Were the privacy rights of Canadians in four provinces violated when Facebook allegedly used users' profiles in sponsored stories advertising?
That's what a B.C. Supreme Court judge has decided.
Justice Nitya Iyer ruled on June 2 that B.C. Supreme Court has jurisdiction to hear a class-action suit against Facebook alleging the social media giant inappropriately used users' profiles to sponsor advertising.
"Members of the class did not expressly or impliedly consent to Facebook's use of their likenesses in sponsored stories," Iyer said. "Facebook's use of class members' likenesses was for a purpose prohibited by the four privacy statutes."
The claim alleges that Facebook, Inc. used class members' names and images in its advertising program, Sponsored Stories, without their consent, contrary to the privacy laws of B.C., Saskatchewan, Manitoba, and Newfoundland and Labrador.
Now, said plaintiff's lawyer Chris Rhone, the court has to decide on damages.
Deborah Louise Douez seeks various damages between $830 million and $2.1 billion. Any reward would be split among class members after lawyers have taken their cut.
Douez is the representative claimant in the case, meaning the case falls under her name as a proxy for all those potentially affected by the litigation.
"The court accepted the plaintiff's arguments that under the Privacy Act the burden is on the defendant to prove a plaintiff's consent to be featured in an advertisement," Rhone said. "The court also accepted the plaintiff's arguments that Facebook's 'Terms of Use' did not allow Facebook to feature class members in advertisements."
Facebook argued that California is the correct legal jurisdiction to hear the case.
The case started in 2012, and Douez managed to get it certified in B.C. Supreme Court. Facebook appealed and lost, then appealed to the Supreme Court of Canada, where the company challenged the B.C. Supreme Court's jurisdiction to determine the privacy claims under Manitoba's and Newfoundland and Labrador's privacy statutes.
The upshot was the return of the case to the B.C. Supreme Court.
Iyer said in the jurisdiction decision that Facebook offered sponsored stories to advertisers. Advertisers registered with Facebook could pay the social media company to associate the advertiser's name or identifiable mark with a user who performed certain actions in connection with the advertiser.
Such actions included liking an advertiser's Facebook page or other content, checking in at an advertiser's site or performing an app share to signify the person was using or had used the advertiser's application, Iyer said.
Facebook's software would attach a banner such as "Sponsored" to that social action and the advertiser's thumbnail icon.
The result was that the software would increase the likelihood that the user's Facebook friends would see the sponsored story on their home pages.
However, the ruling said that Facebook did not display the sponsored story on users' home pages and did not inform users when their names and images were used to create a sponsored story.
Still, Facebook argued that, by registering with or signing up for Facebook, users agreed to its terms of use, meaning users consented to Facebook's use of their information in sponsored stories.
Iyer disagreed.
"I conclude that Facebook's use of users' names and profile pictures in sponsored Stories breached (a terms of use clause) and cannot establish consent," Iyer said.
