Privacy Class Actions: Continued Difficulty In Jumping Over The Certification Hurdle

• Published date: 01 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Class Actions
• Law Firm: MLT Aikins LLP
• Author: Mr Jason Mohrbutter, Kristél Kriel and Nicole Graham

The British Columbia Superior Court ("BCSC") recently denied certification of a proposed class action alleging user privacy violations in Chow v Facebook, 2022 BCSC 137 ("Chow"). This denial demonstrates that successfully certifying a privacy class action without sufficient evidence of loss and harm continues to be very difficult.

Background

The proposed plaintiffs asserted Facebook extracted call and text data for its own purposes without the consent of users, particularly for users operating on Android devices and using the Facebook Messenger application. The plaintiffs believed that Facebook intentionally "employed secret workarounds" to collect the information and profited from its collection, contrary to The Privacy Act (British Columbia). The certification application advanced claims in breach of privacy, unlawful means, and unjust enrichment.

The Test for Certification

For a class action to be certified, the plaintiffs must present "some evidence" of a number of certification criteria, including the presence of an identifiable class of two or more persons, the existence of common issues between the class members and that a class action is the preferable procedure. The merits of the causes of action are not determined, but as Chow demonstrates, at least some persuasive evidence must exist before certification will be granted.

The Decision

Ultimately, the British Columbia Superior Court found that:

• the proposed plaintiffs had not provided evidence that Facebook misused their call and text data, or that Facebook was enriched at the expense of the plaintiffs;
• the proposed plaintiffs were unable to establish that the issues could be determined on a collective basis; and
• a class proceeding was not the appropriate procedure.

No Evidence of Misuse - The "Fatal Flaw"

The BCSC was very critical of the ability of the evidence - or lack thereof - before the court to make out a claim. The proposed plaintiffs' evidence, including expert evidence, did not sufficiently demonstrate inappropriate collection, misuse or unlawful profiting. While the plaintiff attempted to highlight the importance of privacy, the evidence lacked clarity and consisted of indirect and low-quality internet sources.

Collective Resolution of Issues

Although the lack of evidence of misuse...