Facebook and BC privacy rights: the Supreme Court of Canada decides to weigh in

By Rachel H Roy

Last week the Supreme Court of Canada decided to hear an appeal of a decision involving a B.C. woman and Facebook. Debbie Douez sued Facebook under the B.C. Privacy Act for using her name and profile picture in sponsored stories without her permission.

The B.C. Privacy Act is distinct from the province’s Personal Information Protection Act or Freedom of Information and Protection of Privacy Act and has existed for far longer. The Privacy Act gives British Columbians the right to sue for damages when their privacy has been unlawfully violated. Under the Privacy Act, people have been awarded damages ranging from $5,000 to $35,000 for breach of their privacy rights.

The Privacy Act specifically restricts the unauthorized use of the name or portrait of a person for the purpose of advertising without that person’s consent. Ms. Douez sued Facebook on the basis that their use of her name and profile picture in sponsored stories violated the Act. She also initiated a class action on behalf of other B.C. residents. The B.C. Court of Appeal essentially determined that she must sue Facebook in California instead of British Columbia and stayed her claim and the class action.

The case before the Supreme Court will focus on underlying legal issues related to the enforceability of California-based Facebook’s terms of use vis-à-vis British Columbia’s Privacy Act. However, the decision will have broader policy implications around the ability to pursue the benefits of protective statues enabled in the public interest here in B.C. courts, rather than in foreign jurisdictions as a result of accepting a technology provider’s terms of use.

The Supreme Court’s decision will deal with the issue of clashes between local legislation and the terms of use of foreign technology providers. The resulting decision may also have implications for other similar app or platform providers like Google, Uber, and others.

As a lawyer – and a privacy enthusiast - I‘ll be watching the outcome of this case very closely.