B.C. Supreme Court judge adds residents of other provinces to class-action lawsuit against Facebook

A B.C. resident has won a procedural victory in B.C. Supreme Court in her long-running lawsuit against Facebook.

In 2012, Deborah Louise Douez sued the Menlo Park, California–based social media company for allegedly using members' names and images without their knowledge or consent in an advertising program.

Under the "Sponsored Stories" initiative, Facebook used members' names and profile pictures allegedly appeared in endorsements that showed up on their Facebook friends' pages.

Douez has alleged that this violated B.C.'s Privacy Act. In 2014, her lawsuit was certified as a class action involving B.C. residents with Facebook accounts from January 1, 2011 to May 30, 2014.

On May 9, B.C. Supreme Court Justice Nitya Iyer granted Douez's application to allow the class action to include not only B.C. residents, but also resident natural persons who were members of Facebook at any time between January 1, 2011 and May 30, 2014, in Saskatchewan, Manitoba, and Newfoundland and Labrador. 

All three of those other provinces also have privacy acts.

Members of class in B.C. and the other three provinces would have to have registered with Facebook using their real names or had a profile picture with an identifiable self-image.

And their real names or profile picture with an identifiable self image would have to have shown up in a Facebook sponsored story.

Facebook has consistently claimed that the lawsuit has no merit. None of the allegations have been proven in court.

One of the issues to be tried is if damages can be determined on an aggregate basis and, if so, in what amount?

Another triable issue is if Facebook's conduct justifies an award of punitive damages. Yet another issue concerns whether the defendant is obliged to account for any profits that were generated from the unauthorized use of members' names or portraits.

A clause in Facebook's terms of use identifies California as the jurisdiction where lawsuits must be litigated under the agreement.

However in 2017, the Supreme Court of Canada ruled that this clause was not enforceable.

That has enabled the case to proceed in B.C. Supreme Court.