Coming clean
A judge waited a year to announce he imposed the wrong sentence. Plus Facebook privacy breaches, insolvency appeals, and the latest legal news.
Dylan Gibbs
September 11, 2024
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I’ll spare you a breakdown on the substance of last night’s US presidential debate. But there is at least one clip worth watching:
A key point missing in a lot of post debate analysis is that Trump’s claim about immigrants eating pets almost perfectly syncs up to the piano in the Peanuts theme song.
— Noah Garfinkel (@NoahGarfinkel)
3:25 AM • Sep 11, 2024
— Dylan Gibbs
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TODAY'S DOCKET |
The judge who delivered the wrong sentencing judgment
A quiz about safeguarding personal information
A bias argument based on public opinion
COVID benefits and the Charter
Expedited evictions
Insolvency appeals
Remote affidavits
DECISION SPOTLIGHT 🔦
Facebook responsible for privacy breach tied to a third-party app
Canada v. Facebook, 2024 FCA 140
Remember Facebook’s glory days? News. Pokes. Personality quizzes stealing your personal information to sway political campaigns. This week was Meta’s Canadian day of reckoning for the Cambridge Analytica scandal (the same scandal that gave us Zuck’s notorious water-drinking Congress appearance).
The Federal Court of Appeal said Facebook breached users’ privacy when it gave a rogue app developer unchecked access to data.
A bit of context: Facebook’s original app marketplace was the Wild West of privacy. Facebook let apps onto its platform without reviewing their privacy policies. It let users turn over their friends’ data. And it tucked information about its data practices deep in its lengthy terms of service.
That left room for bad actors, like the personality quiz app This is Your Digital Life. The app’s developers used it to sell information about users and their friends — which helped create targeted political advertising for the 2016 US election. Canada’s Privacy Commissioner went to the Federal Court to hold Facebook responsible.
The Commissioner alleged two breaches of PIPEDA — users didn’t give Facebook informed consent to share their data, and Facebook failed to safeguard user data against the rogue app.
In the court below: Justice Manson of the Federal Court sided with Facebook, saying that the Privacy Commissioner’s evidence fell short. Justice Manson wanted expert evidence showing what Facebook could have done differently, and evidence from users showing what they understood of Facebook’s terms.
On appeal: Justice Rennie said the lower court had all the evidence it needed. Since PIPEDA’s consent rules are about the perspective of a reasonable person, the question was whether a reasonable person would have understood how Facebook planned to use their data.
It wouldn’t help to get subjective evidence from users about their interpretation of Facebook’s terms — because the standard is objective.
And this isn’t the sort of question that requires expert evidence.
A court would, of course, need expert evidence to determine the standards applied to reasonable doctors (as in Ter Neuzen) or safely designed products (as in Kreutner); a judge is neither a practicing doctor nor a licensed engineer. [But that’s not the case for] the views of the reasonable person, who is both fictitious and yet informed by everyday life experience.
It was the responsibility of the Court to define an objective, reasonable expectation of meaningful consent. To decline to do so in the absence of subjective and expert evidence was an error.
What do we know about reasonable people?
One thing’s for sure — reasonable people don’t comb through website terms. The Court was concerned that Facebook bound users to its data policy using a hyperlinked reference in its lengthy terms of service. And it was concerned about Facebook’s broad general statements, which didn’t drive home the risk of a rogue app accessing user data.
While Facebook did warn users … that third-party apps were “not part of, or controlled by, Facebook”, and cautioned users to “always make sure to read [apps’] terms of service and privacy policies to understand how they treat your data”, it does not follow that users who read the Data Policy were aware that these third-party apps could be bad actors with intentions to ignore Facebook’s policies or local privacy laws, let alone sell their information to a third party.
So the Court said Facebook failed to get meaningful consent — both from users who installed the rogue app and from those users’ friends.
As for safeguarding? The Court said Facebook couldn’t just transfer the risk of bad actors to its users — it had to do a better job policing the apps in its marketplace.
[R]eading all third-party apps’ privacy policies [may] have been practically impossible. But, this is a problem of Facebooks’s own making. It invited the apps onto its website…
[T]here is a loose analogy here to [commercial host liability]: having invited customers in with a clear profit motive, the host cannot now argue that too many came and some behaved badly for it to meet its obligations. [Especially given] Facebook’s business model: the more apps, the more users, the more traffic, the more revenue.
Big picture: Canada is a bit late to the party due to pandemic delays. US regulators fined Meta $5 billion over this scandal in 2019, and the UK’s Information Commissioner followed suit with a fine of £500,000.
For privacy buffs, the whole decision is worth a read. Justice Rennie was on fire with quotable passages and they wouldn’t all fit here.
