IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Douez v. Facebook, Inc.,  
2022 BCSC 914  
Date: 20220602  
Docket: S122316  
Registry: Vancouver  
Between:  
And  
Deborah Louise Douez  
Plaintiff  
Facebook, Inc.  
Defendant  
Before: The Honourable Justice Iyer  
Reasons for Judgment  
Counsel for Plaintiff, via videoconference:  
C. Rhone  
A. Sharon  
M. Sobkin  
S. McConnell  
Counsel for Defendant, via  
videoconference:  
M. Gelowitz  
T. Mallett  
D. Rankin  
A. Manasterski  
Place and Date of Trial:  
Vancouver, B.C.  
January 18-21, 24-28, 2022  
Place and Date of Judgment:  
Vancouver, B.C.  
June 2, 2022  
Douez v. Facebook, Inc.  
Page 2  
Table of Contents  
OVERVIEW................................................................................................................ 3  
HISTORY OF THE LITIGATION AND COMMON ISSUES....................................... 4  
JURISDICTIONAL CHALLENGE.............................................................................. 7  
SUITABILITY........................................................................................................... 15  
FACEBOOK AND SPONSORED STORIES........................................................... 18  
ANALYSIS OF LIABILITY COMMON ISSUES....................................................... 22  
Common Issue 1: Consent................................................................................... 24  
Who Bears the Burden of Proof?...................................................................... 24  
Express Consent .............................................................................................. 29  
Facebook’s Evidence on its Registration Process......................................... 29  
Interpreting the Terms of Use........................................................................ 30  
Implied Consent................................................................................................ 37  
Common Issue 2: Advertising or Promoting ......................................................... 38  
Common Issue 4 Damages without Individual Proof......................................... 39  
Resident Sub-Class Common Issue..................................................................... 39  
CONCLUSION......................................................................................................... 42  
Douez v. Facebook, Inc.  
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OVERVIEW  
[1]  
Deborah Douez, the representative plaintiff in this class action, applies for  
summary trial of the common issues that were certified by this court in 2014 and  
amended in 2019.  
[2]  
Briefly, the class claim is that Facebook, Inc. (“Facebook”) used class  
members’ names and images in its advertising program called Sponsored Stories  
(“Sponsored Stories”) without their consent, contrary to the privacy statutes of British  
Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador.  
[3]  
Facebook operates a global social networking site that facilitates the sharing  
of information and content between registered Facebook users (“Users”) for a wide  
variety of purposes. Users can create personal profile pages with information about  
themselves, including images, interests, and activities. They can share this  
information and communicate with other Users with whom they wish to associate  
(“Friends”) and can also interact with businesses, brands, and other organizations  
that have set up “Facebook Pages”.  
[4]  
Facebook offered Sponsored Stories to advertisers during the class period.1  
During that time, advertisers registered with Facebook (“Advertisers”) could pay  
Facebook to associate the Advertiser’s name or identifiable mark, often the  
thumbnail image from the Advertiser’s Facebook Page, with a User who performed  
certain social actions in connection with the Advertiser. Those social actions  
included “Liking” (clicking the “likebutton) on an Advertiser’s Facebook Page or  
other content, “Checking In” (clicking a button to signify the person was at the  
Advertiser’s establishment) or performing an “App Share” (clicking a button to signify  
the person was using or had used the Advertiser’s application). Facebook’s software  
would attach a banner to the social action such as “Sponsored”, as well as the  
Advertiser’s thumbnail icon. The software would increase the likelihood that the  
1 The class period runs from January 1, 2011 to May 30, 2014.  
 
Douez v. Facebook, Inc.  
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User’s Friends would see the Sponsored Story on their home pages, as compared to  
the likelihood that Friends would see the original social action.  
[5]  
Facebook did not display the Sponsored Story on the User’s home page and  
did not inform a User when their name and image were used to create a Sponsored  
Story.  
[6]  
The central issue in this litigation is whether Facebook’s Sponsored Stories  
program contravenes the privacy statutes of each of the four provinces set out in the  
Further Amended Notice of Civil Claim (“FANOCC”). However, Facebook challenges  
this court’s jurisdiction to determine the privacy claims under Manitoba’s and  
Newfoundland and Labrador’s privacy statutes. It also argues, with the exception of  
certain specific issues, that the matter is not suitable for determination by way of  
summary trial.  
[7]  
After setting out the history of the litigation and the certified common issues, I  
will address jurisdiction and suitability. Following that, I will describe Facebook and  
Sponsored Stories in more detail. I will then decide those common issues that are  
suitable for summary determination.  
HISTORY OF THE LITIGATION AND COMMON ISSUES  
[8]  
Ms. Douez filed her original Notice of Civil Claim in 2012. Facebook applied to  
have this court decline jurisdiction, arguing that the forum selection clause in its  
contract with Users (“Terms of Use”) made California the appropriate forum. Justice  
Griffin (as she then was) dismissed Facebook’s preliminary application: 2012 BCSC  
2097. Subsequently, she certified the action, defining the class and class period, and  
stating the common issues: 2014 BCSC 953 [Douez 2014].  
[9]  
Facebook appealed to the Court of Appeal, arguing that Justice Griffin had  
erred both in finding that the forum selection clause was unenforceable and in  
certifying the common issues. The Court of Appeal found that the forum selection  
 
Douez v. Facebook, Inc.  
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clause was enforceable and did not consider the challenge to certification of the  
common issues: 2015 BCCA 279 [Douez 2015].  
[10] Ms. Douez appealed to the Supreme Court of Canada. It allowed the appeal  
and held that the forum selection clause in the Terms of Use was unenforceable:  
2017 SCC 33 [Douez 2017]. As a result, the matter returned to the Court of Appeal  
for consideration of Facebook’s challenge to the certification order. The Court of  
Appeal upheld the certification order but amended one element of the class  
definition: 2018 BCCA 186 [Douez 2018]. Facebook applied for leave to appeal this  
decision, but the Supreme Court of Canada dismissed its leave application on March  
28, 2019: 2019 23874.  
[11] I was assigned as case management judge in June 2018. Ms. Douez said  
that she intended to amend her Notice of Civil Claim to include residents of  
Saskatchewan, Manitoba, and Newfoundland and Labrador in light of anticipated  
amendments to the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA] that would  
create an “opt-out” regime for multi-jurisdictional class actions commenced in British  
Columbia. Those amendments came into effect in November 2018.  
[12] I heard Ms. Douez’s application to amend in March 2019. Facebook opposed  
the application, but did not argue, as it now does, that the privacy statutes of  
Manitoba and Newfoundland and Labrador confer exclusive jurisdiction on the  
superior courts of those provinces to hear statutory claims of privacy breaches. I  
granted Ms. Douez’s application: 2019 BCSC 715.  
[13] The certification order now provides:  
Class Definition  
All British Columbia, Saskatchewan, Manitoba, Newfoundland and Labrador  
resident natural persons who were members of Facebook at any time in the  
period from January 1, 2011, to May 30, 2014, and:  
(a) 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  
Douez v. Facebook, Inc.  
(b) whose real name, identifiable portrait, or both were used by  
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Facebook in a Sponsored Story.  
The class is divided into a Resident Subclass consisting of members from  
British Columbia and a Non-Resident Subclass consisting of members from  
Saskatchewan, Manitoba, and Newfoundland and Labrador.  
Representative Plaintiff  
Ms. Douez is the representative plaintiff of both subclasses.  
Common Issues for the Class  
Issue 1: What if any Online Actions taken by a Class Member on 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:  
(a) the Privacy Act, R.S.B.C. 1996, c. 373 (the “British Columbia  
Privacy Act”), section 3(2)?  
(b) the Privacy Act, R.S.S. 1978, c. P-24 (the “Saskatchewan Privacy  
Act”), section 4(1)?  
(c) the Privacy Act, C.C.S.M. c. P125 (the “Manitoba Privacy Act”)  
section 5(a)?  
(d) the Privacy Act, R.S.N.L. 1990, c. P-22 (the “Newfoundland  
Privacy Act”) section 5(1)(a)?  
Issue 2: Were all or only some Sponsored Stories for the purpose of  
(a) advertising or promotion within the meaning of s. 3(2) of the British  
Columbia Privacy Act?  
(b) advertising or promoting the sale of, or any other trading in, any  
property or services, or for any other purposes of gain to the user  
within the meaning of section 3(c) of the Saskatchewan Privacy Act?  
(c) advertising or promoting the sale of, or any other trading in, any  
property or services, or for any other purposes of gain to the user  
within the meaning of s. 3(c) of the Manitoba Privacy Act?  
(d) advertising or promoting the sale of, or other trading in, property or  
services, or for other purposes of advantage to the user within the  
meaning of s. 4(c) of the Newfoundland Privacy Act?  
Issue 3:  
(a) Does the British Columbia Privacy Act apply to Facebook in  
relation to British Columbia residents who used Facebook’s services?  
(b) Does the Saskatchewan Privacy Act apply to Facebook in relation  
to Saskatchewan residents who used Facebook’s services?  
(c) Does the Manitoba Privacy Act apply to Facebook in relation to  
Manitoba residents who used Facebook’s services?  
Douez v. Facebook, Inc.  
(d) Does the Newfoundland Privacy Act apply to Facebook in relation  
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to Newfoundland and Labrador residents who used Facebook’s  
services?  
Issue 4: Are Class Members entitled to damages without individual proof of  
damage pursuant to:  
(a) s. 3(2) of the British Columbia Privacy Act?  
(b) s. 2 of the Saskatchewan Privacy Act?  
(c) s. 2(2) of the Manitoba’s Privacy Act?  
(d) s. 3(1) of the Newfoundland Privacy Act?  
