Friday, May 30, 2014

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.
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?

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