Two class action suits filed against Google in Israel will be decided according to Israeli law, rather than California law as the company wanted, a court ruled last week.
The ruling is expected to make it easier for both the plaintiffs, who accuse the company of using their personal information without their consent.
At first glance, the ruling was surprising, because back in May 2018, the Supreme Court ruled the opposite in a similar case involving Facebook (known as the Ben-Hamo case). The principle set down in that case, which would seemingly apply to all foreign Internet companies that provide service to users worldwide, was that while Facebook could be sued in Israel, the case would have to be decided according to California law.
The Ben-Hamo ruling imposed a significant burden on the plaintiffs: When they first file suit against one of the Internet giants, they must submit a legal opinion – which doesn’t come cheap – asserting that California law doesn’t grant the same rights to the Israeli plaintiffs, and therefore discriminates against them. Only if they manage to prove that – and it must be proved individually for every suit – will the court overrule the clause in the terms of service agreement that makes all disputes subject to California law.
So what made the Google case different? Why did the presiding judge, Esther Stemmer, decide that the suits against Google should be decided according to Israeli law?
Not exactly. It turns out that Google’s terms of service weren’t worded carefully enough. They were less explicit than Facebook’s agreement, and could therefore be interpreted as allowing the company to be sued in Israel under Israeli law.
Google eventually grasped the problem and revised its terms of service. But Stemmer’s ruling – which the company may well appeal – asserted that the previous wording allowed the plaintiffs to sue it without meeting the conditions set by the Supreme Court in the Ben-Hamo ruling.
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The suits accuse Google of giving personal data that it acquired from users via its applications to external app developers. In so doing, they charged, the company was using this data for purposes other than those for which it was given, and without the users’ consent.
At the time, the terms of service agreement stated, “The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms.” Otherwise, all disputes will be judged according to California law.
Read literally, Stemmer said, what this means is that anywhere California law doesn’t apply, the laws of the plaintiffs’ country apply. Therefore, a reasonable user reading this agreement would understand that any dispute with the company could be settled according to Israeli law.
“Google is trying to read what it wrote differently and is trying to give a forced interpretation,” she added. “But the poor wording is Google’s responsibility, and certainly not that of the people who contracted with it.”
The clause stating where and how disputes will be resolved ought to be clear, so that any user would understand they can’t settle them according to their own country’s laws, Stemmer continued.
“That’s especially true when there’s a standard form contract. If Google intended to state, as per its subjective understanding today, that the rule is a hearing under California law, and only in cases where a country’s laws forbid this will the hearing be held under that country’s laws, then it should have written as much clearly and explicitly.”
In its revised agreement, Google does make this clearer. The revised version says California law will apply in any dispute involving the terms of service or the company’s services.
Google said it is currently studying the decision and considering its next steps.
One of the class action suits was filed by attorneys Amit Manor and Lydia Mandelbaum-Falkov, and the other by Guy Sagi, Avishay Cohen and Amit Gold. Google was represented by Ruth Loven and Sagi Schiff of the Yigal Arnon law firm.