Who wants to sue Facebook?

you really like this!Well I am sure we’d all like to sue FB to get a piece of that sweet, sweet cash. A woman in Vancouver has actually gone ahead with it though, and in fact is representing a whole bunch of people in a class action, so maybe you can get in on it! Let’s break down what’s going on and see if we could do something like this in Quebec, where hopefully I’ll be your lawyer. I want that sweet, sweet cash too!

Debbie Douez was just hanging out on FB like we all do to varying degrees, when she “liked” a FB group called “cool entrepreneurs.” Like we’ve all done a hundred times. What happened then is that Ms. Douez’ name and picture popped up in her friends’ “sponsored stories” feed as an advertisement saying she liked the group. Ms. Douez believes that FB has used her image without her permission, and is suing them. Not only that, her very smart lawyers have decided that a bunch of other people in B.C. must have had this happen to them too, so they made it a class action lawsuit when they filed this last week. Ch-ching!

So what is the basis for the claim? Well, you can read the statement of claim if you like, or trust that my legal skills are good enough after I’ve read it to explain it to you. Tough choice I know. Anyway, the suit is based on section 3(2) of the B.C. Privacy Act, which reads:

It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

So that seems pretty straightforward, though you’re probably asking what a “tort” is. Simply speaking, it is how you can sue someone when there is no contract in 9 out of 10 Canadian provinces (guess which one is different). A classic tort is “negligence.” For example, you own a bar and fail to clean up a bunch of broken beer bottles on the floor, and someone injures themselves on the glass. You get sued.

No doubt you guessed that Quebec is the one province without torts. So could a lawsuit like this happen in Quebec? Why, yes! In fact, Quebec has traditionally been one of the strongest jurisdictions when it comes to protecting your privacy regarding your name or your image. That comes from the Civil Code of Quebec, which is our most important law. Article 3 gives you a right to privacy, and then article 36 gives us the money shot for a lawsuit like this:

36. The following acts, in particular, may be considered as invasions of the privacy of a person:
(…)
(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;

Bingo! So in both B.C. and Quebec, someone cannot use your image without your permission. Let’s get that Quebec class action rolling, people!

But wait a second. As usual, I will play Devil’s advocate. Or Facebook’s advocate (same diff?). When you join FB, like just about any website, you are automatically bound by their privacy policy and terms of use. So what do those policies say about these sponsored stories? Well, they’re pretty clear:

Many of the things you do on Facebook (like “liking” a Page) are posted to your Wall and shared in News Feed. But there’s a lot to read in News Feed. That’s why we allow people to “sponsor” your stories to make sure your friends see them. For example, if you RSVP to an event hosted by a local restaurant, that restaurant may want to make sure your friends see it so they can come too. If they do sponsor a story, that story will appear in the same place ads usually do under the heading “Sponsored Stories” or something similar. Only people that could originally see the story can see the sponsored story, and no personal information about you (or your friends) is shared with the sponsor.

Hmm. Well the statement of claim doesn’t go into this, but you can bet the farm that FB’s defence to this claim will. By using FB, you are giving consent (admittedly implied consent, but that’s still consent) for FB to do what it says it will do in their policies, like create sponsored stories.

The lawsuit really only acknowledges that these sponsored stories are happening, without mentioning this FB policy. No surprise there, any good lawyer knows to leave out important facts if they don’t help the client. The claim goes on to say that FB makes money off these sponsored stories, and that Ms. Douez and all people like her deserve to share in that revenue.

Assuming this all goes forward (we’re only at step 1 here), I see a much bigger picture developing – whether someone giving implied consent because of what’s in a website’s policies is good enough. That’s a HUGE issue in my world. It’s pretty established (so far) that you are bound by a website’s terms, even if you don’t read them. But given what could be a very high profile lawsuit here, and people’s general dislike of Facebook’s often-Draconian policies, things might change.

Posted in: The Courts
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12 Responses to Who wants to sue Facebook?

  1. Rebecca Wilson says:

    Everyone should know by now that if you something on facebook or go to play their games or anything..they use your info, EVERYONE knows this so it is up to the idiot that clicks on to decide if they want their info released…grow up..anybody can sue for anything these days..and THAT is retarded! You could sue me if i spat out my gum and you stepped on it and stuck to the ground and fell..

  2. Hadulf says:

    Allen, once again, you make me curious…and the below comment is solely based on your rendition of the articles etc etc…

    Seriously, there’s a whole lot of interpretation to be done in here. For example, how can FB use the word “sponsor” (including the quotes) in their privacy policy to define said policy. What is the definition of “sponsor”? I can use “sponsor” whatever way I like (see : http://thesaurus.com/browse/sponsor?s=t). That is a flaw to me. FB might claim that “sponsor” is a person who helps. But Ms. Douez can surely define it as a benefactor.

    I may out to lunch on this one, but this policy is flaky because the term sponsor is not properly defined.

  3. Gregory Glass says:

    I am looking for an Attorney willing to file suit against Facebook for violating their own Terms of Service, Discrimination, Harassment and violating my freedom of speech, freedom of religion and my freedom to practice my religion.
    I have been repeatedly BANNED from FB for posting Bible scriptures, quotes of the Founding Fathers, and for my stand on issues like abortion, homosexual marriage and islam.
    I stand on my faith when I post such things, yet FB deems it ‘offensive’ while FB pages like “Jesus Christ and His Slut mother Mary”, F*** Jesus Christ”, F*** Jesus Believers”, etc. (I have photographic evidence of same, a LOT of pictures [screen shots]).
    FB has now banned and closed my account unless and until I provide government ID, and I refuse, they know who I am as I have been of FB for over 7 years!
    So, it is you or another Attorney, as I will not stop seeking a lawyer for a Class Action suit against them.
    570-624-9630

  4. Punit Patel says:

    I wish to sue facebook because they have deactivated my account saying it is inelegible. When I read through the content it mentions that an account will be regards as inelegible if you post porn, hate speech, sales, etc. I was using it only to stay connected with family and long lost friends. I havent heard from them yet for the reason to disable my account without informing nor are ready to give reason. I am in INDIA and I just need the route to screw these idiots so they never would dare to do this to anyone. If you dont want people to use your site just tell them and they will find an alternative for the same.

    Just guide me the route and I will make sure I make these idiots bleed.

    Punit P.

  5. Alex says:

    I want to sue facebook cause they are labeling my website as unsafe and has blocked it. My website is very safe, SSL secured. facebook is destroying my website’s reputation!

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