Issue 5: Can the amount of damages be determined on an aggregate basis; if  
so, in what amount?  
Issue 6: Does the Defendant’s conduct justify an award of punitive damages  
in favour of the Class; if so, in what amount?  
Issue 7: Is the defendant obligated to account to the plaintiff for any profits  
that accrued to the defendant by reason or in consequence of the  
unauthorized use of Class members’ name and/or portraits, pursuant to (a)  
the common law or principles of equity applicable in British Columbia; (b) s.  
4(1)(c) of the Manitoba Privacy Act, (c) s. 7(c) of the Saskatchewan Privacy  
Act, and (d) s. 6(1)(c) of the Newfoundland Privacy Act?;  
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?  
Common Issue for the Resident Subclass  
Is a tort under s. 3(2) of the British Columbia Privacy Act provable as an  
independent tort without regard to the elements of s. 1(2) and (3) of the  
British Columbia Privacy Act?  
[14] I do not need to decide common issue 3, as it is no longer disputed that the  
four privacy statutes apply to Facebook in relation to residents of their respective  
provinces.  
[15] The parties raised various evidentiary objections, including to the experts  
tendered by the other. In light of my determination on suitability, it is not necessary  
to address those objections. I have not relied on expert reports because they are  
unnecessary to the issues I have determined I should decide.  
JURISDICTIONAL CHALLENGE  
[16] Facebook argues that Manitoba’s The Privacy Act [MPA] and the  
Newfoundland and Labrador Privacy Act [NLPA] prohibit this court from adjudicating  
 
Douez v. Facebook, Inc.  
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claims under those statutes. It points to the fact that each statute expressly  
designates the superior court of the province to adjudicate claims for breach of each  
act:  
MPA, s. 1(1):  
"court" means the Court of Queen's Bench except in section 5 where it  
means any court and includes a person authorized by law to take evidence  
under oath acting for the purposes for which he is authorized to take  
evidence; (« tribunal »)  
NLPA, s. 8:  
An action for violation of privacy shall be heard and determined by the Trial  
Division.  
[17] Similarly, s. 4 of the BC Privacy Act [BCPA] provides that actions for  
breaches of rights created by that statute must be heard and determined by the BC  
Supreme Court.  
[18] Whether this court has jurisdiction depends on whether these exclusive  
jurisdiction clauses function only to exclude other courts in the particular province  
(such as the provincial court) or also exclude the superior courts of other provinces.  
The law on this point is unsettled.  
[19] At the outset, it is important to distinguish between the primary question of  
whether a court has jurisdiction from the secondary question of whether it ought to  
exercise the jurisdiction it has. The concepts of territorial jurisdiction (or jurisdiction  
simpliciter) and subject matter jurisdiction relate to the first question. The concept of  
forum non conveniens relates to the second. Keeping these two concepts separate  
is crucial: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 101 [Van Breda].  
[20] The Court of Appeal discussed the distinction between territorial and subject  
matter jurisdiction in Conor Pacific Group Inc. v. Canada (Attorney General), 2011  
BCCA 403 at para 38:  
[38]  
It is important to appreciate the distinction between territorial  
jurisdiction and subject-matter jurisdiction. Territorial jurisdiction, known at  
common law as jurisdiction simpliciter, is concerned with the connection  
between the dispute and the court’s territorial authority. A Canadian court  
may only assume territorial jurisdiction over a proceeding where there is a  
Douez v. Facebook, Inc.  
real and substantial connection between the action and the territory over  
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which the court exercises jurisdiction: Morguard Investments Ltd. v. De  
Savoye, [1990] 3 S.C.R. 1077; Hunt v. T&N plc, [1993] 4 S.C.R. 289. In  
contrast, subject-matter jurisdiction is concerned with the court’s legal  
authority to adjudicate the subject-matter of the dispute. For example, the  
Provincial Court does not have subject-matter jurisdiction with respect to  
claims for libel, slander or malicious prosecution: Small Claims Act, R.S.B.C.  
1996, c. 430, s. 3(2).  
See also the definition of these terms in the Court Jurisdiction and  
Proceedings Transfer Act, S.B.C. 2003 c. 2 [CJPTA], s.1.  
[21] Subject matter jurisdiction refers to situations where a statute restricts a  
court’s authority over matters such as the nature of the dispute or the amount in  
issue, where it confers exclusive jurisdiction to a particular decision-making body, or  
situations where the subject matter relates to a foreign immovable property: Swain v.  
MBM Intellectual Property Law LLP, 2013 BCSC 1050 at para. 15. It is often defined  
in the negative, as relating to all aspects of a court’s jurisdiction other than territorial  
jurisdiction: Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s.1.  
The classic example is where a member of a union attempts to bring an action in a  
superior court that arises, expressly or implicitly, out of a collective agreement. In  
those circumstances, a labour arbitrator has exclusive subject matter competence  
over the dispute, and the superior court must stay the action: see, for example,  
Bisaillon v. Concordia University, 2006 SCC 19 at para. 33.  
[22] Facebook relies on a line of Ontario cases holding that legislative conferral of  
subject matter jurisdiction to a particular court means that that all other courts,  
including the superior courts of other provinces, do not have jurisdiction over that  
subject matter.  
[23] In Gould v. Western Coal Corp., 2012 ONSC 5184, the Ontario plaintiffs were  
attempting to certify an oppression claim under s. 227 of BC’s Business  
Corporations Act, S.B.C. 2002, c. 57 [BCA]. That section permits shareholders to  
seek an oppression remedy in the Supreme Court of British Columbia. The  
defendants argued that the Ontario court had no jurisdiction to determine an  
oppression claim under the BCA.  
Douez v. Facebook, Inc.  
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[24] Justice Strathy (as he then was) observed:  
[327] The fact that a court may have territorial jurisdiction over a particular  
party in relation to a particular cause of action cannot give it jurisdiction over  
that party in relation to a subject matter that is outside its jurisdiction.  
[25] After reviewing a line of cases holding that oppression claims must be  
litigated in the corporation’s home province, Strathy J. concluded that the Ontario  
court did not have subject matter jurisdiction to adjudicate an oppression claim under  
the BC BCA:  
[338] ... Where the law of another province is the proper law, there is no  
question that an Ontario court is entitled to apply that law, just as it is entitled  
to apply the law of another foreign jurisdiction, based on conflict of laws  
principles, in an appropriate case. There is a difference, however, between  
applying another jurisdiction’s law and assuming an adjudicative jurisdiction  
that can only be exercised by a court of another province or state. The  
constraint is more than just comity, in my view. It is a matter of constitutional  
competence.  
[339] The oppression remedy applicable to this dispute is a creation of a  
British Columbia statute. The statute confers the remedy and describes the  
manner in which it is to be enforced. I have no jurisdiction to grant the remedy  
because the statute expressly grants jurisdiction to the British Columbia  
Superior Court. It is irrelevant that the defendants may be otherwise subject  
to this court’s jurisdiction, or may have attorned to the jurisdiction. I have no  
jurisdiction over the subject matter. The oppression claim should therefore be  
struck.  
[Emphasis added.]  
[26] In Del Giudice v. Thompson, 2021 ONSC 5379 and Obodo v. Trans Union of  
Canada, Inc., 2021 ONSC 7297, the Ontario Superior Court of Justice relied on  
Gould to find that Ontario superior courts do not have jurisdiction to consider  
statutory privacy tort claims in BC, Manitoba, and Newfoundland and Labrador. Both  
cases also referred to constitutional constraints. In Del Giudice, Perell J. reasoned  
(at paras. 156-157):  
[156] Where a class action is brought in Ontario on behalf of a national  
class, it has become a convention to include statutes from other provinces  
and territories and from the federal government that may be available to the  
Class Members. In the immediate case, the Plaintiffs plead the privacy  
statutes from the provinces and territories and the Charter. Capital One and  
Amazon Web assert, however, that this court does not have jurisdiction with  
respect to three provinces (British Columbia, Manitoba, and Newfoundland  
Douez v. Facebook, Inc.  
and Labrador) because the statutes in those provinces expressly confer an  
Page 11  
exclusive jurisdiction on the domestic provincial court.  
[157] There is merit to the Defendants’ submission. As a constitutional law  
principle, it is plain and obvious that this court has no jurisdiction with respect  
to the privacy statutes of British Columbia, Manitoba, and Newfoundland and  
Labrador.  
[Emphasis added.]  
[27] In Obodo, Justice Glustein reached the same conclusion, relying on Del  
Giudice and Gould: at paras. 187-203. He noted that, while some courts have  
certified common issues based on the privacy statutes of BC, Manitoba and  
Newfoundland, the issue of subject matter jurisdiction was not raised.  
[28] Unfortunately, neither Del Giudice nor Obodo considered Douez 2015 or  
Douez 2017. While this is understandable because Douez (at that point) was a  
forum non conveniens case, the reasoning of the Court of Appeal and some judges  
of the Supreme Court of Canada in Douez cannot be reconciled with the Ontario  
cases.  
[29] As I have indicated, Douez 2015 and Douez 2017 raised a forum non  
conveniens question. At that time, the proposed class was confined to BC Facebook  
users. One of the claims was for breach of the BCPA, and Facebook applied to stay  
the class action on the basis that the forum selection clause in the Terms of Use  
required the dispute to be resolved in California and under California law. In other  
words, it was clear that the BC Supreme Court had both territorial and subject matter  
jurisdiction and the issue was the secondary question of whether, despite having  
jurisdiction, the BC court ought to decline to exercise it because of the forum  
selection clause.  
[30] Justice Griffin relied on the Gould line of cases to conclude that the BCPA  
reflected a legislative intention that statutory privacy breaches be determined by this  
Court, to the exclusion of courts of all other jurisdictions She found that this was a  
sufficiently strong cause to override the forum selection clause: Douez 2014 at  
60-106.  
