BC Court Certifies Class Action Lawsuit Against Facebook

May 30, 2014: In what some would say is a big win in the personal privacy realm, Madame Justice Griffin of the BC Supreme Court certifies the class and sets out the issues in what will be an interesting case to follow as it relates to Facebook and Sponsored Ads.

The Court states as follows in Douez v. Facebook, Inc:

[360]     Given the almost infinite life and scope of internet images and corresponding scale of harm caused by privacy breaches, BC residents have a significant interest in maintaining some means of policing privacy violations by multi-national internet or social media service providers. 

[361]     Working together the CPA and the Privacy Act provide practically the only tools for BC residents to obtain some access to justice on these issues. 

[362]     There is evidence showing some basis in fact for the plaintiff’s assertion that Facebook used the 

names or portraits of BC residents who were Facebook users without their consent in advertisements called Sponsored Stories.

[363]     There is also some basis in fact to support the plaintiff’s claim that this conduct creates an actionable tort pursuant to s. 3(2) of the Privacy Act, without the necessity of proving actual damage.

[364]     I have dismissed Facebook’s application that this Court decline jurisdiction in this matter.

[365]     I have granted the plaintiff’s application that the within proceeding be certified as a class proceeding.

[366]     The class description will be as follows:

All British Columbia Resident natural persons who are or have been Members of Facebook at any time in the period from January 1, 2011, to May 30, 2014 and:

(a)            who at any time during this period registered with Facebook using either their real name or a portrait that contained an identifiable self-image or both;

(b)            whose name, portrait, or both have been used by Facebook in a Sponsored Story; and,

(c)            who do not seek to prove individual loss as a result.

[367]     I conclude on the evidence and submissions before me that one of the central issues in the lawsuit will be whether or not Facebook’s standard Terms of Use, alone or together with other Facebook online tools, provided users’ consent to Facebook to use the person’s name or portrait in advertising through Sponsored Stories.  This is an issue common to all class members.  The determination of this issue will significantly advance the lawsuit on behalf of all class members or could defeat the lawsuit altogether.

[368]     There are other common issues in addition to the consent issue. 

[369]     Attached as Appendix A is a list of the approved common issues.  The parties have liberty to apply within 30 days to amend common issues 1 through 4 to address any concerns with the wording.  Likewise, the parties have liberty to apply within 30 days to address any concerns with the revisions to the class definition made as a result of this judgment.

 [370]     l also suggest that the parties arrange for a further hearing before me to address the form of notice to class members and any revisions to the litigation plan to take into account these reasons.

Appendix “A”

Issue 1	What if any Online Actions taken by a Class Member on the Facebook service would constitute express or implied consent to the Class Member’s name or portrait being used in a Sponsored Story, such that it constitutes consent within the meaning of s. 3(2) of the Privacy Act, R.S.B.C. 1996, c. 373?
Issue 2	Is a tort under s. 3(2) of the Privacy Act provable as an independent tort without regard to the elements of s. 1(2) and (3) of the Privacy Act?
Issue 3	Were all or only some Sponsored Stories for the purpose of advertising or promotion within the meaning of s. 3(2) of the Privacy Act?
Issue 4	Does the Privacy Act apply to Facebook in relation to BC residents who used Facebook’s services?
Issue 5	Are Class Members entitled to damages without individual proof of damage pursuant to s. 3(2) of the Privacy Act?
Issue 6	Can the amount of damages be determined on an aggregate basis; if so, in what amount?
Issue 7	Does the Defendant’s conduct justify an award of punitive damages in favour of the Class; if so, in what amount?
Issue 8	Is the Defendant liable to pay interest pursuant to the Court Order Interest Act, R.S.B.C. 1998, c. 79; if so, in what amount?

ICBC Tip of the Month (May 2014): Do I need a Personal Injury Lawyer?

"Do I need a Personal Injury Lawyer for my ICBC case?" 

Sometimes the word "lawyer" scares people.  There is a feeling or perception that lawyers are expensive or aggressive or intimidating.  In ICBC injury claims, lawyers are becoming an important part of the investigation, medical-legal evidence, negotiation, settlement, and/or court process. You need to make sure you go through the exercise of finding the right lawyer for you, and use the no-fee free initial consultation to do that.

