OPC failed to observe ‘bedrock rules of evidence’ in court: Facebook

Facebook Inc. is asking a judge to throw out significant chunks of an affidavit from Canada's federal privacy watchdog in the agency's lawsuit against the social media giant. In written arguments filed with Federal Court on Oct. 16, Facebook asked the court to strike from the record portions of the affidavit of the Office of the Privacy Commissioner's director of compliance for the Personal Information Protection and Electronic Documents Act (PIPEDA) Michael Maguire, arguing that the affidavit contains hearsay, arguments, legal conclusions, opinions, and foreign materials which the social media giant said are inadmissible. The OPC's affidavit, Facebook argued, shows the office's "repeated failures to observe bedrock rules of evidence reflect a fundamental misapprehension of the purpose of a fact affidavit: to supply relevant and reliable fact evidence without gloss, argument, or commentary that will assist the court in deciding the issues before it." The OPC's 3,300 page affidavit contains, Facebook continued, "arguments that belong in a factum, legal conclusions that belong in a judgment, opinions that belong in an expert report, statements by third parties that belong in affidavits from them, and irrelevant or otherwise inadmissible information that does not belong before this Court at all." The case stems from a long running dispute between Facebook and the OPC, the current iteration of which dates back to April 2019, when the OPC said it would be taking the web giant to court to force it to abide by what the office says are Facebook's obligations under Canadian privacy law. Commissioner Daniel Therrien said at the time that his office had determined Facebook broke Canadian law when it scraped data off millions of users on behalf of Cambridge Analytica, and that the OPC would take the unprecedented move of taking a private company to Federal Court. When the OPC filed in Federal Court in February of this year, it argued that Facebook failed to obtain meaningful consent from its users and failed to protect data it had harvested, and sought an order to bring the company into compliance with PIPEDA, as well as mandate ongoing checks. But now Facebook says that much of the OPC's argument should be struck down. In referencing news reports on the Cambridge Analytica scandal from the New York Times, NBC News, and the Guardian, Facebook argued in its motion, the OPC is introducing out-of-court hearsay into the court. "The media reports are hearsay because they are out-of-court statements adduced to prove the truth of their contents, without any opportunity for Facebook to contemporaneously cross-examine those who made the statements," Facebook argues in the Oct. 16 filing. Facebook also argues that the OPC's inclusion of testimony -- both to Canadian parliamentary committees and foreign governments -- from Cambridge Analytica whistleblower Christopher Wylie and AggregateIQ (AIQ) executives constitute inadmissible hearsay. "The testimony focused not on compliance with PIPEDA, but on the activities of Cambridge Analytica/SCL Group and Aggregate IQ, which are not relevant to the Application," Facebook argues. Facebook further argues that statements in Maguire's affidavit that argue Facebook's data handling practices are "noncompliant" are presumptuous, and should not be admissible. The issues of Facebook's compliance are, the company argues, "questions for this Court to decide de novo. Mr. Maguire does not get to decide." "His views are irrelevant, and his arguments are inappropriate." The company also points to communications between it and the OPC that the privacy watchdog references in the affidavit, including letters sent between the OPC and Facebook in the run up to the release of the OPC's report. The communications, Facebook argues in its motion, were between parties trying to settle a dispute, and are thus protected by "settlement privilege." "Although the settlement negotiation process did not achieve its intended objective, the communications exchanged in the course of that process are nonetheless protected by settlement privilege," Facebook argues. The company asks for Maguire's invitation to Facebook to "participate in a process intended to lead to a negotiated resolution," Facebook's response, and the OPC's letter to Facebook communicating its disappointment, to be struck from evidence. Oral arguments on the striking of the OPC's evidence will be heard in January. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

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OPC failed to observe ‘bedrock rules of evidence’ in court: Facebook

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