Israeli Anti-Spam Act

On December 1, 2008 the Israeli Anti-Spam Act (which was enacted in June that year as amendment no. 40 to the "Communications (Bezeq and Broadcasting) Act") came into force. The Act prohibits direct advertising by means of telephone, fax, sms or e-mail without receiving the recipient's prior consent (in writing or in a recorded call) to receive ads. The Act implements the European opt-in model, whereby it is not enough to enable the recipient to request to be removed from the mailing list, and it is necessary to obtain the recipient's prior explicit consent to accept such ads. The Act was enacted despite extensive lobbying of advertisers, which requested to implement the US opt-out approach, whereby it is not necessary to obtain the recipient's consent to receive ads in advance. 

The only exception to the opt-in rule under the Act applies when the advertiser meets the following criteria: (1) the recipient provided contact details during the process of purchasing a product or service (or negotiations for the purpose of such purchase) and the advertiser advised him that he will receive ads to these contact details; (2) The advertiser enabled the recipient to advise that he does not wish to receive such ads, but the recipient did not do so. and (3) the advertisement relates to a product or service of the same kind as in section (1) above. 

The Act also provides that advertisements which fall under the Act should include the following: (1) The word "advertisements" should appear at the beginning of the ad (in e-mails – in the header) (2) the name and contact details of the advertiser (3) the recipient's right to refuse to accept additional advertisements by sending a refusal notice in a reasonable manner.

The Act provides significant monetary measures against spammers: in civil proceedings against spammers under the Act, the plaintiff shall be entitled to liquidated damages (without proof of actual damage) of up to NIS 1,000 (approximately US$ 250) per advertisement. In Criminal proceedings under the Act, failure to meet the opt-in model may lead to a fine of up to NIS 202,000 (approximately US$ 50,000). Failure to meet the advertisement content requirements set forth above may lead to a criminal fine of up to NIS 67,000 (approximately US$ 17,000). 

In order to ensure compliance by companies, the Act requires the directors of the company as well as the employee who is in charge on marketing or advertising in the company to ascertain compliance with the opt-in rule of the Act, and provides a criminal fine of up to NIS 67,000 (approximately US$ 17,000) for violation of this provision. The Act also provides a presumption that if a company or one of its employees has violated the Act, the directors of the company have violated their supervision obligations set forth above.