HEARSAY ROUNDUP
Canadiana
🤯 Justice Andrew Goodman says he read the wrong sentencing judgment over a year ago — a mistake that added two extra years to Peter Khill’s sentence. According to a letter Justice Goodman wrote to the Court of Appeal, he printed three copies of his judgment on the day of sentencing (each with a different jail term), grabbed the wrong one, and froze after reading the judgment in court. He says he thought about rectifying the mistake in the days that followed but was “dissuaded” after speaking with colleagues.
🧑💻 It’s official — you can now remotely commission affidavits in BC.
🏡 Nova Scotia is extending its 5% cap on annual rent increases. The province is also shortening the time it takes to evict a non-paying tenant, allowing landlords to start the process just three days after a missed payment (down from 15).
📆 Speaking of speedy evictions, a Yukon judge struck down part of the territory’s Safer Communities and Neighbourhoods Act. The law let the government evict with only five days’ notice if a tenant’s illegal activity (like drug possession) affected their neighbourhood’s safety.
The Court said the short-notice evictions created psychological suffering and the risk of homelessness, depriving tenants’ of their personal security.
And the deprivation didn’t accord with the principles of fundamental justice, because the legislation was procedurally unfair, overbroad, and grossly disproportionate.
(Wright v Yukon, 2024 YKSC 41)
💸 The BC Court of Appeal weighed in on insolvency appeals. Parties can appeal Bankruptcy and Insolvency Act decisions if the fight involves more than $10,000. But not every Court treats that provision the same way.
The Ontario Court of Appeal takes a narrow approach, blocking appeals it considers “procedural” — like appeals challenging a court’s decision to approve a property sale. Even if a successful appeal might create more than $10,000 in value for creditors, the narrow approach shuts it down.
The BCCA settled on a broader approach, following a 2020 decision from the Saskatchewan Court of Appeal.
[T]he mere fact that the question on an appeal is procedural should not by itself determine [the right to appeal.]
[This] appeal does put the value of the property ‘in play’, and by an amount exceeding $10,000. The substance of the parties’ dispute is whether it was fair and appropriate in the circumstances of this case for the receiver to sell the subject property for $34 million or to delay further in hopes of [a sale worth almost $64 million.] Looked at in this way, several millions of dollars are “in jeopardy” in this appeal.
😷 The Ontario Court of Appeal upheld the federal government’s pandemic-era employment benefits (CERB and CRB). The Court accepted that the eligibility criteria for the benefits discriminated against workers with disabilities — who had more trouble meeting minimum income requirements. But the Charter infringements were justified in the circumstances — especially since the government had to respond to COVID quickly.
“[t]he Court will not interfere simply because it can think of a better, less intrusive way to manage the problem … [w]hat is required is that the [government concerned] establish that it has tailored the limit to the exigencies of the problem in a reasonable way.”
In my view, this description also captures Canada’s response to the COVID-19 emergency through the design and evolution of CERB and the CRB. These were time-limited programs, responsive to an emergency situation, which evolved over the period of time covered by the application to include additional accommodations which responded to the situation of workers with disabilities…
THINGS NOT TO DO
Don’t run an opinion poll to support your bias argument. Jean-François Malo argued that none of the judges on the Court of Quebec can fairly hear his preliminary hearing. He’s charged with attempting to murder one of their colleagues, Judge Nicholas Daudelin, who was appointed after the alleged offence.
To support his argument, Malo’s legal team surveyed about 500 people by phone — asking what they thought of judges deciding cases about their colleagues.
Justice David of Quebec’s Superior Court summarily dismissed the application, saying there was no basis to conclude the entire court was biased — and that the opinion poll was irrelevant. There’s no room for subjective opinions in the test for reasonable apprehension of bias (much like the Federal Court of Appeal’s approach to Facebook privacy).
PS: Only 56.4% of the survey respondents actually supported Malo’s bias argument. If you can’t resist making this argument yourself — at least come equipped with a landslide poll.
SUITS IN THE NEWS
Apple is facing a proposed class action over its water-resistant marketing of the iPhone 15. Plaintiffs say it was deceptive for Apple to call the phones water-resistant only to reject warranty claims based on water damage.
Students are suing Edmonton-based Concordia University for $3.7M because the school allegedly launched a doctoral program but didn’t give students the field placements they needed to complete it.
Keurig is in more hot water over its “recyclable” K-Cups. The company has previously faced fines over allegations that its recyclability claims amounted to greenwashing. Now it’s facing a $1.5 million fine from the US Securities and Exchange Commission because it didn’t disclose concerns raised by recycling experts in its annual reports.
The Coutts border protestors who showed up with weapons ended up with 6.5-year prison sentences.
 | That’s all for today. Govern yourself accordingly. If someone sent you this email, subscribe here. Want to advertise in Hearsay? Get in touch here. |
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