In Part 1, we looked at
the B.C. decision in Douez v. Facebook, Inc.
Another proposed privacy class action was heard in the B.C. a
few months later: Ladas v. Apple Inc.,
2014 BCSC 1821 (CanLII).
This was a claim by a representative plaintiff, Ms. Ladas,
alleging that Apple breached the customer's right to privacy
under the Privacy Act (B.C.), since iOS 4 records the
location of the "iDevice" (that's the term used by
the court for any Apple-branded iOS products) by
surreptitiously recording and storing locational data in
unencrypted form which is "accessible to Apple". The
claim did not assert that this info was transmitted to Apple,
merely that it was "accessible to Apple". This case
involved a different section of the Privacy Act
(B.C.) than the one claimed in Douez.
The Ladas claim, curiously, referred to a number of
public-sector privacy laws as a basis for the class action, and the
court dismissed these claims as providing no legal basis. The court
did accept that there was a basis for a claim under the Privacy
Act (B.C.) and similar legislation in 3 other provinces.
However, the claim fell down on technical merit. It did not meet
all of the requirements under the Class Proceedings Act:
specifically, the court was not convinced that there was an
"identifiable class" of 2 or more persons, and did not
accept there were "common issues" among the proposed
class members (assuming there was an identifiable class).
Thus, the class action was not certified. It was dismissed
without leave to amend the pleadings. Apple's iOS software
license agreement did not come into play, since the claim was
dismissed on other grounds. If the claim had proceeded far enough
to consider the iOS license, then it would surely have faced the
same defences raised by Facebook in Douez. As the
judgement noted: Apple argued that "every time a user updates
the version of iOS running on the user's iDevice, the user is
prompted to decide whether the user wants to use Location Services
by accepting the terms of Apple's software licensing agreement.
Apple relies on users taking such steps in its defence of the
plaintiff's claims. The legal effect of a user clicking on
"consent" or "allow" or "ok" or
"I agree" would be an issue on the merits in this
Any test of Apple's license agreement will have to wait for
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