Douez v. Facebook, Inc.  
Page 12  
[31] The Court of Appeal reversed Douez 2014 on this point. Chief Justice  
Bauman found that the BCPA could not override a contractual forum selection  
clause selecting a different jurisdiction without violating the constitutional principle of  
territoriality, which limits the legislative power of each province to its territory: Douez  
2015 at para. 52. Interpreting the BCPA as depriving California courts of jurisdiction  
over the dispute would amount to giving the B.C. Legislature powers beyond its  
constitutional competence.  
[32] Bauman C.J.B.C. considered Gould as follows:  
[59]  
In my view, the cases relied on by Ms. Douez do not assist her. In the  
instant case the judge concluded that s. 4 of the Privacy Act operates to  
deprive California courts of territorial competence over this proceeding.  
However, in Voyage (at para. 12) and Incorporated Broadcasters (which was  
appealed, 63 O.R. (3d) 431 (C.A.); see paras. 72-73), the court was  
persuaded by an analogous statutory provision that it was forum non  
conveniens. The court did not find that the provision deprived it of territorial  
competence. Forum non conveniens and territorial competence are distinct  
issues, so these cases are of no assistance.  
[60]  
Though it is not entirely clear, Gould may also have been decided on  
the basis of forum non conveniens. Mr. Justice Strathy, now Chief Justice of  
Ontario but then a justice of the Superior Court, reasoned as follows (at para.  
339):  
The oppression remedy applicable to this dispute is a creation of a  
British Columbia statute. The statute confers the remedy and  
describes the manner in which it is to be enforced. I have no  
jurisdiction to grant the remedy because the statute expressly grants  
jurisdiction to the British Columbia Superior Court. It is irrelevant that  
the defendants may be otherwise subject to this court’s jurisdiction, or  
may have attorned to the jurisdiction. I have no jurisdiction over the  
subject matter.  
[61]  
I would have interpreted this passage as holding that B.C. legislation  
deprived the Ontario court of jurisdiction. However, in Kaynes v. BP, 2014  
ONCA 580 at para. 47, the Ontario Court of Appeal interpreted Gould to be a  
forum non conveniens case rather than a jurisdiction case. Gould was cited  
for the proposition that, as part of the forum non conveniens analysis, the  
court must consider whether the alternate forum claims exclusive jurisdiction  
for itself. If this is the correct interpretation of Gould, it is of no assistance to  
Ms. Douez.  
[62]  
Even if Gould did hold that B.C. law applied extraterritorially in  
Ontario, this would not assist Ms. Douez. She needs to satisfy the Court that  
B.C. law applies extraterritorially in California. Gould, dealing as it does with  
Ontario law, cannot establish such a proposition. Nor can Nord Resources  
(New Brunswick law), Zi Corp (Alberta law) or Ironrod (also Ontario law).  
Douez v. Facebook, Inc.  
[63] In other words, even if some states consider the laws of other states  
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to be binding in their territory, Ms. Douez has not provided any evidence that  
California is such a state. As a matter of B.C. law, no state (including B.C.)  
may unilaterally arrogate exclusive adjudicative jurisdiction for itself by  
purporting to apply its jurisdictional rules extraterritorially. If Ontario, New  
Brunswick or Alberta law provides otherwise, that tells us nothing about  
California.  
[64]  
In the absence of evidence to the contrary, I must conclude that Santa  
Clara courts determine for themselves, using California law, whether they  
have territorial competence over any given proceeding. Santa Clara courts  
would presumably consider B.C. law and have due regard to comity, but  
nothing enacted by the B.C. Legislature can bind the courts of Santa Clara  
unless California so chooses.  
[65]  
Therefore, I agree with Facebook that s. 4 must be interpreted to  
mean that the B.C. Supreme Court has jurisdiction to the exclusion only of  
other courts in B.C., not other courts worldwide.  
[Emphasis added.]  
[33] In Douez 2017, the Supreme Court of Canada overturned Douez 2015 on the  
issue of whether the plaintiff had established “strong cause” not to enforce the forum  
selection clause. The court did not decide whether the BCPA confers subject matter  
jurisdiction on the BC Supreme Court to the exclusion of all other BC courts or of all  
courts everywhere. The judges that did discuss the issue disagreed.  
[34] Chief Justice McLachlin and Côté J., writing in dissent for themselves and  
Moldaver J., wrote that, “[s]ection 4 of the Privacy Act grants the Supreme Court of  
British Columbia subject matter jurisdiction over Privacy Act claims to the exclusion  
of other British Columbia courts”: at para. 142.  
[35] Writing for herself, Abella J. disagreed. In her view, the BCPA requires all  
claims under it to be heard in the Supreme Court of British Columbia (at para. 107):  
What s. 4 grants is exclusive jurisdiction to the Supreme Court of British  
Columbia to the exclusion not only of other courts in British Columbia, but to  
the exclusion of all other courts, within and outside British Columbia. That is  
what exclusive jurisdiction means.  
[36] In my respectful opinion, this issue must be resolved by constitutional  
principles. Provincial legislatures lack constitutional competence to prohibit courts  
outside the province from adjudicating claims arising under provincial statutes. This  
is because of the constitutional principle that no province has the right to legislate  
Douez v. Facebook, Inc.  
Page 14  
extraterritorially: Unifund Assurance Co. v. Insurance Corp. of British Columbia,  
2003 SCC 40 at paras. 50-51; British Columbia v. Imperial Tobacco Canada Ltd.,  
2005 SCC 49 at paras. 26-27. This principle grounds the presumption of statutory  
interpretation that “legislation is not intended to apply extra-territorially to persons,  
things or events outside the boundaries of the jurisdiction”: R. Sullivan, Sullivan on  
the Construction of Statutes, 6th ed (Markham, ON: LexisNexis, 2014) at 839; see  
also R. v. Jameson, [1896] 2 Q.B. 425 at 430.  
[37] That means that provincial legislatures do not have the power to enact laws  
that prohibit courts beyond their borders from adjudicating disputes and that courts  
must not interpret provincial statutes to have such extraterritorial effect.  
[38] However, as the Supreme Court of Canada cautioned, “it is important not to  
conflate the adjudicative competence of provincial superior courts with the legislative  
competence of the province”: Newfoundland and Labrador (Attorney General) v.  
Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 at para. 16.  
[39] Section 96 of the Constitution Act, 1867 is the source of the adjudicative  
jurisdiction of provincial superior courts. No province can legislate to remove part of  
a superior court’s core or inherent jurisdiction: Trial Lawyers Association of British  
Columbia v. British Columbia (Attorney General), 2014 SCC 59 at para. 30. Section  
96 necessarily grants the superior courts of each province the power to adjudicate  
disputes arising under statutes of other jurisdictions, including other provinces. If that  
were not the case, forum non conveniens questions would never arise because the  
assumption underlying forum non conveniens analysis is that a superior court has  
such jurisdiction, which then gives rise to the secondary question of whether it  
should exercise it.  
[40] It follows from this that the legislatures of Manitoba and Newfoundland and  
Labrador lack legislative competence to prohibit this court from adjudicating claims  
under their respective privacy acts, and that this court has adjudicative competence  
to do so. Whether it should do so in this case is a question to be decided through the  
forum non conveniens analysis.  
Douez v. Facebook, Inc.  
Page 15  
[41] However, Facebook has not raised a forum non conveniens objection. In Van  
Breda at para. 102, the Court confirmed that failure to do so means that a court that  
has jurisdiction must exercise it:  
Once jurisdiction is established, if the defendant does not raise further  
objections, the litigation proceeds before the court of the forum. The court  
cannot decline to exercise its jurisdiction unless the defendant invokes forum  
non conveniens. The decision to raise this doctrine rests with the parties, not  
with the court seized of the claim.  
[42] For these reasons, Facebook’s jurisdictional challenge fails.  
SUITABILITY  
[43] Facebook concedes that certain of the common issues are suitable for  
determination by summary trial. It describes these as (a) whether class members  
expressly consented to the Terms of Use by registering for Facebook (a sub-issue  
under common issue (1)); (b) whether class members are entitled damages without  
individual proof of damage under each of the privacy statutes (common issue 4); and  
(c) whether the tort created by s. 3(2) of the BCPA is provable independent of the  
considerations in ss. 1(2) and (3) (resident sub-class common issue).  
[44] Ms. Douez says all of the common issues can and should be decided  
summarily.  
[45] Rule 9-7(11) authorizes the court to decide whether a proceeding or some  
part of it is suitable for determination by way of summary trial, that is, a trial in which  
evidence is tendered in written form, not orally. The parties agree that the factors  
relevant to this determination are set out in two cases: Inspiration Management Ltd.  
v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.) and Gichuru v.  
Pallai, 2013 BCCA 60. In general, a case will be decided summarily if the court is  
able to find the facts necessary for that purpose, even if there are disputed issues of  
fact and/or law as long as it is not unjust to do so. In determining whether a  
summary trial would be unjust, the court should consider (Gichuru at paras. 30-31):  
The amount involved,  
 
Douez v. Facebook, Inc.  
The complexity of the matter,  
Page 16  
Urgency  
Any prejudice that may arise from delay  
The cost of a conventional trial in relation to the issues involved  
The cost of the litigation  
The time of the summary trial,  
Whether credibility is a critical factor,  
Whether the summary trial would create unnecessary  
complexity, and  
Whether proceeding summarily will result in litigating in slices.  
[46] There is no question that the amount involved in this case is large: Ms. Douez  
seeks between $830 million and $2.1 billion under various heads of damage. As  
measured by the volume of material before me, the matter is complex: there are 29  
affidavits, with exhibits including cross-examination transcripts comprising just under  
14,000 pages, and 400 cited authorities, comprising just under 16,000 pages. There  
are about 540 pages of written submissions, and the summary trial took ten days.  
