Who wants to sue Facebook?

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 something like what is tort law? 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.