Douez v Facebook, Inc.

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.

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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 “like” button) 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

¹The 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

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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

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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.

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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

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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.

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[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

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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.

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[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,

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 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.

[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

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.³Reading

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.

³In 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 services” except 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.

⁴The 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 Use⁵provides:

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.

⁵Although 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”

⁶Facebook 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 Users’ homepages 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 Users’ names 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.

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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 gain⁷to 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.

⁷The 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”: