On January 27, 2022, the Supreme Court of British Columbia (the Court) issued its decision in Chow v Facebook, Inc., 2022 BCSC 137 (Chow), declining to certify a class action lawsuit against Facebook.
In Chow, the representative plaintiffs (the Plaintiffs) brought an action against Facebook, alleging that Facebook had “extracted call and text data from users of its applications for its own purposes and without the knowledge or consent of the users.” The Plaintiffs sought certification of their action as a class proceeding, as they alleged that this “scraping” practice of Facebook was in breach of British Columbia’s Privacy Act, and affected a class that consisted of “all persons in Canada who used the Facebook Messenger app on smartphones running the Android [operating system] between 2011 and October 2017.” Facebook opposed the certification application on the basis that the Plaintiffs failed to establish any of the criteria for certification set out in British Columbia’s Class Proceedings Act.
In determining whether the Plaintiffs’ claims met the requirements for certification, the Court reviewed the Plaintiffs’ pleadings. The Court concluded that the Plaintiffs’ sufficiently pleaded the essential elements of the statutory tort for breach of privacy under Section 1 of the Privacy Act. However, the Court found that the Plaintiffs failed to establish the essential elements of: (i) the tort to use the name or portrait of a person without their consent under Section 3(2) of the Privacy Act; (ii) the unjust enrichment claim; or (iii) the tort of unlawful means.
The Court then determined whether the Plaintiffs’ claim that Facebook’s actions were a breach of privacy under Section 1 of the Privacy Act raised any common issues; which is a requirement for certifying an action as a class proceeding. The Court concluded that the Plaintiffs’ claim that Facebook’s conduct was a breach of privacy did not raise any common issues, since the determination of whether there was a breach of privacy under Section 1 of the Privacy Act “requires consideration of the specific context in which an act or conduct occurs and the individual circumstances of the person claiming a breach.”
Ultimately, the Court dismissed the Plaintiffs’ application to certify their action as a class proceeding. The Court also held that even if the Plaintiffs had met the common issues requirement, a class proceeding was not the preferred procedure, as the Plaintiffs failed to present any evidence that there was any actual loss or harm to the Plaintiffs or to the proposed class members.
Summary By: Olalekan (Wole) Akinremi
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