The District Court

In Tel Aviv Yaffo

15
Between:

Class Action ____ - 05

Eyal Israel (I.D. No. 033037110)

By his counsel Adv. Amiram Tapiro et al
Amiram Tapiro & Co. Law Offices
Of 132 Menachem Begin Road, 1 Azrieli Centre, Tel Aviv 67023
Telephone: 03 5243223; Facsimile: 03 6070830
The Applicant;
- Versus -

And:

1. Praecellens Limited (He 309809)

(Ashley Madison DBA),
9 Karpensiou
Nicosia, 2021 Cyprus
2. Avid Dating Life Inc. (Nr. 001786984)
20 Eglinton Ave. West Suite 1200,
P. O. Box 2055
Toronto, Ontario, Canada M4R 1K8
The Respondents;

Essence of the Action: Class, Monetary

Sum of the Personal Action: NIS 73 (in principle value)
Estimated Sum of the Class Action: NIS 5,110,000 (in principle value)

Application for Class Certification

Pursuant to the provisions of the Class Actions Law, 5761 2006, the
Honourable Court is requested to instruct that the Action that is filed
together with this Application be heard as a class action, for the reasons set
forth below.
The Court is also requested to define the Class, in whose name the Action is
filed pursuant to Section 10(a) of the Class Actions Law, 5761 2006
(hereinafter: the Class Actions Law), as follows:
All of the Israeli customers of the Respondents who have signed up to the
Ashley Madison Internet site prior to the filing of this Application for
Class Certification and until the Action has been heard.
Emphasises in this Application are not in the original unless stated otherwise.
An application for leave to serve upon the Respondents is filed together with
this Application.
1

A. Preamble
1.

This Application deals with the deception of the Applicant and of the
other members of the Class, who have registered with the Ashley
Madison dating website1 (that defines itself as the world's leading
married dating service for discreet encounters and whose slogan in
English is: Life is short, have an affair), which is run by Praecellens
Limited together with Respondent 2, Avid Dating Life Inc., also for their
Israeli customers (in Hebrew), while stating explicitly, and in an
emphasised manner, that signing up is free. (Respondents 1 and 2 shall
be collectively referred to, hereinafter, as: the Respondent).

2.

Yet, what the Respondent forgets to inform its customers who wish to
sign up for its services (which services are, by their very essence,
discreet) is that the only way to fully delete oneself from Websites
databases is subject to the payment of NIS 69 to the Respondent, and
this is for the full removal of the users profile from the Website. The
Respondent offers an additional option of concealing the profile for no
additional payment, but this option does not include the full removal of
all details from the Website, and the customer is even warned that in
such case his details will be viewable by the other users of the Site, or in
the words of the Respondent: Important: The details of your profile
and your messages will be accessible to members you have
contacted.

3.

As shall be proven in this Application, as part of the registration on the

Respondents Website, as in the advertisements it portrays to Internet
users, the Respondent represents clearly and explicitly that signing up
is free and sign up for free today. And that the Site is secret and
discreet 100% discreet services), and even that the Site won the
Trusted Security Award; when in practice, the Respondent imposes on
its customers who wish to remove their profile an exit fine in the amount
of NIS 69.

4.

This conduct of the Respondent not only amounts to a blatant and

fundamental breach of the provisions of law while deceiving the
consumers, as this information and the cost of profile removal are not
provided to the consumers when registering on the Site. Moreover, this
conduct of the Respondent even amounts to (in the Applicants opinion)
cynical and blatant abuse (not to say extortion) of the customer who
registers on such a site (that promises, at registration, 100% discreet
services), all as shall be succinctly clarified below.

1 The Ashley Madison dating website is found at the following Internet address: https://
ashleymadison.com (hereinafter: the Site and/or the Website).

5.

Thus, in a roundabout way, and in a consistent, one-sided and systematic

manner, the Respondent compels its customers to pay for the removal of
their profile, without the customer being aware, when signing up to the
Site, of this requirement for payment, and/or having agreed to it in
advance, and in practice is rudely and blatantly dipping its hand into its
customers pocket while they are, basically, a captive audience.
The matter becomes clearer in light of the fact that the Respondents
Website, entitled Ashley Madison is a dating and cheating site. As such,
a customer who chooses to disconnect from the Site, naturally wishes
that no record remain of his using the site, i.e. to remove the user
profile from all of the data bases.

6.

The Respondent is, in practice, laying a form of honey trap, i.e.

free registration to the Site, promises of relationships, active
encouragement of the user to upload as many details as possible
(particularly his photograph) to the Site and then when the same
customer wishes to delete his details (and again, this is a site that
defines itself as a site for cheaters), he is for the first time
confronted with a demand for payment.

7.

Thus, while the Respondent clearly and unequivocally represents on its

Website that registration on the site is free, without any stipulations,
and on the basis of this representation customers sign up to the Site; in
practice, the Respondent imposes a fine on its customers, when they
wish to disconnect from its services, for Full Profile Removal. All this
without the Respondent representing to the customer the true state of
affairs at the sign up stage, whilst exploiting the inherent weakness of its
customers in such a situation.

8.

Let it be emphasized that the issue raised in this Application is of no

insignificant monetary scope, when upon launch of the Site in Hebrew,
during 2014, one million Israelis visited the site within two days, and
around 90,000 members signed up to the Site. The Respondents
objective is 250,000 members in its first year of activity in Israel.
Thousands of people are exposed each day to the Website owned by the
Respondents, according to the Respondents claim that thousands of
men and women sign up on the site everyday looking to have an
affair, and that the Respondents Website is the world's most famous
website for Married Dating and Discreet Encounters.
The outcome of the aforesaid is that the financial scope of the illicit
phenomenon, described above and below, that is practiced by the
Respondent, which inflicts significant financial damage to the customers
in general, is estimated by the Applicant to be in the millions of shekels.

9.

As is summarised above and as shall be detailed below, the central issue

at hand in this Application is whether the advertising on the Respondents
Website is misleading advertising, and as a consequence does the
Respondents conduct amount to deception under the relevant legislation
and in particular in light of the provisions of the Consumer Protection
Law; is the Respondent allowed to charge a fee for the deletion of the
profile and as a consequence of this is the Respondent required to repay
to the members of the class those sums of money that it charged them
when they requested the full deletion of the user profile, as well as to
correct its manner of conduct on this matter both with respect those
who are still registered on the Site and those whose details were not
fully deleted from the site.

B. The Parties to the Proceedings

10. The Applicant, Mr. Eyal Israel, who was misled and assumed, pursuant to
the Respondents representations, that he joined the Ashley Madison
Website free of all charge, was in practice compelled to pay the sum of
NIS 69 for the removal of his user profile (without being informed of the
matter at the time he signed up to the Site).
11. Respondent 1, Praecellens Limited, is (pursuant to the Sites Terms and
Conditions) the operator of the Ashley Madison international dating
site for the purposes of adultery, in Hebrew. According to what is written
on the Respondents Site, Ashley Madison is the world's leading
married dating service for discreet encounters. According to what is
written on the Respondents Site, the Respondent is a corporation
located in Cyprus. To the best knowledge of the Applicant, and according
to inquiries made by him, the Respondent does not have a branch,
subsidiary or representation in Israel, even though it conducts its
business in Israel in Hebrew targeting the Israeli users of the Internet.
A copy of a report on Respondent 1 by Hoovers is attached hereto and
marked Appendix 1.
12. Respondent 2, Avid Dating Life Inc., is a company that, in practice,
possesses the domain www.ashleymadison.com and defines itself as the
worlds leading company in innovative dating websites, including the
Ashley Madison Site that is the subject of this Application.

C. Principle Facts Relevant to the Matter

1.

General Background on Respondents Website

13. Respondents Website is a dating site for married people and for discreet
encounters, and according to the Respondents representations, it is the
leading brand in infidelity and married dating and the most famous
website for discreet encounters between married individuals. Married
Dating has never been easier. With our affair guarantee package we
guarantee you will find the perfect affair partner. Sign up for free
today.
Respondents services for Israelis in the English language began back in
the beginning of 2014 (or thereabouts), and in May 2014 (or thereabouts)
the service was provided in Hebrew. It should be noted that during 2014,
the launching of the Hebrew Site was accompanied with advertisements
in various media, including public television channels.
A copy of a screen shot of the Respondents Website is attached hereto as
an integral part hereof and marked Appendix 2.
14. The address of Respondents Website, known as Ashley Madison is:
www.ashleymadison.com. Immediately upon entering the Site, the
potential customer is exposed to representations according to which:
joining is free and Sign up for free today while on the home page
appears a partial photograph of a womans face with index finger placed
to her lips motioning quiet. A similar photograph of a woman
whispering into the ear of a man appears on the Respondents Site for
mobile telephones.
In general, what is stated in reference to the Respondents site is correct
both for the computer and for the mobile telephone, with minor changes
in the graphics.
A copy of the screenshot of the above pages from the Respondents site
(both on personal computer and on mobile telephone) is attached to this
Application as an integral part hereof and marked Appendix 3.
15. When accessing the Site, on the right hand side appears a window in
which is written Get started by telling us your relationship status and
a variety of options is provided (such as Attached man seeking
females, Single man seeking females and so forth) and this in order to
See your matches.

