By Marc R Gagné MAPP Senior Privacy and Data Advocate, Cyber Intelligence and Director of Gagne Legal. See more about Marc here

Facebook at the Center of Yet Another Privacy Battle

Last month, the Supreme Court decided against Facebook in a brewing class action battle over privacy rights. The decision was over where the suit would be heard, highlighting the tough issue of how to handle the vary states of international privacy standards.

The 4-3 decision by the British Columbia Supreme Court allows the suit to move forward on the home turf of Deborah Douez, who’s suing the social media giant over its use of her name and photo in Facebook ads.

‘Liking’ a Company is Not Proof of Endorsement

Plaintiff Debbie Douez, a videographer in Vancouver, alleges that Facebook violated her privacy when it used her profile picture and her name in advertising.

In January 2011, Facebook started running advertising campaigns that utilized users’profile pictures and names without their permission, alleges the suit.

In Ms. Douez’s case, she was browsing the Facebook page of “Tough Mudder”, a fitness company. In order to find out about their programs, she had to click on their “like” button. She did the same for a resort, “liking” their company, too.

Those clicks were used by Facebook in paid advertisements to Douez’s friends. She was now, in essence, a virtual spokesperson for “Tough Mudder” and the Ocean Village Resort, a position she felt went beyond her intent when she clicked “like”. It also, she felt, violated her privacy.

‘People are Being Manipulated’

For Douez, having her face pop up in her friend’s feeds endorsing companies she had merely been investigating felt like manipulation. “Liking” the companies was, after all, the only way to get the information she desired. Now, as a result of that action, she was endorsing the companies.

“I think this is a situation where people are being manipulated and in particular, manipulated for commercial gain”

-Debbie Douez, Plaintiff

Facebook Says’Consent is Automatic’

Facebook says Ms. Douez and others like her have already given consent to allowing their profile photos and names to be used in advertising in this way. Signing up for an account, clicking “Like” buttons, and performing other social actions signifies consent, according to Facebook’s privacy statement.

This type of ad, which ran for companies who purchased ‘sponsored stories’, is no longer offered by Facebook.

Facebook Likes Their Lawsuits Handled at Home

When the suit was first filed, it was approved by the British Columbia Supreme Court. However, the provincial Court of Appeal decided  the case had to be filed in  California, where Facebook is headquartered. Their reason was based on verbiage in the Facebook terms of use.

Facebook has, it turns out, a clause stipulating that disputes must be resolved in California and according to California law. However, last month’s decision was for Ms. Douez, whose lawyer had established that the clause may be unenforceable. For their part, Facebook failed to convince the court the case had to be tried in California.

Why Trial Location Matters So Much

Ms. Douez’s case hones in on a familiar theme in the ever-expanding world of Facebook litigation. It also touches upon an issue that’s even broader than Facebook users’ privacy rights: legislation for online privacy is different across the world. 

Different Countries Have Different Ideas About Online Privacy

The class action suit brought by Debbie Douez will seek damages for what she considers a violation of the Privacy Act on the books in British Columbia.

But what if her case were being heard in California? Other states in the U.S.A.? The E.U.? China? How her suit progresses will, of course, be largely dependent on where it’s tried. There’s a reason she and her lawyer want her case tried in B.C., and it has everything to do with Canada’s famously protective privacy laws.

Just this week, a California court dismissed a Facebook privacy case because it felt plaintiffs failed to show they could expect privacy. The lawsuit accused Facebook of spying on users’ web behavior even after they’d logged out of the social media platform. With the use of cookies, Facebook has the power to build up a browsing history profile of users, even during times they’re logged out of Facebook.

The larger issue at hand is the varying degrees of privacy protection offered to online users by different countries. Where you reside can matter!

The internet, that infinite global sea of boundary-less sharing, has become a virtual battleground where the lines are drawn up according to international (geographical) boundaries. This is due to the not-so-subtle differences among countries in the way they handle online privacy.

Facebook Pushes the Limits in Dozens of Ways

Facebook is at the center of many privacy concerns mainly because it’s the largest social media platform but also because it does more to push users’ limits on privacy. They now purchase offline data from brokers on their users.  That includes sensitive data like income, credit cards, and where they like to eat out.

Combined with the vast amount of data Facabook collects itself, the result is a pretty powerful profile on millions of people all over the world. It’s also digital gold for marketers. And if users feel manipulated or misled, it may feel all the worse if it’s for commercial gain, as Debbie Douez indicated in statements about her lawsuit (see above).

Clearly, the threat to privacy is real. Clearly, it’s often motivated by commercial interests. Clearly, each country legislates these matters differently. No wonder this is becoming one of the thorniest topics of our era.

Conclusion

The great irony of today’s online privacy issues is that they’re being haggled out under the auspices of national policies. The internet, that great global equalizer, is also now the harbinger of divisions that run right down national boundaries. And it’s all due to privacy issues (and security).

Debbie Douez’s case is a fascinating example how privacy issues are handled today, but it also tells us much more about the state of global internet policy. Figuring out where to hear an internet privacy case is only the beginning. We have a long way to go before it’s clear to everyone what the protocol will be in cross-border privacy cases. And because this is the internet, almost all privacy cases do indeed extend across national boundaries.

 

Edited and prepared by Oscar Michel, Masters in Journalism, DCU.


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