Facebook estimated that a conventional trial would take about six months.  
Ms. Douez did not disagree. Whether credibility is a critical issue is disputed.  
[47] Taken on their own, these facts might suggest that a conventional trial is  
essential. However, I must also bear in mind the access to justice purposes  
underlying the CPA, the fact that a class proceeding necessarily entails a multi-step  
litigation process, and that Facebook agrees that some issues are suitable for  
summary determination.  
[48] I consider that all of the liability common issues (issues 1, 2, 4, and the  
resident sub-class common issue) are amenable to summary resolution. None  
require consideration of voluminous or conflicting evidence. Deciding these issues  
now will move the litigation forward significantly and may assist in its resolution.  
[49] Common issue 1 calls for an assessment of whether any of a limited number  
of online actions taken by a User constitutes express or implied consent to having  
Douez v. Facebook, Inc.  
Page 17  
their name or portrait used in a Sponsored Story within the meaning of “consent” as  
defined in the various privacy acts. The online actions relevant to consent are  
registering to become a Facebook user and the social actions, such as “like”,  
“check-in” and “App Share” that Facebook can use to create a Sponsored Story.  
[50] Facebook agrees that express consent can be decided on a class-wide basis.  
That determination requires me to find facts with respect to the registration process  
and social actions, few of which are disputed, and to interpret relevant provisions of  
the Terms of Use. Although there is some disagreement about how a Sponsored  
Story is generated and what it contains, these are relatively simple factual issues,  
and are amenable to resolution without extensive review of the evidence. The  
question of who bears the onus of proof of consent is a question of statutory  
interpretation.  
[51] Facebook agrees that, as consent can be implied from a User’s social  
actions, implied consent can be found on a class wide basis. While Facebook  
argues that the converse is not true because proof of absence of implied consent  
requires an individual inquiry into all of the circumstances, the issue of who bears  
the onus of proof of consent (or non-consent) is also disputed. I accept that who  
bears the onus of proof is amenable to class-wide determination and that it is  
possible that implied consent may also be determined on a class-wide basis.  
[52] Facebook’s submissions on common issue 2, whether all or some of the  
Sponsored Stories were for the purposes set out in the various privacy statutes,  
demonstrate that this is a question of statutory interpretation. Facebook also submits  
that the BCPA is narrower than the other privacy statutes. The proper construction of  
the privacy statutes is amenable to summary determination.  
[53] Facebook agrees that common issue 4, entitlement to damages without proof  
of damage is amenable to summary resolution. Facebook also agrees that the  
resident sub-class common issue can be decided summarily.  
Douez v. Facebook, Inc.  
Page 18  
[54] For these reasons, I am satisfied that all of the liability common issues can be  
determined by summary trial.  
[55] Common issues 5-8 relate to remedy. Of these, common issue 6 (punitive  
damages), common issue 7 (disgorgement), and common issue 8 (interest and  
quantum) are fact-intensive and are clearly unsuitable for summary determination.  
[56] Common issue 5 poses a two-part question: whether damages can be  
determined on an aggregate basis, and if so in what amount. Assuming aggregate  
damages are available, there is no question that determination of the quantum will  
require assessment of a great deal of evidence. That evidence will be similar, if not  
the same as the evidence related to the other damages issues. In these  
circumstances, I find that all issues relating to remedy are not suitable for summary  
determination and require adjudication at a conventional trial.  
FACEBOOK AND SPONSORED STORIES  
[57] The evidence before me concerning the basics of Facebook and its  
Sponsored Stories adverting program is not seriously disputed. The following facts  
provide context for understanding how Facebook operates and the role of  
Sponsored Stories within it.  
[58] Facebook is a popular social networking site with over a billion users  
worldwide. Users use Facebook to connect with Friends, for social and other  
purposes. They upload and share photos and videos, arrange events, play games  
and use apps. They also use Facebook to find information of all kinds, including  
about political, educational, and other causes, and about products and services. This  
latter way of using Facebook creates a valuable resource to individuals and  
businesses who want to connect with potential customers. Facebook generates  
most of its revenue from selling advertising and promotional products to Advertisers.  
[59] When a User registers or signs up for Facebook, they are required to provide  
their name, gender, birth date, and email address. After registration, Facebook  
 
Douez v. Facebook, Inc.  
Page 19  
provides the User with a personal profile page, which enables them to upload a  
profile picture, and provide additional information about themselves, including their  
interests and opinions. Users can change these at any time.  
[60] When a User logs into Facebook, their homepage is displayed. It typically  
consists of three columns2. The left-hand column includes links listed under  
categories such as Favourites, Friends, Groups and Apps. The right-hand column  
includes calendar events, Friend’s birthdays, and sponsored content, such as ads.  
From August 2011 on, it also included a “Ticker”, which Facebook describes as “a  
personalized flow of stories about the user’s Friends on a real-time basis.”  
[61] The most prominent, central column is the News Feed. Facebook describes it  
as:  
…a customized and dynamically generated flow of the content shared by the  
user’s Friends, as well as the businesses, organizations, causes, politicians,  
news outlets, entertainers and others that the user has chosen to connect  
with on Facebook.  
When a User shares content, it will appear in their own News Feed and may appear  
in their Friends’ News Feeds (or their Tickers). Facebook selects and updates (or  
“customizes”) the content displayed on Friends’ News Feeds, which is typically a  
large volume.  
[62] Facebook prompts and encourages Users to connect with Friends. Friends  
include anyone to whom a User has granted access to communicate and view  
postings and other actions taken by the User on Facebook. Users can send Friend  
requests to other Users; a User may accept or decline a Friend request and can also  
terminate their connection to a Friend. Facebook’s algorithm may suggest potential  
Friends to Users.  
2 The format of the display may differ depending on what device a User has (computer or phone) and  
Facebook has changed the format over time. This is a basic description of what a User would see on  
a computer for most of the class period.  
Douez v. Facebook, Inc.  
Page 20  
[63] Facebook offers Users different ways to share content (also called “social  
actions”). These include posting status updates (for example, a birth or a link that a  
User wants to share), posts or comments on content generated by Friends, creating  
events or polls, posting comments to particular groups and sending messages.  
During the class period, the three most relevant ways to share content were the  
“Like”, “Check-in”, and “App” functions.  
[64] The Like function is a “thumbs up”  
icon with the word “Like” beside it.  
It appears beside many types of content, including the Facebook pages of  
businesses, organizations, causes, individuals (for example, politicians and  
entertainers) and other entities on Facebook. Third party websites also display the  
Like icon so Users can Like all sorts of content on those websites. When a User  
Likes something, it is displayed on their selected Friends’ homepages.  
[65] The Check-In function allows Users to share their location with Friends and  
include a brief message about it. The App function allows Users to share information  
about apps they use on Facebook, such as games and music.  
[66] Users can adjust the audience for the content they put on Facebook by using  
privacy settings. These permit the User to designate different audiences for different  
types of social actions. Examples of these options are Friends, and specific subsets  
of Friends, or only the User.  
[67] Individuals, organizations, brands and other entities can establish their  
presence on Facebook by creating a Facebook “Page”. A Page allows the entity  
creating it to establish a professional (rather than a personal) Facebook presence.  
The entity can post and all sorts of content on its Page. When Users Like a Page,  
Facebook displays updates from that Page on the User’s News Feed.  
[68] Facebook estimates that, on average, Users generate 3.2 billion Likes and  
comments and upload 350 million photos per day. Facebook stores all of the content  
on the Facebook website. In part, it funds its operation through marketing the vast  
Douez v. Facebook, Inc.  
Page 21  
amount of information it has. At the relevant time, the two main products Facebook  
offered were Facebook Ads and Sponsored Stories.  
[69] Facebook Ads are relatively straightforward: an Advertiser can specify User  
attributes, such as location, age range, sex, relationship status, education level,  
specific workplaces, and interests (ranging from broad categories such as sports,  
movies, and political preferences to specific terms Users have posted on their profile  
pages). Facebook’s algorithm displays the Facebook Ad to the target audience  
without disclosing to the Advertiser the identities of the Users whose homepages  
they appear on. The Advertiser also supplies the content of the Facebook Ad.  
[70] “Social Ads” are a subset of Facebook Ads. In these, Facebook displays a  
User’s name, profile picture and social action (for example, a Like) related to the  
Advertiser’s product or service next to the Facebook Ad. For example, “John Doe  
likes Coke” would be displayed beside Coke’s Facebook Ad. Facebook provides  
Users with the ability to choose not to have their social actions paired with Facebook  
Ads, effectively allowing them to opt out of the Social Ad program.  
[71] Sponsored Stories differed from Facebook Ads/Social Ads in that the  
Advertiser did not specify the target audience of Users and did not supply any  
content that would be displayed. Instead, these advertisements consisted of the  
User’s social action (for example, Liking Coke) displayed together with the  
Advertiser’s thumbnail icon and adding the heading, “Sponsored”. Facebook’s  
algorithm did the pairing and also increased the likelihood that the User’s Friends  
would see the now “Sponsored” social action on their News Feeds or Tickers.  
Facebook did not display the Sponsored Story on the selected User’s homepage,  
only on the homepages of those Friends with whom the User had shared their  
original social action. Facebook did not provide a way for Users to opt out of  
Sponsored Stories.  
[72] Sponsored Stories were a way for Facebook to monetize “word-of-mouth”  
types of recommendations that Users had shared with their Friends and were  
Douez v. Facebook, Inc.  