Clicking this opens a new page on which appear optional partners, as

well as the notice Youre almost done! Please take 30 seconds to
complete your profile and start searching, and various details must be
entered in order to complete the registration process, including entering
miscellaneous personal details (place of residence, height, date of birth,
weight, and so forth). The customer is also required to provide an email
address, and next to this is written This email will never be shown or
shared.
A copy of the screenshot of this page from the Respondents Site is
attached to this Application as an integral part hereof and marked
Appendix 4.
16. With completion of registration, a window opens in which is written
Welcome to the most discreet dating service in the world, and it
also states that Most of the men in Ashley Madison display pictures
and also We respect your need for discretion thats why we have
created tools the help you keep your identity discreet and a link
appears to Add a discreet picture.
It should be pointed out that for customers who chose not to add a
picture, an additional window appears in which is written Are you sure
you dont want to upload a picture, and it also states that Your
chances for success are better if you add a picture to your profile
and Uploading a picture increases your chances 13 fold of getting
messages from women, and again there is a link to Add a picture.
A copy of the screenshot of the above pages from the Respondents Site
is attached to this Application as an integral part hereof and marked
Appendix 5.
17. At the same time, the customer receives an email titled Hello and
welcome to the first day of your Ashley Madison experience, and in
the body of the message is stated that: With over 25 million members,
we have thousands of women from your city who are looking to have
a discreet affair. Our service is 100% secure, anonymous and now also
guaranteed that you can meet women now with absolute confidence,
and there are a number of links, including for uploading a picture
Upload pictures to your private picture presentation to share with
potential lovers. At the bottom of the notice there is a link to connect
to the Site.
A copy of the email sent upon registration on the Respondents Site is
attached to this Application as an integral part hereof and marked
Appendix 6.

18. In any event, when entering the Website the customer is exposed to the
variety of possibilities including to search for partners, to see who has
viewed the customers profile, mail box, purchase of credits for a fee in
order to send and receive unlimited mail notices, and so forth. As for
credit card details, it specifically states on the Site that Your credit
card charge will not appear under Ashley Madison, and that All
charges on your credit card statement will appear
discreetly (emphasis in the original).
A copy of the screenshot of the above page from the Respondents Site is
attached to this Application as an integral part hereof and marked
Appendix 7.
2.

Applicants Registration to the Site and its Cancellation

19. The Applicant, who was enticed by the various representations on the
Respondents Website, as described above, decided in July 2014 or
thereabouts to sign up to the Respondents Website, and for a short while
the Applicant was active on the Site. As part of the registration process,
the Applicant attached a picture to the user profile, as well as other
details that were requested (such as age, place of residence, height,
weight, and so forth).
20. The Applicant held very few correspondences with other users on the
Site, to some of them he even revealed his picture.
21. After some time, during August 2014, the Applicant, who is married and
with children, decided to cancel his registration on the Site. But then,
when he wanted to delete his user profile from the Site (which included
personal details), the words Full Removal appeared on the screen in
large, bold letters, as well as Be discrete. Remove all traces of your
usage for NIS 69, and under these words there is a tab to the link For
full deletion of your profile. This page, in addition, provides details of
what a full deletion includes (removal of the profile from the search
results, removal of the profile from the Site, removal of messages that
were sent or received, removal of messages from the mail box of the
addressee including winks and presents, removal of the history the Site
usage and of information that enables personal identification from the
site, and removal of pictures).
Further along this page, when scrolling down, an additional option
appears to Hide your profile, as well as Cancel basic usage, and
under these there is a tab to the link Hide profile from search. It also
explains what hiding the profile includes (hiding profile from search
results), and states in red letters: Important: your profile information
and messages will be accessible to members youve connected with.
A copy of the screenshot of the above pages is attached to this
Application as an integral part hereof and marked Appendix 8.

22. In light of these representations, and for understandable -+reasons, the

Applicant chose the Full Removal option that requires payment of NIS
69. It should, nevertheless, be stressed that that the Applicant was not
informed, at the time of registration, of the payment for full removal of
the Applicants details from the Respondents Site. On the contrary,
during all the registration on the Site, it was presented to the Applicant
that registration is for free and in full discretion.
In any case, with the removal of the user profile, a notice appeared on
the screen informing that the profile had been successfully removed.
A copy of the confirmation
attached to this Application
Appendix 9. A copy of the
attached to this Application
Appendix 10.

testifying to completion of payment is

as an integral part hereof and marked
notification of removal of the profile is
as an integral part hereof and marked

23. The outcome is that the Respondent cynically exploited the situation the
Applicant was in, and contrary to its representations of registration
without payment, etc., the Respondent charged a fee in the amount of
NIS 69 for full removal of the user profile. That is to say, the Applicant
was put out of pocket in the amount of NIS 69, which is completely
contrary to the Respondents representations on registration, as detailed
above.
24. The Applicant shall further argue that he was ignorant of this or any
other policy of the Respondent that holds that even if joining the Site is
free, the removal of the users profile costs NIS 69 and, clearly, if he
had been aware of this policy of the Respondent (or to the extent it had
been presented in clear and unambiguous manner) he would not have
signed up to the Site and he would not have agreed to receive the
Respondents services, or at least he could have made a choice based on
full and correct information (this applies even more so when dealing with
a Site of a sexual character of which discretion is a significant
component).
25. The aforementioned leaves a strong impression that the Respondent
exploits (literally) the fact that many of its customers are embarrassed
of having registered with the Site. Needless to say that a significant
number of the Respondents customers have a family and/or are married
and are naturally concerned that their activity on the Site may be
revealed. As a result of this they would be wiling to pay a large sum in
order to ensure the removal of their details from the Site so as not to be
exposed. In addition, the Respondent doesnt take the trouble to inform
its customers of its aforesaid policy that was revealed above, in a clear
manner as required in order to prevent misleading its customers, rather
the Respondent in practice conceals this policy with the aim of pocketing
an easy profit.

26. The Respondent, in fact, is laying a form of honey trap, i.e. free
registration on the Site, promises of relationships, actively
encouraging the user to upload to the Site as many of his details as
possible (especially his picture) - and then, when the same user
wishes to remove his details, he is for the first time confronted with a
demand for payment.
27. As a clear and exposed scarlet thread, the Respondents conduct, with
which the Applicant takes issue (and from which he suffered financial
damage), is based on a most severe consumer deception on the part of
the Respondent who exploits the consumers predicament, and even
more so when we are dealing with a Site of a sexual nature.
D.The Legal Argument and the Grounds for Action
28. From what has been stated in the factual chapter above, it can be seen
that there is no argument that the Respondent imposes on the Applicant
(as well as on the other members of the class) a fine of sorts for
removal of the user profile, without this policy being declared to the
Applicant (as well as to the other members of the class). This conduct of
the Respondent amounts to consumer deception and exploitation of the
predicament of the consumer.
The Respondents obligation to pay back the charge that is the subject of
this Application, as well as to amend its policy towards its customers in
general (including those who have partially removed themselves, and
those who are still signed up to the Site) derives from each one of the
grounds for action listed below, and even more so from their
accumulated power:
a.

Deception and Exploitation of the Consumers Predicament, illegal

under Sections 2(a) and 2(b) of the Consumer Protection Law, under
Section 13D of the Consumer Protection Law, under the Consumer
Protection Regulations (Cancellation of a Transaction), 5781 2010,
under the Contracts Law (General Part), 5733 1973, and under the
Sales Law, 5728 1968;

b.

Breach of the Obligation of Disclosure to the Respondents general

clientele, as set down in Section 4 and Section 13C of the Consumer
protection Law, in Section 15 of the Contracts Law (General Part),
5733 1973, and, even more so, breach of the heightened obligation
of disclosure that the Respondent bears in a long distance sales
transaction under Section 14C of the Consumer Protection Law;

c.

Breach of General Contract Laws, in particular under the Contracts

Law (General Part), 5776 1973, and under the Contracts Law
(Remedies for Breach of Contract), 5771 1970;

d.

An Unjust Term in a Standard Form Contract under the Standard

Form Contracts Law, 5743 1982;

e.

Breach of Obligations in Torts including breach of a statutory

obligation and negligence;

f.

Section 1 of the Unjust Enrichment Law, 5739 1979;

g.

Infringement of Privacy, both under the Protection of Privacy Law,

5741 1981, and under the Basic Law: Human Dignity and Liberty.

