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Editorial

The New Israeli Amendment to the Communication Law (Telecommunications and Broadcasting), 1982

On May 27, 2008, the Knesset passed an amendment to the Communications Law (Telecommunications and Broadcasting), 1982 (the "Amendment"), which deals with prevention of spamming and unsolicited content ("SPAM"). The Amendment will become effective as of December 1st, 2008. The main goal of the Amendment is to provide tools for minimizing the public's exposure to SPAM. However, in practice, as we shall further explore, the Amendment is broadly drafted and can de facto extend to many other possible communications and correspondences between a commercial entity and the public (whether specific or non specific).

On May 27, 2008, the Knesset passed an amendment to the Communications Law (Telecommunications and Broadcasting), 1982 (the "Amendment"), which deals with prevention of spamming and unsolicited content ("SPAM"). The Amendment will become effective as of December 1st, 2008. The main goal of the Amendment is to provide tools for minimizing the public's exposure to SPAM. However, in practice, as we shall further explore, the Amendment is broadly drafted and can de facto extend to many other possible communications and correspondences between a commercial entity and the public (whether specific or non specific).

The Amendment imposes certain limitations and prohibitions on an "Advertiser" that delivers "Commercial Material" to the public via email, fax, SMS or an automated phone message. "Commercial Material" is defined in the Amendment as: "message which is distributed commercially, and its purpose is to encouragean acquisition of certain goods or services or spending money in any other way." "Advertiser" is defined in the Amendment as one of the following alternatives: (1) One whose name or address appears in the Commercial Material as the contact details for the purchase of the subject matter of the Commercial Material; (2) One for whom the content of the Commercial Material may publish his or her business or promote his goals; or (3) One who markets the subject matter of the Commercial Material on behalf of another.

However, there is still no case law to assist in interpreting the Amendment, so we must examine the legislative history of this Amendment to understand it further.

The Knesset Committee that legislated the Amendment for adoption, has stated that "Commercial Material" should be broadly defined and includes any matter distributed commercially (rather than just informative material) that may encourage people to acquire certain goods or services or spend money in any other way…" .Only time will determine what exactly is covered under this wide definition, but it should be noted that in the Knesset Committee's protocols regarding the New Israeli Amendment to the Communication Law , held on January 4th, 2008, it was specifically stated that the intent of the Amendment was to close all possibilities and not leave any loopholes.

  • The Prohibition and Limitations Imposed Under the Amendment

1. Consent

An Advertiser may distribute Commercial Material only after receiving the addressee's explicit written consent in advance for the acceptance of such Commercial Material from the Advertiser. The addressee's consent may be received in writing, including via e-mail or via automated phone messages.

In addition, the Amendment includes an exception which states that an Advertiser may distribute Commercial Material to addressees without receiving their prior consent if all of the following conditions are met: (i) the addressee gave his contact details while purchasing goods or services or during negotiations for such purchase, and the Advertiser informed him or her at that point that the contact details will be used for sending Commercial Materials; (ii) the Advertiser gave the addressee an opportunity to notify the Advertiser of the refusal to receive Commercial Material, in general or Commercial Material of a certain type, from Advertiser, and the addressee did not exercise such opportunity; (iii) and the Commercial Material refers to goods or services similar to those purchased or that their purchase was negotiated by addressee.

An addressee who gave his or her consent as detailed above is entitled to revoke his or her consent and to notify the Advertiser about his or her refusal to receive any future Commercial Material at any point in the future. An addressee revocation notice must not be subject to any conditions, including any fee, and shall be done either in writing or in the same manner in which the Commercial Material was distributed to addressee, according to addressee's choice.

2. Formal requirement regarding the Commercial Material

Any Commercial Material must carry the following notices:

a. The header of the Commercial Material must contain the word "Advertisement". In case the Commercial Material is distributed as an e-mail, the subject line of the e-mail message must contain the word "Advertisement".

b. Advertiser's detailed address and contact details.

c. A statement regarding addressee's right to notify Advertiser about his or her refusal to receive any Commercial Material in the future and an explanation how to exercise such right or refusal.

In case of a short Commercial Material, the Advertiser needs only to include his or her name and contact details for sending a refusal message.

3. Penalties

Any breach of the requirements set forth in the Amendment shall be a civil wrong, and may also be considered as a criminal offense. In addition, the Amendment also amended Appendix II of the Class Action Law, 5766-2006 (hereafter: the "Class Action Law"), adding a claim against an Advertiser as one of the possible claims suitable for class actions. Such amendment of the Class Action Law, along with the Amendments made to the penalties section, provides the addressees with the opportunity to bond together and shares the costs of such lawsuit, and might become an incentive for filing such claims against Advertisers.

4. Summary

As stated before, the Amendment will come into force as of December 1, 2008. There is great uncertainty regarding its correct interpretation and the scope of its prohibitions. We will continue examining any new development in this respect and shall update as needed. However, we strongly recommend you to review your policies and activities in order to examine whether you fall under any of the prohibition imposed by the Amendment and seek any additional advice you may need.

Our office lawyers will be happy to answer any of your questions in this matter.

This summary is offered as an informational service to clients and colleagues of GKH and the information presented is not intended to provide legal opinions or advice. Readers should seek professional legal advice regarding the matters about which they are particularly concerned.

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