact that the plaintiffs did not file a preliminary lawsuit against them, the remedy requested in which the disclosure of the identity of the advertisers (hereinafter: "Exposure Claim" or "BSI Claim") constitutes evidence of their lack of good faith and the fact that the advertisers and creators of the videos are not interested in them at all, but only in the deep pockets of Google and Meta.
As I commented in the interim decision, with all due respect, I do not see this fact eye to eye with Google and Meta.
Civil Appeals Authority Ruling 4447/07 Mor v. Barak ITS (1995) Bezeq International Services Company in Tax Appeal IsrSC 66 (3) 664 (2010) prohibits Massadat from disclosing any detail relating to the real advertisers of wrongful advertising. While it is true that the plaintiffs may apply to the court in such a disclosure claim, only the unequivocal consent of the advertisers to provide their details will give the court the power to instruct the Establishment to disclose to the plaintiffs the information in their possession about the advertisers, and in particular their real identity or other information leading to its disclosure. Lack of agreement, or even lack of response, will obligate the court to dismiss the claim.
In my opinion, under these circumstances, the plaintiffs should not have assumed that if they filed a disclosure claim against Google and Meta, the creators and publishers of the videos would agree to the disclosure of their details. On the contrary: hiding behind a heavy virtual screen that prevents advertisers' identities from being revealed by simple means shows that they want to remain anonymous. Therefore, in this state of affairs, it cannot be determined that the plaintiffs acted in bad faith by not filing an exposure claim. The plaintiffs' assumption that the advertisers will not give their consent to the disclosure of their identity is a legitimate and reasonable assumption, and in my opinion - the plaintiffs were not obligated to take the preliminary step of a disclosure claim, as a precondition for filing such a claim.
- As a concluding note to this chapter, I will add that the Mor judgment was given in 2010, when the use of social networks was not as common as it is today, and the status of social institutions and networks in general was not so central to culture and social experience. I am not convinced that the moral justifications for maintaining the anonymity of advertisers, which could have been true about 15 years ago, as was determined in the Mor case, are still in place today, and it may be time to re-examine this rule and set new boundaries for it. It goes without saying that changing this rule is not within the jurisdiction of this court.
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