Last month, the Israeli District Court for the Central District (Lod), dismissed a motion for class action certification of a lawsuit against Google alleging that website banner ads are unlawful spam pursuant to the Israeli anti-spam law (officially known as Article 30A of the Communications Law (Telecommunications and Broadcasts), 5742-1982; The Hebrew version of the law is available here).
The lawsuit was targeted at Google's "Remarketing" ad service. The representative plaintiff alleged that Internet users are "pestered" by behaviorally targeted ads and that Google's service violates the Israeli anti-spam law.
The District Court held that Google's "Remarketing" service does not fall within the statutory prohibition of transmitting ads through un-consented "electronic messages", as this term is defined in the anti-spam law. The Court opined that in today's technological environment, virtually every ad presented on a computer or smartphone screen can be considered an "electronic message" if the term is interpreted plainly. The Court expressed concern that a legal requirement to obtain users' prior written express consent to display ads, when they land on a website, may extinguish a considerable part of the existing ad-based revenue business models on the Internet. The decision underscores the Court's reluctance to "throw out the baby with the bathwater", especially when it is the "golden baby" of the Israeli and global economy.
According to the Court's decision, an ad presented to an Internet user, that disappears when the user leaves the website or moves on to a different webpage, is different from an ad message sent to an email system that burdens the user with the decision of how to deal with it. Preventing the burden on the user is what justifies the prohibition of sending email ads absent the user's prior consent. The absence of burden on the user, in the case of website banner ads, supports narrow interpretation of the term "electronic message", so that it does not capture every kind of ad presented on a website. {For the full Court decision, in Hebrew: Toister v. Google Inc. et al}.