B.C. Appeal Court clears way for Facebook class action

A Vancouver woman says she's thrilled B.C.'s Court of Appeal has removed a final legal hurdle in her years-long struggle to launch a privacy-related class action lawsuit against Facebook.

Debbie Douez first filed a claim in B.C. Supreme Court in 2012 alleging the social media giant had violated B.C.'s privacy laws by using her image — and those of others — through its now-defunct "sponsored stories" program.

The case has travelled all the way to the Supreme Court of Canada and back.

This week, B.C.'s appeal court dismissed an appeal by Facebook claiming the terms of the proposed suit were vague and that the class action process itself was not the best to pursue Douez's concerns.

She says recent revelations about the misuse of the data Facebook collects from users have only served to heighten the issues at play.

"It's wonderful timing, because I think it will help people understand how potentially dangerous it is to have our data out there," she said.

"This is the one judgment I've been waiting for six years. So I can finally breathe — but it's a sigh of relief — and go: 'Ok, here we go now. Now we can begin.'"

'Quasi-constitutional privacy rights'

Sponsored stories appeared as part of Facebook's content from January 2011 to May 2014.

According to the judgment, a "sponsored story, like other advertisements, would appear on a member's news feed."

"The advertisement was accompanied by a statement that a member (whose name and profile picture were shown) liked the product, service, or entity advertised," the decision read.

"A sponsored story would only appear on the news feeds of the friends of the member whose endorsement was used."

Facebook didn't pay for the endorsements or advise members that their 'likes' were being used.

Douez claims the use of her image and name in a sponsored story is a violation of B.C.'s Privacy Act, which says consent is needed to use the "name or portrait" of another person for advertising or promotion.

The case climbed to the Supreme Court of Canada over the issue of jurisdiction: Facebook argued that the case would best be heard in California, where the company has its head office.

But Canada's top court found a need to deal with "quasi-constitutional privacy rights" in the province where class members live. The judges also cited the "grossly uneven bargaining power" between the parties.

What is a 'real name' anyway?

In the latest appeal, Facebook argued that certain terms of the class definition were vague. At one point, the company argued that talking about "real" names was difficult in a forum where people frequently use nicknames.

The company also claimed that the issue of consent could not be determined on a class-wide basis.

But the appeal court said "much of the experience of Facebook users is common," including the way terms of use are presented and the way settings and new programs are communicated.

The appeal court's ruling means the class action lawsuit will now return to B.C. Supreme Court to deal with notice requirements and any other outstanding aspects of the certification.

The class action definition reached by the appeal court applies to:

"All British Columbia resident "natural persons who were Members of Facebook at any time in the period from January 1, 2011, to May 30, 2014, and:

• (a) who at any time during this period were registered with Facebook using their real name, or had a profile picture that included an identifiable self-image, or both; and
• (b) whose real name, identifiable portrait, or both were used by Facebook in a Sponsored Story."

'No one else knows'

Douez says the wording means that pretty much any British Columbian who used Facebook at the time will be included, unless they opt out.

She says the lower courts have also previously determined the best way of notifying people: through Facebook.

"Because they're only ones who know who's been affected by the advertising campaign," she said. "No one else knows."

Facebook made its initial public offering in the same year Douez first filed.

The company's shares have been rocked by recent revelations about privacy breaches during the run-up to the 2016 presidential election involving the use of Facebook data to build psychological profiles of voters.

But this week, they returned to pre-scandal levels.

A previous class action lawsuit over sponsored stories resulted in a $20 million settlement in the United States. The company dropped the program the following year.

According to the appeal court ruling, Facebook has not filed a response to Douez' claim.

But the decision says the company "will allege that Facebook members consented to the use of their names and portraits in advertising as a result of their acceptance of the social network's terms of use, as well as by other online actions they performed."