The Applicant will elaborate, below, on the grounds for action listed
above.
D1.Consumer Deception
The Respondent breached Section 2(a) of the Consumer Protection
Law and Section 15 of the Contracts Law
29. The Applicant will argue that the Respondent breached Section 2(a) of
the Consumer Protection Law, which is titled Prohibition of Deception
and Section 15 of the Contracts Law (General Part), 5776 1973
(hereinafter: the Contracts Law), which provides:
A dealer shall not do something by act or by default, in
writing or orally or in any other manner including after the date
the transaction was entered into that may deceive the
consumer on any material matter of the transaction (hereinafter
deception); without derogating from the generality of the
aforesaid, the following matters shall be deemed material to the
transaction:
(1) The quality, the essence, the amount and the type of the
product or service;

(4) The use that may be made of the product or the service, the
benefit that can be derived from them and the dangers
involved in them;

(13) The regular or accepted price or the price demanded in the

past, including terms of credit and the interest
rate; (emphasis not in original).
In Section 15 of the Contracts Law Deception is defined as follows:
Deception including non-disclosure of facts that the other
party should have disclosed by law, by custom or under the
circumstances.

30. It should be noted that deception under the Consumer Protection Law
occurs when there exists a discrepancy between what was said (or
concealed) and reality, the words of the Supreme Court in its
judgement in Civil Appeal Request 2837/98 Arad vs. Bezeq Israeli
Telecommunications Company Ltd. PADI 44 (1) 600 (2000), are
appropriate:
8. Deception is [the making of] a false claim. Deception
occurs when there exists a discrepancy between what was
said (or concealed) and reality. Deception can acquire two
forms: one, deception by act of false representation that
includes details that do not match reality; two, deception by
default, i.e. non-disclosure of details when there is an
obligation to disclose them (see: Shalev Law of Contracts
[9], page 225; D. Friedman, N. Cohen Contracts (Vol. 2) [10],
page 787). It should be noted: the laws of grounds of
deception under the laws of contracts are different than the
law prohibiting deception under the Consumer Protection
Law. Under the laws of contracts, in order for grounds based
on deception to arise, it is required that the party claiming
deception was indeed mislead and because of his false
impression he entered into the contract (see Section 15 of the
Contracts Law (General Part), 5733 1973), however, the
prohibition under the Consumer Protection Law is wider and
applies to anything that may deceive a consumer (my
emphasis T.S.C.) even if he was not actually deceived (see:
Section 2 of the Consumer Protection Law and Civil Appeal
1304/91 Tfachot Mortgage Bank of Israel Ltd. vs. Lipert [1],
page 326).
(ibid. in the opinion of Justice Strasberg Cohen).
31. In order to prove the existence of deception, three terms are to be met
in the aggregate: the existence of deception, the existence of damage,
and the existence of a causal connection between the deception and the
damage. See Miscellaneous Civil Applications (Beer Sheva) 4309/05
Shimon Beeri vs. the Haaretz Newspaper Publication Ltd., published in
Nevo, passed on 26.5.2009.
From the General to the Particular
32. The Respondents conduct as described above amounts to deception
under the Consumer Protection Law and under the Contracts Law:
a.

After reading the factual part of this Application it can be seen that
the Respondent made false representations to its customers as if
joining is for free and so forth, when in fact when the customer
wishes to end his dealings with the Site and to remove the user
profile, the Respondent charges NIS 69, without the customer being
made aware of this charge policy, in a clear and sufficient manner.

The Respondent failed to declare its policy to its customers, and this
cynical conduct of the Respondent amounts to blatant consumer
deception, in particular with respect to the price of the transaction,
the essence of the transaction and the benefit that the consumer
can derive from it.
This is false representation that does not match reality as such is
revealed from the aforementioned, whether the damage caused to
the Respondents customers arose from intended deception, or
whether the discrepancy is due to a lapse or default, in any case, as
a result of the Respondents conduct its customers were misled and
required to pay, through no fault of their own, a certain price in
order to remove their user profile. In other words, the Respondent
misled its customers, by act or by default, and as a result of this the
Respondents customers incurred damage, financial and/or other
(including infringement of privacy), and, therefore, a causal
connection exists between the deception and the damage incurred
by the Respondents customers.
It should be emphasised that, had the Respondent not deceived its
customers, it is not at all certain that it would have concluded a
transaction with its customers, and moreover even if a transaction
would have crystallized, then it would have been substantially
different (if at all) so that beyond the deception to which the
Respondents customers were subject, we are also dealing with the
intentional deception of the consumers, the harming the freedom of
contract of the consumers, and an erroneous estimation of the value
of the transaction due to the false representation by the Respondent
and/or by the Respondent deceiving its clientele;
b.

The Respondent imposes a charge of a certain sum on its customers

in order to remove the user profile by cynically exploiting the
situation, without declaring this policy in advance. The exact
opposite the Respondent emphasises that signing up to the Site is
free, and did not at all mention that the removal of the user profile
is subject to a charge;

c.

In conclusion, the Applicant was deceived due to the misleading

representation on the Respondents Website, and he relied upon this
representation when he signed up to the Respondents Site. The
price of the product/service, including all aspects of signing up or
removal, is in all opinion a significant element of the transaction,
and it is clear that had the Applicant (as, too, the other customers
of the Respondent) know in real time that a payment is required for
the removal of the user profile, he would certainly not have
registered with the Site or at least he could have made an informed
choice based on full and accurate representations.

The Respondent also Breached Section 3(b) of the Consumer Protection

Law

33. The Applicant will argue that the Respondent breached the provisions of
Section 3(b) of the Consumer Protection Law, which is titled Prohibition
of Exploiting a Consumers Predicament, and provides:
(b) A dealer shall not do anything - by act or by default, in
writing or orally, or in any other manner, which involves the
exploitation of a consumers predicament, his ignorance, or
the application of unfair influence on him, in order to secure
a transaction in conditions that are unfair, unacceptable or
unreasonable, or in order to receive consideration that is
greater than the accepted consideration.
34. By its aforesaid actions and/or defaults, the Respondent exploited the
ignorance of its consumers with respect its deceptive policy. It should be
clarified that the representation according to which a consumer can join
the Respondents Website without payment, when in fact the Respondent
charges him when he wishes to remove his user profile amounts to
cynical and blatant exploitation (not to say extortion) of the customer
who signed up to such a Site (that guarantees, on registration, 100%
discreet service), and thus the Respondent abuses the fact that the
customers are captive in its Site without the ability to leave unless
they pay a form of fine.
D2.The Respondent Breached the Heightened Duty of Disclosure that
Applies to It
35. In the Consumer Protection Law, a Section was dedicated to commerce
over the Internet and defined as long distance sales transactions.
Below is the definition of this term as it appears in Section 14C(f) of the
Consumer Protection Law:
Long distance sales transaction the contracting of a
transaction for the sale of a product or for the provision of a
service, when the contracting is done as a result of long
distance marketing, without a joint presence of the parties
to the transaction;
36. Furthermore, in Section 14C of the Consumer Protection Law, the
legislature set down a heightened duty of disclosure in such transactions,
and elaborates on which details the dealer must disclose to the
consumer:
(a) In long distance marketing, the dealer must disclose to
the consumer the following details, at least:
[]
(2) The principle properties of the product or of the service;
(3) The price of the product or the service and the possible
terms of payment;

[]
(7) Details of the consumers right to cancel the contract
pursuant to the provisions of Subsection (c).
(b) In a long distance transaction, the dealer shall provide the
consumer with a written document, in Hebrew or in the
language in which the marketing was conducted, no later than
the date of supply of the product or the service, that includes
the following details:
(1) The details set forth in Subsection (a)(1) and (2);
(2) The price of the product or the service and the terms of
payment applicable to the transaction;
(3) The manner in which the consumer can exercise the right
to cancel the transaction, pursuant to the provisions of
subsection (c);
[]
(6)

The additional terms and conditions that apply to the

transaction.

37. Due to the nature of commerce on the Internet, there is justification for
providing the consumer with special protection in a long distance
transaction, and, inter alia, for imposing a heightened duty of
disclosure, as is provided in Section 14C of the Consumer Protection Law.
The District Court held this in the Honourable Justice Dr. Ahikam Stollers
opinion in Criminal Appeal (Central) 6975-05-09 Best For You Electronic
Commerce Ltd. Et al vs. the State of Israel, published in Nevo, given on
15.2.2010, as follows:
When dealing with consumer transactions on the Internet, I
feel we should ask the question is there justification for
providing special protection to the consumer in an Internet
transaction, beyond the protection provided to him as a
regular consumer not through the Internet. The Internet has
become a leading marketing instrument, and those dealing in
trade through it compete over the consumers pocket and
are willing to provide services and information at low prices,
and even for no consideration or for a consideration that is
concealed. Despite this, the inferior position of the
consumer still stands in Internet transactions. []

