Facebook Contracts Out of BC Privacy Laws
The class action was brought on behalf of Facebook users in B.C. whose names or pictures were used in Facebook’s advertising product called “Sponsored Stories”. These advertisements would notify contacts on a user’s friend list when the user would “like” a post associated with a business, political party, charity or some other entity advertising through Facebook’s Sponsored Stories. Facebook users weren’t notified when these advertisements were displayed on their friends’ newsfeeds, nor would they be asked for consent.
The Ruling: Online terms and conditions can override domestic legal protections.
The B.C. Court of Appeal has sided with Facebook, saying the terms each user accepted were “valid, clear and enforceable”. The Court held that the user suing Facebook did not demonstrate a “strong cause” for the Court to supersede Facebook’s terms.
Implications for companies:
The Court upheld the concept of freedom of contract and the ability for two parties to enter into an agreement that “contracts out” of certain statutory protections. This is a big opportunity for companies to manage their risk profiles when offering services online to users worldwide. One of the arguments that the B.C. Court of Appeal rejected was that the B.C. Privacy Act was intended to trump valid contracts. Consequentially, the terms of a company’s contract with its consumers are not necessarily subordinate to the law. So long as the terms are “valid, clear and enforceable”, and the claimant fails to show “strong cause” for the court not to enforce them, the contract can stand supreme.
Implications for consumers:
Chris Dittrich is current studying law at the University of Ottawa. We had the pleasure of having Chris join our office as a student intern this summer and wish him the best in his continued studies.