Legal Updates

A customer of advertising services who does not ensure that the contractor does not send spam messages will be personally liable for sending the spam

December 31, 2020

National lottery companies have entered into an agreement with a contractor to provide advertising services, which contractor sent spam messages. A woman who received such a message demanded compensation from both the contractor and the companies ordering the service.
The Supreme Court held that a class action can be filed against the clients of the advertising services even though the entity who actually carried out the distribution of the spam is their subcontractor. Israeli law generally prohibits the sending of spam messages and creates liability for the person who sent the message and not for others and thus prevents excessive deterrence and automatic imposition of liability on any customer, even if done without its knowledge and even against its wishes. Israeli Torts Ordinance extends the liability for a tort committed by a person also to an "employer" of that person, to the "solicitor" and even to the "client" of work in under certain exceptions. The exceptions to the client's responsibility for the contractor's actions are the client's negligence in choosing the contractor; The intervention of the client in the work of the contractor in a manner that caused injury or damage; Prior authorization or ratification of the act that caused the injury or damage; Liability by virtue of legislation for the commission of the act for which it was given to an independent contractor; or when the thing for which the contract was made was unlawful. There may be cases in which tacit consent will be sufficient for the purpose of applying the exception and this is the case when it comes to the relationship between an entity seeking to advertise its business by sending bulk messages and an advertising company doing so for it. Here, although the apprehension of sending spam was real, the companies seem to have preferred not to know how the contractor intends to gain new customers, and contented themselves with a general statement that the contractor will act pursuant to the law. Leaving the manner the messages are sent vague and obscure, implies that the companies knew that the contractor would send spam messages or turned a blind eye to this option and therefore it is a tacit consent to the spam delivery that creates liability.