The phenomenon of spam raises problems on various levels, including problems of information security, penetration of computers without a permit and the spread of viruses, violation of the privacy of the user on the Internet and harassment, harm to the development of e-commerce, and harm to businesses due to the loss of time and investment of resources. This phenomenon imposes unnecessary costs on the public, including on telecommunications operators (infrastructure owners, internet providers, etc.), businesses, private Internet users, and authorities engaged in enforcement...
- The purpose of the amendment, as it appears from the explanatory notes, is to provide a solution to the phenomenon of spam, which began to gain momentum in the years preceding the amendment. In addition, for a violation of the provisions of section 30A of the Communications Law, both criminal and civil sanctions were prescribed in the law. The damages that were determined are compensation without proof of damage, because the legislature did not suffice with creating a regular cause of action. The concern underlying this decision is that the creation of a mere cause of action will not lead to curbing the phenomenon of spam, since if the injured party has to prove his damage in the usual way, he will be deterred from filing a lawsuit and the purpose of the law will be thwarted. In this regard, see the words of the Honorable Justice M. Mazuz (as he was then called) in Civil Appeal 7064/17 Yehonatan Arad v. Manx Online Trading Ltd. (published in Nevo, December 11, 2018):
In Amendment No. 40 to the Communications Law (S.H. 5768 5768), Section 30A, known as the "Spam Law", was added to the Law. The purpose of the amendment, as appears from the explanatory notes, is to provide a response to the phenomenon of spam messages that began to gain momentum in the years preceding the amendment... For violation of the provisions of Section 30A of the Communications Law, both criminal and civil sanctions were established in the law... It is not for nothing that the legislature in our case established compensation without proof of damage (for example, compensation), as is customary in other laws dealing with consumer protection and employee protection (see, for example: section 31A of the Consumer Protection Law, 5741-1981; section 26A of the Wages Protection Law, 5718-1958; Section 5 of the Notice to Employee and Job Candidate Law (Working Conditions and Screening and Admission Procedures), 5762-2002), and was not sufficient to create a regular cause of action. The legislature's concern, as emerges from the discussions in the bill, was that the creation of a mere cause of action would not lead to curbing the phenomenon of spam, since if the injured party had to prove his damage in the usual way, he would be deterred from filing a lawsuit and the purpose of the law would be thwarted.
- The model adopted in the framework of section 30a(a) of the Communications Law is the European opt-in model, according to which it is forbidden to send spam unless the recipient's consent has been obtained in advance. In addition to the aforementioned rule, a number of exceptions have been established that allow the sending of advertising messages, in certain cases, without obtaining the recipient's prior consent. See the Lapid Judgment in this regard , as defined below.
- The purpose of Section 30A of the Communications Law is to prevent violation of the privacy of the Internet user and harassment by sending spam in one of the four ways defined in Section 30A of the Communications Law. It was further determined that the purpose of removing the customer's details from the mailing lists was not only intended to protect users from any advertisement, but also to protect them from the harm and harassment involved in handling an advertisement sent in one of the ways prescribed by law (in this regard, see the words of the Honorable Justice A. Grosskopf, Other Municipality Applications 534/17 Ronen Lapid v. Cellcom Israel Ltd. (published in Nevo, March 6, 2019)) (hereinafter: the "Lapid Judgment"). The arrangement is also intended to prevent, inter alia, an infringement of the user's privacy, as well as to prevent exposure to false or offensive information (in this regard, see the Lapid judgment and the Hazani judgment).
- Section 7A of the Consumer Protection Law states that:
(a) A person shall not publish an advertisement or take any other means of marketing if the advertisement or such method of marketing is likely to mislead a minor, take advantage of his age, innocence or lack of experience, or encourage activity that may harm his body or his physical or mental health.