Page 22  
intended to be used in conjunction with other Facebook marketing products. As  
Facebook puts it in its marketing guide:  
The best form of recommendation is one you get from a friend. Sponsored  
Stories allows you to surface word-of-mouth recommendations about your  
brand that exist organically in the Facebook News Feed. Sponsored Stores  
are different from ads, and including them in your Facebook Premium Ad  
campaign amplifies the actions your target audience takes with your Premium  
Ads during a Target Block or Sustained Media.  
ANALYSIS OF LIABILITY COMMON ISSUES  
[73] All of the common issues I have found suitable for determination by summary  
trial require interpretation of the privacy statutes of British Columbia, Manitoba,  
Saskatchewan and Newfoundland and Labrador. It is convenient to set out the  
relevant provisions of each statute here:  
BCPA, s. 3(2):  
Unauthorized use of name or portrait of another  
(2) 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.  
MPA, ss. 2, 3(c), 5(a):  
Violation of privacy  
2(1) A person who substantially, unreasonably, and without claim of right,  
violates the privacy of another person, commits a tort against that other  
person.  
Action without proof of damage  
2(2) An action for violation of privacy may be brought without proof of  
damage.  
Examples of violation of privacy  
3 Without limiting the generality of section 2, privacy of a person may be  
violated  
(c) by the unauthorized use of the name or likeness or voice of that  
person for the purposes of advertising or promoting the sale of, or any  
other trading in, any property or services, or for any other purposes of  
 
Douez v. Facebook, Inc.  
Page 23  
gain to the user if, in the course of the use, that person is identified or  
identifiable and the user intended to exploit the name or likeness or  
voice of that person; …  
Defences  
5 In an action for violation of privacy of a person, it is a defence for the  
defendant to show  
(a) that the person expressly or by implication consented to the act,  
conduct or publication constituting the violation; …  
Saskatchewan’s The Privacy Act [SPA], ss. 2, 3(c), 4(1)(a):  
Violation of privacy  
2 It is a tort, actionable without proof of damage, for a person wilfully and  
without claim of right, to violate the privacy of another person.  
Examples of violation of privacy  
3 Without limiting the generality of section 2, proof that there has been:  
(c) use of the name or likeness or voice of a person for the purposes  
of advertising or promoting the sale of, or any other trading in, any  
property or services, or for any other purposes of gain to the user if, in  
the course of the use, the person is identified or identifiable and the  
user intended to exploit the name or likeness or voice of that person;  
without the consent, expressed or implied, of the person or some other  
person who has the lawful authority to give the consent is prima facie  
evidence of a violation of the privacy of the person first mentioned.  
Defences  
4(1) An act, conduct or publication is not a violation of privacy where:  
(a) it is consented to, either expressly or impliedly by some person  
entitled to consent thereto;  
NLPA, ss. 3(1), 4(c), 5(1):  
Violation of privacy  
3. (1) It is a tort, actionable without proof of damage, for a person, wilfully and  
without a claim of right, to violate the privacy of an individual.  
Examples  
4. Proof that there has been  
Douez v. Facebook, Inc.  
(c) use of the name or likeness or voice of an individual for the  
Page 24  
purposes of advertising or promoting the sale of, or other trading in,  
property or services, or for other purposes of advantage to the user  
where, in the course of the use, the individual is identified or  
identifiable and the user intended to exploit the name or likeness or  
voice of that individual; …  
without the consent, expressed or implied, of the person or some other  
person who has the lawful authority to give the consent is, is in the absence  
of evidence to the contrary, proof of a violation of the privacy of the individual  
first mentioned.  
Defences  
5. (1) An act or conduct is not a violation of privacy where  
(a) it is consented to by some person entitled to consent;  
Common Issue 1: Consent  
Who Bears the Burden of Proof?  
[74] Before addressing the merits of this issue, I must decide who bears the  
burden of proof. Each party submits the burden is on the other. Neither has found  
any case deciding this issue under any of the four statutes.  
[75] I start with the statutes and principles of statutory interpretation.  
[76] Professor Sullivan explains in her authoritative text on statutory interpretation  
that the governing principle of statutory interpretation is that legislative language  
must be read in its entire context. As she puts it (at 25):  
Texts are not either plain or ambiguous; rather they are more or less plain  
and more or less ambiguous. The factors that justify outcomes in statutory  
interpretation are multiple, involving inferences about meaning and intention  
derived from the text, non-textual evidence of legislative intent, specialized  
knowledge, “common sense” and legal norms. These factors interact in  
complex ways. It is never enough to say the words made me do it.  
[77] When interpreting a statute, it can be very helpful to look at similar  
enactments in other jurisdictions. It is not only useful, but necessary to do so here,  
because I must interpret the privacy torts created by four different statutes and  
determine how each allocates the burden of proof. As Sullivan notes at 424-425,  
where statutes aimed at the same subject or having the same purpose use very  
   
Douez v. Facebook, Inc.  
Page 25  
similar language, a court can conclude they have the same meaning, whereas  
differences in wording in otherwise similar statutes may suggest that different  
meanings were intended.  
[78] In some areas of law, courts have applied strong presumptions in favour of  
uniform interpretation absent any striking difference in wording. These include  
human rights law (e.g. University of British Columbia v. Berg, [1993] 2 S.C.R. 353 at  
373), labour law (e.g. Canadian Assn. of Industrial, Mechanical and Allied Workers,  
Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983) and matrimonial property  
law (e.g. Clarke v. Clarke, [1990] 2 S.C.R. 795). In all of these areas, legislatures  
were enacting statutes in response to similar social contexts.  
[79] All of these privacy statutes were enacted years ago. The BCPA was enacted  
in 1968, the SPA in 1978 (though its predecessor, Privacy Act, 1974, S.S. 1973-74,  
c. 80, was enacted in 1974), the NLPA in 1981, and the MPA in 1987 (though its  
predecessor, The Privacy Act, S.M. 1970, c. 74, was enacted in 1970). As the table  
below illustrates, the latter three statutes are structured similarly. Each creates a  
general tort of violation of privacy in one section, examples of which are listed in  
another section, and include unauthorized use of a person’s name or likeness, while  
consent is expressly identified as a defence, again in a separate section  
Manitoba  
Saskatchewan  
Newfoundland and  
Labrador  
The Statutory Tort  
2(1) A person who  
2 It is a tort actionable  
3(1) It is a tort actionable  
substantially,  
without proof of damage, without proof of damage,  
unreasonably and without for a person wilfully and  
claim of right, violates the without claim of right, to  
privacy of another person, violate the privacy of  
commits a tort against that another person.  
for a person, wilfully and  
without claim of right, to  
violate the privacy of an  
individual.  
other person  
3 Without limiting the  
4 Proof that there has  
2(2) An action for violation generality of section 2,  
been … (c) use of the  
of privacy may be brought proof that there has been name or likeness or voice  
without proof of damages. … (c) use of the name or of an individual for the  
likeness or voice of a  
person for the purposes  
purposes of advertising  
or promoting the sale of  
3 Without limiting the  
generality of section 2,  
Douez v. Facebook, Inc.  
Page 26  
privacy of a person may  
be violated … (c) by the  
unauthorized use of the  
name or likeness or voice property or services, or  
of that person for the  
purposes of advertising or gain to the user if, in the  
promoting the sale of, or  
any other trading in, any  
property or services, or for identifiable and the user  
of advertising or  
promoting the sale of or  
any other trading in, any  
or other trading in,  
property or services, or  
for other purposes of  
advantage to the user  
for any other purposes of where, in the course of  
the use, the individual is  
identified or identifiable  
and the user intended to  
exploit the name or  
course of the use, the  
person is identified or  
any other purposes of  
gain to the user if, in the  
course of the use, that  
person is identified or  
identifiable and the user  
intended to exploit the  
intended to exploit the  
name or likeness or voice individual … without the  
of that person; … without consent express or  
the consent, express or  
implied of the person or  
some other person who  
likeness or voice of that  
implied, of the individual  
or some other person  
who has the lawful  
name or likeness or voice has lawful authority to  
of that person.  
authority to give consent  
give the consent is prima is, in the absence of  
facie evidence of a  
evidence to the contrary,  
violation of the privacy of proof of a violation o the  
the first person  
mentioned.  
privacy of the individual  
first mentioned.  
Consent Defence  
5 in an action for violation 4(1) An act, conduct or  
5(1) An act or conduct is  
of privacy of a person, it is publication is not a  
not a violation of privacy  
a defence for the  
violation of privacy where where  
defendant to show…  
(a) it is consented to,  
(a) it is consented to by  
(a) that the person  
either expressly or  
some person entitled to  
expressly or by implication impliedly by some person consent…  
consented to the act,  
conduct or publication  
constituting the violation  
entitled to consent  
thereto…  
[80] Facebook concedes that the MPA places the burden on a defendant to prove  
consent, but argues that the SPA and the NLPA place the burden of proof of non-  
consent of the plaintiff.  
[81] The very similar structure of these three statutes strongly supports applying  
the presumption of uniform interpretation. In each, lack of authority to use a person’s  
Douez v. Facebook, Inc.  
Page 27  
likeness is both an element of the tort and proof of consent is a defence.3 Reading  
the statutory language contextually, it is clear that lack of consent is a necessary  
element of the breach of privacy tort, as it is for all intentional torts. However, the  
burden of proving lack of consent at the prima facie case stage is low. If a defendant  
seeks to rely on consent, the defendant bears the burden of affirmatively proving  
that defence. Interpreting these statutes to place the whole burden of proof of non-  
consent on a plaintiff would make the consent defence clause meaningless.  
[82] From a practical perspective, as some commentators have noted, it is easier  
to prove a positive (consent) than a negative (lack of consent), and a defendant is  
best placed to lead evidence that there was express or implied consent: Chris D.L.  