We can see that the nature of the details that need to be

disclosed in a Long distance sales transaction that are
listed in Section 14C(a) of the Consumer Protection Law, are
of a type that would not be required in a regular sales
transaction, and are characteristic solely of a long distance
sales transaction, from this reason, too, we should learn that
Section 14C(a) does not derogate from what is set down in
Section 2(a)(18) of the Law but rather adds to it. (emphasis
not in the original)
38. The Supreme Court held in its judgements, on numerous occasions, that
the parties are not on an equal basis in a transaction between a supplier
and a consumer, and therefore ruled that in such an unequal
relationship, the duty of disclosure is increased and the duty of fairness
is increased, towards the weaker party. The words of the Honourable
Justice Dorner, in Civil Appeal Permission 8733/96 Langbert vs. the State
of Israel the Israel Lands Administration, PADI 55 (1) 168, clause 6, are
appropriate to this matter. We can see, therefore, that the Respondents
obligation to provide full and accurate disclosure to its customers is even
more applicable when it concerns a transaction done via the Internet.
The duty of disclosure is greater when it concerns an essential detail in a
transaction such as its price and such as the terms for disconnecting from
the service.
39. As has been proven above, the Respondent did not disclose to its
customers, and this is an understatement, essential details of the
transaction; the Respondent did not disclose to its customers that
even though signing up to the website may be for free, the removal of
a user profile is subject to a charge. The Respondent did not bother to
declare this policy to its customers.
40. It should be noted, truth in advertising is the basic duty of every business
that is conducted on the Internet, where the transactions are based
solely on the information published by the Respondent, and in reliance
on this information the customer makes his decision whether or not to
transact the deal.
D3.The Respondent Breached the Consumer Protection Regulations
(Cancellation of a Transaction), 5771 2010
41. Section 13C of the Consumer Protection Law sets down the duty of
disclosure in an ongoing transaction (a transaction for the purchase of
goods or services on an ongoing basis, including any change or
addition to the transaction that do not constitute a new transaction),
with Section 13 C(b) requiring the dealer to disclose all of the following:

(1) The right of the consumer to cancel an ongoing transaction

and the method of cancellation, including his said right to a
transaction for a fixed term, as well as the requirement to
provide identifying details for cancellation pursuant to the
provisions of Section 13D(b);
(2) In a transaction for a fixed term the duration of the
transaction and the date of its termination;
(3) Details of payments the consumer needs to pay for
cancellation, if any, under the terms of the ongoing
transaction, and the method for calculating said payments, if
such were set down;
(4) The address and telephone number of the dealer, as well as
the number of the facsimile and the email address, if such
exist, by which notification of cancellation can be provided to
the dealer.
For the avoidance of doubt, in item 18 of the Addendum to the Consumer
Protection Regulations (Cancellation of a Transaction), 5771 2010, the
Legislature explicitly stated the ability to cancel a service of
membership or subscription to a dating and match-making club (the
service that is the subject of this Application).
42. Despite the statutory situation described above, the Respondent does not
provide the required methods of communication (address, email address,
etc.), and worse than this the Respondent does not clarify, up front,
what payments the consumer will be required to pay for the cancellation
(with the basic assumption being intuitive and expected in the
circumstances of the matter i.e. every consumer who wishes to
disconnect from the Respondents services, wishes to do this with the
complete removal of his user profile, this so as to maintain discretion, as
the Respondent represents time after time).
D4.Breaches Under General Laws of Contracts
43. The conduct of the Respondent, against which the Applicant is raising his
complaints in which it implants a type of term in its dealings with its
customers (which, in any case, is not declared when signing up to the
Respondents Site), which stipulates that the Respondent charges a
payment for complete removal from the Site, in the sum of NIS 69
amounts to various breaches under doctrines of the general laws of
contracts, as shall be elaborated upon in this chapter.
44. The Applicant will argue that the Respondents conduct amounts to error
and misrepresentation, pursuant to the provisions of Section 14 and 15 of
the Contracts Law (general Part), 5733 1973, that provides as follows:

14.
(a) Whoever enters into a contract due to an error and it
can be assumed that if not for said error he would not have
entered into the contract, and the other party knew or should
have known about this, may cancel the contract.
(b) Whoever enters into a contract due to an error and it can be
assumed that if not for said error he would not have entered
into the contract, and the other party did not know or is not
expected to have known about this, the courts may, pursuant to
a request from the erring party, cancel the contract, if they see
that it is equitable to do so; and if such is done, the courts may
order damages against the erring party for damage incurred by
the other party due to its entering into the contract.
(c) An error is not grounds for cancellation of the contract under
this Section, if the contract can be kept with rectification of the
error and the other party gave notice, before the contract was
cancelled, that he is prepared to do so.
(d) Error, under this Section and Section 15 whether de
facto or de jure, excluding an error as to the feasibility of the
transaction.
15. Whoever enters into a contract due to an error that is the result
of deception by the other party or by someone on his behalf,
may cancel the contract; in this matter, deception including
non-disclosure of facts that the other party should have
disclosed by law, by custom, or under the circumstances.
45. From this we see that the customers of the Respondent signed up to the
Respondents Site due to an error (and even deception) as to everything
concerning discretion (and in its Site the Respondent purports to claim
100% discretion), and it is clear that if not for this error, people
would not join the Site (as mentioned above, this is a Site for purposes of
adultery and thus, naturally, this is a deal breaking term for signing up to
the Site).
Moreover, it is clear that the respondent was aware how important this is
to its customers (and it at least should have known), and it, therefore,
made the effort to highlight the matter of discretion on its Website.
Similarly, and even more so, this is true also for deception on the part of
the Respondent, and in particular in light of the fact that the Respondent
did not disclose its conduct on this matter, that the removal of a users
details from the Site is subject to a fee. The opposite is true, the
Respondent highlighted on its Site and in its advertisements that signing
up is for free.
The outcome is that the Respondents customers are entitled to cancel
the contract (whether due to error or due to deception), and the
Respondent has no right to charge the fee for the removal of the profile.

46. If the aforementioned does not suffice, and as an alternative only, the
relief for the members of the class can also arise out of the various
doctrines in the general laws of contracts, which are available to the
Respondents customers in the circumstances at hand, i.e., when a
customer wishes to be removed from the Respondents site and the latter
refuses to allow him to do so except by payment of a fee (on these
doctrines see and compare the ruling of the Honourable Justice
Grosskopf in Civil Action (Central) 53033-12-12 Michael Levi vs. Zap
Group Ltd., published in Nevo, 16.6.2014, clause 26).
47. The doctrines that can bring about the cancellation of the stipulation (by
which removal of the profile incurs a charge):
a. Concealed Agreed Compensation In Section 15(a) of the Contracts
Law (Remedies for Breach of Contract), 5730 1970, it was stipulated
with respect to liquidated damages that: If the parties agreed in
advance on the amount of the compensation (hereinafter liquidated damages), the liquidated damages shall be without proof
of damage; however, the court may reduce them if it finds that the
damages were set without any reasonable proportion to the
damage that could be foreseen when the contract was made as an
accumulative result of the breach
In our case, the Respondent in practice entices the surfing public to
sign up to the Site absolutely free, but when they want to disconnect
from the service, including removing the profile, it charges them with
an exit fine. This charge collected by the Respondent for the
removal of the profile, serves as a form of camouflaged liquidated
damages, the whole purpose of which is to punish the Respondents
customers with an exit fine when they dare to disconnect from the
service, while denying the courts their power of intervention.
In other words, the payment for the removal of the profile serves as a
camouflaged liquidated damages, that is excessive (when considering
that, as has been stated, the signing up is free according to the
Respondents representations).
Under these circumstances, this term has not validity, and this term is
invalid and void (and at the very least can be nullified).
b. A Term that is Contrary to Public Policy Under Section 30 of the
Contracts Law, the term by which the Respondent subjects its
customers (who sign up for free) to a fee for full removal from the
Site, constitutes a term that is contrary to public policy. This is even
more so as this term has an effect on the existing competition in the
market, with the Respondents competitors not charging, in such an
unacceptable manner, this type of payment.

In other words, there is a clear social interest that arises from the
protection of the fundamental rights of the customer, which are a
from of basic human rights (including the right to privacy), that on its
own justifies the invalidating of such a term (see also: Section 30 of
the Contracts Law (Remedies for Breach of Contract); Civil Appeal
294/91 Kehilat Yerushalayim Burial Service vs. Lionel Ariyeh
Kastenbaum, District Judgements 46 (2) 464 (1992).
c. Enforcement of the Contractual Payment will be Unjust - Section
15(a) of the Contracts Law (Remedies for Breach of Contract), 5730
1970, provides that the courts may nullify an injured partys right to
enforcement of a contract if enforcement of the contract is unjust
under the circumstances.
The Applicant, therefore, will argue that enforcing the term by which
removal of the user profile is subject to a charge, is unjust under the
circumstances (for a discussion of the issue of enforcement of a
monetary charge, see on this matter the article by Prof. Nilli Cohen,
Rights and Remedies in Enforcing Monetary Charges, Hapraklit 48,
5765 5766, 355).
D5.The Demand for Payment for Disconnection from the Service
Constitutes an Unjust Term in a Standard Form Contract.
48. The Applicant will argue that the term by which the removal of a user
profile is subject to a charge constitutes an unjust term in a standard
form contract, without derogating from the fact that, in any case, no
mentioned is made of this term in the terms of use of the Site and the
Customer becomes aware of this only when he disconnects from the
service, as detailed above and below.
49. In Section 3 of the Standard Form Contracts Law, 5743 1982
(hereinafter: the Standard Form Contracts Law), which is titled
Unjust Terms and their Nullification, it is provided that the courts have
authority to nullify or to amend a term of a standard form contract
that when considering the entire terms and conditions of the
contract and other circumstances amounts to unjust treatment of
customers or providing an unfair advantage to the supplier that may
eventually cause unjust treatment of customers.
50. It shall be recalled that case law has ruled that a claim originating from
the Standard Form Contracts Law can be verified within the framework
of a Class Action, including nullification of an unjust term, see for
example: Civil Action (Central) 5763 09 11 Ometz Horev vs. Shuffersal
Ltd, published in Nevo, 29.9.2013, clause 15, as follows:

[] The ability to petition the Standard Form Contract

Tribunal for the nullification or amendment of an unjust term
in a standard form contract, an option available only to
specific factors (see Section 16 of the Standard Form
Contract Law), does not negate the ability to contest a
contractual term with the claim that it constitutes an unjust
term in a standard form contract, in a court of law in
proceedings between a supplier and a customer (see Section
19 of the Standard Form Contract Law), and there is no law
or reason that negates the ability to contest them, in the
appropriate cases, in a civil action proceeding.
See also: Civil Action (Central) 53033 12 12 Michael Levi vs. Zap Group
Ltd., published in Nevo, 16.6.2014, in clause 27; Civil Action (Central)
20119 08 11 Solmi Lavi Law Offices v. Delek, the Israeli Fuel Co. Ltd.,
published in Nevo, 8.12.2013, in clause 19.
51. In the matter at hand, the unjust term is the one by which the removal
of the user profile is subject to a fee. This term, de facto, is a form of an
exit fine imposed on the customer when he elects to disconnect from
the Respondents services, with the full removal of his details, without
enabling him to end the relationship without payment (signing up is free
and those signing up to the Respondents Site are not made aware of this
term).
52. We shall further add that in case law, the trend is to use the Standard
Form Contract Law to protect customers from behavioural manipulations
or cognitive failures, see Civil Action (Central) 53033 12 12 Michael
Levi vs. Zap Group Ltd., published in Nevo, 16.6.2014, in clause 44, as
follows:
The Standard Form Contract Tribunal has in the past
expressed a position that justifies judicial intervention, by
power of the Standard Form Contract Law, in the freedom of
designing a business model in a competitive market in those
situations in which the business model is based on
exploitation of lack of information or a cognitive flaw in the
general clientele. The tribunal explained its position thus
the markets judgment of the method of operation of a given
business may be impaired due to cognitive failures and
problems of information amongst the general clientele. A
business model that wishes to build itself from these failures is
an invalid model, the existence of which should be
prevented (Civil Suit (Standard Form Contracts) 701/05 The
Attorney General vs. The Central Supplement of the State Co.
Ltd. []

53. The Applicant will argue that the business model by which the
Respondent charges and exit fine (for the removal of the profile) is a
model based on the exploitation of a lack of information (that was not
provided by the Respondent at the time of signing up to the Site) and on
cognitive inclinations of the customers (a free of charge adultery site
according to the representations of the Respondent) and for this
reason, inter alia, it is an invalid model.
54. When this is the state of the affairs, then this is an unjust term in a
standard form contract, and the Court, therefore, is requested to rule
that this term is nullified.
D6. The Respondent even Wronged in Torts
55. As is known, pursuant to the provisions of Section 31 of the Consumer
Protection Law, the violation of the provisions of Chapters B, C, or D(1)
of the Law are themselves a tort under to the Torts Ordinance. As stated
above, the Respondent infringed a number of provisions of the Consumer
Protection Law and, therefore, grounds for bringing an action in torts
against the Respondent arise for the Applicant and the class which he
requests to represent.
D6(a)The Respondent, in its Actions, Breached a Statutory Duty Under
Section 61 of the Torts Ordinance
56. As stated above, the Respondent, in its actions, violated the provisions of
the Consumer Protection Law and the provisions of the Contracts Law. Its
violation of these statutes constitutes, according to the Applicant and
pursuant to the provisions of Section 31(a) of the Consumer Protection
Law, a breach of the statutory duty under Section 61 of the Torts
Ordinance, 5728 1968, (hereinafter: the Torts Ordinance).
57. There is no doubt that the objective of these statutes is the protection
of the consumer public in Israel against this type of conduct, i.e.
deception or exploitation of the consumer on the part of a supplier.
Neither is there any doubt that the many sums collected by the
Respondent from its customers as a result of its conduct constitute
exactly the type of damage which the statutes are intended to prevent.
58. The Respondents violation of these provisions of law, therefore, gives
rise to liability in torts towards the Applicant, and entitles the Applicant,
and all who will be determined as part of the injured class, to
compensation for the damage and the over charging by the Respondent.

59. Moreover, the manner by which the respondent chose to dip its hand into
the pockets of its customers and to charge millions of shekels from them,
itself constitutes a violation of the Basic Law: Human Dignity and
Liberty that provides, in Section 3 to the Basic Law, that the property
rights of the Applicant (and of the other members of the class) constitute
a super constitutional basic right, and therefore it is prohibited to
infringe property rights except by law. This, too, carries with it tortious
liability of the Respondent, for the tort of breach of statutory duty.
D6 (b)The Respondent in its Actions was Negligent Pursuant to Sections 35
36 to the Torts Ordinance
60. The Applicant shall argue that the Respondent, by its actions as
described above, at the very least acted negligently to its customers.
The accumulative foundations of the tort of negligence, as set down in
the above Sections, are: the existence of a duty of care between the
tortfeasor and the injured party; a breach of the duty of care by the
tortfeasor, the existence of damage, the existence of a causal
connection between the breach of the duty of care and the damage.
In the matter at hand, the Applicant shall argue that the foundations of
the tort of negligence exist:
(a) Firstly, we shall consider if a conceptual and concrete duty of care
exists between the Respondent and its customers. The Applicant will
argue that in the present case a conceptual duty of care exists
between the Respondent, an Internet site that is a leader in its field,
and the damage.
The Respondent bears an obligation to treat its customers with
honesty and fairness, without deceiving them. The creation of a
state of affairs by which a person joins the Respondents Website
free of charge but is charged a certain price in order to disconnect
from the service (removal of the user profile), is a situation that
deceives the Respondents customers and causes them a financial
loss.
As such, the Applicant will argue that a conceptual and concrete
duty of care exists between the Respondent and its customers.
(b) Secondly, the Respondent, by its actions, breached its duty of care
towards its customers. The Applicant will argue that the Respondent
breached its duty of care towards its customers by adopting a
deliberate, deceptive policy without bothering to warn its clients in
advance about said deception. It is clear to the Respondent that its
customers are temporarily on its Site, as this is a delicate and
discreet service, and that the great majority of the customers will
ask to disconnect from the service, not very far along the line, with
the full removal of their details.

(c) Thirdly, we shall consider whether damage was caused to the

customers of the Respondent. As detailed above, the damage caused
to the Respondents customers is the fee they were charged (which
was not brought to their attention when they signed up to the Site)
in the amount of NIS 69. The inability to be deleted from the
Respondents services without payment, as well as damage due to
harm caused to Respondents customers who disconnected from
Respondents services without full removal of the profile. The relief
that is requested under this action is the rectification of this
situation.
(d) Fourthly, a causal connection exists between the breach of the duty
of care and the damage caused to the customers. The Applicant will
argue that the customers would not have suffered the damage had
the Respondent not adopted its, aforementioned, deceptive policy.
D7.The Respondent, by its Actions, Received Unjust Enrichment Contrary
to Section 1 of the Unjust Enrichment Law, 5739 1979
61. The Respondents conduct described above creates unjust enrichment
contrary to Unjust Enrichment Law, 5739 1979, which imposes an
obligation of restitution on whoever became unjustly enriched at the
expense of another (and in the present case, at the expense of his
customers), and if specific restitution is not possible, the law provides
for restitution of equivalent value.
This enrichment at the expense of the customers occurs when it is
represented to the customers that signing up to the Site is for free
(without any caveats), when in practice, the Respondent charges a fee
from those who wish to disconnect from the Respondents services.
Needless to say, this conduct of the Respondent amounts to enrichment
in several potential meanings: one, the Respondent pocketed the sum it
charges for full removal of the user profile and thus enriched its account
in an illicit manner. The second, the Respondent created
misrepresentations based on which many and various customers signed
up to the Site, this without their knowing that disconnecting from the
service is, itself, subject to a fee (see and compare the judgement in the
matter of Supplementary Hearing 20/82 Edras Building Materials Ltd. vs.
Harlo and Jones GmbH, PADI 42 (1) 221 (1998)).
D8.Infringement of Privacy
62. Almost every action by any person creates information. The various
pieces of information create a data base on that person, and create a
description of his character. This is true especially when dealing (as in
the present case) in a dating site for discreet encounters that
represents itself as one that is very particular about maintaining a
persons privacy.

