How private is private? This is the question at the heart of a putative class action recently brought against Facebook in Toronto.  Plaintiff Lavinia Latham claims, on behalf of herself and up to 18-million similarly situated Canadians, that Facebook committed a number of privacy offenses by extracting information from users’ private messages without permission and using that data to boost advertising revenue.

Facebook users and lawyers south of the border should keep an eye on this case as well. A recent ABA conference on Consumer Protection Enforcement in Canada made it clear that American attorneys and courts look to Canada for novel theories on consumer protection issues. Indeed, the FTC and the Canadian Competition Bureau are increasingly coordinated in their activities. With the FTC signaling its intent to police Facebook’s terms and conditions in light of a proposed merger with WhatsApp, this class action over data-use policy takes on even more significance in the United States. The factual basis for the class action is primarily a Wall Street Journal blog post from October, 2012, entitled “How Private Are Your Private Facebook Messages.”  In that article, the authors discovered that every time a user sent a link to an external URL via private message, the owner of that URL received two “Likes” on its Facebook page. According to the class action complaint, Facebook can readily translate these “Likes” into advertising revenue. Facebook responded to that article by claiming that the increase in likes was the result of a “bug with our social plug ins.” Indeed, the class action complaint does not allege that the scanning of private messages continued after 2012, although it does point to some evidence in Facebook’s guidance for developers that suggests that private messages may provide credit for links sent through the private messaging service. Ms. Latham, a privacy conscious user of Facebook since 2006, seeks to portray the social media giant as a disingenuous champion of user privacy. She claims that users are unaware that Facebook “has surreptitiously positioned itself to monitor users’ activities” and maintains that users have a right to privacy in the private messages they send one another that is clearly established in the terms and conditions. Ultimately, the case may boil down to whether converting shared links into “Likes” constitutes snooping or is rather an innocuous, or at least tacitly agreed upon, operating function of the site. In any case, the litigation is ongoing. Meanwhile, in the United States, increased agency focus on social media privacy issues and greater willingness to look to our neighbors to the north make this case one to watch as it unfolds.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.