(a) The court will not approve a settlement unless it finds that the settlement is proper, fair and reasonable in view of the interests of the class members, and if the motion to certify the settlement was filed before the class action was approved, there are prima facie substantive questions of fact or law that are common to all the class members and that the termination of the proceeding in a settlement is the most effective and fair way to resolve the dispute in the circumstances of the case
Section 19(c):
(1) The court's decision whether to approve or reject a settlement will be reasoned and will include, inter alia, all of the following:
(a) the definition of the group to which the settlement applies;
(b) the causes of action, the substantive questions of fact or law common to all the members of the class and the remedies claimed as detailed in the motion for certification or as defined in the court's decision under section 14, as applicable;
(c) The main points of the settlement arrangement.
(2) In its decision under paragraph (1), the court shall address, inter alia, the following considerations:
(a) the gap between the relief proposed in the settlement arrangement and the relief that the class members would have received had the court ruled on the class action in favor of the class;
(b) Objections filed under section 18(d), and their determination;
(c) the stage at which the proceeding is located;
(d) An opinion of the examiner given in accordance with subsection (b)(5);
(e) the risks and chances of continuing to conduct the class action vis-à-vis the advantages and disadvantages of the settlement;
(f) The grounds and remedies in respect of which the decision to approve the settlement constitutes an act of court against the members of the class to whom the arrangement applies
- The definition of the class, the causes of action, the remedies claimed and the main points of the settlement agreement are as I detailed above in the framework of the description of the application for approval of a settlement agreement. In addition, there are prima facie substantive questions of fact or law that are common to all the members of the class, namely whether the respondent violated in its conduct the provisions of section 30A of the Communications Law, as well as section 7A of the Consumer Protection Law and the Consumer Protection Regulations.
- In the circumstances of the case, after reviewing the settlement agreement, and after considering all the considerations that the court must consider in accordance with section 19(c) of the Class Actions Law, I am of the opinion that this is a proper and reasonable arrangement in the circumstances of the case.
- The settlement agreement that was submitted for the court's approval led to the correction of the respondent's default. Thus, in the framework of the settlement agreement, the respondent undertook that in every marketing video and advertisement sent on its behalf to the recipient, to the extent that they are sent, within the borders of Israel, and to the extent that a permit is given to this in accordance with the law, and which concerns the possibility of winning a lottery, in the purchase of any of its products, it will be clearly and conspicuously stated that the chances of winning are as specified in the regulations, and it will also clarify where these regulations can be found.
- In addition, to the extent that the Respondent sends advertisements, as defined in the Communications Law, within the borders of Israel, from now on they will be sent only to those recipients who have given their consent to receive such advertisements, in accordance with the provisions of the Communications Law, and the Respondent will also allow those recipients to send a refusal notice in the manner in which these advertisements were sent, in accordance with the provisions of the Communications Law, and it will also be clarified that those text messages are "advertisement".
- The Respondent's obligations under the Settlement Agreement are consistent with the objectives of the Class Actions Law regarding "enforcement of the law and deterrence against its breach" in accordance with the provisions of Section 1(2) of the Class Actions Law.
- It has already been determined that the question of sending advertising text messages without the consent of the recipients of the text messages is a question of considerable public importance. It was also determined that section 30A of the Communications Law embodies a public interest within it (see Class Action 34900-12-15 Maayan Cohen v. Habima National Theater Ltd. (published in Nevo, October 10, 2018)).
- Technological developments together with the increasing use of electronic communications have given rise to the phenomenon known as "junk mail". This is a case of mass distribution of unsolicited advertising messages, including SMS messages (see Civil Appeal Authority, 1954/14 Alon Hazani v. Shimon Hanegbi (Winners' Gliding and Parading Club) (published in Nevo, August 4, 2014) (hereinafter: "the Hazani Judgment")).
- On December 1, 2018, Amendment No. 40 to the Communications Law was enacted, in the framework of which Section 30A of the Communications Law was enacted. Section 30A of the Communications Law is intended to deal with the phenomenon of mass distribution of unwanted advertising messages through communication networks, including SMS
- Thus it was stated in the explanatory notes to the Communications Bill (Telecommunications and Broadcasting) (Amendment No. 33), 5765-2005, Government Bill 182:
... The phenomenon of the mass distribution of unwanted advertising messages through communication networks (including via email, SMS messages, and facsimile), known as "spam", has become a worldwide public nuisance in recent years, and its scope is on the rise.