The British Columbia Supreme Court
recently certified a class action against Facebook in
connection with its Sponsored Stories program. Under that program,
advertisers paid Facebook for Sponsored Stories, which would in
turn generate ads featuring a user's name and profile picture
based on which products and companies the user "liked."
previously analyzed a California privacy class action brought
over the program. Since the publication of our previous article,
the California court granted final approval to a $20 million
settlement that required Facebook to make small payments to class
members. That settlement is currently being challenged in the Ninth Circuit Court of
Appeals by a public interest group.
In the Canadian case, one of the main issues was whether
Facebook users have the protection of BC's Privacy Act, or instead, whether
bound users to adjudicate disputes in California. Interestingly,
despite the Court finding a "prima facie basis" for the
"validity, clarity and enforceability" of the forum
Instead, the Court pointed to section 4 of B.C.'s Privacy Act,
which states that an action under the Privacy Act "must be
heard and determined by the Supreme Court." Per the Court,
claims brought under the Privacy Act could not be brought in
California, and held that "the Forum Selection Clause must
give way to the Privacy Act."
After holding that it had jurisdiction, the Court then certified
the class, defining it as all B.C. residents who are or have been
Facebook members at any time between January 2011 and May 2014, and
whose name or picture was used as part of the Sponsored Stories.
The Court rejected Facebook's argument that the class
definition was overly broad and that it had several problems,
including that the class definition: (i) has no temporal
limitations; (ii) does not address the fact that many users use
false names or unidentifiable portraits; (iii) does not address the
fact that Sponsored Stories were used for non-commercial entities
as well as for businesses; (iv) does not address the necessary
element of lack of consent; and (v) includes people who do not have
a plausible claim, as well as people will not be able to
self-identify whether they are in the class. Per the Court,
"[h]ere, the tort [ ] of the Privacy Act seems tailor-made for
class proceedings, where the alleged wrongful conduct was systemic
and on a mass scale, and where proof of individual loss is not
necessary or sought. Without the assistance of the [ ] class action
procedure, the plaintiff and proposed class members' claims
based on [ ] the Privacy Act would be unlikely to have access to
justice. Furthermore, the sheer number of individual claims, given
the reach of Facebook, would overwhelm the courts unless a class
proceeding was available."
It is becoming increasingly clear that the risk of privacy class
actions in Canada is growing. This case shows us that even if a
Canadian court acknowledges the enforceability of a website's
online terms and conditions, the court's interest in protecting
the privacy of its own citizens and upholding its own law will
control. While various news outlets have reported that Facebook
plans to appeal the ruling, there's no denying the fact that
Facebook is now in the thick of the fight in the Canadian judicial
system, whether it "likes" it or not.
This article is presented for informational purposes only
and is not intended to constitute legal advice.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).