Hunt and Nikta Shirazian, “Canada’s Statutory Privacy Torts in Commonwealth  
Perspective” (2016) Oxford U Comparative L Forum 3 at 37. Further, protection of  
privacy is concerned with protection of “physical and moral autonomy”: R. v.  
Dyment, [1988] 2 S.C.R. 417 at 427-428. As such, a privacy-based tort is analogous  
to other rights-based torts, which place the burden of proving consent on the  
defendant: Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 at  
paras. 10-13.  
[83] Facebook’s suggested analogy to copyright infringement is not apt because  
the purpose of the Copyright Act, R.S.C. 1985 c. C-42, differs from the purposes of  
privacy statutes.  
[84] The aim of the Copyright Act is, in large part, to protect the economic  
interests of creators: Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC  
34 at para. 30. As I have noted, privacy rights are rooted in a person’s autonomy.  
These different contexts support their different treatment of the burden of proof of  
the element of consent.  
3 In the MPA, the reference to “unauthorized” use of a person’s likeness is analogous to the reference  
to use without consent in the SPA and NLPA.  
Douez v. Facebook, Inc.  
Page 28  
[85] Copyright protections arise after an individual has chosen (or “consented”) to  
put their work in the public domain, so it makes sense for the copyright holder to  
prove that they did not consent to a particular use of their creation. Privacy rights  
protect an individual’s right to be left alone, in other words, to choose not to enter the  
public domain. In this context, beyond requiring a plaintiff to prove non-consent to  
establish a prima facie breach, it makes sense to require defendants to prove  
consent as a defence.  
[86] With respect to the privacy statutes of Manitoba, Saskatchewan and  
Newfoundland and Labrador, I conclude that Facebook bears the burden of proving  
consent as a defence.  
[87] The BCPA is structured differently from the other three statutes. It creates a  
tort of “unauthorized use of name or portrait of another” in a single section, making it  
actionable to use a person’s name or portrait for specified purposes, unless they  
consent. As the BCPA was enacted before the other three privacy laws, pointing to  
the inclusion of an express consent defence in those statutes does not assist in its  
interpretation. A grammatical and ordinary reading of the text is consistent with both  
interpretations.  
[88] However, a contextual reading of s. 3(2) of the BCPA supports placing the  
burden of proving consent on the defendant. It defines the tort as using, the name  
or portrait of another for the purpose of advertising or promoting the sale of, or other  
trading in, property or servicesexcept where there is consent. The text supports  
alternative interpretations of who bears the burden of proof: Douez 2014 at  
paras. 197-198. However, as I have discussed, the underlying purpose of the statute  
to protect personal autonomy in making decisions about whether to enter the public  
domain supports reading the BCPA consistently with the other privacy statutes and  
placing the burden on the defendant to prove consent.  
[89] I conclude that, once a plaintiff has established a prima facie case, the  
defendant bears the onus of proving consent as a defence with respect to all four  
privacy statutes. Here, Ms. Douez’s affidavit evidence that she did not consent  
Douez v. Facebook, Inc.  
Page 29  
satisfies the low threshold for a prima facie case and Facebook bears the burden of  
proving consent.  
Express Consent  
[90] Facebook argues that, by registering with or signing up for Facebook, Users  
expressly agreed to its Terms of Use, pursuant to which Users consented to  
Facebook’s use of their information in Sponsored Stories.  
[91] Ms. Douez takes issue with both propositions. First, she says that Facebook  
has not led sufficient evidence to prove that its registration process gave prospective  
Users an opportunity to review and agree to its Terms of Use before registering with  
Facebook throughout the class period. Second, she says that it is not reasonable to  
interpret the Terms of Use as informing Users that Facebook would use their  
information or content as it did in Sponsored Stories.4  
Facebook’s Evidence on its Registration Process  
[92] Facebook’s registration process changed between 2005, when the site was  
first launched and 2014, when Sponsored Stories ended. For some of that time,  
individuals registering for Facebook had to click a box stating that they had read and  
understood the Terms of Use, which was a clickable hyperlink, before being able to  
click on the “Register” or “Sign Up” button. At other times, the registration page  
included a notification that registration constituted confirmation by the User that they  
had read and understood the Terms of Use(again, hyperlinked).  
[93] Ms. Douez argues that Facebook’s evidence of its registration process is  
insufficient and that for some time it was possible for a person to register before  
being notified that registration included agreement to the Terms of Use or having an  
opportunity to learn what those terms were.  
4 The plaintiff also argued that there can be no express consent unless Facebook required individuals  
to click a box stating that they had read and understood the Terms of Use before the “Register”  
button was enabled, that people under the age of majority cannot consent to the Terms of Use, and  
that the Terms of Use are unconscionable. In light of my conclusion on consent it is unnecessary for  
me to address these issues.  
   
Douez v. Facebook, Inc.  
Page 30  
[94] I am satisfied that Facebook has led sufficient evidence to show that  
prospective Users were notified that registration with Facebook constituted  
agreement to the Terms of Use and to read those provisions by clicking on the  
hyperlink. The plaintiff’s challenge to the quality of the evidence on this point  
(including Waybackmachine and Mr. Squire’s credibility) is no more than  
speculative.  
Interpreting the Terms of Use  
[95] Turning to the second issue, in order to know what Users consented to, it is  
essential to determine what the Terms of Use mean. This is an exercise in contract  
interpretation and there is no disagreement about the applicable principles.  
[96] The principle governing contract interpretation is to review the contract as a  
whole to promote the true mutual intent of the parties at the time of contract  
formation. Importantly, where the words are capable of multiple meanings, a court  
should prefer a commercially reasonable and realistic meaning over a literal one:  
Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888 at 901.  
[97] The Terms of Use are a standard form contract of adhesion created by  
Facebook: Douez 2017 at para. 50, 98. A court interpreting such a contract must do  
so in the context of the power imbalance and inability of the weaker party to  
negotiate: Bergen v. WestJet Airlines Ltd., 2021 BCSC 12 at para. 75 aff’d 2022  
BCCA 22 cited Corless v. Bell Mobility Inc., 2015 ONSC 7682 at para. 23 (Div. Ct.).  
While the interpretation of a contract is an issue of mixed fact and law, it does not  
mandate an individual inquiry into the circumstances at the time each individual  
standard form contract was entered into: Bergen at para. 78 citing Corless at  
para. 50. Factors such as the contract’s purpose, the relationship it creates and the  
environment in which it operates remain considerations in the interpretive exercise,  
but are not case specific: Ledcor Construction Ltd. v. Northbridge Indemnity  
Insurance Co., 2016 SCC 37 at paras. 27-32 Where contractual language is  
ambiguous even after general principles of contract interpretation have been  
applied, any ambiguity is construed against the party that drafted the contract:  
 
Douez v. Facebook, Inc.  
Page 31  
Ledcor at para. 51; see also Geoff R. Hall, Canadian Contractual Interpretation Law,  
3d ed (Toronto: LexisNexis, 2016) at 218 and 222.  
[98] The factual matrix in this case is as follows. Facebook is a profitable internet  
advertising company with over a billion Users. Facebook does not charge fees to  
Users. The information Users post and the social actions they perform on Facebook  
are a key resource Facebook uses to generate revenue. Advertisers pay Facebook  
to connect them with Users and their social networks. As Facebook states in its  
marketing material:  
Our marketing products are constructed to help people discover your brand  
through recommendations from their friends. Facebook Ads and Sponsored  
Stories allow you to leverage the relationships you have built with people to  
create word-of-mouth at scale.  
[99] Facebook’s Terms of Use are its disclosure to both Users and Advertisers of  
its rules for regulating its relationship with them. A User registers with Facebook to  
develop, maintain, and increase social connections, not only with family and friends,  
but also for educational, entertainment, employment and other purposes. Agreeing  
to the Terms of Use is the only way for Users and Advertisers to gain access to  
Facebook.  
[100] Clause 10 of the Terms of Use5 provides:  
About Advertisements and Other Commercial Content Served or Enhanced  
by Facebook  
Our goal is to deliver ads that are not only valuable to advertisers, but also  
valuable to you. In order to do that, you also agree to the following:  
1.You can use your privacy settings to limit how your name and profile picture  
may be associated with commercial, sponsored or related content (such as a  
brand you like) served or enhanced by us. You give us permission to use  
your name and profile picture in connection with that content subject to the  
limits you place.  
2.We do not give your content or information to advertisers without your  
consent.  
3.You understand that we may not always identify paid services and  
communications as such.  
5 Although the Terms of Use were revised from time to time, the parties relied on this version.  
Douez v. Facebook, Inc.  
Page 32  
[101] Clause 17 sets out the following relevant definitions:  
By “information” we mean facts and other information about you, including  
actions you take.  
By “content” we mean anything you post on Facebook that would not be  
included in the definition of “information”.  
By “use” we mean use, copy, publicly perform or display, distribute, modify,  
translate, and create derivative works of.  
[102] Ms. Douez argues that a reasonable reader would construe clause 10(2) as  
prohibiting Facebook from doing what it did in Sponsored Stories, so agreeing to the  
Terms of Use cannot constitute express consent. In the alternative, she argues that  
clause 10(1) does not constitute express consent to Sponsored Stories because it  
represents to Users that they can use their privacy settings to limit how their names  
and images are associated with Sponsored Stories when in fact they could not.  
[103] Clause 10(2) says Facebook will not “give” a User’s content to Advertisers  
without their consent. Facebook argues that it did not “give” User content or  
information to Advertisers because it did not transfer to Advertisers the individual  
names and profile pictures of Users who became the subject of Sponsored Stories.  
Advertisers never actually received User content or information in the sense of, as  
Facebook says, being able to “review or store or process this information in any  
way.”  
