On May 30, 2014, the British Columbia Supreme Court released its decision in Douez v. Facebook, granting the Plaintiff’s motion to certify a claim for statutory breach of British Columbia’s Privacy Act (the Privacy Act) against the defendant, Facebook.

The Plaintiff alleged that Facebook had taken names and images of Facebook users in British Columbia without the knowledge or consent of the user and featured them in “Sponsored Stories”. Sponsored Stories were advertisements, featuring the Facebook user’s name or likeness, that were sent to the user’s contacts without his or her knowledge or consent. Section 3(2) of thePrivacy Act provides that:

It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

As a threshold matter, Facebook argued that the B.C. courts should decline jurisdiction in this matter because the Terms of Use agreed to by the Plaintiff contained a forum selection clause in favour of California. Facebook also argued that users gave express consent or, in the alternative, implied consent to the use of their name or image by accepting Facebook’s Terms of Use, by personalizing their privacy settings, and also by using the “like” feature.

Jurisdiction

Facebook’s forum selection clause during the relevant period stated that all disputes between Facebook and its users were to be litigated in the courts of California. Despite the clear wording of the clause, Justice Griffin inDouez held that the clause was unenforceable because it conflicted with the provisions of the Privacy Act, which confer exclusive jurisdiction to the B.C. Supreme Court over all actions commenced pursuant to the act. In addition, there were overriding policy concerns that weighed against enforcement of the clause in the circumstances of the case.

In response to the policy concerns, Facebook argued that the Privacy Act ought to be interpreted narrowly since it was introduced in 1968 and pre-dated the internet and class action legislation. Griffin J. rejected this argument, finding that the policy reasons for protecting privacy have actually expanded since the Privacy Act was first introduced:

“…[W]ith the creation and growth of the internet the potential implications for a loss of privacy are greater than ever.  The difficulty in proving quantifiable damage remains great for an individual whose privacy is lost, but the social harm can be monumental if the loss of privacy includes publicity over the internet with its almost infinite reach and timelessness.”

These public policy concerns, combined with the Privacy Act’s exclusive jurisdiction clause, provided sufficient grounds to override the forum selection clause in Facebook’s Terms of Use.

Facebook’s last attempt at challenging jurisdiction based on the doctrine of forum non conveniens was similarly rejected by the Court. After reviewing the doctrine, Griffin J. held that the B.C. courts were just as appropriate as the California courts for determining the Plaintiff’s Privacy Act claim. Based on all of the above, the Court refused to decline jurisdiction and proceeded to a consideration of whether the claim ought to be certified.  

Certification

On the issue of certification, Facebook advanced a number of arguments aimed at highlighting the difficulty of creating an identifiable class for certification. Among the arguments advanced by Facebook were: (1) some Sponsored Stories were non-commercial in nature because they promoted charities and political parties and were thus exempt from the Privacy Act; (2) individuals in the class may have consented to Facebook’s use of their name or image, thus rendering the class overly broad; and (3) many individuals cannot self-identify because they do not know whether their name or image was featured in a Sponsored Story.

With respect to the issue of “non-commercial” Sponsored Stories, the Court noted that Sponsored Stories promoting charities and political parties, though not strictly commercial in nature, might still constitute “advertising” for the purposes of Section 3(2) of the Privacy Act.   Accordingly, it was unnecessary to narrow the class by excluding people who may have been featured in “non-commercial” Sponsored Stories—this was an issue better answered at trial.

On the issue of consent, the Court concluded that the class was not overly broad. By agreeing to Facebook’s Terms of Use, users entered into standard form contracts, as opposed to individual negotiations. Thus, the question of whether or not the Terms of Use provided sufficient information to enable a Facebook user to give express consent to the use of his or her name or portrait in a Sponsored Story could ultimately be determined as a common issue for all class members.

Lastly, on the issue of whether individuals were capable of self-identifying as class members, the Court held that this was a non-issue; on Facebook’s own evidence, Facebook had the ability to identify which B.C. residents had been featured in Sponsored Stories.

After making some revisions to the class definition, Griffin J. proceeded to a consideration of the common issues, certifying eight issues to be decided at trial for the entire class.  Next, Griffin J. concluded that a class action was the preferable procedure, noting that Section 3(2) of the Privacy Act seemed “tailor-made for class proceedings”. Finally, it was undisputed that the Plaintiff, Ms. Douez, could suitably act as representative plaintiff.

In the result, the Court concluded that there was evidence showing some basis in fact for the plaintiff’s assertion that Facebook used the names or portraits of B.C. users in Sponsored Stories without their consent. The Plaintiff’s motion was therefore granted and the action was certified as a class proceeding. 

Kathleen Elhatton-Lake