In Douez, the plaintiff sought to certify the class proceeding on behalf of all Facebook users whose name or portrait was used by Facebook for advertising through a product called “Sponsored Stories.” Sponsored Stories were advertisements bearing the name and likeness of a Facebook user along with the logo or other information of the entity that purchased the advertisement. The Sponsored Stories were sent to users’ contacts without the knowledge of the user whose likeness was used. The plaintiff alleges that Facebook did not seek or obtain consent from Facebook users to use their names or pictures in the Sponsored Stories. Such consent is required by section 3(2) of the Privacy Act, which makes it a tort, actionable without proof of damage, for a person to use the name or portrait of another for advertising of other such commercial purposes without consent.
The court ultimately refused Facebook’s application to have it decline jurisdiction, noting that the strongest factor was that the claim is brought by a B.C. resident, is based on a B.C. statutory cause of action unique to B.C., and for which only the B.C. Supreme Court has jurisdiction.
Douez reveals that forum selection clauses may not provide protection for companies seeking to guard against actions being brought in foreign jurisdictions where their products or services are used. As a result, it is important for companies to understand the local laws in the jurisdictions of the end user of their goods or services, and to ensure that they are complying with applicable laws, privacy or otherwise.