[104] By purchasing a Sponsored Story6, the Advertiser paid Facebook for access  
to Facebook software that would pair and display the Advertiser’s “brand” (its name  
and thumbnail image from its Facebook Page) with a User’s “Like” action, insert the  
banner “Sponsored”, and increase the likelihood that a User’s Friends would see the  
Sponsored Story by displaying it in a more prominent location on the User’s Friends’  
homepages.  
[105] For example, a User might post “Debbie Douez likes Ocean Village in Tofino,  
BC”. Facebook’s algorithm would cause that statement (also described as a “social”  
6 Facebook offered up to 13 different types of Sponsored Stories during the Class Period. One of the  
most popular was the “Page Like Story.” As all these products operated similarly, I use the Page Like  
Story to illustrate how Sponsored StoLries worked.  
Douez v. Facebook, Inc.  
Page 33  
action), to appear in a prominent location on the User’s Friends’ homepages. As  
Facebook explained, all Usershomepages are full of information that is constantly  
updated. A user’s friend might have to scroll down for quite some time to see a  
particular social action and may choose not to do so. However, If the social action  
becomes a Sponsored Story, the algorithm ensures that it is displayed more  
prominently on a User’s Friends’ homepages, increasing (or “boosting”) the  
likelihood that they will see it.  
[106] A social action looks like this:  
Debbie Douez likes Ocean Village in Tofino, BC  
[107] The effect of a Sponsored Story is that the social action becomes:  
Sponsored  
Debbie Douez likes Ocean Village in Tofino, BC  
Ocean Village in Tofino, BC  
[108] Facebook argues that this service complies with clause 10(2):  
The phrase “We will not give your content or information to advertisers  
without your consent” means exactly what it says: Facebook does not give  
users’ content or information to advertisers, and those advertisers will never  
receive this information, without consent. This has nothing to do with  
Sponsored Stories, as the sponsor never had access to any user-generated  
content or personal information (including name and profile picture). In other  
words, the sponsor could pay to boost a user’s story, but the sponsor did this  
without at any time having any form of access to the user’s boosted story or  
data.  
[109] Facebook’s argument rests on interpreting “give” as meaning that the  
recipient receives a User’s name, image and social action, along with the ability to  
alter it. I agree that Sponsored Stories did not do that.  
[110] However, Sponsored Stories “gave” Advertisers the ability, for which they  
paid, to display their brand(that is, their name and thumbnail image) together with  
Douez v. Facebook, Inc.  
Page 34  
each social action of Users related to their brand (for example, a “like” action), under  
the banner “Sponsored Story” to all of the Users’ Friends in a way that would be  
more likely to be noticed by them. Although Facebook did not “give” Advertisers  
access to the personal information of the User featured in a Sponsored Story, it  
provided them with the means to add their image to a User’s social action, add the  
“Sponsored” banner and enhance the prominence of the modified communication.  
[111] Facebook emphasizes that Sponsored Stories did not permit Advertisers to  
review a User’s social action, so a User that posted “Debbie Douez hates Ocean  
Village in Tofino, BC” would generate a Sponsored Story in the same way as a User  
who posted that they liked it. However, as P.T. Barnum famously observed, “There’s  
no such thing as bad publicity.” As Facebook’s marketing material suggests, the  
value to Advertisers was to associate their brands with real people and their Friend  
groups, creating more communication about their brands. The fact that Advertisers  
could not screen out negative posts does not support any particular interpretation of  
“give”.  
[112] Facebook’s Terms of Use do not define “give”. In light of that, I must construe  
“give” in its ordinary meaning in the context in which it appears. The Oxford English  
Dictionary’s definition of the verb “give” is a helpful place to start:  
1.Freely transfer the possession of (something) to (someone); hand over to.  
2.Cause or allow (someone or something) to have (something, especially  
abstract); provide or supply with.  
3.Carry out or perform (a specified action).  
4.Yield as a product or result.  
5.Concede or yield (something) as valid or deserved in respect of (someone).  
6.State or put forward (information or argument).  
7.Alter in shape under pressure rather than resist or break.  
[113] Facebook’s distinction between giving Advertisers access to the identity of  
Users featured in Sponsored Stories and giving Advertisers access to a means of  
hitching their brand to, and increasing the prominence of, the social actions of an  
Douez v. Facebook, Inc.  
Page 35  
anonymous group of Users relies on an unrealistically narrow definition of “give” in  
the context of social networking sites.  
[114] Facebook’s software allowed Advertisers to modify, in the ways I have  
described, Users’ social actions relating to their brand without transferring to them  
the identities of those Users. A reasonable reader of clause 10(2) would not  
understand it as permitting Advertisers to modify their social actions, whether or not  
the Advertiser had actually received the User’s personal information.  
[115] Facebook’s interpretation of “give” is not reasonable or realistic in the context  
of a social networking site. Accordingly, it is not necessary to apply the contra  
proferentem rule and construe the Terms of Use against Facebook. However, if I am  
wrong in that conclusion, I would find that Facebook’s failure to define “give” in the  
Terms of Use engages the rule, and would interpret “give” against Facebook.  
[116] Finally, the fact that many or even most Users might consent to be featured in  
Sponsored Stories does not eliminate the problem. The right to privacy requires that  
consent be sought, not presumed. Evidence that many Users would have consented  
if asked, just like evidence going to the seriousness of the breach, is relevant to  
damages, not to liability.  
[117] I conclude that Facebook’s use of Usersnames and profile pictures in  
Sponsored Stories breached clause 10(2) and cannot establish consent.  
[118] Facebook’s reliance on clause 10(1) is also misplaced. It represents that  
Users’ privacy settings are an effective way for them to limit association of their  
name and profile picture with content such as Sponsored Stories. The evidence  
shows this is not the case.  
[119] The evidence establishes that a User could not know whether they would be  
featured in a Sponsored Story because Facebook did not notify the User in advance.  
Facebook did not notify Users after the fact either: a Sponsored Story was posted to  
the User’s default audience (albeit never an audience larger than their Friends) but  
Douez v. Facebook, Inc.  
Page 36  
not to the User’s homepage. If and when a User learned they had been featured in a  
Sponsored Story, it was too late. The User could delete their original social action,  
but the Sponsored Story would remain.  
[120] Facebook’s audience control settings offered Users the following options for  
determining the audience for their social actions: “public”, “friends”, “only me”,  
“custom” and “close friends”. Sponsored Stories were circulated to the audience the  
User had selected (except that Sponsored Stories were never disseminated to  
“public”, only to “friends”). However, a User’s ability to control the audience of  
Sponsored Stories in which they might be featured was inherently limited by the fact  
that they could not know in advance which of their posts would become a Sponsored  
Story. Further, a User’s audience for a Sponsored Story was bound to their chosen  
audience for the original post. There was no way to customize an audience  
specifically for Sponsored Stories as differentiated from the original, ‘organic’ post.  
[121] There was no way for a User to choose not to be featured in Sponsored  
Stories or particular Sponsored Story other than by not engaging in any social  
actions that could potentially become the subject of Sponsored Stories or by  
ensuring that their audience was always “only me”. Doing so would defeat the  
purpose of being on Facebook. A reasonable reader of clause 10(1) would assume  
that they could use their privacy settings in ways the Sponsored Stories program did  
not permit.  
[122] Of course, a reasonable reader would interpret clause 10(1) and (2) together.  
Such a reader would understand that they could exercise control over whether and  
when their name and profile picture could be used by Advertisers, whether directly,  
by Facebook releasing User information to an Advertiser, or indirectly, by  
Facebook’s software pairing the Advertiser with Users. I conclude that Facebook has  
failed to establish express consent.  
Douez v. Facebook, Inc.  
Implied Consent  
Page 37  
[123] Implied consent is actual consent that can be inferred from the evidence:  
Elleze v. Norn, 2021 NWTCA 4 at para. 22. Facebook argues that each of a User’s  
social actions that could give rise to a Sponsored Story constituted “implied consent  
to the content in question being shared with the audience the user had selected.”  
Facebook submits:  
Common sense indicates that class members consented to the same content  
they had already chosen to share being seen by the same audience as a  
result of being sponsored. That class members impliedly consented to  
Sponsored Stories is substantiated by considering the situation of the  
Plaintiff, the only class member for whom there is individual evidence. During  
her examination for discovery, the Plaintiff conceded that she first learned  
about Sponsored Stories approximately a month before this lawsuit was  
launched (or in February 2012). Sponsored Stories continued to exist as a  
product on the Facebook website until April 2014, and the Plaintiff conceded  
that even after learning about Sponsored Stories and even after learning  
that she herself featured in Sponsored Stories she continued to Like  
content on the Facebook website and continued to use the Check-In feature.  
The Plaintiff admitted that she continued to Like content on the Facebook  
Website even after she “knew how Sponsored Stories worked.”  
[124] As I have already discussed, a reasonable User would not have understood  
from the Terms of Use that Facebook could use their social actions as it did in  
Sponsored Stories. Unless and until a User learned that they had been featured in a  
Sponsored Story and about the ineffectiveness of privacy settings to prevent them  
being featured in other Sponsored Stories, the evidence does not support an  
inference of implied consent.  
[125] Ms. Douez’s situation is no different with respect to liability. She did not  
consent to being featured in a Sponsored Story before that happened. The evidence  
to which Facebook points may well establish that Ms. Douez consented at a later  
date, but that goes to the amount of a damages claim; it does not negate the original  
breach.  
[126] Finally, Facebook’s argument on implied consent rests on the premise that  
Users “like” pages out of an affinity for whatever they represent and because of that  
affinity, they would consent (or at least not object to) their likeness associated with it  
 
Douez v. Facebook, Inc.  
