0.
Samuel Bar-Ziv is another one of those persons who were sick from getting spammed. Bar-Ziv received numerous spams and decided to strike back. Bar-Ziv decided, unlike most of his colleagues, to send a remove request to the spammer. After receiving the sapmmer’s answer that his mail address was removed from the system, Bar-Ziv expected not to be spammed any more. However, spam kept on coming, and Bar-Ziv sued Tsipi Peled in the small claims court in Petach Tikva. Hon. Judge Gabriel Strassman inspected the issue and decided that spam is not a criminal act in Israel. and it does not infringe one’s privacy or violates the computer act. However, while sending a remove authorisation request, the spammer orally committed, according to the judge, not to send any more spams, and therefore was in breach of contract. (SC 2115/07 Bar-Ziv v. Peled)

1.
Whilst Halemo claims that this is a beautiful court decision, I personally think that this decision was wrongly ruled and it is inconsistent with the Israeli Law and Court Decisions. This ruling may damage the Internet Society and one of its major implications would be the increase of spams on one hand, and the removal of the removal mechanisms from spams where those mechanisms used to work.

2.
Helinor Harar was convicted on 30.06.2005 for harassment using a communication device (PCA 10462/03 Harar v. State); Harar sent various faxes which were harassing and threatening for their recipient, as well as performed various phone calls which where harassing. Hon. Judge Eliakim Rubinstein reviewed the related rulings and decisions and interpreted the law and the act’s clause in a brilliant way, stating that electronic harassment consists of two columns, the harassing content and the harassing character of communication. together set the essence of harassment. No more than six months after her conviction, Harar sued Pelephone, an Israeli cellular operator, for phone harassment after Phelephone sent numerous spams to her via SMS; According to Harar, Pelephone sent spams on a non stop basis and neglected to remove her from any mailing list. The small claims court decided, in a way of settlement, that Harar would be awarded damages. (SC 8235/05 Harar v. Pelephone).

3.
Until the Harar decision, which was set by the Supreme Court of Israel, the approach was quite different, but still equivalent as to the outcome regarding this case. The court’s decisions were consistent and demanded a harassing use of electronic communication : repetitive requests were what constructed the felon of electronic harassment (CA 70868/00 State v. Ben-Yosef, PCA 5261/99 Bar-Noy v. State). The small claims court’s decision ignores the enacted duty not to harass with electronic communications, while the judge still ruled that all elements of the felon existed: ” The defendant sent the plaintiff numerous publications via electronic mail. It is publicly known without requirement of evidence, that every day, every person in finds in his home and mailbox vast amounts of junk mail who clog his mailbox and harass their owner.”

Therefore, the court should have ruled, according to the Israeli Law, that the communication itself is harassing, and therefore breaches the enacted duty not to harass.

4.
In parallel, the contractual approach taken by the court is mistaken as well. The removal request sent to the spammer does not mean to create a contract which mandates the spammer to remove the plaintiff from the mailing list due to one simple reason: stopping the harassment derives from the natural right of the plaintiff to be left alone, and therefore, a message which states that he is harassed does not constitute as an agreement, but only changes the basis assumption that a person does not wish to be harassed. Coercing an agreement by the court, and moreover, an oral agreement where all the understandings came in writing, causes more damage than benefit. As of today, any spammer will remove the option to remove yourself from his mailing list in order to avoid the possibility of breaching a “contract” to remove you, and immune himself from future damages and/or lawsuits.

Moreover, the judge de-facto gave the spammers permission to harass people until they will be able to catch the harassers and mandate them to remove them from their list. Was this his intention when he spoke about breach of contract? I think not.

And if a contract was made, would it be possible to say that Elisha Shay who was convicted for unlawful penetration to computer materials after hacking into a spammer database to remove himself was just self-enforcing a contract and should have not been convicted? (C 1573/06 State v. Elisha Shay)

5.
The Court’s ruling was completely mistaken. There was no oral engagement but a written one. There was gross negligence of the spammer in maintaining a removal database if the plaintiff’s address was not removed and there was a breach of enacted duty, when they harassed Bar-Ziv.

The court’s decision was just, but not right. It was wrongly decided. If my opinion would have been heard, the plaintiff should have appealed in order to avoid wrong interpretations of this decisions like Israeli Courts tend to do.