M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted onĚý on June 15, 2022.

On June 2, 2022, the Supreme Court of British Columbia (the Court) issued its decision in the ongoing class action matter,ĚýDouez v Facebook, Inc.,Ěý, holding that Facebook, Inc. (Facebook) was liable under several provincial privacy statutes for using class members’ likenesses without their consent.Ěý

As previously reported by the E-TIPS ÂŽ NewsletterĚý, the representative plaintiff (Douez) brought a class action lawsuit against Facebook, claiming that Facebook used class members’ names and images in its advertising program, Sponsored Stories, without proper consent and contrary to the privacy legislation of British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador (NFL).

Through Sponsored Stories, advertisers pay Facebook to associate their mark on Facebook’s social media website with users that performed certain social actions in connection with the advertiser (e.g. users who click the “like” button on the advertiser’s Facebook Page). ĚýFacebook’s software increases the likelihood that the user’s social connections would see the user’s name, image, and social interaction in association with the advertiser’s mark. ĚýThe Sponsored Stories were not displayed on the user’s home page and Facebook did not inform the user when their name and image was part of a Sponsored Story.

Prior to assessing the substantive issues, the Court addressed Facebook’s argument that the Court lacked jurisdiction to hear the case. ĚýFacebook argued that Manitoba’sĚýThe Privacy ActĚýand the NFL’sĚýPrivacy ActĚýexpressly designate the superior courts of their respective provinces to adjudicate privacy claims and the Court was prohibited from deciding on the matter. The Court did not agree with this interpretation, relying on the constitutional principle that no province has the right to legislate extraterritorially and the legislatures of Manitoba and NFL lack legislative competence to prohibit the Court.

The Court addressed the liability issues by way of summary trial, determining that Douez had established aĚýprima facieĚýbreach of the relevant privacy legislation and Facebook had the burden of proof to show that users provided valid consent. Facebook argued that users registering with Facebook’s social media website expressly consented to its terms of use, which included Facebook’s use of their information in Sponsored Stories. ĚýHowever, the Court found that express consent was not established because the terms of use did not clearly inform users that their information would be incorporated into Sponsored Stories. ĚýFurther, the Court held that Facebook could not establish a basis for implied consent as users were not informed when their information was used in Sponsored Stories.Ěý The Court held that the issue of remedies was “fact-intensive” and not suitable for summary trial, and therefore must be adjudicated at a conventional trial.

The post Facebook Held Liable For Using Personal Information Without Consent appeared first on IPOsgoode.

Photo by Ann H ()

Meena Alnajar is anĚýIPilogueĚýWriter, IP Innovation Clinic Fellow,Ěýand a 2L JD Candidate atĚýOsgoodeĚýHall Law School

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On February 11, 2022, a class action lawsuit against for double ticketing settled for $6 million dollars. People who used Airbnb for the first time since October 2015 may be eligible for up to $45 in credit. Vancouver resident filed the class action in 2017 on the basis that Airbnb appeared to charge Lin $122 a night for what he booked as a $108 night on the app. The act of charging a consumer the higher of two or more prices is known as and it is a criminal offence in Canada under Section 54 of the Competition Act. This class action signified that parties can be found guilty of double ticketing even in online spaces.

Double ticketing in Canadian law is described as charging a consumer the of two or more prices when it is expressed in the following ways: on a product (its wrapper or container), on anything attached to the product including anything on which the product is mounted for display or sale, on an in-store or other point-of-purchase display or advertisement. Online spaces, such as applications, are not explicitly included in that list as this section was first enacted in . The Section intends to prevent consumers from being by the prices they are charged. Interestingly, prices that are not in-store or at the point of purchase, such as newspaper ads, . This exclusion could give way to online sellers having different prices listed online, as these online prices appear to be neither in-store nor definitively at a point-of-purchase. The Airbnb class action helps clarify how courts may contemplate a Section 54 offence for online retailers.

In its initial arguments, claimed that double ticketing did not apply because the two prices for a single accommodation are the price of two different products. The first price reflects the actual accommodation offered by hosts to guests and the higher price is the listing service. found this pleading to be a mischaracterization of Airbnb’s own products and that it was not plain and obvious that these are two prices for two different products. Airbnb was found guilty of double ticketing, then the decision. On appeal in federal court, the parties reached a of $6 million dollars and Airbnb avoided admitting liability. Person(s) guilty of a Section 54 can face a maximum fine of up to $10,000 and/or a year’s imprisonment.

