OPC appeals court Facebook decision

The federal Office of the Privacy Commissioner has filed notice that it intends to appeal last month's decision from the Federal Court striking down its challenge to Facebook's data collection practices. In a notice of appeal filed with the court on Friday, the OPC argued that Federal Court judge Michael Manson failed to interpret the Personal Information Protection and Electronic Documents Act (PIPEDA) "in a purposive manner and consistent with its quasi-constitutional nature when he found that Facebook safeguarded information despite Facebook having admitted that it did not read the actual text of the privacy policies of third-party applications." The case centers on the scandal known by the name of the research firm that used a third-party app to scrape the data from millions of Facebook users: Cambridge Analytica. Back in 2019, the OPC under then-commissioner Daniel Therrien announced that following a complaint to the watchdog, the OPC had found that Facebook had violated PIPEDA, and would be taking the social media platform to court to force changes to its privacy policy. The scandal first broke in 2018 when Christopher Wylie, the Canadian who helped build Cambridge Analytica, blew the whistle on the company for having used an app called TYDL – or “thisisyourdigitallife” – to harvest the information of some 87 million Facebook users in the preceding years. Cambridge Analytica then used the data to advise the U.S. presidential campaigns of Donald Trump and Ted Cruz. Last month, Manson wrote that the OPC's argument – that Facebook failed to live up to its obligations under PIPEDA – did not have a strong enough evidentiary backing. “There is no expert evidence as to what Facebook could feasibly do differently, nor is there any subjective evidence from Facebook users about their expectations of privacy or evidence that any user did not appreciate the privacy issues at stake when using Facebook.” Ultimately, the judge wrote in the Apr. 13 decision, “it is the commissioner’s burden to establish a breach of PIPEDA on the basis of evidence, not speculation and inferences derived from a paucity of material facts.” Not so, argued the OPC. In its notice of appeal, the OPC wrote that Facebook's "admission" that it didn't read the text of the privacy policies of third-party applications, "despite evidence of warning signs that further monitoring, investigation and enforcement were necessary, is in and of itself prima facie evidence that Facebook failed to take appropriate steps to safeguard information." The judge, the OPC continued, should have shifted the evidentiary burden to Facebook at that point. The OPC also argued that the lower court erred in law when it found that Facebook met its obligations under PIPEDA requiring it to safeguard the information of its users, as well as when the lower court held that Facebook did in fact make reasonable attempts to obtain meaningful consent from users, also required under privacy law. The "evidentiary vacuum" referred to by Manson, the OPC continued, is no such thing, as there is plenty of evidence of Facebook's failures under PIPEDA. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca

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OPC appeals court Facebook decision

News | May 15, 2023

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