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By Richard Stobbe

In Part 1, we looked at the B.C. decision in Douez v. Facebook, Inc.

Another proposed privacy class action was heard in the B.C. court a few months later: Ladas v. Apple Inc., 2014 BCSC 1821 (CanLII).

This was a claim by a representative plaintiff, Ms. Ladas, alleging that Apple breached the customer’s right to privacy under the Privacy Act (B.C.), since iOS 4 records the location of the “iDevice” (that’s the term used by the court for any Apple-branded iOS products) by surreptitiously recording and storing locational data in unencrypted form which is “accessible to Apple”. The claim did not assert that this info was transmitted to Apple, merely that it was “accessible to Apple”. This case involved a different section of the Privacy Act (B.C.) than the one claimed in Douez.

The Ladas claim, curiously, referred to a number of public-sector privacy laws as a basis for the class action, and the court dismissed these claims as providing no legal basis. The court did accept that there was a basis for a claim under the Privacy Act (B.C.) and similar legislation in 3 other provinces. However, the claim fell down on technical merit. It did not meet all of the requirements under the Class Proceedings Act: specifically, the court was not convinced that there was an “identifiable class” of 2 or more persons, and did not accept there were “common issues” among the proposed class members (assuming there was an identifiable class).

Thus, the class action was not certified. It was dismissed without leave to amend the pleadings.

Apple’s iOS software license agreement did not come into play, since the claim was dismissed on other grounds. If the claim had proceeded far enough to consider the iOS license, then it would surely have faced the same defences raised by Facebook in Douez. As the judgement noted: Apple argued that “every time a user updates the version of iOS running on the user’s iDevice, the user is prompted to decide whether the user wants to use Location Services by accepting the terms of Apple’s software licensing agreement. Apple relies on users taking such steps in its defence of the plaintiff’s claims. The legal effect of a user clicking on “consent” or “allow” or “ok” or “I agree” would be an issue on the merits in this action.”

Any test of Apple’s license agreement will have to wait for another day.

Calgary – 07:00 MST