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Although the hi-tech sector is one of Israel's leading export industries, the country has been rather slow in adopting cyberlaw legislation. The fourteen-year old Computers Law contains provisions on computer torts and crimes, such as gaining unlawful access to computers and spreading of viruses, while the Electronic Signatures Law contains specific provisions regarding secure digital signatures. A recent amendment to the Communications law, discussed below, now governs the sending of unsolicited commercial communications by email and other forms of communication, such as fax and SMs's. 

 

However, there is, as yet, no specific legislation governing important internet law issues such as ISP (Internet Service Provider) liability for copyright infringement or defamation published by others and internet privacy, although these issues are dealt with in the proposed Electronic Commerce Bill. In the absence of such legislation, the courts have attempted to deal with such issues through the application of existing general legislation and sporadic reference to the legislation and legal precedents in comparative legal systems, notably U.S. case law. The result is a set of not all-together consistent rulings and a legal situation that is anything but clear. 

 

In the field of copyright, a number of courts have found infringement where copyrighted materials, such as photographs and texts have been copied and/or published on websites without authorization of the copyright owner. One case has touched on, but did not explore in any depth, the issue of file sharing through P2P networks. In that case, a number of film producers and record companies sued the operator of a site, which provided links to infringing music and video files available on P2P networks. The case ended in a court-approved settlement in which the defendant agreed that any future link to a file containing an infringing work will be considered (inter-parties) an infringement of copyright in the work. This is certainly a somewhat peculiar proposition in light of the fact that provision of a link has never before been considered per se an act of direct copyright infringement (since no copying actually takes place). However under the new copyright law, it could, in certain circumstances, be considered as "making available to the public" of the work which is subject of the link. In addition, it could be considered an act of contributory infringement, if coupled with knowledge of the infringing nature of the content linked to. Since Israeli courts have now recognized the doctrine of contributory infringement in non-internet cases, future cases of this kind are likely to examine the issue in light of this doctrine.

 

 

A number of cases have addressed the issue of ISP liability for defamatory statements published by third parties through the ISP's resources. In both cases, the ISP functioned as a host, through a website operated by the ISP. The "Burochov" case adopted a strict "notice and takedown" standard, similar to, but more severe than, the European standard. Under this standard would not be under a duty to disable access or take down allegedly infringing content until it receives notice and demand from the aggrieved party. The later "Sudri" case granted a virtually total exemption to the ISP, resembling the broad exemption granted under American Law. That latter case involved a site which serves as a kind of public forum. The judge in that case ruled that, since the ISP did not exercise any editorial discretion over the publications, it should not be held liable for their contents. In the words of Judge Ruth Ronen, the site should be considered a virtual "town square".  

 

A Magistrate's court case addressed the issue of ISP liability for copyright infringement. The court held that the ISP host in that case should not be liable for infringement contained in materials posted by others on its interactive site. However, the court's reasoning was not altogether clear since the discussion diverged from ISP liability to fair use without actually enunciating any bright line rules.

 

The Electronic Commerce Bill, currently pending before the Knesset, proposes to adopt   notice and takedown based provisions for ISP liability for both copyright infringement and defamation, with a novel twist. Under such provisions, an ISP will be exempt from liability for infringing publications provided that it did not know or have reason to know of the infringement and that, upon receiving notice of a claim of such infringement, the ISP takes down or disables access to the material that is subject of the claim and gives notice of same to the publisher. The publisher may, in turn, announce his intent to dispute the claim and demand that access be re-established. If the ISP is unable to locate the publisher, it must leave the material online and the onus of instituting legal proceedings then shifts to the complainant.

 

The courts have also addressed the issue of privacy on the internet, in particular the right of anonymity. In the "Plonit" and "Sabo cases, the courts addressed petitions filed against ISP's asking the court to order the ISP to providing identifiying information pertaining to an anonymous publisher of allegedly defamatory material. In both these case, Judge Michal Agmon-Gonen set an interesting, yet perplexing standard, whereby such an order will be granted only if the alleged civil wrong also constitutes a prima-facie criminal act. This standard would be hard to implement in many cases of civil wrongs, which may never be the subject criminal liability, or in cases where criminal liability depends on the intent of the defendant (the case in question, dealing with a claim of defamation, being just such a case). In the "Mor" case Judge Amit rejected this "criminal liability" rule, adopting a more flexible standard whereby the complainant must make out a prima facie case of infringement or tort and must show that it involves "an additional element" which takes into account multiple factors, such as the nature of the site in which the alleged defamation appears, the seriousness of the allegations in the publication and the attempts made by the claimant to locate the anonymous defendant. The court also laid down rules for putting the "doe party" on notice of the claim and allowing him to challenge the petition for identification anonymously.

 

The aforementioned Electronic Commerce Bill sets a more lenient standard, than set in either of the above cases, allowing a court to order identification where the infringing act is only a prima-facie tort or IP infringment. The draft offers no guidance to the court as to when and under what conditions it should grant such an order, leaving this to the minister to lay out in secondary legislation. It is submitted that these matters are far too important and cardinal for such secondary legislation, and must be addressed in the law itself. This more leniant standard has been adopted in both cases dealing with a claim for defamation (the "Mizmor Productions" case) and a case dealing with IP infringment (the "Broker Tov" case).

 

The issue of Spam is now governed by an amendment to the Communication Law which  adopts the European opt-in standard under which it is illegal (subject to certain exemptions) to send spam to anyone unless they have specifically assented to receive such communications. The major exemption is in the case where the recipitent has previously provided the sender with his email address (or other similar contact details) in the framework of a former transaction or negotiation and the mail relates to the same or related subject matter. In this case, the recipitent must receive the opportunity of opting out.

 

Cybersquatting and Domain name issues have been addressed in a number of cases. These cases are examined and decided under the law of trademarks, passing off and the tort of unfair interference. Use of a mark in a domain name may be considered an infringing use, but much will depend on the type of mark, with generic and descriptive marks receiving less protection than other fanciful marks, and the measure of consumer confusion.

 

A  District Court Case examined the purchase and use of a competitor's trademark as a keyword to trigger sponsored links in the Google search engine. The court found that there was in this case no use of the mark for trademark law purposes and that therefore the defendant had not committed any tort.

 

In matters concerning only Israeli litigants, Israeli courts have found local jurisdiction to exist through the mere publication of materials on the internet, thus making them accessible to anyone with a computer anyway in Israel. However, no case has directly addressed the issue of international jurisdiction over foreign parties for torts or breaches of contract over the internet. However, two cases dealing with related issues indicate that where an internet publication is directed at the public in Israel, it will trigger jurisdiction of the Israeli courts, even if the server is located abroad. one of these case dealt with an application to enforce a foreign judgment in Israel, rendered in an internet-context trademark case. The other case was a criminal case which involved online-gambling advertising directed at Israel (the advertising being in Hebrew).

 

Internet contract formation has been addressed in a number of cases. These cases adopt classic offer and acceptance rules. Thus, "clickwrap licenses" have been held valid where the defendant's assent to the contract has been positively affirmed by clicking on an "I accept" box. On the other hand, the court declined to enforce a so-called "browsewrap" license when the plaintiff failed to show that the defendant had actually been made aware of the term that it wished to enforce.

 

It is to be hoped that the legal development of the internet in Israel will at least partially catch up with the pace of the exciting technological developments coming out of our "mini Silicon Valley", thus contributing to a more stable legal and business environment.