Justice Gascon also indicated that the class action’s Section 54 claim is and stretches Section 54’s potential interpretation. However, this class action is not the first Section 54 class action against online sales. On it was reported that a class action against WestJet for double ticketing was approved. In that action, the plaintiff argued that WestJet claimed in its published tariff that the would be free yet proceeded to charge passengers anyways. Businesses can take advantage of online sales by posting one price, then adding non-optional fees in the final checkout. The current provision, Section 54 of the Competition Act has not developed to include online price differences in the list of double ticketing offences. These emerging class actions demonstrate how case law can help adapt statutes to changing sale environments and serve as an expensive warning to retailers that hide fees to better market products online.

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He is seeking damages ofĚý$500 per email as well as an injunction to stop Google from scanning and collecting information until it receives explicit consent of all parties to email exchanges.

At issue is the process whereby Google collects valuable information from its email wing Gmail to learn more about users for the purposes of displaying consumer-contoured ads. The Ěýlists violation of copyright in Canada, the Privacy Act, as well as the Competition Act.

The claim: “Google’s activities include intentionally and systematically intercepting email sent to Gmail users by individuals who are not Gmail subscribers and whose emails are sent from non-Gmail email accounts. Google intercepts incoming emails to Gmail accounts in order to obtain the words, content, and meaning of the emails. The intercepted data within these emails and the use of this data has value to Google.”

At root of the claim is the use of the information taken and scanned without permission, and for the company’s ultimate financial gain.

“Among other things, Google increases its revenues from third party advertisers by displaying ‘targeted’ ads to consumers based upon data received from others. Google’s intercepting and taking of the data from the content of emails allows Google to avoid paying traffic acquisition costs – i.e. the costs it would normally pay to third party owners or providers for such data.”

There is also strong language about the lack of transparency demonstrated by Google in making available about how and why it gathers the information from Gmail.

“Google has failed or omitted to disclose or describe, either adequately or at all, the fact and the extent of Google’s interception, copying, retention, review and use of emails sent by the Class Members to Gmail account holders. The Class Members own copyright and more rights in the emails they draft, prepare, and send and in any other works attached thereto such as photographs, drawings, and sound recordings…”

Though Google Canada was to any media outlets, the Google Privacy Policy and the FAQ about Gmail give clues as to potential defenses.

In response to the question, “Is Google reading my mail?” the site ,

“No, but automatic scanning and filtering technology is at the heart of Gmail. Gmail scans and processes all messages using fully automated systems in order to do useful and innovative stuff like filter spam, detect viruses and malware, show relevant ads, and develop and deliver new features across your Google experience.”

Its frames the collection of information as a value-added for users.

“We collect information to provide better services to all of our users – from figuring out basic stuff like which language you speak, to more complex things like which ads you’ll find most useful or the people who matter most to you online.”

Unfortunately, as is bound to come out as a central issue, only those who subscribe to a Google or Gmail account have ever formally accepted Google’s privacy policy and waived rights via terms of service. The class in the BC civil action case will be exclusively individuals who have not consented to Google’s data scanning activities but who have sent email to a Gmail account.

The BC suit presents in Google’s “don’t be evil” mantra armour. Google this past summer to settle charges for misrepresenting privacy assurances. It’s also with the EU data protection commissioners who are concerned that Google is breaching EU privacy laws. Not to mention additional, class actions up the U.S.

American law professor Eric Goldman has the validity of the British Columbia lawsuit, largely because of what a holding for the plaintiffs would mean when applied to anti-virus or anti-spam software.

“If electronic scrutiny of private email constitutes an interception then all anti-spam software violates that as well … the same probably with virus checkers,” Goldman told Postmedia.

Though Goldman raises an interesting practical point, it’s unlikely that the judicial ramifications on the software industry warrant a reasonable counter-argument to the privacy and copyright concerns. The technology may be the same, but the application of that technology is so different that it merits a separate rights debate.

Personally, I am of the opinion that this case presents some valid concerns. Moreover, the solution to assuage these claimants’ concerns seems easy from a technology logistics perspective: Google should close the gap between the information it has permission to collect and what it does collect.

The plaintiff, Wayne Plimmer, is represented by Mike Wagner of

Denise Brunsdon is a JD/MBA candidate at Western University.

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