The court, in a 4-3 ruling, stressed that in consumer contracts in which basic rights are at stake, social-media companies cannot simply demand that their users sign away their rights to be heard in Canadian courtrooms.
Deborah Douez of Vancouver launched the lawsuit in British Columbia on behalf of up to 1.8 million Facebook members in 2012, accusing the company of using her name and portrait without her consent in an advertisement known as “Sponsored Stories.”
Ms. Douez told The Globe and Mail that she was thrilled by her legal victory. “I think if we don’t start standing up for our privacy rights, we’re going to lose them.”
Under British Columbia's Privacy Act, companies can be held liable for using the names or pictures of customers without their consent. Of course, Ms. Douez gave her consent when she signed up for Facebook. But, says Michael Geist, that doesn't matter because:
Last week’s ruling rightly recognizes the dangers of uneven bargaining power in online contracts and the reality that consumers regularly click away their rights.
Good luck defining "uneven bargaining power" in a court of law. But the real issue isn't Facebook's terms of service. It's mistaking privacy for a right. Facebook's data use terms don't violate anyone's privacy rights because privacy isn't a right.
Rights only exist as far as there is ownership. You own your own body. Thus, no one can physically harm or enslave you if you haven't first harmed or enslaved them. This is everyone's right. These same rights apply to everything you own. But you can’t “own” your privacy any more than you can own your name, or own an idea, or own the exclusive right to look at something.
But suppose, for the sake of argument, that privacy really is a right. There’s still no guarantee that your privacy rights will be enforced, or that they will be restored once violated. If someone steals your car, you may never get your car back, even though you pay taxes to fund a government that enacts laws about theft and pays policemen and investigators and judges and prison guards to carry out those laws. Preserving your rights requires resources, and resources cost money. Just as declaring health care a right doesn't magically make health care free, likewise, declaring privacy a right doesn't make it free. Making data privacy a federal or state law doesn't mean you now enjoy data privacy for free - it just means companies are now bearing the financial burden for it. It also means you’re paying the government (and making everyone else pay the government) to enforce your data privacy instead of some privately operated service.
As a consumer, I take issue with companies like Google and Facebook for all their fine-print and terms-of-service games, and with their data practices in general. But I'd rather preserve my "right" to privacy through voluntary means than forcing everyone to pay for and adhere to my privacy values through a monopolist government.