July 07th 2017
Even someone who has not yet tried her hand at submitting legal claims knows that rules of local jurisdiction in Israeli law determine that in the absence of other agreement between the parties, the service of a civil claim must be managed in the location connected to the defendant or to the event about which the suit is being litigated.
Thus, for example, if an Israeli company sells products to a company in Great Britain, both of the companies can contract that in the event of disagreement, the suit will be submitted in Great Britain and litigated according to British law. In most cases, the contractual agreement of the Israeli company will preclude submission of a suit in Israel.
In this context, most people do not give thought to the terms of service to which they are required to agree when joining a service or the internet, and few people trouble to read them. So too, when joining Facebook one is required to confirm terms of service. Among the tens of terms that constitute the agreement between Facebook and the user, appears a small and simple term, that determines that any claim against Facebook be adjudicated only in California and according to its laws.
Lately, the Attorney General, Avichai Mandelblit, was requested to offer his legal opinion on this condition in a class action suit submitted against Facebook a year ago in the District Court in Lod. Facebook claimed that as a result of this term, Israeli courts are precluded from adjudicating the suit.
Judge Esther Shtemer of the District Court held that this is a matter of a standard-form contract that serves a large population in Israel, and it is clear Facebook adapted its site for use in Israel in Hebrew. According to her, every foreign company needs to take into account the inconvenience of managing claims outside of its home country, as the interests of the consumer take precedence. Therefore, it was held that the suit would be adjudicated in Israel.
Facebook submitted an appeal to the Supreme Court, which requested the Attorney General's opinion given the importance of the issue and its repercussions for the general public. In his opinion, Mandelblit supported the District Court's decision.
The opinion and the decision of the District Court join a developing global front against Facebook. In February 2016, the High Court of Justice in Paris held, for the first time, that despite Facebook's terms of service – it is possible and even desirable to adjudicate legal claims against it in France, because the terms of service violate France's consumer laws and injure the 22 million French users of the social media service. The Court in Paris held that Facebook injures the basic rights of its users when it precludes them from adjudicating claims against it in their place of residence.
Now all that remains is for the Supreme Court in Israel to adopt the ruling of the District Court and Mandelblit's position, in order to return the power to the hands of the users of the social media service. In doing so, it appears that two goals will be accomplished: the first, an easing of the struggle of the common user against the giant Facebook; and the second, a deterrence of Facebook from arbitrary use in violation of Israeli law, in order to dictate unreasonable terms of service to its Israeli users, like those all over the world.
The involvement of the courts in this clause can even create a precedent and window for further intervention in other terms in agreements which the public signs automatically, without taking into account the repercussions on its lives, and particularly the injury to privacy.
The authors are attorneys from the Law offices of Gideon Koren and Co., specializing in intellectual property, trademarks and patents