• It’s 2010 -- Do You Know Where Your Personal Information Is?
  • August 23, 2010 | Author: K. Paige Backman
  • Law Firm: Aird & Berlis LLP - Toronto Office
  • If you're a "Facebooker" or on any other social or professional networking sites, you may want to consider your answer.

    Thanks to our friends in Winnipeg, on Friday, June 2, 2010 a class action lawsuit was filed against Facebook in Manitoba's Court of Queen’s Bench. The lawsuit claimed Facebook wronged its members by contravening more than a dozen laws. Some of those laws are statutory and some, perhaps more interesting, are common law based.

    Facebook's approach to privacy has been considered cocky by some. Historically, many of the issues raised about Facebook's handling of personal information have been overblown; however, this latest class action suit launched against Facebook raises fantastic issues, the result of a reasoned decision on such issues could resonate (like a mild earthquake) in the online networking industry. This is not because of the case's impact on Facebook (I'm sure Facebook is still trying to figure out where Winnipeg is), but because online social and professional networking sites have become a norm for communicating who you are. Further to this, much of the conduct for which Facebook is being raked over the coals is based on a business model that is being used by, or has been or is being considered by, many other large and sophisticated networking sites.

    Online professional and social networking sites are a goldmine for advertisers. Advertisers, and their customers who get access to this information, receive first-hand detailed and personal information. This concept is hardly new -- we've had Air Miles and other loyalty programs for years. The difference is the nature of the information being provided and the instant reach to a global market -- all of which is being updated constantly in real time. Access to this information is obtained simply by purchasing it. Advertisers pay gold for access to this type of real time, highly personal information over a broad geographic base. Entities can then target their advertising far more effectively and efficiently (almost as instantly as the information comes in to them), and over an enormous geographic scope. This can translate into millions and billions of dollars in profits.

    The problem comes in how networking companies share this information, what (and how) they tell their members about the information being shared and the behind-the-scenes practices regarding same.

    Why do we care?

    Some of the concerns about the loss of control around personal information (for instance, where defaults are set to broad sharing rather than not) are based on principles around ownership and rights. Others stem from very real risks surrounding personal safety, compromising employment and a general risk of identity theft. All of these issue are important for different reasons.

    I do hope this Facebook class action works its way through the legal system and we get considered reasons supporting decisions. Some of the claims raised in this Facebook class action are set out below. Regardless of who wins, if it goes to trial, we are likely to get a decision that will greatly impact the online social and professional networking world, providing a benchmark for social and professional networking company behaviour and business models. In addition, if the claimants are successful, this case could entrench privacy protection in Canada at a common law level, where it has been struggling in some places to find a voice.

    By the way Facebook, Winnipeg is in the centre of Canada (contrary to what some may believe); in Manitoba, a province that has long respected privacy rights; and in Canada, a country in which there are more than 12 million Facebook members. A perfect location for the action.

    Some of the claims against Facebook:

    Breach of contract; Negligent misrepresentation; Failure to warn; Negligent design and manufacture; Intentional interference with economic interests; Invasion of privacy; Appropriation of personality, person, and identity; Deceit; Breach of fitness of purpose and warranty; Breach of confidence; Conversion of personal information, the property of the Plaintiff and members of the Class; Contravening of The Privacy Act, C.C.S.M. c. P125 and in the addition or alternative, The Consumer Protection Act, C.C.S.M. c. C200 and in the addition or alternative, The Sale of Goods Act, C.C.S.M. c. S10; Plus and an injunctive Order restraining Facebook from utilizing and in the addition or alternative, disclosing the personal information of its users for which no consent has been granted;