Facebook Did Not Have the Consent of its Users to Use their Image and Name.  

Élisabeth Lesage-Bigras [1]
Lawyers, Patent and Trademark Agent

On June 2, the Supreme Court of British Columbia ruled on summary judgment that members of a class action did not consent to the use of their image and name in Facebook’s Sponsored Stories ads[2], contrary to the privacy laws of British Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador. In short, Sponsored Stories allowed for the sharing of certain user actions on Facebook’s platform. For example, when a user liked Coke’s page on Facebook, that action appeared as sponsored content on their friends’ pages.[3]

It should be remembered that a first series of judgments was already published on this case in 2015[4] and 2017[5] which even made its way to the Supreme Court of Canada. Indeed, the question was to determine whether the jurisdiction clause contained in Facebook’s terms of use could be enforceable and therefore whether the Supreme Court of British Columbia had jurisdiction to rule in this class action.[6] At the time, the Supreme Court of Canada rejected Facebook’s arguments and found the jurisdiction clause unenforceable.[7]

  1. Does the British Columbia Supreme Court Have Jurisdiction?

The main issue in this case was whether Facebook’s Sponsored Stories program violated the privacy laws of British Columbia, Manitoba, Saskatchewan, and Newfoundland and Labrador, the provinces included in the class-action suit.[8] Facebook argued that the court lacked jurisdiction to rule on the Manitoba and Newfoundland legislation.[9]

After analysis, the court concluded that, as a general matter, provincial governments “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”.[10] As such, since the argument of lack of jurisdiction must, according to the case law, be based on the forum non conveniens analysis and Facebook did not object on that basis, the court concluded that Facebook had failed to prove that it lacked jurisdiction to rule on the basis of Manitoba and Newfoundland privacy legislation.[11] Indeed, “[o]nce jurisdiction is established, if the defendant raises no further objections, the litigation proceeds before the court of the forum.”[12]

  1. Sponsored Stories and the Notion of Consent

Based on the foregoing finding and the conclusion that certain aspects of this case can be resolved on summary judgment, including the issue of consent[13], the court proceeded to assess the evidence as to whether Facebook had obtained the explicit, or implied, consent of its users to use their names and images in Sponsored Stories. It was found that Facebook did not have either the explicit or implied consent nor did it have the right to use its users’ names and images for advertising purposes.[14]

Facebook, the party with the burden of proof according to the court, did not prove that the terms of use allowed it to use users’ names and images in Sponsored Stories.[15] Facebook also failed to prove that it did not provide access to users’ names and images to businesses using the Sponsored Stories service.[16] As a result, users did not give express consent.[17]

Moreover, according to the court, users did not give implied consent for these types of uses either, since, contrary to Facebook’s assertion, the fact that a user “likes” a page because of a particular interest does not necessarily imply that he or she consents or objects “to having [his or her] their likeness associated with it in the context of an advertisement.”[18]

Finally, given the prohibition in the provincial laws, at issue here, against using a person’s name or image for advertising purposes, the court ruled that Facebook, through its Sponsored Stories program, could not use this information.[19]

  1. What does this Decision Show?

This case once again reinforces the importance of clear terms of use and good privacy practices, particularly in digital marketing. While the protection of personal information is particularly topical these days, this ruling reminds us that privacy is much broader than the data involved and targets a number of other concepts, such as image rights. Our Privacy and Advertising and Marketing Law team will therefore be following the developments of this decision closely. In the meantime, if you have any questions about the regulations surrounding digital platforms or their terms of use, do not hesitate to contact the members of our privacy and advertising and marketing law teams.

CIPS, 2022.

[1]             Élisabeth Lesage-Bigras is a lawyer at ROBIC, LLP, a multidisciplinary firm of lawyers and patent and trademark agents.

[2]             Douez v. Facebook, Inc, 2022 BCSC 914, paras. 2, 4 and 5

[3]             Id., atparas. 2, 4, 5 and 70.

[4]             Douez v. Facebook, Inc, 2015 BCCA 279 and id., para. 10.

[5]             Douez v. Facebook, Inc., 2017 SCC 33 and id.

[6]             Id.

[7]             Id.

[8]             Id., para. 6

[9]             Id.

[10]           Id., para. 37.

[11]           Id., paras. 40 and 41.

[12]          Id., para. 41.

[13]           Id., paras. 43, 51-56; it was held that issues of damages were not subject to summary judgment.

[14]           Id., para. 139.

[15]           Id., paras. 102-104, 110, 113-117.

[16]           Id.

[17]           Id.

[18]           Id., para. 126.

[19]           Id., paras. 128-133.