Let's get into the nitty-gritty. ICBC has a mandate or objective to reduce exposures and pay out injury claims at the least amount possible.  If ICBC was prepared to offer full value based on precedent case law to unrepresented people,  then there would be no need for personal injury lawyers. That typically won't happen and a qualified and experienced personal injury lawyer almost always gets you more money at the end of the claim than trying to handle the claim without a lawyer.

Sometimes, hiring a personal injury lawyer is important at the outset. These situations could include:

1. Inability to work or earn income due to accident related injuries;
2. Hospitalization due to injuries;
3. Death in a car accident;
4. Fault or liability for the accident is at issue (see tip);
5. Hit and Run claims require certain obligations (see tip);
6. Low Velocity Impact Claims or ICBC says that the material damage estimates are too low to recognize an injury (see tip); OR
7. Resulting permanent injuries that will impact your future income earning or the need for future care and treatments (see tip).

In most cases, lawyers need to carry out early investigation before evidence is lost and most importantly he will need to obtain a series of expert reports to ensure a proper diagnosis and prognosis legally connected to the claim. Early and regular advice from the lawyer will hopefully ensure that the claim is properly documented and the collection of those records is protected.

Although a personal injury lawyer will likely provide a legal bill based on a contingency fee agreement (percentage of recovery), in the majority of cases, the lawyer will  obtain an offer from ICBC well in excess of what you can do on your own. In other words, in most cases you are likely to yield a higher net recovery with a lawyer, after you pay the legal fees. ICBC can also be demanding in terms of your time via telephone and email - hiring a personal injury lawyer will make that process less stressful.

It should also be noted that there are personal injury claims for which it may not be beneficial to hire a lawyer. For example, if you have suffered a soft tissue injury which is short in duration (weeks or months), you may be able to convince the ICBC adjuster to provide a reasonable settlement proposal to you and then you can settle the case for a reasonable dollar. It may be worthwhile to review that offer with a personal injury lawyer on a no-fee initial consultation.

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)

"What is my case worth?" - Assessing Loss of Wages and Earnings

"Future Income Loss", "Loss of Earnings Capacity", "Loss of Capital Asset", "Future Event Leading to an Economic Loss":

In ICBC personal injury cases, BC courts are faced with the difficult task of assessing future income loss while keeping the total amount of damages within a reasonable estimate. Past cases give insight into the matter and guide lawyers on how to direct the court in determining the loss.

Proof and Evidence

The Plaintiff must prove that his/her financial earnings would be negatively affected by the injury. They might not be as productive and therefore suffer a loss in earning ability or capacity. This might include establishing the earning potential of a person if he/she did not suffer the injury. This is especially true for injured persons facing long term disabilities that prevent them from obtaining future employment. In the case of people who are not able to work at the same pace or working hours before the injury this would translate into a potential future loss of income.

In Perren v. Lallari 2010 BCCA 140, the BC Court of Appeal was dealing with a woman who was claiming a loss of earning capacity because she was not able to meet the physical demands of some jobs thus limiting her job options. It was found that she was holding a managerial position before and after the injury. The Court thus determined that her physical injury did not translate to loss in future earnings since her current position paid more compared to physically demanding jobs.

Calculating the Loss

If the Plaintiff is able to prove to the court that there indeed is a loss of earning capacity then the next step is to determine the amount of damages. This is not a simple case of determining potential earnings because the injured party is unable to log the same working hours. Calculating loss of earning capacity includes assessing if the injury has prevented the person from pursuing future employment, his/her possibility for promotion and the possibility of being hired in more lucrative positions.

There are some limiting factors in determining the total amount awarded for loss of earning capacity, including the person’s age of retirement and potential as a candidate for future jobs. This is highly contentious and ICBC will present factors to prove or disprove how much the injury could affect the Plaintiff's financial outlook.  Try to imagine assessing the future potential for babies, children, or young adults.

Not all cases result in awards for loss of future earnings.  This is why your case should be assessed by a qualified and experienced personal injury lawyer with a proven track record.  

Do you have questions about your ICBC personal injury claim or accident?  If so, click here arrange your free consultation with  ICBC Claims Lawyer Perminder S. Tung (Services provided for ICBC injury claims throughout all of BC: Vancouver, Surrey, Langley, Burnaby, Richmond, Abbotsford, Chilliwack, Tri-city area and all over BC)