Class actions based on privacy legislation are becoming more common. And while many privacy class actions involve data breaches, sometimes new technologies themselves are the target. In July 2020, two claims were filed in the Federal Court of Canada relating to facial recognition and identification software provided by Clearview AI Inc. to the RCMP.
The claims alleges that Clearview collected billions of photos of individuals from the internet (with identifying information associated with each photo) and created a unique “faceprint” for each individual. Allegedly, if a client provided a single photograph of an individual to Clearview, Clearview would be able to provide all of the photographs and other information it had about that individual—often including their name and location. The RCMP was a client of Clearview until just before the claims were filed.
Both claims were filed by Ha Vi Doan, a photographer. One targets Clearview; the other targets the RCMP. Both proposed classes include individuals whose faces appear in photographs collected by Clearview and individuals who own the copyrights to photographs collected by Clearview. The proposed class in the claim against the RCMP also includes individuals targeted by the RCMP for the purpose of using Clearview’s services.
Ms. Doan alleges that Clearview’s business practices violated Canadian privacy legislation (both federally and provincially) and the Copyright Act. She also seeks remedies under the Canadian Charter of Rights and Freedoms and the Quebec Charter of Rights and Freedoms.
In the other claim, Ms. Doan alleges that the RCMP is liable for “willfully obtaining access to [Clearview’s] illicit database”, or for negligently doing so. Ms. Doan also alleges that the RCMP violated privacy rights and the right to be free from unreasonable searches and seizures. As in the Clearview Action, Ms. Doan also seeks remedies under the Canadian Charter and the Quebec Charter.
Risk Factors for Canadian Class Actions
These cases highlight two of the major risk factors for class actions in Canada.
First, several proposed class actions had been filed against Clearview in the United States earlier this year. Class actions in the United States often herald similar class actions in Canada for companies active in both markets.
Second, several Canadian privacy commissioners launched an investigation of Clearview earlier this year. Regulatory action also often triggers class actions filings.