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UPDATE - July 25, 2018

On May 10, 2018, the Court of Appeal of British Columbia released its decision to certify the proceeding. The class definition is as follows:

All British Columbia resident natural persons who were Members of Facebook at any time in the period from January 1, 2011, to May 30, 2014, and:

  1. who at any time during this period were registered with Facebook using their real name, or had a profile picture that included an identifiable self-image, or both; and
  2. whose real name, identifiable portrait, or both were used by Facebook in a Sponsored Story.

The Court of Appeal did not make any changes to the common issues certified by the chambers judge. The common issues are as follows: 

Issue 1

What if any Online Actions taken by a Class Member on the Facebook service would constitute express or implied consent to the Class Member’s name or portrait being used in a Sponsored Story, such that it constitutes consent within the meaning of s. 3(2) of the Privacy Act, R.S.B.C. 1996, c. 373?

Issue 2

Is a tort under s. 3(2) of the Privacy Act provable as an independent tort without regard to the elements of s. 1(2) and (3) of the Privacy Act?

Issue 3

Were all or only some Sponsored Stories for the purpose of advertising or promotion within the meaning of s. 3(2) of the Privacy Act?

Issue 4

Does the Privacy Act apply to Facebook in relation to BC residents who used Facebook’s services?

Issue 5

Are Class Members entitled to damages without individual proof of damage pursuant to s. 3(2) of the Privacy Act?

Issue 6

Can the amount of damages be determined on an aggregate basis; if so, in what amount?

Issue 7

Does the Defendant’s conduct justify an award of punitive damages in favour of the Class; if so, in what amount?

Issue 8

Is the Defendant liable to pay interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79; if so, in what amount?

Click [here] to read the judgment.

Justice Iyer of the Supreme Court of British Columbia has been assigned as the Judicial Management and Trial Judge in the matter.

The Judicial Management Conference has been scheduled for September 7, 2018.


UPDATE – August 25, 2017

The Court of Appeal will hear submissions on certification on December 15, 2017.

Click [here] to read the plaintiff’s/respondent’s supplemental factum and [here] to read the defendant’s/ appellant’s supplemental factum.


UPDATE – June 23, 2017 

The Supreme Court of Canada allowed the plaintiff’s appeal and overturned the British Columbia Court of Appeal’s decision to enforce the forum selection clause. The Supreme Court of Canada held that the action can proceed in British Columbia Supreme Court.

The plaintiff and defendant will return to the Court of Appeal to make arguments on certification, as the Court of Appeal did not previously make a decision on this issue.

Click [here] to read the Supreme Court of Canada’s decision. 


UPDATE – March 10, 2016

The plaintiff’s application for leave to appeal to the Supreme Court of Canada was granted. The appeal will be heard in Ottawa, Ontario on November 4, 2016.


UPDATE – June 19, 2015

The Court of Appeal overturned the British Columbia Supreme Court’s decision certifying the action. The Court of Appeal held that the forum selection clause in Facebook’s terms of use should be enforced and stayed the action. This forum selection clause requires lawsuits against Facebook to be brought in Santa Clara, California. The Court of Appeal held that the plaintiff can pursue the action in California. Because the Court held that the action cannot be pursued in British Columbia, the British Columbia Supreme Court’s decision on certification was held to be moot.

Click [here] to read the Court of Appeal’s decision.

The plaintiff is applying for leave to appeal this decision to the Supreme Court of Canada.