Consent case against Facebook flops: Judge says B.C. plaintiffs 'failed to establish any basis in fact'

In this Sunday, Aug. 11, 2019, photo an iPhone displays a Facebook page in New Orleans. (AP Photo/Jenny Kane)

An attempt at a class-action lawsuit against a social media giant has been dismissed by the Supreme Court of British Columbia.

Two plaintiffs tried to claim that Facebook misused call and text data at the expense of those who use its instant messaging program.

But Justice Ronald Skolrood wrote last week that the duo "failed to establish any basis in fact for the central allegation" about Facebook messenger.

In a ruling issued Thursday and posted online Monday, Skolrood summarized the plaintiffs' case as follows: "The plaintiffs allege that Facebook 'scraped,' i.e. extracted, call and text data from users of its applications for its own purposes and without the knowledge of the users."

According to court documents, the plaintiffs described Facebook's claim it was accessing contacts to "supply its friend recommendation algorithm" as a ruse, essentially.

Plaintiffs Christopher Chow and Elizabeth Chartrand said the company "deliberately employed secret workarounds" to collect data without informed consent from users "by exploiting the interaction between the messenger app and the Android OS."

In a claim not tested in court, they alleged data collected from users' calls between 2011 and 2017 included date and time, call length, the sender's and recipient's identities and whether a call was answered or missed. Chow and Chartrand also alleged the same data was collected from text messages, by exploiting a software vulnerability in the permission settings of the Android OS." Google later tweaked its operating system to change what information could be accessed, and what permission was required, they said.

It was at that point, alleged Chartrand and Chow, that Facebook "deliberately chose to obscure from users that it was seeking permission" to access this data.

In their notice of civil claim, the pair claimed that data was then used in a way that was profitable to Facebook, but they did not elaborate on how it was used, beyond a general statement that providing personal information to third parties "creates risk for scams."

"Through this suit, Canadian users seek to hold Facebook accountable for its unlawful conduct," their notice read.

The case came before a B.C. judge last week as they sought certification – one of the steps required under the Class Proceedings Act.

Facebook opposed the certification application, submitting to the B.C. judge that the plaintiffs hadn't established the criteria outlined in the CPA.

Its evidence came from a software engineer who swore two affidavits in 2019, and included a statement that the company has no record of either of the plaintiffs ever having their call and text logs uploaded.

He denied allegations that Facebook exploited the Android software, and said those who used the app were presented with an option to turn on the call and text upload feature, or to choose "not now."

For those who opted to turn on the feature, he said in his affidavits, what was stored was the telephone number, contact name if available, whether the call was incoming or outgoing, if the call was missed, and the time and duration. Similar data was stored for text messages, he said. No further information, including the content of calls or messages, was stored.

After weighing both sides, the details of which are outlined in several pages of his ruling, Justice Skolrood dismissed the application to certify class action, writing that while the plaintiffs had satisfied some requirements, they had not provided "any basis in fact to conclude that the proposed common issues are capable of determination on a class-wide basis… or that a class proceeding is the preferable process."