Page 38  
in the context of an advertisement. However, the plaintiffs note that Users like pages  
for many different reasons: for example, to obtain information, to redeem a coupon,  
or to be entered in a contest. In other words, performing a “like” action does not  
mean a person actually likes something, nor does it mean that they want to be seen  
as “sponsoring” it.  
[127] On common issue 1, I conclude that Users did not consent, expressly or  
implicitly to the use of their names or portraits in Sponsored Stories within the  
meaning of the four privacy statutes.  
Common Issue 2: Advertising or Promoting  
[128] The privacy statutes all prohibit use of a person’s name or likeness for  
specific purposes. The SPA, MPA and NLPA describe those purposes as:  
…for the purposes of advertising or promoting the sale of, or any other  
trading in, any property or services, or for any other purposes of gain7 to the  
user…  
[129] The BCPA describes the purposes of the s. 3(2) tort as follows:  
…for the purpose of advertising or promoting the sale of, or other trading in,  
property or services…  
[130] Facebook submits that the exclusion of “any other purposes for gain” from the  
BCPA is significant. It argues:  
This language confirms that the three requirements under the B.C. Act are  
not comprehensive the Legislatures of Manitoba, NL and Saskatchewan  
clearly considered that there would be some situations of gain to the user not  
captured by the first three requirements. The absence of such language from  
the B.C. Act cannot be taken as a mere oversight. Rather, the B.C. Act was  
specifically structured in this manner, to avoid an overinclusive Act capturing  
political or charitable advertisements.  
[131] Facebook’s argument overlooks the fact that the BCPA was enacted before  
the other three statutes and so could not have been structured with them in mind.  
7 The NLPA uses the word “advantage” instead of “gain” but no one adverted to this difference. I do  
not consider it significant in this context.  
 
Douez v. Facebook, Inc.  
Page 39  
[132] More fundamentally, Facebook’s submission is that certain types of  
advertisements, such as those for political, charitable or educational purposes, are  
not advertising or promoting the sale of or trading in any property or service. That  
argument impermissibly elides the distinction between Facebook and its Advertisers.  
Ms. Douez’s claim is against Facebook. It is Facebook’s purposes that are subject to  
scrutiny, not those of its Advertisers. The evidence establishes that Facebook  
developed and marketed Sponsored Stories to advertise or promote Facebook to  
Advertisers in order to persuade them to purchase Sponsored Stories and other  
Facebook advertising products.  
[133] I conclude that all of the Sponsored Stories were for the purposes set out in  
the four statutory privacy torts in issue.  
Common Issue 4 Damages without Individual Proof  
[134] Each of the four privacy statutes expressly states that the tort(s) it creates are  
actionable without proof of damage: BCPA, s. 3(2); SPA, s. 2; MPA, s. 2(2); and  
NLPA, s. 3(1). Facebook agrees that individual proof of damage is not required to  
establish liability. The answer to this common issue is yes.  
Resident Sub-Class Common Issue  
[135] Facebook argues that s. 3(2) of the BCPA must be read as incorporating the  
requirements of ss. 1(2) and 1(3) of the BCPA. The statute is brief and it is useful to  
set it out in full:  
Violation of privacy actionable  
1(1) It is a tort, actionable without proof of damage, for a person, wilfully and  
without a claim of right, to violate the privacy of another.  
(2) The nature and degree of privacy to which a person is entitled in a  
situation or in relation to a matter is that which is reasonable in the  
circumstances, giving due regard to the lawful interests of others.  
(3) In determining whether the act or conduct of a person is a violation of  
another's privacy, regard must be given to the nature, incidence and occasion  
of the act or conduct and to any domestic or other relationship between the  
parties.  
   
Douez v. Facebook, Inc.  
(4) Without limiting subsections (1) to (3), privacy may be violated by  
Page 40  
eavesdropping or surveillance, whether or not accomplished by trespass.  
Exceptions  
2(1) In this section:  
"court" includes a person authorized by law to administer an oath for taking  
evidence when acting for the purpose for which the person is authorized to  
take evidence;  
"crime" includes an offence against a law of British Columbia.  
(2) An act or conduct is not a violation of privacy if any of the following  
applies:  
(a) it is consented to by some person entitled to consent;  
(b) the act or conduct was incidental to the exercise of a lawful right of  
defence of person or property;  
(c) the act or conduct was authorized or required under a law in force  
in British Columbia, by a court or by any process of a court;  
(d) the act or conduct was that of  
(i) a peace officer acting in the course of his or her duty to  
prevent, discover or investigate crime or to discover or  
apprehend the perpetrators of a crime, or  
(ii) a public officer engaged in an investigation in the course of  
his or her duty under a law in force in British Columbia,  
and was neither disproportionate to the gravity of the crime or matter  
subject to investigation nor committed in the course of a trespass.  
(3) A publication of a matter is not a violation of privacy if  
(a) the matter published was of public interest or was fair comment on  
a matter of public interest, or  
(b) the publication was privileged in accordance with the rules of law  
relating to defamation.  
(4) Subsection (3) does not extend to any other act or conduct by which the  
matter published was obtained if that other act or conduct was itself a  
violation of privacy.  
Unauthorized use of name or portrait of another  
3(1) In this section, "portrait" means a likeness, still or moving, and includes  
(a) a likeness of another deliberately disguised to resemble the  
plaintiff, and  
(b) a caricature.  
(2) 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.  
Douez v. Facebook, Inc.  
(3) A person is not liable to another for the use for the purposes stated in  
Page 41  
subsection (2) of a name identical with, or so similar as to be capable of  
being mistaken for, that of the other, unless the court is satisfied that  
(a) the defendant specifically intended to refer to the plaintiff or to  
exploit his or her name or reputation, or  
(b) either on the same occasion or on some other occasion in the  
course of a program of advertisement or promotion, the name was  
connected, expressly or impliedly, with other material or details  
sufficient to distinguish the plaintiff, to the public at large or to the  
members of the community in which he or she lives or works, from  
others of the same name.  
(4) A person is not liable to another for the use, for the purposes stated in  
subsection (2), of his or her portrait in a picture of a group or gathering,  
unless the plaintiff is  
(a) identified by name or description, or his or her presence is  
emphasized, whether by the composition of the picture or otherwise,  
or  
(b) recognizable, and the defendant, by using the picture, intended to  
exploit the plaintiff's name or reputation.  
(5) Without prejudice to the requirements of any other case, in order to render  
another liable for using his or her name or portrait for the purposes of  
advertising or promoting the sale of  
(a) a newspaper or other publication, or the services of a broadcasting  
undertaking, the plaintiff must establish that his or her name or portrait  
was used specifically in connection with material relating to the  
readership, circulation or other qualities of the newspaper or other  
publication, or to the audience, services or other qualities of the  
broadcasting undertaking, as the case may be, and  
(b) goods or services on account of the use of the name or portrait of  
the other in a radio or television program relating to current or  
historical events or affairs, or other matters of public interest, that is  
sponsored or promoted by or on behalf of the makers, distributors,  
vendors or suppliers of the goods or services, the plaintiff must  
establish that his or her name or portrait was used specifically in  
connection with material relating to the goods or services, or to their  
manufacturers, distributors, vendors or suppliers.  
Action to be determined in Supreme Court  
4 Despite anything contained in another Act, an action under this Act must be  
heard and determined by the Supreme Court.  
Action does not survive death  
5 An action or right of action for a violation of privacy or for the unauthorized  
use of the name or portrait of another for the purposes stated in this Act is  
extinguished by the death of the person whose privacy is alleged to have  
Douez v. Facebook, Inc.  
Page 42  
been violated or whose name or portrait is alleged to have been used without  
authority.  
[136] A plain reading, consistent with the basic principles of statutory interpretation,  
shows that the statute creates two distinct torts. Section 1 creates a general privacy  
tort that is subject to the qualifications in ss. 1(2) and (3), and the exceptions in s. 2.  
Section 3 creates a separate tort of misappropriation of personality, which has its  
own elements. Subsection 3(2) sets out the elements of what is referred to as “a  
tort”, in the same way that s. 1(1) sets out the elements of “a tort”. Neither  
subsection references the other. Further, s. 5, refers to “violation of privacy” and  
“unauthorized use of the name or portrait of another” as distinct “rights of action”:  
see also Douez 2014 at paras. 284-285.  
[137] The BC cases upon which Facebook relies, Davis v. McArthur (1970), 17  
D.L.R. (3d) 760 (B.C.C.A.), rev’g 10 D.L.R. (3d) 250 (B.C.S.C.) and Heckert v. 5470  
Investments Ltd., 2008 BCSC 1298, are unhelpful because the claims in those  
cases were about the general violation of privacy tort, not the tort of misappropriation  
of personality in issue here. Likewise, neither of the decisions from other jurisdictions  
relied on by Facebook involve misappropriation torts: see J.M.T. v. G.M.T., 2006  
MBQB 134; Druken v. R.G. Fewer & Associates Inc. (1998), 58 C.R.R. (2d) 106  
(Nfld. S.C.T.D.).  
CONCLUSION  
[138] In conclusion, I have found that this court has jurisdiction to hear and decide  
claims under both the MPA and NLPA and that those claims which relate to liability  
can be determined summarily. The damages issues are not suitable for summary  
determination and that portion of Facebook’s application for summary trial is  
dismissed.  
 
Douez v. Facebook, Inc.  
Page 43  
[139] I have found for Ms. Douez on the merits of the liability common issues.  
Briefly, members of the class did not expressly or impliedly consent to Facebook’s  
use of their likenesses in Sponsored Stories. Facebook’s use of class members  
likenesses was for a purpose prohibited by the four privacy statutes. With respect to  
the BC plaintiffs, ss. 1(2) and (3) do not apply to their claims under s. 3(2).  
Iyer J.”  



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