The Supreme Court of Canada (SCC) announced March 10 that it will consider a case that hinges on whether Facebook’s online terms and conditions trump B.C.’s Privacy Act.
The case arose in 2014 when B.C. resident Deborah Douez sued Facebook for compensation after the social networking giant used her photo in a now-defunct advertising format known as “sponsored stories.”
Essentially that advertising format enabled Facebook advertisers to use in marketing material the likeness of Facebook users who had clicked like on corporate posts to Facebook.
Facebook applied for a stay of proceedings, arguing that case should not be heard in B.C. because its terms and conditions, which all users must agree to, stipulate that all legal actions and disputes must be heard in California.
British Columbia Supreme Court (BCSC) Justice Susan Griffin ruled that the case could indeed be heard in B.C. because the province’s Privacy Act has a clause that says all cases regarding the privacy of B.C. residents are to be heard in B.C.
She also ruled that the case could proceed as a class action lawsuit.
Facebook, which disclosed in court filings that 1.8 million British Columbians were featured in its “sponsored stories,” appealed her ruling.
The British Columbia Court of Appeal (BCCOA) sided with Facebook in 2015, when it ruled that the case should be heard in California.
Douez’ lawyer, Branch McMaster partner Christopher Rhone, told Business in Vancouver on March 10 that he believes that the SCC decided to hear the case because it has ramifications far beyond disputes about Facebook.
“These sorts of terms and conditions are fairly common” he said.
“The SCC doesn’t give reasons why they’re hearing cases but my suspicion is that they are concerned about this particular issue of whether these online terms can be used to trump statutory protection [from provincial legislatures.]”
Facebook lawyer, Osler partner Tristam Mallett, did not return BIV’s calls by press time.
While the SCC will decide the jurisdiction of the lawsuit, it may punt the case back to the BCCOA to confirm the BCSC ruling that the case should be a certified class action lawsuit. That's because Facebook appealed both on the jurisdiction and on whether the case should be certified. The BCCOA made no ruling on whether the case should be certified because it first deemed the case to be in the wrong jurisdiction.
The SCC is extremely unlikely to determine if damages are warranted. The likely place for that to be decided – if the case is deemed to be heard in Canada and the case is certified as a class action – will be back in the BCSC.
Here is the British Columbia Court of Appeal decision.
(Editor's follow-up: The SCC dismissed Douez' appeal here.)