Supreme Court clears way to B.C. class-action against Facebook
Published Friday, June 23, 2017 9:54AM EDT
Last Updated Saturday, June 24, 2017 10:55AM EDT
Deborah Douez brought a lawsuit against Facebook over a now-defunct advertising format that saw her name and profile photo featured in “sponsored stories” from companies she had ‘liked’ on the website.
She alleged her name and profile photo were used without her permission and the ads were sometimes displayed on her friends’ Facebook newsfeeds.
A lower court judge in British Columbia declined to enforce the clause and certified a class-action lawsuit. But that was reversed by the B.C. Court of Appeal.
In a 4-3 decision issued on Friday, the Supreme Court ruled that clause unenforceable in Canada.
Douez said she was “thrilled and delighted” by the ruling.
“It’s been five years getting to this point. So very pleased with the decision,” Douez told CTV News Channel on Friday.
Lawyer: Decision is ‘vindication’
Douez’s proposed class-action lawsuit includes all B.C. residents who had their name or picture used in sponsored stories. The estimated size of the class is 1.8 million people. Ultimately, the class-action suit intends to seek damages based on a claim that the format violated B.C.'s Privacy Act.
The B.C. woman said that bringing the case forward, for her, was a point of principle.
“I brought it because I felt like I had to stand up for something that I thought was wrong,” she said.
Douez said it’s taken her years of careful research to fully understand the complex legal framework around companies’ terms and conditions.
“So I can certainly appreciate the fact that most Canadians don’t understand how terms and conditions and their clicking ‘yes’ to them actually means,” she said. ”I think the reality of today is that people just won’t read terms and conditions. It’s too onerous. It’s too complicated.”
Despite the lengthy case, Douez said it’s “all been worth it” for the Supreme Court ruling.
Douez’s lawyer, Christopher Rhone, said the case is particularly important for the rights of consumers.
“It’s a vindication for all British Columbians, and Canadians actually, that their consumer rights will be protected in British Columbia and that these national and international corporations can’t force people to go abroad to distant locations to enforce their rights,” he said.
Judges decry ‘grossly uneven bargaining power’
Teenagers as young as 13 can create a Facebook account. Rhone says many of those young people may not fully understand the terms and conditions they’re agreeing to when they sign up.
“You can’t expect a child to understand what these clauses mean. You can’t expect the average Canadian to understand what they mean,” he said.
In the decision, the justices ruling in favour of Douez wrote that she “established strong reasons not to enforce the clause at issue here.”
"The grossly uneven bargaining power between the parties and the importance of adjudicating quasi-constitutional privacy rights in the province are reasons of public policy that are compelling, and when considered together, are decisive in this case."
Writing on behalf of the dissenting three justices, Chief Justice Beverley McLachlin and Justice Suzanne Cote said they saw no reason to depart from established international law upholding forum selection clauses.
"We agree with the Court of Appeal of British Columbia that strong cause has not been shown and that the action must be tried in California, as the contract requires," they wrote.
The case now returns to British Columbia for a trial on the merits of the claim.