⚖️ Facial features

• Can Big Tech extract facial features from your photos?

• Jordan Peterson unleashes his fury

• Nygard parts ways with counsel

• Edmonton escapes encampment litigation

• “Cash for keys” deals pinch Ontario landlords

PRIVACY

Google Photos class action back from the dead

Situmorang v. Google, 2024 BCCA 9

Big tech companies using facial recognition to sort your photos … Helpful? Creepy? Invasion of privacy? A proposed class action against Google now has another shot at getting those answers. The BC Supreme Court dismissed the lawsuit for failing to disclose a cause of action, but the Court of Appeal saw things differently.

Templating: When users give Google a photo, the company creates “face templates” — unique numerical profiles that can identify a face in other images. The plaintiff says Google didn’t properly disclose that practice. The lawsuit also alleges Google makes the template data accessible to third parties and uses the data to give itself a competitive advantage.

Sent packing: The application judge dismissed most of the plaintiff’s privacy claims as vague and speculative. The pleadings didn’t give any details about the third parties that allegedly accessed the face template data. Nor did the pleadings explain how Google used the data to its advantage. That only left the claim Google didn’t inform its users well enough to create the templates in the first place, which the judge said wasn’t even that big of a deal.

Not so fast: The Court of Appeal said the plaintiff didn’t need to be any more specific — it was enough for the plaintiff to allege the face templates are accessible to third parties and that Google somehow uses the data to its advantage. The application judge also shouldn’t have decided contested facts during an application to certify the class action — facts like whether a reasonable person would find Google’s face templating offensive.

Big picture: Google says it’s just being helpful — it keeps the facial recognition data private and uses the data only to help search and sort photos. But it’s not the first time Google and its peers have ended up in trouble for harvesting data about facial features. Google paid $100 million to settle a similar class action in 2022. And Facebook was ordered to pay a whopping $650 million for roughly the same conduct in 2021. Both lawsuits were in Illinois, which has a statute expressly dealing with biometric data collection.

HEARSAY ROUNDUP

Canadiana

🙅‍♂️ Defence counsel Brian Greenspan parted ways with his former fashion mogul client, Peter Nygard. Greenspan says his relationship with Nygard turned adversarial at some point after a jury found Nygard guilty of sexually assaulting four complainants. Greenspan said it’s the first time in his 50-year career that he’s made a formal court application to fire his client.

⛺️ The litigation challenging Edmonton’s response to encampments in the city came to an early end this week. A judge held the Coalition for Justice and Human Rights doesn’t have standing to bring the claim — the group doesn’t have a direct interest in the litigation and it doesn’t have the necessary chops to act as a public interest representative for Edmonton’s unhoused population.

💥 The company whose manufacturing facility exploded last year, killing six employees, is now suing its insurance broker. Eastway Tank says it’s out $13 million because the broker didn’t adequately cover the company against business interruption and property damage.

🔑 Tenants are capitalizing on the turtle-like pace of Ontario’s Landlord and Tenant Board to extract large sums of money from their landlords. The Board has been so backed up in recent years that resolving a tenancy dispute can take over a year. That leaves some landlords willing to fork over cash just to get their keys back, even if they’d otherwise be entitled to evict. Some tenants might be getting a bit greedy though — one paralegal says her clients have asked for upwards of $100,000 to walk away from a property without a fight.

🤬 Jordan Peterson’s battle with Ontario’s College of Psychologists is relocating from the courtroom to the internet. The College said Peterson’s public statements didn’t meet the ethical standard required of the profession and ordered him to take a coaching program. The Divisional Court upheld that decision. Peterson wanted the Court of Appeal to intervene, but the Court of Appeal dismissed his request for leave.

• If you prefer a slightly less accurate but catchier take on what happened (per Peterson): “A higher court in Canada has ruled that the Ontario College of Psychologists indeed has the right to sentence me to re-education camp”).

• In a National Post op-ed, Peterson said he’s been keeping quiet about the regulator while the legal proceedings unfold, but now “there are no holds barred”.

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