63. In Israeli law, the right to privacy is explicitly set down in Section 7 of
the Basic Law: Human Dignity and Liberty, and also can be found in
specific legislation, under the Protection of Privacy Law, 5741 1981
(hereinafter: the Protection of Privacy Law).
64. As has been detailed expansively in this Application, when opening a new
user page, the Respondent encourages the users to put in as many
relevant details about his life as possible, details on his physical
identifying features, his place of residence, and especially encourages
attaching his picture.
65. At this stage, the new user is not aware, when opening the account, that
for the full deletion of his details from the Site he will be required to pay
a fine in the amount of NIS 69. Moreover, the Respondent deceives
those who open accounts (and even leads them astray) when it
represents to them that signing up to the Site is free and does not
involve any charge whatsoever, but does not declare that for the removal
of their details from the Site they will be required to pay a substantial
sum.
66. There cannot be any doubt that the details that a person inputs into a
discreet dating site amount to a persons personal matters; as they
expose all the data about him to the entire world. This is especially true
when dealing with a site that is intended for users who are conducting a
relationship, and their fear of an infringement of their privacy is
especially high.
67. Section 3 of the Protection of Privacy Law requires that consent to the
use information shall be done by way of informed consent. This is even
more so in the case where the person wishes to remove is details from
the Respondents Site but is require to pay for this.
In this matter, see, with the required changes, the provisions of Section
17 of the Protection of Privacy Law, which set down that: (b) every
person has the right to demand, in writing, from the owner of an
information system used for direct mailing, that information relating
to him be deleted from the system and even that (c) every person
has the right to demand, in writing, from the owner of an information
system used for direct mailing or from the owner of an information
system that contains the information based on which the contact was
made, that the information relating to him not be provided to a
person, a type of person or to particular people, and all for a limited
or a fixed term.

68. Needless to say that the conduct of the Respondent is not in compliance
with the provisions of the law stated above, inter alia due to the fact
that the Respondent does not allow its customers complete removal
without payment, and in the case of hide profile, even notifies the
customer explicitly that his details will continue to be accessible by all
of the users that had any contact with him, without the customer being
given the option of instructing that information relating to him not be
presented to a person, a type of person or to particular people. This
is especially valid when dealing with a discreet dating site.
69. On this matter, see and compare Class Action (Tel Aviv) 52961 03 12
Alon Elshalom vs. Adam Milo Ltd., published in Nevo, 30.6.2014, in
which the proceedings dealt with the manner in which information,
gathered with respect to candidates in employment assessment tests,
was handled and kept, and as part of the settlement, each candidate
was granted the opportunity to request the deletion of his particulars
from the respondents database. This is proper, even more so, in our
case, where the infringement of the right to privacy has an especially
high weight.
70. In conclusion of this chapter, the Respondents conduct amounts to
infringement of its customers right to privacy, which is a basic,
constitutional right.
E.The Terms for Granting Class Certification Have Been Met
71. The grounds of action that are at the basis of this Action are of the
grounds listed in Section 3 of the Class Actions Law and in the Second
Addendum thereto. In Section 1 of the Second Addendum to the Class
Actions Law, it is provided that:
An action against a dealer, as such is defined in the Consumer
Protection Law, in connection with a matter between him and
a customer, whether or not they entered onto a transaction.
In the Definitions section of the Consumer Protection Law, the terms
dealer and consumer are defined as follows:
Dealer a seller of a product or a provider of a service by a
business, including a manufacturer;
Consumer a buyer of a product or a receiver of a service
from a dealer by way of his business for use which is primarily
personal, domestic or family;
It is clear that the Applicant is the consumer of the Respondent (see and
compare: Civil File 2057 08 Sharon Daphne Perry vs. Shaari Delek
Development and Management Registered Partnership, Published in
Nevo, given on 2.8.2010); and that the Respondent is dealer under the
Consumer Protection Law.

72. The Action meets the conditions set down in Section 4(a)(1) of the Class
Actions Law, and it raises fundamental questions of fact and law, that are
common to all the members of the class:
a.

The grounds of action originate from the charging of a form of fine

for the wishes of the members of the class to be completely
removed from the Respondents Site;

b.

The class shall be defined as follows: All of the Israeli customers

of the Respondents who signed up to the Ashley Madison
website prior to the filing of this application for certification and
until the date the action is settled (hereinafter, respectively: the
Class and the Period of Restitution).
This Class can be divided into three sub-groups:
1) The First Sub-group is: Those customers of the Respondent
that paid the amount of NIS 69 for the full removal of their
user profile from the Site.
2) The Second Sub-group is: Those customers of the respondent
who chose the option of hiding the profile, due to the fact that
fully removing the profile was, surprisingly, subject to a fee.
3) The Third Sub-group is All of the customers of the Respondent
who, today, are active on the Site, and were not provided with
the opportunity to remove their details from the Site without
payment.

c.

As the class contains a large number of potential plaintiffs, with

nothing common connecting them par their being customers of the
Respondent who suffered form its conduct as described above, there
is no reasonable chance that they could join forces in order to
conduct the proceedings. On the other hand, the sum of restitution,
to which each member of the class is entitled, separately, is not
sufficient to justify conducting independent proceedings.
The class action is, therefore, the most efficient way to reach a
resolution of the dispute under the circumstances, as required by
Section 8 of the Class Actions Law;

The facts set forth in the Statement of Claims (as, too, the legal
grounds) are, in general, identical to each member of the
aforementioned sub-groups. A resolution in favour of the Class shall
serve the interests of all of the members of the Class who shall
benefit from an appropriate compensation and/or the rectification
of the conduct of the Respondent; shall serve the public in general
by maintaining fair and transparent relationships on the Internet;
shall anchor the Internet surfers right to privacy while adding
another, important, tile to the mosaic of legislation and case law
that exists on this issue; and shall serve the purpose of deterrence,
which is one of the objectives of the Class Actions Law, so as to
prevent further such consumer deceptions.
73. The factual and legal foundations that was presented above show that
the Respondents policy of requiring payment for disconnection from its
services (full removal of the user profile) without informing its customers
in advance, amounts to consumer deception, which is not compliant with
the relevant legislation in such cases and with case law. There is a
reasonable possibility, therefore, that the Action in the title that is to be
heard before the Honourable Court, shall be resolved in favour of the
Class.
74. There is reasonable basis for assuming that the matters of the members
of the Class shall be represented and conducted in an appropriate
manner. The Applicant was personally harmed by the same cause against
which he seeks to represent, and he shares identical interests with the
Class. Their counsel is a lawyer who has been practicing in the field of
class actions for a number of years, and has, in the past, represented
various defendants in class action suits as part of his work in the office of
Sadot & Co., Lawyers, Notary and Mediators, which is a boutique firm
that specializes in the field of class actions; and today represents
plaintiffs and defendants in class action suits.
75. There is, also, reasonable basis to assume that the interests of all
members of the Class will be represented and conducted in good faith.
The Applicant and/or his counsel are not connected to the Respondent in
any manner they have never worked for it and/or with it, and they
have never represented it in any manner. The grounds for action became
clear to the Applicant in good faith and as part of his regular lifestyle,
and simply because of his heightened consumer awareness and the
alertness that he displayed.
76. It can be seen, from the above, that in the case before us all of the
terms and conditions required under Section 4 and 8 of the Class Actions
Law are met, and there are significant reasons for granting the
Application and to order that the action be heard as a class action.

F. The Damage Incurred by the Class

77. Pursuant to the aforesaid, the members of the Class suffered various
types of damage due to the conduct of the Respondent, as described
above. Below we shall refer, in a detailed manner, to the damage that
was caused with respect each of the Sub-groups.
78. The First Sub-group suffered financial damage in the sum of what they
were charged to pay, which is NIS 69, in order to remove the user profile
from the Respondents Site. According to the representations of the
Respondent itself, over one million visitors accessed its Site, and with
the launch of the site in Hebrew in 2014, about one million Israelis
visited the Site within two days, and about 90,000 members signed up to
the Site. The target of the Respondent is 250,000 members within the
first year of activity in Israel. Thousands of people are exposed every day
to the Website owned by the Respondent, pursuant to the Respondents
claim that Thousands of men and women sign up on the site every
day looking for an affair, and that the Respondents Site is the most
famous website for married dating and discreet encounters.
A copy of an article on this topic from the The Marker website, that
was published in May 2014, is attached to this Application as an integral
part hereof and marked as Appendix 11.
79. By way of estimate, and with a very cautious and conservative
assessment, the Applicant calculates that the affected Sub-group
amounts to 40,000 members (less than 4% of the overall visitors to the
Site, and less than one fifth of all members on the Site). Each such
member suffered damage in the sum of NIS 69, as set forth above, and
the Applicant, therefore, assesses the sum of the action, at this stage,
for this head of damage at a total sum of NIS 2,760,000 (NIS 69 x 40,000
members).
80. The Second Sub-group suffered damage due to the infringement of their
privacy, as the members of this Sub-group chose the option of hiding
their profile (as opposed to its removal from the information system),
while the details of their profile are exposed to the other users of the
Site, or in the words of the Respondent: Important: your profile
information and messages will be accessible to members youve
connected with.
81. This damage is assessed by the Applicant, at this stage, at NIS 10 to each
user, with the members of the said Sub-group, who would have chosen
the option of full removal had it been offered to them free of charge,
numbering at around 60,000 members. Again, this is a cautious estimate,
with the number of members in it being around only 6% of the visitors to
the Site. The Applicant will put the amount of the action for this head of
damage in the sum of NIS 600,000 (NIS 10 x 60,000 members).

