The Supreme Court ruled: A “remove” link in an advertisement does not reduce compensation in a spam lawsuit.

The Spam Law stipulates compensation of NIS 1,000 for each unsolicited advertisement sent to a recipient (with exceptions), regardless of an unsubscribe link in the email. Supreme Court Justice A. Rubinstein initially suggested that the presence of an unsubscribe option could mitigate the compensation. However, a week later, a three-judge panel of the Supreme Court ruled to the contrary.

We are all familiar with unsolicited advertisements received via mobile or email, encouraging us to spend money on products, services, or donations. If you received such a message without consent or after withdrawing consent, it likely constitutes spam. The law grants recipients NIS 1,000 in compensation per message, without proof of damages.

Many such messages include unsubscribe links. However, many recipients do not click these links, primarily due to security concerns. Advertisers argued that including an unsubscribe link should reduce compensation, suggesting that recipients who failed to use it had not fulfilled their duty to mitigate damages.

These cases were primarily heard in magistrate courts, leading to inconsistent rulings. However, in July 2014, the Supreme Court addressed the issue.

The Glessberg Ruling and its Short-Lived Outcome: The Unsubscribe Option as a Factor in Reducing Compensation

Ziv Glessberg filed a small claims suit for 15 spam messages from three advertisers, some received after he requested cessation. While successful, he appealed the relatively low compensation: NIS 150 per pre-withdrawal message and NIS 500 per post-withdrawal message (total: NIS 8,250).

His appeal to the district court was rejected, leading him to the Supreme Court (his case was combined with a similar one). In late July 2014, Supreme Court Justice Eliakim Rubinstein accepted the appeal, awarding Glessberg more than double the original amount (NIS 17,500). This decision addressed the compensation amount in spam lawsuits where the sender provided an unsubscribe option. The ruling established:

(1) The compensation in the Spam Law serves as a deterrent and incentive for recipients to pursue claims; therefore, the focus is on the violation itself, not the specific damage.

(2) The emphasis is on the sender’s conduct; recipients are not obligated to mitigate damages (e.g., by unsubscribing), but their good faith will still be considered.

(3) The starting point is the statutory cap (NIS 1,000), with mitigating circumstances considered for reductions.

(4) The inclusion of an unsubscribe option (including an unsubscribe link) will be a factor in reducing the compensation.

The Hazani Ruling: Reversal of the Glessberg Decision

A week later, the Supreme Court, this time with a three-judge panel, heard a similar case involving Mr. Hazani, who sued for 27 spam messages across 13 email accounts over a year.

Hazani received a very low award (NIS 1,000). His district court appeal was rejected, stating he failed to mitigate his damages by clicking the unsubscribe link. He appealed to the Supreme Court. The issue of compensation amount and the recipient’s duty to mitigate damages was again raised.

The Supreme Court accepted the appeal, awarding Hazani significantly more (NIS 25,000). More importantly, it reversed the Glessberg ruling.

The court reaffirmed that recipients have no duty to mitigate damages and that the sender’s conduct is paramount. Unlike Glessberg, the Hazani ruling highlighted the security risks associated with clicking unsubscribe links. Therefore, an unsubscribe option would not be a factor in reducing compensation as it undermines the law’s deterrent and enforcement aims.

The ruling stated that such a decision would negatively impact both parties: it would incentivize advertisers to include unsubscribe links while sending unsolicited advertisements, and it would disincentivize recipients from pursuing claims where such links exist. While courts retain discretion in determining compensation, the presence of an unsubscribe option should not be a factor.

For a comprehensive guide on the Spam Law, a complete guide for the harassed.