JUDGMENT DOUEZ V. FACEBOOK: SPONSORED STORIES AND THE NOTION OF CONSENT
Facebook Did Not Have the Consent of its Users to Use their Image and Name.
Élisabeth Lesage-Bigras 
Lawyers, Patent and Trademark Agents
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, 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.
- 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. Facebook argued that the court lacked jurisdiction to rule on the Manitoba and Newfoundland legislation.
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”. 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. Indeed, “[o]nce jurisdiction is established, if the defendant raises no further objections, the litigation proceeds before the court of the forum.”
- 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, 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.
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.”
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.
- What does this Decision Show?
 Douez v. Facebook, Inc, 2022 BCSC 914, paras. 2, 4 and 5
 Id., atparas. 2, 4, 5 and 70.
 Douez v. Facebook, Inc, 2015 BCCA 279 and id., para. 10.
 Douez v. Facebook, Inc., 2017 SCC 33 and id.
 Id., para. 6
 Id., para. 37.
 Id., paras. 40 and 41.
 Id., para. 41.
 Id., paras. 43, 51-56; it was held that issues of damages were not subject to summary judgment.
 Id., para. 139.
 Id., paras. 102-104, 110, 113-117.
 Id., para. 126.
 Id., paras. 128-133.