82. The Third Sub-group suffered damage because they were denied the
option of disconnecting from this Site without a charge. This damage has
been assessed by the Applicant, at this stage, to be NIS 5 for each user,
with the members of this Sub-group numbering around 150,000 members.
The Applicant, therefore, will at this stage put the amount of the action
for this head of damage in the sum of NIS 750,000 (NIS 5 x 150,000
members).
83. The Applicant and the members of the class are also entitled to
compensation for non-pecuniary damage (this with respect all members
of the class including each sub-group). In the judgement in the matter of
Tnuva, Civil Appeal 1338/97 Tnuva Central Cooperative for the
Marketing of Agricultural Produce in Israel Ltd. vs. Rabi, PADI 57 (4) 673
(2003) the Court recognized damage caused by the infringement of the
autonomy of the individual as compensable. The conduct of the
Respondent brought rise to aggravation, mental anguish, infringement of
the promised discretion with all of its implications, feelings of being
cheated and robbed, and infringement of the freedom of association of
the consumers.
See also the comprehensive judgement of the Supreme Court in Civil
Appeal 8037/06 Shai Barzilai vs. Prinir (Haddas 1987) Ltd., published in
Nevo, 4.9.2014.
84. Considering the aforesaid, the Applicant assesses the amount of
compensation for the non-pecuniary damage suffered by the members of
the Class in the sum of NIS 1,000,000, pursuant to a rate of NIS 4 for
each member of the Class (NIS 4 x 250,000 members).
85. The Applicant, therefore, based on the aforesaid, assesses the sum of
the damage claimed by the Class at NIS 5,110,000.
86. Even if, for any reason, it is not possible to reach the exact amount of
damage that was caused to the members of the Class (bearing in mind
that the information records are computerized and are held by the
Respondent), we can still do so using statistical tools or by way of
estimate (see and compare: Civil Appeal 345/03 Riechart vs. the
Inheritors of the late Moshe Shemesh, published in Nevo, given on
7.6.2007).
87. Alternatively, it is suggested that the review of the data disclosed by the
Respondent under these proceedings shall be conducted by an
independent expert of reputation, and it will thus be possible to assess
the damage of the members of the Class, their number and the
compensation to be ruled in their favour.

88. Alternatively, the Applicant shall state that there is not even an
impediment to hold a hearing on the damage that needs to be paid to
the Class, based on the repeated bias doctrine in this context see:
Supplementary Hearing 4693/05 Carmel Hospital Haifa vs. Malul
(published in Nevo, 29.8.2010), in which the Supreme Court found that a
rule of statistical damages should be applied in cases where there is
difficulty proving a causal connection, in circumstances where a group of
injured parties can be identified, and there exists systematic bias with
respect the injured parties when checking the chances of there being a
causal connection with each one of them.
89. It should be clarified that, in light of the information that will be
received during the proceedings and due to the information gaps, the
Applicant reserves the right to amend the Statement of Claims as
required (including with respect the number of members in the injured
Class and the overall amount of the claim).
G.Matters of Private International Law
1.

Foreign Jurisdiction Clause and Application of the Cypriot Law An

Unjust Term in a Standard Form Contract

90. According to the terms and conditions that appear in the Respondents
Site in Hebrew, which constitute a standard form contract drawn up by
the Respondent, as the user is not able to change it or have any
influence on it, in the event of a dispute, jurisdiction is given to the
courts in Cyprus according to local law there. See, for example, what
this term states:

You agree that: (i) the Service shall be deemed solely based in
the Republic of Cyprus; (ii) the Service shall be deemed a
passive one that does not give rise to personal jurisdiction over
Ashley Madison, either specific or general, in jurisdictions
other than the Republic of Cyprus; and (iii) the Terms, and your
relationship with Ashley Madison under the Terms shall be
governed by the internal substantive laws of Cyprus, without
respect to its dispute of laws principles. These Terms shall be
interpreted in accordance with the laws of Cyprus without
reference to dispute of law principles. These Terms, together
with our privacy policy contain the entire understanding of the
parties regarding their subject matter, and supersede all prior
and contemporaneous agreements and understandings between
the parties regarding their subject matter. These Terms shall
be binding on the parties, their successors and permitted
assigns. No failure or delay by a party in exercising any right,
power or privilege under these Terms shall operate as a waiver
thereof. The invalidity or unenforceability of any of these
Terms shall not affect the validity or enforceability of any
other of these Terms, all of which shall remain in full force and
effect. The headings used in these Terms are for convenience
only and shall not be deemed to define or limit the content of
any provision of these Terms. These Terms will not be governed
by the United Nations Convention on Contracts for the
International Sale of Goods.
The full terms and conditions can be found at this address:
https://www.ashleymadison.com/app/public/tandc.p?c=35
91. Needless to say that that the courts in Israel have expressed discomfort,
to put it mildly, over foreign jurisdiction clauses where the main
connection of the parties to the foreign country is due to the location of
the corporation who is providing the service. See, for example, Standard
Form Contract File 4/89 B. G. Financing Ltd. vs. The Attorney General,
unpublished, 1.9.1992, page 2, as follows:
An unreasonable jurisdiction is held to be, under Section 4 of
the Standard Form Contracts Law, an unjust term. Such is a
jurisdiction outside of Israel. Clearly it is more convenient for
the supplier which is a German company to litigate in its
place of residence, pursuant to the laws of its state. The
consumer, however, is Israeli and the contract with him was
made in Israel. Setting a jurisdiction outside of Israel,
therefore, is most burdensome for him. The Applicants attempt
to soften this term by setting a venue for serving documents
within Israel and agreeing to transfer the jurisdiction to Israel,
if the consumer raises a claim of forum non conveniens, is not
helpful. After all, the burden is the jurisdiction being in
Germany, in the first place.

92. The foreign jurisdiction clause in the present case amounts, therefore, to
an unjust term in a standard form contract that should be nullified, for a
number of reasons:
a.

Firstly, this term, de facto, prevents access to the courts, as it sets

very high costs for a resident of Israel to conduct proceedings
against the Respondent, when the value of the action for an
individual will, in general, not justify and not allow conducting
proceedings outside of Israel at all;

b.

Secondly, this term prevents the application of the cogent laws of

Israel (such as: the Protection of Privacy Law, the Consumer
Protection Law, the Basic Law: Human Dignity and Liberty, and so
forth) on the residents of the State who use the Respondents
services;
Such a term effectively prevents the protection of Israeli law that
applies to the residents and citizens of Israel. The authorization of
such a term will have the result that, in the event of a dispute
between a private individual and a corporation, the dispute will be
heard in the place of residence of the corporation;

c.

Thirdly, there is no substantial justification for such a term, when

the essence of the contract between the Respondent and its Israeli
users is the provision of services that are mainly in Israel. The
Respondent enables activity in Hebrew, invests great efforts in
advertising in Hebrew, conducts an extensive advertising campaign
intended for at Israeli [Internet] surfers, etc.;

d.

Fourthly, the hearing of the action in Israel will not be

unnecessarily burdensome for the respondent, and this is
particularly so when the Respondent has hundreds of thousands
(and even more) of customers in Israel. In these circumstances, the
foreign jurisdiction clause is, in practice, an immunity clause for
an entity that has extensive business in Israel, something that
cannot be accepted.

93. We shall also add that the question of location in online commerce on
the Internet has risen, from time to time, in case law, and in general it
has been ruled that the restriction of jurisdiction in such cases should be
prevented, as such restriction could serve the corporations in choosing
the preferred law and thus evading cogent obligations. In this matter, we
find appropriate the judgement in Originating Motion (Jerusalem)
3137/04 Ahava (USA) Inc. vs. J.W.G. Ltd. District Judgements 5763 (2)
337, 351 (2004), as follows:

Neither is there a need for the question of use of Internet

sites. The Internet can present serious challenges with respect
application of venue, jurisdiction, and conflict of law (G.
Granot-Meir, H Rav ia Advertising A Question of
Geography? [37], the Applicants Response Appendix 11; N.
Asia Computer Law Theory and Practice [31], Respondents
Summation, page 4). Nevertheless, the Internet does not make
the law virtual, as if there was a rift or as if the gravitational
rules of law stop applying to this instrument, in a manner by
which it drags us to a twilight state of the existence of an act or
a default that do not have a suitable legal response. Use of the
Internet has great advantages and includes possibilities that
seem Narn. But it cannot break the regular blockade of the
law. The proper recipe is found in the logic of the ordinary rules
of law. The advertising technique can adopt or discard a given
form. The form can influence the methods of operating the
substantial law or the methods of determining the Courts
jurisdiction. Form, however, does not dictate new rules of play,
but rather falls into the appropriate slot pursuant to the purpose
of the law that strives to be applied. In this case, it is proper, for
the question of jurisdiction, to refer to the activity of the
Respondent in marketing the products overseas via the Internet,
in the same manner in which we would refer to other
advertising and publicity activity done in the target country,
even if it is possible, that for other purposes, this activity could
be viewed otherwise. Whoever attempts to trade with
consumers in a given target country, cannot expect to be
released from the laws of that country, and whoever wants
global revenue, best be wary of global dangers (H. Ravia
Global Business? Global Liability [38]), and, to be on the safe
side, will take into account the possibility of jurisdiction of the
courts in the target country (E. Friedman Trademarks
Legislation, case Law and Comparative Law [33], page 438).
94. In light of the above, there is no justification for limiting the jurisdiction
venue to Cyprus for a service provided in Hebrew and intended for
residents of Israel, due to the reasons set forth above, including: the
severe effect on accessibility to the courts and the high costs. Let us
recall that the Respondent is a large commercial entity operating in
Israel and offering its services to residents of Israel.
95. Let us remember that it has been ruled in case law that a claim arising
from the Standard Form Contract Law can be heard and an unjust term
can be nullified within proceedings of a class action, see for example
Civil Action (Central) 5763 09 11 Ometz Horev vs. Shuffersal Ltd,
published in Nevo, 29.9.2013, clause 15.

