M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on E-TIPS™ For Deeth Williams Wall LLP on June 15, 2022.
On June 2, 2022, the Supreme Court of British Columbia (the Court) issued its decision in the ongoing class action matter, Douez v Facebook, Inc., 2022 BCSC 914, holding that Facebook, Inc. (Facebook) was liable under several provincial privacy statutes for using class members’ likenesses without their consent.
As previously reported by the E-TIPS ® Newsletter here, the representative plaintiff (Douez) brought a class action lawsuit against Facebook, claiming that Facebook used class members’ names and images in its advertising program, Sponsored Stories, without proper consent and contrary to the privacy legislation of British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador (NFL).
Through Sponsored Stories, advertisers pay Facebook to associate their mark on Facebook’s social media website with users that performed certain social actions in connection with the advertiser (e.g. users who click the “like” button on the advertiser’s Facebook Page). Facebook’s software increases the likelihood that the user’s social connections would see the user’s name, image, and social interaction in association with the advertiser’s mark. The Sponsored Stories were not displayed on the user’s home page and Facebook did not inform the user when their name and image was part of a Sponsored Story.
Prior to assessing the substantive issues, the Court addressed Facebook’s argument that the Court lacked jurisdiction to hear the case. Facebook argued that Manitoba’s The Privacy Act and the NFL’s Privacy Act expressly designate the superior courts of their respective provinces to adjudicate privacy claims and the Court was prohibited from deciding on the matter. The Court did not agree with this interpretation, relying on the constitutional principle that no province has the right to legislate extraterritorially and the legislatures of Manitoba and NFL lack legislative competence to prohibit the Court.
The Court addressed the liability issues by way of summary trial, determining that Douez had established a prima facie breach of the relevant privacy legislation and Facebook had the burden of proof to show that users provided valid consent. Facebook argued that users registering with Facebook’s social media website expressly consented to its terms of use, which included Facebook’s use of their information in Sponsored Stories. However, the Court found that express consent was not established because the terms of use did not clearly inform users that their information would be incorporated into Sponsored Stories. Further, the Court held that Facebook could not establish a basis for implied consent as users were not informed when their information was used in Sponsored Stories. The Court held that the issue of remedies was “fact-intensive” and not suitable for summary trial, and therefore must be adjudicated at a conventional trial.