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New Anti-Spam Law: Israel

December 3, 2008 by

Do you even need a more CLEARER point when it comes to OPT-IN?

A new or amended law has snuck up on a few of us around here. Israel has passed an amendment for a "new" anti-spam law that went into effect December 1, 2008. The main goal of the amendment is to provide tools for minimizing the public's exposure to SPAM. It is VERY broadly defined and can be extend to other communications and correspondences between a commercial entity and the public.

My IMMEDIATE advice would be that if your doing business in Israel or sending to people in Israel that you run a re-confirmation campaign to ensure OPT-IN for any of the materials you might be sending and labeling the message as an advertisement if it is such.

As stated above and by my friend Al Iverson (no, not the basketball player) the law continues the ever growing practice and legal requirements that OPT-IN is the king. I know the U.S. allows for OPT-OUT and some of you take that legal limit as the line you draw in your process, but without re-hashing this in great detail…you should perform the BEST PRACTICE of OPT-IN all the time. Doing such covers majority of privacy protection regulations, the ever growing number of opt-in email laws, and it's just a little easier on your complaint rates in this spam filtering world dependent on behavior metrics.

What does this law specially say? Well that's the confusing part since I don't read Hebrew and the law is written a bit confusing/broadly. I did find a law firm in Israel that was able to break this down for us. GKH is Israel's leading corporate and securities law firm. They said this:

The Amendment imposes certain limitations and prohibitions on an "Advertiser" that delivers "Commercial Material" to the public via:
  • email
  • fax
  • SMS
  • automated phone message
"Commercial Material" is defined in the Amendment as: "message which is distributed commercially, and its purpose is to encourage 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. 

How is permission defined? Well in the law it's written as "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."  Yes, you read that right, WRITTEN.



The Prohibition and Limitations Imposed Under the Amendment per GKH

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:

  1. 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
  2. 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
  3. 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:

  • 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". 
  • Advertiser's detailed address and contact details.
  • 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

There is NO case law to date on this and again interpreting it is hard because of that plus how BROADLY it was written. The Knesset Committee that legislated the Amendment stated that "Commercial Material" should be broadly defined and includes any matter distributed commercially and it was  stated that the intent of the Amendment was to close all possibilities and not leave any loopholes. So again my IMMEDIATE advice would be that if your doing business in Israel or sending to people in Israel that you run a re-confirmation campaign to ensure OPT-IN for any of the materials you might be sending and labeling the message as an advertisement if it is such.

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 legal advice you may need.

-Dennis
Eloqua

Don't Just Send, Deliver!


This post is being provided for informational purposes only. Nothing in this post shall be construed as creating a representation, legal advice, warranty or commitment, contractual or otherwise, by deliverability.com, it's guest posters, Eloqua Limited or any affiliate of Eloqua, to you or any other person or entity. It also does not guarantee that your email and/or any other aspect of your business is in compliance with state, federal, or International laws. We are making no representation, warranty or commitment that any message you send to end users will be delivered. This post is not a substitute for, should not be used in place of, and should not be considered, legal advice. It is recommended that you contact your general or legal counsel.

Dennis Dayman

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to “New Anti-Spam Law: Israel”

  1. J.D.
    December 3, 2008 at 11:24 pm #

    From what I've been reading, it's too late for that reconfirmation blast. The deadline for converting existing recipients to opt-in was this past Monday.

    http://boxofmeat.net/post/62759520/international-herald-tribune-israel-cracks-down-on

    But, obviously, you should contact a lawyer in Israel to be certain.

  2. Robin Wilton
    February 10, 2009 at 7:00 am #

    I think you may be mis-stating the point somewhat. As I understand it from this SecuriTeam blog post, the law applies when the originator or the beneficiary of the spam is Israeli. Thus, if you are a US company and you spam Israeli citizens, it is unlikely to give rise to a suit under this law.

    http://blogs.securiteam.com/index.php/archives/1194

  3. Aaron Applebaum
    August 17, 2009 at 2:51 am #

    Does anyone know where complaints should be filed? It is a great law that a lot of companies are ignoring. What practical recourse does the Spammed consumer have after this wonderfull new law is on the books?

  4. Israel Law Office
    January 16, 2010 at 4:32 pm #

    The inbox is clean of local spammers these days. But a lot of work is to be done in other countries.

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