96. The Honourable Court, therefore, is requested to rule that the unjust
terms found in the Terms and Conditions of the Respondents Site (both
the foreign jurisdiction clause including the arbitration clause, and the
application of a foreign law clause on every dispute between a user and
the Respondent) are nullified.
2.

Foreign Jurisdiction Clause

97. The courts in Israel has the international jurisdiction to hear and to rule
on this action. The Applicant will argue that a multi-national corporation
that provides services in Hebrew to a large number of residents of Israel,
subjects itself to Israeli law. As has been stated, any other interpretation
will lead to a situation by which international corporations will avoid
opening official branches in Israel in order to evade the application of
Israeli law.
98. As has been elaborated on, above, the foreign jurisdiction clause
constitutes an unjust term in a standard form contract that should be
nullified.
99. For the sake of caution only, even if this is not an unjust term, there still
is no justification for such a clause since it is not enough to determine in
a contract that a court will not have jurisdiction to hear a dispute, and
such a clause will be subject to the principle of public policy and to
cogent policy considerations (Miscellaneous Civil Applications (Tel Aviv)
18457/02 Lake Marion Golf Estates Ltd. vs. Zvi Prever et al, published in
Nevo, 19.7.2004, clause 17, it should be noted that this judgement was
confirmed by the Supreme Court, Civil Appeal Authorization 99/06)
100.It should be noted that this Honourable Courts determination of whether
it is the forum conveniens for hearing this action will be based on the
determining of the test of the greater connections as well as of the
question: could the foreign jurisdiction clause cause a deterrence of the
exercising of rights (Civil Appeals Authorization 188/02 Mifal Hapais vs.
Eli Cohen, PADI 57 (3) 473, 480 (2003)).
101.Its is clear that in the present case, the greater connections, which
include the provision of services in Hebrew, to residents of Israel on an
extensive scale, hundreds of thousands of Israeli users, extensive
advertising on Israeli media, making representations that Ashley Madison
has arrived in Israel, and so forth lead to the conclusion that the action
should be heard in Israel. Furthermore, an additional consideration is:
can the members of the Class (residents of Israel) take full advantage of
the law in the country where the injuring party is found, but in the case
that is the subject of this Action there is no practical chance that the
Action can be heard in Cyprus when considering the high costs of
conducting the proceedings and the small sum of the action.
102.In light of the above, the forum conveniens for hearing this action is in
Israel.

3.

The Applicable Law with respect the Grounds of Claim

103.As detailed above, according to the greater connections it should be

determined that not only is the court in Israel the forum conveniens for
hearing the action, but that the laws of Israel are the applicable law.
104.In this context, there is increased importance that the infringement is of
constitutional rights that are anchored in basic laws of Israel and cogent
legislation of Israel.
105.An interpretation pursuant to which one can operate in Israel, for an
Israeli target audience and in Hebrew, while infringing protected
constitutional rights, and while breaching duties set down in Israeli law,
by means of a foreign jurisdiction clause (Cypriot law) in a standard form
contract just because the corporation is incorporated in a certain
country is, in the Applicants opinion, an undesirable policy.
106.Such a policy will create a route that bypasses cogent legislation, and
shall, in practice, allow the infringement of human rights and of cogent
principles of Israeli law, by using a corporation incorporated in a foreign
country. This is even more so when, except for the place of residence of
the corporation, there are no other connections between the contract
and the foreign country. In this way corporations can breach various
obligations in Israeli law, without ostensibly being subject to these laws.
107.As for the grounds for claims in torts set forth above (including
infringement of privacy), it should be said that the choice of law rule in
torts determines that: The applicable law for a tort is the law of the
place it was committed. This rule has an exception by which it would
not be just to impose the laws of the place the tort was committed
when the connection between the place the tort was committed to
the tort, itself, is incidental., see Civil Appeal Yinon Manufacture and
Marketing of Foodstuffs Ltd. vs. Kraan, PADI 59 (1) 345 (2004).
108.A set forth above, in the chapter dealing with grounds of claim, on these
torts the Israeli law should be applied, as in any case in torts there is no
choice of applicable law. Moreover, these grounds have distinct and
exclusive connection with Israel, as the infringements that were
committed to citizens of Israel (such as the infringement of privacy)
arose solely due to the conduct of the Respondent.
109.We note that the location of the Internet server has no relevance
whatsoever, and has no weight in determining the applicable law or
jurisdiction, see: Miscellaneous Civil Applications (Jerusalem) 2841/03
Reut Electronics and Components Ltd. vs. Image Mirrors Ltd., published
in Nevo, 14.12.2013; Originating Motion (Jerusalem) 3137/04 Ahava
(USA) Inc. vs. J.W.G. Ltd. District Judgements 5763 (2) 337, on page 351
(2004).

110.As to the venue, too, it is clear that the subject of the proceedings is a
contract entered into via the Internet, and thus by its nature it can be
filed in any jurisdiction, Civil Appeal Authorization 530/12 Simha
Yaacobowitc vs. Joseph (Joe) Edward Zias, published in Nevo, 28.3.2012,
in this context we shall state that a substantial number of the members
of the Class have a personal local connection to this Honourable Court as
their place of residence is within its area of jurisdiction.
111.In conclusion of the subject, the Honourable Court is requested to rule
that the forum conveniens for hearing the action is in Israel, that the
foreign jurisdiction clause is nullified, and that the applicable law is the
laws of Israel.
H.The Requested Relief
112.The Honourable Court is requested to grant the Action class certification,
and to rule as follows:
a.

To order the Respondent to allow every one of the users the option
of fully remove his details from the Respondents Site, free of
charge;

b.

To set down the method for proving the damage of the members of
the Class and accordingly to rule damages in their favour;

c.

To give an order for providing accounts and an order for disclosure of

documents that requires the Respondent to disclose all of the excess
amounts that were paid to it by the consumers as a result of this
conduct, and as part of this to disclose:
1) The number of members on the Respondents Website;
2) The number of members who requested to disconnect from the
Respondents Website with the full removal of the user profile
and with the payment of the sum of NIS 69 credited to the
Respondent;
3) The number of members who requested to hide their user
profiles on the Respondents Website;
4) And/or any other data that will be required as part of the
hearing before the Honourable court;

d.

To order the Respondent to compensate all of the members of the

class in the amount of damage caused to each one of them as a
result of its acts and/or defaults, with the Respondent repaying to
each one of the members of the Class the full amount that it,
unlawfully, collected from them, with said amounts attached to the
Cost of Living Index and duly bearing interest, as of the day of their
payment and until the day of repayment;

e.

The Honourable Court will also be requested to order the

Respondent to pay to the Applicant appropriate and fair
compensation from the sum of the benefit to the all of the members
of the Class for his actions and efforts for the benefit of all of the
members of the Class. In addition, the Honourable Court will also be
requested to order the Respondent to pay lawyers fees to the
counsel for the Applicant at an appropriate rate out of the sum of
the benefit to the all of the members of the Class for his handling of
the Class Action and for his for his actions and efforts.

f.

To order any and all relief the Honourable Court deems proper, right
and just under the circumstances of the case.

I.Book of Class Actions

113.A review of the Book of Class Actions on the website of the Courts shows
that no action was filed on the matter herein against Respondents 1 and
2.
J.Closing Remarks
114.In light of all of the above, the Honourable Court is requested to
summons the Respondent to a hearing, and to order the relief set forth in
this Application.
115.This Honourable Court has international jurisdiction to hear the action
(as detailed above), as well as the local jurisdiction and substantial
jurisdiction to the extent this Application for class certification of the
Action is granted, pursuant to Section 5(b)(1) of the Class Action Law.
116.The Honourable Court is requested to give additional instruction
pertaining to the hearing of the Action, as it sees fit.
117.The facts set forth in this Application are supported by an affidavit by
the Applicant.
118.Law and equity dictate granting the Application.
Tel Aviv, today: 30.4.15
[signature] Licence Number
48917
Amiram Tapiro, Adv.
Counsel for the Applicant