Canada: Growing Concerns Over Online Privacy Lead To Class Action Lawsuits Against Instagram, Facebook And Google

Last Updated: March 15 2013
Article by Selina Koonar

In addition to email, social networking websites (such as Facebook, MySpace, Google+, Twitter, and LinkedIn) have become the established norm for communication and maintaining relationships. While these websites are useful tools for exchanging information, many users are concerned that their personal details are being circulated far more widely than they would like. The growing concerns over privacy breaches have resulted in a number of class action lawsuits. This article will review the class action lawsuits relating to privacy against Instagram, Facebook, and Google.


Instagram is a mobile photo sharing app which allows people to add filters and effects to photos and share them easily on the Internet. Instagram was acquired by Facebook in 2012.

On December 17, 2012, Instagram announced several changes to its Terms of Service. In summary, the new Terms of Service suggested Instagram would be allowed to use pictures in advertisements without notifying or compensating users, and to disclose user data to Facebook and to advertisers. Instagram also proposed that the parents of minors implicitly consent to the use of their childrens' images for advertising purposes. The new Terms of Service also introduced a mandatory arbitration clause which would force users to waive their rights to file a class action lawsuit in most circumstances. The changes were to take effect on January 16, 2013 and would not apply to pictures uploaded before that date.

Many users expressed outrage. As a result, a few days later, Instagram again revised the Terms of Service announcing that it would withdraw some of the proposed changes. Instagram backed off a plan to use the names, images, and photos of users for advertising purposes by deleting language about displaying photos without compensation. However, Instagram kept language that gave it the ability to place ads in conjunction with user content, saying "we may not always identify paid services, sponsored content, or commercial communications as such". It also kept the mandatory arbitration clause.

A class action lawsuit was filed in the U.S. District Court for the Northern District of California on December 21, 2012 which accused Instagram of violating the property rights of its users and breaching its existing terms of service. The class action lawsuit seeks to preserve valuable and important property, statutory, and legal rights, through injunctive, declaratory and equitable relief before such claims are forever barred by adoption of Instagram's New Terms. The lawsuit takes particular issue with Instagram's ownership of user images, especially in the situation where a user quits the service and, according to Instagram's Terms of Service, loses ownership of their photos to the company.

On February 13, 2013, Instagram asked the federal court to dismiss the class action lawsuit filed over changes to Instagram's Terms of Service. Instagram argued that the plaintiff, Lucy Funes, had no right to bring her claim because she could have deleted her Instagram account before the changes in the Terms of Service went into effect on January 19, 2013. According to Instagram's filing, Ms. Funes filed the lawsuit on December 21, nearly a month before the changes in the Terms of Service went into effect and she continued to use her account after that day. Instagram also disputed Funes' claims that the new terms required her to transfer rights in her photos to the company. Furthermore, Instagram took the position that both the old service terms and the new terms "emphasize that the individual owns the content he/she posts through Instagram's service".


In April 2011, a class action lawsuit was filed against Facebook in the USA (in British Columbia, a similar class action was filed in March 2012) after some users expressed outrage that Facebook was using people's information and photographs without permission to display sponsored stories. The lawsuits argue that Facebook's sponsored stories allow brands to use the photos and names of people who have "liked" their brand in their advertisements on the social network. The lawsuit took the position that the sponsored stories were a part of Facebook's business model, and wrongly turned interaction on the website, such as people "checking in" at a brand outlet, commenting on a product or liking a service, into advertisements by republishing this information in the main news feed.

At the time of the USA lawsuit, Facebook took the position that it was reviewing the situation and continued to believe that the class action suit was without merit. Facebook also used the USA First Amendment as a defence to its practice. Facebook stated that when people click the 'like' button on a brand's Facebook page; this could be taken as those people effectively giving their consent for their name (and presumably their photograph) to be allied to that company and to endorsing the company in a sponsored story or advertisement.

The USA lawsuit was the first one of its kind to have made any progress in the courts. As a result, Facebook announced to its users that it is willing to pay out $20m to settle the class action lawsuit. The offer is one of a number of attempts by Facebook to settle the lawsuit (which remains pending). The British Columbia lawsuit also remains pending.

In the early part of 2013, Facebook emailed its USA members to tell them that they may be eligible for a share of the funds if their names, profile pictures or photographs were used in one of the sponsored stories. Emails to USA members started going out at the end of January 2013.

However, Facebook's users may not see any of the cash even if they are eligible. If the number of claims makes it "economically infeasible" to pay everyone cash, Facebook proposes to channel most of that settlement cash to non-for-profit Internet privacy advocacy groups. Those who received the settlement notice have until May 2, 2013, to decide if they want to submit a claim. A final hearing on the USA case is slated to take place in June 2013.

The certification hearing for the British Columbia class action is also scheduled for June 2013.


In October 2012, Wayne Plimmer of Sechelt, British Columbia filed a class action suit against Google, claiming that Google is illegally spying on the incoming mail of their webmail users.

It alleges that Google's Gmail service "intercepts, obtains and uses personal information it collects from emails sent to Gmail users". Gmail users can only use the service if they consent to Google's terms of service, which explicitly allow the company's algorithms to scan email in order to present targeted ads. The lawsuit claims breaches of sections 1 and 3 of the British Columbia Privacy Act R.S.B.C. 1996 c. 373 and s.52 of the Federal Competition Act R.S.C. 1985 c. C-34. The lawsuit also alleges that Google "infringes on the email senders' copyright, as well as solicitor-client, physician-patient, priest-penitent and journalist-source privileges".

This case parallels many of the aspects of the three cases filed in July 2012 in California, against Google & Yahoo!. However, the BC lawsuit differs in that the plaintiff is not a Gmail user, which could render some of his arguments moot. Instead, the plaintiff argues that Google is invading his privacy by scanning and using data in emails he sends to Gmail users.

The BC lawsuit is launched on behalf of "all persons in the province of British Columbia who have sent email to a Gmail account", and asks for an injunction that would stop Google from intercepting any emails sent from British Columbia, as well as claiming statutory damages for breach of copyright of $500 per email. The suit also states that Google should be required to delete any and all emails sent by members of the class action lawsuit. At this time the class action has yet to be certified.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.